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 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"

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