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 back seat 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, Seattle’s sleaziest bottom-feeding law firm®,” 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 or Western Washington University 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"

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