Good Friends

Amicus curiae is Latin for “friend of the court.” Because the Anglo-American legal tradition is based on the adversary system, judges only decide actual controversies between opposing parties. Nevertheless, a court’s legal rulings can also affect the rights of other members of society. Outside parties who are interested in the issues before the court can ask for permission to submit an amicus curiae brief to offer additional perspectives and friendly information.

Some grumpy appellate judges find amici to be time-wasting distractions. Other courts appreciate input from a variety of sources. The United States Supreme Court receives an average of twelve amicus briefs in each of its cases. The 2015 marriage equality case Obergefell v. Hodges holds the current record, with a total of 149 amicus briefs submitted by a wide variety of individuals and organizations. Confusingly named “Parents and Friends of Ex-Gays & Gays” appeared as amicus on the opposite side from beloved “Parents and Friends of Lesbians & Gays.”

Like its federal counterpart, the Washington Supreme Court only accepts cases that involve issues of substantial public interest. Our Supreme Court generally welcomes participation from serious amici. The ultimate goal of any effective tribunal is getting it right.

After a century of vigilant advocacy, the American Civil Liberties Union remains an essential bulwark of democracy. Over the years I’ve had the privilege of serving as an ACLU member, volunteer, speaker, board member, staff lawyer, and cooperating attorney. I was even invited to argue before the Washington Supreme Court on behalf of the ACLU as amicus curiae in a prisoner’s rights case.  

Here’s another strange new experience I never expected to see on my bucket list:  the ACLU submitted an amicus brief in a case where I’m the pro se plaintiff. “Pro se” is Latin for representing yourself, rather than having a lawyer. As the cliché goes, any lawyer who represents himself has a fool for a client. Like the Court, I could use some good friends.

In 1989, Washington passed the nation’s first law protecting defendants from “SLAPP” lawsuits. “SLAPP” stands for “Strategic Lawsuit Against Public Participation.” SLAPP lawsuits are “intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.” They are typically filed by thin-skinned but well-financed organizations like property developers, agribusiness, the Pacific Legal Foundation, and the Church of Scientology.  

The ACLU has a longstanding interest in anti-SLAPP laws. On the one hand, laws like RCW 4.24.510 are necessary to protect citizens’ First Amendment rights of freely speaking, petitioning the government for redress, and participating equally in public debates. On the other hand, anti-SLAPP laws should not be applied so broadly that they chill other constitutionally protected speech.

The ACLU’s submission is the only amicus brief that will be in front of the Washington Supreme Court as they make their decision in my case. 

When the Court surprised everyone by accepting review of Defendants’ appeal, I reached out to other Washington organizations that regularly submit amicus briefs. Some of these groups, like the lawyers from the LGBT and disability community, might have been interested if the case had remained focused on my original experiences with discrimination, rather than on the interpretation of Washington’s citizen whistleblower protection statute. 

Other amicus frequent flyers, such as the two opposing advocacy groups representing plaintiff’s lawyers and insurance defense lawyers, ordinarily file amicus briefs in cases like this. Both groups participated as amicus the last time the statute was before the Court, in Segaline v. Dept. of Labor & Industries, 169 Wn.2d 467 (2010). However, between the general disruption from the coronavirus, and the fact that most of their legal issues are already well briefed on both sides by the parties, this time around each organization ended up taking a pass.

Some attorneys believe that the Washington Association for Justice (the plaintiff lawyers) and the Washington Defense Trial Lawyers (the insurance defense lawyers) have a secret pact that says neither group will file an amicus brief in a particular case unless the other group also files an opposing amicus. Sorta like the deal between the Demon and the Angel assigned to Earth in Good Omens. I’d like to think that after reading the parties’ briefs in our case, the two appellate lawyers who ordinarily would be responsible for noodling over these policy issues decided to have a Zoom cocktail together, rather than writing a pair of superfluous amicus briefs that would just cancel each other out.

Other than the ACLU team, only one lawyer asked for permission to submit an amicus brief in my case. Solicitor General Noah Purcell, who is the top courtroom lawyer at the Washington Attorney General’s Office, attempted to file an amicus brief on behalf of all State agencies. The Solicitor General’s brief would have endorsed the position taken by my opponents – who happen to be the sleazy lawyer-investigators who were hired to justify my wrongful termination by my former employer, the Washington Attorney General’s Office. 

I objected to the Solicitor General’s proposed amicus submission. I pointed out that not only did the entire Attorney General’s Office have an obvious conflict of interest based on their role in the dispute before the Court, but Mr. Purcell himself had already personally participated in the case when it was still before the Court of Appeals.  

Unsurprisingly, the Court denied the Solicitor General’s motion for permission to file an amicus brief “in light of the state’s involvement in the history of the case.” But I’m grateful for Mr. Purcell’s misguided motion, which gave me the opportunity to submit a declaration to the Court attaching various records from the Attorney General’s Office that came to light during the appeal. Otherwise these incriminating documents would not be part of the public court record, where they are available for examination by anyone who’s interested.

The Solicitor General’s tone deaf motion also underscores one of the implausibly Kafka-esque aspects of my experience: not only am I the victim of abusive treatment by various government lawyers, but something about me has the effect of deranging every lawyer who works for the State. Even the smart ones. 

Here’s how one of the few remaining lawyer friends I’m still in contact with described the Solicitor General’s boneheaded amicus motion: “I’m no appellate law lawyer, but even I know that stinks.”

When I was with my parents for Mother’s Day, I spoke on the phone with my youngest brother. He’s the other lawyer in the family. My brother asked about my upcoming oral argument, and asked what kind of moot I was planning. 

A “moot” is rehearsal for court. When I worked in private practice or at the ACLU, before each big appellate argument we would arrange at least one moot with a few colleagues. They would read the briefs, pose as justices asking questions, then provide feedback on the argument. Invariably the lawyers asked much meaner questions than any real judge. 

So much has changed. I no longer have access to a mock courtroom and legal colleagues. While the kids were visiting my ex, I was more isolated than ever. And because of the coronavirus pandemic, this year the Washington Supreme Court is conducting all oral arguments on Zoom. 

Nevertheless, my lawyer brother’s question about how I intended to prepare for oral argument gave me an idea. Did you see the big online celebration for Stephen Sondheim’s 90th birthday last month? Or the last few episodes of Saturday Night Live? With everyone stuck at home, it’s possible to weave pre-taped segments into the live Zoom stream. I thought about doing the same thing with my oral argument. After answering the Court’s question, I’d push a button and play a prepared conclusion filmed in my same Brady Bunch square on Zoom. 

In the TV movie version of my story I’ll be played by Paul Rudd, so imagine him with some grey in his hair as he looks into the camera:

“If the justices have no more questions about the Legislature’s intent when the enacted RCW 4.22.510 or the proper application of Civil Rule 12 to the Complaint in this case, I’d like to close with one more personal disclosure about what it’s been like to experience the legal system from the perspective of a pro se litigant with three kids, two dogs, and PTSD.

In March 2016, my employers at the Attorney General’s Office placed me on an abusive “home assignment,” paid their investigator to attack my character, ignored repeated inquires from the lawyer I hired, then illegally fired me.  

Before moving to Bellingham for what I foolishly thought was my dream job, I practiced law in Seattle for two decades. I worked with countless lawyers as a civil rights advocate, bar leader, and appellate lawyer. In the last four years, not a single Washington attorney reached out to see if there was anything they could do to help me and my family. Meanwhile, no lawyer or tribunal has responded to the mountain of evidence I uncovered documenting official misconduct – even the folks who are responsible for investigating accusations against dishonest attorneys.

But wait, there’s more. While this case was still pending in the Court of Appeals, my parents were worried that my mental health hadn’t improved enough to risk the stress of oral argument. So after all the briefing was complete, they offered to pay another attorney to handle the argument itself. I approached two separate appellate lawyers I’d worked with in the past. Both of them turned me down. Instead I argued on my own behalf in the Court of Appeals, just as I’m arguing before you today.

Here’s another stark contrast with my unprivileged experience with the legal system:  after this Court accepted Ogden Murphy Wallace’s petition for review, it took less than a week for Defendants and their insurer to hire their third set of lawyers, this time a distinguished appellate expert. All the hard work and whistleblowing evidence in the world cannot compete with the privileges of power and money. 

Nothing will change until this Court acts. In the meantime, the Court should affirm the decision of the Court of Appeals.”

Unemployed and home alone during a pandemic, I prepared for oral argument without the benefit of fancy lawyer moots. As usual, the most important part of my preparation was writing “SLOW DOWN” in large caps at the top of my outline. 

During oral argument my Zoom connection froze several times. But I remained calm, despite the challenges of anxiety and PTSD. Hopefully I answered the justices’ questions and told my story.   

In my conclusion I didn’t complain about other lawyers. Instead, I thanked the justices for their hard work. In the Segaline case ten years ago, the Court considered the related question of whether Washington’s anti-SLAPP law protects government agencies. Neither side in Segaline did a good job with their briefing. In her concurring opinion, one of the justices tracked down an important case that neither side had cited, which discussed Massachusetts’ similar anti-SLAPP statute. 

Without this good judge’s diligent search for the right answer, I probably wouldn’t have found the Massachusetts court opinion in Kobrin v. Gastfriend. Ten years later, Kobrin answered the exact question that’s before now before the Court:  whether anti-SLAPP statutes grant absolute immunity to government contractors for injuries they cause during their taxpayer-funded assignments. (The correct answer is “No.”) The Massachusetts high court’s opinion provided a clear roadmap for explaining how the legislature intended to protect citizen whistleblowers, not unscrupulous vendors.

These days my mental health is much improved. I get up, make my bed, walk the dogs, hug my children, file legal briefs, then read and write. 

While quarantined at home with the public library closed, both my mother and I have been reading our way through the complete works of our favorite author Jane Duncan. In one of Duncan’s novels, the narrator describes a return to relative normalcy after spending a year caring for her husband when a sudden heart attack exposed his chronic heart and liver disease: 

Ill health is an isolating thing. My husband’s sickness, as well as putting distance between him and me, had put distance between us and all our friends. An illness of limited duration is something that people can stomach and over which their sympathy can stretch. But nothing wears out more quickly than sympathy stretched over a long period of time and humanity’s stomach soon sickens at the sight of permanent ill-health, so that, gradually, most of our acquaintances dropped away.

I was lonely but I did not blame people for not coming to see us, because his rigid health routine seemed outlandish to others and made entertaining difficult. People could not be blamed for leaving us within that routine as in a prison. But although I told myself this, it did nothing to abate my feeling of isolation which was increased by the feeling that I was now not only an exile, but an exile without hope of return, a “displaced person,” one of many such in this twentieth century....

When one is happy, one seeks only the happy, pleasant and amusing things. But when one has passed through the shadow of unhappiness, one learns the nature of shadows and begins to notice them everywhere beyond all ignoring.

Coming out is hard, for both the speaker and the listener.  

In writing frankly about my traumatic and triggering experiences, I don’t mean to whine. I’m certainly not pointing fingers at any particular friend or former colleague. Like Jane Duncan’s narrator, I don’t take my isolation personally. Instead, I’ve reached the point in my recovery where I want everyone to know exactly why I disappeared for a few years. 

As each of us goes about our busy lives, it’s easy to lose touch with folks – particularly when an old friend has kids/gets divorced/exits chorus/moves away/implodes professionally/gets a PTSD diagnosis. No one knows what to say. Then they worry it’s too late to say something, so they keep saying nothing. It’s hard to reach out to friends after such a gap, regardless of whether the particular friend was known long and well, or short and hard, through traumas, triggers, or recoveries. Maybe you last interacted with me three or four years ago, when you would have seen me at my craziest. It’s hard to reach out to someone who you fear has become a stranger. 

Regardless of personal history, it’s always hard to reach out to someone with an off-putting disability, particularly someone living with mental illness or another handicap that interferes with smooth communication. This summer as Bear, Buster, and I briskly walked along Bellingham’s marvelous network of trails, one of the few people who regularly passed us was a young man in a motorized wheelchair. One afternoon as he zipped by I noticed the back of his T shirt:  “Disability Rights are Human Rights.” As the dogs and I reached the dock at the end of the Boardwalk, I saw him parked parked in the shelter. The front of his T shirt celebrated the twenty-fifth anniversary of the Americans with Disabilities Act. 

Despite my introversion, I decided to reach out with a friendly “I like your T shirt.”

His response was incomprehensible, presumably because the disability that put him in the wheelchair also affected his speech. I stood paralyzed on the Boardwalk – wanting to communicate, but overwhelmed by social anxiety, confusion, covid masks, crowds, and two dogs yanking on their leash. So I fled. And I haven’t seen him since.

Nevertheless, I hope I will find the nerve to keep reaching out, telling my story, and listening to friends and strangers as they tell their stories, too.

When this is all over – and by “this” I mean the covid pandemic, tiresome litigation, and Donald Trump – I intend to take advantage my newfound mental health and freedom. 

I’ll cross the border to sing again with Vancouver Men’s Chorus.

I’ll look for opportunities to socialize with lawyers and other folks. 

I’ll look for jobs and do some marketing. After the next few weeks I’ll finally be in a position to write briefs for clients who don’t have a fool for a lawyer. [Ed note: He means someone should start hiring him to write elegant appellate briefs without “Leishman” in the caption.] 

I’ll never again be the over-anxious do-gooder of yesteryear. I’m balder, greyer, and wearier. But I’m also smarter, nicer, and more mindful.

Plus now I come with cute dogs.

Papa and his best friend

Secret Agent

In the coronavirus pandemic’s continuing assault on civilization, this week the United States Supreme Court held its first public telephonic oral argument. The big question was which quarantined justice flushed a toilet in the background.

Ordinarily, to see or hear the United States Supreme Court in action you’d have to wait in line outside the Court’s imposing building on Capitol Hill. The Court has been resistant to modern technology, with at least one justice saying cameras would enter the Supreme Court’s ceremonial courtroom over his dead body.

In contrast, since 1995 all oral arguments before the Washington Supreme Court have been televised live on TVW, our state version of C-SPAN. My father enjoys watching the justices questioning lawyers at the Temple of Justice in Olympia whenever there’s a lull in televised golf and curling. TVW also broadcasts archived legislative hearings and oral arguments late at night. If you’re enough of an insomniac, eventually you’ll see my handful of prior appearances before the Court.

Under Governor Inslee’s “Stay Home, Stay Healthy” order, the Temple of Justice has been closed since April. Like the rest of us (except the U.S. Supreme Court), the Washington Supreme Court has turned to Zoom. TVW broadcasts and records the group video chat. The justices all wear their robes, and appear in their Brady Bunch squares in front of individual green-screened fake courtrooms.

To prepare for my Zoom oral argument next month, I’ve been watching recordings from recent sessions before the Court. I’m worried. None of the other appellate lawyers had dogs and dining room tables in the background – just a few shelves of pompous law textbooks. Eleanor says I should take my laptop over to Grandma’s house and do my argument in front of the Wall of Books.

Reflecting the Court of Appeals’s junior status, its oral arguments are preserved only in audio format, not video. Here’s a link to the recording of the April 16, 2019 argument in my case against Defendants Ogden Murphy Wallace and Patrick Pearce. 

Unlike most appellate courts, the judges of Division One of our Court of Appeals separately read the parties’ briefs, then “pre-conference” the day before oral argument and discuss the case together. That means the three-judge panel comes prepared with their focused list of questions the lawyers need to answer. It also means they only allow 10 minutes for each side.

As the appellant, I went first. I reserved three minutes for rebuttal. In spite of jitters and PTSD, my opening seven minutes went pretty smoothly. As I recall, the only flabbergasting moment came when one of the judges asked an awkward question that revealed he wasn’t familiar with the one-paragraph 1989 statute the case is about. Fortunately, one of the other judges stepped in and offered a gentle explanation to his colleague. 

Defendants’ ten minutes came next. Team Ogden Murphy assigned the argument to a junior attorney, rather than to the invisible “Great Lawyer” whose name appeared on the pleadings. I can’t tell you much about her argument, or my rebuttal. I haven’t actually listened to the recording. It would be too triggering. 

Washington has a rigorous and transparent procedure for approving government contracts, including a system for authorizing repeated projects by the same vendor. Several years ago, the State invited private firms to bid for authorization to provide various enumerated “personnel services” to state and local agencies. Ogden Murphy Wallace PLLC was one of the successful bidders, and entered into a “Master Contract” with the State. 

Under Ogden Murphy’s Master Contract, state agencies like the Attorney General’s Office are pre-authorized to execute a “Work Order” identifying the “scope and description of work” of a specific project. I’ve already written about the Work Order at issue in my case, which limited Ogden Murphy’s expenditure of taxpayer funds to an investigation into my complaint of workplace discrimination on the basis of sexual orientation.

In January 2017, I sent a letter to Ogden Murphy Wallace outlining some of the glaring factual errors in Patrick Pearce’s investigation report, which had gone far beyond my sexual orientation discrimination complaint. I asked for a meeting with the firm’s managing partner, Geoff Bridgman. All I wanted was a chance to clear my name and salvage my professional reputation.

Mr. Bridgman never responded. Instead, in March 2017, I received a message from an attorney telling me she would be representing Ogden Murphy – Michele Corsi, then a partner in the Seattle insurance defense law firm of Lee Smart PLLC. (Ms. Corsi subsequently left the firm.) In our telephone conversation, Ms. Corsi told me her clients wouldn’t even consider addressing my concerns about the investigation report, because Ogden Murphy Wallace and Patrick Pearce had “fiduciary duties” to the State that prohibited them from responding to me.  

Ms. Corsi’s announcement set off mental alarm bells. Unlike attorneys or other trusted agents, commercial private investigators don’t owe “fiduciary duties” to their customers. To the contrary, investigators are merely subject to ordinary contract, tort, and statutory duties. 

This issue was particularly significant to me. When I pressured into entering a settlement agreement with the Attorney General’s Office in October 2016, I only agreed to release my claims against employees and agents of the State itself – not the investigator who told me he was conducting an “independent” investigation in to my allegations about workplace homophobia. I would never have discussed settlement with the State if I’d thought everyone was lying about Mr. Pearce’s status.

Moreover, as counsel for Defendants knew and knows, the Master Contract between Ogden Murphy and the State is absolutely clear on this specific issue. Paragraph 28 is labelled “INDEPENDENT STATUS OF CONTRACTOR.” It provides:

In the performance of this Contract and any Work Order, the parties will be acting in their individual, corporate or governmental capacities and not as agents, employees, partners, joint venturers, or associates of one another. The parties intend that an independent contractor relationship will be created by this Contract and any Work Order. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever….

Even after I filed my lawsuit against Ogden Murphy Wallace and Patrick Pearce in May 2017, their lawyers continued to suggest Defendants acted as agents rather than as independent contractors. Meanwhile, although the State was not a party to the lawsuit, the Attorney General’s Office assigned Assistant Attorney General Suzanne LiaBraaten to represent the government agencies’ interests in the dispute. Ms. LiaBraaten refused to acknowledge that Defendants were excluded from the settlement agreement’s release provision.

Tag-team gaslighting by two sets of dishonest lawyers triggered additional PTSD symptoms. Nevertheless, the agency issue was central to the case. I therefore amended my complaint, and used all the procedural tricks I could think of to extract Defendants’ concession that they were not “agents” for purposes of the release. 

Unfortunately, my PTSD-addled “big law firm” tactics cluttered the record, overwhelmed our busy state court judge, and nudged the case forward on its doomed course towards the iceberg.

Back to oral argument in the Court of Appeals two years later.

The key colloquy of the morning occurred between Judge Marlin Appelwick and counsel for Defendants. Judge Appelwick started his question by observing that the settlement agreement releases not only the State but also its employees and agents, and asked counsel whether her clients intended to raise the agency issue on remand if they lost in the Court of Appeals.

My appeal briefing had not specifically addressed Defendants’ independent contractor status, because I thought the issue was already settled. Thus, the judges of the Court Appeals had no idea where in the record they would find the Master Contract or Defendants’ acknowledgment, and no reason to know about the independent contractor provision in Paragraph 28. The judges also had no reason to mistrust the lawyer standing in front of them when she said yes, Defendants intended to argue they acted as the State’s “agents.”

Defendants’ counsel had already stretched the truth a few times in her ten minutes at the podium. But this was too much. I could not believe I was listening to a lawyer blatantly lie to a judge about my case. For the record, her name was Claire Martirosian, of the Seattle law firm McNaul Ebel Nawrot & Helgren PLLC. 

Even after a year of improving mental health, I do not know how I would respond to a similar trigger today. Hence I’ve chosen not to listen to the recording of my Court of Appeals argument. I don’t want to sit through the babbling I expect to hear during my last three minutes at the podium.

Fortunately, as painful as it felt at the time, not long afterwards I had the sense to recognize Judge Appelwick’s question actually was a sop to a fellow member of the august legal profession – a loser’s consolation prize. Which was frustrating. Nevertheless, as every experienced Washington appellate lawyer in the courtroom that day recognized, it also meant I was finally winning.

Sure enough, five months later the Court of Appeals issued a published decision in my favor. The Court’s opinion is sensible and straight-forward. The judges weren’t hitting for the civil rights bleachers. At this point I’m glad they aimed instead to create the smallest possible target for criticism or reversal. What matters is the Court of Appeals unanimously reversed the trial court’s erroneous dismissal order, and gave me another chance at justice. 

Poker players have tells. So do lawyers and judges. The most interesting judicial tell in the Court of Appeals’ opinion? Here’s Footnote 3 from the decision:

The parties addressed only whether RCW 4.24.510 required dismissal of Leishman's complaint, and did not address whether OMW was an agent of the AGO and therefore barred under the settlement agreement.

And here’s the Court’s redundant Footnote 5:

Because the issue was not raised below or before us on appeal, we specifically do not address whether OMW was an “agent” of AGO and thus whether Leishman is precluded from seeking relief under the terms of the settlement agreement.

The opinion only has five footnotes. The Court of Appeals wanted to make sure Defendants and the trial judge got the hint.

Zoom argument in my case in the Washington Supreme Court will be on June 9, 2020. I’ll post the link to the TVW video archive. The schadenfreuding sadists among you can watch live. Hopefully we’ll see fewer PTSD-triggering gaslighting lies from counsel. For a couple of reasons:

First, as I mentioned in “Well-Picked Battles,” immediately after the Supreme Court accepted review, Defendants’ insurers fired Ms. Martirosian and replaced her with an experienced and respected appellate lawyer, Paul Lawrence.

Second, on the first page of Defendants’ Petition asking the Washington Supreme Court to review the Court of Appeals’ decision, Defendants finally acknowledged “Pearce and OMW were hired by the Attorney General’s Office as independent contractors.”

It only took two and a half years of importuning before Defendants and their lawyers finally admitted the obvious. Defendant Patrick Pearce never was an agent of my dishonest former employers at the Washington Attorney General’s Office. He was merely a tool.

An Importunate Single Dad

from Parables by Nikola Sarić, http://www.nikolasaric.de/ 

Growing up among the Mormons planted the Post-Traumatic Stress Disorder time bombs that my abusive employers triggered decades later. But I also count many blessings from my Mormon youth. For example, I was steeped in the old-fashioned King James Version of the Bible, the greatest Early Modern English text written by someone not named Shakespeare.

Each of Jesus’ New Testament parables has its own traditional name, such as “The Prodigal Son” and “The Wheat and Tares.” The story that opens Chapter 18 of the Gospel of Luke is sometimes called “The Unjust Judge”:

And he spake a parable unto them to this end, that men ought always to pray, and not to faint;

Saying, There was in a city a judge, which feared not God, neither regarded man:

And there was a widow in that city; and she came unto him, saying, Avenge me of mine adversary.

And he would not for a while: but afterward he said within himself, Though I fear not God, nor regard man;

Yet because this widow troubleth me, I will avenge her, lest by her continual coming she weary me.

Usually this story is referred to as the “Parable of The Importunate Widow,” or in recent years, “The Persistent Widow.” I don’t know which Greek or Aramaic words King James’ scholarly committee was trying to translate when they recounted Jesus’ story about the widow who continually troubled the unjust judge. But here are some of the English synonyms that Microsoft Word suggests for “importune”:   pester, harass, plague, annoy, persist, beleaguer, pursue, demand, bother. 

You get the picture.

There are three phases of litigating your way through mental illness.

Phase 1: Traumas

Shortly after I began work with the Washington Attorney General’s Office as Chief Legal Advisor to Western Washington University, I began experiencing strange symptoms that affected my behavior. In November 2015, my new Bellingham doctor determined my debilitating symptoms were caused by Post-Traumatic Stress Disorder. Although my PTSD symptoms were rooted in traumas that occurred three decades before, they were triggered by unhealthy dynamics in my new workplace. 

Meanwhile, I also encountered implicit and explicit homophobia from my employers, as well as from key client contacts like former WWU President Bruce Shepard. When I submitted a sexual orientation discrimination complaint about my immediate supervisor’s misconduct, the Attorney General’s Office hired Patrick Pearce of the Seattle law firm Ogden Murphy Wallace PLLC into investigation my allegations of workplace bias. Instead, the State’s top employment lawyers assigned Mr. Pearce to investigate secret complaints from my supervisors about my behavior. Then they used his one-sided investigation report as a pretext for firing me.

Originally my story was about how the State bungled its response to disclosures about my disability and sexual orientation. These are the kinds of messy legal problems people face in real life every day. Usually there’s no clear written record or obvious explanation for what happened. Witnesses provide insistent versions of the same event. Defendants can always find a paid expert to justify their conduct. (“In my expert opinion, you can’t call what Ogden Murphy Wallace did ‘malpractice,’ because at least Mr. Pearce didn’t accuse you of faking your disability. That was Assistant Attorney General Kerena Higgins.”) 

As a lawyer, I’m often asked if someone can sue their landlord, or boss, or Comcast. The literal answer is yes – anyone with a credit card number can file a lawsuit. But that’s only the beginning. Before a judge or jury can resolve the parties’ messy disputes, you have to endure months or years of expensive and painful litigation. For most people, the costs and risks aren’t worth the fight. That’s how Donald Trump became a “successful” businessman – by lawyering up, then bullying and intimidating his partners, suppliers, and customers.

By the time the State placed me on an abusive “home assignment” in March 2016, my PTSD symptoms made me incapable of representing myself, and barely capable of being a client. With the help of a good lawyer, eight months later I reached a modest settlement agreement with the State that my attorney and I thought would put me on track to reviving my health and career.

Things actually were much worse than my lawyer and I realized.

When I first encountered Ogden Murphy Wallace’s taxpayer-funded investigation report into my sexual orientation discrimination complaint, I thought it all was a terrible mistake. I naively thought that if the right people actually examined the evidence everyone would recognize there’d been a misunderstanding, and my family could promptly return to normal life. I was wrong. 

As I wrote in one of my “Rock Bottom” stories last year, just before my mediation with my former employer I became suicidally depressed for the first time in thirty years. Our family lost our health insurance because the State’s lawyers miscalculated the COBRA deadline. Meanwhile, my former colleagues at the Attorney General’s Office had already begun a campaign to cover-up their co-workers’ malpractice and ethical lapses. Blaming the victim, they besmirched my reputation and interfered with my efforts to find new employment – in violation of our settlement agreement, the Washington Law Against Discrimination, and the Rules of Professional Conduct.

The Unjust Judge

Phase 2: Triggers

In January 2017, I reached out to Ogden Murphy Wallace’s managing partner in an attempt to clear my name. Rather than respond to my letter, instead he hired one of Washington’s most notorious insurance defense law firms, Lee Smart. (The firm’s nickname within the profession is “Less Smart.”) After failing to get anyone’s attention, in May 2017 I filed a lawsuit seeking damages from the lawyer-investigator who lied to me, Patrick Pearce, and from his firm. At this point I was representing myself. I couldn’t afford to pay a lawyer, and any ordinary plaintiff’s contingent fee lawyer would have looked at my case and seen a big huge hopeless mess.

I began my lawsuit with one stroke of good luck, and one disastrous stroke of reality.

My good fortune actually was the result of my industriousness. Or mild OCD. Because Washington is a community property state, when you sue someone you’re supposed to name both spouses as defendants. Lazy lawyers just put “and Jane Doe Smith” in the captions, but I try to identify the correct name. However, the State’s attorney-investigator Patrick Pearce appeared to be an internet cipher. In hindsight, it looks like someone paid an online reputation management company to clean up the embarrassing public record – a service Ogden Murphy Wallace happens to offer to its clients. 

I never tracked down Pearce’s marital status. Instead I connected the dots between various separate news articles and made a juicy discovery. A couple of years earlier, the Chief Hearing Officer at Washington’s Office of Insurance Commissioner filed a whistleblower complaint about her supervisor’s improper interference with pending cases. The OIC hired Patrick Pearce to conduct the investigation – not into Judge Petersen’s complaint, but into trumped-up accusations against the judge herself. Eventually the State paid $450,000 to settle her wrongful termination claims. This discovery immediately changed my case narrative:  allegations that formerly might have been be dismissed as a messy “he said/he said” dispute instead became part of Defendants’ well-documented pattern of deceptive business practices.  

The unfortunate stroke of reality? By spring 2017, I’d begun to understand the nature of my disability, and I’d learned to cope with some of my daily symptoms. Nevertheless, like many individuals who suffer from PTSD, I struggled to respond to stressful social interactions. Just like the Incredible Hulk. On the surface, I appeared to be a wholesome middle-aged Mormon dad. You couldn’t see the deranged obsessions, or the explosive rage waiting to be detonated by bureaucratic lies and lawyerly prevarications. This phase in my mental health was captured in a series of blog essays about my reactions to frustrating customer service experiences with Comcast. 

Defendants replaced their lawyers from Lee Smart with a new hack insurance defense boutique. Meanwhile, the Attorney General assigned a dishonest and corner-cutting Assistant Attorney General to appear on behalf of the State. Both sets of lawyers tag-teamed me with gaslighting lies and obstructive tactics. I responded by losing my calm and my focus. Unsurprisingly, a busy trial court judge grasped at the slimmest of reeds to get rid of us.

The Incredible Hulk phase of my litigation/mental health experience ended in disaster. Not only did the trial judge dismiss all of my claims under an inapplicable technicality, but he also ordered me to pay Defendants’ legal expenses. At the State’s request, the court also entered a broad order permanently sealing virtually all of Ogden Murphy’s investigation files, rather than considering any of my individual objections to the State’s overbroad and frivolous privilege designations.

However, once again I had the good fortune of discovering written evidence of my opponents’ dishonesty. In October 2017, shortly before they succeeded in getting my case dismissed, Defendants’ attorneys finally produced a copy of an irrefutable “smoking gun” email exchange between the State’s lawyers and their investigator. 

There’s something wrong with the rule of law if it takes two years for the Court of Appeals to correct an obvious procedural mistake by a trial judge. Nevertheless, I put those two years to good use. After submitting numerous requests to the State under the Public Records Act, eventually I located the rest of the incriminating evidence that the Attorney General’s Office and Defendants had concealed. My efforts triggered a new outpouring of obfuscations and lies from two separate sets of sleazy lawyers. 

As usual, the cover-up was even worse than the crime.

Phase 3:  Recoveries

During the last two years I also made significant progress in my mental health. Some improvement was gradual. Eventually I stopped responding to every frustration like the Incredible Hulk. Other breakthroughs came after I passed important milestones, such as my recent string of victories in the Court of Appeals and the Washington Supreme Court, becoming a fulltime single dad, and inheriting a dog.

In “Well-Picked Battles,” I recently offered a few tips for anyone coping with litigation: (1) Find the best possible venue; (2) Focus on what’s important; (3) Seek the most favorable legal standard; and (4) Aim for as few distractions as possible. These days I don’t need to rely on disputed allegations, or “he said/she said” incidents. Instead, every argument I’ve chosen to make in my public filings is based solely on undisputed evidence:  the smoking gun emails and other contemporaneous documents begrudgingly produced by the State and Defendants themselves. 

After four years of hard work, I’ve finally figured out healthy and effective ways for a pro se plaintiff living with mental illness to speak truth to power.

The truth will out. Eventually someone in authority will recognize what the State and Ogden Murphy Wallace did to my family is wrong.

Hopefully they won’t merely condemn these lawyers’ misconduct from sheer exhaustion, like the Unjust Judge in the parable. Instead, someone will finally recognize the truth because it’s the right thing to do.

The Importunate Widow

To Be or Not to Be

According to our current Gregorian calendar, May 3, 2020 is the four hundred and fourth anniversary of the death of William Shakespeare. He died on May 3, 1616, just as he was turning fifty-two years old.

I was born exactly four hundred years after Mr. Shakespeare. To the day. So we have a lot in common. For my entire bardolatrous English Major life, as each major milestone approached or passed, I would compare myself to the Bard at a similar age. Until four years ago, when I turned fifty-two years old. The next day was my very last chance to ask myself “What Was Shakespeare Doing At My Age On This Day Four Hundred Years Ago?"

What was I doing on May 3, 2016, exactly four hundred years after the death of William Shakespeare? I was reading my client copy of an email from my employment lawyer to the State’s employment lawyer.

After I finally recognized I was incapable of communicating with my employer about my recent mental illness diagnosis, in March 2016 I hired one of the partners in Freed Frank Subit & Thomas, a respected Seattle law firm that represents plaintiffs in employment disputes. I chose Sean Phelan because of her experience working with disabled employees dealing with mental health and reasonable accommodation issues. I engaged her for the specific purpose of communicating on my behalf with the employment lawyers representing the State about the relationship between my disability and the status of my employment. 

On March 29, 2016, my employers designated Senior Counsel Kari Hanson to negotiate with Ms. Phelan on behalf of the State.

What were the state’s top employment lawyers and Human Resources professionals doing on May 3, 2016? Figuring out how to do the right thing after receiving that same email from my employment lawyer is was busy reading at home in Bellingham.

A few weeks before I hired Ms. Phelan, I filed a separate sexual orientation discrimination complaint with my employer. After following the State’s government contract procurement process, the Attorney General’s office hired their preferred investigator to look into my sexual orientation discrimination allegations. 

Soon after hiring this investigator, however, one of the lawyers in the Attorney General’s Office decided it made sense to combine the investigation into my narrow sexual orientation discrimination complaint with a second assignment. He therefore asked the same lawyer-investigator to evaluate a secret litany of complaints from the supervisors who had already decided to get rid of me – even though the State's contractual Work Order only authorized an investigation into my allegations regarding discrimination based on sexual orientation, and even though no one bothered to tell me they’d changed the scope of the investigation to focus on the separate State’s complaints about my interactions with other in the workplace.

The State employee who made the original decision to secretly expand the scope of the investigation into my sexual orientation discrimination complaint was the State’s top employment lawyer, Ms. Hanson’s supervisor Labor & Personnel Division Chief Shane Esquibel. By tragicomic coincidence, that same month the Attorney General promoted Mr. Esquibel to be Chief Deputy Attorney General – Bob Ferguson’s No. 2.

Almost two months later, on May 3, 2016, Ms. Hanson received an email request from my lawyer that made it obvious Ms. Hanson had a festering malpractice problem:

From: Sean Phelan [mailto:sphelan@frankfreed.com] 

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

Surely by this point the State’s top employment lawyers realized that all those secret co-worker complaints about “interactions with others in the workplace” – including raising my voice after my supervisor accused me of faking my disability – could not be a legitimate basis for employer retaliation, particularly during the interactive “reasonable accommodation” negotiation process required by the Washington Law Against Discrimination and the Americans with Disabilities Act. And surely by now the State’s senior Human Resources professionals realized that the Rules of Professional Conduct forbid any attorney-investigator hired by government lawyers from secretly interrogating someone who is represented by counsel. 

You’d think. Call me a cynic, but I wouldn’t be surprised to eventually read a sworn statement addressed to some tribunal or another from every single lawyer in Attorney General Bob Ferguson’s Office. No doubt each lawyer will swear he or she personally had no idea that the disabled gay single dad isolated on “home assignment” had hired an employment attorney to represent him in connection with complaints about allegedly improper interactions with others in the workplace. No idea at all, not until after they’d heard that someone else had already fired me. 

Unfortunately for the State, however, this is one of those situations when more lies can’t help. After filing whistleblower requests under the Public Records Act, last year I finally obtained copies of the damning emails the State concealed from my attorney and me. Even the truth-impaired folks at the Washington Attorney General’s Office must admit that by they time they saw Ms. Phelan’s May 3 email to Ms. Hanson, the State’s lawyers were on notice that they should have been paying attention to my disability – and to my disability attorney.

What did the State’s employment lawyer Ms. Hanson do on May 3 after she received my attorney’s email? She forwarded a copy to two people. 

The first recipient was Rochelle LaRose, the Human Resources representative who was responsible for coordinating with me about the investigation into my sexual orientation discrimination complaint. The second recipient was one of the supervisors above Ms. Hanson in her chain of command – Deputy Attorney General Paige Dietrich. 

Even if Ms. Hanson completely misunderstood the purpose of my lawyer’s attempts to contact her for the last six weeks, don’t you think at least one of these other experienced public servants should have recognized there was a connection between my employment, my disability, inquiries from my disability lawyer, and the secret assignment the State had given to its investigator? 

After bringing Ms. LaRose and Ms. Dietrich into the loop, the next morning Ms. Hanson decided to tell a fib. Rather than finally respond to my lawyer’s inquiries about accommodating my disability, Ms. Hanson instead told her she’d been swamped with work, and that of one of the managers had been traveling. At Ms. Hanson’s request, she and Ms. Phelan agreed to meet the following week to discuss my case.

Later that day on May 4, Ms. Hanson forwarded a copy of her fibbing email exchange to Chief Deputy Attorney General Esquibel and several other senior managing attorneys at the Attorney General’s Office. Thus even more of the State’s lawyers had the opportunity to recognize Ms. Hanson’s and Mr. Esquibel’s mistakes, and to mitigate the harms they caused. But none of the lawyers from the Attorney General’s Office ever answered Ms. Phelan’s numerous letters, phone calls, and email messages. 

Instead, on May 5, 2020, Ms. LaRose – the same Human Resources representative who received a copy of my lawyer’s email on May 3 – telephoned me at home. Ms. LaRose reported that the investigation into my sexual orientation discrimination complaint was complete, and told me to show up at the Attorney General's Seattle office the following Monday.

Despite receiving my attorney’s May 3 email directly spelling out the connection between my disability and my workplace behavior, under the Chief Deputy Attorney General’s compromised direction, the State went ahead and finalized the written report about its investigation. The investigation that was supposed to be limited to examining my complaint about discrimination based on sexual orientation. The investigation that instead focused on previously-undisclosed criticisms about my allegedly improper interactions with others in the workplace.

Then on Monday, May 9, 2016, relying on their illegal investigation report despite receiving my disability attorney’s May 3 email, the State handed me a copy of the investigation report before knowingly and wrongfully terminating my employment. Since then, the State’s lawyers have engaged an illegal and unethical cover-up for the purpose of protecting each other and their boss.

Four years later, where are all the players?

·       William Shakespeare is still dead.

·        I’m still a disabled unemployed gay single dad. But I’m beginning to feel Better-ish, all things considered.

·        Senior Counsel Kari Hanson’s distinguished sixteen-year career with the Washington Attorney General’s Office ended expectedly in August 2016 – three years after the legal and ethical mistakes that destroyed my health and career. According to the internet, Ms. Hanson has started her own solo law firm. That’s a typical if unusually delayed outcome for lawyers who get caught making career-ending mistakes. 

·        Shane Esquibel is still employed by the State, where he continues to be shielded from accountability at illegal taxpayer expense. 

·        Bob Ferguson is running for a third term as the Attorney General of Washington.

Regardless of the size of the mistake, some men are simply too big to fit under a bus.