Selected Concerns and Proposals
By Doug Schafer
Candidate for Washington State Supreme Court1. Disclosure to Clients of the Exceptions to Attorney-Client Confidentiality. The legal community should educate clients about the many well-established limits and exceptions to attorney-client confidentiality. Doug drafted proposed legislation that calls for lawyers to provide clients an educational brochure, presumably prepared by the State Bar or the judiciary, disclosing those well-established limits and exceptions. This brochure would also serve to educate lawyers about those exceptions. This legislation, House Bill 2504 (a "Truth in Lawyering Act"), and supporting materials, are presented in a website that Doug established in December 2001:
http://EvergreenEthics.com 2. Public Policies That Trump Confidentiality. Those officials we elect (legislators and justices) to legislate wise public policies should adopt laws or court rules that clearly permit lawyers to disclose client secrets when higher societal values are threatened. Circumstances would include exposing corruption of government officials, child abuse, abuse or exploitation of vulnerable adults, true threats of harm to any person (judge or citizen), and serious financial fraud. Doug drafted a bill for the legislature to enact if the Supreme Court remains unwilling to address this matter through its rules governing lawyer conduct. This legislation, House Bill 2503 (a "Conduct of Lawyers Act"), and supporting materials, are presented in a website that Doug established in December 2001:
http://EvergreenEthics.com 3. Shredding of Court-Made Common Law by Wealthy Losers. Presently in Washington state, insurance companies and other wealthy parties can use their wealth to shape the body of court-made common law - the judicial decisions that become controlling precedent in later cases - to serve their private special interests. If they lose an appellate case and if the court's written decision establishes what they regard as adverse precedent, they can pay to "shred" it (get the court to "vacate" its decision by paying the winning party to join in their request) so that the decision never gets published and cannot be used by other claimants as precedent against them. Doug has been attempting to draw legislative leaders' attention to this problem, as well as to the general problem of unpublished appellate opinions, discussed below. To see one of Doug's recent e-mails, (click here.)
The author of a 1997 law journal article condemning this practice, called "vacatur," said:
"[A]llowing discretionary vacatur will allow wealthy, repeat-player litigants to shape the law according to their interests by eliminating rules of law that affect their interests adversely. ... [V]acatur strikes at the heart of the law’s normative appeal: its public function as a mechanism for resolving disputes without regard to the wealth or power of the parties involved." Click here for that full article.4. The Hiding From the Public of Settlements About Hazards. Public spirited law professors and other leaders condemn the widespread practice of lawyers shielding their corporate clients' harmful misdeeds from public view. Lawyers almost universally insist, when negotiating settlements with claimants, upon the paid-off claimant keeping secret all information about the public hazards (for the corporation might then face similar claims from other claimants). The lawyer ethics rules should be re-written to require that lawyers recognize a duty to the public that forbids them from enabling corporate clients to harm the public and avoid detection for doing so. The federal judges in South Carolina have taken a bold step in that direction (click here for news item; here for Court's announcement), and that state's supreme court is proposing that same step (click for news item). Our State Supreme Court ought to do so, as well. (Click here for commentary on the trend.)The Washington State Trial Lawyers Association, with its national affiliate (ATLA), has a very informative website calling attention to this state and national problem. Click here to see it.
And our state legislature in 1994 did adopt a statute, RCW 4.24.611, that requires courts to balance public interests against private interests when approving or enforcing settlement secrecy provisions, but a lawyer ethics rule on the subject would be a more effective approach.5. The Courts' Special Favors for Special People -- Sealing Their Court Files. For far too long in this state, judges have readily sealed court files whenever a prominent party would be embarrased if the information in their court file became public. Our state's court rules since 1989 have permitted sealing of civil case files only "for compelling circumstances where justice so requires." But judges routinely ignore that condition and grant seal-the-file requests when public officials or public figures are involved. This practice recently was exposed by the Seattle Times suing to unseal the 1994 Clallam County Superior Court file of a settled sexual abuse lawsuit against a notorious pedophile Catholic priest and the Seattle Archdiocese. The visiting judge who recently unsealed that file declared that it never should have been sealed in the first place. (Click here for more on that unseal-the-file case.)
Other examples of this very common, but inexcusable, practice are Court of Appeals Commission Don Meath quickly sealing, in 1996, the documentary evidence of Judge Grant "Cadillac" Anderson's corruption (click here), and Pierce County Superior Court Judge Nile Aubrey (now retired) sealing the court file for colleague Judge Anderson's 1996 divorce (that contained evidence relating to his ill-gotten Cadillac and other financial affairs), Pierce County Superior Court case no. 95-3-03747-1. The sealing of Judge Anderson's divorce court file was initiated or supported by his wife's lawyer, Camden Hall, of the prominent Seattle law firm, Foster Pepper & Sheffelman, weeks after Camden urged (click here) Doug to investigate how Anderson got his Cadillac.
A lawyer's published letter to the editor of the State Bar News (7/2000) observed, "When the judges get divorced, their files are routinely sealed. Shouldn’t the courtesy the judges grant each other be available to ordinary folks, too?" Doug shares that lawyer's view that the ruling class should not have such special privileges in our allegedly class-less society. See the article titled, "Unnecessary Secrecy in the Courts" by the Trial Lawyers for Public Justice (Summer 2002).
6. The Private Law of Unpublished Opinions. For several years, responsible observers of the judicial system have been decrying the 1960s-era rules that permit appellate courts to subjectively direct that many of the judicial opinions not be published, and rules that forbid other parties and lawyers from later citing those decisions as precedent in similar cases. Presently, only a very small percentage of the opinions by our Court of Appeals are published in the Court's official volumes (though included in the computer databases now widely used for legal research). Our state supreme court should responsibly follow the lead of other state supreme courts (e.g., Texas) that have removed their bar on citing "unpublished" opinions. For responsible and scholarly commentary on the subject, read a Washington lawyer's 2000 article (click here) and Boalt Hall Law Prof. Stephen Barnett's 7/2002 journal article (click here). For an example of the abuse that results from subjective decisions about whether to publish, see the State Farm v. Judge Enyeart case. To see the leadership shown on Aug.6. 2002, by the Texas Supreme Court, click here. In September 2005, the federal court system's policy-making Judicial Conference voted to permit the citation of "unpublished" opinions. For an article on that, click here.
7. Our Supreme Court's Neglect of Judicial Discipline Issues (e.g. an emergency interim suspension rule). Our State Supreme Court does not appear to support an effective judicial disciplinary system -- and our state in 1980 was the 50th (dead last!) to establish such a system!. For 20 years, our Supreme Court has completely neglected its Discipline Rules for Judges, which still refer to the Commission on Judicial Conduct (CJC) by its pre-1985 misleading name, the "Judicial Qualifications Commission." Justice Charles Johnson has been on the Supreme Court Rules Committee since joining the Court nearly 12 years ago, and its Chair the last 8 years.
In early 1996, the CJC asked the Supreme Court to adopt a rule that would set procedures for the emergency suspension of a judge during the pendency of removal proceedings when there is clear evidence of criminal or serious misconduct indicating unfitness for judicial office. This rule requests resulted from a widely reported 1995 incident involving alleged threats by armed and "stressed out" King County District Court Judge Rosemary Bordlemay.(Click here.) Though Doug Schafer was unaware of the then proposed rule, he had read of the Bordlemay case in which it appeared Chief Justice Durham had summarily removed that judge during the pendency of a CJC investigation.
On 2/8/96, Doug asked Justice Charles Johnson about initiating the process for emergency removal of Judge "Cadillac" Anderson. (Click here.) Justice Johnson checked and called Doug the next day to report that there was no formal process for emergency suspension of a corrupt judge. (Click here.) Doug learned years later, through his request for public records (click here), that the Supreme Court (and presumably Justice Johnson's own Rules Committee) had received from the CJC on 2/6/96 and the Court subsequently had rejected the requested emergency suspension rule due to whining from the state's judicial associations. (Click here for a letter and the proposed rule.) The Court placed the judicial community's selfish interests above the interests of the greater community, it appears.
Doug considers it inexcusable malfeasance for the Supreme Court to have refused to adopt a formal process for the emergency suspension of judges whose presence on the bench poses serious risks of harm to the public and to the integrity of the judiciary. Judge "Cadillac" Anderson continued presiding over court cases for three-and-a-half years from the time Doug spoke about him to Justice Charles Johnson in February 1996 until the Court finally removed him, in September 1999, for what they then recognized, and described. as his "clear pattern of dishonest behavior." For Doug's views about acting responsibly when credible evidence indicates that a judge is corrupt or otherwise unfit, click here.