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*** Atty. Responds to "Speak Up For Your Judiciary"

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    Response By Doug Schafer To Speak Up For Your Judiciary (See WSBA News Article Below) Attorney Doug Schafer, a candidate for the Washington State Supreme
    Message 1 of 1 , Aug 12, 2000
      Response By Doug Schafer To
      "Speak Up For Your Judiciary"
      (See WSBA News Article Below)
          Attorney Doug Schafer, a candidate for the Washington State Supreme Court and a JAIL advocate, has stepped forward to reply to the Washington State Bar Association President Dick Eymann. We deem it to be of such outstanding quality to merit our publication. Thanks Doug Schafer. d_schafer@...
          I agree with some of what WA St. Bar Assoc. President Dick Eymann has to say about defending judges from unjust criticism, but he and others in the mainstream should recognize that much of the criticism of judges and lawyers is very well justified. The WA St. Bar Association itself issued a News Release on 2/24/00 to criticize an Eastern Washington federal judge, Alan McDonald, exposed for allegedly writing racist notes to his staff during court sessions. [see http://seattlep-i.nwsource.com/local/alan25.shtml]

          I thought it interesting that WSBA's news release on Judge McDonald gave as the "person to contact for more information" *not* WSBA President Eymann, but instead it named WSBA President-elect Jan Peterson. I conjectured that Eymann, an eastern WA lawyer chose not to risk the wrath of the eastern WA federal judge, so Peterson from western WA was the named contact person.

      Excerpts from my unanswered e-mails to both Eymann and Peterson follows:

      -------- Original Message --------
      Subject: [Fwd: News Release Concerning Judge McDonald]
      Date: Tue, 21 Mar 2000 09:48:51 -0800
      From: Doug Schafer <d_schafer@...>
      To: "Eymann, Dick" <rceymann@...>

      WSBA Pres. Richard C. Eymann:

          While sorting stacks of papers in my office, I came across your "Dear Colleague" letter of October 1999. Your letter closed with, "My last message to you is that we always welcome member input, even if it is critical." I find myself unable to believe your statement, for my input to Bar leaders is almost never even acknowledged as having been received, much less responded to substantively.

          Below is my "member input" that I sent 2/29/00 for Jan Peterson. He never even extended me the common courtesy of confirming that he had received it or had even read it. Would you respect somebody who completely ignores your thoughtful, constructive input? I can't.

          Good luck in changing the "public perception" of lawyers. The public accurately perceives lawyers' behavior. To change the public perception of lawyers, I suggest you start by changing the behavior of lawyers. (You might start by supporting mandatory reporting of lawyer and judge misconduct.) I, too, want to be proud of our profession, but I am presently unable to. Please respond with at least a "message received" if not a "message read."

      Doug Schafer, Idealistic Lawyer in Tacoma, Washington.

      -------- Original Message --------
      Subject: News Release Concerning Judge McDonald
      Date: Tue, 29 Feb 2000 08:04:49 -0800
      From: Doug Schafer <d_schafer@...>
      To: "Peterson, Jan Eric" <thefirm@...>

      Mr. Jan Peterson,

          The WSBA's News Release of 2/24/00 concerning Judge McDonald was called to my attention today. It strikes me as functionally an editorial such as those published by major newspapers. Upon reading it, several questions came to mind.

      1.  Who decides when the WSBA will issue such an editorial? Is it the full Board of Governors, another board or committee, or staff, or officers? How much information must they have before stating a public WSBA position?

      2.  Are such editorials issued only in the case of alleged misconduct by federal court judges, or are they issued also in the case of alleged misconduct by state court judges?

      3.  Are such editorials issued even when the accused judge denies or declines to comment on the accusatory allegations?

      4.  Will such editorials be issued concerning controversial judicial
      conduct, such as Justice Richard Sanders' allegedly pro-life statement at the 1996 Right to Life rally? (BOG member Daryl Graves presently represents a judge whose controversial actions are the subject of a prosecution by lawyer Rita Bender before the Commission on Judicial Conduct. Will the WSBA be publicly taking a side in that controversy?)

          As you may know, I believe that lawyers have a civic duty to speak out against misconduct by all governmental officials, including judges and officials responsible for disciplining judges and lawyers. My website illustrates my beliefs: http://members.aa.net/~schafer. I urge you particularly to read posted documents illustrating the Bar disciplinary staff's apparent cover-up of misconduct by former judge (but uncharged lawyer) Grant L. Anderson and his former partners at

          One of my perceptions is that it's easy to criticize distant parties, but hard to criticize judges, lawyers, and disciplinary officials we mingle with frequently. Illustrative of that is the case of the alleged outrageous misconduct by the late King County Superior Court Judge Jim Bates. Attached are e-mails expressing my shock at his sanitized stipulation for a 30-day suspension announced by the CJC on Feb. 4, 2000. Because I did not know Judge Bates, I could measure him through the same lens that the public uses: public newspaper accounts of his alleged misconduct and his public statements first denying, then
      admitting, then denying the same. Every non-lawyer with whom I spoke was outraged that Bates got off with merely a 30-day suspension and a sanitized stipulation that acknowledged no misconduct, even though he previously had admitted it. But no lawyer in King County would dare to comment publicly, however, either because of their personal relationship with Bates or fears of retaliation by him and his judicial peers. (A repeat in some ways of the Judge Gary Little scandal--we don't learn, do

          Because of the reluctance of lawyers to criticize judges, lawyers, and disciplinary officials with whom they mingle regularly, I suggest that the State Bar establish two or more "editorial boards" to formulate and publish WSBA policy positions on personnel matters that are in the public eye relating to law and the justice system. One board would be in Eastern Washington and would address personnel matters in Western
      Washington. Another board would be in Western Washington and would address personnel matters in Eastern Washington. Perhaps the Bar of a neighboring state, say Oregon, could be invited to editorialize when our state's judge or lawyer disciplinary officials take actions or inactions that undermine public trust and confidence in the judicial system and the legal profession. (E.g., meting out a 4-month suspension to a judge for accepting a Cadillac kickback or a 30-day suspension for horrific, sexually deviant and dishonest behavior; covering up a lawyer's
      adjudicated "pattern of dishonest behavior" when modest investigation would document extraordinary criminal behavior by several lawyers).

                   ======== end of excerpt =========

          Those curious about the Judge Gary Little scandal or that of the late Judge Jim Bates may read about them at: www.doug4justice.org.

          BTW: for John Morgan Duty II and other Jail4Judges subscribers, the Oath for WA attorneys is at http://www.courts.wa.gov/rules/state/apr/5.txt. I assume that each state's "oath of attorney" is a public document, as are its lawyer ethics rules. The American Bar Assoc. Model (meaning
      "suggested") Rules for Professional Conduct are posted at:
      http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/ModelRules/ Most state supreme courts have adopted the ABA Model Rules with slight variations (e.g., WA changed its Rule 8.3 to *not* require that its lawyers report their peers' misconduct.)

      Doug Schafer, Lawyer in Tacoma, Washington.

      (Whatever they say can and will be used against them
      in the Court of Public Opinion) 
      Speak Up for your Judiciary
      By Richard C. Eymann
      WSBA President
      [Washington State Bar Association]

          As the legal profession struggles with public misperceptions and misplaced criticisms, we have allowed our judges to be wrongfully castigated by media, politicians and others - without response.  At the heart of our criminal and civil justice systems is our judiciary, comprised of judges who, with very few exceptions, conscientiously interpret and carry out the laws.          Indeed, the preamble to the Code of Judicial Conduct states: our legal system is based on the principal that an independent, fair and competent judiciary will interpret and apply the laws that govern us.  The role of the judiciary is central to American concepts of justice and the rule of law.
          Yet on a nearly daily basis, trial and appellate court judges are criticized for decisions clearly based on applicable law, court rules and sentencing guidelines that they are required to follow.
          Is there a rational explanation for why people attack our judiciary?  Who are these people?  Some are legislators or elected officials who may be hoping for knee-jerk responses from an uninformed public to further their personal agendas.  What is ignored is that these legislators and their predecessors wrote many of the laws being enforced by the courts. 
          There are also those who encourage public complaint and then profit by disseminating such complaints, e.g., some radio talk show hosts.  These are people who mock our judicial system, and either cannot understand how our laws are written or interpreted, or simply are ignorant that our judges are called to act upon to protect justice even when it may be unpopular.  Their purpose is to create conflict among their audience, to shock and belittle for the sake of higher ratings and advertising dollars. 
          We have all witnessed brutal editorials when a suspected criminal's case is dismissed on a technicality. Yet to maintain impartiality, judges are essentials barred from responding.  Canon 3 of the Code of Judicial Conduct states in part:
      Judges shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.
          As lawyers, however, we are not only allowed to speak out, but have an affirmative duty as stated in RPC 8.2 (c):
      A lawyer, in order to assist in maintaining the fair and independent administration of justice, should support and continue traditional efforts to defend judges and courts from unjust criticism.
          For every lawyer who speaks up for judges, there are 10 who resonate with silence or profound ambivalence.  Some lawyers even join in the attack - a form of cannibalism.  The resulting loss of respect for our judiciary fosters an even greater loss of respect for the entire legal profession.
          Many spurious attacks emanate from professional "wannabes," who either purposely or innocently ignore the fact that our justice system actually works very well to serve the public while addressing necessary changes within our society.  As we have seen in election years, members of the judiciary are easy targets for politicians looking for votes. 
          Even more disconcerting are attorneys with political or other agendas who are openly critical of judges. Recently, we have seen judicial candidates resort to mean-spirited and false
      accusations to unseat sitting judges, using such terms as "soft on crime" and "cookie cutter justice".  Lost in the lies, distortions and ridicule is the incredible dedication, hard work and frequent sacrifices of personal time of our judges.  An example of this dedication is the implementation of a juvenile drug court by the superior court judges in Spokane.  This special court has revolutionized community involvement in fighting one of the worst cancers to infect our society (especially youth) - the proliferation of illegal street drugs.  In the words of Spokane County Superior Court Judge Neal Reilly, "When I walk out of our juvenile drug court, I am exhausted, but for the first time I feel exhilarated that this new court and its system will
      change young lives."
          Despite such efforts and achievements, in today's climate of anger, frustration and vilification, anti-lawyer propaganda has risen to new levels with the incorporation of judge-bashing and judge-scaping.  A retiring judge told me that in looking back over 30 years on the bench, the decline in positive public perception of judges has left him with a feeling of profound longing for what once was.  Another judge related her disappointment in
      today's lack of knowledge by most members of the media of a judge's role.
          Lawyers often ask, "Well, what are we supposed to do about it?" We must start by taking lawyers to task for spurious critical comments, innuendos and misinformation about our judges, and challenge those who seek political gain or some private agenda by removing them from their soapboxes. 
          Criticism should be limited to those truly justified cases and should be done in a constructive way. Regarding judicial critics outside our profession, lawyers as a whole must work harder to provide them with the basics of legal education. Media, politicians and the general public should not be left to their own resources. We cannot expect reporters or radio talk-show hosts to broadcast with any accuracy or balance if they have little or no understanding of the judicial branch of government.  As officers of the court, we all have an inherent duty to protect the integrity of the court, and make every effort to curtail the increasing judicial disparagement seen in recent years.  So next time you see our judges unfairly assailed, take your duty under RPC 8.2 (C) seriously - step forward and speak up.

      Washington State Bar News:  Seattle, August 2000.
      The germ of destruction of our nation is in the power
      of the judiciary... -- Thomas Jefferson (1821)
      The Judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric.
      -- Thomas Jefferson (1820)
      J.A.I.L.  (Judicial Accountability Initiative Law)
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