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Risking It All on a Legal Crusade

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    Los Angeles Times Saturday, June 10, 2000 Risking It All on a Legal Crusade Lawyer defied professional standards to get a corrupt judge disbarred. But his
    Message 1 of 1 , Jun 16, 2000
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      Los Angeles Times
      Saturday, June 10, 2000

      Risking It All on a Legal Crusade
      Lawyer defied professional standards to get a corrupt judge disbarred. But his practice, home life suffered.

      By BARRY SIEGEL, Times Staff Writer

           TACOMA, Wash. -- Doug Schafer could not believe what he was hearing. It sounded absurd to him. It made no sense.
           You can't do this, Doug. Don't do this. You'll lose your license. You'll lose your livelihood.
           He was sitting in a Tacoma law office. Before him was a former law partner, Philip Sloan, and a former client, Bill Hamilton. Sloan was speaking.
           If you disclose anything derived from your talks with Hamilton, there will be trouble. We don't want to, but if necessary we'll file a grievance with the state bar.
           What Schafer had derived from Hamilton were hints of corruption about a Superior Court judge. Although most lawyer-client conversations are privileged, protected by confidentiality, Schafer thought it wrong to keep silent. He'd found himself before this judge recently. He'd found it appalling to be subjected to Grant Anderson's rulings. He was determined to expose him. 
      ....

           It was in July 1995 that Schafer found himself standing before Judge Grant Anderson. The judge was making rulings against Schafer's client in a dispute over division of an estate. It suddenly struck Schafer: Anderson was the guy Bill Hamilton had talked about three years before. Hamilton had bought a bowling alley from an estate. Anderson, still a lawyer but about to take the bench, had been trustee of that estate.
           Anderson has been milking the estate for years. . . . He's going to give me a good deal on the bowling alley. . . . I want to pay him back. That's how Schafer recalled his client's words, though Hamilton would later adamantly dispute the memory.
           Now, in Anderson's courtroom, Schafer thought: He's the guy. . . . And he's wearing a black robe.
           Back at his office, he pulled out Bill Hamilton's file. In his notes, he found the name of the estate--Hoffman--from which Hamilton had bought the bowling alley. At the Tacoma courthouse, he checked out the Hoffman estate file. He thumbed through it, taking notes. Something jumped out at him: Anderson was the only lawyer involved in this estate; no one represented the rural public hospital that was the estate's chief beneficiary. Something else jumped out: Anderson had collected some $112,000 in fees.
           Schafer didn't like what he saw. Still, he put the matter aside. If his client Bill Hamilton had done anything wrong, he explained later, the statute of limitations would expire in a few months. He thought it best to wait.
           Then came more negative rulings and comments from Anderson. Near the end of the year, Schafer felt compelled to act. Following a hearing on Dec. 15, he returned to the court clerk's office and again checked out the Hoffman estate file. This time he photocopied every page. After studying what he had, he made three calls. The first went to the state attorney general's office. The second went to the estate's beneficiary, Ocean Beach Hospital. The third went to his old client, Bill Hamilton.
           He and Hamilton met at a coffee shop early on the morning of Dec. 18. Schafer shared his research and grilled his client about possible paybacks for the "sweet deal" on the bowling alley. Hamilton expressed alarm at where Schafer was headed. Hamilton says he also warned Schafer not to violate client confidentiality. Schafer insists that what Hamilton actually said was, "Stop looking for dirt" on Judge Anderson.
           On the phone two days later, Hamilton was even firmer and angrier. As Hamilton recalls it, he cautioned Schafer not to use "incorrect and vengeful" recollections and not to "violate attorney-client privilege." As Schafer recalls it, Hamilton advised "that I should just 'drop it.' "
           Schafer wouldn't drop it. All through January, he made calls and collected public documents. Aware of Schafer's activity, Hamilton faxed him a letter terminating their attorney-client relationship and demanding that Schafer not disclose privileged and "knowingly false" information. Within minutes, Schafer called and suggested they get together.
           So it was that Schafer, on the afternoon of Feb. 1, 1996, found himself sitting before Hamilton and Phil Sloan, once Schafer's partner in the small Tacoma firm, now Hamilton's attorney.
           Don't do this, Doug. You'll lose your license. You'll lose your livelihood. I was your partner when your boys were born. If you lose your license, you could lose everything.
           Memories of this meeting differ. Schafer recalls being stressed, tired, but under control. Sloan and his colleagues describe him as wired, manic, visibly agitated. All do agree that Sloan urged Schafer to seek psychiatric counseling. All also agree that Sloan's words failed to persuade Schafer.
           The rules of professional conduct, it seemed to him, weren't the only guide for lawyers' moral and ethical conduct. A lawyer may do--must do--what is fundamentally right. As a matter of law, Schafer didn't think he'd be violating client confidentiality if he exposed Anderson. Yet even if he were, so what?
           There's corruption; there's integrity. There's good; there's evil. He had to blow the whistle on a judge he believed guilty of wrongdoing. Rules can't cover all the territory; rules can be interpreted any way you want. Moral right transcends written rules. This guy Anderson, a sitting judge daily wearing the black robe, was demonstrably corrupt. That was more important than rules of privilege. That was intolerable. That should be intolerable to any law-abiding person. That in and of itself should outweigh any policy about client privilege.
           Plenty of others, as it happens, see it otherwise. There are reasons why lawyers face sanctions for revealing clients' confidences. If lawyers were free to reveal bad acts of their clients, people couldn't safely go to lawyers, and couldn't talk freely if they did. They'd lose all rights. The confidentiality privilege reflects the lasting belief that a person's right to counsel outweighs society's need for a particular act of misconduct to be exposed.
           There are exceptions to the privilege--including a duty to warn about coming danger or criminal fraud--which reflect continuing efforts to balance competing values. There is also talk in the American Bar Assn. about expanding those exceptions, part of a centuries-long debate. Yet in Washington, it remains a violation to disclose a client's communication about past misdeeds.
           "I don't give a s---," Schafer declared.
           "Think of the consequences," Sloan appealed.
           "I don't care."
           The next day, Sloan faxed to Schafer a hand-scribbled follow-up note: "Bill H. instructs you not to disclose any communications re: Grant Anderson to anyone. If you do, you will be in violation of RPC 1.6, triggering action under RPC 8.3. Please protect your family if not yourself and stop your threats. If I can help, please call."
           Schafer didn't stop, didn't call. He didn't agonize over his course, he didn't for a minute see himself facing an ambiguous choice. Asked later why he didn't simply blow the whistle on Anderson without revealing his client's confidences, Schafer explained that it wouldn't have been as effective: "Look how hard it was to get any attention even with disclosing everything."

           Schafer Presses His Case

           In the days after his meeting with Sloan and Hamilton, Schafer took all he had--including an affidavit summarizing his conversations with Bill Hamilton--to the Pierce County prosecuting attorney, the state attorney general's office, the state bar disciplinary board, the IRS, the FBI and the Commission on Judicial Review. He also approached Ocean Beach Hospital, the beneficiary of the Hoffman estate.
           In his arms by now were hundreds of documents, a labyrinth of detail. Schafer's view of Anderson's malfeasance had evolved, reaching well beyond the bowling alley sale. A memo he drafted late that February to "appropriate public officials" ranged over a variety of issues, from possible tax violations to how Anderson sold time-share units in a seaside resort owned by the Hoffman estate. Even Schafer acknowledges that some were based on supposition, some lacked documentation and some never panned out.
           Worse yet, all were aimed at a well-connected judge in a small legal community: Anderson came out of an active Tacoma law firm; he served on the Washington State Board of Education for 23 years, for a time as its president; he was a former state bar disciplinary hearing officer; he'd been endorsed by the Tacoma News Tribune; he enjoyed overwhelming support in a Pierce County Bar Assn. poll.
           It was no surprise, then, that for a good while no one appeared interested in what Schafer brought them. The county prosecutor passed first. The state attorney general's office said it had no jurisdiction. The state bar found no basis for charges.
           That's not to say the state bar wasn't interested: Instead of Anderson, Schafer drew its attention. In August 1996, the same month it closed the file on the judge, the state bar's Office of Disciplinary Counsel opened an investigation of the attorney.

           Tripped Up by a Cadillac

           The turning point came when the state Commission on Judicial Review, alone among all agencies, finally decided to conduct its own extended review into Grant Anderson's handling of the Hoffman estate. A commission investigator thought Schafer highly credible. She found in his documents a clear, straightforward case of fraud. Wherever she turned, she verified what he had. This case, she told him, looks like "a 13 on a scale of 1 to 10."
           What undid Anderson was his Cadillac. It came to Schafer's attention first, through a tip from another lawyer. He suspected it was a possible payoff from Hamilton for providing a sweet deal on the bowling alley. He vainly tried to get the Cadillac's license plate number from another judge, then from the county prosecutor. He ended up wandering around the Tacoma courthouse parking lot where the judges parked their cars.
           He spotted a Cadillac. Looking in the window, he saw Anderson's mail sitting on the front seat. He copied down the car's license plate number. Back at his office, he contacted the state department of licensing and requested the Cadillac's ownership records.
           It showed only that Anderson had financed the Cadillac with a loan from Hamilton's bank. Nothing in the record could confirm Schafer's suspicions.
           It was left to the Commission on Judicial Conduct to connect the dots Schafer brought them. Paul Taylor, a Seattle attorney hired by the commission to prosecute Anderson, started wondering what Anderson's ex-wife knew about the Cadillac. He approached her. Anderson, she revealed, had described his new Cadillac to her as a "commission" on the bowling alley deal.
           Eventually, Taylor discovered that Bill Hamilton had been making Anderson's $800-a-month car payments, a total of $31,000 before he stopped. Soon after those payments began, Anderson, by then a judge, had agreed to reduce the initial selling price of the bowling alley by almost $100,000. He had also remained president of two corporations owned by the estate for 10 months after taking the bench.
           After an 18-month investigation, the commission filed charges against Anderson in August 1997. Most centered on the Cadillac deal, which was the part of the case Taylor felt most certain he could prove. Those expecting Schafer to rest or celebrate were mistaken. He wasn't the least satisfied: The commission had ignored three-quarters of the accusations he'd brought them.
           Schafer began bombarding everyone in sight with letters, documents and phone calls. In December 1997 he prepared a four-page overview of the case--"Exposing the Crook Inside the Robe"--and near noon on a Friday asked a court administrator to place copies in all the Pierce County judges' mailboxes. The administrator balked, so Schafer camped out in her office. Late in the afternoon, she finally agreed to put them in the boxes on Monday. That wasn't soon enough for Schafer: He tried to hand-deliver copies to three judges' homes on Saturday morning.
           When that drew no response--other than an agitated complaint from one judge's wife to Schafer's--he went public, distributing his flier to the news media, law firms and anyone passing by on the steps of the county courthouse. Three weeks later, as Anderson's hearing unfolded before the Judicial Commission, Schafer plied the commission's prosecutor with more documents, often waiting for him in the lobby of his Tacoma hotel. On the first day, Schafer also insisted on attending the hearing, although like all subpoenaed witnesses he was barred from the proceedings. To remove him, authorities had to adjourn and obtain a temporary restraining order from a Superior Court judge.
           By then, Schafer's conduct was driving a good number of people to absolute distraction. Some cringed when he approached with an armful of documents. Some felt close to threatened.
           One Pierce County judge, after receiving a call from Schafer at home on a Saturday night, directed him not to contact her again, explaining, "I am alarmed by your statement that you will feel 'alone and betrayed' . . . . As well as your statement that 'I may even lose it.' "
           To one lawyer he thought was moving too slowly, Schafer wrote, "Forgive me if I get too emotional about such antiquated concepts as 'truth,' 'justice,' and 'morality,' but I think about 'the Judge' every day, and being able to periodically vent in this manner perhaps keeps me from acting out my 'vigilante justice' fantasies."
           Schafer offers a range of reactions when asked whether he realizes that others regard his conduct as unusual. Mostly, he's perplexed and offended. He prefers the term "tenacious" to zealous, pointing out that the words people choose reflect their personal bias. He thinks his is proper conduct for someone who cares passionately, for someone who has seen everything he believes in shattered. He thinks he's going as far as he must.
           "There are wrongs in society where anyone who cares about people is going to act compulsively, obsessively," he says. "I see myself as a business transaction lawyer. I was putting my time and resources into a righteous cause. I knew I was right. The only question was, how much effort was needed to win. The idea that I'm not allowed to knock on the door of an elected official and hand him a piece of paper--I don't understand that. I don't see anything wrong. It's information they should have."

           Unsatisfied With Guilty Verdict

           In April 1998, the Washington Commission on Judicial Conduct found Judge Anderson guilty of three violations: Accepting $31,000 in Cadillac payments while negotiating a lowered price for the bowling alley, not disclosing those payments and continuing as president of the Hoffman estate's corporations after taking the bench. Yet for violating various judicial canons, the commission imposed only a four-month suspension on Anderson.
           Again, Schafer was neither satisfied nor quelled. He promptly filed a grievance against one of the commission's judges, claiming he shouldn't have heard the case because he had a past relationship with Anderson's attorney. Schafer began hammering the lawyer for Ocean Beach Hospital, which as beneficiary of the Hoffman estate had threatened a lawsuit against Anderson, declaring that he'd "lost confidence that your firm has the principled determination necessary to expose fraudulent exploitation." Most important, he turned to state legislators in Olympia, sending each of them letters and e-mail messages, urging them to do what the commission had not: Remove Anderson from office.
           After holding a public hearing, the state Legislature appeared inclined to do just that, not the least because Ocean Beach Hospital--whose administrator testified she felt robbed of $1.5 million--happened to be located in the Senate majority leader's district. The Washington Supreme Court acted first, however. Following a mandatory review of the commission's findings, the high court ruled unanimously that, given the "egregious nature and extent of Judge Anderson's misconduct," suspension wasn't a strong enough penalty: Anderson should be removed from the bench for "a pattern of dishonest behavior unbecoming a judge."
           It was the first time in state history that the Supreme Court ordered a Superior Court judge removed from the bench for ethics violations. It was also the first time that an appeal to the Supreme Court of a Judicial Commission penalty was met with an even harsher sanction.
           Schafer heard the news in an early morning call from a reporter. He quickly read the court's opinion on its Web site. It astounded him. God, he thought, they actually must have read the record. They actually cared enough to do their job.
           Schafer cast about for what next to do. There was no point calling his wife; she'd long ago declared she didn't want to hear anything more about Grant Anderson. Nor was there much of a point in sharing this with the other lawyers in his office suite; they were weary of him.
           Instead, Schafer picked up the phone and called the chambers of Supreme Court Justice Barbara Madsen, who'd written the opinion. He'd spotted a mistake in her analysis, a need for correction. She'd quoted from an outdated constitutional amendment that had since been revised.
           On the phone, he explained as much to Madsen's administrative assistant, who then asked what he thought generally of the opinion. He offered his praise. The assistant said, "Justice Madsen will be glad to hear that."
           Schafer weeps still over the memory. "That's when I got a sense they're aware there is a human being down here behind this."
           Although Doug Schafer inspires extreme responses, it's not hard to hear ambivalence in many people's comments. "The fact is, mad dog zealots can be right," says John Strait, a Seattle University law professor and ethics specialist. "The fact is, mad dog zealots can do good things."

           Victor Awaits Disciplinary Hearing

           In the end, Schafer's "good things" reached beyond Anderson's removal from the bench. Just before the Legislature's hearing, Ocean Beach Hospital settled its claim against Anderson and his colleagues for $500,000. Just after the hearing, the state bar revealed it had reopened its investigation of Anderson because "evidence came to light . . . that was unknown to us." Just weeks ago, in mid-March, the state bar's disciplinary board approved a two-year suspension of Anderson from the practice of law.
           Yet to bring all this about, Schafer inevitably crossed lines that most wouldn't cross and don't think should be crossed. That is why he and his crusade have roiled all sorts of people in Washington. Schafer says he "can't fathom" any "responsible person" not revealing a client's confidence in order to expose a corrupt judge. Others can: Nine weeks before the Washington Supreme Court removed Anderson, the state bar formally filed its charges against Schafer.
           His hearing--delayed, not surprisingly, by a barrage of motions he filed--is now scheduled for July 17. While he waits, Schafer prepares his next campaign: a run for election to the Washington Supreme Court. He announced his candidacy in early May.
           The notion of being a state Supreme Court justice pleases him as little else does. "Then I could set policy," he points out, offering a faint smile. "Then I could decide what the rules mean."

      Copyright 2000 Los Angeles Times



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