Hart v. Wesen

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 CODY HART, DARRILL FUSSELL, CASE NO. 2:23-cv-309 KEVIN EWING, TIMOTHY 11 GARRISON, STEVEN RINDAL, and ORDER DENYING PLAINTIFFS’ KATHY LAFRENIERE, MOTION FOR DISCIPLINARY 12 ACTION Plaintiffs, 13 v. 14 SKAGIT COUNTY 15 COMMISSIONERS, RONALD WESEN, PETER BROWNING, LISA 16 JANICKI, and RLI INSURANCE COMPANY, 17 Defendants. 18

19 This matter comes before the Court on Plaintiffs’ Motion for Disciplinary Action for 20 Defense Attorneys Richard Weyrich and Erik Pederson. (Dkt. Nos. 27, 29.) Having reviewed the 21 motions, the Responses (Dkt. Nos. 34, 36), and all other supporting material and documents, the 22 Court DENIES the Motions. 23 24 1 BACKGROUND 2 Pro se Plaintiffs commenced this action against several Skagit Valley Commissioners, 3 claiming that because the Commissioners allegedly did not file an official bond within the 4 timeframe required, they vacated their offices. (Complaint at 4-5 (Dkt. No. 1).) Shortly after

5 filing the Complaint, Erik Pederson, a Skagit County Prosecuting Attorney for the civil division, 6 appeared as counsel on behalf of the Commissioners. (See Dkt. No. 7.) Plaintiffs now bring two 7 motions for disciplinary action against Pederson and Skagit Valley Prosecuting Attorney Richard 8 Weyrich arguing that the two attorneys do not have legal authority to represent the 9 Commissioners and presented arguments without legal support. 10 ANALYSIS 11 Between the two motions, Plaintiffs bring eight causes of action. They all fail. As an 12 initial matter, the Court interprets Plaintiffs’ motions for disciplinary action as motions for 13 sanctions under Federal Rule of Civil Procedure 11 and motions to disqualify. 14 A Rule 11 sanction is an extraordinary remedy that should be exercised with extreme

15 caution. Operating Eng’rs. Pension Trust v. A-C Co., 859 F.2d 1336, 1345 (9th Cir. 1988). Rule 16 11 authorizes sanctions for the filing of papers that are frivolous, intended to harass, or lacking in 17 factual or legal support. Warran v. Guelker, 29 F.3d 1386, 1388 (9th Cir. 1994). Sanctions are 18 reserved “for the rare and exceptional case where the action is clearly frivolous, legally 19 unreasonable or without legal foundation, or brought for an improper purpose.” Operating 20 Eng’rs. Pension Trust, 859 F.2d at 1344. 21 “In determining whether an attorney’s representation of a particular client violates the 22 attorney’s ethical responsibilities, the [c]ourt first refers to the local rules regulating the conduct 23 of members of its bar.” United States ex rel. Lord Elec. Co., Inc. v. Titan Pac. Constr. Corp., 637

24 1 F. Supp. 1556, 1560 (W.D. Wash. 1986); In re Cnty of L.A., 223 F.3d 990, 995 (9th Cir. 2000) 2 (stating that motions to disqualify counsel are decided under state law). Attorneys practicing in 3 the Western District of Washington must abide by the “Washington Rules of Professional 4 Conduct, as promulgated, amended, and interpreted by the Washington State Supreme Court . . .

5 and the decisions of any court applicable thereto.” Local Rules W.D. Wash. LCR 83.3(a). 6 In the instant motions, Plaintiffs ask the Court to take disciplinary action against Weyrich 7 and Pederson by disbarring them and referring them for criminal prosecution. Plaintiffs’ basis 8 for this extreme request are allegations that Weyrich and Pederson (1) fraudulently represented 9 they had legal authority to represent the Commissioners, (2) presented arguments “they had no 10 legal evidentiary support to provide” (Dkt. No. 27 at 3); (3) engaged in racketeering; and (4) 11 violated Local Rule 83.3, Standards of Professional Conduct. Plaintiffs also claim that Pederson 12 is also a witness likely to be called at trial, and that because of this and the fact that Weyrich 13 supervises him, the two have repeatedly violated the Rules of Professional Conduct. (Dkt. No. 29 14 at 3.)

15 All of Plaintiffs’ claims fail. Plaintiffs fail to put forth any facts or evidence to 16 substantiate their allegations. In fact, both motions are entirely conclusory allegations with no 17 factual support. Plaintiffs’ entire motions seemingly hinge on the fact that Pederson appeared on 18 behalf of the Commissioners on March 24, 2023, but Skagit County did not authorize him to 19 represent the Commissioners formally until April 17, 2023 when the County voted and passed a 20 resolution. (See Exhibit 1 (Dkt. No. 27-1).) As Defendants rightfully point out, County 21 Commissioners cannot unilaterally hire another attorney because “county boards of 22 commissioners do not possess statutory authority to appoint outside counsel over the objection of 23 an able and willing prosecuting attorney.” State ex rel. Banks v. Drummond, 87 Wn.2d 157, 182

24 1 (2016) as amended (Feb. 8. 2017). Therefore, there is Washington State precedent to suggest that 2 the Commissioners had to utilize the prosecutor’s office for their representation. Further, the 3 time it takes Commissioners to meet and pass a resolution may very well surpass the 21 day 4 deadline they have to answer the Complaint. It is not unethical for defense counsel to defend a

5 client or protect their interests while the procedural obligations of authorizing counsel happen. 6 Finally, there is nothing to suggest that Pederson is likely to be a necessary witness in this action. 7 This is underscored by the fact that the Court has dismissed this action for lack of standing. For 8 these reasons, Plaintiffs’ arguments fail. 9 Accordingly, the Court DENIES Plaintiffs’ Motions for Disciplinary Action. 10 The clerk is ordered to provide copies of this order to all counsel. 11 Dated August 9, 2023. A 12 13 Marsha J. Pechman United States Senior District Judge 14 15 16 17 18 19 20 21 22 23 24