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Part I, Chapter 1: The Windermere Lawsuit
Case No. 06-2-24906-2 SEA
The Trial Court -- Chapter Outline
The Windermere Offense
We Are Sued
We Develop Our Case Pro Se
We Meet Accomplished Young Lawyer (“Mr. Good”)
$100,000 Case Estimate (Through End of Trial)
Not Told About Grant Degginger, Mayor of City of Bellevue
We Sued City of Redmond
Rule of Professional Conduct RPC 1.7(a)(2):
Degginger’s Strong Ties to Development/Real Estate Industry Not Disclosed
Not Told About Degginger’s Campaign Contributors
Degginger’s Undisclosed Connection to Windermere
Degginger Should Have Disclosed His Conflict of Interest
“Institutional Conflict of Interest”
Orwellian Appointment of Degginger to Public Disclosure Commission in 2012
Degginger as Rainmaker
Conflicts Check
Contract and Fiduciary Duty Violations
Lawyer/Client Agreements (RPC 1.8)
Not Advised to Seek Outside Counsel
Playing Field Not Level
We Entered into Relationship Without Informed Consent (RPC 1.2)
Uninformed, We Sign Retainer Agreement with Nine Percent (9%) Interest Provision
Knowledge of “Scorched Earth” Strategy Not Revealed
Lane Powell Did Not Fully Reveal What It Knew
Termination of Representation Clause
Confidentiality Clause
Purpose of Consumer Protection Act
Lane Powell Receives Well Developed Case
Hope of Recovery
Degginger Acquires Proprietary Interest in Our Case (RPC 1.8)
Legislative Proposal
No Attempt to Contain Scorched Earth Litigation Strategy
“Scorched Earth” Fees Not Recoverable Under CR 11
Motion Testifies to Windermere’s Use of “Scorched Earth” Strategy
Why Tolerate Abuse of Court Process?
Abuse of Process Creates Billable Hours
“Scorched Earth” Used To Justify Billing
Legislative Proposal
We Ask Whether Awards Would Be Taxable
Windermere Lawyers “Just Doing Their Job”
Twenty-Seven (27) Timekeepers Billed to Case
Lawyers And Paralegals Operate Photocopying Machines
Degginger Must Have Known Photocopying Was Not Covered
Frivolous Phone “Negotiations”
Degginger Was Warned About Effect on DeCourseys
“DeCourseys Can’t Afford to Go to Trial”
The Sound Transit Controversy
Degginger’s “Indirect” Benefit Not Addressed
How Could Degginger Vote Against Lane Powell’s [Monied] Client?
DLA Piper Accused of Bill Padding
Complicit Govt. Agencies Help Windermere Flout the Law
We Expose “Old Boy” Connections in Corruption
Degginger’s Team Refuses to Include Our Additional Public Interest Impact Witness
Aggressive CPA Prosecution Might Be “Not Good” For Degginger
Our Situation Was an Exception
Bathtub Electrified At 110 Volts AC
Degginger’s Role As Advisor (RPC 1.2)
Forced Settlement With Contractor
Degginger Strikes a Vein of Gold
Legislative Proposal
Booze & Porn Sites May Not Have Impressed Jury
Forced to Sign Secrecy Agreement
“The cost of ignoring ... cannot be overstated.”
We Are Pressured To Admit Windermere Experts and Sell Home
We Reject Plan, But Degginger’s Team Insists
We Refuse to Give Advantage to Windermere
Windermere Insists on “The Dark Clause” of Utter Silence
Degginger Billed Us for Work We Did Not Want Done
Scope of Representation (RPC 1.2)
Windermere Has No Case to Present
October 30, 2008: We Are Advised to Surrender
October 31, 2008: Jury Awards Us Victory
Invoices at $480,000 After Trial Activities
Jury’s CPA Findings Ignored
Degginger’s Remarkable Admission
Degginger’s Refusal to Answer Conflict of Interest Questions
Paul Fogarty, Esq. Confirms Our Observations
Not Possible to Segregate Costs
Why Judge Awarded 1.3 Multiplier
Contingency Fee Case Discussed, But Not Formalized
Contingency Fee “De Facto” Arrangement
Internal Memo Calls Our Case “Contingent”
Degginger Did Not Advise Us to Seek Outside Counsel
DeCourseys Required to State Fees Were “Honestly Derived”
Lane Powell Promises to Forbear and Assist
Real Estate Purchase & Sales Agreement
What the Trial Judge Ordered
Windermere Gets $260,000 Gift. We Get $268,000 Loss
(From 12% to 3.49% Interest -- In Our Disfavor)
Secret February Give-Away
Resultant Judgment a Surprise to Us
RPC 1.4
Conflicting Stories
We Object to Being Gouged
Low Interest Rate Encourages Windermere’s Abuse of Process
Conflict of Interest, Comment 3 of RPC 1.8 Lays It Out
Mr. Good’s Abrupt Departure From Lane Powell
We Complain About Interest Anomaly
What’s Good for the Goose Should Be Good for the Gander
In 2011, Still No Intention to Correct Interest Rate
Replacement Counsel Worked for Our Benefit
Lack of Professionalism Knows No Bounds
Is it Safe to Jump Out of a Hijacked Aircraft in Mid-Flight?
See Our Complaints
But What of Our Praise?
Part I, Chapter 1: The Windermere Lawsuit
The Trial Court
Case No. 06-2-24906-2 SEA
Lane Powell’s Conflict
of Interest
Our Consumer Protection Lawsuit Becomes a Cash Cow --
The Great Fee and Interest Ripoff
Note: Some Exhibits have been redacted in accordance with a settlement agreement with the contractor
who ruined our house.
The Story Begins
The Windermere Offense. In 2004, and still new to Washington, we were searching for a
home. Windermere agent Paul Stickney was helping us. Stickney put together a combination home purchase and
renovation package for us in Redmond. But Stickney did not tell us the contractor he brought into the deal was his
business partner and was not licensed as a contractor in Washington. Upon Stickney’s recommendation and
relying on his work-up of the figures, we bought the home and the contractor began work. The contractor destroyed
the value of the home. More details at http://RenovationTrap.com.
We Are Sued. On March 29, 2006 we were sued by an electrical subcontractor who claimed
the prime contractor (Stickney’s business partner) had not paid him. (Case No. 06-2-24906-2 SEA.) We
invited the interested parties to negotiate a peaceful settlement, but the interested parties refused to negotiate:
Windermere specifically insisted we sue. We then followed Washington’s “Third Party Practice”
rules; we filed a Consumer Protection Act case against the contractor, the City of Redmond, the real estate agent, and
Windermere. We represented ourselves until September 19, 2007.
We Develop Our Case Pro Se. During our pro se representation, we spent
hundreds of hours and tens of thousands of dollars developing the case. We (a) prompted government investigations
of the contractors and Stickney, (b) identified many of the experts and witnesses that would be used at trial, (c)
found a construction attorney and his wife who had been similarly victimized by the agent and his business partner
(proving the public interest Consumer Protection Act (“CPA”) element), (d) researched and developed the
legal theory that would win the case at trial, (e) attended depositions, (f) served discovery requests on the parties,
and (g) wrote and filed our Third Amended Answer and Counterclaims.
We Meet Accomplished Young Lawyer (“Mr. Good”). In September, 2007, we
wanted to hire a lawyer for the upcoming trial. A young lawyer was recommended to us -- he had recently won a
trial against an attorney we would be facing. He had just started to work at Lane Powell. We liked him and
he liked our case. We knew no specific details about Lane Powell, merely knew it was a large, full service
firm. We were pleased that this accomplished young lawyer (to whom we will assign the pseudonym
“Mr. Good”) would have such institutional experience behind him.
$100,000 Case Estimate (Through End of Trial). Mr. Good told us to expect legal
fees/costs to reach as much as $100,000 through to end of trial. Since Consumer Protection Act cases had attorney
fee provisions, we anticipated being reimbursed for the fees. We had $100,000 in a retirement fund and knew we
could pay the estimated cost. (As the reader will learn, after trial activities, we had been invoiced for
approx. $480,000.)
[NOTE: The $100,000 estimate did not appear in the Retainer Agreement, but was mentioned in
subsequent correspondence. (Exhibit December 10, 2008,
Pg. 1 par. 5.)]
So we asked the newly hired Mr. Good to represent us. Our Agreement to retain Lane Powell was signed on
September 19, 2007. (Exhibit September 19, 2007
(1).)
With Whom Did We Actually Sign the Contract?
And Who Did the Court Recognize Was Representing
Us?
Legally speaking, because Mr. Good worked for Lane Powell, the retainer agreement we signed was with
the firm of Lane Powell, a professional corporation. The Court recognized that Lane Powell was our representative
in court. It was Lane Powell, not Mr. Good, who was our fiduciary. The Bar permits complaints to lodged
against individual lawyers and individual lawyers to be disciplined. There is no provision to sanction a
firm. But Lane Powell was the employer of the individual lawyers who worked on our case. We paid Lane
Powell, not the individual lawyers. Hence we hold both the individual lawyers and Lane Powell (and Lane
Powell’s legal representatives, Robert Sulkin, Malaika Eaton, and McNaul Ebel Nawrot & Helgren) responsible
for what happened to us. In this we rely on the legal doctrine respondeat superior, and refer back to our
“Introduction: Our Support” for further legal support of our position.
We should now turn attention to the rules that govern the conduct of lawyers.
Rules of Professional Conduct (“RPC”)
Lawyers must be licensed to practice law. The Bar is the organization of licensed lawyers that
set the standards for the conduct of their members. According to the website of the Washington State Bar:
As
members of a profession and officers of the court, lawyers are obligated to act in a professional manner, obey the law,
avoid conflicts of interest, and to put the interests of clients ahead of their own interests.
The Bar can discipline members, file charges against them, and recommend disbarment. The
Bar’s standards are set forth in the Rules of Professional Conduct (“RPC”). Throughout this
report, we will compare the standards of conduct enunciated in the Rules of Professional Conduct with the actual
conduct of the attorneys of whom we complain. Among those Rules is this:
RPC
5.1
Responsibilities of Partners, Managers, or Supervisory Lawyers
a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses
comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the
other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's
violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct
involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other
lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when
its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Was Representation Undertaken in Good Faith?
Or Was There Fraud In The Inducement?
Not Told About Grant Degginger, Mayor of City of Bellevue. At the time we agreed to
have Mr. Good take us to trial, the politically ambitious Bellevue Mayor and City Councilman, Republican Grant
Degginger, did not ensure that we were told of his connections and that he would be supervising the work.
We Sued City of Redmond. At the time Degginger’s litigation group agreed to represent
us, we had named the City of Redmond as a defendant. During the renovations on our home, the City of Redmond had
fraudulently signed off on some legally required inspections. Had we known that our litigation against Redmond
would be supervised by a mayor of an adjacent city (Bellevue) we would not have agreed to be represented by Lane
Powell. This issue is discussed more fully below at “Public Duty Doctrine.”
RPC
1.7(a)(2): Degginger’s Strong Ties to Development/Real Estate Industry Not Disclosed. Mr. Degginger was
Mayor of Bellevue during Bellevue’s biggest construction boom, ever:
“I believe we’ve got about 15 cranes in the sky. It’s certainly an amazing time in the
city’s history to have the skyline changing daily,” Degginger told the Puget Sound Business Journal.
(Exhibit July 29, 2007; Degginger quoted by Puget Sound Business
Journal).
RPC
1.7(a)(2) states a conflict of interest exists, when among other things,
(2) there is a significant risk that the representation of one or more clients will be materially limited ... by a
personal interest of the lawyer. (Emphasis added.)
Not Told About Degginger’s Campaign Contributors. In June, 2007, just three months
before we signed our Agreement with Lane Powell, the Washington Association of Realtors (“REALTORS”) contributed $1,500
to Mayor Degginger’s 2007 election campaign. (Exhibit September 19,
2007 (2), Pg. 1, Item 1.) It was the largest single campaign contribution.
Degginger’s Undisclosed Connection to Windermere. Windermere required its agents
and brokers to be members of Realtors. See Stickney’s contract, Pg, 2, Para. 6.
(Exhibit September 19, 2007 (3)) and also webpage of
Windermere agent Steve Burns (Exhibit September 19, 2007 (4)). Given
that Windermere is the largest real estate sales company in the Northwest, a large part of Realtors’ $1,500
contribution to Degginger’s campaign came from the dues of Windermere agents and brokers.
Quadrant Homes -- which had a long standing business relationship with Windermere Real Estate -- was
also a contributor to the Degginger campaign.
(Exhibit September 19, 2007 (2), Pg 4, second to
last row) and (Exhibit September 19, 2007 (5)).
Note that a Community Sales Manager for Quadrant Homes is Ray York of Ryness Company/Windermere Bellevue
(Ibid. Pg. 2.).
In addition, Windermere’s Builder Sales Group was launched in 2003 to service builders and
developers. (Exhibit September 19, 2007 (6).)
We have already seen the growth of construction under Degginger’s Bellevue mayoralty. Windermere’s
cozy relationship with the building industry made it all one happy family -- a disadvantage to us, as we had also named
a construction company as a defendant.
In our suit against Windermere, Windermere was represented by the Demco Law Firm. John Demco
was a highly regarded member of Realtors and a Windermere real estate broker who owned several Windermere franchises in
the state. Demco had been appointed by Realtors to advise the Washington government on changes to real estate
law. (Exhibit September 19, 2007 (7).) It is
likely that Demco gave tacit or overt approval of the Realtors’ contribution to Degginger’s election
campaign.
On its own webpage, Windermere Real Estate boasted of the company’s political prowess.
See its April 19, 2002 press release, “Founder of Windermere Real Estate, John Jacobi, named one of Washington
state’s most powerful leaders.” (Exhibit April 19, 2002.) It is not
credible that an ambitious politician like Mr. Degginger would be insensitive to the sensitivities of Mr.
Jacobi.
Other real estate/building/development interests -- such as the political action committee of the Masters Builders
Association -- the Affordable Housing Council -- also contributed to Degginger’s 2007 campaign.
(Exhibit September 19, 2007 (2), Pg. 1, Item 5.)
Public records show that Realtors Pac, the Affordable Housing Council, the president of CamWest, and 14 (fourteen)
attorneys from Lane Powell Spears Lubersky, and other real estate and construction interests contributed to
Degginger’s 2003 campaign. (Exhibit September 19,
2007 (8), Pgs. 1, 2, et seq.)
Degginger Should Have Disclosed His Conflict of Interest. In our opinion, we should
have been told that the Mayor of Bellevue would be supervising our litigation, that that REALTORS had made the largest
contribution to Degginger’s campaign, about the Lane Powell law firm had an interest in his political fortunes,
and that Degginger had personal conflicts of interest in representing us against Windermere Real Estate. Degginger
should have informed us before authorizing his staff to present us with a Retainer Agreement; and he should have secured
our written waiver, according to Rules of Professional Conduct. Of course he never would have gotten such a waiver
from us.
We argue that Degginger's failure to disclose
breached RPC
Rules 1.0,
1.7,
1.8,
1.9,
and 1.18,
as well as Washington's laws and common law on the duties of fiduciaries.
“Institutional Conflict of Interest.” Observers have since opined that
Degginger’s agreement to take our case was odd, given that we were opposing the very network of development
interests that Degginger was facilitating, and that Lane Powell is not noted for accepting homeowner’s CPA
lawsuits against such interests. In fact, on September 22, 2011, Atty. Paul Fogarty accused Lane Powell of
institutional conflict of interest in our case.
(Exhibit September 22, 2011.) And at the time he wrote those
words, Mr. Fogarty did not know about contributions to Degginger’s political campaigns.
Clearly, there was a “significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client.”
(RPC
1.7(a)(2)
Again: Had we realized that our case against “the biggest real estate firm in the North
West” would be supervised by a politician who took personal pride in Bellevue’s exploding real estate boom
and that he was politically favored and beholden to those interests by his campaign financing and support, we would
definitely not have hired Lane Powell. (Exhibit July 29, 2007.)
Orwellian Appointment of Degginger to Public Disclosure Commission in 2012. On July
2, 2012, Gov. Christine Gregoire appointed Degginger to the Public Disclosure Commission (“PDC”).
According to an October 22, 2013 article in the Bellingham Herald, Whatcom County Democrats
threatened to sue Whatcom First and Save Whatcom, two conservative political action committees. Save Whatcom had
collected donations from the coal industry, and then passed the donations to Whatcom First in one lump sum, without
revealing the original source of the money. The Democrats accused the PACs of skirting compliance and reporting
requirements. But PDC spokeswoman Lori Anderson told the Bellingham Herald:
I don’t think layering committees is skirting disclosure requirements. It’s kind of a
common practice. There’s nothing that says you can’t layer the PACs. That’s the whole
point of the PDC’s website. (Exhibit October 22, 2013, Para. 8.)
Yet on December 10, 2013, Degginger was quoted in the Bellingham Herald: The PDC had
fined the two conservative PACs for reporting contributions late and failing to file reports electronically. The
Belling Herald quoted Degginger:
“This campaign raised a remarkable amount of money in a week,” PDC Vice Chairman Grant
Degginger said. “We need to be sure that the public has the opportunity to know in a timely manner what
the organization is doing and who is contributing to the organization.” (Exhibit
December 10, 2013, Para. 8.)
Degginger did not comment on the PDC’s earlier statement that layering PACs did not violate
the rules, but was apparently content to grab some press for criticizing the PAC for what appeared to be comparatively
minor infractions.
But Degginger did not tell us -- EVER -- that the Washington Association of Realtors
(“REALTORS”) had contributed to his re-election campaign. He failed to disclose that in 2007, before
we agreed to let his practice group handle our lawsuit against Windermere. Again, he failed to disclose it in 2009
after Mr. Good abruptly left Lane Powell’s employ and Degginger took direct control of our case.
Degginger as Rainmaker. The Lane Powell firm contributed $1,000 to Degginger’s
2007 election campaign (Exhibit September 19, 2007 (2)
Pg. 1). The firm’s contribution confirms Lane Powell’s institutional interest in Degginger’s
political success: we reasonably believe that one of Mayor/City Councilman Degginger’s important functions was to
bring the firm more visibility in the development/building/real estate community, bring in new accounts, and possibly to
secure favorable Bellevue code rulings for the development community. According to Investopedia.com:
A rainmaker is any person who brings clients, money, or respect to an organization based solely on his or
her association. Traditionally, the term "rainmaker" applied to members of the legal profession, like
attorneys-turned-politicians who retired from public life (forcibly or otherwise) and went on to practice law at
nationally-recognized firms.
Lewis Horowitz, managing partner at Lane Powell, and several other Lane Powell attorneys also
contributed to Degginger’s campaign.
(Exhibit September 19, 2007 (9).)
Degginger did not disclose that he, the man who would be supervising our case against Windermere,
was courting the very community of interests we were opposing.
(See http://RenovationTrap.com
and http://Windermere-Victims.com.) There was no way we could
reasonably have predicted what was was to happen. [Note: We did not find out about Grant Degginger’s
campaign contributions until 2013.]
Conflicts Check. A conflict of interest check was done before a retainer agreement was
offered to us to sign. It was found that one Lane Powell attorney represented Wells Fargo, which bank had a
relationship with V&E Medical Imaging Services, Inc., the party that originally filed suit on us. We waived
that conflict. (Exhibit September 18, 2007.)
But total silence was maintained about Mayor Degginger and his conflicts. We believe that
Mr. Good -- who, recall, had just joined Lane Powell -- was also ignorant of Degginger’s connections with
Windermere and its financial and political interests. We believe that when Mr. Good acted independently of
Degginger’s direct supervision, he was competent, aggressive, loyal and honorable. We also believe that
Degginger held the young man’s career hostage -- that Degginger held a “gun to his head” and forced
certain strategies upon him.
[Note: See “A Gun to the Head of the Junior Attorney,” at the beginning of this
report.] Had we known about Mayor Degginger’s background and where his interests lay, we would never have
hired Lane Powell. Degginger’s resume reveals no experience with the material issues in our case.
(Exhibit November 30, 2009.)
Contract and Fiduciary Duty Violations. We argue that the September 19, 2007 Retainer
Agreement (Exhibit September 19, 2007 (1) should not have
been offered by Degginger.
Degginger had a duty to disclose his political alliances before the contract was signed. We
argue his failure to disclose his conflicts constituted fraud in the inducement which is “the use of deceit or
trick to cause someone to act to his or her own disadvantage.” This, we argue, was a violation of the Code of
Professional Conduct. We also argue that he violated both the contract and his fiduciary duty.
We also argue that Degginger continued to act covertly in service of those other interests,
compromising our interests, pulling his punches when prosecuting our case against Windermere while pretending to be
loyal to us.
Lawrence Fox, a partner in the Philadelphia law firm of Drinker Biddle & Reath, specializes in
the counseling of law firms on professional responsibility, put it this way:
... a breach of the duty of loyalty is not only worse than other ethical breaches because it is a breach of
the most fundamental fiduciary duty owed to a client, but it is also a substantively different type of breach because it
affects -- and does so surreptitiously -- ever decision in the representation. Depending on the conflict and the
representation, this breach can blunt a lawyer’s advocacy, undermine a lawyer’s independent professional
judgment, inhibit a lawyer’s creativity, and compromise a lawyer’s zeal. (Cited in
“Introduction: Our Support.” Authorities, Fox.)
Lawyer/Client Agreements
(RPC
1.8). The principles of honest dealing and the Bar rules expect that an attorney will be loyal to the
client and have no conflicts of interest. Honest dealing and Bar rules require the attorney to work for the
client’s interests first and foremost.
RPC 1.8
Conflict of Interest
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory,
security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the
client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client
...
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity
to seek the advice of independent legal counsel on the transaction;
Not Advised to Seek Outside Counsel. Grant Degginger did not advise us to see outside
legal advice when offering us the Retainer Agreement. Consider: He represented a huge multinational, full service
law firm with decades of experience with retainer agreements, the practice of law, litigation, and the
problems that arise during representation. We had none of that experience.
Playing Field Not Level. Degginger, with insights far superior to ours, should have
been looking after our interests. He was our fiduciary. Wikipedia explains:
In a fiduciary relationship, one person, in a position of vulnerability, justifiably vests confidence, good
faith, reliance and trust in another whose aid, advice or protection is sought in some matter. In such a relation
good conscience requires the fiduciary to act at all times for the sole benefit and interest of the one who trusts.
(http://en.wikipedia.org/wiki/Fiduciary)
As our fiduciary, Degginger should have recommended independent counsel review both the agreement he
offered us in 2007 and a later 2008 amendment. That independent counsel could have helped to “level the playing
field” and protect our interests. But Degginger did not advise us to seek outside counsel. In
retrospect, we now realize we were akin to sheep led to the shearing shed.
As a result, Degginger and his colleagues at Lane Powell are currently arguing to the court
(October, 2012) that Lane Powell has a right to charge any fees they/it wants, and to change their rates without notice
-- and we have the obligation to pay whatever they demand. Both the 2007 agreement and the 2008 amendment are
clear examples of Grant Degginger putting his interests far above ours, while leading us to believe he and his group
were our fiduciaries. We handed his practice group a sound and well developed case. Degginger apparently saw
it as easy cash.
We Entered into Relationship Without Informed Consent
(RPC
1.0(e))
1.0
Terminology
(e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has
communicated adequate information and explanation about the material risks of and reasonably available alternatives to
the proposed course of conduct.
Comment ...
Informed Consent
... In some circumstances it may be appropriate for a
lawyer to advise a client or other person to seek the
advice of other counsel. A lawyer need not inform a
client or other person of facts or implications
already known to the client or other person;
nevertheless, a lawyer who does not personally inform
the client or other person assumes the risk that the
client or other person is inadequately informed and
the consent is invalid.
Uninformed, We Sign Retainer Agreement with Nine Percent (9%) Interest Provision. Part
of the 2007 agreement stipulated that if we went in arrears with payment, Lane Powell would charge 9% interest on the
balance. (Exhibit September 19, 2007 (1) “Payment of
Invoices.”)
We did not realize it at the time, but that agreement gave Degginger a good reason to allow
litigation costs to go sky high and exhaust our $100,000 -- and to delay award payouts from Windermere as long as
possible, while charging us 9% interest on outstanding invoices.
Had we known that Degginger would use our case as a cash cow, that the invoices would reach $480,000
by end of trial activities with the 9% interest bomb ticking away, and that ultimately, Degginger would claim more than
$745,000 for Lane Powell’s representation, we would NOT have hired Lane Powell.
Knowledge of “Scorched Earth” Strategy Not Revealed. Lane Powell boasts (a)
its history goes back to 1889, (b) that it has 200 experienced litigators on staff, (c) that it represents large
corporations, and (d) and that it is the “go to” business law firm and “knows the landscape.”
(http://www.lanepowell.com, as of January 5, 2014.)
Therefore, before accepting the DeCoursey case, Grant Degginger would have known the likelihood
that Windermere -- the largest real estate company in the North West -- might use scorched earth litigation to drive the
DeCoursey legal bills through the ceiling. That strategy is well-known in the Washington legal community.
Civil Rule 11 warns against using court filings for ...
[A]ny improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of
litigation;
Scorched earth litigation was forcefully condemned in the Federal Circuit in 1993 by U.S. Special
magistrate James Kolts:
Plaintiffs [the Church of Scientology] abused the federal court system by using it, inter alia, to destroy
their opponents rather than to try to resolve an actual dispute ... This constitutes extraordinary, malicious, wanton,
and oppressive conduct. [Reported by Santa Barbara Independent, 23 January, 1993.]
Yet Lane Powell did not address the scorched earth issue in its Retainer Agreement, nor reveal that
when Windermere used the strategy, Lane Powell would do nothing to stop the onslaught.
[Note: Nor did Degginger tell us about Lane Powell’s role in the landmark Nordstrom
v. Tampourlos decision, which would play an important part in Lane Powell’s treatment of the costs in our
case. See below, especially Chapter 2.]
Lane Powell Did Not Fully Reveal What It Knew. In our opinion, Degginger’s
group/Lane Powell did not enter into the Retainer Agreement in good faith, with “full revelation.”
[Note: See Jones v. Allstate Ins. Co., 45 P. 3d 1068 - Wash: Supreme Court 2002. The Court found that
“the accord between Allstate and the Joneses was not reached in good faith and with full revelation.” Lane
Powell did not reveal what it knew/must have known.]
Termination of Representation Clause. The retainer agreement stipulated that “Both
you and we have the right at any time to terminate the attorney-client relationship.” However, there was no
provision describing what would happen if a dispute arose between the parties, and no warning that Lane Powell would try
to force all DeCourseys’ attorney-client privileged materials and information into evidence in such a dispute.
(Exhibit September 19, 2007 (1) Retainer Agreement, Pg. 5,
Statement of Terms of Engagement, Termination of Representation.) In Part II, we will see that, on October 5, 2011, Lane
Powell sued us for “breach of contract” -- that is, terminating the attorney-client relationship as the
contract allowed us.
Confidentiality Clause. Lane Powell promised to keep our confidences “with rare exceptions
...” and then enumerated those exceptions. However, Lane Powell did not disclose that if a dispute arose
between us, Lane Powell would rebuff our efforts to negotiate, sue us, and on the very day it filed suit, demand that
our confidences be put into evidence. But this is exactly what happened, as will be explained in Part II.
More About Our Case
Purpose of Consumer Protection Act. The CPA was designed to safeguard against
anti-competitive business practices in Washington. The Legislature stated it intended the act “shall be
liberally construed that its beneficial purposes may be served,”
(RCW 19.86.920) and that the CPA plaintiff
“may bring a civil action in the district court to recover his or her actual damages ... and the costs of the
suit, including reasonable attorneys’ fees.”
(Exhibit 1983, RCW
19.86.090.) Note well: The Legislature regarded attorney fees as *part* of the costs of the suit, and did not
exclude any costs.
The Court of Appeals, in Sign-O-Lite Signs, Inc. v. DeLaurenti Florists, Inc, 64
Wn. App. 553, 825, P.2d 714 (Exhibit January 21, 1992, “Attorney
Fees on Appeal,” Pg. 7) affirmed that the purpose behind the award of fees is “aimed at helping the victim
file the suit and ultimately serves to protect the public from further violations.” (That is, the CPA was not
designed to be a cash cow for law firms.)
Lane Powell Receives Well-Developed Case. We have already described the work we did
as pro se litigants to develop our CPA case (see above). As a testament to the quality of our work,
our Third Amended Answer and Counterclaims was so well written that Lane Powell had no need to amend it. It
was used as the basis for the case and trial.
Hope of Recovery. Before we brought the case to Lane Powell, our experts,
Empire Home Remodeling, estimated that repair of the home would cost approx. $171,000. Empire then found
additional and severe structural damage: a beam in the front of the house, supporting the second story, had been
weakened, and the house was sagging. Mr. Good discovered missing shear walls, and a structural engineer found
instability in the framing. Empire’s damage estimate before trial subsequently rose from approx. $171,000
to approx. $525,000.
Our CPA Case Is Hijacked and Becomes a Cash Cow
We Become Hostages
Degginger Acquires Proprietary Interest in Our Case
(RPC
1.8). In the following sections, we will tell how Degginger acquired a proprietary interest in our case
and the consequences for us.
But first, let us review the Rules of Professional Conduct. Rule 1.8(i) prohibit a lawyer
from doing exactly what Degginger did:
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of
litigation the lawyer is conducting for a client ...
RPC
1.8 Commentary [16] states:
... when the lawyer acquires an ownership interest in the subject of the representation, it will be more
difficult for a client to discharge the lawyer if the client so desires.
In such cases, the RPC makes special requirements upon the
attorney. Comment
3:
[3] ... Under that Rule, the lawyer must disclose the risks associated with the lawyer's dual role
as both legal adviser and participant in the transaction, such as the risk that the lawyer will structure the
transaction or give legal advice in a way that favors the lawyer's interests at the expense of the client.
Moreover, the lawyer must obtain the client's informed consent.
Though it was his duty to know this provision of the RPC and to follow it, Degginger did not
disclose to us (and did not require anyone on his team to disclose) the risks involved in modifying Lane Powell's role
from “legal adviser” to “dual role as both legal adviser and participant in the transaction.”
Degginger did not obtain, and did not require anyone on his team to obtain, our informed consent to Lane Powell's
modified role.
After Degginger “acquired an ownership interest” in our case, it was indeed difficult
for us to discharge him, just as the Bar Association predicted. We became captives, and our captivity lasted for
years (until August, 3, 2011, as described below).
Lane Powell/Degginger's ownership interest interest in the case is shown by a number of factors
that well be described in more detail in subsequent pages. Those factors include:
- Lane Powell shifted its focus from working in our best interests to doing as little damage as
possible to Degginger's political supporters – the real estate industry and Windermere's large contingent of employees,
including brokers and agents.
- Lane Powell permitted a number of awards provided by the Superior Court and by statute to evaporate
from the case.
- After we dismissed Lane Powell, Degginger insisted that 100% of the award from the judgment debtor
must be paid directly into Lane Powell's trust account.
- Lane Powell argued to the court that we had breached our retainer agreement by terminating Lane
Powell’s representation. Effectively, we were depriving Lane Powell of its ownership of the case by
terminating the representation.
- Lane Powell argued to the court that we were required to accept the earliest possible payout of the
judgment from the judgment debtors, even if it meant accepting a reduced award.
- Lane Powell's attorneys repeatedly argued to the court that the CPA “costs” and fees
had been awarded to Lane Powell.
- In argument to the court, Lane Powell’s attorneys argued that the contract they coerced us to
sign prospectively limited Lane Powell’s liability to us for malpractice.
Clearly this public interest lawsuit was converted to the private interest of the lawyers.
The conversion was akin to pirates capturing and plundering the ship of a sovereign nation. As we pointed out in
“Introduction: Our Support:”
A person who knowingly or intentionally exerts unauthorized control over property of another person commits
criminal conversion. The element of knowledge is found when the accused person engages in the conduct and he/she
is aware of a high probability that he/she is doing so. An essential element of criminal conversion is that
“the property must be owned by another and the conversion thereof must be without the consent and against the will
of the party, to whom the property belongs, coupled with the fraudulent intent to deprive the owner of the
property.” [i] People v. Fielden, 162 Colo. 574, 576 (Colo. 1967).
Unlike criminal conversion, the mens rea is not an element and good faith is not a defense in the
case of tortious conversion. Conversion, as a tort, consists “either in the appropriation of the personal
property of another to the party’s own use and benefit, or in its destruction, or in exercising dominion over it,
in exclusion and defiance of the rights of the owner or lawful possessor, or in withholding it from his possession,
under a claim and title inconsistent with the owner’s.” [ii] Indiana & Michigan Electric
Co. v. Terre Haute Industries, Inc., 507 N.E.2d 588 (Ind. Ct. App. 1987) (“Introduction: Our
Support” Authorities, U.S. Legal.)
Legislative Proposal: Attorneys who exploit laws designed to protect the public interest
should be charged with criminal conversion, required to disgorge all the fees and awards garnered by such abuse, and
fined for a commensurate amount. Please see “Introduction: Our Support” for other legislative
suggestions to remedy some of the problems described in this report.
No Attempt to Contain Scorched Earth Litigation Strategy. Throughout, Windermere worked to
increase the cost of the litigation. No maneuver or argument was too puerile or specious. For example, while
representing its agent in court, Windermere argued its agent “wasn’t an agent of Windermere”! The
Superior Court Case Summary -- the docket -- is 18 pages long and records 467 items, a testament to Windermere’s
abuse of process. (Exhibit Windermere Docket Case Summary).
Civil Rule 11 of the Washington State Court Rules states:
... The signature of a party or of an attorney constitutes a certificate by the party or attorney
that the party or attorney has read the pleading, motion, or legal memorandum, and that to the best of the party's or
attorney's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is well grounded in fact;
(2) is warranted by existing law or a good faith argument for the extension, modification, or
reversal of existing law or the establishment of new law;
(3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay
or needless increase in the cost of litigation; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so
identified, are reasonably based on a lack of information or belief.
... If a pleading, motion, or legal memorandum is signed in violation of this rule, the court, upon
motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an
appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable
expenses incurred because of the filing of the pleading, motion, or legal memorandum, including a reasonable attorney
fee.
But despite Windermere’s repeated violations of CR 11, Lane Powell simply parried every
worthless argument without seeking CR 11 sanctions. This of course resulted in more fees for Degginger’s practice
group. Our case was a cash cow to be milked for fees.
Even more fundamental: Civil Rule 1, Scope of Rules, states that:
These rules govern the procedure in the superior court in all suits of a civil nature whether
cognizable as cases at law or in equity with the exceptions stated in rule 81. They shall be construed and
administered to secure the just, speedy, and inexpensive determination of every action.
“Scorched Earth” Fees Not Recoverable Under CR 11. Had Degginger
and Lane Powell any respect for the Civil Rules as stated in CR 1, and used the CR 11 fee recovery mechanism, the court
may well have awarded us attorney fees for each and every frivolous Windermere ploy. True, some of the money was
recovered from Windermere given a multiplier granted by the judge, but the interest on that money -- 9% over three years
-- was not. This was another way in which Degginger disadvantaged us and advantaged Windermere and
Degginger’s practice group at Lane Powell.
Motion Testifies to Windermere’s Use of “Scorched Earth” Strategy. On
January 9, 2009, Mr. Good submitted a motion for fee awards and told the court:
Stickney and Windermere filed numerous motions for summary judgment, sought amendment to orders denying
their summary judgments, failed to cooperate in discovery, continuously threatened to pursue discovery and admit
evidence regarding the DeCoursey’ political and religious views. Before trial, Windermere argued that (1) it
was a third party beneficiary of the Purchase and Sales Agreement; (2) that Stickney was not a Windermere agent; and (3)
that Windermere was not vicariously liable for Stickney. All of these issues required the DeCourseys to expend
time and money filing responsive briefing. (Exhibit January 9,
2009, Pg. 2 at 21-26, Pg. 3 at 1-2 and Pgs. 4-5.)
Why Tolerate Abuse of Court Process? When we complained about Windermere’s
scorched earth strategy and asked why Lane Powell permitted it, Mr. Good told us that Lane Powell had a policy against
asking for CR 11 sanctions.
Abuse of Process Creates Billable Hours. On what grounds would a law firm
“decide” not to follow court rules specifically designed for the protection its clients? We subsequently
discovered the reason: The more attorney work Windermere’s puerile and specious maneuvers generated for
Degginger’s practice group, the more billable hours Degginger’s group could charge to us -- with the benefit
of a surcharge of 9% interest.
Our case had become Degginger’s cash cow, to be milked for fees.
The result of Degginger’s CR 11 policy directly disadvantaged us and directly advantaged
Degginger and his practice group at Lane Powell.
“Scorched Earth” Used To Justify Billing. On December 6, 2008, after
failing to take any actions to stop Windermere’s “scorched earth” legal strategy, Lane Powell wrote:
Windermere’s tactics tend to drive litigation costs higher
... (Exhibit December 5, 2008, Page 1, Para.3.)
Attorney Paul Fogarty opined:
Though the legal fees soared through the trial and appeal, and though the DeCourseys pleaded with
LP to complain, not once did LP move for CR 11 sanctions (or the RAP equivalent) to discourage Windermere’s
strategy. Instead, LP proceeded as if asserting frivolous arguments in a lawsuit was par for the course. It
certainly enriched LP. (Exhibit September 22, 2011, Page 9,
Para. 1.)
Degginger’s team tried to excuse the excessive fees by arguing that the case involved
“novel issues.”
We have all recognized that the cost of this matter is great . . .The opposing attorneys have been
aggressive and the legal issues novel. (Exhibit September 19, 2008, Page 2, Para. 3.)
Nothing in the Court of Appeals’ later opinion (see Chapter 2) indicates the Appeals judges
thought the legal issues “novel.” Later, arguing before the Supreme Court, Degginger and his colleague
Ryan McBride changed their tune, arguing the legal issues were not novel. The Supreme Court agreed, and
declined to hear the case. The assertions made by Degginger’s group about “novel” legal issues
were surely self-serving.
Legislative Proposal: Every partner or shareholder in a law firm benefits by billing fraud
and fee gouging through the payment of shares or dividends; this arrangement creates a culture of corruption.
Disciplining individual lawyers does not sufficiently discourage the practice. Law firms themselves should be
licensed and be answerable. Using the principle of respondeat superior, the attorney and the firm itself should be
disciplined.
We Ask Whether Awards Would Be Taxable. Knowing that Lane Powell was a full
service law firm, and that a monetary judgment might be an IRS event for us, we asked Mr. Good to check with the
firm’s tax lawyers. Would we be taxed on money awarded? After “asking around” (presumably
consulting Lane Powell’s tax people), Mr. Good came back with the answer: An award on a case like ours would NOT
be taxable! Phew!
But the advice may have been wrong. According to our accountant, the IRS may consider the
award of the attorney fees a taxable event. (Exhibit February
16, 2011; Exhibit September 22, 2011, Pg. 12.)
Amount at issue: $150,000 - $200,000.
Windermere Lawyers “Just Doing Their Job.” During the discovery period, we
also complained to Dennis Strasser, of counsel at Lane Powell. Dennis Strasser told us that Windermere lawyers
were “just doing their job.” Strasser did not explain to us that their “job” was to
generate increased fees for Degginger’s group (fees that would not be recoverable under CR 11). In a letter
dated December 10, 2008, we alluded to Strasser’s statement, and objected to it.
(Exhibit December 10, 2008, Pg. 5 Para.3.)
Twenty-Seven (27) Timekeepers Billed to Case. The invoices from September 2007 to August 3,
2011 reveal that Degginger, through the course of the litigation, assigned 27 timekeepers to this case. The last
names of these timekeepers were: Beard, Beck, Bennett, Degginger, Diffley, Evans, Gabel, Gillespie, Grunke, Harrell,
Helde, Jacobs, Lorber, McBride, Morse, Newman, Norby, Nourse, Ortega, Reich, Roesch, Savaria, Schulkin, Stephenson,
Strasser, Volbeda, and Yates. (Exhibit at LP Invoices.) Paul
Fogarty wrote:
LP had a large amount of timekeepers working on the case given the relatively narrow substantive
issues. As each new attorney started working on the case, they each incurred start-up time, repeated on the
DeCourseys’ bills, over and over. The LP fees and costs soared as it appears the timekeepers billed with a
‘heavy pencil.’ It is anticipated that LP will argue that to the extent that fees incurred were paid by
Windermere, then the DeCourseys have not been damaged. This argument is flawed. First, Windermere was not
charged with paying all of LP’s bloated fees. Second, LP has charged, and continues to charge, interest on
the entire inflated amount, and of course only a fraction of that interest is paid by Windermere.
(Exhibit September 22, 2011, Page 16, Fogarty Letter.)
“Featherbedding” -- the practice of throwing more workers than are needed at a given
job -- is used by some law firms to increase billable hours. See remarks of Professor William G. Ross of Stamford
University in New York Times article, “Suit Offers a Peek at the Practice of Inflating a Legal Bill,”
(Exhibit March 25, 2013.)
Lawyers And Paralegals Operate Photocopying Machines. Later, through discovery in Lane
Powell’s October 5, 2011 lawsuit against us, we discovered that, in this age of electronic court filings, email,
and the electronic transmission of documents, Degginger’s group (1) claimed to have photocopied 110,367 pages
during our case, and (2) often used highly paid attorneys and paralegals (rather than document clerks) to attend the
copying machine (3) and charged us $16,833 for copies, while (4) highly paid timekeepers billed their time while they
watched the machine work. Degginger charged us for attorneys Gabel ($205/ $225 per hour), Lorber ($225 per hr.),
and Volbeda ($225 per hr.) and paralegals, Norby ($110 per hr.), Reich ($170-180 per hr.), Harrell ($165 per hr.), and
Jacobs ($150 per hr.) to do the photocopying, for total fees of $42,000. (Dkt. 277.)
Many law firms pass on to their clients as many overhead expenses as possible ... some firms see the copying
and fax rooms a profit centers. Large law firms routinely add surcharges for on-line computer research, telephone
calls, even regular secretarial help. -- (Richard Zitrin & Carol Langford, The Moral Compass of the American
Lawyer, Pg. 86. Ballentine, 1999.)
Certainly from time to time, highly paid professionals might be pressed to copy a page or two for a
rush job. However, the record shows multiple instances of time-keepers attending the photocopier, copying hundreds
of pages -- sometimes, more than a thousand pages. This became evident from the discovery materials produced on
January 18, 2012. (Exhibit January 18, 2012 (1).
We compared this information with Lane Powell invoice pages and created a spreadsheet showing that Lane Powell charged
$42,000 for timekeepers to man the
photocopier. (Exhibit January 18, 2012 (2).
Amount at Issue: $42,000.
Degginger also charged us per page for photocopying (allegedly at 15, then 18, cents per page), for
a total of charge of $16,833. Degginger, then, would have us believe he had to photocopy 110,367 pages (more than
22 cases, or 220 reams of paper) in our suit -- in the electronic age of the paperless office. We don’t
believe it!
Estimated Amount at Issue: Unknown portion of $16,833.
Degginger Must Have Known Photocopying Was Not Covered. Since Lane Powell represented
Nordstrom in the famous Nordstrom v. Tampourlos precedent (see Chapter 2), Grant Degginger must have known full
well that our 72,949 pages of photocopying expenses would not be covered by our CPA award.
Frivolous Phone “Negotiations.” Against our directions, Degginger’s
attorneys engaged in patently frivolous and wasteful phone “negotiations” with Windermere -- with
predictable results: increased billing for Lane Powell.
(Exhibit December 10, 2008, Letter from DeCourseys, Pg. 4, Para.6.)
Degginger Was Warned About Effect on DeCourseys. On November 7, 2008, we wrote to Lane
Powell about the ruinous effects their charges might have on us.
(Exhibit November 7, 2008, Letter from DeCourseys, Pg. 3, Para. 6.)
“DeCourseys Can’t Afford to Go to Trial.” So egregious and
obvious were these tactics that in August, 2008, the day after an unsuccessful mediation session, the real estate
agent’s attorney told Mr. Good that we should accept half their damages in settlement because:
[E]veryone knows [the DeCourseys] are out of money and can’t afford to go to trial.
(Exhibit January 9, 2009 Plaintiff’s Motion in Support Of An
Award of Attorneys’ Fees and Costs, Pg. 2 at 19-20).
We argue that, based on what described above (and below, see Part II) that the fees
Degginger’s practice group charged were unreasonable, a violation
of RPC 1.5,
Fees:
(a) A lawyer’s fee shall be reasonable.
City Councilman/Mayor Degginger Accused of Conflict of Interest
The Sound Transit Controversy. In 2010, conflict of interest charges were aired
against Degginger. See Bellevue resident Renay Bennett’s address to the Bellevue City Council on September
27, 2010, “Bellevue City Council Falls Into
Chaos,” http://www.youtube.com/watch?v=IuB5mZA_qPQ
As a member of the Council, Degginger had a fiduciary duty to the people of Bellevue. But
Degginger had, as a member of Lane Powell, personally represented Sound Transit in the past. In 2010, Lane Powell
was still representing Sound Transit. And Sound Transit was a candidate bidder on the east side light-rail
contract that was being decided by Degginger and other members of the Council. Bennett felt that Degginger should
have recused himself from the voting.
In response to Bennett’s criticism, Degginger told Bennett (who was not a member of the
Bellevue City Council and had never represented Sound Transit) that she had a conflict of interest, too. It was a
noticeably lame response.
Degginger’s “Indirect” Benefit Not Addressed. Bellevue’s city
attorney Lori Riordan came to the rescue: She argued that since Degginger was not receiving a “direct
benefit” from the outcome of the light-rail decision, he had no conflict of interest vis a vis Sound
Transit, even though Lane Powell was representing the company.
(Exhibit March 14, 2011, “Bellevue Plans Ethics Probe After
Questions of Conflicts of Interests Regarding Light Rail Route,” Pg. 2) Riordan does not comment upon
Degginger’s “indirect” benefit, or how he could avoid receiving one, since Degginger was a shareholder
in Lane Powell, and Sound Transit was still one of its clients.
During the controversy, Degginger accused his critics of “ambush” and
“McCarthy-style” tactics. (Exhibit April 11, 2011,
“Investigate Themselves? Bellevue council halts conflict-of-interest vote,” Pgs. 1-2).
Later, the Bellevue City Council brought in a private contractor -- the law firm of DLA Piper -- to
silence the controversy. Dan Davidson, who was then holding the Mayoralty of Bellevue, told the press that:
... one of his goals with the ethics investigation was to patch up differences among counsel members and
minimize politics. (Exhibit March 14, 2011, Page
2.)
On June 5, 2011, the DLA Piper consultant cleared Degginger, concluding Degginger had no conflict
of interest because Lane Powell had never represented Sound Transit on the east side rail issue -- the issue
before the Council. (Exhibit June 5, 2011.) See press coverage of
D.L.A. Piper’s alleged billing fraud at Exhibit March 25, 2013.
How Could Degginger Vote Against Lane Powell’s [Monied] Client? It seems to us
that DLA Piper consultant avoided the fundamental conflict of interest issue: Degginger, a Lane Powell shareholder and
head of its Construction and Environmental practice group, could hardly vote against Sound Transit -- and expect Sound
Transit to continue as Lane Powell’s client. Lane Powell advertises on its webpage that it is the
“go-to” law firm for complex transactions for Sound Transit.
(Exhibit August 16, 2013.)
We think Degginger should have been up-front about his firm’s representation of Sound Transit
and offered to recuse himself from voting on any issues involving or affecting Sound Transit.
****** ***** ******
DLA Piper Accused of Bill Padding. Coincidentally, DLA Piper sued one if its clients for an
unpaid legal bill of $675,000. The client, Adam H. Victor, chief executive of TransGas Development Systems,
countersued, accusing the firm of a “sweeping practice of over-billing.” During discovery, internal DLA
Piper correspondence came to light, showing its attorneys joking about “churning” the bill. “I
hear we are already 200K over our estimate -- that’s Team DLA Piper!” wrote one lawyer for the firm.
Another lawyer, noting that a third colleague, Vincent J. Roldan, had been enlisted to work on the matter, wrote:
“Now Vince has random people working full time on random research projects in standard ‘churn that bill,
baby!’ mode. That bill shall know no limits.”
(Exhibit March 25, 2013.)
****** ***** ******
Just days after DLA Piper exonerated Degginger, the news was ballyhooed in the press.
(Exhibit June 7, 2011.) Several days after that, Degginger
announced he would not run for reelection, having been offended by the content of emails he received over the Sound
Transit matter. (Exhibit June 10, 2011.) [Note: As of
July 2013, the Bellevue government webpage listed Mr. Degginger as a member of the City
Council. Exhibit July 27, 2013.]
On July 28, 2011, Degginger’s juniors in his Construction and Environmental practice group
filed a brief with the Court of Appeals on behalf of Sound Transit.
(Exhibit July 28, 2011.)
The Bellevue City Council signed the light rail contract with Sound Transit on November 14,
2011. (Exhibit November 17, 2011).
We Blow the Whistle on Govt. Agencies Flouting Consumer Protection Laws
Degginger’s Aversion to Throwing Light on “Old Boy”
Network of Public Corruption
Complicit Govt. Agencies Help Windermere Flout the Law. As law-abiding consumers, we
expected our Washington government to be law-abiding, too. Knowing real estate sales are regulated, we reported
our perfidious real estate agent (Stickney) to the Department of Licensing (DOL). But he was not
disciplined. We then discovered other Windermere victims. Almost without exception, DOL *never* took
disciplinary actions against Windermere agencies or brokers, no matter how egregious the offenses.
Windermere’s wronged customers were forced to sue. Windermere routinely wiped them out with litigation
costs. Meanwhile, Windermere’s political influence guaranteed their agencies and brokers would continue to
escape censure.
We became whistleblowers. We testified before the Legislature, attended public meetings, held
up signage, distributed fliers, and hosting a document-based
websites: http://Windermere-Victims.com
and http://RenovationTrap.com.
We Expose “Old Boy” Connections in Corruption. We were even more amazed to
discover the Office of the Attorney General was effectively helping DOL/Windermere to flout state laws. Rob
McKenna, of course, was a well-known Republican official, just like Mayor Degginger. We also learned that
Degginger’s wife is an attorney who worked for the Attorney General’s Office for 18 years
(Exhibit July 29, 2007, Puget Sound Business Journal.)
We had repeatedly given Degginger’s lawyers evidence of the “old boy network”
cooperating to protect and enrich each other at the expense of public law and the citizenry. Many were members of
the Republican network. We directed Degginger’s team to our website, Windermere-Victims.com. We made
available to them such flyers as “A Salute to Rob McKenna: War on Meth vs. War on Homeowners,”
(Exhibit December 3, 2009); “Wide Open Government -- for Big
Business,” (Exhibit March 19,
2010) and “Legalizing Crime in Washington: The Windermere Prototype;”
(Exhibit May 7, 2011 (2).) But the Degginger team would
have nothing to do with enforcing the Consumer Protection Act or reporting its vitiation, even though that law was
exactly on point in our case. (Exhibit LP Emails,
February 17, 2011 at 10:49 AM.)
[Note: We do not wish to unfairly show Republicans in a bad light. See our
“Introduction: Our Support” to see remarks of Michigan Supreme Court Justice Elizabeth Weaver concerning
Republicans and Democrats. We endorse Justice Weaver’s remarks.]
We considered that the courts at all levels would want to see this evidence, gain an updated
picture of the facts, learn how public interest law (the Consumer Protection Act) was being vitiated and undermined by
Windermere’s network of friends inside government, and how the Nordstrom decision (Nordstrom, Inc. v.
Tampourlos, 107 Wn.2d 735, 733 P.2d 208, described below) was being exploited by the anti-consumer forces in
society. But Degginger refused to present the facts, despite our urgings.
We suspect that Degginger’s opposition to showing the courts this information was due to his
desire to protect the old boy network in state government. We reasonably suspect he wanted to protect his, and his
wife’s, “cronies”.
We suspect the 2012 appointment of Degginger to the Public Disclosure Commission (see above) was a
testament to the influence of his old boy connections: Surely his appointment was not due to his sincere devotion to
full disclosure and transparency?
Degginger’s Team Refuses to Include Our Additional Public Interest Impact Witness.
Another Windermere victim, Gary Kruger, webmaster of http://windermerewatch.com, wanted to testify for us at
trial. His testimony would have strengthened the public interest impact (ref: Hangman Ridge) of our case --
often the most difficult aspect of the CPA case to prove.
(Exhibit June 10, 2012). But we were were told that we found Mr. Kruger
“too late,” that the witness list had closed. Degginger’s team could have filed a motion to add
Mr. Kruger, but did not.
Though Degginger’s team wanted Windermere to inspect our home after close of discovery (see
below, “How Degginger Pressured us to Abandon Our Pre-Trial Advantage”), they would not even try to
get Gary Kruger included in our witness list.
Aggressive CPA Prosecution Might Be “Not Good” For Degginger. But we
suspect Degginger had ample and unstated reasons for making sure this public policy information did not appear in
our pleadings. We suspect that had the courts been informed of how the CPA was being flouted, the courts might
have done something to fix it, and that might not have been good for Lane Powell’s other clients, or for
Degginger’s political supporters in the real estate development community.
In our opinion, Mayor Degginger’s unwillingness to include any evidence of public corruption
was tantamount to helping to cover the corruption. His conduct also violated the principles laid down in the
Preamble and Scope in the Rules of Professional Conduct.
[6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system,
the administration of justice and the quality of service rendered by the legal profession. As a member of a
learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge
in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's
understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional
democracy depend on popular participation and support to maintain their authority ... A lawyer should aid the legal
profession in pursuing these objectives and should help the bar regulate itself in the public interest.
[7] Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional
Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and
the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve
the law and the legal profession and to exemplify the legal profession's ideals of public service. (Emphases
added.)
Even more dramatic illustrations of Degginger’s unwillingness to mention the public interest
“elephant in the living room” during the appeals process will be described later in this report.
In short -- Degginger used our case in two mutually exclusive ways: To the courts, he argued it was
a CPA case, ensuring his fees, but at the same time tried to convince us our case was of no special public importance.
We argue he used our case to gain fees and gouge us -- but not to protect the public. See below, “DeCoursey
Victory ‘Not Good’ For Lane Powell.”
Public Duty Doctrine
Our Situation Was an Exception. The Public Duty Doctrine is a legal theory which
severely limits the liability a government has to the public. Under the Doctrine, government entities owe a duty to the
public in general, but a particularized duty to no one in particular. There are exceptions, however. In our
case, we purchased a building permit from the City of Redmond. In exchange for the fee we paid, Redmond agreed to
inspect the renovations for code compliance. However, Redmond skipped inspections, and did
“inspections” via the telephone without seeing the work. This created false evidence of
“fitness” for the contractor and assisted him to hide the faulty work.
Bathtub Electrified At 110 Volts AC. In one noteworthy example of malfeasance, Redmond
OK’d the high voltage electrical work via phone, without taking the trouble to visit the premises. The
high-voltage work was anything but OK -- our hall bathtub was electrified at 110 Volts AC, enough to kill us.
Department of Labor & Industries provided an affidavit concerning the bogus “inspection.” (Exhibit
June 27, 2007.)
As pro se litigants, we had claimed unquantified damages against the City of Redmond.
But before the trial Degginger’s team told us we MUST drop the City of Redmond, that under the Public Duty
Doctrine Redmond was not liable to us. We have since found out this is not correct. Given the circumstances
(we paid for a building permit and Redmond was thereby obligated to inspect per that specific agreement), Redmond did
owe us a specific duty to perform, and might be found liable. We received no benefit from dropping Redmond.
[Note: If the Public Duty Doctrine applied, surely Redmond could have itself dismissed our
charges at the outset -- when we first filed our claim?]
At that time Degginger was Mayor of Bellevue. On the other side, the Mayor of Redmond,
Rosemary Ives, knew us by sight and name, had probably received our pamphlets, and was personally offended by our suit
against the City. (Mayor Ives actually originated a conversation about our suit with some neighbors.) We
later learned that Mayor Ives held a real estate sales/broker license.
(Exhibit April 2, 2013). We often wonder whether the Mayor of
Bellevue conferred with the Mayor of Redmond and arranged to sandbag our claims against Redmond. Certainly that
would be consistent with the “old boy network” that seems to run the state of Washington.
Degginger’s Role As
Advisor (RPC
1.2). We are reminded
of RPC 2.1,
“Advisor:”
In representing a client, a lawyer shall exercise independent professional judgment and render
candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral,
economic, social and political factors, that may be relevant to the client's situation.
Degginger’s Practice Group Benefit$ By Settlement With Contractor
Forced Settlement With Contractor. Shortly before trial, we were told it was essential to
settle with the contractor who ruined our home -- that the outcome of the trial would be endangered if we did not.
(See discussion at Exhibit September 19, 2008 Para.2.) Moreover,
the settlement was painted as an “insurance” against a low recovery at trial, and that if we won, the
settlement would be a collateral source.
Degginger Strikes a Vein of Gold. During negotiations, the settlement offering got whittled
down to $270,000. We insisted that the $270,000 be issued to us in a certified check. At the last moment a
confidentiality clause was added to the settlement -- and Degginger’s team had the check made out to Lane
Powell and us jointly. Degginger’s team then demanded $200,000 to pay outstanding invoices, leaving
us a stipend to pay the expert witnesses. [Note: See “A Gun to the Head of the Junior Attorney,” at
the beginning of this report. We hold Grant Degginger directly responsible for insisting on this agreement with
the contractor.]
Even more advantageous to Degginger: Lane Powell charged us $150,000 in fees for negotiations with
the contractor. After the settlement, Windermere repeatedly attacked the collateral source. We had to defend
against the attack. That defense generated even more fees for Degginger’s team -- fees that were not
recoverable under the Nordstrom v. Tampourlos segregation doctrine, described in Chapter 2, below.
Another Lane Powell lawyer later told us, tactically speaking, it was a mistake to sign the
agreement with the contractor and that the agreement caused persistent and unnecessary complications.
As part of the agreement with the contractor, we agreed not to use his name, the name of his
company, or the name of his lawyer (!) in our webpage. We deeply regret signing this secrecy agreement. The
contractor violated public law by operating without a license and was not censured by public authorities for doing
so. Thus the matter is a public concern and should not be hidden from public view. We would later learn that
Windermere Real Estate characteristically demanded an onerous secrecy agreement (“Dark Clause”) when it
reached settlement with its victims.
When public law is violated, and especially when such violations are condoned by public authorities
-- secrecy agreements create a sub-rosa support of lawlessness -- all hidden from public view.
Legislative Proposal. In activities subject to government regulations, confidentiality
or secrecy agreements between regulated entities and those whom they have injured should not be enforceable.
Booze & Porn Sites May Not Have Impressed Jury. Degginger’s team told us that the
contractor would have made a credible witness at trial, but we doubted that. We had proven he was unlicensed and had
victimized others. Moreover, through discovery, we learned he used his business accounts to buy booze and pay for
Internet pornography.
Forced to Sign Secrecy Agreement. One of the terms of the agreement with the
contractor is that we never mention the name of the contractor, his name, his son’s name, and the name of his
lawyer. We have lived in constant regret that we agreed.
We are convinced the settlement with the contractor was engineered for the purpose of fee
garnering, and complained to Degginger’s subordinate about it.
(Exhibit December 10, 2008, Letter from DeCourseys, Pg. 2, Para. 10,
Pg. 3 et seq.)
Failure to Advance CR8(d) Arguments at Summary Judgment Stage
“The cost of ignoring ... cannot be overstated.” In 2008, before trial, the case
went through a flurry of summary judgment hearings. We had collated the various pleadings and answers, and
discovered that Windermere had failed to deny a number of our allegations in its pleadings.
(Exhibit June 14, 2008.) Civil Rule 8(d) states that any
allegation not denied is admitted. But Degginger’s team ignored our instructions and failed to advance the
CR 8(d) admission arguments to quash Windermere’s summary judgment motions and advance our own.
Attorney Paul Fogarty opined:
The cost of ignoring those arguments on summary judgment cannot be overstated. Given the text of CR
8(d) and the Jansen precedent, the DeCourseys had excellent arguments to prevail on summary judgment in all the major
elements of the eventual verdict without an expensive trial. The trial would have been avoided or narrowly
tailored (e.g., amount of damages). In cases where the facts are established and only the damages are left at
issue, the case usually terminates in a settlement.
(Exhibit September 22, 2011, Page 10, Para. 7.)
How Degginger Pressured Us To Abandon Our Pre-Trial Advantage
Over and over again in Lane Powell’s law suit against us, Lane Powell boasts of the excellent
results it achieved in the Windermere lawsuit. But much of the “excellent result” resulted from our
refusal to follow the advice of Degginger’s team.
We Are Pressured To Admit Windermere Experts and Sell Home. Discovery in the
Windermere lawsuit closed on September 2, 2008. (Exhibit May 19,
2008, Pg. 1.) Throughout the discovery period, Windermere failed to send experts into the house to assess the
damage. Windermere’s discovery failures gave us a huge advantage in the upcoming trial-- Windermere did not
have an expert witness to counter ours.
Soon after discovery cutoff (September 2, 2008, see Case
Schedule, Exhibit May 19, 2008), and about the time Windermere realized
the matter was going to trial, we were told that Windermere wanted to buy our home. Degginger’s team began
to pressure us into letting Windermere appraisers into the home to inspect the damage -- so they could offer us a
“fair market” price. (Exhibit September 19, 2008,
Pg.1, Para. 4, et seq.) (See also Exhibit September 24, 2008, Pg. 2,
Para. 2, Exhibit LP Email, September 25, 2008
at 11:03 AM, Exhibit LP Email, September
26, 2008 at 10:00 AM).
We Reject Plan, But Degginger’s Team Insists. Despite our repeated refusal to let
Windermere into the house, Degginger’s team kept the pressure up for weeks -- even calling us into the Lane Powell
offices to discuss the matter with Mr. Good, Gabel, and Jacobs. The meeting took place on or about September
22. At the meeting, Gabel asked, and Carol answered:
Gabel: What would it take to get you to sell your house to Windermere?
Carol: A lobotomy.
We Refuse to Give Advantage to Windermere. Degginger’s plan would have given
Windermere the expert witness it so badly needed at trial. Firstly, we did not want to sell the home.
Secondly, why would we accept the “fair market” value of a damaged home? The more damage the expert
found, the less Windermere would be paying us for the damage that Windermere had done. Had Windermere offered fair
market value for the home as it might have been had the renovations been done properly, paid our other losses and our
legal fees and costs, and put the offer in writing, perhaps we would have considered it. In such a case,
Windermere would not need an appraiser -- the publicly available description of the property would be sufficient.
Windermere Insists on “The Dark Clause” of Utter Silence. Had we succumbed
to the pressure and sold our house to Windermere, we would have been obliged to sign what Windermere called “The
Dark Clause,” a draconian secrecy agreement. (Exhibit LP
email, September 29, 2008 at 8:34 AM,
September%2029,%202008%20at%208.34%20AM.pdf
Pg. 2.) Had we signed this agreement, we could not discuss our Windermere experiences with anyone -- not
even relatives! Signing the “Dark Clause” would block any light that might be shed on Windermere’s
violation of public law -- and the corrupt government agencies protecting Windermere.
Later, we reminisced about our refusal to allow Windermere experts into the house after discovery
cutoff on September 2, 2008. When we wrote a commendation for Mr. Good’s handling of the trial, we pointed
out:
Of course, we have no way of knowing how the trial would have gone if Windermere had actually presented a
defense. But [Mr. Good’s]’s prosecution looked darn good from where we were sitting.”
(Exhibit November 10, 2008, Pg. 2 Para.3.)
Degginger Bills Us for Work We Did Not Want Done. In a letter dated December 5, 2008,
Degginger’s subordinate admitted we were billed for services he knew we did not want -- the attempt to get us to
sell our home to Windermere. [Note: See “A Gun to the Head of the Junior Attorney,” at the
beginning of this report. We do not blame the young lawyer for this.] When this young lawyer acted independent
of Degginger’s direct supervision, he was competent, aggressive, loyal, and honorable.
I understand you have concerns that I have billed more time than necessary in my attempts to get you to
settle. While I did not bill all my time in those endeavors, I did bill some as I believed that was always in your
best interests given the costs and continued perils of trial and post trial.
(Exhibit December 5, 2008, Letter from Lane Powell, Pg. 1, Para
4.)
We have since calculated the time billed to us in the October and November, 2008 invoices and found
we had been charged approx. $6,078 for the unwanted “service.”
On December 10, 2008, we wrote back:
Had you suggested we allow Windermere to take our home from us when we first met you, we would have
considered that suggestion as a reason to disqualify you as our attorney.
(Exhibit December10, 2008, Pg. 4, Para.1).
Work done against our wishes is more evidence that Degginger’s practice group had acquired a
proprietary interest in our lawsuit -- an interest specifically prohibited
by RPC
1.8(i)(1). The work done against our wishes revealed that Degginger’s placed his own interests above
ours. Indeed, our case had been hijacked, and we were hostages.
Degginger actually claimed proprietorship of the legal fees in the Windermere lawsuit, arguing that
the fees were “awarded” to “Lane Powell” (not DeCourseys).
(Exhibit October 19, 2012 (1), Dkt 253, Pg. 20 at 23-24, CP
3371; Exhibit November 30, 2012 (1), Dkt 300, Pg. 1 at
8-11, CP 4883.)
Scope of Representation (RPC 1.2). In our opinion, the conduct described above was also
a violation of RPC Rule 1.2, Scope of Representation Between Client and Lawyer.
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the
objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they
are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out
the representation.
Degginger Advises Surrender On Eve of Victory
Windermere Has No Case to Present. A 12-person jury trial was held in October 2008 before
Judge Michael Fox in the Superior Court in Seattle. Windermere had no experts, no evidence, and no case.
DeCourseys’ experts were unshakable and had all the answers. The only witness Windermere called was Mark
DeCoursey, who answered questions with obvious accuracy, truth, and sincerity. The jury was sent to deliberate on
October 29. (Exhibit October 30, 2008.)
October 30, 2008: We Are Advised to Surrender. Despite Mr. Good’s competent
presentation of the case to the jury, on October 30, 2008 we received a letter over his signature -- a letter obviously
not written by him -- recommending we offer to settle with Windermere for $250,000.
(Exhibit October 30, 2008). Note that Mr. Good referred to
himself in the third person in that letter, and he addressed us as “Mr. and Mrs. DeCoursey,” instead our
using our first names.
Curiously, Degginger billed .3 hours to our case on October 30, Andrew Gabel billed 3 hours to
“correspond with DeCourseys” and Mr. Good did not bill one minute. (See attached invoices.)
The letter was obviously written by Mr. Gable, under Degginger’s direction.
As invoices revealed, at the time Gable was writing the “surrender” letter to us, Lane
Powell had billed our account in excess of $457,000. Thus Lane Powell was recommending that we accept $250,000 for both
damages and legal fees -- a sum that would not even have covered Lane Powell’s legal fees.
At no time during the history of the case had we more certainly of winning. A year previous,
in September 2007, while success was just a glimmer, Lane Powell encouraged us to hire them to undertake the expense of
a trial. Then when Lane Powell had billed the case $450,000 and the jury verdict was just hours away, Lane Powell
recommended we negotiate a settlement at a huge loss -- at a loss even greater than the damages known at the time Lane
Powell entered the case.
If success were so uncertain, why even recommend we go to trial? Why not tell us to throw in the
towel before incurring over $450,000 in legal fees? Obviously, the “risk” in October, 2008 was not the
issue.
October 31: Jury Awards Us Victory. The day after Degginger had the October 30 letter sent
to us, the jury awarded us $522,200 in damages and a finding that Windermere violated the Consumer Protection Act.
(Exhibit October 31, 2008.) The judge later awarded us
approx. $0.5 million in legal fees, too.
So the trial victory of which Lane Powell and Degginger now boast was in large part the result of
our refusal to accept Degginger’s suicidal advice -- to surrender for the sum of $250,000 and shut the door
on awards of more than $1 million.
Justice Scalia on Lawyers Who Don’t Want to Win “Too Big”
Apparently, it is well known among lawyers that some lawyers -- for political reasons -- want only minimal success
in winning their cases. According to The New York Times, U.S. Supreme Court Justice Antonin Scalia repeatedly
attacked a government lawyer for making a half-hearted attempt to win his case. Scalia commented:
It seems to me you want to win this case, but not too big. You want us to find for you, but on the
narrowest possible grounds. (Exhibit March 26, 2014.)
It is apparent to us that Degginger did not want to lose our case outright (because he did not want
to lose his fees), but he did not want to win it “too big” either, as Justice Scalia might say.
Winning big might embarrass him in front of Lane Powell’s clients, and hurt those clients. Winning our
case “too big” might also embarrass him, and hurt him, in front of his political supporters.
$100,000 Cost Estimate Turns Into $480,000 Tab
Invoices at $480,000 After Trial Activities. The case docket reveals much activity after the
trial. From the date of the judge’s instructions to the jury to the final judgment on February 27, 2009,
there were 142 (one hundred and forty-two) entries. Another $39,000 was billed post-trial.
In a letter sent on December 10, 2008, we complained about the bill -- our case had been billed at
approx. $480,000. We condemned the hours wasted trying to convince us to take actions against our interests.
(Exhibit December 10, 2008.) Recall that in September, 2007, the
fee estimate up to the end of trial was $100,000.
Amount at Issue: Approx. $380,000
Failure to Claim CPA Damages>
Jury’s CPA Findings Ignored. Given the jury’s finding of Consumer Protection
Violations, Degginger’s team should have claimed triple damages, but did
not. RCW 19.86 at that time provided for a
maximum triple damages amount of $10,000.
Amount at Issue: $10,000.
DeCoursey Victory “Not Good for Lane Powell.”
Degginger’s Remarkable Admission. Shortly after the announcement of the October,
2008 jury verdict, DeCourseys met with Degginger in a Lane Powell conference room. DeCourseys opined that the
trial victory must be very good news for Lane Powell -- that the victory would open up a new line of business for
the firm. Instead of looking pleased, Degginger looked sour, and told us our victory was:
... not good [for Lane Powell.]”
If Degginger believed a win for us -- two CPA whistleblowers -- was a loss for Lane Powell, he
clearly had a conflict of interest. But he did not disclose it then, nor at any other time.
Degginger’s Refusal to Answer Conflict of Interest Questions. After Lane Powell
sued us on October 5, 2011, we issued some requests for production and interrogatories. Lane Powell refused to
give information on its conflict of interest analysis; whether it had represented any real estate company or real estate
development company, and whether it had done any work for political electees and candidates.
(Exhibit January 18, 2012 (3), Pages 7 (Production 12) and
21 (Interrogatory 14.)
Failure to Tax Windermere for Fees and Costs Billed to Us
Paul Fogarty, Esq. Confirms Our Observations:
In the declaration enumerating the costs and fees, [Mr. Good]’s
Declaration dated January 9, 2009, LP failed to include the attorney fees incurred between November 11, 2008 and
January 9, 2011, and LP failed to supplement relating to fees and costs after January 9, 2011 up to and including the
hearing on February 6, 2009, totaling $21,062.50. Since the base amount of trial attorney fees was increased
“by a 30 percent multiplier” (Court of Appeals Opinion dated November 8, 2010 at 7), this loss through LP
negligence is calculably $27,381.25. (Exhibit September 22,
2011, Pg. 13, Para. 2; footnote omitted.)
Amount at Issue: $27,381.25
LP did not argue for any cost to Windermere in Plaintiff’s Motion in Support of an Award of
Attorneys’ Fees and Costs dated January 9, 2009 or the [Mr. Good’s] Declaration dated January 9,
2009, and therefore, none of that $21,977.82 was recovered from Windermere.
(Exhibit September 22, 2011, Pg. 13, Para. 3.)
Amount at issue: $21,977.82
Award Included Non-Segregated Costs
Not Possible to Segregate Costs. In his January 9, 2009
Motion in Support of an Award of Attorney Fees and Costs, Mr. Good argued that it was not possible to segregate
the costs incurred from proving our CPA claims from the costs incurred for handling other aspects of the case.
(Exhibit January 9, 2009, Pg. 12 at 18-19.)
Since Windermere had argued its agent was the third party beneficiary of the Purchase and Sales
Agreement (REPSA) and had lost the case, Mr. Good argued that the entire amount of the costs -- including fees -- were
covered by the expenses clause of the REPSA. He also argued that the verdict finding CPA violations authorized an
award of fees and costs under the CPA. Mr. Good argued for a 1.5 fee multiplier. [Note: The REPSA will be
discussed more fully, below.]
Why Judge Awarded 1.3 Multiplier. On February 6, 2009, the court awarded us
non-segregated fees (including a 1.3 fee multiplier) totaling $462,985.
(Exhibit February 6, 2009 (1).) The Court‘s reason
for the multiplier was the risky nature of the case as told in the transcript of the hearing. Judge Fox
states:
I also find that a multiplier of 1.3 is appropriate. So on a base figure of $356,142 in attorneys
fees, I would add 30 percent as a multiplier because of the high-risk nature of this particular litigation, which would
result in a total attorney’s fee award of $462,985.
(Exhibit February 6, 2009 (2), Pg. 5.)
Fabrications About Multiplier Award
Sulkin et al. would later claim that the multiplier was awarded in part because of the
“vigor” with which Lane Powell litigated the case
(Exhibit October 19, 2012 (1) Pg. 20 at at 12-13) and because
Lane Powell did “exceptional work” on our case.
(Exhibit November 30, 2012 (1) Pg. 1 at 9-10.) One month
later, Sulkin et al. would again claim the trial court found Lane Powell’s effort in litigating the case was
“exceptional.” (Exhibit December 21, 2012, Pg. 9
Ftn. 6.)
But these statements are yet more lies, as evidenced above, by both February 6, 2009 exhibits:
the Court made no statements about Lane Powell’s “vigor” or “exceptional” work.
Ironically, Lane Powell’s success in the 2008 trial was due to the skills of the talented
Mr. Good, whom Grant Degginger either fired or forced to resign in 2009. For more information, see “A Gun to
the Head of the Junior Attorney” in Preface, above, and “Mr. Good’s Abrupt Departure from Lane
Powell,” below.
Costs Award
At about the time the trial court awarded the multiplier to us, Lane Powell had invoiced us for
$482,383.89. The trial court awarded us $45,442 in costs, which costs we had paid directly from our own
pockets. Eventually the $45,442 awarded in costs by the trial court would be lost on appeal (see Chapters II and
III, below). To add insult to injury, Lane Powell’s counsel Robert Sulkin would also claim that Lane
Powell had paid those costs, and that we owed the money to Lane Powell. See Part II Chapter 1,
“Sulkin Alleges DeCourseys ‘Owe’ Lane Powell Money That Lane Powell Never Spent.
Contingency Case? Having It Both Ways (RPC 1.5)
With RPC 1.8 (cited above) in mind, we now turn attention to RPC 1.5.
Contingency Fee Case Discussed, But Not Formalized. After the trial, Mr. Good told us that
Lane Powell (i.e., Degginger) was considering converting our case to a contingency fee arrangement. No follow-up
conversation was ever arranged with Degginger, and we were not given the reason. A fee-per-hour arrangement would
obviously make more money for the firm.
Contingency Fee “De Facto” Arrangement. In Plaintiff’s Motion In
Support Of An Award of Attorneys’ Fees and Costs, our advocate wrote:
Although the DeCourseys and Lane Powell have an hourly fee agreement, it became clear early in 2008
that this would become a de facto contingent fee representation; the DeCourseys had no hope of fully compensating
Lane Powell for their services if they did not prevail.
(Exhibit January 9, 2009, Pg. 16 at 9-12).
Internal Memo Calls Our Case “Contingent”. On January 5, 2010, an internal
Lane Powell memo reveals the firm regarded our case as a contingency case.
(Exhibit January 5, 2010.) Yet Degginger was charging us top
dollar per hour, with a 9% surcharge (i.e., 9% interest). We argue Degginger violated the Rules of Professional
Conduct 1.5 Fees:
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include
the following ...
(8) whether the fee is fixed or contingent; and
(9) the terms of the fee agreement between the lawyer and the client, including whether the fee
agreement or confirming writing demonstrates that the client had received a reasonable and fair disclosure of material
elements of the fee agreement and of the lawyer's billing practices ...
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except
in a matter in which a contingent fee is prohibited by paragraph (d) or other law. If a fee is contingent on the
outcome of a matter, a lawyer shall comply with the following
(1) A contingent fee agreement shall be in a writing and signed by the client: (Emphasis
added.)
(2) A contingent fee agreement shall state the method by which the fee is to be determined, including the
percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and
other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the
contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client
will be liable, whether or not the client is the prevailing party ...
Was our agreement in writing as required by this rule? Degginger wanted it both ways. If the
case was won, he’d take the exorbitant hourly charges out of our damages award.
Amended Fee Agreement: December 30, 2008 (RPC 1.8(h)(1))
On December 30, 2008, we signed an Amended Fee Agreement
(Exhibit December 30, 2008).
Degginger Did Not Advise Us to Seek Outside Counsel. Despite Rule 1.8, Degginger did
not advise us to seek outside counsel before signing this agreement. We now understand that was an anomaly,
although we did not at the time. Outside counsel might have advised us that Lane Powell was effectively agreeing
to give up the 9% interest on outstanding invoices, and that the renunciation should be explicit in the new
agreement. Certainly such renunciation should have been explicit, had Degginger been acting in good faith as our
fiduciary.
DeCourseys Required to State Fees Were “Honestly Derived”. Page 2 of the
amended fee agreement of December 30, 2008 also contained the proviso that:
DeCourseys agree that Lane Powell’s fees were honestly derived and were necessarily incurred in
this litigation given our opponents’ strategy.
(Exhibit December 30, 2008, Letter of Agreement; Emphasis
added.)
That Degginger would have the agreement written with the assertion that the fees were
“necessarily incurred ... given our opponent s strategy” was a perversion of the truth. Recall
that Degginger’s practice group took no action to protect us from Windermere’s scorched earth strategy, did
not ask for CR 11 sanctions, did nothing to hold costs down, padded the invoices. And counsel Strasser had stated
that Windermere lawyers were “just doing their job.”
The 2007 retainer agreement states that Lane Powell would primarily be using Mr. Good for the case,
and that he would be billing at $275/hr.
(Exhibit September 19, 2007 (1).) The agreement
states that other higher priced lawyers (as high as $400/hr.) would be used as needed. By January 2008, we were
already being billed $300 an hour for Mr. Good’s time. By January 2009, we were being billed $310 per hour
for Mr. Good’s time. Ultimately we would be routinely billed at $440 an hour for the appeals
attorney’s time and $470 for Degginger’s time (with no discernible value added for Degginger’s time.)
We had to sign this agreement -- we were trapped. At this point, there was no chance another
firm would represent us, given Lane Powell’s invoices and the critical state of the case. We signed the
December 30, 2008 amendment under duress, as if we had a gun to our heads. We now understand that what Degginger
insisted we sign was an illegal waiver, essentially of the type prohibited by Rule 1.8(h)(1) of the Rules of
Professional Conduct.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice
unless permitted by law and the client is independently represented in making the agreement; ...
We now also understand that the December 30, 2008 agreement was a contact of adhesion -- we had no
option but to sign it.
[A]dhesion contract (contract of adhesion) n. a contract (often a signed form) so imbalanced favor of
one party over the other that there is a strong implication it was not freely bargained.
(http://legal-dictionary.thefreedictionary.com) in
Note again: we were not represented by independent counsel when signing the December 30, 2008
agreement. We were prisoners. As we have observed above, our case had long since been hijacked.
As Attorney Paul Fogarty opined:
LP cannot both breach that Agreement, and demand the DeCourseys be bound by it ...
(Exhibit September 22, 2011, Page 4, Para. 3)
Lane Powell Promises To Forbear and Assist. According to the December 30, 2008
amendment, Lane Powell promised to forebear for “a reasonable time” on collecting the balance owed and to:
assist you regarding possible appeals ... as necessary to prevail or retain awards discussed.
(Exhibit December 30, 2008, Letter of Agreement)
The term “reasonable time” is explained in a letter dated December 5, 2008:
[Lane Powell] will forbear on demanding payment on the balance of the amount owed until payment on
the judgment or settlement with Windermere. (Exhibit December 5,
2008.)
In the following pages (Chapter II and Chapter III) we will see how Degginger and Lane Powell
betrayed this promise.
Thwarting Judge’s Fee and Costs Awards
Real Estate Purchase & Sales Agreement. During the sale of the house to us in
2004, Windermere slipped its own form (“Additional Clauses Addendum Windermere/SCA Revised Form”) into the
standard North West Mutual Listing Service “Real Estate Purchase and Sales Agreement”
(“REPSA”), which was prepared for closing (Exhibit May 21,
2004). Windermere renumbered the pages -- Windermere’s slip-in appears as Page 11. Clause 6 of
Windermere’s slip-in reads as follows:
RECOMMENDATIONS AND REFERRALS: Agent may assist Buyer or Seller with locating, selecting or scheduling
service providers, such as home inspectors, contractors and lenders. Agent cannot guaranteed, ensure or be
responsible for the quality or performance of the services or to the financial responsibility of third
parties. Other vendors are available, and the price and quality of such services is competitive. Buyer and
Seller agree to exercise their own judgment regarding such service providers.
Windermere argued in court that that clause made the agent a third party beneficiary of the
REPSA. By agreeing to hold the agent harmless for his recommendations, Windermere argued we had waived our
conflict of interest claims. RCW 18.86.030,
however, states that the agent's duties of loyalty and honesty to his client "may not be waived," and the court did not
accept Windermere's argument.
But by its argument, Windermere made the REPSA a governing contract of the lawsuit. Clause
(q) of the NWMLS portion of the REPSA, page 4, reads:
Attorneys' Fees. If a Buyer or Seller institutes suit against the other concerning this
Agreement, the prevailing party is entitled to reasonable attorneys' fees and expenses.
(Exhibit May 21, 2004, Pg. 4.)
Since Windermere had argued the agent was a third party beneficiary to the REPSA, the trial court
ruled that he was subject to this fees clause of the REPSA, and that he was liable for the "reasonable attorneys' fees
and expenses" of the suit.
In the fees motion, Mr. Good argued for an award of fees and costs on two foundations: 1.
Under the REPSA, Windermere should pay our expenses of the lawsuit, as defined in Bloor v. Fritz. In that
precedent, experts, photocopying and other expenses were covered. 2. The jury had found Windermere in violation
of the Consumer Protection Act, which provides for “costs of the suit” to be paid to successful
plaintiffs.
What the Trial Judge Ordered. On November 14, 2008, the judge apparently reviewed the
interest rates in RCW 4.56.110 and, finding the
contract basis for the suit but no explicit interest rate in the REPSA, decreed the post-judgment interest rate would be
12%, starting on that day. The pre-written judgment prepared by Lane Powell had to be amended and refiled to meet
the court rules, and the 12% interest rate was recorded on the docket December 29, 2008 (Exhibit
“Verdict Docket)”
and February 27, 2009 (Exhibit, “Judgment
Docket”). See data on interest rates (Exhibits June
10, 2010 (1), June 10, 2010 (2),
and June 10, 2010
(3)). RCW 4.56.110
(Exhibit June 10, 2010 (4)) indicates clearly that this
modification of post-judgment interest rates was applicable to our case. See also the Declaration of
Degginger’s subordinate, affirming the judge’s 12% interest award
(Exhibit November 12, 2009, Pg. 2 at 8).
THE GREAT INTEREST RIP-OFF
Windermere Gets $260,000 Gift. We Get $260,000 Loss.
(From 12% to 3.49% Interest -- In Our Disfavor)
Secret February Give-Away. In February 2009, Mr. Degginger’s subordinate,
without consulting us or asking permission, cut a deal with Windermere. The deal replaced the judge’s 12%
post judgment interest (Exhibit Judgment Docket) with 3.49%.
(Exhibit February 27, 2009 (1), Pg. 3).
Resultant Judgment a Surprise to Us. The deal was written up and submitted to the
judge for his signature, all without our knowledge. Meanwhile, Degginger continued to invoice us 9% on Lane
Powell's outstanding invoices. The first time we saw the 3.49% interest rate was after the judge signed it.
(Exhibit February 27, 2009 (1) Pg. 3)
RPC 1.4. In our opinion, this was a violation of RPC 1.4 Communication.
RPC
1.4
Communication
(a) A lawyer shall;
(1) promptly inform the client of any decision of circumstance with respect to which the client's
informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be
accomplished;
(3) keep the client reasonably informed about the status of the matter; ...
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.
Since Windermere had already filed a notice of appeal (January 21, 2009) delaying payment of the
judgment by three (3) years, the lowering of the rate to 3.49% was a huge gratuity to Windermere and a blow for us.
Degginger’s subordinate later claimed that the Woo v. Fireman’s Fund decision of
May 18, 2009 justified the reduction of the interest rate in Windermere’s favor. But clearly the Degginger
team’s gift to Windermere on February 27, 2009 was given months before Woo. Woo can not be
used as a justification.
This compromise on the interest rate was a violation of Lane Powell’s contractual commitment
to us to safeguard all of our awards.
Amount at Issue: More than $260,000.
Conflicting Stories. Upon seeing the February 27, 2009 Final Judgment and the 3.49%
interest rate, we asked Degginger’s subordinate about it. He told us that the interest rate was established
by law, that the judge had made a mistake by granting us 12%. Of course, had the judge made a mistake, Windermere
should have asked for a reconsideration, but did not.
But later, on November 12, 2009 Degginger’s subordinate filed a Declaration in which he
stated (1) Windermere told him the 12% interest rate was wrong and that, (2) in place of the 12% rate, he agreed to a
3.49% interest rate:
After receiving the order awarding attorneys’ fees, I prepared an amended judgment based upon
the verdict and order. I sent the draft judgment to Defendants’ attorney Matt Davis. The draft
judgment incorporated a post-judgment interest rate at 12% per annum.
Mr. Davis contacted me on February 27, 2009, the same day that presentation of the amended judgment was
scheduled, and explained that he believed that the interest rate should be calculated as a tort
under RCW 4.56.110(3). I countered by
explaining that the jury had found other bases for liability beyond tort, including violation of the CPA, and that the
court had awarded attorneys’ fees and costs on the same premise as well as Defendant's third-party beneficiary
arguments at trial. In response, Mr. Davis offered to calculate the interest rate of the 26 week T-Bill rate as
published by the Federal Reserve Board of Governors. Mr. Davis explained that the rate should be 3.49%, and I
accepted the compromise, inserted the interest rate as agreed to the order and forwarded the revised judgment to
Mr. Davis for confirmation. Attached hereto as Exhibit C is a true and correct copy of my February 27, 2009 e-mail
and attachment to Matt Davis.
Mr. Davis agreed and executed the final judgment and waived presentation of the same.
I did not make any mistakes in preparing the Judgment. Rather, Mr. Davis and I discussed the
interest rate in detail and reached agreement on the appropriate amount of interest in compromise.
(Exhibit November 12, 2009, Pg. 2 at 6-24; emphasis added.)
Degginger et al. simply accepted what Windermere proposed. There was no compromise. We
got nothing of value in exchange for that huge gift to Windermere, totaling more than $260,000.
Moreover, the lowered interest rate (3.49%) was wrong, even for a tort. The State Treasurer
publishes a webpage showing the post-judgment interest rate referenced by month. The month of October 2008, (the
date of our verdict) shows the standard post judgment interest rate for a tort to be 3.935%. On February 27, 2009,
when this judgment was written, Windermere had already filed a notice of appeal,
triggering RCW 4.56.110(3)(a) which sets the
judgment interest by “the date the verdict was rendered.” (Treasurer's
webpage, Exhibit February 27, 2009 (2)). At that
time, payment on the judgment was known to be two years in the future.
Despite the Judgment that Degginger et al. presented for Judge Fox’s signature on February
27, 2009, the 3.49% interest rate was well below the statute level. The 3.49% interest rate was just plain
wrong. (Exhibit February 27, 2009 (1), Pgs. 2-3.)
If Windermere thought the 12% post judgment interest was an error, Degginger et al. should have let
Windermere argue that on appeal.
The lower rate, over the three years between the verdict and the payment of the judgment,
represented a huge loss for us. A 12% post-judgment interest rate over 3 years would have totaled more than
$376,000, but the 3.49% rate totaled only $108,000. The lower rate represented a loss of more than $260,000 for us, and a
savings to Windermere of the same amount with a single stroke of the pen. Degginger’s team gave away more
than a quarter of a million dollars of our money and got nothing for us in exchange.
Amount at Issue: More than $260,000.
We Object to Being Gouged. We objected to Degginger’s continually dinging us for
the 9%. (Exhibit August 5, 2010). Degginger replied,
essentially telling us to like it or lump it. (Exhibit August 30,
2010.)
A 12% rate would have resulted in an amount sufficient to pay Lane Powell the 9% interest it is now
claiming on much of the same money over the same period. But instead, Lane Powell pared our interest to the bone
-- 3.49%, below the statutory rate -- and now insists that Lane Powell's interest rate be affirmed at 9% over the
whole period.
Moreover, paying 12% on the judgment would certainly have discouraged Windermere from further CPA
violations -- and forwarded the purpose of the CPA.
Degginger put his interests, and Windermere’s interests first, above our interests and the
interests of the public.
Low Interest Rate Encourages Windermere’s Abuse of Process. Attorney Paul
Fogarty opines:
But the lower interest rate had even greater consequences than just the reduced award. With an
interest penalty so close to zero, Windermere was encouraged to delay the case endlessly, ... And with each action that
Windermere was encouraged to undertake, the risk of reversal was increased.
(Exhibit September 22, 2011, Page 11, Para. 6.)
We would also add: The longer Windermere delayed the case, the longer Degginger could charge 9%
interest on his ever-accruing invoice amount.
Windermere and Degginger’s work minimized Windermere’s losses and our net awards,
maximized Lane Powell’s profits.
Conflict of Interest, Comment 3
of RPC
1.8 Lays It Out.
[3] The risk to a client is greatest when the client expects the lawyer to represent the client in
the transaction itself or when the lawyer's financial interest otherwise poses a significant risk that the lawyer's
representation of the client will be materially limited by the lawyer's financial interest in the transaction.
Here the lawyer's role requires that the lawyer must comply, not only with the requirements of paragraph (a), but also
with the requirements of Rule 1.7. Under that Rule, the lawyer must disclose the risks associated with the
lawyer's dual role as both legal adviser and participant in the transaction, such as the risk that the lawyer will
structure the transaction or give legal advice in a way that favors the lawyer's interests at the expense of the
client. Moreover, the lawyer must obtain the client's informed consent.
We do not believe Mr. Good would have agreed to such a compromise with Windermere without being
specifically directed by Degginger. In any event, Degginger was Mr. Good’s supervisor at the time and was
responsible for his actions. (Exhibit August 30, 2010
Pg. 1 at 22.)
[Note: See “A Gun to the Head of the Junior Attorney,” at the beginning of
this report. When Mr. Good acted independent of Degginger’s direct supervision, he was competent,
aggressive, loyal and honorable.]
Mr. Good’s Abrupt Departure from Lane Powell. In November 2009, we called Lane
Powell to speak to Mr. Good. The receptionist routed our call to Ryan McBride. To our astonishment, McBride
told us that Mr. Good was no longer with Lane Powell. McBride then raised his voice and said with great emphasis:
“BUT IT HAD NOTHING TO DO WITH YOUR CASE!”
Indeed, Mr. Good had left Lane Powell so abruptly that he did not call to tell us, his clients,
that he was planning to leave. Later, we located and spoke to Mr. Good; but he told us he could not reveal the
circumstances of his departure because he had signed a non-disparagement agreement with Lane Powell. Apparently
his departure was acrimonious and disparagement was thought to be a distinct possibility. We believe Mr. Good’s
departure was triggered by his refusal to perform unethical actions, and that the circumstances of our case were a
factor. See “Gun to the Head of the Junior Attorney” in Preface. We in no way hold Mr. Good
responsible for our bad experiences.
Interest Gouging Is Good for the Gander
We Complain About Interest Anomaly. In June, 2010, the post-judgment interest rate was
set by statute to 5.25% minimum, and it included ours.
(Exhibits June 10, 2010
(1), June 10, 2010
(2), June 10, 2010 (3), with State Treasurer's Interest Rate
Archive.) We complained to Degginger about the anomaly in interest rates: Why should we pay 9% when Windermere’s
interest rate was reduced to 3.49% after being set at 12% by the judge?
(Exhibit August 5, 2010.) Degginger wrote back with words to this
effect: “Don’t like it? Too bad. You’re stuck with it.”
... The correct interest rate was utilized for the award ... We continue to abide by the contract
you signed. (Exhibit August 30, 2010.)
But in lowering the interest rate, Degginger’s team took specific unnecessary action contrary
to our interests, without consulting us, in violation of its fiduciary duty and the terms of its contract.
As Attorney Paul Fogarty would opine:
LP cannot both breach that Agreement, and demand the DeCourseys be bound by it ...
(Exhibit September 22, 2011, Page 4, Para. 3)
Degginger did not deny the anomalies and rather belligerently defended his exploitation of us on
the interest rate. (Exhibit August 30, 2010.) And he did not
tell us about the new 5.25% rate. See Exhibits June 10, 2010
(1), June 10, 2010 (2),
and June 10, 2010 (3).) Note: Degginger also pretended the
interest rate was a matter of law and did not mention the deal made with Windermere without our knowledge, which cut the
judge-ordered rate from 12% to 3.49%. (Exhibit November 10,
2009; Exhibit November 12, 2009, excerpt cited above).
What’s Good for the Goose Should Be Good for the Gander. On November 7, 2010, we wrote
to Degginger with a list of issues that we wanted addressed. Of the 3.49% interest, we told Degginger:
If an interest rate of 3.49% is good enough for DeCourseys to accept from Windermere (who harmed
DeCourseys), it should be good enough for LP to accept from DeCourseys (who bought a solid and lucrative civil case to
LP). (Exhibit November 7, 2010, Pg. 4, Para. 6. See also
exhibits included in that letter.)
Our records indicate Degginger never responded.
In 2011, Still No Intention to Correct Interest Rate. In August, 2011, Degginger and
McBride indicated they still had no intention to correct the interest rate. One day before we terminated Degginger
and McBride, McBride stated in an email.
... We should be able to agree with Windermere on the proper amount of amended cost bill and get a
stipulated amended judgment reflecting that amount as well as the additional amounts awarded on appeal.
McBride did not mention correcting the interest rate to that specified by statute
(Exhibit June 10, 2010
(1), June 10, 2010 (2),
June 10, 2010 (3),
and June 10, 2010 (4) with State Treasurer's Judgment Rates Archive
attached), or that the 3.49% rate was arrived at by private compromise with Windermere -- a compromise made without our
knowledge or consent. (Exhibit LP Email August 2,
2011 at 3:01 PM and discussion above, also
Exhibit November 12, 2009).
Replacement Counsel Worked for Our Benefit. Degginger was continually working against
our best interests. We hired an advocate who worked for our benefit (Michele Earl-Hubbard of the Allied Law
Group); Earl-Hubbard arranged a stipulated judgment with Windermere that included a 5.25 per cent interest on all
awards, computed from day of verdict. By her actions, we were able to recover about $60,000 of the interest that
Degginger’s team had given away.
Lack of Professionalism Knows No Bounds. On August 17, 2011 -- two weeks after we
terminated Lane Powell -- Degginger wrote to us, transmitting an Account Summary and Invoice. The package was
mailed on August 22. Exhibit August 17, 2011 contains the
letter, the Summary, the Invoice, and a copy of the envelope showing the mailing date.
On August 24, 2011, we wrote back to Degginger, expressing our astonishment that he would
communicate directly with us, knowing we were represented by another firm. It seemed his lack of professionalism
knew no bounds. We requested him never to contact us
again. Exhibit August 24, 2011.
Degginger’s letter is remarkable for completely ignoring the terms of our agreement. In
the letter, Degginger pretends that payment on the Lane Powell invoice awaits only the decision of the Supreme Court to
make the money magically appear. The December 30, 2008 agreement, however, makes plain that Lane Powell was fully
aware we were people of modest means, that we would not have the money to pay the fees until the Windermere award was
paid, and Lane Powell would forebear collection on the invoice until payment on the judgment (see
also Exhibit December 10, 2008). On August 17, 2011, we
were still 78 days from satisfaction of judgment (November 3, 2011). Yet already on August 17, in violation of the
December 30, 2008 agreement, Degginger attempted to collect on Lane Powell’s invoice.
Were We Complicit in Our Bad Treatment at Degginger’s Hands?
Is it Safe to Jump Out of a Hijacked Aircraft in Mid-Flight? We were no more complicit
in our bad treatment at Degginger’s hands than an innocent passenger in a hijacked airplane is complicit in the
hijacking. To expand this analogy: We boarded a flight (representation by Degginger’s team) in good
faith. After we were in the air, we realized that there was a great struggle taking place in the cockpit: Much of
the time the plane was being flown by a hijacker who was disregarding our instructions and taking the flight to an
unwanted destination. We could not jump out of the plane while it was in mid-air. Instead, we tried to
cajole and humor the pilots and encourage them to make a safe landing anywhere close to the advertised
destination. Thus we attempted to clothe everything we wrote in cordiality ...
See Our Complaints. See a record of our complaints to
Degginger: Exhibit November 7,
2008; Exhibit December 10, 2008;
Exhibit August 5,
2010; Exhibit August 30,
2010; Exhibit September 5,
2010; Exhibit November 7, 2010. See
especially Exhibit November 18, 2010, a letter from Degginger in
response to our November 7, 2010 letter, and his refusal to address the issues we raised. Clearly Degginger knew
we were captives and could not escape. (See further discussion in Chapter 2.)
Ever since he took over as billing attorney in December 2009, Degginger solicited comments from us
on the billing cover letter. He would always write, “If you have any questions, please do not hesitate to
ask.” (Exhibit August 17, 2011).
And how did Degginger treat our objections and complaints? He refused to address them.
See Exhibit November 18, 2010. Obviously, he knew we were in
the ghastly position of being unable to terminate their representation -- and hence, he could do whatever he wanted with
the case. And he did.
But What of Our Praise? Whenever we could justifiably do so, we praised the
attorneys at Lane Powell for their work. We praised the work whenever we could. We were aware that
“You catch more flies with honey than vinegar.” We hoped our praise for jobs done properly would cajole them
into doing all their jobs properly.
As soon as we could safely leave Degginger’s airplane, we did.
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