ATTORNEY DOUG SCHAFER'S next big trial will be his own. He exposed a corrupt judge but along the way revealed a confidential admission from one of his clients. Now facing a disciplinary bar hearing, he plans to argue that speaking out was more important than the rules that forbid it.
"The Rules of Professional Conduct are not the exclusive guide for the moral and ethical conduct of lawyers," the 50-year-old solo Tacoma attorney says in his defense. He did "what is fundamentally right to protect the judicial system from true threats."
Charges that Schafer also lied to court officials have just been dropped—mainly because, says Schafer, they weren't true. Remaining is a claim he breached the attorney-client relationship. Though the target of the message—the bad judge—has been removed from the bench and last week was given a two-year state bar suspension as an attorney, it's the messenger's livelihood that's now at risk. With his marriage under stress and his practice under a cloud, he faces a possible fine and suspension for doing what he considers the right thing.
This is how the system sometimes works when run by lawyers, Schafer says, in this case the Washington State Bar Association. To the bar, attorney-client confidentiality is sacred even when the dirty secret is an illegal kickback. That was among the charges Schafer leveled against the "Cadillac Judge," Grant Anderson.
On the eve of taking office in 1992, Pierce County Superior Court Judge-elect Anderson sold a friend a bowling alley (appraised at $1.2 million) for $200,000. The property was part of a private estate that attorney Anderson was settling. The sale was a great deal for the friend, but the estate's inheritor—a hospital—got the short end.
The friend, Tacoma businessman William Hamilton, in return happily made monthly payments on a new Eldorado the judge was buying. The $31,185 in secret payments were made while Anderson was on the bench. (See: "Court creeps," SW, 2/17/00).
Hamilton was also the longtime client of Schafer, a business attorney in practice since 1978. While having Schafer draw up some papers for the deal, Hamilton told him of the scam. After learning the initial details, Schafer says, "I then told Hamilton that I didn't want to hear about it."
What he had heard was nonetheless privileged. Though attorneys have been known to whisper such secrets vaguely to outsiders with no privilege—who then might reveal it to authorities—Schafer ultimately decided not to play that game. "I waited for the three-year statute of limitations to lapse on whatever Hamilton may have done, then investigated that estate myself," he says.
Schafer notes he was spurred into action after a court run-in with Judge Anderson on another matter made him begin to doubt the judge's competence.
In February 1996, Schafer blew the whistle. Citing Hamilton's statements, he publicly reported Anderson's misconduct to the Pierce County prosecutor, state attorney general, and the state bar.
All were unmoved. The prosecutor could find no criminal violation, the state bar said evidence was insufficient, and the attorney general simply bowed out.
Schafer also was unable to get journalists to probe the story further. In 1996, unopposed, Anderson was reelected to the bench.
But Schafer had also taken his complaint to the state's watchdog, the Commission on Judicial Conduct. In 1997, it filed charges. After a 1998 hearing, the CJC found Anderson indeed had grossly mishandled the estate. A CJC attorney called Anderson a judge who "was for sale." A four-month misconduct suspension was ordered.
Anderson and his law partners were also sued in 1998 by the hospital that lost out on the estate sale. Eventually, Anderson and his firm paid a $500,000 settlement.
Schafer seemed vindicated. Last spring, state legislators even took notice of the case. They began work to legally remove Anderson from office.
About the same time, the state bar suddenly came to life in the Anderson case—and went after Schafer.
Last May, the bar's Office of Disciplinary Counsel formally filed charges, resurrected from Hamilton's 1996 complaint that Schafer had broken his privilege. A copy of the bar complaint says Hamilton repeatedly warned Schafer not to disclose confidences.
The complaint does not say why the bar waited three years to bring its charges, since there's no question Schafer had spilled the sacred beans. In February 1996 he issued a sort of press release, claiming his client Hamilton "said that an attorney he knew, Grant Anderson, had been 'milking' an estate for four years." As part of the bowling alley deal, Hamilton would repay Anderson "down the road." The complaint lay dormant, says bar spokesperson Judy Berrett, simply because they handle a high volume of cases, and "sometimes it just takes a while to go through the system."
Schafer termed the complaint against him political, the result of a cozy bar system whose disciplinary board once included Anderson himself. But then came what seemed Schafer's salvation. In September, the State Supreme Court, automatically reviewing the CJC ruling, abruptly tossed Anderson off the bench for his "pattern of dishonest behavior."
Anderson faces new charges as well. The judicial conduct commission now accuses him of serving up false testimony and documents in his earlier defense. The state bar also just announced that Anderson has accepted a two-year suspension from practicing law. The agreement must get high court approval.
Schafer's disciplinary hearing, meanwhile, may come within a month. He's convinced he's not just morally but legally right, citing a 1993 US Supreme Court ruling which declared that the attorney-client "privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told."
"I had to do it," says an unrepentant Schafer, "and I'd do it again."
For more on this case, see Doug Schafer's Web site.