SUPREME COURT

OF THE STATE OF WASHINGTON


In the Matter of the Disciplinary Proceeding Against

DOUGLAS A. SCHAFER,

an Attorney at Law.


MOTION FOR DISCRETIONARY REVIEW

OF INTERLOCUTORY DECISIONS


Douglas A. Schafer, Pro Se
WSBA No. 8652
P.O. Box 1134
1019 Pacific Ave., Suite 1302
Tacoma, WA 98401-1134
(253) 383-2167


TABLE OF CONTENTS

IDENTITY OF PETITIONER ....................................................................................................1
DECISIONS BELOW ................................................................................................................1
ISSUES PRESENTED FOR REVIEW .......................................................................................1
STATEMENT OF THE CASE ...................................................................................................2
ARGUMENT ..............................................................................................................................4

1. May a lawyer report a corrupt judge to appropriate authorities without risk of reprisals?                                                                                                                  4

2. Under RLD 2.4(d)(1), must a Review Committee separately consider the evidence of each alleged act of misconduct before ordering a hearing on the alleged act of misconduct?                                                                                                              4

3. Under the circumstances of this case, should a hearing panel that includes a nonlawyer member be assigned to hear the matter, as provided by RLD 2.5(d)?         5

CONCLUSION ..........................................................................................................................6
APPENDIX ................................................................................................................................7


IDENTITY OF PETITIONER

The petitioners is Douglas A. Schafer, who is the respondent lawyer in this disciplinary proceeding, presently pro se.
 


DECISIONS BELOW

I seek review of the decisions of officials of the Washington State Bar Association ("WSBA")--

A. Charging me with misconduct (namely, disclosing a confidence or secret) for reporting to appropriate officials information about the corruption of Pierce County Superior Court Judge Grant L. Anderson which led to his removal by this Court (Docket No. JD 0014, ruling filed July 29, 1999);

B. Charging me with committing acts of misconduct (namely, lying) without a Review Committee of the Disciplinary Board having first separately considered the evidence of the commission of those acts as required by RLD 2.4(d)(1); and

C. Denying my request that any hearing in this proceeding be conducted before a three-member panel that includes a nonlawyer member, as provided by RLD 2.5(c).
 


ISSUES PRESENTED FOR REVIEW

The issues presented for review are:
Issue No. 1.: May a lawyer report a corrupt judge to appropriate authorities without risk of reprisals?

Issue No. 2.: Under RLD 2.4(d)(1), must a Review Committee separately considered the evidence of each alleged act of misconduct before ordering a hearing on the alleged act of misconduct?

Issue No. 3.: Under the circumstances of this case, should a hearing panel that includes a nonlawyer member be assigned to hear the matter, as provided by RLD 2.5(d)?

The Court may consider these issues at this time in the exercise of its inherent and exclusive jurisdiction over the lawyer discipline system. RLD 7.1(b); Dodd v. Bannister, 86 Wn.2d 176, 543 P.2d 237 (1975).
 


STATEMENT OF THE CASE

In February of 1996, I reported to the Commission on Judicial Conduct ("CJC"), the WSBA, and other appropriate officials information indicating that Pierce County Superior Court Judge Grant L. Anderson had committed fraud and fiduciary misconduct in administering a decedent's estate. In that information I disclosed a boastful comment made to me in August 1992 by William Hamilton, my then client, that he was getting a good deal on a bowling alley from an estate being "milked" by his friend lawyer Anderson, and that he intended to repay Mr. Anderson in some way for it. Mr. Hamilton had engaged me for the limited purpose of forming a corporation that he would use to purchase and operate the bowling alley.

In August 1996, the WSBA closed its investigation of Mr. Anderson and began investigating Mr. Hamilton's grievance against me for having disclosed his comment, though he readily admitted having made it..

In August 1997, the CJC charged Judge Anderson with improperly accepting Cadillac payments from Mr. Hamilton. Following CJC proceedings in 1998, this Court in July 1999 ordered Mr. Anderson's removal from judicial office for accepting the Cadillac payments and "a pattern of dishonest behavior unbecoming of a judge."

In February of 1999, the WSBA Office of Disciplinary Counsel ("ODC") concluded its investigation of Mr. Hamilton's grievance and recommended that I be disciplined for allegedly (1) disclosing a client's confidence or secret, (2) lying to a court commissioner, and (3) lying in a written Perjury Declaration. On April 13, 1999, a Review Committee of the Disciplinary Board recommended that a hearing be held on the allegations of Mr. Hamilton's grievance. On April 16, 1999, I requested by letter that the Review Committee indicate specifically as to the two allegations of lying if it found the requisite threshold of evidence to warrant a hearing. On April 28, 1999, the Chair of that Review Committee responded by letter that the committee lacks authority to dismiss separate allegations by a grievant if it orders a hearing on any allegation by the grievant. By letter of May 18, 1999, I requested that the WSBA Board of Governors advise the Review Committee that its authority is not so limited under RLD 2.4(d)(1). By letter of June 30, 1999, the WSBA President informed me that the Board of Governors declined my request.

By letter of June 15, 1999, I requested that the Chair of the Disciplinary Board appoint a hearing panel that includes a nonlawyer member to hear this matter, as provided by RLD 2.5(c). By order dated June 18, 1999, he denied that request. On July 2, 1999, the WSBA Executive Director informed me that the Board of Governors approved, at is meeting on June 25, 1999, a list of nonlawyers suitable to serve on hearing panels, as provided by RLD 2.5(c). On July 2, 1999, I requested by letter that the Chair of the Disciplinary Board reconsider his decision in light of the Board of Governors' action. He has not ruled on that request nor indicated that he will do so, though on July 12, 1999, he appointed a single lawyer hearing officer.
 


ARGUMENT

1. May a lawyer report a corrupt judge to appropriate authorities without risk of reprisals?

The persons in the best position to recognize a corrupt judge are lawyers. If they perceive that the price of exposing a corrupt judge is enduring a lengthy, onerous, retaliatory disciplinary process and possible discipline, few if any lawyers will ever "stick their neck out" to report judicial corruption. I believe that my acts to expose the "pattern of dishonest behavior" of Pierce County Superior Court Judge Grant L. Anderson were proper for the reasons set forth in pages 5 through 13 of my Answer included as Item 2 in the Appendix. I incorporate those arguments by this reference, and supplement the argument under Defense 1.2 with the following list of Washington cases that have recognized the crime-fraud exception to attorney-client confidentiality:

Hartness v. Brown, 21 Wash. 655, 668, ___ P. ___ (1899).
State v. Richards, 97 Wash. 587, 591, 167 P. 47 (1917).
Dike v. Dike, 75 Wn. 2d 1, 14, 448 P.2d 490 (1968).
State v. Metcalf, 14 Wn. App. 232, 239-40; 540 P.2d 459 (1975).
Whetstone v. Olson, 46 Wn. App. 308, 310, 732 P.2d 159 (1986).
State v. Hansen, 122 Wn. 2d 712, 720-21, 862 P.2d 117 (1993).


2. Under RLD 2.4(d)(1), must a Review Committee separately consider the evidence of each alleged act of misconduct before ordering a hearing on the alleged act of misconduct?

The function of the Review Committees of the Disciplinary Board is to review reports on investigations by ODC of alleged acts of lawyer misconduct and to independently determine if there is sufficient evidence of an act of alleged misconduct to warrant a hearing on it. I incorporate by this reference the arguments that I made on this issue to the WSBA Board of Governors by my letter of May 18, 1999, included as Item 4 in the Appendix.
 

3. Under the circumstances of this case, should a hearing panel that includes a nonlawyer member be assigned to hear the matter, as provided by RLD 2.5(d)?

Since their adoption in 1982, effective in January 1983, the Rules for Lawyer Discipline have provided, at RLD 2.5(c), that disciplinary hearings might be conducted before three-member panels that include a nonlawyer member from a list of suitable persons maintained by the WSBA Board of Governors. For many years, however, the WSBA Board of Governors has failed to maintain a list of suitable nonlawyers willing to serve on hearing panels. By letter to me of June 11, 1999, the WSBA Disciplinary Board clerk/counsel reported she was "not aware of any hearing panels appointed in any discipline cases." RLD 4.2(a) provides no guidance to the Chair of the Disciplinary Board as to when he or she should appoint a hearing panel with a nonlawyer member rather than a single lawyer hearing officer. I incorporate by reference the arguments for such a panel that I made to the Disciplinary Board Chair in my letter to him of July 2, 1999, included as Item 9 in the Appendix.

I ask the Court to take judicial notice of the public interest in this case as evidenced by the leading newspaper articles, editorials, and letters to the editors that have followed the announcement of the removal Judge Anderson (Docket No. JD 0014, ruling filed July 29, 1999). I believe that the public has a considerable degree of distrust in the lawyer disciplinary system. Under these circumstances, I believe that a hearing panel that includes a nonlawyer should be appointed to hear this matter, if it proceeds to a hearing.
 


CONCLUSION

The Supreme Court should--

1. Dismiss this lawyer disciplinary proceeding; but if not, then--

2. Order the WSBA Disciplinary Board to cause a Review Committee to separately considered the evidence of each alleged act of misconduct before ordering a hearing on the separate alleged acts of misconduct, and

3. Order the WSBA Disciplinary Board Chair to appoint a hearing panel that includes a nonlawyer member to hear this matter.

Respectfully submitted this 6th day of August, 1999.
 
/s/
Douglas A. Schafer, WSBA No. 8652, Pro Se



APPENDIX

1. Formal Complaint filed May 26, 1999.

2. Answer, with its Exhibit 1, 2, and 3, filed July 6, 1999.

3. Letter of August 15, 1996, by WSBA/ODC dismissing grievance against Lawyer/Judge Grant L. Anderson.

4. Letter of May 18, 1999 by Schafer to WSBA Board of Governors, with its Exhibits 1, 2, and 3 (concerning authority of Review Committees).

5. Letter of June 30, 1999, by WSBA President to Schafer.

6. Letter of June 15, 1999, by Schafer to Chair of Disciplinary Board (requesting hearing panel with nonlawyer member).

7. Order dated June 18, 1999 by Chair of Disciplinary Board.

8. Letter of July 2, 1999 by WSBA Executive Director to Schafer.

9. Letter of July 2, 1999 by Schafer to Chair of Disciplinary Board.

10. Letter of July 15, 1999 by Disciplinary Board Clerk/Counsel to Schafer.