Monday, October 21, 2019

This is what "Impact Litigation" Looks Like

For a January 2023 update of my story, including the current status of my lawsuits against the State and its co-defendants, go to “Starting Over.” 

Today begins an exciting new phase in my lawsuit against Ogden Murphy Wallace PLLC, the Seattle private investigator firm that collaborated with my former employers at the Washington Attorney General’s Office to harm my family and me. 

It’s been a long and winding journey through the legal system. Now I'm in front of the Washington Supreme Court. I hope my case can have an even greater impact in the lives of other people living with disabilities, and other victims of dishonest and unethical lawyers.

A disabled attorney arguing before the Washington Supreme Court

In November 2015, my doctor diagnosed me with Post-Traumatic Stress Disorder. My symptoms were triggered by recent events, but they were rooted in trauma that occurred thirty years ago. Unfortunately, my employers thoroughly bungled their response to my disability. 

My distress significantly increased after my employers hired a purportedly "independent" attorney/private investigator. He was supposed to look into a specific discrimination complaint challenging homophobic bias in the workplace. This investigator was the only lawyer dealing directly with me. He had the last clear chance to avert disaster. Instead, he collaborated with unethical lawyers at the Washington Attorney's Office in a scheme to deprive me of the benefit of the disability attorney I'd hired. Then they schemed to cover up their misconduct.

But the attorney-investigator's ethical lapses were just a marketing gesture to please his agency clients. The investigator's actual taxpayer-funded assignment was to lie to me, to accommodate my employers' prejudices, and to secretly focus his investigation on phony supervisor complaints about my conduct. The final investigation report whitewashed my employers' abuse, and clumsily attacked my character. 

The investigator's name was Patrick Pearce. He's a partner in the Seattle firm Ogden Murphy Wallace PLLC, Seattle’s sleaziest bottom-feeding law firm®.”

Like the federal judiciary, the Washington court system has three levels. Superior Court is our trial court with general jurisdiction. After unsuccessfully reaching out to Ogden Murphy’s managing partner in an effort to clear my name, in May 2017 I filed my Complaint against Defendants in King County Superior Court.

Unfortunately, the trial judge quickly threw out my Complaint out on a frivolous technicality. Without reaching the merits of my allegations regarding lawyer-investigators, the judge agreed with Defendants that each of my legal claims was automatically barred by a Washington statute, RCW 4.24.510.

The Legislature passed the “Brenda Hill Bill” in 1989 to protect private citizens like Ms. Hill who voluntarily report misconduct to the appropriate government agency, then face grinding legal retaliation by the wrongdoers. The trial judge in my case erroneously concluded that this law also grants absolute immunity from civil liability for any injuries caused by paid government vendors during the course of their contractual engagements. The lower court also ordered me to compensate defendants as supposed "whistleblowers" under the statute, which obviously would have bankrupted me.

King County Courthouse

The party who loses in Superior Court has the right to appeal to Washington’s intermediate appellate court. The Court of Appeals is an “error-correcting” court. Unlike frantic and under-resourced Superior Court judges, the Court of Appeals judges and their clerks have time to carefully examine the record and the applicable legal authorities. Lots of time.

After a long and painful delay, on September 3, 2019, a three-judge panel of the Court of Appeals issued a published opinion reversing the lower court’s ruling. The Court of Appeals also vacated the cruel judgment ordering me to pay for all of the other side’s legal expenses. I am grateful for the Court’s vindication.

Washington Court of Appeal, Division I

After the Court of Appeals rejected Ogden Murphy’s arguments, I once again offered to settle my damage claim out of court for a reasonable amount. Instead of responding to my offer, Defendants filed a petition seeking discretionary review in the Washington Supreme Court. 

In most Washington cases, the Court of Appeals has the final word. Like the United States Supreme Court, the Washington Supreme Court accepts only a small number of appeals each year. Unsuccessful civil litigants like Ogden Murphy have less than a ten percent chance of attracting the Court’s interest. Nevertheless, like virtually every other petitioner, Defendants argue that the lower court’s ruling in this case involves not just a clumsy legal error but also a tremendous miscarriage of justice that puts every Washington citizen in dire peril. (Go ahead, read Defendants’ overzealous Petition for Review for yourself.) You and I both know Defendants and their insurance defense lawyers are merely stalling.

Ordinarily, this is what would happen next:  The successful appellant – that’s me – would file an Answer to Defendants’ Petition for Review after thirty days. (Actually, what ordinarily would happen is that Roger would ask for a thirty-day extension – but that was the old Roger.) My Answer would explain how the Court of Appeals got everything perfectly right, and besides this case involves such a messy yet simultaneously boring can of worms that the Justices shouldn’t worry their pretty be-wigged heads over it. On the first Tuesday of March 2020 (or maybe the first Tuesday of February or April), a panel consisting of five of the nine Justices will meet behind closed doors to work through a month's worth of Petitions, Answers, and staff analyses. After discussing a stack of approximately fifty cases, the Justices will vote to hear around five appeals, and deny the other forty-five Petitions. My case would almost certainly be one of the rejected forty-five. Defendants and I would go back to the same old trial judge, and we’d all start the case over from scratch. 

However, as I’ve tried to tell mostly unlistening audiences from the beginning, this is no ordinary caseToday I filed my Answer to Defendants’ Petition for Review – two weeks early

Unlike an error-correcting tribunal, the primary role of the Washington Supreme Court is to answer legal policy questions and provide high-level guidance to lower courts and litigants. But the Court can only make legal rulings when they’re asked to resolve a real dispute between two opposing parties. In my Answer, I therefore joined Ogden Murphy in asking the Washington Supreme Court to take review. I agree with Defendants that this case presents important issues of substantial public interest that should be determined by our Supreme Court.

Another disabled attorney arguing before the Washington Supreme Court

In this case I am both the lawyer and the litigant. But nowadays I think of myself as a writer.

Over the last three decades I’ve written or edited countless Petitions for Review and Answers. For its first seventeen pages, my Answer resembles all those other briefs – properly characterized allegations, accurately cited authorities, transparent and logical arguments, elegant but tediously legal prose. A well-written but normal brief. For example, I refer to myself in the third person as “Plaintiff” and “Leishman.” You can read my entire Answer to Defendants’ Petition for Review for yourself. You’ll probably think it’s boring. 

However, the conclusion of my Answer differs from every brief I’ve ever filed with a court:

At this point I will abandon the third person mask, and speak directly to the justices of the Washington Supreme Court. Not because I appeared before you as an advocate before I was sidelined by my disability, nor because we previously collaborated in the work of the bench and bar – but because as an honest plaintiff and lawyer I want you to know exactly what kind of wormy case this is before you decide whether to open the can and accept review at the suspiciously enthusiastic request of both parties.

Washington courts and litigants would indeed benefit from the Court’s guidance regarding the Brenda Hill Bill, potentially justifying a few additional months of painful delay for my family. But to make the subtext explicit, I am joining Defendants’ request for review because this case also involves two vexing perennial issues:  the systemic challenges faced by litigants who can't afford a lawyer, and the decline in professionalism by members of the bar.

After I settled my employment claims against the State with the help of my attorney Ms. Phelan, I reached out to Ogden Murphy’s managing partner in an effort to clear my name. I naively believed this was all a horrible misunderstanding. In my defense, (1) I was still addled by PTSD; (2) while in private practice I never had the misfortune of encountering faux independent attorney-investigators who lied about their assignments; and (3) I had not yet obtained copies of the Attorney General's Office’s incriminating documents via the Public Records Act. In any event, Defendants responded by lawyering up.

On the surface, this lawsuit appears to be just another factually messy and time-consuming case involving too many lawyers and an impaired pro se plaintiff. Two years ago, distinguished Seventh Circuit Judge Richard Posner shocked the legal world by announcing his retirement from the federal bench because he “suddenly realized that people without lawyers are mistreated by the legal system, and he wanted to do something about it.” Under the circumstances, it is sad but not surprising that a busy trial court judge grasped at the slimmest of reeds to get rid of us. I filed this pro se lawsuit in May 2017. That means that if the Court denies review in the ordinary course of things, I will be starting over from scratch in Superior Court after waitinthree years. Fortunately I have a strong support system, much improved mental health, and appellate expertise. How many less privileged pro se litigants are mowed down each year by the weaponizing of RCW 4.24.510 and similar miscarriages of justice?

This case also demonstrates what happens when lawyers routinely lie and judges do not stop them. Together with their high-ranking collaborators at the Attorney General's Office, Defendants lied to me about the scope of their investigation. Complaint at ¶ 44. Defendants then lied to the Court of Appeals about the undisputed record documenting their misconduct. See Appellant’s Reply Brief at 7-8 (citing Respondents' Brief at 13 n.5). Now Defendants are lying to this Court about the actual allegations of my Complaint.

Like Defendants and their cynical lawyers, I do not expect the Court to accept review of the Court of Appeals’ straightforward and sound ruling. Nevertheless, despite the continuing harm to my family from Defendants’ delay tactics, I hope that you do choose to shine the bright light of justice on this particular story.

As I’ve written on my blog, one of my epiphanies after being diagnosed with PTSD was recognizing that the fight for full inclusion of disabled people hasn’t progressed much further than where LGBT folks were when I began advocating for that community over two decades ago. In particular, few plaintiffs living with mental illness have the capacity to engage in a coordinated campaign of public education and impact litigation. Someone has to do it. This Court should accept review, and affirm the decision of the Court of Appeals.

The Washington Supreme Court

I realize there’s a risk the Supreme Court will reverse my hard-won victory in the Court of Appeals, and stick me with a crushing bill for the other side’s legal expenses. I’m pretty confident that worst case scenario is unlikely – not just because I’m an experienced court observer, but also because apparently I’m the only person who’s actually read all of the legislative history, caselaw, and the undisputed contemporaneous evidence in this case. So far.

In any event, I’m willing to trade that small risk and a few extra months’ delay for the opportunity to shine a public light on the legal challenges facing people living with mental illness and other disabilities. 

I am on a mission.

But I don't want to do it alone anymore.

For many years I was involved in high profile LGBT and other civil rights cases as an attorney with the American Civil Liberties Union. I frequently filed amicus briefs with the Washington Supreme Court explaining how the legal dispute between particular parties had the potential to affect the rule of law and the rights of other community members. When I represented injured plaintiffs myself, I would welcome briefs from other advocates as amicus curiae – Latin for “friend of the Court.”

Today I am sending a public “Dear Colleague” letter to Washington attorneys at various advocacy organizations inviting them to file amicus briefs or letters of support asking the Washington Supreme Court to grant Defendants' agreed Petition for Review. Feel free to forward my invitation to anyone you think might be interested. The amicus deadline is Monday, December 4, 2019. I even submitted my Answer two weeks early just so everyone would have an enhanced opportunity to do their due diligence. 

The members of the bar and our colleagues on the bench pride ourselves on being an honorable self-regulating profession. Please send your organizational and individual message to the Washington Supreme Court – and to the folks at Ogden Murphy and the Attorney General’s Office – that “lawyer” and “liar” aren’t synonyms.

Recently I published an updated version of "My Story So Far." I recognize even my summaries are much too long. But the important stuff isn’t complicated at all.  

The other day an old friend interrupted one of my stories about the endless plagues that beset me, and said “Just give me your elevator speech.” I started my legal career on the 49th floor of Seattle second-tallest building. Elevator rides and speeches could take a while:

·      This case involves unlawful and unethical conduct by two sets of lawyers who should know better:  the Washington Attorney General’s Office, and the Seattle firm of Ogden Murphy Wallace PLLC.

·      When I filed a complaint about sexual orientation discrimination in the workplace in March 2016, my former employers at the Attorney General’s Office hired Patrick Pearce, one of the dishonest private investigators at Ogden Murphy Wallace, to conduct a fake “independent” investigation into my discrimination complaint. 

·      At the Attorney General's behest, Ogden Murphy barely acknowledged my actual complaint of discrimination based on sexual orientation, and ignored numerous other examples of the State’s implicit and explicit homophobia. Instead, Defendants whitewashed my employers’ misconduct, and parroted a litany of unrelated and unfounded complaints about my job performance. As wrongfully terminated Judge Patricia Petersen can attest, this is Defendants' standard technique.

·      What made the Attorney General's and Ogden Murphy’s misconduct particularly horrifying was that they schemed to deprive me of the benefit of the disability attorney I’d hired to represent me in my employment dispute after I was diagnosed with PTSD.  

·      After illegally framing and firing me, my former employers at the Washington Attorney General’s Office pressured me into quickly settling my wrongful termination claims against the State.

·      For the last three years, the Attorney General’s Office has taken extraordinary taxpayer-funded efforts to cover up their misconduct

·      Incriminating documents eventually produced under the Public Records Act reveal the likely reason for the cover-up:  Chief Deputy Attorney General Shane Esquibel, Attorney General Bob Ferguson’s top lieutenant, left his fingerprints all over the smoking gun emails.

·      Meanwhile, in May 2017, I filed a lawsuit against Ogden Murphy and Patrick Pearce, attempting to clear my name and obtain compensation from Defendants for their role in harming my family. At Defendants' request, the trial judge in Seattle quickly threw my case out on a frivolous technicality.

·      On September 3, 2019, the Washington Court of Appeals reversed the trial court’s erroneous decision. The court agreed with me that Washington’s whistleblower protection statute, RCW 4.24.510, does not grant absolute immunity from civil liability for injuries caused by paid government vendors in connection with their contractual engagements. 

·      On October 3, 2019, Defendants petitioned the Washington Supreme Court to accept review of the case. Even though I won in the Court of Appeals, I filed an Answer joining Defendants in asking the Court to take the case because it presents important issues of substantial public interest that should be determined by the Court.

Whoosh, here we are in the lobby.

Once upon a time I worked in glass skyscrapers. Then for a while I had a cozy corner office on campus in Old Main. Now I work at home with three kids, two Aussiedoodles, and PTSD. 

We live in a one-level ranch house, so my elevator speech has to be short:  This case is about what happens when lawyers start lying, and then won’t stop.

Update August 19, 2021

On January 29, 2020, the Washington Supreme Court granted review. The Supreme Court held Zoom oral argument on June 9, 2020. The nine justices issued three confusing opinions on January 28, 2021.

I am pleased to report that today the Washington Supreme Court entered an order reconsidering their January 2021 ruling in my lawsuit against the State's sleazy private investigators. Justice Sheryl Gordon McCloud substituted an entirely new opinion. Her original concurrence is now a partial dissent. The resulting ruling reinstates most of my claims against Defendants Ogden Murphy Wallace and Patrick Pearce. The parties will now return to the trial court and start all over – but this time with the benefit of the mountain of incriminating evidence I uncovered while lawyers and judges procrastinated.

For a January 2023 update of my story, including the current status of my lawsuits against the State and its co-defendants, go to “Starting Over.” 

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