Patrick Pearce, Kari Hanson & Shane Esquibel RPC 4.2 violation timeline

7/14/15            Leishman begins employment with Attorney General’s Office as chief legal advisor to Western Washington University.

11/5/15            Leishman’s new Bellingham physician diagnoses him with Post-Traumatic Stress Disorder.

1/7/16               During performance evaluation meeting, Leishman discovers that that the Attorney General's Office took adverse employment action against him in October 2015 based on homophobic allegations made by his supervisor.

1/22/16            Leishman informs human resources representatives at the Attorney General’s Office that he wants to move forward with the disability reasonable accommodation process.

2/22/16            Leishman submits detailed memorandum explaining the basis of his request for a disability accommodation.

3/1/16              During their regular weekly meeting, Leishman informs his supervisor that he intends to submit a formal discrimination complaint regarding the adverse employment action taken by the office in reliance on her secret homophobic allegations. She denies any wrongdoing, and insists that she is the one owed an apology.

                        During the same meeting, Leishman also asks his supervisor to consider supporting his pending disability accommodation request. Leishman becomes agitated and raises his voice after his supervisor accuses him of faking his disability.

3/1/16              Attorney General’s Office denies Leishman’s initial disability accommodation request.

3/2/16              Leishman submits a formal complaint of discrimination based on sexual orientation regarding his supervisor's conduct and the adverse employment action taken in Fall 2015.

3/7/16              Attorney General’s Office places Leishman on retaliatory and abusive “home assignment.” Division Chief Michael Shinn informs Leishman his employers are aware of his discrimination complaint, that it will be taken seriously, and that the office will contact him when an investigator is assigned to look into his sexual orientation discrimination allegations.

3/10/16            Private investigator firm signs Work Order providing that firm “will conduct an investigation of allegations made by an employee of the AGO.”   

3/11/16            Conference call between government attorneys Shane Esquibel and Kari Hanson and attorney-investigator Patrick Pearce regarding scope of investigation. The lawyers expand the scope of the investigation beyond Leishman’s complaint of discrimination based on sexual orientation.

3/15/16            Attorney General’s Office's Human Resources director signs original Work Order providing that Pearce “will conduct an investigation of allegations made by an employee of the AGO.”

3/16/16            After speaking by telephone with Leishman, Pearce informs Esquibel and Hanson that Leishman understands that the investigation is limited to discrimination based on sexual orientation – which conflicts with the Attorney General’s Office decision to expand the investigation to include separate supervisor complaints about Leishman’s conduct:

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 investigation. Per 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                                 

3/16/16            Hanson responds to Pearce’s email by corroborating Leishman’s understanding that the investigation does not include any allegations of disability discrimination. Hanson disregards the investigator's acknowledgment of a conflict between the scope of the investigation as represented to Leishman and stated publicly on the Work Order – i.e., the assignment is limited to Leishman’s complaint of discrimination based on sexual orientation – and the secret additional assignment given to Pearce by Esquibel and Hanson during their 3/11 conference call: 

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

3/17/16            Pearce interviews Leishman. Neither Pearce nor the lawyers at the Attorney General’s Office  informs Leishman that the scope of the investigation includes anything other than his sexual orientation discrimination complaint.

3/22/16            Leishman engages Sean Phelan of the Seattle employment firm Frank Freed Subit & Thomas. Ms. Phelan is an expert in disability, mental illness, and reasonable accommodation issues. 

Leishman has been a prominent LGBT rights lawyer for many years, including serving as Director of the LGBT Rights Project at the ACLU of Illinois. He did not hire Phelan to represent him in connection with his narrow complaint of discrimination based on sexual orientation. Instead, all parties were aware that Leishman was continuing to handle his sexual orientation discrimination complaint himself, while Phelan represented him in his other employment disputes with the AGO. 

3/28/16            Phelan attempts to contact the Attorney General’s Office regarding the status of his employment and potential accommodations of Leishman’s disability. 

3/29/16            Hanson telephones Phelan and identifies herself as the employment attorney representing the Attorney General’s Office. 

Phelan informs Hanson that she was calling to get an understanding of the purpose and duration of Leishman’s home assignment, and to start a dialogue about getting him back to work and addressing any concerns related to his disability. When pressed for a timeline, Hanson says they were working on the investigation into Leishman’s sexual orientation discrimination complaint, and hope to complete it soon. 

                        In multiple subsequent communications to Hanson, Phelan renewed her requests that the Attorney General’s Office engage in a good faith interactive dialogue about Leishman’s disability. Phelan also informed Hanson that Leishman was being evaluated by a psychiatrist for the purpose of his accommodation request. Hanson failed to respond to Ms. Phelan’s repeated inquiries. 

4/5/16              At Pearce’s request, Leishman forwards background documents related to his disability and employment dispute. Leishman remains unaware that the investigation has been expanded to include the subject matter of his representation by Phelan.

From: rogerleishman <> 
To: ppearce <> 
Sent: 4/5/2016 11:14 AM 
Re: Leishman/AGO 
Pat - sorry for the delay in responding, I couldn't remember which documents I had offered to send copies of. Please see attached. 
Let me know if you have any questions. 
·      3-7-16 Shinn memo re performance.pdf (11 MB) 
·      3-7-16 Beusch memo re home assignment.pdf (2 MB) 
·      2-4-16 Siebs letter to therapist.pdf (24 MB)
·      2-22-16 Leishman reasonable accommodation request.pdf (203 KB)
·      2-29-16 Beusch memo denying accommodation request.pdf (75 KB)

4/5/16              Attorney General’s Office’s investigator Pearce asks Leishman to provide a chronology of events. Neither Pearce nor the lawyers at the Attorney General’s Office obtained Phelan’s consent to this communication about the subject matter of her representation as required by Washington Rule of Professional Responsibility 4.2.

4/12/16            Hanson and Pearce exchange emails confirming the plan for a second interview of Leishman, and coordinating the Attorney General’s continued oversight of the investigation:

From:  Patrick S. Pearce 
Sent: Tuesday, April 12, 2016 4:42 PM
To:  Hanson, Kari (ATG)  
Re: Investigation

Hi Kari -

I would like to circle back for a hopefully brief follow up interview with the complainant after which I’d like to have a conversation with you and whoever else you think would be appropriate regarding overall impressions prior to beginning a report. I’ve dropped Kim Siebs an email for purposes of coordination on that and hope to be able to set up a follow up telephone discussion for this week. Ideally, I can complete the interview, discuss impressions, and prepare and submit a final report prior to the end of the month.


4/13/16            Attorney General’s Office schedules another in-person interview for Leishman with investigator for 4/14:

On April 13, 2016 at 6:18 PM Patrick S. Pearce wrote: 

Thanks for the assistance Rochelle and Roger. 
I’ve scheduled a conference room at our office for 11 a.m. Roger, let me know if you’d like to come to the office. Either telephonic or in person works fine for me, although if we opt for telephonic I want to be able to let staff know so the conference room I’ve reserved can be freed up. 
Thanks - 
Pat Pearce 

From: LaRose, Rochelle (ATG) [mailto:RochellL@ATG.WA.GOV] 
Sent: Wednesday, April 13, 2016 11:53 AM
To: Patrick S. Pearce
Cc: ''
Subject: Telephone Follow-Up on Thursday, April 14 at 11am 
Hi Pat! I just spoke with Roger, and he is available for a follow-up conversation tomorrow (Thursday) at 11am. He can be reached at 206/849-4015. Please note that Roger will be in Seattle, so if you would prefer to meet in person, he can come to your office. 

At Pearce’s request, Leishman sends him a twelve-page chronology of events – still unaware that the scope of the investigation has been expanded.  Neither Pearce nor the lawyers at the Attorney General’s Office obtain Phelan’s consent to this communication about the subject matter of her representation. 

4/14/16            Attorney General Office's investigator Patrick Pearce interrogates Leishman regarding his conduct and disability for 90 minutes without Leishman’s attorney being present, and without disclosing that the scope of the investigation had been expanded to include the subject matter of his representation by PhelanNo one obtained Phelan’s consent to this communication about the subject matter of her representation. 

4/25/16            Pearce provides “Draft Investigation Report” to Attorney General’s Office.

4/29/16            Pearce issues final Investigation Report, which explicitly acknowledges 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.” The Investigation Report repeatedly relies on information obtained during the investigator’s 4/14 ex parte interrogation of Leishman regarding the subject matter of his representation by Phelan. 

                        Neither Pearce nor the Attorney General’s Office provided copies of the draft or final report to Leishman or his attorney.

5/2/16              Phelan leaves yet another message for Hanson regarding the disability reasonable accommodation process.

5/3/16              Phelan sends Hanson an email regarding the reasonable accommodation process, including informing the Attorney General’s Office that Leishman will be submitting a psychiatrist evaluation: 

From: Sean Phelan [] 
Sent: Tuesday, May 03, 2016 4:08 PM 
To: Hanson, Kari (ATG) Cc: Sean Phelan
Subject: Roger Leischman 
Hi Kari,
I am following up on the voice message I left for you yesterday regarding this matter. 
Mr. Leischman has recently been evaluated by a psychiatrist with regard to his medical condition and its impact on his ability to perform his job – and specifically its impact on his interactions with others in the workplace.
Could you please send me another accommodation assessment form to send to the psychiatrist to complete?
Thanks in advance. 
Please call with any questions. Sincerely, 
Ms. Sean M. Phelan
Frank Freed Subit & Thomas LLP

5/4/16              Hanson finally responds to repeated inquiries from Leishman’s attorney, and suggests she and Phelan confer the following week: 

From: Hanson, Kari (ATG) 
Sent: Wednesday, May 04, 2016 8:48 AM
To: Sean Phelan
Subject: RE: Roger Leischman 
Hi Sean. I am really sorry for the delay in getting back to you, I’ve been swamped this week. The report was just finalized and the manager who needs to review it has been travelling all week, so she has not had a chance to see it yet. Would it be possible for you and I to talk early next week? Thanks for your patience.

5/4/16              Phelan agrees to accommodate the Attorney General’s Office’s purported scheduling issues and meet with Hanson the following week, while also renewing her request that Hanson send her a copy of the State’s preferred accommodation form.

5/4/16              Hanson forwards her 5/3 and 5/4 correspondence with Phelan to Esquibel and other senior lawyers within the Attorney General’s Office.

5/5/16              Representatives of the Attorney General’s Office contact Leishman and inform him that the investigation has been completed and they want to meet with him in their Seattle offices on 5/9, the following Monday.

5/5/16              After hearing from Leishman about his upcoming meeting in Seattle with the AGO, Phelan emails Hanson to ascertain whether the scheduled meeting is limited to discussing the investigation into Leishman’s complaint of discrimination based on sexual orientation: 

From: Sean Phelan []   
Sent: Thursday, May 05, 2016 5:39 PM
To: Hanson, Kari (ATG) 
Cc: Sean Phelan
Subject: RE: Roger Leischman 
Hello Kari,
I am writing about the meeting scheduled for Monday, 5/9 between Mr. Leischman and Deputy AG Christina Beusch.
If the scope of the meeting is simply to report back on the findings of the investigation into Mr. Leischman’s complaint, he is comfortable attending the meeting on his own.
If the purpose of the meeting is to also discuss his performance, his current home assignment and/or reasonable accommodation, I would like to be present and attend the meeting as well.
Can you please let me know the agenda for this meeting? 
Thanks in advance. Sincerely, 
Ms. Sean M. Phelan
Frank Freed Subit & Thomas LLP

5/6/16              After circulating Phelan’s inquiry among her colleagues at the Attorney General’s Office, Hanson informs Phelan that the 5/9 meeting is not limited to Leishman's complaint of discrimination based on sexual orientation. Once again, Hanson neglects to inform Leishman or his attorney that the scope of “the investigation” includes anything other than his sexual orientation complaint:

From:     Hanson, Kari (ATG)    (641)
To:            Sean Phelan           
BCC:        Beusch, Christina (ATG) Shinn, Michael (ATG) Siebs, Kim (ATG)
Date: 5/6/2016 10:12:54 AM
Subject: RE: Roger Leischman

Hi Sean. The meeting will be to discuss both the investigation and performance issues. You are welcome to attend. It will be at the Seattle AGO so let me know if you need the address. I will let them know that you will be attending. 
Kari Hanson

5/9/16              Leishman and his attorney meet with senior attorneys from the Attorney General’s Office. There is no discussion. Instead, the attorneys hand Leishman and Phelan copies of Pearce's final investigation report. Relying on the Ogden Murphy Report, the Attorney General’s Office terminates Leishman’s employment effective June 1, 2016.

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