September 8, 2014

Hand Delivered

Ms. Felice P. Congalton
Associate Director
Office of Disciplinary Counsel
Washington State Bar Association
1325 Fourth Avenue, Suite 600
Seattle, WA 98101

RE: ODC File Nos. 14-01156; 14-01157; 14-01158; 14-01159

Grievants: Mark and Carol DeCoursey

Respondents: Robert M. Sulkin, Malaika M. Eaton,
Ryan P. McBride, and Grant Degginger

Dear Ms. Congalton:

Please consider this letter to the reply to the Respondents' “preliminary written response.”  It is divided into two sections with separate page numbers:

1. Introduction and list of undisputed violations, follows directly after this page.

2. Rebuttal of Respondents' arguments, presenting quoted passages from the Response, with direct rebuttals.

I. Introduction

In adjudicating this matter, the Consul must not lose sight of the key question: Have these lawyers violated the codes and standards required of practicing attorneys in Washington?

The Respondents have wandered (and would lead this tribunal) into many other matters, but really the questions are rather simple.  This is not a trial of our characters, despite the Respondents' efforts to make it such.

They attempt to justify their mendacity by pointing out that Judge Ricard D. Eadie, who presided over Lane Powell v. Mark & Carol DeCoursey, allowed them to lie and incorporated their the lies into his rulings.  But WSBA has no jurisdiction over Judge Eadie.  WSBA has jurisdiction over attorneys.  This is not a rehash of the trial, though some issues overlap.  This is not even a review of whether the judge should have been recused -- that too is outside purview of this body.  The judge's recusal is interesting only on the issue of whether his decisions may be consider prima facie correct.  The Respondents seem to argue from the position that whatever the judge ruled, this body must also agree.  However, the judge's qualification to preside over this case is a question still before the courts.  And this body works on a different standard of proof over a different set of laws and rules.  This body is not even confronted with the same set of facts.  Therefore, this body should not consider itself bound by the decisions of the court.

Let us review the violations of the RPC of which we have complained in our Grievance, and take an accounting of which the Respondents dispute.  In the process, we construct a list of the violations to which the Respondents tacitly admit culpability.  The various violations will be listed in sequence as they appear in the Grievance, which is roughly chronological.

All acts performed on behalf of Lane Powell by the lawyers at McNaul Ebel were performed on behalf of McBride and Degginger, who are full partners in Lane Powell.  The other Respondents have designated Malaika Eaton to represent and answer for them in this matter.  Therefore, let them stand or fall by the response she has provided – or failed to provide.

Respondents also lie to WSBA about myriad issues, offending against Title 8 of the Rules of Professional Conduct.  Will WSBA tolerate that?

Either WSBA will discipline those who flagrantly and repeatedly violate the Rules of Professional Conduct, or WSBA will tell the world that -- in the State of Washington -- it is OK for lawyers to lie in court and commit other flagrant violations of the Profession and their Oath to the Bar – and OK, too, for Washington lawyers to lie to the WSBA Disciplinary Counsel.

What the Respondents did, they did boldly, without any fear they would be disciplined.  And even now, despite our documentation of their misdeeds before the Washington State Bar, they still have no fear of discipline.  It appears that they fully expect WSBA will permit them to get away with lies they told in court: Flagrant and repeated violations of RPC 3.3, “Candor Towards the Tribunal,” and many others.

Note: This is a summary only.  Full details are in the text of the original Grievance and are not repeated here.  The words “Disputed” and “Not disputed” refer to the Response and whether the Respondents disputed the particular point in the Grievance.  Page numbers, where they appear, refer to the pages in the Grievance.

1. RPC 1.5: Whatever errors were committed by our attorneys of record, they were junior associates in the firm under the supervision of Degginger; therefore, any and all errors were Degginger's errors.	P. 39.
   Not disputed.

   
   

2. RPC 1.7, 1.8, 1.9 (particularly 1.7(a)(2)): Degginger failed to disclose his positional and political conflict of interest with our opponents in the real estate profession, both before approving the retainer agreement, and again before taking direct control of the case.	P. 40.
   Disputed.

   
   

3. RPC 1.7, 1.8, 1.9 (particularly 1.7(a)(2)): As mayor of Bellevue, Degginger failed to disclose his natural and positional alliance with the sister city of Redmond when he approved the retainer agreement, then required us dismiss Redmond as a defendant on his misapplication of the Public Duty Doctrine.	P. 40.
   Not disputed.

   
   

4. RPC 1.2 (RPC 1.0(e)): Degginger did not disclose that he had exempted himself from the Lane Powell conflicts disclosure prior to engagement.	P. 42.
   Not disputed.

   
   

5. RPC 1.2 (RPC 1.0(e)): Degginger failed to have us consult independent counsel prior to signing the retainer agreement to warn us of its pitfalls.	P. 43
   Not disputed.

   
   

6. RPC 1.2, 1.8: Degginger did not tell us that the Lane Powell firm had been instrumental in eviscerating the legislative intent of the Consumer Protect Act (CPA) by padding its bills in the 1987 case Nordstrom v. Tampourlos.  As a result of that case, the recovery of fees and costs under the CPA is severely limited.	P. 45.
   Not disputed.

   
   

7. RPC 1.2 (RPC 1.0(e)): Degginger did not disclose to us that any confidences given in the attorney client relationship (and confidences he might allege) could and would be used to blackmail us if fee dispute arose.	P. 45
   Not disputed.

   
   

8. RPC 1.7, 8.4: Prior to signing us to the retainer agreement, Degginger failed to disclose the risks of associated with the lawyer's dual role as both legal adviser and participant in the transaction.	P. 46.
   Not disputed.

   
   

9. RPC 1.8: Degginger admitted to the Court that he had acquired a proprietary interest in the case by arguing repeatedly that the Court had awarded fees to Lane Powell.	P. 46.
   Not disputed.

   
   

10. RPC 3.2: Degginger did not tell us that, by policy, Lane Powell did not use the Court Rules designed to expedite litigation, but took the long and expensive route of answering every spurious motion from opponents.	P. 48.
    Not disputed.

    
    

11. RPC 1.8: Degginger did not tell us that he intended to churn the case until we ran out of money, and then would continue the case on credit making us unable to terminate the relationship.  Thereby, Degginger would acquire a proprietary interest in our case, enabling him to turn it to his purposes, harvest the damages as legal fees, and mitigate the damage to his political friends and supporters in the real estate industry.

    P. 48.

    Not disputed.

    
    

12. RPC 8.4: Though it had a duty to disclose all material facts and conflicts of interest prior to engagement, Degginger concealed multiple material facts in the signing of the retainer agreement.  This was a violation of multiple statutes and principles of law, in addition to explicit clauses of the RPC.	P. 40-52.
    Not disputed.

    
    

13. RPC 1.7, 1.8, 1.9 (particularly 1.7(a)(2)): As the husband of a lawyer who had worked in the Attorney General's office for 18 years, Degginger did not tell us that his natural sympathies through his wife lay with the political insiders we were opposing and had worked to expose.	P. 52.
    Not disputed.

    
    

14. RPC 1.2, 1.3: Degginger's team pressured us to settle with the contractor and his company on a highly reduced scale, barely covering the legal fees incurred by wrestling with those litigants and negotiating a settlement, and not covering the damages. Degginger absorbed the lion's share in fees and created a continuing issue for legal argument thereafter, consuming more fees.	P. 55.
    Not disputed.

    
    

15. RPC 1.2, 1.3: Degginger preemptively set the goals for the case in favor of his political friends and supporters in the real estate profession, and did not operate us on our own goals for the litigation.
    Not disputed.

    
    

16. RPC 1.2, 1.3: Degginger's team refused to move the court for summary judgment on the argument that the defendants had admitted the key elements of the case under CR 8(d).  Such a motion could have reduced Lane Powell's final bill by hundreds of thousands of dollars in fees.	P. 56.
    Not disputed.

    
    

17. RPC 1.2, 1.3: Degginger's team pressured us to admit the opponents' experts into the house after the close of discovery to further an alleged settlement.	P. 56.
    Not disputed.

    
    

18. RPC 1.2, 1.3: Degginger's team pressured us to sell the house in settlement to our opponents to satisfy the legal fees, and leave ourselves without money and without a home.	P. 56.
    Not disputed.

    
    

19. RPC 1.2, 1.3: Degginger's team persisted and billed us for the time spent on the RPC 1.2, 1.3 violations listed above, despite our repeated insistence that Lane Powell should cease all work in those directions.	P. 56.
    Not disputed.

    
    

20. RPC 1.2, 1.3: Degginger's team urged us to settle for a catastrophic loss after the expense of a trial and before the jury verdict.	P. 58.
    Not disputed.

    
    

21. RPC 1.7, 1.8, 1.9: Degginger personally admitted that Lane Powell had an institutional conflict of interest with our case; that our victory was “not good for Lane Powell.”	P. 59.
    Not disputed.

    
    

22. RPC 1.2, 1.3: Without telling us, Degginger's team failed to move the court for the CPA triple damages award, despite the jury verdict finding the defendants in violation.	P. 59.
    Not disputed.

    
    

23. RPC 1.2, 1.3: Without telling us, Degginger's team failed to tax Windermere for several months of legal fees when computing its motion for fees under the CPA.  Once more, Degginger's political friends and supporters benefited by Degginger's friendship.	P. 60.
    Not disputed.

    
    

24. RPC 1.8(h)(1): Degginger's team insisted on having us sign an agreement that prospectively limited any claims of malpractice.	P. 61.
    Disputed.

    
    

25. RPC 1.7, 1.8, 1.9: Degginger's team pressured us into signing a modified fee agreement that it wrote without advising us to seek independent legal advice.	P. 61.
    Not disputed.

    
    

26. RPC 1.5, 1.8 Comment 3: Degginger treated our case as a contingency case without our express agreement, and while still charging hourly.	P. 61.
    Not disputed.

    
    

27. RPC 1.2, 1.3: Without telling us, Degginger's team failed to tax Windermere for the $21,000 in (alleged) costs Lane Powell had advanced to us at the fees motion hearing.  That claim was almost lost as a result.
    Not disputed.

    
    

28. RPC 1.2, 1.3, 1.4: Because the judgment was founded on the REPSA contract as well as tort, the Judge Fox had originally ordered 12% post-judgment interest.  Without informing us, Degginger's team made a secret agreement with our Windermere opponents to discount the post judgment interest rate ordered by the judge (12%) to a rate far below the lowest statutory rate (3.935%).  Degginger's team specified 3.49% in the judgment by request of the opponents' attorney.

    P. 62.

    Not disputed.

    
    

29. RPC 1.1, 1.2, 1.3: Degginger personally advised us contrary to fact and law by insisting that the discounted post-judgment interest rate of 3.49% must prevail, even after the legislature had retroactively raised the rate to 5.25%.	P. 62.
    Not disputed.

    
    

30. RPC 1.1, 1.2, 1.3: McBride failed to ask for a reconsideration after the Court of Appeals reversed a court ruling that had not been challenged or argued by the appellant, despite Lane Powell's specific written contractual promise (Dec. 30, 2008 agreement): “Lane Powell will also help you with regard to the same as necessary to prevail in or retain the awards discussed.”	P. 63, 74.
    Disputed only on the issue of whether he should have done so. Otherwise Not disputed.

    
    

31. RPC 8.4(c): McBride and Degginger lied to us about the current practice of limiting the CPA costs fees to those listed in RCW 4.84.110.  The practice was not established by statute, but by Lane Powell's own case, Nordstrom v. Tampourlos, 107 Wn.2d 735, 733 P.2d 208 (1987).	P. 71.
    Not disputed.

    
    

32. RPC 1.1, 1.2, 1.3: McBride failed to move the Court of Appeals for the nine hours of fees incurred in composing his affidavit of fees.	P. 76.
    Not disputed.

    
    

33. RPC 8.4(c): McBride and Degginger lied to us about the ability of the Supreme Court to review and modify the current practice concerning CPA awards (“The Supreme Court has no discretion...”).  Since the current practice had been set thus by the Supreme Court, it could be changed by the Supreme Court; an act of legislature was not required.	P. 79.
    Not disputed.

    
    

34. RPC 1.1, 1.2, 1.3, 1.16: Degginger and McBride lied about intending to withdraw from the case, flatly refused to follow our instructions, then threatened to withdraw when it was too late to replace Lane Powell as legal counsel, in order to defeat our efforts to correct the errors of the Court of Appeals and/or change the Nordstrom precedent.  30 days is insufficient time to locate and hire new counsel, educate the new counsel on the case, then have the new counsel write a brief opposing a Supreme Court petition with a cross-petition language.

    P. 84.

    Not disputed.

    
    

35. RPC 8.4(c): McBride and Degginger lied to us about the Supreme Court requiring briefs to be hand-delivered to the Court.	P. 85.
    Not disputed.

    
    

36. RPC 1.0(d): "Fraud" or "fraudulent" denotes conduct that has a purpose to deceive and is fraudulent under the substantive or procedural law of the applicable jurisdiction, except that it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.  Nor is it necessary for anyone to prove damages or reliance upon the lawyer's lies.
    Not disputed.

    
    

37. RPC 1.1, 1.2, 1.3, 1.8: Strengthening the CPA would have severe adverse consequences for Degginger's political friends and supporters, and for Lane Powell's other corporate clients. McBride and Degginger chose to act in favor of those parties rather than as we instructed them.	P. 86.
    Not disputed.

    
    

38. RPC 8.4(c): Degginger fraudulently billed for a second (fictional) conference call on March 1.	P. 87.
    Not disputed.

    
    

39. RPC 1.1, 1.2, 1.3: In email (not court documents), McBride objected to an Amicus Curiae brief that was filed in favor of our answer to the Supreme Court petition; that brief argued in favor of strengthening the CPA.	P. 89.
    Not disputed.

    
    

40. RPC 8.4(c): On Aug. 2, 2011, McBride lied to us about the imminence and other particulars of the proposed partial payment from Windermere.	P. 91.
    Not disputed.

    
    

41. RPC 3.3, 4.1, 8.4(c): The Respondents lied to the Eadie court that McBride told us of the partial payment before we told them to stop work on the case.  The Respondents also misrepresented those facts to this Counsel.	P. 91.
    Disputed.

    
    

42. RPC 8.4(c): When challenged, Degginger stopped billing to the case and refunded some of the fees he had charged, effectively admitting he added no value to the case (as we claimed) and that his billings to the case had been improper.	P. 93.
    Not disputed.

    
    

43. RPC 1.8: Degginger insisted on receiving the entire award into Lane Powell's trust, and holding hostage to Lane Powell's fee demands, to be paid to us when we acceded to those demands in full.	P. 96.
    Not disputed.

    
    

44. RPC 8.4(c), 3.4: Degginger lied to Michelle McNeil that he did not know we had any problems with Lane Powell's legal services.	P. 97.
    Not disputed.

    
    

45. RPC 3.4(a), 1.16(d) : Degginger and McBride failed to maintain the costs documentation in a form that could be claimed against Windermere on the remand, and indicated in their comments that they had no intention of claiming for it.  When asked for the documentation, the Degginger complained that it would be a “lot of work” and refused to give it; representing him, Sulkin pretended he had been asked for “legal advice” and also refused to give it.

    P. 98.

    Not disputed.

    
    

46. RPC 3.3, 4.1, 8.4(c): The Respondents lied to the Eadie court about our purpose for terminating Lane Powell's legal representation.	P. 99.
    Disputed.

    
    

47. RPC 3.3, 4.1, 8.4(c): The respondents lied to the Eadie court about being kept in the dark during the remand.	P. 100, 128.
    Not disputed.

    
    

48. McBride and Degginger had Lane Powell file against DeCourseys despite Lane Powell's explicit promise in the fee agreement (Dec. 30, 2008), “Lane Powell will forbear for a reasonable time on collecting the balance and will assist you your motion for attorneys fees and costs ...”  The term “reasonable time” is defined in earlier correspondence to mean, “we will forbear on demanding payment on the balance of the amount owed until payment on the judgment or settlement with Windermere.”  When Lane Powell filed suit on October 5, 2011, we were still a month from “payment on the judgment.”  Forbearance was necessary because, as Lane Powell recognized repeatedly, we are people of modest means and were incapable of paying the invoice until payment on the judgment.  In essence, the suit was pure harassment.

    P. 101, 108.

    Disputed.

    
    

49. RPC 3.3: The Respondents told the Eadie court that “However, the DeCourseys have breached and repudiated their agreement with Lane Powell by terminating Lane Powell and interfering with payment of Lane Powell's fees and costs.”  However, Respondents failed to tell the court of the explicit wording in the retainer agreement that provided, “Both you and we have the right at any time to terminate the relationship.”  Respondents also failed to tell the court that the costs and fees were awarded to DeCourseys, not to Lane Powell, and Lane Powell had no legal claim to that money until DeCourseys took possession of it.

    P. 112.

    Not disputed.

    
    

50. RPC 1.8: The Respondents' complaint (in Eadie's court) show that Degginger and McBride were trying to: “... structure the transaction ... at the expense of the client,” that is, to take an early payout of the award even if it required us to take another reduction on the judgment.	P. 113.
    Not disputed.

    
    

51. RPC 3.2, 8.1(d), 8.4 (Extortion): The day after Lane Powell filed suit, Sulkin telephoned Paul Fogarty, who had represented us when attempting to negotiate the invoice with Lane Powell, and threatened that Lane Powell was willing to spend $800,000 in legal fees to recover $300,000 from us.  The purpose of the call was quite obviously to discourage Fogarty – and any other attorney – from representing us on contingency.  And it worked.  This is “conduct that is prejudicial to the administration of justice.

    P. 110, 114.

    Not disputed.

    
    

52. RPC 3.3: The Respondents misrepresented the law and precedent to Eadie's court on the subjects of privilege and discovery.  Quoting the Tegland desk reference, they cherry-picked the wording to make it appear it said the opposite of what it really says.  And they cite no case law because none would support their position.	P. 119.
    Disputed.

    
    

53. RPC 1.6, 8.4 (Extortion):: The day Lane Powell filed suit, the Respondents demanded that ALL attorney client confidential information be produced in discovery, in violation of CR 26(b) and RPC 1.6.  Since intentional production of confidences in discovery waives the privilege, this was blackmail: We must either capitulate to the claims of the plaintiff, or have all attorney client confidences exposed in evidence.  This is also a criminal act under State law.

    P. 110, 116, 120, 126.

    Disputed.

    
    

54. RPC 3.3: The Respondents argued (11/10/2011) that we had waived the privilege, though the discovery materials were demanded before we had spoken or written Word One to the court.  They next argued (12/5/2011) that the judge had waived our privilege, though Judge Eadie never mentioned the word until July of the following year.  They next argued (7/9/2012) that we still held the privilege and they could not produce privileged material to us without an ethical violation: “Consistent with its ethical obligations, Lane Powell has not produced documents which may be subject to DeCourseys’ privilege claim.  Lane Powell is willing to produce those documents as long as DeCourseys agree in writing that the privilege is waived.”  Then the Respondents began producing documents in evidence (December 12, 2012) that they claimed were acquired under the seal of privilege.  Since not all of those statements could be true, one or more must be a lie.

    P. 124.

    Not disputed.

    
    

55. RPC 4.8(c): The Respondents lied to the Eadie Court about the total fees found reasonable by other courts.  The figures for each court are these: $356,482 (Superior) + $47,600.61 (Appeals) + $11,978 (Supreme) = $416,060.61 (total).  The Superior Court added a 30% multiplier, but the multiplier was calculated after the reasonable determination, and was awarded to us, not to Lane Powell.	P. 151.
    Not disputed.

    
    

56. RPC 3.3: McBride lied to the Court that “DeCourseys were very difficult clients” and that we had proposed “outlandish” arguments, despite the multiple times we had corrected his briefs for fact, law, grammar, and syntactic errors, as recorded in multiple emails, and won his contemporaneous gratitude therefor.
    Not disputed.

    
    

57. RPC 3.3, 4.1, 8.4(c): The respondents lied to the Eadie court about many other issues, fully detailed and documented in the chart/table/matrix entitled, “The Truth, the Lie, and the Judge,” found in Part II, Chapter 2 of the Grievance and included for convenience with this Reply.  Lying under oath to a judge is also a criminal act under State law.	Grievance, Part II, Chapter 2.
    Not disputed.

    
    

Original June 20, 2014 exhibits contained in Books 2 through 6 are herewith resubmitted.

           /signed/            

Mark H. DeCoursey

           /signed/            

Carol DeCoursey

8209 172^nd Ave NE
Redmond, WA 98052
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