Leishman v. Washington Attorney General's Office

Opinion

1 HONORABLE RICHARD A. JONES

8 UNITED STATES DISTRICT COURT AT SEATTLE 10 Roger Leishman, 11

Plaintiff, 12 Case No. 2:20-cv-00861-RAJ v.

Washington Attorney General’s Office et 14 al., 15 Defendants. 16 17 I. INTRODUCTION This matter comes before the Court on Plaintiff’s Motion to Disqualify Counsel 18 and to Direct Parties to Participate in Alternative Dispute Resolution (Dkt. # 42) and 19 Defendants’ Motion to Seal Declaration of Roger Leishman and Attached Exhibits C, E, 20 and N (Dkt. # 57). Having considered the submissions of the parties, the relevant 21 portions of the record, and the applicable law, the Court finds that oral argument is 22 unnecessary. For the reasons below, Plaintiff’s motion to disqualify is DENIED, and 23 Defendants’ motion to seal is DENIED. 24 25 II. DISCUSSION 26 A. Motion to Disqualify (Dkt. # 42) Plaintiff Roger Leishman moves to disqualify Defendant Allyson Janay Ferguson 27 1 from representing fellow Defendants in this matter. Dkt. # 42. He argues that she has 2 “violated professional rules regarding candor, conflicts of interest, and invidious 3 discrimination” and should be disqualified accordingly. Id. at 2. Beyond her 4 disqualification, Mr. Leishman requests that no member of the Washington Attorney 5 General’s Office (“AGO”) be permitted to represent Defendants in this action. Id. 6 Instead, he seeks an order from this Court appointing a Special Assistant Attorney 7 General to represent Defendants. Id.1 8 i. Legal Standard 9 District courts bear the “primary responsibility” for “controlling the conduct of 10 lawyers practicing before [them].” Trone v. Smith, 621 F.2d 994, 999 (9th Cir. 1980). 11 When considering a motion to disqualify counsel, a court “first refers to the local rules 12 regulating the conduct of members of its bar.” Avocent Redmond Corp. v. Rose Elecs., 13 491 F. Supp. 2d 1000, 1003 (W.D. Wash. 2007) (quoting United States v. Titan Pac. 14 Constr. Corp., 637 F. Supp. 1556, 1560 (W.D. Wash. 1986)). Attorneys in the Western 15 District of Washington must comply with the Washington Rules of Professional Conduct 16 (“RPC”), as promulgated and interpreted by the Washington State Supreme Court. Local 17 Rules W.D. Wash. LCR 83.3(a)(2). See also In re Cty. of Los Angeles, 223 F.3d 990, 995 18 (9th Cir. 2000). 19 Given their “potential for abuse,” disqualification motions should be subjected to 20 “particularly strict judicial scrutiny.” Optyl Eyewear Fashion Int’l Corp. v. Style 21 Companies, Ltd., 760 F.2d 1045, 1050 (9th Cir. 1985) (quoting Rice v. Baron, 456 F. 22 Supp. 1361, 1370 (S.D.N.Y. 1978)); see also FMC Techs., Inc. v. Edwards, 420 F. Supp. 23 2d 1153, 1157 (W.D. Wash. 2006) (acknowledging that disqualification is a “drastic 24 measure,” requiring a court to “consider the danger of a motion to disqualify opposing 25

26 1 Initially, Mr. Leishman requested an order from this Court directing the parties to participate in early alternative dispute resolution under Local Rule 39.1. Dkt. # 42 at 11- 27 12. He has since withdrawn that request. Dkt. # 80. 1 counsel as a litigation tactic”). 2 ii. Rules of Professional Conduct 3 Mr. Leishman accuses Ms. Ferguson of violating three Rules of Professional 4 Conduct: RPC 3.3, RPC 3.7(a), and RPC 8.4(g).2 Dkt. # 42 at 9-10. In support of his 5 accusations, he offers no serious argument. Mr. Leishman simply states that Ms. 6 Ferguson’s violation of each rule is obvious and that no further explanation is required: 7 he cites a rule, concludes that she violated it, and turns to the next. Id. The Court finds 8 his arguments conclusory and unsupported. In any event, the Court measures Ms. 9 Ferguson’s conduct against the three rules identified. 10 (1) RPC 3.3 11 Under RPC 3.3(a), a lawyer must not knowingly “make a false statement of fact or 12 law to a tribunal or fail to correct a false statement of material fact or law previously 13 made to the tribunal by the lawyer.” If a lawyer has offered such evidence, however, and 14 comes to know of its falsity, “the lawyer shall promptly disclose this fact to the tribunal.” 15 RPC 3.3(c). Comment two to the rule states that a lawyer must present a client’s case 16 with “persuasive force” and is not required to “present an impartial exposition.” RPC 3.3 17 cmt. 2. Yet a lawyer “must not allow the tribunal to be misled by false statements of law 18 or fact or evidence that the lawyer knows to be false.” Id. 19 Mr. Leishman argues that Ms. Ferguson made “multiple false and misleading 20 statements” to this Court while moving to dismiss his complaint. Dkt. # 42 at 7-8. Those 21 false statements, he says, can be found in Defendants’ principal and reply briefs. Id.; see 22 also Dkt. ## 26, 30. The statements are (1) Mr. Leishman did not file a standard tort 23 claim for any claim, (2) his March 2, 2016 discrimination complaint was made to “excuse 24 his conduct” the day before, (3) he “fully settled and resolved his claims arising from his 25 2 Though he cites RPC 1.7, the rule governing conflicts of interest, Mr. Leishman does 26 not base his motion on that rule. See Dkt. # 42 at 9-10. The Court thus does not analyze RPC 1.7 and need not determine whether Mr. Leishman lacks standing to bring a 27 conflicts of interest challenge in the first place, as Defendants suggest. Dkt. # 44 at 7. 1 employment,” (4) he “prejudiced” Defendants by forcing them to file a reply brief in 2 shortened time, and (5) his objections to further contact with Ms. Ferguson were because 3 of his bias against her sex. Id. 4 Besides the motion to dismiss briefing, Mr. Leishman argues that, after he filed 5 bar grievances against Defendants Esquibel and Hanson, Ms. Ferguson (and other 6 Defendants from the AGO) came to Mr. Esquibel and Ms. Hanson’s defense. Dkt. # 42 7 at 6. He says during that matter “[t]he AGO made multiple false statements.” Id. He 8 does not identify any specific statements made by Ms. Ferguson. Id. He only says that 9 she was “one of the lawyers who worked on the matter.” Id. 10 Only one of the supposed misrepresentations, the first, is worth addressing. The 11 rest are either opinions or not misstatements at all. For example, the motive behind Mr. 12 Leishman’s filing of a work complaint, the scope of his settlement with the AGO, 13 whether Defendants were prejudiced by his untimely filing, and his motives for seeking 14 to disqualify only Ms. Ferguson (and not her co-counsel) are all colorable arguments. 15 They are not obviously true or untrue, making RPC 3.3(a) a poor fit. And Ms. 16 Ferguson’s time entries in a separate disciplinary proceeding are not misstatements at all. 17 Dkt. # 11-1 at 113-17. A general charge that the AGO (and, by implication, Ms. 18 Ferguson) “made multiple false statements”—without any explanation of what Ms. 19 Ferguson specifically said at the proceeding—is nebulous. 20 As for the first supposed misrepresentation, Defendants mistakenly argued in their 21 motion dismiss that Mr. Leishman failed to comply with the Washington Tort Claims 22 Act. Dkt. # 26 at 11-12. This Court previously explained, however, that Defendants later 23 filed an errata correcting their misstatement. Dkt. # 67 at 7; see also Dkt. # 27. This 24 does not violate RPC 3.3—it was a mistake that Defendants promptly corrected. Thus, 25 the Court finds no violation of RPC 3.3. 26 (2) RPC 3.7(a) 27 RPC 3.7(a) maintains: (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely 1 to be a necessary witness unless: 2 (1) the testimony relates to an uncontested issue; 3 (2) the testimony relates to the nature and value of legal services 4 rendered in the case; 5 (3) disqualification of the lawyer would work substantial hardship on the client; or 6 (4) the lawyer has been called by the opposing party and the court 7 rules that the lawyer may continue to act as an advocate. 8 When interpreting this provision, “courts have been reluctant to disqualify an 9 attorney absent compelling circumstances.” Pub. Util. Dist. No. 1 of Klickitat Cty. v. Int’l 10 Ins. Co., 881 P.2d 1020, 1033 (Wash. 1994). “A motion for disqualification under RPC 11 3.7 must be supported by a showing that (1) the attorney will give evidence material to 12 the determination of the issues being litigated, (2) the evidence is unobtainable elsewhere, 13 and (3) the testimony is or may be prejudicial to the testifying attorney’s client.” State v. 14 Sanchez, 288 P.3d 351, 364 (Wash. Ct. App. 2012) (citing Pub. Util. Dist., 881 P.2d at 15 1033). 16 To start, excluding Ms. Ferguson under this rule would be premature. The plain 17 language of RPC 3.7(a) is “unequivocally clear”: it prohibits, with certain exceptions, 18 attorneys from “acting as an advocate at trial.” United States Fire Ins. Co. v. Icicle 19 Seafoods, Inc., No. 2:20-cv-00401-RSM, 2021 WL 843155, at *3 (W.D. Wash. Mar. 5, 20 2021) (emphasis in original). Whether Ms. Ferguson will be called as a witness at trial is 21 a matter of speculation. Here, trial has not even been scheduled yet. Dkt. # 48. 22 More importantly, Mr. Leishman fails to show any circumstances, let alone 23 compelling ones, requiring disqualification under RPC 3.7. He has not shown that Ms. 24 Ferguson will give evidence material to determination of the issues being litigated. Ms. 25 Ferguson, on the other hand, represents that before this action she had next to no 26 interaction with Mr. Leishman. Dkt. # 44-1. Further, for the remaining two prongs, he 27 1 fails to show that such material evidence (to the extent it exists) would be unobtainable 2 elsewhere and that Ms. Ferguson’s potential testimony would be prejudicial. Hence, Mr. 3 Leishman fails to meet his burden to show disqualification under RPC 3.7. 4 (3) RPC 8.4(g) 5 Under RPC 8.4(g), it is professional misconduct for a lawyer to “commit a 6 discriminatory act prohibited by state law on the basis of . . . sexual orientation . . . , 7 where the act of discrimination is committed in connection with the lawyer’s professional 8 activities.” 9 There is simply no evidence that any of the actions Mr. Leishman complains of 10 (see supra Section II.A.ii.1) were discriminatory acts on the basis of his sexual 11 orientation. Mr. Leishman makes a serious charge without any support. Dkt. # 42 at 10. 12 The Court rejects it. 13 Finally, because the Court does not disqualify Ms. Ferguson, it need not reach Mr. 14 Leishman’s remaining argument that the Court should appoint a Special Assistant 15 Attorney General to appear on behalf of Defendants. Dkt. # 42 at 10-11. 16 iii. Meet and Confer 17 To date, despite this Court’s standing order, Mr. Leishman has apparently refused 18 to confer with Defendants’ counsel. Dkt. # 6 ¶ 6 (standing order) (“[C]ounsel 19 contemplating the filing of any motion shall first contact opposing counsel to discuss 20 thoroughly, preferably in person, the substance of the contemplated motion and any 21 potential resolution. The Court construes this requirement strictly.”); see also Dkt. # 57 at 22 2-3; Dkt. # 72 at 2; Dkt. # 75 at 2. He has refused to do so because communications with 23 Ms. Ferguson, he represents, triggers his post-traumatic stress disorder symptoms. Dkt. 24 # 43 at 122-28. 25 The Court has now ruled on Mr. Leishman’s motion to disqualify and does not 26 disqualify Ms. Ferguson as counsel for Defendants. Going forward, absent a request to 27 this Court for an accommodation, the Court expects Mr. Leishman to satisfy his meet and 1 confer obligations. 2 B. Motion to Seal (Dkt. # 57) 3 “Historically, courts have recognized a ‘general right to inspect and copy public 4 records and documents, including judicial records and documents.’” Kamakana v. City & 5 Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner 6 Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a 7 sealing request, “a strong presumption in favor of access is the starting point.” Id. 8 (internal quotation marks omitted). 9 Generally, two standards govern motions to seal. Pintos v. Pac. Creditors Ass’n, 10 605 F.3d 665, 678 (9th Cir. 2010). A “compelling reasons” standard applies to most 11 judicial records, including those attached to dispositive motions. Id.; see also Kamakana, 12 447 F.3d at 1179. On the other hand, a “good cause” standard applies to nondispositive 13 motions. Pintos, 605 F.3d at 678. 14 Responding to Defendants’ motion to dismiss, Mr. Leishman filed a declaration 15 and several exhibits. Dkt. ## 29, 29-1, 29-2, 31. Defendants move to seal the entire 16 declaration and Exhibits C, E, and N attached thereto. Dkt. # 57. Because the records 17 were attached in response to Defendants’ motion to dismiss, a dispositive motion, the 18 Court applies the “compelling reasons” standard. 19 Under that standard, “a party seeking to seal judicial records must show that 20 ‘compelling reasons supported by specific factual findings . . . outweigh the general 21 history of access and the public policies favoring disclosure.” Pintos, 605 F.3d at 678 22 (quoting Kamakana, 447 F.3d at 1178-79). The standard requires the court to “weigh 23 ‘relevant factors,’ base its decision ‘on a compelling reason,’ and ‘articulate the factual 24 basis for its ruling, without relying on hypothesis or conjecture.’” Id. at 679. A party 25 requesting to seal a judicial record must meet this standard “even if the dispositive 26 motion, or its attachments, were previously filed under seal or protective order.” 27 Kamakana, 447 F.3d at 1179. 1 Defendants argue that the documents here should be sealed for two reasons. First, 2 in a previous state action, a document identical to Exhibit C in this action (Dkt. # 29-1 at 3 9-21) was ordered to be sealed. Dkt. # 57 at 6-7; see also Dkt. # 58 at 15-18. Second, in 4 that same state court action, the state court entered an order prohibiting Mr. Leishman 5 from “us[ing] or otherwise disseminat[ing] any discovery materials” that he received 6 from defendants in that action. Dkt. # 58 at 19-22. Defendants argue that Exhibit E (Dkt. 7 # 31 at 3-4) and Exhibit N (Dkt. # 29-1 at 54-55) are in fact “discovery materials” 8 produced in the state court litigation. Dkt. # 57 at 6-7. 9 Defendants fail to meet the compelling reasons standard. Indeed, they do not cite 10 the standard at all. See Dkt. ## 57, 62. Their arguments rest entirely on a state court’s 11 previous orders. That court may well have had compelling reasons to seal documents in 12 that action and may well have been justified in preventing Mr. Leishman from using 13 discovery documents in the future. But Defendants have not made their case in this 14 action. Protective orders and the previous sealing of documents do not, themselves, show 15 compelling reasons. See Kamakana, 447 F.3d at 1179. Currently, the Court does not 16 have the information it needs to conclude that the documents in question3 meet the 17 compelling reasons standard. 18 What is more, under the local rules of this district, a party moving to seal a 19 document must include a “specific statement” explaining “why a less restrictive 20 alternative to the relief sought is not sufficient.” Local Rules W.D. Wash. LCR 21 5(g)(3)(B)(iii). Defendants fail to explain why the documents in question must be filed 22 entirely under seal rather than redacted. 23 Defendants’ motion to seal is therefore DENIED. 24 / / / 25

26 3 In their reply, Defendants request that another exhibit (one that Mr. Leishman attached to his response to the motion to seal) also be sealed. Dkt. # 62 at 4-7. Supposedly, that 27 new exhibit references Exhibit C. That request is rejected for the same reasons. 2 For the reasons stated above, the Court DENIES Mr. Leishman’s Motion to 3 Disqualify Counsel and to Direct Parties to Participate in Alternative Dispute Resolution 4 (Dkt. # 42) and DENIES Defendants’ Motion to Seal Declaration of Roger Leishman and 5 Attached Exhibits C, E, and N (Dkt. # 57). 6 7 DATED this 27th day of August, 2021. A 8

9 The Honorable Richard A. Jones 10 United States District Judge 11

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