The Missing Moral Leadership
by Doug Schafer,
Candidate for the Washington State Supreme CourtThe Supreme Court's Role. The Washington State Supreme Court’s nine elected justices do much more than act as impartial referees who decide the outcomes of disputed cases. They also have a critical leadership role to fill. The nine elected justices act as a little legislature making and amending all the laws, called “court rules,” that govern lawyers (in and out of court), judges, and the process that envelops citizens (as plaintiffs and defendants, witnesses, and crime victims) in any kind of lawsuit, criminal trial, or other court proceeding.
The nine elected justices make and enforce the rules of conduct for lawyers and for judges. They should do so with strong moral leadership that requires and inspires lawyers and judges to serve the public with integrity and professionalism. In the 1980s, after the FBI exposed scores of corrupt judges and lawyers in Chicago through “Operation Greylord,” a task force that asked “What went wrong?” blamed the widespread corruption – and the conspiracy of silence that enabled it – on the lack of moral leadership from its state supreme court. The task force’s chairman prescribed the cure, “What we need from the state supreme court is leadership, moral leadership.” (Click here for more.)
The Court's Track Record. Washington state’s recent history illustrates a lack of strong moral leadership. One of the nation’s top scholars of legal ethics, Cornell Law Professor Charles W. Wolfram, told me in May of 2000 that he regards our state’s track record on matters of legal ethics as “retrograde” (meaning “backwards”). There simply is a leadership void. Too many actual cases from our state are used nationally to teach law students and new judges how not to behave. Our judges (particularly from King and Pierce Counties) regularly make the National Law Journal’s top ten list of “Judges Behaving Badly.” Highly publicized misconduct cases – that should have been wake-up calls to our state’s legal professionals – include those of the pedophile judge, the sexually obscene judge, the wife beating judge, the cowboy-justice judge, the drinking-with-the-jury judge, the Cadillac-kickback judge, the big-firm lawyers who hide evidence, and opportunistic (married) divorce lawyer who has affairs with his clients, and criminal defense lawyer who gave new meaning to attorney-client privilege with her jailhouse sex. (Click here for more.)
Serving the Public, or the Self-Serving Bar? Because our State Supreme Court justices are elected by the public, they should serve their constituents – the public. But our Court’s history is one of “rubber-stamping” whatever lawyer conduct rules our State Bar asks it to adopt. National and state Organized Bars have a clear history of placing their own financial interests ahead of public interests. Their so-called “ethics” rules for most of the last century have focused on banning any form of lawyer advertising (declared unlawful by the U.S. Supreme Court in 1978), requiring lawyers to follow minimum fee schedules (declared unlawful by the U.S. Supreme Court in 1974), and forbidding nonlawyers from selling any law-related services unless employed by lawyers. In 1978, the U.S. Justice Department sued the American Bar Association for its chronic anti-competitive lawlessness that served lawyers' pocketbooks but harmed the public consumers of their services.
In Washington, for example, the Supreme Court recently "rubber-stamped" the State Bar's project to criminalize or otherwise stop the "unauthorized practice of law" -- meaning nonlawyers giving advice on any laws -- the Bar claiming that its motive is simply to protect the public. But since 1985, the State Bar has opposed the national model ethics rule (that most other states' supreme courts adopted, following the ABA's 1983 Model Rule 8.3) that requires lawyers to report corrupt or serious unethical conduct by other lawyers or judges. So our State Bar and compliant State Supreme Court aggressively protect the public from nonlawyers, but they are unwilling to enact mandatory reporting to protect the public from corrupt, unethical, or incompetent lawyers or judges. (Click here for more.)
Defensive and Self-Serving Lawyer Ethics. The self-interest priorities of Organized Bars were glaringly apparent when the American Bar Association debated and enacted in 1983 some new model ethics rules for lawyers – the Model Rules of Professional Conduct. Historians and legal scholars who have studied that process and its product have uniformly condemned both as focused, first and foremost, on serving the financial self-interests of lawyers – to the detriment of the public. The lawyers re-wrote their confidentiality rules to give themselves a defensive shield against liability for the personal and financial harm caused by their clients – harm that lawyers often could prevent or rectify if they chose to do so. Far too many state supreme courts (about two-thirds of them) basically “rubber-stamped” those ABA Model Rules, making them “the law” that governs their own state’s lawyers.
When the Washington State Supreme Court’s nine elected justices, in mid-1985, compliantly heeded the State Bar's request that they adopt the ABA Model Rules (many state supreme courts did not), they ignored the strong moral voice of UW Law Professor Rob Aronson urging them not to abandon the public's interests by adopting the ABA’s self-defensive confidentiality rule. They ignored the responsible voice of Seattle lawyer Bob Gould by “rubber-stamping” our State Bar’s requested change from ABA Model Rules so that Washington lawyers would not be required to report the corrupt or lesser misconduct of their lawyer and judge colleagues. Nearly all other states require lawyers to report misconduct of their fellow legal professionals. (Click here for more.)
The National Moral Leadership. Responsible leaders in the legal profession for two decades have been pushing to restore the prior (pre-Sept. 1985 in Washington) public-interest exceptions to the lawyer confidentiality rules – to permit or require that lawyers speak out to prevent their clients’ intended or ongoing fraud or crime, and to help victims mitigate or rectify the harm suffered from clients’ fraud and crime in which the lawyer’s services were used. Highly visible initiatives were rejected by the self-interested state and local bar delegates at the ABA national conventions in 1991, 1993, and 2001.
In mid-1998, the highly respected American Law Institute voted to include the public-interest exceptions to lawyer confidentiality in that body’s forthcoming authoritative book, The Restatement of the Law Governing Lawyers (2000, Professor Charles W. Wolfram, Reporter).
In 1998, the ABA Ethics 2000 Commission on the Evaluation of the Rules of Professional Conduct, chaired by the Chief Justice of the Delaware Supreme Court, indicated its intention to propose once again the restoration of the public-interest exceptions to lawyer confidentiality in the ABA Model Rules – which proposal was again rejected by at the ABA convention in 2001.
In August, 2002, the Conference of Chief Justices (of all 50 state supreme courts) formally endorsed the ABA Ethics 2000 changes to restore the public-interest exceptions to lawyer confidentiality.
Scores of scholarly journal articles and books have been written in the last two decades by law school deans and professors and by responsible lawyers and judges condemning the ABA’s and State Bars' refusals to recognize the public-interest exceptions to lawyer confidentiality and to recognize that lawyers have responsibilities to the general public as well as to their clients. (Click here for more.)
Where's WAldo?* Throughout this two-decade national civil war over the soul (and the role) of the legal profession, our WA State Supreme Court and our WA State Bar Association (to which all WA lawyers are required to belong) and even the faculty of our three in-state law schools (except for UW Law Prof. Rob Aronson, to a small degree) have been seemingly oblivious to it all. Our state's judiciary and bar and legal scholars have provided no significant participation, support, or leadership in any of the initiatives to restore a public-interest focus to the legal profession. (Click here for more.)
Our state’s legal and judicial fraternity’s national disengagement, pronounced self-interest, and disregard of the public's interests, must change. The voting public must insist on it. But it takes strong moral leadership to implement such a change. I look forward to the challenge.
Written (as is everything on this website) by Doug Schafer,
Candidate for the Washington State Supreme Court[Return to Doug Schafer's Election Home Page.]
* For those souls, including too many in the lawyer/judge fraternity, who never reared young children, the classic "Where's Waldo" series of delightful picture books invites kids to pick out Waldo hidden in a crowd of others.