Headline: Doug Schafer, Man of Action
Subhead: Idealistic maverick battles corrupt judges,
greedy lawyers and an inept judicial disciplinary system.
By Bryan Winchell
Doug Schafer sits on a U.S. Navy battleship in the Mediterranean Sea. It is 1973, the height of the Cold War, and he is looking at a Russian battleship, drifting through the murky night just a few hundred yards in front of him. There are a number of larger questions that the 22-year-old ponders, and lately he's come to realize that the world may actually be more dangerous--not safer--because of the activities of military forces.
One incident really makes this clear to him. He was in the hull of the ship, and his crewmates were playing a game of cat and mouse with a Russian submarine. The hard-ass commander of the ship, souped up on adrenaline from the chase, turned to his subordinates and barked, "I feel just like a dog in heat; I just want to f*** it!"
No, there were some wars not worth fighting and Schafer found himself back in civilian life after he asked for and received an honorable discharge.
"I just tell it like it is and the military didn't take too well to that," Schafer says.
Doug Schafer has never been a man to mince words. Today, Schafer maintains his maverick streak and he's found a more deserving target than an unknowing Russian submarine: the state's judicial and legal disciplinary system.
It's a question that has bugged philosophers since Plato: Who judges the judges? Like any person with a strong moral cause, Schafer has devoted much of his waking hours over the past four years pursuing this question. He updates his mammoth Website almost every day. The Website (www.members.aa.net/~schafer) is a maze of legal documents, opinions and letters surrounding his case against Pierce County Superior Court Judge Grant "Cadillac" Anderson, the Washington Bar Office of Disciplinary Counsel's (ODC) case against him and his allegations that the disciplinary process for judges and attorneys in this state is inadequate. As a result of all this effort, Schafer admits his financial and home life, as well as his serenity, has suffered. A local judge went so far as to deem his behavior "obsessive," recommending that Schafer seek professional help and advising him to "concentrate on productive legal work, for your personal and your family's benefit."
Yet Schafer has persisted. Why? Because Schafer can't help but speak out. He just wishes more would do so.
"There are too many professionals, whether they are judges or lawyers, who chose not to get involved in things they should get involved in," Schafer says. "The price is too great. And that's partly because nobody speaks out so any voice is conspicuous."
Schafer's voice is especially conspicuous. A business lawyer, Schafer works independently, rarely sees the inside of a courtroom and does not have many lawyers for friends.
"I'm just a barking dog on the fringe of the flock," he says.
Yet his bark has upset many in the legal establishment and is contributing to a national debate on lawyer ethics. Schafer is the lawyer who initially brought charges that eventually brought down Judge Anderson last summer. While the Pierce County prosecutor's office, the state attorney general's office and the bar's ODC all chose not to aggressively pursue Schafer's charges, the Commission on Judicial Conduct persisted and, three years later, Anderson was removed from the bench by the Washington Supreme Court.
"Doug Schafer epitomizes what attorneys should strive to be: public citizens first and not paid prostitutes for whomever has got the biggest wad of cash," says attorney Shawn Newman, who aided Schafer in a deposition for his defense last fall.
Yet his tenacity--and willingness to take on a respected member of the legal establishment in Anderson--has a price. Currently, the bar's ODC is investigating whether Schafer violated the lawyer/client confidentiality rule when he used a conversation he'd had with client Bill Hamilton to expose Anderson.
On April 6th, the Washington Supreme Court will rule on a discovery motion Schafer filed, and the disciplinary hearing, which will determine possible charges against Schafer, could follow within two months. Schafer believes that instead of pursuing him, the bar ought to focus its attention on much of the evidence on Anderson and the lawyers in the firm he worked for that has yet to be publicly exposed. And he's very critical of the recent decision by the bar to suspend Anderson's license to practice law for just two years. On his Website, he writes, "disbarment is the only fitting sanction."
That "lenient" decision, Schafer says, is just one example of an "old boys network" attitude in the Washington legal and judicial disciplinary community. He points out that Anderson was once a State Bar Disciplinary Hearing Officer and his attorney, Kurt Bulmer, is a former General Counsel of the State Bar, who, according to Schafer, "appears to be well-connected with most all of the important people within the State Bar and the state judiciary." He also writes that Anderson's long-time law partner, David R. Tuell, still is one of the select few State Bar Disciplinary Hearing Officers.
"The essence of what I perceive is that those within the judicial disciplinary system are more concerned about protecting or sparing the individuals subject to criticism than they are about an effective judicial system with integrity," Schafer says.
Schafer first publicly expressed his criticism of the legal profession in a 1991 essay he wrote for his alma mater, the University of Puget Sound. In it, he writes that the legal world is suffering from a "decline of professionalism: the growing preoccupation with our individual self-interest. As lawyers, we are increasingly making judgments based upon, or excessively influenced by, personal and firm economics rather than traditional professional notions."
That kind of behavior offends the life-long idealist, who wears an American Red Cross pin on his sport coat and claims if he were to have a religion--he doesn't--he would make it the Red Cross. "The Red Cross represents humanitarianism," says Schafer, who served on the local board of the Red Cross for six years and has also been an active member of the Ski Patrol at Crystal Mountain for most of his adult life. "It backs the concept that we should all help one another, regardless of anything else."
Says an ex-investigator for the Commission on Judicial Conduct who looked into the Anderson case: "Doug is a very honorable and credible person. He's tenacious as hell and I certainly can understand his emotions."
Schafer funnels much of his tenacity into his criticism of the "rules," whether political, legal or religious. On his Website, he laments that the legal profession's sense of ethics is too rule-based.
Over his first 10 years working for various law firms, Schafer wasn't all that cognizant of the impoverished ethics within his profession. In 1995, he found himself involved in his first role as a public watchdog when he took on the cause of guardianship rights for the elderly and effectively helped the Legislature change its laws shortly thereafter. Again, it was a case of Schafer putting his Red Cross principles into practice.
Even with his experience taking on the guardianship issue, Schafer was naive when he began his exposure of Anderson in February 1996. He believed that within a few months of filing his complaint, the judge was going to be asked to step down from the bench. In actuality, it took three long years before the Washington Supreme Court finally gave Anderson the boot on September 2, 1999.
The court's main finding against Anderson was that in exchange for lowering the price on a bowling alley he sold to banker friend Bill Hamilton, Hamilton made over $31,000 in payments on the judge's new Cadillac El Dorado. Since September, Anderson has not practiced law, yet Schafer is not ready to call it a victory until he's convinced Anderson will never again practice law.
Yet the focus of Schafer's attention has turned from the offensive to the defensive. And he's very quick to defend himself when it comes to questions the bar is raising concering whether he violated the confidentiality of Hamilton to expose Anderson.
"The most important duty of a lawyer or any player in the judicial system is to ensure integrity in that system," Schafer says. "Because if you don't have integrity in the system, nothing else is going to achieve justice."
Back when Schafer was first looking into whether to go to authorities with his findings of Anderson's shady business deals, he called law professor and ethics specialist John Strait, who was then at the University of Puget Sound, to discuss the ethics of violating Hamilton's confidentiality to expose Anderson.
"I like Doug, he might be a bit over the top, but his motivation was correct: he wanted to expose a crooked judge," says Strait, who now teaches at Seattle University Law School. "But I didn't think he was professionally right to violate his client's confidentiality and I told him that."
Strait says that absent Hamilton's allowing Schafer to go to authorities, Schafer had no right to turn over Hamilton's comments because the crime in question was not currently ongoing or planned for the future. "If you take away the belief that a client has that he can talk openly with his attorney about past criminal conduct, you are ignoring the Fifth Amendment (which guarantees against self-incrimination)," Strait says.
Whether or not the ODC should pursue Hamilton's case against Schafer for violating his confidentiality is not an issue; the ODC is required to investigate complaints like Hamilton's because Washington is one of 37 states where it is a violation of lawyer ethics to disclose a client's confidential communications, even to help provide a remedy to the victim of a client's crime or fraud.
However, there is increasing national debate on this issue, some of which undoubtedly is resulting from public opinion polls about the public's lack of trust in the legal system. The "crime-fraud" exception to the confidentiality rules is making inroads in the American Bar Association. Its Ethics 2000 Commission is recommending that a lawyer be allowed to reveal confidential communications if he reasonably believes disclosure is necessary to "rectify or mitigate substantial injury to the financial interests of property of another resulting from the client's commission of a crime or fraud in futherance of which the client has used the lawyer's services." Don Mullins and Diana Danzberger are Seattle attorneys who are co-counsel with Schafer for his defense, and they believe that the crime-fraud exception should apply in this case.
"We're trying to focus very heavily on what in our view is the principal legal issue: the application of the crime-fraud exception and the policies that underlie that exception," Mullins said.
The case is so complex that Mullins and Danzberger think that it could stretch on for several months. On April 6, the Supreme Court will consider Schafer's motions to depose people he believes are involved in Anderson's fraud. Schafer has been frustrated by the shallowness of the charges that the Commission on Judicial Conduct and the Supreme Court found Anderson guilty of. They were:Included in Schafer's charges against Anderson that were not publicly exposed are claims that Anderson: secretly took $125,000 in "management fees" from the Hoffman estate; collected approximately $40,000 in improper "commissions" from third parties while administering the Hoffman estate; and sold timeshare weeks in the estate's Surfside Inn resort for less than one-third their fair market value to lawyers in his firm, to his law firm's support staff and to his selected friends, all in breach of his duty of loyalty to the estate's beneficiaries.
Accepting $31,000 in car payments while participating in negotiations over a $92,000 reduction in the price of the bowling alley. Failing to report the car loan payments on his judicial disclosure forms. Serving as president of two estate-related corporations for 10 months while on the bench.
Should the Supreme Court grant Schafer's motion for discovery on April 6th, he will get a chance to further look into these charges. Mullins and Danzberger said that these issues are relevant to Schafer's defense because they are essential to his "crime-fraud" exception defense.
Yet Schafer thinks it's more likely that the Supreme Court will deny his motion and proceed to the disciplinary hearing, where he expects he will be "admonished" by the bar. What that means is the bar will publicly mention Schafer's admonishment in its newsletter and he will receive a letter of reprimand from the bar.
"If I'm in my cynical mode, the Supreme Court will just not want to get involved at all," Schafer says. "That way, the evidence of wrongdoing by these lawyers will never be brought out."
If that happens, Schafer says he is unsure if he will continue to practice law and is even considering teaching high school.
Even if he chooses to take on the challenge of a career change, he will still probably lobby the state legislature to change the rules of the game, maybe create a grand-jury type of body that could investigate the inefficiencies of the legal and judicial disciplinary process. And when all is said and done, Schafer won't stop asking the tough questions.
"I may not have my own answers," he says, "but I cannot bring myself to believe the answers that others have suggested."