noting that a whistle-blower statute did not protect an attorney from disciplinary action for unnecessarily revealing client confidences to newspapers and the press
How later courts described this case
- noting that a whistle-blower statute did not protect an attorney from disciplinary action for unnecessarily revealing client confidences to newspapers and the press
- even if disclosure required, court can still restrict disclosures to only those matters necessary for court proceedings
- finding additional mitigating factors beyond those found by hearings officer
- “ ‘[NJaked castings into the constitutional sea are not sufficient to command judicial consideration and discussion.’ ” (internal quotation marks omitted) (alteration in original) (quoting State v. Blilie, 132 Wn.2d 484, 493 n.2, 939 P.2d 691 (1997))
Written by the judges who cited it.
The opinion
Winsor, J. *
(concurring in part, dissenting in part) — I concur with the majority that Schafer violated RPC 1.6 as adopted in Washington when he revealed his client’s confidences. 16 Until such time, if ever, as this court may elect to consider and adopt a revision to RPC 1.6, see n.16, supra, we must enforce the rule as written. We cannot excuse Schafer’s violation of the rule as it is now written while expecting every other lawyer in the state to adhere to it. A sanction must be applied. I write separately because I believe a six-month suspension of Schafer’s license to practice law is too harsh in the circumstances of this case.
As the majority points out
In a bar discipline case, this court generally accepts as true any unchallenged findings of fact made by the hearing officer that are affirmed by the disciplinary board. ... A hearing officer’s conclusions of law will be upheld if they are supported by the findings of fact.
Majority at 158. See In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 594 , 48 P.3d 311 (2002).
I strongly contend that the fact that Schafer’s actions caused the removal of a corrupt judge from the bench is a *177 very substantial mitigating factor under ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) Standard 4.2. The majority recognizes that he performed a public service and that it is a mitigating factor. But in the next paragraph it deals with “aggravating factors” and questions how large a part Schafer’s selfish interest may have played in his motivation. The hearing officer made explicit findings of fact about that:
Schafer’s overriding and central purpose .. . was to expose Anderson as corrupt and to have him removed from the bench.
Answering Br. of Wash. State Bar Ass’n (app. A) at 32 (finding of fact and conclusion of law 38). The hearing officer further found, under aggravating and mitigating factors, that
Schafer’s motive was not dishonest but was partially selfish. In addition to Schafer’s primary motive of exposing judicial corruption, Schafer was also motivated by personal vindication.
Id. at 41-42 (emphasis added).
The concurring opinion argues hypothetically that if Schafer’s disclosures had NOT led to Judge Anderson’s removal, there could not be a mitigating factor applied and argues, somehow, that a “double standard” would result. Concurrence at 174. We need not rule on that hypothetical case today. But I suggest that the issue then might be whether the lawyer had reasonable cause to believe that the judge was corrupt. If he did, it might well be considered in mitigation.
My disagreement with the majority is that it discounts too much the mitigating factor of the public good accomplished by Schafer’s actions. My disagreement with the concurring opinion is that it denies to Schafer any mitigating factor at all for the public good he intended and accomplished.
A primary purpose of lawyer discipline is to maintain the integrity of the profession and the public’s confidence in the *178 judicial system as a whole. In re Disciplinary Proceeding Against Halverson, 140 Wn.2d 475, 498 , 998 P.2d 833 (2000). I do not believe that suspending Schafer’s license to practice law for a period of six months is necessary to achieve that purpose. A more likely public reaction to such a harsh sanction in this post-Enron era is the opposite—a perception that lawyers can be counted upon not to reveal fraud perpetrated by their clients because any whistleblowers among them will be severely punished by the courts, regardless of the public good that such whistleblower might accomplish.
I believe that a suspension for 30 days would be a sufficient sanction in this case.
Madsen, J., and Kennedy, J. Pro Tem., concur with Winsor, J. Pro Tem.
Reconsideration denied June 23, 2003.
Judge Robert W. Winsor is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. IV, § 2(a).
Washington’s RPC 1.6 is based on the ABA’s Model Rules of Professional Conduct, Rule 1.6 (1991). Arecent proposed revision of the Model Rule would have permitted a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary in order to “prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.” Model Rules of Prof’l Conduct R. 1.6(b)(3), reprinted in Ctr. for Prof’l Responsibility, ABA Ethics 2000 Comm’n Report, available at http:// www.abanet.org/cpr/. Although the ABA’s House of Delegates rejected the proposed revision in August 2001, the national debate has not ended. On August 1, 2002, the Conference of Chief Justices (a body consisting of the highest judicial officers of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and the territories of American Samoa, Guam and the Virgin Islands) passed a resolution (Resolution 35) supporting the proposed revision. Policy Statements and Resolutions: Resolution 35 as Adopted by the Bar Committee of the Conference of Chief Justices, Annual Meeting (Aug. 1, 2002), available at http://ccj.ncsc.dni.us/. (Resolution identified as Resolution 35 In Support of Rule 1.6(b)(2) and 1.6(b)(3) of Ethics 2000 Commission.)