IT WAS PAINFULLY laughable: There was attorney Doug Schafer last week getting his day in state Supreme Court, his soft voice echoing off the soaring ceiling and oak-paneled walls of the Temple of Justice in Olympia as he tried to save his career. And out there somewhere was the corrupt judge he exposed, possibly getting ready to go back to work.
"I was a professional traitor. I was a rat," Schafer said, recalling how the legal fraternity described him after he opted to break an attorney-client trust in order to expose the kickback plan of Judge Grant Anderson of the Pierce County Superior Court. Schafer's actions led to Anderson's unprecedented removal from the bench by the state Supreme Court in 1999 and his suspension from practicing law for two years by the Washington State Bar Association.
Anderson's suspension ended May 4, leaving the former judge eligible for reinstatement of his license. So last Tuesday—three days later—it was the whistle-blower facing a suspension of one year for spilling the sacred beans, as he puts it. He was about to hear, however, that the ethic he supposedly breached wasn't a universal tenet—his actions would be allowed in other states.
For Schafer, morality was his only defense. He asked the court, "Are [lawyers] simply hired guns, or are they something more? Are they the keepers of our legal system; are they the guardians of the law?" He shook his head like he wasn't sure anymore. His ex-wife sat behind him in support, even though their marriage, like his solo Tacoma legal practice, had crashed and burned in the wake of his obsessive six-year battle and pending suspension. Mild mannered in a clipped graying beard, Schafer, 52, wanted to talk about the cost to him and his family.
As is tradition, however, the justices interrupted his time-limited presentation with questions of law and interpretation. Most of the case was already laid out before them in legal briefs: On the eve of taking office in 1992, Judge-elect Anderson sold friend and banker William Hamilton a bowling alley—appraised at $1.2 million—for $200,000. The property was part of a private estate that attorney Anderson was settling. In return, Hamilton made monthly payments on a new Cadillac the judge was buying. Secret payments totaling $31,185 were made while Anderson was on the bench. Hamilton, also a client of Schafer, mentioned the deal one day, and Schafer says he told Hamilton he really didn't want to hear any more about it.
He forgot about it until 1995, he says, when he began to doubt Judge Anderson's competence after a courtroom run-in. In reaction, he gathered public records to support what his client had told him about the Cadillac scheme and quietly lodged complaints in 1996 with the state bar and the state Commission on Judicial Conduct (CJC). Getting no indication of speedy action, and with Anderson running unopposed for re-election that fall, a possessed Schafer publicly blew the whistle a few months later, contacting federal and state officials and alerting the media. No one immediately took the bait. Anderson was returned to office by an unknowing electorate.
The CJC eventually did file charges and in 1998 found Anderson had mishandled the bowling alley estate. A CJC attorney called Anderson a judge "for sale." A four-month suspension for misconduct was ordered. Anderson and his law partners also paid $500,000 to the hospital that lost out on the estate sale. In September, the state Supreme Court abruptly tossed Anderson off the bench for his "pattern of dishonest behavior." Hamilton, meanwhile, filed a complaint with the bar against Schafer. Last year, the bar recommended Schafer's suspension, which requires automatic review by the high court.
Last week, bar counsel Christine Gray told the state Supreme Court—emphatic as she stood at the attorney's dais waving her hands—that Schafer "intentionally and needlessly" revealed a confidence. His claim was being investigated. If he'd been patient, the system would have responded. "He went way beyond what is reasonably necessary to report judicial corruption," she argued. "We want corrupt judges to be reported [but] he was not allowed to disclose his client's statements even to either the CJC or the [bar] association."
Justice Barbara Madsen then got to the heart of things. She noted there is an exception for revealing client confidences to prevent a crime but no provision that allows an attorney to reveal details of a past crime.
"So it's a matter of timing," Madsen said. "If you do it ahead of time, it's OK, but if you do it for something that's happened already, it's not OK?"
"Yes, that's correct," said Gray.
"What's the sense underlying that distinction?" asked Madsen.
Gray said it simply has to do with harm already done vs. harm yet to occur.
"But there can be ongoing consequences that can be stopped by a report [of a past crime], isn't that true?"
Yes, conceded Gray. That's what makes the law controversial, she said. She then dropped a small bomb: About a third of states allow the breaking of confidences in just the way Schafer broke his.
In other words, it is an arbitrary ethic. The state was picking and choosing the principles it wanted to follow—not unlike Schafer. Gray conceded that it opens the door for a broadening of the rule if the court so chooses.
But if you do broaden it, Gray told the Supreme Court, don't do it on Schafer's behalf. There should be no retroactive relief for someone who, she said, "believes in his own moral code. No rule should be fashioned post hoc to sanction Mr. Schafer's extreme conduct."
Schafer, in the temple lobby afterward, said he had gotten no indication how the court might rule, which may take months. "And if it's wrong to do what I did, I don't want to be a practicing lawyer anyway."