SUPREME COURT OF THE STATE OF WASHINGTON
|In the Matter of the
Disciplinary Proceedings Against
DOUGLAS A. SCHAFER,
an Attorney at Law
(License No. 8652)
PETITIONER'S REPLY TO MOTION TO STRIKE WEBSITE PRINTOUT
I, Douglas A. Schafer, the Petitioner, hereby reply to The Association's Motion to Strike Respondent's Supplementation of Appendix, filed on March 1, 2000, which asks the Court to strike from its record and not consider one of the two items of material that I filed on February 18, 2000, as Supplementation of Appendix to Motion for Discretionary Review. I filed my Motion for Discretionary Review by mail on December 24, 1999. I write this in the first person because it is more personal style of writing; and since this proceeding affects me and my chosen profession of over 21 years, it is unavoidably very personal.
1. Clarification of Motion to Strike. I ask the Court to note that Disciplinary Counsel is not asking the Court to strike entirely the supplementary material that I filed on February 18, 2000. Disciplinary Counsel raises no objection to me providing the Court a copy of the Order Dismissing Counts II and III, Denying Motions to Bifurcate, and Granting Stay, entered January 24, 2000, in the Disciplinary Board proceeding by Hearing Officer Lawrence R. Mills. Counts II and III of the Association's Formal Complaint filed May 26, 1999, had publicly alleged me to be a liar, allegations that caused me considerable personal emotional distress and public humiliation. I knew those allegations to be false and unsupportable, and have continually accused the Office of Disciplinary Counsel of making them in bad faith simply to discredit and malign me in the eyes of the public and of government officials. Once I began preparing my defense to those allegations, the Association declared in writing on January 6, 2000, that it would be presenting no evidence supporting them. Thus, the Hearing Officer dismissed them with prejudice in a telephone conference hearing on January 24, 2000. I had understood from that hearing that Disciplinary Counsel Christine Gray would inform this Court of that dismissal ruling as part of the Association's Answer to Motion for Discretionary Review, but she filed it on February 5, 2000, without so informing this Court. Considering the natural tendency that official allegations of dishonesty have to taint all other deliberations about a lawyer's conduct--for lawyers live and die on their reputations for integrity--I consider Disciplinary Counsel's action of not informing this Court of the dismissal of Counts II and III as further evidence of the Association's bad faith in this case.
2. The Unique Nature of This Proceeding. Lawyer disciplinary proceedings are neither criminal nor civil proceedings (RLD 4.11(a)), but are a unique (the rule says "sui generis," but I resist using Latin legal jargon whenever possible) type of proceeding intended to protect the public and preserve public confidence the legal-judicial system. Latitute granted by the Court in this proceeding that may be consistent with those objectives ought not to be viewed as precedent in any civil or criminal proceeding in which other objectives and considerations are paramount.
Unique as lawyer disciplinary proceedings are as a class, this particular proceeding is unique within that class. As are illustrated by the documents presently posted on my disputed Internet website, captioned "To Kill a Messenger - for Reporting a Corrupt Judge," (http://members.aa.net/~schafer), this proceeding raises for public debate the question of what is the most important duty of a lawyer--to protect the integrity of the judicial system or else to further the private objectives, whether or not unlawful, of his or her client. The documents on my website further illustrate that there good reasons for the public and the Court to be gravely concerned about our state's lawyer and judicial disciplinary systems, neither of which appear to be operating in a manner that promotes public confidence in the integrity of the legal-judicial system.
Because of the Court's inherent jurisdiction and ultimate authority over the lawyer and judge discipline systems, the Rule of Necessity supports the Court taking cognizance of the evidence before the general public of those systems' failure, more evidence of which will be discovered if the Court reverses the Hearing Officers's ruling barring my discovery of such evidence. RLD 7.1(b); Dodd v. Bannister, 86 Wn.2d 176, 543 P.2d 237 (1975) (inherent disciplinary role of the Supreme Court); Kennett v. Levine, 50 Wn.2d 212 (1957) (Rule of Necessity).
3. The Public Interest in This Proceeding. I urge the Court to take judicial notice of the degree of public interest in this proceeding. This case was the subject of a major cover story in the January 10, 2000, issue of The National Law Journal, the nation's leading legal profession newspaper, published in New York. A writer from a nationally prominent daily newspaper just spent a week in this area interviewing me, Barrie Althoff, Kurt Bulmer, Paul Taylor, and others to write a feature story about this case. Other national writers also have expressed interest. I have been contacted by a booking producer from a national television network news program that intends to do a segment on this case. I believe that other print and broadcast journalists and commentators are, or will be, covering this case. I, frankly, seek out and encourage such media coverage because the issues that are raised in this case are issues that I sincerely believe warrant widespread public attention and discussion, not just within the legal community but within the greater society that it serves. Since the end of last December, my website has been accessed by about 1,500 Internet users. I further believe that I would be remiss in not informing the Court of that public interest in this case. I further expect that it will be difficult for members of the Court to shield themselves from media coverage of this case, and I consider it appropriate that they take into account the public interest in it.
4. The Standard for Inclusion of Appendix Material. RLD Title 7 prescribes the procedures for parties in a lawyer disciplinary proceeding to seek this Court's review of a final decision of the Disciplinary Board. This case is not in such a posture, for I seek to invoke the Court's inherent supervisor power over the lawyer disciplinary system to review an interlocutory decision by the hearing officer that has the effect of further eroding public confidence in the disciplinary systems, and also to review, if the Court chooses to do so, the other obvious and important issues that arise in this case.
RLD 7.4 provides that the Rules of Appellate Procedure (RAPs) are not directly applicable, but "shall serve as guidance" for reviews of final Disciplinary Board decisions under RLD Title 7. Thus, the RAPs that are cited by Disciplinary Counsel in the Motion to Strike do not directly apply. Nonetheless, the appropriate standard for inclusion of appendix material in a motion for discretionary review ought be that stated in RAP 17.3(b)(8). Namely, would the material assist the Court in determining whether the motion should be granted.
5. The Website Material Will Assist the Court. In deciding whether to grant the Motion for Discretionary Review, the website material will give to all members of the Court critical information presently in the public domain about the background of this proceeding, including why it warrants the public interest that it is receiving. The misconduct charges in this case arose from my reporting to appropriate authorities the improper, if not criminal, conduct that led to this Court's removal of Pierce County Superior Court Judge Grant L. Anderson. 138 Wn.2d 830, 981 P.2d 426 (1999) . However, only three (3) of this Court's nine (9) members--Justices Madsen, Smith, and Ireland--were on the unanimous panel that removed former judge Anderson, the other members of that panel were pro tem justices. Accordingly, it is doubtful that most members of the Court are familiar with the record of his extraordinary misconduct that led to his removal. A substantial part of that record (including the transcripts from his 5-day hearing and from his initial deposition by the Commission on Judicial Conduct's prosecuting attorney, Paul Taylor) is posted on my website, along with other related material, some of which shows a pattern of unlawful behavior by Bill Hamilton, my former client, and other lawyers.
The significance of former judge Anderson's misconduct, and of my former client's misconduct, to this disciplinary case is that they are central to my primary defenses to the disciplinary charges against me. I argue that a lawyer's highest duty as an officer of the court is to protect the integrity of the judicial system, which requires reporting to appropriate authorities of evidence of a judge's personal corruption. I further argue that the established crime-fraud exception to attorney-client confidentiality--which applies when a corrupt client uses a lawyer (as my client Bill Hamilton used me) to further a crime or fraud--permits a lawyer to disclose client information to enable the defrauded victim to recover the loss suffered.
In order for the Court to make a decision on my Motion for Discretionary Review that will promote public confidence in the legal-judicial system, it is important that the Court take into account the background information about the case that the public at large takes into account about it, as posted on my website. The general public will weigh this Court's actions, including any decision to take no action, from that foundation of information. It is important that the Court understand that.
6. Petitioner's Representation of Truthfulness of Website Material. By filing the printout of 124 pages of my website in this proceeding, and by inviting the Court to review the website on-line to get the full benefit of the links between its documents and also to relevant material posted on other Internet sites (e.g., the audio file of testimony before the Legislature, posted on TV-W's website), I represent to this Court that all factual representations there posted are true to the best of my knowledge and belief, formed after reasonable inquiry, and that posted versions of documents, such as transcripts, are true copies of their originals as to their text, with only formatting alterations necessitated by the medium or added for emphasis.
|March 13, 2000.