No. 68427-8
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 PREHEARING RULINGS


Douglas A. Schafer, Pro Se
WSBA No. 8652
P.O. Box 1134
950 Pacific Ave., Suite 1050
Tacoma, WA 98401-1134
(253) 383-2167
 


TABLE OF CONTENTS

IDENTITY OF PETITIONER ....................................................................................................1
DECISIONS BELOW ................................................................................................................1
ISSUES PRESENTED FOR REVIEW .......................................................................................1
REASONS FOR SUPREME COURT REVIEW ........................................................................3
STATEMENT OF THE CASE ...................................................................................................4
ARGUMENT ..............................................................................................................................6

1. May a lawyer charged with violating RPC 1.6(a) (disclosure of a client's confidence or secret) defend by arguing that the disclosed information was not a confidence or secret by application of the public policies underlying the crime-fraud exception to attorney-client confidentiality?                                                                                    6

2. Do the policies underlying the crime-fraud exception to attorney-client confidentiality rest upon the subjective criminal or fraudulent intentions of the client at the time of utilization of the lawyer's services or upon the beliefs of the lawyer, when later disclosing client information, concerning the client's past criminal or fraudulent activities?                                                                                                                  7

3. What quantum of proof of wrongful conduct supporting application of the crime-fraud exception to communications with a former client must be shown before a lawyer asserting the exception's application may conduct discovery in a disciplinary proceeding to show the former client's actual criminal or fraudulent intentions that he sought to further by the lawyer's services?                                                                 8
4. Consistent with the policy of public access to lawyer disciplinary information stated in RLD 11.1(a), should WSBA and the Hearing Officer honor a respondent lawyer's request for computer file copies of filed documents to permit posting of them on a public access Internet website?                                                                                 9
CONCLUSION ........................................................................................................................10
APPENDIX ..............................................................................................................................12


IDENTITY OF PETITIONER

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


DECISIONS BELOW

I seek review of the prehearing rulings of Hearing Officer Lawrence R. Mills entered on or about December 15, 1999, in this proceeding before the Disciplinary Board of the Washington State Bar Association ("WSBA")--

A. Denying my motion to engage in discovery to further develop the existing evidence of the criminal, fraudulent, or other serious misconduct that my former client and complicitous lawyers (including former Superior Court Judge Grant L. Anderson) were intending to further through the use of my professional services to form a corporation in 1992;

B. Granting a Protective Order barring me from orally examining lawyer David R. Tuell, Jr. concerning his knowledge about and participation in the criminal, fraudulent, or other serious misconduct that my former client and lawyers of the Tacoma law firm of Tuell, Anderson, Fisher, and Koppe, Attorneys at Law, were intending in1992 that was furthered by my former client's use of my professional services to form a corporation; and

C. Denying my request for an order directing WSBA and other parties to honor my request for an electronic version of documents filed in this proceeding to facilitate posting of those documents on an Internet website to enable interested persons to monitor these public proceedings.


ISSUES PRESENTED FOR REVIEW

The issues presented for review are:

Issue No. 1.: May a lawyer charged with violating RPC 1.6(a) (disclosure of a client's confidence or secret) defend by arguing that the disclosed information was not a confidence or secret by application of the public policies underlying the crime-fraud exception to attorney-client confidentiality?
Issue No. 2.: Do the public policies underlying the crime-fraud exception to attorney-client confidentiality rest upon the subjective criminal or fraudulent intentions of the client at the time of utilization of the lawyer's services or upon the belief of the lawyer, when later disclosing client information, concerning the client's past criminal or fraudulent activities?

Issue No. 3.: What quantum of proof of wrongful conduct supporting application of the crime-fraud exception to communications with a former client must be shown before a lawyer asserting the exception's application may conduct discovery in a disciplinary proceeding to show the former client's actual criminal or fraudulent intentions that he sought to further by the lawyer's services?

Issue No. 4.: Consistent with the policy of public access to lawyer disciplinary information stated in RLD 11.1(a), should WSBA and the Hearing Officer honor the respondent lawyer's request for computer file copies of filed documents to permit posting of them on a public access Internet website?


REASONS FOR SUPREME COURT REVIEW

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). The Court's review of the Hearing Officer's prehearing ruling is necessary to serve the ends of justice for the Hearing Officer's rulings substantially limit my ability to discover and offer at the hearing facts supporting my defense that the crime-fraud exception, or the Court's application of the public policies underlying it, prevents the disclosed information communicated to me by my former client from being a protected confidence or secret.

Additionally, the Court should review the requested ruling for the discovery that I seek will further expose the criminal or fraudulent activities of a former superior court judge (who remains a lawyer) and the lawyers who participated in those activities with him, none of whom have been charged by WSBA with any misconduct in the nearly four years since I reported evidence of their misconduct to WSBA.

RLD 2.3(f)(5) empowers the Disciplinary Board to review any prehearing ruling of a hearing officer where the chairperson of the Disciplinary Board determines that such review is necessary and appropriate to serve the ends of justice. My last written request to the Disciplinary Board's Chair in this proceeding (my letter of July 2, 1999, requesting a hearing panel with a nonlawyer member) was simply ignored without any response whatsoever by the Chair (the incumbent's predecessor), so I reasonably expect that my request for Disciplinary Board review under RLD 2.3(f)(5) will be treated similarly, unless this Court orders such a review. I am, however, exhausting that avenue for relief by simultaneously with the filing of this Petition requesting the Disciplinary Board's Chair to cause the Disciplinary Board to review the prehearing rulings that are the subject of this Petition.
 


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 serious 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 so-called 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." Discipline of Anderson, 138 Wn.2d 830,  981 P.2d 426, 1999 WL 548581 (7/29/99, amended 8/12/99).

In May 26, 1999, the WSBA filed a Formal Complaint against me for allegedly (1) disclosing a former client's (Mr. Hamilton's) confidence or secret, (2) lying to a court commissioner, and (3) lying in a written Perjury Declaration. I filed an Answer on July 7, 1999, raising various defenses, including the defenses that Mr. Hamilton's communication was not a protected confidence or secret by application of the crime-fraud exception to attorney-client confidentiality or the public policies underlying that doctrine. The case was assigned to Hearing Officer Lawrence R. Mills.

On or about August 6, 1999, I filed with this Court a Motion for Discretionary Review of Interlocutory Decisions, which motion was denied by an en banc decision of this Court on November 4, 1999.

On November 30, 1999, I deposed Jerry Williams, M.D., who testified as to facts indicating that lawyers Grant L. Anderson and David R. Tuell, Jr. and my former client, Mr. Hamilton, were involved in extraordinarily fraudulent activities during the time that the latter used my services in August and September of 1992. WSBA Disciplinary Counsel Christine E. Gray objected on the record to the relevance of Dr. Williams' testimony. A copy of that 39-page deposition transcript is included in the appendix to this motion.

On December 1, 1999, I deposed lawyer David R. Tuell, Jr.. When I asked questions relating to the fraudulent activities in 1992 by lawyer members of his law firm and my former client, Mr. Hamilton, both his current law partner and lawyer, Larry J. Couture, and Ms. Gray objected to the questions' relevance. Hearing Officer Mills conducted a brief telephonic hearing, and tentatively ruled in favor of those objectors, subject to briefing of the issue. After written arguments were filed by me on December 8, 1999, and by Ms. Gray and Mr. Tuell on December 13, 1999, Hearing Officer Mills entered on December 15, 1999, the prehearing ruling captioned "Order Regarding Scope of Discovery, Respondent's Motion for Continuance, and Other Matters" (hereafter the "12/15/99 Rulings") review of which his hereby sought.

Hearing Officer Mills did approve a continuance of the hearing, re-scheduling it for February 14-18, 1999, but implicit in his ruling denying discovery of evidence of the 1992 criminal, fraudulent, and other unlawful conduct by my former client and complicitous lawyers is that he will not be permitting me to introduce evidence of such conduct at that hearing.
 


ARGUMENT

1. May a lawyer charged with violating RPC 1.6(a) (disclosure of a client's confidence or secret) defend by arguing that the disclosed information was not a confidence or secret by application of the public policies underlying the crime-fraud exception to attorney-client confidentiality?

In written arguments by letter to Hearing Officer Mills dated December 7, 1999 and its attachments (hereafter "Respondent's 12/7/99 Brief"), I asserted that a lawyer responding to disciplinary charges should be afforded the same latitude as is permitted by CR 11 to lawyers in civil proceedings to present good faith arguments for the extension, modification, or reversal of existing law. I further asserted, and documented with appended materials, that nationally recognized legal scholars argue for extending the crime-fraud exception that this Court and others have long applied to deny corruptly motivated client communications from being privileged "confidences" to also deny them from being protected "secrets." Respondent's 12/7/99 Brief demonstrated that the American Law Institute and the American Bar Association's Commission on the Evaluation of the Rules of Professional Conduct (commonly called "Ethics 2000 Commission") have taken public positions substantially similar to that which I am arguing in my defense in this proceeding. I incorporate by this reference, without repeating in this document, the arguments on this issue presented in Respondent's 12/7/99 Brief and its appended materials.
 

2. Do the policies underlying the crime-fraud exception to attorney-client confidentiality rest upon the subjective criminal or fraudulent intentions of the client at the time of utilization of the lawyer's services or upon the beliefs of the lawyer, when later disclosing client information, concerning the client's past criminal or fraudulent activities?

Hearing Officer Mills ruled in the 12/15/99 Ruling, at page 5, that, "It is enough for Mr. Schafer to establish that the information and documents available to him in 1996 caused him to have a reasonable belief that William Hamilton was engaged in criminal or fraudulent activities [in 1992]." In Respondent's 12/7/99 Brief, I cite and quote from numerous reported cases in Washington and other jurisdictions which uniformly hold that the crime-fraud exception's application springs from the client's abuse of the attorney-client relationship by subjectively intending to use the lawyer to further criminal or fraudulent objectives. The lawyer's knowledge or belief is uniformly recognized as irrelevant to the application of the crime-fraud exception. See, e.g., U.S. v. Chen, 99 F.3d 1495, 1504 (1996)("it is the client's knowledge and intentions that are of paramount concern to the application of the crime-fraud exception"); State v. Metcalf, 14 Wn. App. 232, 242, 540 P.2d 459 (1975) ("It does not matter that the attorney was unaware of his client's purpose for seeking the advice.")

The application of the crime-fraud exception represents application of the wise public policy that a client's use of a lawyer to further criminal, fraudulent, or other unlawful goals is a "socially perverse" activity from which communications are "not worthy of protection." In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032 (2nd Cir., 1984). The umbrella of confidentially collapses when it is determined that the client has abused the attorney-client relationship. I incorporate by this reference, without repeating in this document, the arguments on this issue presented in Respondent's 12/7/99 Brief and its appended materials.
 

3. What quantum of proof of wrongful conduct supporting application of the crime-fraud exception to communications with a former client must be shown before a lawyer asserting the exception's application may conduct discovery in a disciplinary proceeding to show the former client's actual criminal or fraudulent intentions that he sought to further by the lawyer's services?

Hearing Officer Mills' 12/15/99 Ruling asserts, at page 5, that "the defense of the allegations of the Bar Association in these disciplinary proceedings does not require Mr. Schafer, or give him the license, to invade the confidential communications of others or to attempt to prove a pattern of criminal activity in 1992." In Mr. Tuell's 12/13/99 Brief, his partner-counsel, Mr. Couture, asserted at page 3 that the 1992 communications between lawyers Grant Anderson and David Tuell were "privileged communications between attorney and client" though he admitted, at page 2, "Mr. Tuell is not in a position to deny that Judge Anderson breached his fiduciary duty to the Hoffman Estate while in private practice as Mr. Tuell's partner."

While I understand Hearing Officer Mills' concerns about "opening the door" to probing crime-fraud investigations in every lawyer discipline case under RPC 1.6(a), I argue that the threshold for granting a respondent lawyer a "license" for such discovery should be the same threshold that applies when a court is asked to compel discovery of evidence that objectors claim is protected by the attorney-client privilege. In the extensive body of federal case law concerning the crime-fraud exception, the rule is that the exception if invoked upon presentation of "prima facie evidence" that "the client was engaged in or was planning the criminal or fraudulent conduct when it sought the assistance of counsel." See, e.g., In re Grand Jury Subpoenas (Roe and Doe), 144 F.3d 653, 660 (10th Cir., 1998).

An older Washington Court of Appeals case, Whetstone v. Olson, 46 Wn. App. 308, 311, 732 P.2d 159 (1986), required as a threshold "a showing of a factual basis adequate to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the crime or fraud exception to the privilege has occurred."

I submit that abundant evidence of Mr. Hamilton's and others' criminal or fraudulent intentions when he used my legal services in1992 has been shown or can be shown--more than enough to meet any threshold requirement for the application of the crime-fraud exception to permit discovery of additional such evidence in this proceeding. I refer specifically to the opinion and to the entire record in Discipline of Anderson, supra, to the Dr. Jerry Williams deposition transcript included in the appendix, and to the additional public materials concerning Mr. Anderson's case that are posted on my Internet website: http://bigfoot.com/~d_schafer/ or http://members.aa.net/~schafer/.
 

4. Consistent with the policy of public access to lawyer disciplinary information stated in RLD 11.1(a), should WSBA and the Hearing Officer honor a respondent lawyer's request for computer file copies of filed documents to permit posting of them on a public access Internet website?

RLD 11.1(a) states, as this Court's policy, the general rule that disciplinary proceedings "shall be public." The public policy of the state of Washington, reflected in RCW Ch. 42.17, indicates that public access to governmental records should include access to records maintained in computer-readable media as well as paper records. RCW 42.17.020(42). This Court has demonstrated, by its own fine Internet website and its posting of all published and unpublished appellate court opinions on it, that it recognizes the Internet as an excellent vehicle by which to grant public access to judicial information.

As the respondent lawyer in this proceeding, I wish to widely disseminate all available public information about it in the hope that this case will prompt public discussion about the role of lawyers in our society and promote certain reforms that I regard as important to our profession, our legal-judicial system, and our society. Consistent with that purpose, I have published an Internet website (http://bigfoot.com/~d_schafer/ or http://members.aa.net/~schafer/) that I update frequently, posting all readily available information about this proceeding. I lack the resources, and it would be a waste of anybody's resources, to re-type every "public" document filed in this proceeding, when a modest degree of cooperation by WSBA personnel and the Hearing Officer would obviate the need for such an exercise.
 


CONCLUSION

The Supreme Court should--

1. Review and reverse the 12/15/99 Rulings of Hearing Officer Mills that deny me an opportunity to engage in discovery to further develop evidence of the intentions of my former client to further criminal, fraudulent, or other serious misconduct through the use of my legal services in 1992 when the communication that I later disclosed took place;
2. Direct WSBA personnel and Hearing Officer Mills to take reasonable steps to honor my request for an electronic version of documents filed in this proceeding to facilitate posting of those documents on an Internet website to enable interested persons to monitor these public proceedings, and
3. Stay the disciplinary hearing in this proceeding until a reasonable time after final resolution of the issues raised in this Motion.
 
Respectfully submitted this 24th day of December, 1999.
/s/
Douglas A. Schafer, WSBA No. 8652, Pro Se



APPENDIX

1.  Order Regarding Scope of Discovery, Respondent's Motion for Continuance, and Other Matters, entered 12/15/99 by Hearing Officer Lawrence R. Mills.

2.  Respondent. Schafer's letter of 12/7/99 to Hearing Officer Mills, with Appendix.

3.  Association's Brief in Opposition to Respondent's Request for Broad Discovery Regarding Alleged Misconduct of Others, filed 12/13/99 by Disciplinary Counsel Gray.

4.  Motion and Memorandum for Protective Order, filed 12/13/99 by deponent David R. Tuell, Jr.

5.  Stipulation filed 11/29/99, without appended copy of opinion.

6.  Deposition of Jerry Williams, M.D., on Tues., Nov. 30, 1999.