|The News Tribune - Tacoma, WA||April 20, 2003|
punishment of Schafer too severe
The News Tribune
The state Supreme Court's harsh punishment of Tacoma attorney Doug Schafer doesn't fit his crime.
On Thursday, a 6-3 majority of the court upheld a ruling by a state bar association hearing examiner and suspended Schafer from practicing law for six months. Some of the blame lies with Schafer himself. He repeatedly used poor judgment in his successful, single-minded campaign to oust former Pierce County Superior Court Judge Grant Anderson, who was removed from the bench by the Supreme Court in 1999 for a "pattern of dishonest behavior."
A former client had told Schafer about Anderson's mismanagement of an estate that would also benefit the client. Schafer provided this privileged information of Anderson's wrongdoing to the FBI, the Pierce County prosecutor, the IRS and the media. The majority found that Schafer could have used public sources of information to make his case against Anderson without revealing his source.
That may be so, but a fairer outcome would have been a 30-day suspension proposed by former King County Superior Court Judge Robert Winsor, serving as a substitute justice. Winsor acknowledged that Schafer violated his former client's right to confidentiality when he used the client's disclosure to go after Anderson.
However, one purpose of attorney disciplinary proceedings is to build public confidence in the legal profession and the judiciary - a goal that could have been accomplished with a shorter suspension. Unlike the majority, Winsor would have given much more weight to a mitigating factor - the significant public good Schafer achieved by removing a corrupt judge from the bench.
The longer suspension - and even the targeting of Schafer for ethics violations by the state bar association - could reinforce the public perception that lawyers can't be counted on to report fraud for fear of punishment by the bar association and the courts. Public skepticism of the legal profession has grown following the collapse of Enron and other giant corporations, where company executives relied on the attorney-client privilege to keep an array of illegal activities secret.
Although the legal controversy surrounding Schafer is over, the national debate over the attorney-client privilege is just getting underway. Although the current Washington privilege of confidentiality allows an attorney to disclose information about a client's illegal activity, the exceptions to the rule are extremely limited. A better approach can be found in a recent proposed revision of the rule that would allow more leeway for attorneys to report a client's criminal or fraudulent activity that could harm the financial interests of another person.
So far, the American Bar Association has resisted the change. But adoption of the rule by the ABA would help strengthen public trust in the legal profession. It would also be a fitting denouement to Schafer's long-running legal and ethical drama.
(Published 12:30AM, April 20th, 2003)