Supplemental Information Page to "The Missing Moral Leadership"
by Doug Schafer, Candidate for Washington State Supreme Court

The Supreme Court's Role.
 
• To see the very wide range of court rules, click here. Additionally, the Court oversees many programs, commissions and other bodies (click here).  The court rules governing the conduct (in and out of court) of lawyers are here, the court rules coverning the conduct of judges are here (or to download them as a 7-page Adobe Acrobat PDF printable document, click here).
 
• For more on FBI Operation Greylord and its sequel, Operation Gambat, that led to convictions of 19 judges (and suicides of others), at least 50 lawyers, and dozens of court employees, click here or click here or read one of the several books written about the scandal, such as Greylord: Justice, Chicago Style, by James Tuohy and Rob Warden (Putnam, 1989).
 
• I requested and received in 2000 copies of the final reports from the Post-Greylord task force directly from Jerold S. Solovy (Chairman of Chicago's Jenner & Block), who was chair of that task force. He was quoted by Martha Middleton in "Chicago Courts Reel From Corruption Probe," The National Law Journal, March 2, 1987, page 1, as saying, "What we need from the Illinois Supreme Court ... is leadership, moral leadership.  [Lawyers need a] consistent message from this jurisdiction's highest court that this is what we expect and demand."
 
• The National Law Journal's editorial on January 16, 1989, pg.12, titled "Conspiracy of Silence" wisely emphasized the need for effective self-policing within the judicial system, saying:
 
[T]here is one unsettling aspect of the Greylord investigation from which other judicial systems can learn: One of the key reasons corruption was able to grow and prosper in the city, according to Mr. Solovy, "was a conspiracy of silence -- the unwillingness of judges and lawyers alike to report wrongdoing."

• In 1985, Seattle lawyer Bob Gould urged the Washington State Supreme Court not to support that conspiracy of silence by altering, as the State Bar was then proposing, the ABA Model Rules to defeat effective self-policing. The Court ignored Mr. Gould. (Click here.)
 
• The Washington State Supreme Court's Judicial Ethics Advisory Committee, on August 14, 2002, issued an "ethics" opinion telling judges that they need not report lawyers charged with DUI to the State Bar disciplinary authorities. (click here) [I trust that lawyers who "get a pass" from a judge will reciprocate when the judge misbehaves.]
 
• A story of Illinois 1960's judge and lawyer corruption (and the watchdog press' failings) that launched the public career of U.S. Supreme Court Justice John Paul Stevens is told in Kenneth A Manaster's Illinois Justice, reviewed here.

The Court's Track Record.
 
• Law Professor Charles W. Wolfram's list of publications, mostly on legal ethics, is here.
 
• See the National Law Journal's Top 10 Misbehaving Judges in 2002, 2001, 2000, and 1999.
 
• The 1993 Seattle lawyers' "litigation fraud" Fisons Corp. case, discussed here, is widely used in law schools to teach aspiring lawyer how not to behave.
 
• The 1977 Seattle case of Hawkins v. King County, involving Justice Richard B.Sanders (then a blindly zealous defense lawyer) discussed here, is used to teach law students of the human toll (and potential liability) that can result if their zealousness for a client blinds their concern (if any) for public safety.
 
• The pedophile judge case is discussed here; the sexually obscene judge here; the wife beating judge here; the cowboy-justice judge here, here, and here; the drinking-with-the-jury judge here, and here, the Cadillac-kickback judge here, the big-firm lawyers who hide evidence here, the big-name lawyer who screws his clients here, and the criminal defense lawyer who reportedly dispenses sexual favors to jailed clients here.

Serving the Public, or the Self-Serving Bar?
 
• It has been recognized for decades that "The organized Bar has consistently acted as a guild or trade association protecting lawyers' vested interests rather than supervising lawyers' conduct." Joseph L. Rauh, Jr., "A Public Interest Standard of Ethics for Lawyers," Law Day Lecture at Univ. of Minn. Law School May 1, 1979.
 
• The "ethics" rules that barred lawyers from charging clients less than the price fixed in minimum fee schedules of local Organized Bars were declared unlawful by the U.S. Supreme Court in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).
 
• The "ethics" rules that barred lawyers from advertising (except for the frequent social functions hosted by mostly well-established law firms) were declared unconstitutional by the U.S. Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
 
• The U.S. Department of Justice sued the ABA for antitrust violations over its "ethics" rules and opinions banning lawyer advertising. The Justice Dept. dismissed the case with the ABA issuing an "ethics" opinion asserting that its "ethics" opinions were not binding on lawyers. See "Justice Department Dismisses Antitrust Suit Against American Bar Association," 64 A.B.A. J. 1538 (1978); ABA Comm. on Ethics and Prof'l Responsibility, Informal Op. 1420 (1978).
 
• See the State Supreme Court's new General Rule 24 (Definition of the Practice of Law), General Rule 25 (Practice of Law Board), and The Practice of Law Board page on the State Bar's website, all allegedly to protect the public from nonlawyers giving bad legal advice.  But see the court's rejection of mandatory reporting by lawyers of corrupt or serious unethical conduct by other lawyers and judges -- Bob Gould's 1985 letter and Washington Rules of Professional Conduct 8.3 (The phrase "should report" in Rule 8.3 means reporting is optional; if it were mandatory, the phrase would be "must report.")
 
• The State Bar persuaded the Legislature to criminalize the "unauthorized practice of law."  RCW 2.48.180(3)  in the State Bar Act (RCW Chapter 2.48) states: "Unlawful practice of law is a crime. A single violation of this section is a gross misdemeanor. Each subsequent violation, whether alleged in the same or in subsequent prosecutions, is a class C felony."

Defensive and Self-Serving Lawyer Ethics.
 
• The ABA in 1983 adopted its new Model Rules of Professional Conduct after about six years of contentious national debate. The product was what New York University Law Professor Stephen Gillers described as an "unflattering" "self-portrait of the American bar's influential consituencies." He continued:
 
"The bar has drafted a code that proves the wisdom of its own precept against client-lawyer conflicts. The lawyers who approved the Rules looked after their own. They have given us an astonishingly parochial, self-aggrandizing docuemnt, which favors lawyers over clients, other persons, and the administration of justice in almost every line, paragraph, and provision that permits significant choice. It is internally inconsistent to the bar's benefit. ... As finally adopted, the Rules seem guided by the view that what's good for lawyers is good for the public. Look at any part and that conclusion may not suggest itself; look at the whole and it is inescapable."

Stephen Gillers, "What We Talked About When We Talked About Ethics: A Critical View of the Model Rules," 46 Ohio St. L. J. 243 (1985).  Another enlightening expose into the making of the ABA's Model Rules is found in Professor Ted Schneyer, "Professionalism as Bar Politics: The Making of the Rules of Professional Conduct," 14 Law & Social Inquiry 677 (1989). Both journal articles are available here.
 
• The ABA Model Rules included nearly absolute confidentiality rules that would shield lawyers from liability for enabling their clients' frauds and violence by forbidding them from warning of or reporting their client's lawlessness.  In the prior decade had included several very public challenges to complicitous lawyers -- the federal Securities and Exchange Commission had sued major law firms for enabling their clients' corporate securities fraud, some criminal defense lawyers in New York had been charged criminally for withholding for six months reports of the open gravesites of missing coeds who their client had  murdered, and Seattle lawyer Richard B. Sanders had been sued for the violence that he enabled his mentally ill client to commit by withholding his dangerous condition from a bail hearing judge. (Click here and here for the background.)

• In 1985, the Washington State Supreme Court "rubber-stamped" the ABA Model Rules with some changes that the State Bar had requested.  The Washington version of the Model Rules, as adopted, retained from the prior ethics rules a confidentiality exception that permits lawyers to reveal information to prevent their own clients' intended crime, but dropped the prior ethics rule provision that required lawyers to reveal clients' fraud upon a court and permitted their revelations to rectify clients' frauds upon third parties.  (Click here for Professor Aronson's admonition to the Court.)
 
• Over the last 20 years, proponents of the confidentiality rule as an impenetrable shield against lawyer liability have rallyed support among lawyers by instilling fears of liability for all their clients' misdeeds, but such fears are not borne out in the many states with public-interest exceptions to lawyer confidentiality nor in our own state for the century prior to September 1, 1985.  See the proponents' telling quotations here, and see some scholarly literature condemning the legal profession's "ethics" rules here. To see the confidentiality rules of several states with public-interest exceptions, click here.
 
• In 2000, Professor Deborah L. Rhode (Stanford Law School Professor of Ethics, former President of the American Association of Law Schools), wrote an insightful book on the need for profound reforms in the legal profession -- In the Interests of Justice: Reforming the Legal Profession (Oxford University Press, 2000). In her chapter titled “America’s Sporting Theory of Justice” she condemns the profession’s current confidentiality rules and the bar’s self-serving motives in adopting them, saying, at page 112:

“[T]he rationale for current confidentiality rules has more to do with professional than public interests.  As the history of bar debates over these rules makes clear, attorneys’ overriding objective has been to minimize their own risk of civil or disciplinary liability.  The prevailing combination of broad confidentiality requirements with limited discretionary exceptions serves this purpose.  Discretionary provisions give attorneys the option to disassociate themselves from criminal or fraudulent conduct, while reducing risks of accountability if they choose not to do so.”

And at page 19, Prof. Rhode faulted courts for "rubber-stamping" the Organized Bar's choices:
 
"[A] final guiding principle demands public accountability for professional regulation.  Acting under their inherent power to regulate the practice of law, courts have overvalued professional independence and have delegated too much of their own oversight responsibility to the organized bar.  The result has been a system that fails to address lefitimate public concerns."

• Yale Law Professor Robert W. Gordon wrote, in “Portrait of a Profession in Paralysis,”54 Stanford L. Rev. 1427 (2002), that lawyers' absolute confidentiality rules have become a weapon lawyers used against the public than simple a defensive shield, saying:
 
“Confidentiality thus in many representations turns out to be a device that lawyers use to facilitate clients’ harmful behavior rather than prevent it.  Perhaps the most dramatic recent example comes from the tobacco industry, whose lawyers advised putting the industry’s entire scientific research program on the effects of tobacco on health under the general counsel’s office, so that counsel could protect unfortunate research results from disclosure by invoking lawyer-client privilege, and so that the companies could continue to tell regulators and the public that they believed smoking was nonaddictive and safe.”

• Journalist Stuart Taylor Jr. chronicled lawyers' offensive public-be-damned use of its confidentiality privilege in "Tobacco Lawyers and the Case For Cover-up Reform," The Atlantic Online, Feb. 13, 2001.

• Perhaps the nadir of lawyer ethics nationally was reached in 1990 by the San Diego County Bar Association publishing its formal advisory Ethics Opinion 1990-1 (click here to read it) asserting that it would be unethical for a lawyer to reveal, in an attempt to prevent, his client's imminent murder of an innocent person.

"[T]he Rules of Professional Conduct ... leave no discretion for disclosure or other warning of a client's intent to inflict serious bodily harm or death upon another person."

Shocking as that may be to persons who share the common morality of mankind, American lawyers have become a cult, not unlike the Taliban of Afghanistan, whose members take pride in their shared values that are rejected as inhumane by all modern-world cultures except their own. They will enable -- by their knowing silence or active support of clients -- murder and manslaughter (e.g., Tobacco industry lawyering), child abuse, elder and vulnerable adult abuse, and lesser harms, and will eagerly enable and assist in any client's financial fraud -- for such clients always pay the lawyers quite richly.  And they have convinced themselves that they are virtuous in holding fast to those "sacrosanct" values!  They are truly sick!

The National Moral Leadership.
 
• The American Law Institute (click here to learn of it), comprised of a select few hundred law professors, judges, and practitioners that published highly authoritative topical law reference books that are relied upon by courts and lawyers, began working in 1995 on a book to be called The Restatement of the Law Governing Lawyers.  In mid-1998 the body voted to approve inclusion within it of  the public-interest exceptions to lawyer confidentiality so as to permit lawyers to prevent client crime or fraud, or to rectify or mitigate the loss from past client crime or fraud in which the lawyer had been used by the client.  The finished Restatement 2-volume set was published in August 2000, with the public-interest exceptions to confidentiality as its Section 67.
 
• The ABA Ethics 2000 Commission on the Evaluation of the Rules of Professional Conduct was formed in mid-1997 to update the ABA Model Rules.  Its 13 members held 10 public hearings, met 50 days, and produced a scholarly set of proposed updates to the Model Rules. By March 1999, it was proposing  (click here) the restoration of public-interest exceptions to the lawyer confidentiality rule.  For more about the Ethics 2000 Commission, including its final report, click here. The state and local bar group delegates attending the ABA convention in August 2001 rejected key portions of the Commission's proposal for public-interest exceptions to the confidentiality provisions of the ABA Model Rules. Opponents of the public-interest proposals had rallyed their followers by shrieking that lawyers have no duty whatsoever to the general public, as a leading one, Lawrence J. Fox, was quoted saying in the New York Times:
 
"Academics have this lofty notion that lawyers should do good for society. But I'm not buying it. I don't think we should put the lawyers in a position where they have duties to the public, except in cases of death or bodily harm."

• On August 1, 2002, the Conference of Chief Justices (of all 50 states), showing a glimmer of leadership, formally adopted its Resolution 35 (click here) declaring its support for for the ABA Ethics 2000 Commission's proposal (click here) to add the public-interest exceptions to the lawyer confidentiality ethics rules to permit lawyers to disclose client information to prevent, stop, or to rectify a client's crime or fraud in which the lawyer's services had been used.

Where's WAldo?
 
• I have found, after extensive research, no evidence of any Washington state lawyer's, judge's, or law professor's significant participation in, support of, or leadership in the initiatives for restoring public-interest exceptions to lawyer confidentiality over the last two decades.  But our state has over 27,000 licensed lawyers; and it has three law schools, at University of Washington, Seattle University, and Gonzaga University, each of which has several law professors who teach students the subject of legal ethics.
 
• No such Washington professional, with one exception, appears to have published any scholarly work contributing to the national public debate.  UW Law Professor Rob Aronson did publish a brief essay challinging the wisdom of the current lawyer confidentiality rules that forbid a lawyer from reporting child abuse by someone other than their client (e.g. a boyfriend).   Robert H. Aronson, What about the Children? Are Family Lawyers the Same (Ethically) as Criminal Lawyers? A Morality Play, 1 J. Inst. Stud. Leg. Eth. 141 (1996). (Click here for it.)
 
• No such Washington professional appears to have been significantly involved in the 5-year project that produced the American Law Institute's Restatement of the Law Governing Lawyers (2000).
 
• No such Washington professional appears to have been significantly involved in the 4-year project of the ABA Ethics 2000 Commission. No public testimony or written comments from any such Washington professionals appear to have been submitted to that Commission.
 
• In 1999, Univ. of San Francisco Law Professors Richard Zitrin and Carol M. Langford wrote in the widely selling book,  The Moral Compass of the American Lawyer--Truth, Justice, Power, and Greed (Ballantine Books, 1999), at page 244:
 
"If our legal system is to be saved, members of the society it serves must play a major role in its salvation. This requires that lawyers and legal organizations open their doors to the public, and the the public have the necessary interest and fortitude to walk in.  Lawyers have a monopoly on the practice of law, not not on intelligence, savvy, or--despite the claims of some--an understanding of sophisticated ethics issues.  Public input provides two vital points of view often missing when lawyers evaluate their own conduct: the client's perspective and society's."

• The simple first step that members of the public can take to save the legal system is to vote for a State Supreme Court candidate who genuinely cares about them, and who is willing and able to lead responsible reforms in the legal system.

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