Wednesday, July 17, 2019

Issue Spotting


Despite all the harsh things I’ve said about how being an attorney can harm your mental health, I don’t want to leave you with the impression that I regret becoming a lawyer. I loved law school. And understanding how the law works makes me a better father, writer, and person. 

“Thinking like a lawyer” can indeed be corrosive if it involves twisting the truth beyond recognition. But other legal skills are invaluable for any problem solver. Like “issue spotting.”

Traditionally, each law school course ended with an all-or-nothing final exam consisting of one or more overstuffed “fact patterns.” For example, the story might begin “Alice was driving a car. Her wife Betty was in the front passenger seat without wearing the seatbelt, and her boss Chris was in a backseat without seatbelts. Suddenly Alice rear-ended an ice cream truck driven by Dagwood….”). 

Sometimes the professor guided the students’ response with open-ended questions, like “How does vicarious liability apply?," or "Which parties have a claim on the car?” Other teachers' instructions consisted of a bleak “Discuss.”

Issue-spotting is such a vital legal skill that it’s the heart of every bar exam. Here’s a link to some recent issue-spotting essay question and answers from the Uniform Bar Exam. Because millennials are involved, a national standardized text is now part of the mix. Back when I took the bar exam, however, we didn’t have any namby-pamby multiple-choice questions. We survived two and a half days with nothing but essay questions about Washington law. Plus a power outage.

If you don’t learn effective issue spotting, you’ll never know how to ask the right questions, let alone how to answer them. And you’ll never be a competent lawyer.


In a series of five blog essays last week, I accused two lawyers from the Attorney General’s Office of violating the Rules of Professional Conduct that govern all attorneys. I also described how their bureaucratic colleagues got involved in the scheme to cover up their misconduct.

Here's how the story began:  During 2015-16, I was the Assistant Attorney General assigned to serve as chief legal advisor to Western Washington University. On March 2, 2016, I filed a complaint about a homophobic encounter with my immediate supervisor that appeared to be part of a pattern of implicit and explicit bias in the office. After going through each step of the the State’s elaborate contracting process, the Attorney General’s Office hired Patrick Pearce, a licensed private investigator from the Seattle firm Ogden Murphy Wallace PLLC, to look into my complaint about discrimination based on sexual orientation. 

I'm an experienced gay rights lawyer. Everyone knew I was communicating with the investigator about my discrimination complaint ex parte, meaning without any other attorney being present or authorizing each communication. [Ed. Note: Click here for a timeline describing the relevant events in Spring 2016, including copies of emails and other documents produced by the Attorney General's Office under Washington's robust Public Records Act.]

What made the two government attorneys’ conduct unethical – and violated Rule of Professional Conduct 4.2’s ban on attorneys directly or indirectly communicating with a person who is represented by an attorney – is they told him to interrogate me about the wrong subject. That's the issue they still haven't spotted.

When I was Western Washington University's general counsel, I reported to an “Education Team Leader” in the Bellingham Office. She reported to the Bellingham Section Chief. She reported to the Regional Services Division Chief. He reported one of a handful of Deputy Attorneys General. They reported to the Chief Deputy Attorney General. He reported to Attorney General Bob Ferguson, who reports to the voters. 

On March 7, 2016, the Division Chief drove across the state to my office at the university in order to hand me two documents. The first was his long-delayed evaluation of my work performance. The second letter, from our Deputy Attorney General, placed me on a mysterious “home assignment.” Neither document stated the reason for this assignment. Neither document referred to my recent complaint of discrimination on the basis of sexual orientation, any other communication, or any other event.  

Personally, I suspect my bureaucratic employers neglected to state any official rationale at the time because they wanted to make sure they had the endorsement of a purportedly “independent” outside investigator before they fired me. Meanwhile, no one from the Attorney General's Office could stand the thought of having me around the office, even for just a few more weeks. 


In any event, the reasons for my house arrest and for their silence don't matter. Washington has a transparent government contract procurement system. The State uses competitive bidding to create a pool of human resources professionals who may conduct personnel investigations on behalf of state and local agencies under the terms of detailed Master Contracts with the State. In March 2016, the Attorney General's Office issued a formal Work Order providing for an expenditure of public funds. 

The Work Order explicitly authorized the Ogden Murphy Wallace firm to investigate my complaint of discrimination on the basis of sexual orientation. And nothing else:


Practicing law in real life seldom resembles television shows and movies about lawyers. Nevertheless, once in a while you come across an actual “smoking gun” document.

This next email is a real-life smoking gun. In October 2017, I finally obtained a copy of this document – belatedly and begrudgingly – from the private investigator the Attorney General’s Office hired to look into my claim of discrimination based on sexual orientation. 

The email is dated March 16, 2016, the day before the first of my two on-one-one interviews with my employers’ private investigator. I’d spoken with Mr. Pearce on the telephone earlier that day, before he sent his email to the two lawyers at the Attorney General's office he was working for:

From:  Patrick S. Pearce 
Sent:  Wednesday, March 16, 2016 3:06 PM
To: Siebs, Kim (ATG); Hanson, Kari (ATG); Esquibel, Shane (ATG)
Subject:  WWU Investigation

All – 

I had a brief phone call with the complainant this afternoon regarding the interview scheduled for tomorrow morning. One of the topics that came up was scope of investigationPer the complainant, he understood the scope was limited to discrimination based on sexual orientation. In looking at the complaint, however, it appears that allegations are made regarding both sexual orientation discrimination and disability discrimination. The complainant did not feel the disability issues were as yet ripe to be addressed.

Per our recent call, my understanding is I am looking at: 1) discrimination based on sexual orientation; and 2) conduct violations regarding interactions with a co-worker on February 26 [sic]. If possible before tomorrow morning’s interview, I’d like to confirm scope and the limitation to: 1) sexual orientation discrimination, and 2) conduct on February 26. I recognize people are out of the office and may not be able to confirm.

Thanks in advance –

Pat Pearce       
                          

When I spoke on the phone with the Attorney General's investigator the day before our interview, I obviously mentioned my disability. By this point, everyone knew about my PTSD diagnosis. 

As I told both the investigator and the Attorney General’s Office at the time, I was not using my complaint about discrimination based on sexual orientation as a vehicle to also accuse my employers of engaging in disability discrimination. To the contrary, I’d come to my senses and was in the process of finding an experienced disability attorney to represent me. But I thought I could handle the sexual orientation stuff myself. I still do. That’s why I wanted to confirm everyone shared the same understanding about the scope of the investigator’s assignment before he began.

During our brief telephone conversation on March 16, 2016, Mr. Pearce and I discussed the upcoming interview regarding my complaint of discrimination based on sexual orientation. Unsurprisingly, we did not discuss any secret complaints about my conduct at work, including my interactions with colleagues.

From the Connecticut Law Blog

The subject of this particular essay is Ms. Hanson's and Mr. Esquibel's failure to spot all three of the key issues presented by our little fact pattern, which we'll call "Roger and the Attorney General's Office." Those three issues are (1) “Roger contends he endured discrimination based on sexual orientation in Fall 2015”; (2) “Roger has disclosed a very serious disability diagnosis to his employers, and so far they've refused to accommodate his disability”; and (3) “Roger’s supervisors have a list of complaints about his conduct at work that they want looked into.” 

There are numerous connections between the three issues. For example, conduct at work related to my disability is protected under both the Washington Law Against Discrimination and the Amercians Act. See, e.g.Riehl v. Foodmaker, Inc.,152 Wn.2d 138, 93 P.3d 930 (2004); Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007). That’s one of the things my disability attorney was trying to talk to their lawyer about. Likewise, some of my supervisors' complaints about my conduct involved incidents that I considered to be examples of homophobia.

These three separate issues overlap because they're all part of the same overall "Roger and the Attorney General's Office" fact pattern. Although their subjects matters are connected in some ways, each significant legal or factual issue requires its own careful analysis.


After six weeks of stonewalling, the Attorney General's Office fired me. At the same time, my employers finally provided my lawyer and me with copies of the Investigation Report. On the first page of his report, the investigator explicitly acknowledged that the investigation involved “two issues: (A) whether Assistant Attorney General Roger Leishman experienced discrimination based on his sexual orientation; and B) whether Mr. Leishman conducted himself appropriately in a March 1, 2016 meeting in his office with his supervisor” and on other occasions. 

The investigator spent most of his report discussing the second issue. The Investigation Report explicitly and repeatedly relied on information obtained during the investigator’s ex parte interrogation. 

Mr. Esquibel and Ms. Hanson's current defense – that the subject matter of my employment lawyer's representation didn't include any of the questions their investigator posed on their behalf when he interrogated me alone in his office for over an hour – is preposterous.


Now is the point in their playbook where we expect the lawyers at the Attorney General’s Office to get all defensive – indignantly asking “Aren’t you the one who said you didn’t want this particular investigator to look into disability issues?” 

Nice try. But a competent employment attorney would have recognized that at least some of my employers' secret performance complaints involved the connection between PTSD and my conduct, including raising my voice after my supervisor accused me of faking my disability. These disputes were all part of the subject matter of my attorney's representation – i.e., "Roger and the Attorney General's Office (excluding Roger's pending complaint of discrimination based on sexual orientation)."

Applying controlling Washington law to these undisputed facts, Rule 4.2 prohibited the investigator from communicating with me regarding these subjects without my lawyer's consent. These ex parte communications violated the Rules of Professional Conduct, regardless of whether or not the same investigator was also tasked with examining my accusations of disability discrimination by my employers, as well as the investigator's original task of looking into my complaint of discrimination based on sexual orientation discrimination. 


Why am I convinced Ms. Hanson's and Mr. Esquibel's ethical lapses are linked to a stunted capacity for issue spotting? Because I've now read Ms. Hanson's response email confirming that she only paid attention to the first paragraph of the investigator's March 16 email: 

From:  Hanson, Kari (ATG) Patrick S. Pearce <OMW>
Sent:  Wednesday, March 16, 2016 4:34 PM
To:  Patrick S. Pearce; Siebs, Kim (ATG); Esquibel, Shane (ATG)
Subject:  WWU Investigation

Patrick, I believe you are correct that disability issues are not within the scope of the investigation. Thank you.

Kari Hanson
Senior Counsel
Labor & Personnel Division

Sure enough, both the investigator's interview notes and his final report conspicuously and implausibly erased my disability from the story.

If Ms. Hanson had carefully read the investigator's entire email, which is helpfully included in the same single-page document as her one-sentence response, Ms. Hanson should have heard alarm bells. If she'd exercised the issue-spotting skills of a first year law student, Ms. Hanson would have connected the dots between the conversation the investigator described in the first paragraph of his email, and the additional issues raised by the second paragraph of the same email regarding the true scope of the investigation. 

As you can see, when Ms. Hanson emailed her incomplete response to the investigator's inquiry, she made sure her boss Mr. Esquibel got a copy. These two "smoking gun" emails alone should have shut up the folks from the Attorney General's Office long ago.


If you're a Doubting Thomas and require further evidence of incompetence by the People's lawyers, I can share countless examples of my former colleague's cluelessness when it comes to legal issue spotting. For now, I'll offer a couple of quick ones:

First, just three months earlier, the public learned about a very similar incident of legal malpractice. Relying on incomplete legal advice from another Assistant Attorney General, the Washington Department of Corrections released thousands of prisoners early. 

Governor Inslee subsequently commissioned an outside investigation into the scandal. The investigators identified numerous systemic failures in multiple agencies. Pages 36 through 39 of the final report offer a damning view of the Attorney General's Office's role. I'd also point your attention to three specific items in the report:  the attorney's original obtuse advice about the prisoner release (pp. 15-16); her supervisor's failure to catch the error (p. 17); and another colleague's dishonest attempts to distance himself from the error (pp. 19-20). The Attorney General's Office's issue-spotting problems are old news.

Second, three years after Ms. Hanson and her investigator generated their smokin' pair of incriminating emails, the lawyers from the Attorney General's Office still don't get it.

Despite my careful review of documents produced by Attorney General Office under the Public Records Act, I'd never seen Ms. Hanson's one-sentence email response to the investigator's inquiry regarding the true scope of the investigation. To the contrary, I only learned of her response email's existence in January 2019. Assistant Attorney General Suzanne LiaBraaten included it among the small handful of background documents she submitted to the Office of Disciplinary Counsel along with her "Preliminary Response" to the bar complaints against Ms. Hanson and Mr. Esquibel.

I'd already submitted a copy of the investigator's March 16 email as an exhibit to my bar complaints. Ms. LiaBraaten apparently thought the Office of Disciplinary Counsel would be impressed to see how thoroughly Ms. Hanson addressed the ethical issues presented by the first paragraph of her investigator's email. The lawyers from the Attorney General's Office hoped the state bar association and the courts would ignore the second paragraph of the investigator's email, and conclude Ms. Hanson and Mr. Esquibel could not possibly have violated RPC 4.2.

Seriously. It's lucky I'm not writing fiction, because I couldn't make this up these Keystone Kop legal masterminds.


Maybe the dogged lawyers from the Attorney General’s Office are finally ready to retreat a little. Maybe they’ll acknowledge a “communication disconnect.”

That's not the problem. Well, miscommunications obviously played an important part in this whole fiasco. But they're not one of the legal issues that lawyers from the Attorney General's Office repeatedly failed to spot.  

Employers have an independent affirmative duty to participate in good faith in an interactive reasonable accommodation process. See, e.g., Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 779-80, 249 P.3d 1044 (2011) (“reasonable accommodation envisions an exchange between employer and employee”). In the case of my disability, Respondents’ misconduct prevented the interactive accommodation process from occurring with the benefit of counsel. 

According to the Washington Supreme Court, that’s the exact harm that Rule of Professional Conduct 4.2 is intended to prevent. In re Discipline of Haley, 156 Wn.2d 324 (2006) ("The rule's purpose is to prevent situations in which a represented party is taken advantage of by adverse counsel”). No wonder bar complaints are currently pending with the Washington State Bar Association. Someone needs to protect the public from these unethical and incompetent lawyers.


Up next: "What Happened"

Friday, July 12, 2019

Toxic Entitlement


Patrick Shanahan, the former Boeing executive currently serving as Acting Secretary of Defense, recently withdrew his nomination to be appointed to the job permanently. Shanahan attributed his decision to “a painful and deeply personal family situation from long ago.”

In an article in the online magazine Slate entitled “When Bright Futures Outshine Dark Pasts,” lawyer-journalist Dahlia Lithwick “reminds us of exactly who gets off easy, and why.” Eight years ago in Florida, after Shanahan’s 17-year old son William got into a heated argument with his mother, the boy grabbed a baseball bat and swung it at her head, striking her multiple times. William left his mother in a pool of blood, unplugged the phone so no one could call 911, and ran away.

According to Lithwick, “As the 17-year-old fled the scene, his father first booked a flight to Florida and then a hotel room, where for four days he stayed with his son as he assembled a team of lawyers and attempted to recruit family members to assist in keeping William out of jail.” It’s hard to imagine an economically disadvantaged or African-American teen similarly avoiding arrest for days.

After William finally turned himself in, Shanahan’s crack legal team argued for leniency. His lawyer told the judge, “He’s a college baseball prospect. He has dreams. He has a future.” Two years later William enrolled at the University of Washington – where his father had recently joined the Board of Regents, and where his grandfather served as the university’s longtime police chief.

Lithwick offers this “definition of privilege”:  “the power to beat your mother to a pulp using the selfsame $400 Nike composite baseball bat that will be used to argue for your bright future the following week in court.”

The rule of law is a delicate social compact. We recognize the legal system treats certain privileged individuals differently, whether it's wealthy baseball prospect William Shanahan, billionaire serial child rapist Joseph Epstein, or my law school classmate Supreme Court Justice Brett Kavanaugh. But we hope this implicit and explicit bias is not enough to quash the dream of equal justice for all. One of the most alarming developments of the Trump Era is how quickly the career attorneys at the United States Department of Justice sacrificed their integrity to serve as a corrupt demagogue's personal law firm.



After my own efforts to communicate with my employers about my disability were unsuccessful, I hired Sean Phelan of the Seattle employment firm Frank Freed Subit & Thomas. Ms. Phelan is an expert in disability, mental illness, and reasonable accommodation issues. On March 29, 2016, my attorney spoke with Assistant Attorney General Kari Hansen, the employment attorney designated by Chief Deputy Attorney General Shane Esquibel to represent the State in this matter. For the next six weeks, Ms. Phelan attempted to engage Ms. Hanson in the interactive good faith dialogue about my disability that all employers are required to participate in under the Americans With Disabilities Act and the Washington Law Against Discrimination. Ms. Hanson failed to respond to Ms. Phelan’s repeated inquiries.

Meanwhile, these same lawyers, at tax-payer expense, had me interrogated alone in the offices of their licensed private investigator about the subject matter of my representation by Ms Phelan. The Attorney General’s Office relied on statements I made during that interrogation when they illegally terminated my employment a few weeks later. 

As I recently recounted in “Bar Discipline,” the Washington State Bar Association has jurisdiction over individual Washington lawyers who violate the Rules of Professional Conduct. Rule of Professional Conduct 4.2 prohibits lawyers from directly or indirectly communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer. On December 18, 2018, I filed bar complaints with the Washington State Bar Association contending that Mr. Esquibel and Ms. Hanson violated the Rules of Professional Conduct.

When I was in private practice, including when I served on the Board of Governors of the state bar association, legal ethics was one of my areas of expertise. I’ve worked closely with many of the Washington lawyers who practice in this area. After I filed my bar complaints against Mr. Esquibel and Ms. Hanson, I wondered who they would hire to represent them. 


Washington has very strict laws prohibiting the use of public resources for private benefit. Government attorneys in the Attorney General’s Office are therefore forbidden from representing private individuals. 

According to the Washington Constitution, “The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.” Const. art. 3, § 21. Under statutes passed by the Legislature decades ago, the Attorney General’s Office provides representation to State employees who are sued for damages or for other relief in their official capacities, including in proceedings before administrative tribunals. RCW 43.10.030(3); RCW 43.10.040. 

The question presented by my former colleagues’ conduct is whether public resources may be used to respond to a bar grievance or an ethics complaint against an individual State employee for engaging in alleged misconduct as they perform their official duties. And the answer is no.

In 2003, the Honorable Richard B. Sanders, then a Justice of the Washington Supreme Court, was on an official visit to one of Washington's correctional facilities. During the visit, Justice Sanders met privately with defendants whose appeals were pending before the Court and discussed their cases. A complaint was subsequently filed in the Judicial Conduct Commission alleging that Justice Sanders engaged in improper ex parte contacts by meeting with one party from a case without the other parties or their lawyers being present. 

The Commission investigated the complaint and subsequently charged Justice Sanders with violating the Code of Judicial Conduct. While the Commission was investigating the complaint, the prior Attorney General refused Justice Sanders’ request for legal representation at tax-payer expense. In April 2005, the Commission issued a decision holding that Justice Sanders had violated the Code. The Commission imposed the sanction of admonishment, and Justice Sanders appealed. The Washington courts upheld the Commission’s sanction, and the United States Supreme Court denied review. See In re Disciplinary Proceeding Against Sanders, 159 Wn.2d 517, 145 P.3d 1208 (2006).  

Justice Sanders then demanded that the State reimburse him for his substantial legal expenses incurred in connection with the ethics complaint. The previous Attorney General, the Thurston County Superior Court, the Court of Appeals, and the Washington Supreme Court each rejected Justice Sanders’ argument that the State could and should use public funds in connection with the ethics complaint because the alleged misconduct occured while Justice Sanders was at work. According to our Supreme Court,  

Justice Sanders was charged in the complaint before the Commission with ethical violations involving acts that are outside the scope of a judge's official duties. His acts involved contact with offenders who had cases pending in his court. Representation of a judge being disciplined for ethical violations is beyond the purpose of RCW 43.10.040. Its purpose is to provide defense to an official when engaged in official acts. Justice Sanders knew or should have known that his conduct was unethical; therefore, he is not entitled to representation. 
Sanders v. State, 166 Wn.2d 164, ¶¶ 18, 207 P.3d 1245 (2010) (emphasis added). 

The Court also rejected Justice Sanders' argument that "denying representation could leave a judge vulnerable to improper or unfounded charges of ethics violations." According to the Court, "if a judge is wrongly charged, however, there are adequate safeguards within the Commission's procedures. Before a case may proceed to hearing, there must be a screening, a preliminary investigation, and a finding of probable cause." Id. at ¶ 19.


Both the Washington State Bar Association and the Executive Ethics Board provide the same kind of due process safeguards as the Judicial Conduct Commission. In fact, the Office of Disciplinary Counsel has already screened my bar complaints against Mr. Esquibel and Ms. Hanson and determined that they allege violations of the Rules of Professional Conduct subject to WSBA’s jurisdiction. 
In 1926, the Washington Supreme Court rejected the argument that the Attorney General may 

sit supinely by and allow state officers to violate their duties and be recreant to their trusts, and that instead of preventing such actions it is his duty to defend the delinquents. The law can not be given any such construction. His paramount duty is made the protection of the interest of the people of the state and, where he is cognizant of violations of the constitution or the statutes by a state officer, his duty is to obstruct and not to assist….

State ex rel. Dunbar v. State Board of Equalization, 140 Wash. 433 (1926) (emphasis added). The number of State employees has proliferated over the last century. But Washington’s values have not changed.



In Washington today, the Judicial Conduct Commission handles complaints about individual judge’s conduct. The Washington State Bar Association resolves complaints of unethical conduct by individual lawyers. The Executive Ethics Board has jurisdiction over allegations of misconduct by employees in the executive branch of government, including the Attorney General’s Office. And the elected State Auditor provides citizens with independent and transparent examinations of how state and local governments use public funds.

Both the State Auditor and the Executive Ethics Board take the misuse of public resources very seriously. For example, in one case the Board fined a former Assistant Attorney General $500 for using government office equipment to prepare an eleven-page filing for his wife’s private lawsuit. 

Like the Judicial Conduct Commission complaints against Justice Sanders, my bar complaints contend that Chief Deputy Attorney General Shane Esquibel and Assistant Attorney General Kari Hanson engaged in improper ex parte contacts during the course of their work for the State. Their actions violated Rule of Professional Conduct 4.2, which applies to all Washington attorneys, including lawyers working for the government.

As with the ethics complaint against Justice Sanders, no Washington statute authorized the Attorney General’s Office to use public resources for Mr. Esquibel’s and Ms. Hanson’s personal benefit. Like any other individual attorney accused of unethical conduct, they could have hired lawyers to defend them at their own expense, or chosen to represent themselves. 
Instead, Mr. Esquibel and Ms. Hanson asked their colleagues from the Attorney General’s Office to respond to the bar complaints, lying about their conduct at tax-payer expense. According to invoices provided under the Public Records Act, three attorneys employed by Attorney General Bob Ferguson, including the office’s ethics expert, have been involved. As of April 4, 2019, these supposed public servants had already provided over sixty hours of legal services to Mr. Esquibel and Ms. Hanson for their purely private benefit.
I sent a letter to each of the affected attorneys, alerting them to these ethics violations. They never responded. This month I therefore submitted whistleblower complaints to the Executive Ethics Board and the State Auditor challenging this illegal practice. Under the Supreme Court’s ruling in Sanders v. State, these watchdog authorities should conclude that public resources were illegally expended for private benefit when representatives of the Attorney General's Office provided free legal services to defend their ethically-challenged colleagues.

No doubt representatives of the Attorney General’s Office and supporters of Bob Ferguson’s gubernatorial campaign will respond to these accusations by blaming the victim – describing me as a “crackpot,” and dismissing the detailed allegations in my bar complaints and my whistleblower submissions as the rantings of a disgruntled former employee with an axe to grind. As Dahlia Lithwick observed in a Slate article yesterday about how billionaire Joseph Epstein obtained a sweetheart plea deal after raping dozens of women and children, blaming the victim is standard operating procedure when powerful men are called to account for their misconduct.

I’ll let the facts speak for themselves. I may be "crazy," but I'm not crazyI can read the Washington Supreme Court's ruling in the Sanders case, as well as the plain language of emails[Ed. Note: Click here for a timeline describing the relevant events in Spring 2016, including copies of emails and other documents produced by the Attorney General's Office under Washington's robust Public Records Act.] I just hope these ethics tribunals have enough respect for the rule of law that they will examine the evidence and apply the law fairly, without regard to the identity of the individuals involved.

Actually, this is one of those rare occasions when I’d like to take things personally. It appears that something about me has gotten under the skin of my former colleagues at the Attorney General’s Office. Maybe some kind of “Roger Derangement Syndrome” can explain the repeated ethical lapses by multiple experienced attorneys for the State, including Bob Ferguson’s top lieutenant. Sorta like how each of the Clintons and then Barack Obama evoked powerful yet irrational responses from so many supporters of their political opponents. (FYI, there’s no such thing as “Trump Derangement Syndrome,” because it’s impossible for opponents to over-react to this dumpster fire/threat to the Republic. All the derangement is going on within the GOP.)

Sadly, I’m afraid it’s not me, it’s you, Bob – or at least it's the Attorney General’s Office you preside over. Although many of the State’s attorneys are dedicated and competent public servants, other lawyers have contributed to a pattern of malpractice and dishonesty in such diverse matters as missed deadlines, the recent fiasco of advising the Department of Corrections to release dangerous inmates early, and the agency’s “role in a secret plan to destroy” incriminating emails exchanged between the State’s lawyers and their outside experts in the Oso mudslide litigation.

Perhaps most disturbingly, the Attorney General's Office has a pattern of automatically denying any possible wrongdoing until their conduct is scrutinized by an objective outside observer, and even after. What will it take to end this attitude of toxic entitlement? And this culture of incompetence, defensiveness, and dishonesty?




Coming up next: "Issue Spotting"


















Thursday, July 11, 2019

"7-Eleven Law School is accredited!"


Both my parents read Michelle Obama’s autobiography this year. My father paused to read aloud a passage to me:

“I hated being a lawyer. I wasn’t suited to the work. I felt empty doing it, even if I was plenty good at it. This was a distressing thing to admit, given how hard I’d worked and how much debt I was in. In my blinding drive to excel, in my need to do things perfectly, I’d missed the signs and taken the wrong road.”


I’ve written at least a couple of times, in "Lilies That Festerand "Some Days We Are All Less Smart," about how practicing law can be not just a bad fit, but damaging to many people’s mental health. In my case, the legal profession pushed all kinds of fraught buttons. In particular, lawyers can easily enter into an unhealthy relationship with the truth. 

In my final years of practice I found myself exposed to a shocking proportion of dishonest lawyers. Maybe I’d just been spoiled because I’d spent my career litigating cases that were in federal court, or where everyone pretended they were in federal court. Maybe the legal profession simply got coarser over the last two decades. Or maybe I’d just never been associated with a second-rate legal organization before I had the misfortunate of accepting the job with the Washington Attorney General’s Office that gave me PTSD.


Eventually I decided that I’d made enough progress with my PTSD to go back and figure out what happened. Internal documents produced by the Attorney General’s Office under Washington’s robust Public Records Act further corroborated my accusation that my former employers engaged in a pattern of incompetence and dishonesty both before and after they wrongfully terminated my employment. 

Among other irregularities and ethical lapses, I discovered that in course of bungling the State’s response to my disability disclosure, the Attorney General Office’s senior employment lawyers – including Attorney General Bob Ferguson's top lieutenant – violated the Rules of Professional Conduct when they directed their private investigator to interrogate me alone in his office, even though they knew I was represented by an attorney. When they realized their error, they stonewalled my attorney’s repeated inquiries, and embarked on a clumsy coverup.

In December 2018, I filed bar complaints regarding the conduct of the two experienced employment lawyers who were involved in violating RPC 4.2:  Chief Deputy Attorney General Shane Esquibel and his flunky Assistant Attorney General Kari Hanson. These bar complaints are currently pending with investigators at the Office of Disciplinary Counsel of the Washington State Bar Association. 


Every three years, lawyers in Washington have to report that they’ve attended 45 hours of Continuing Legal Education. Because I’ve been working at home instead of at some cushy firm, for the first time in my career I found myself up against the deadline. To finish my CLE requirements, I bought the cheapest possible video lectures online. They’re videotaped in a conference room in New Jersey. I spent New Year's Eve at home alone with a bottle of wine and a presentation on lawyer ethics.

Maybe it was the wine, but the ethics instructor turned out to be a pretty good story-teller. At one point he described his encounter with an Ivy League lawyer from a fancy New York law firm. While waiting together for a hearing, this lawyer sneered that his opposing counsel had gone to “7-Eleven Law School.” The ethics instructor, who indeed graduated from a law school you haven’t heard of, replied “Hey – 7-Eleven Law School is accredited!” Then the two men walked into the courtroom, and watched the expensive big firm lawyer get a dressing down from the judge because he’d been playing games with the truth.  

Being a good lawyer is not about where you went to law school, or even how smart you are. What kind of lawyer you are ultimately depends on what kind of person you are. And I don’t want to be the kind of person or lawyer who can’t recognize the truth.


Mr. Esquibel and Ms. Hanson asked their colleagues from the Attorney General’s Office to defend them against the bar complaints. Assistant Attorney General Suzanne LiaBraaten, who was already familiar with the record from my separate lawsuit against the private investigator firm, appeared on behalf of Mr. Esquibel and Ms. Hanson.

Being a lawyer is a moral hazard. There's always a tension between our duty of “vigorous advocacy” on behalf of the client, and our duty of “candor to the tribunal.” Everyone recognizes there can be grey areas. But not as much grey as some lawyers delude themselves into seeing.

On January 18, 2019, Ms. LiaBraaten submitted a “Preliminary Response” to the bar complaints against her colleagues. Ironically, her clients had no obligation to provide such a statement to the Office of Disciplinary Counsel, because their investigation had already been predictably and routinely stayed pending the resolution of related proceedings. Nevertheless, Ms. LiaBraaten signed a ten-page document purporting to describe events that occurred almost three years before, long before she was involved in the case herself.

The Attorney General’s Office and its investigator had already produced numerous emails and other documents establishing the timeline of events. Ms. LiaBraaten had seen at least some of these materials, and she had access to all of them. However, instead of trying to get at the truth herself, or attempting to defend her colleagues/clients consistently with the undisputed factual record, Assistant Attorney General Suzanne LiaBraaten just made shit up. 


As I wrote yesterday in “Bar Discipline,” there is an irreconcilable conflict between what the State’s lawyers told my attorney and me about the scope of the investigation, and what they told each other. I finally discovered Mr. Esquibel and Ms. Hanson’s role in the secret expansion of the investigation assignment when the private investigator firm belatedly produced a copy of a March 16, 2016 email between the attorneys and their investigator. 

If we had known the true scope of the investigation assignment, my employment attorney and I would have acted differently. I certainly would not have submitted to a hostile interrogation without my counsel being present. However, as Ms. LiaBraaten disingenuously acknowledged to the bar investigators, “disability issues” were “not within the scope of the investigation” into my sexual orientation discrimination complaint. Preliminary Response at 4. Unsurprisingly, I therefore did not “assert at the time that Ms. Phelan represented [me] in connection with the investigation.” Id. at 8.

In contrast with my complaint of discrimination based on sexual orientation, “disability issues” are related to the secret second subject of the investigation:  employer objections regarding my conduct while employed at the Attorney General’s Office, including my supervisor’s complaint about our interaction on March 1, 2016. Ms. LiaBraaten's statement that “the investigation conducted by Mr. Pearce was not concealed from Mr. Leishman or Ms. Phelan,” id. at 7, is simply false.

Finally, Ms. LiaBraaten represented to the bar investigators that that “the reasonable accommodation process was placed on hold while Leishman was on home assignment.” Id. at 3 n.3. That is a lie

An employer does not have the authority to unilaterally place a secret "hold" on the disability reasonable accommodation process required by the Americans with Disabilites Act and the Washington Law Against Discrimination. As detailed in “Bar Discipline” and in the timeline of documents produced by the Attorney General’s Office, my attorney repeatedly attempted to negotiate with the State’s lawyers about reasonably accommodating my disability. In response, Ms. Hanson stonewalled for six weeks – until the State’s lawyers could illegally fire me based on their investigator’s tainted report. Then for the next six months, Mr. Esquibel and Ms. Hanson knowingly failed to mitigate the harms caused by their unethical conduct. 

That’s the kind of Attorney General’s Office we have in Washington:  incompetent, defensive, and dishonest.


In my case, the State’s top employment lawyers made an embarrassing human resources mistake when they purported to expand the scope of a personnel investigation Work Order without thinking through the implications of their action. Then they failed to inform the target of the investigation, and instead had him improperly interrogated without his attorney present. At each step of the way, the lawyers of the Washington Attorney General’s Office refused to acknowledge the possibility of any wronging. Instead, Mr. Esquibel, Ms. Hanson, and their lawyer lied about their unethical conduct.  

I wonder how many other, less privileged discrimination victims have been treated the same way by Bob Ferguson’s trusted subordinates? Or worse? Isn’t this the kind of sleazy lawyering we would expect from the Donald Trump / Bill Barr Department of Justice, not from the Attorney General of Washington?



Up tomorrow:  "Toxic Entitlement"

After each episode of Game of Thrones, the online magazine Slate asks “who is currently the worst person in Westeros?” “Westeros” is the fictional continent whose throne everyone is fighting over on HBO. “Western” is the shorthand everyone in Bellingham uses to refer to our community anchor, Western Washington University. My former employers at the Washington Attorney General’s Office hired me to serve as Western’s chief legal advisor, then spent the next year abusing and discriminating against me. When I’d made enough progress with PTSD to share some of the stories about my experiences, I decided to borrow Slate’s framing device. Stay tuned to see who will ultimately be crowned as the Worst Person in Western-eros…. 


Click here for other episodes of "Who is the Worst Person in Western-eros?"



Wednesday, July 10, 2019

Bar Discipline


Here’s a quick pop psychology test:  If I ask what you think of when you read the phrase “Bar Discipline,” would it be:






A.  Gymnastics practice







B.  Resisting that one drink too many








C.  The theme of an upcoming party at 
       a sketchy gay club.







D.  A Lawyer Dominatrix's speciality







Any lawyer's response will be "None of the above." Not even the dominatrix.

Because for an attorney, the phrase "Bar Discipline" means only one thing:  Someone has filed a complaint with the bar association accusing a lawyer of doing something unethical. And if the complaint is upheld, that attorney could be suspended from practicing law, or even disbarred. 


Lawyers are special. Not as special as we think we are, of course. But we can do things no one else is allowed to do. We’re even a “self-regulating” monopoly. In Washington, all attorneys are members of the Washington State Bar Association. WSBA’s mission is “to serve the public and the members of the Bar, to ensure the integrity of the legal profession, and to champion justice.” 

Among other functions, WSBA administers the state’s lawyer attorney discipline system. For example, last year individuals submitted 1,965 grievances regarding lawyer conduct. As it turns out, most grievances do not involve alleged professional misconduct. Instead, they relate to purely private complaints about the attorney or the disputed legal matter, and are beyond WSBA’s jurisdiction. In most cases, the WSBA staff send the grievants a letter saying the bar association can’t help them, and the complaint is dismissed before the attorney even knows it was filed. 

In a small percentage of cases, WSBA staff determine that they have jurisdiction over the complaint, and they open an investigation into the allegedly unethical conduct. Some of these cases are resolved by agreement. If not, and if the Office of Disciplinary Counsel concludes the lawyer violated one of the Rules of Professional Conduct and there is sufficient evidence to prove a violation occurred, the complaint will be set for hearing. The Office of Disciplinary Counsel acts as prosecutor. Accused lawyers generally represent themselves, or they hire a Washington lawyer who specializes in professional responsibility issues. Complaints are adjudicated before one of the bar’s volunteer hearing officers. Their rulings are reviewed by the court-appointed Disciplinary Board. The State Supreme Court retains ultimate authority over lawyer discipline.


In “Losing My NEXUS Pass,” I wrote about an incident at the border last year where the overzealous boy scouts at US Customs and Border Patrol concluded I was a dangerous drug smuggler. They detained me in a windowless room until a sheriff’s deputy arrived. He began by reading me my Miranda rights.

The Miranda warnings originated in a 1966 United Supreme Court case called Miranda v. Arizona. I’ve been a lawyer for 28 years, including as an attorney with the American Civil Liberties Union. I’ve also seen a lot of TV and movies. I can recite the Miranda warnings by heart. ("You have the right to an attorney....") But I’d never heard them directed at me personally.

The deputy ended his speech by asking if I’d like to answer some questions. Various thoughts ran through my head: “Surely there’s been a terrible misunderstanding?” “Aren’t lawyers just for guilty people?” “Is anyone who represents himself an idiot?” “Where will the kids go after school tomorrow if I’m in jail?”

I told the deputy “I guess it depends on the question.”

That experience got me got me thinking about the importance of having a lawyer when it really matters. And not just in criminal matters. Having the benefit of lawyer is so important that if another attorney knows you’re represented by counsel, it’s a very serious ethical violation to talk to you about anything related to the representation without your attorney being present.

Washington Rule of Professional Conduct 4.2 states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

RPC 4.2 applies both to conduct by individual attorneys as well as to conduct by others on the lawyer’s behalf. For example, under RPC 8.2(a), a lawyer may not “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” RPC 5.1(c) further provides “a lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:

   (1)  the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

   (2)  the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

RPC 4.2 is essential to public confidence in the integrity of the legal profession. According to the Washington Supreme Court,

As the comment to model rule 4.2 explains, the rule aims to protect those represented by counsel “against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.” In Carmick, we acknowledged that “[t]he rule's purpose is to prevent situations in which a represented party is taken advantage of by adverse counsel.” 

In re Discipline of Haley, 156 Wn.2d 324 (2006) (citations omitted). The presumptive sanction for a violation of RPC 4.2 is a suspension from practicing law. 


After I was diagnosed with PTSD in November 2015, I informed my employers about my diagnosis, and asked them to consider a reasonable accommodation of my disability. As the cliché goes, a lawyer who represents himself has a fool for a client. In my defense, I was dealing with a serious medical issue. I was also being gaslighted at work and harassed by inept and xenophobic bureaucrats who were blinded by confirmation bias.

Recognized my own negotiation efforts were futile, in March 2016 I hired Sean Phelan of the Seattle employment firm Frank Freed Subit & Thomas. Ms. Phelan is an expert in disability, mental illness, and reasonable accommodation issues. On March 29, 2016, my attorney spoke with Assistant Attorney General Kari Hansen, the employment attorney designated by Chief Deputy Attorney General Shane Esquibel to represent the State in this matter. For the next six weeks, Ms. Phelan attempted to engage Ms. Hanson in the interactive good faith dialogue about my disability that all employers are required to participate in under the Americans With Disabilities Act and the Washington Law Against Discrimination. Ms. Hanson failed to respond to Ms. Phelan’s repeated inquiries.

Meanwhile, these same lawyers, at tax-payer expense, had me interrogated alone in the offices of their licensed private investigator. The Attorney General’s Office then relied on statements I made during that session when they terminated my employment a few weeks later.

Can an ethical lawyer do that? No.  


On December 18, 2018, I filed bar complaints regarding the conduct of Ms. Hanson as well as her supervisor Mr. Esquibel, contending that they violated Rule 4.2 when they directed their investigator to interrogate me even though they knew I had hired a lawyer to represent me in my employment dispute. 

After conducting its preliminary review, the Office of Disciplinary Counsel determined it had jurisdiction over my bar complaints, and opened an investigation. Lawyers for the state – at tax-payer expense – submitted a preliminary response on behalf of the two individual attorneys. I will let the parties’ statements and the undisputed documentary record speak for themselves. [Ed. Note: click here for a timeline describing the relevant events in Spring 2016, including copies of emails and other documents produced by the Attorney General's Office under Washington's robust Public Records Act.]

At the request of the Attorney General’s Office, and over my objection, the Washington State Bar Association’s investigation into my bar complaints is currently on hold, pending the final resolution of my separate lawsuit against the private investigator firm hired by the state’s attorneys to interrogate me. The Attorney General's Office prefers to delay these proceedings for years – even though the facts described in my bar complaints are undisputed, the complaints involve Attorney General Bob Ferguson’s top lieutenant, and the presumptive sanction is suspension.

Unfortunately, that’s how “serving the public” works in a self-regulating profession. Perhaps we need a little more self-discipline.



Coming up tomorrow: "7-Eleven Law School is accredited!"


After each episode of Game of Thrones, the online magazine Slate asks “who is currently the worst person in Westeros?” “Westeros” is the fictional continent whose throne everyone is fighting over on HBO. “Western” is the shorthand everyone in Bellingham uses to refer to our community anchor, Western Washington University. My former employers at the Washington Attorney General’s Office hired me to serve as Western’s chief legal advisor, then spent the next year abusing and discriminating against me. When I’d made enough progress with PTSD to share some of the stories about my experiences, I decided to borrow Slate’s framing device. Stay tuned to see who will ultimately be crowned as the Worst Person in Western-eros…. 

Click here for other episodes of "Who is the Worst Person in Western-eros?"