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.”
- 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.