| ← Previous
|
Part I, Chapter 4, The Windermere Lawsuit
Case No. 06-2-24906-2 SEA
Remand to the Superior Court -- Chapter Outline
We Regain Control of Our Case -- Degginger et al. Obstruct
Remand and Satisfaction of Judgment
August 3, 2011: Allied Law Group Appears on Our Behalf
Degginger Insists Entire Award Be Sent to Lane Powell
Degginger Admits Violating RPC 1.8
August 17, 2011: Demand for Fees
Secret Deal with Windermere Almost Completed. McBride’s Untruth Revealed
Degginger Feigns Ignorance of Our Complaints (RPC 3.4(a))
“Holding DeCourseys’ Money Hostage”
Degginger Complains: “A Lot of Work Involved” in Doing What Was Required
Contradictory – And Wrong – Interest Rate Information
We Seek to Negotiate: Atty. Fogarty’s 19-Page Letter
Fogarty’s September 23, 2011 Letter: Two More Issues
Lane Powell’s Mike Dwyer: DeCourseys “Free” to Negotiate Payout of Award
Conduct Prejudicial to the Administration of Justice
Sulkin Refuses to Produce Necessary Remand Documents
Sulkin & Eaton Lie About Being “Kept in the Dark.”
October 5, 2011: Surprise Lawsuit
Part I, Chapter 4, The Windermere Lawsuit
Remand to Superior Court
Case No. 06-2-24906-2 SEA
Note: Some Exhibits have been redacted in accordance with a settlement
agreement
with
the contractor who ruined our house.
We Regain Control of Our Case -- Degginger et al. Obstruct
Remand and Satisfaction of Judgment
August 3, 2011: Allied Law Group Appears on Our Behalf. On August 3, 2011, Michele
Earl-Hubbard of the Allied Law Group filed a Notice of Appearance to handle the Windermere remand on our behalf.
Accordingly, on August 3, she instructed Windermere not to pay the judgment to Lane
Powell. (Exhibit December 19, 2011 (2), Declaration
Exhibit A.)
Degginger Insists Entire Award Be Sent to Lane Powell. On August 18, Earl-Hubbard
emailed Ryan McBride, seeking the information she needed for the remand.
(Exhibit December 19, 2011 (2), Earl-Hubbard Declaration,
Pg. 2 at Para. 8 and Exhibit D). On the same day, she also spoke on the phone with Andrew Gabel concerning the
same issues. Earl-Hubbard suggested that the funds in dispute could be kept secure while the remaining
(uncontested) funds were paid to us.
In reply, Gabel told Earl-Hubbard that Lane Powell’s “management” insisted that
the whole of the judgment must deposited in the Lane Powell trust account and that Lane Powell would not permit ANY
payout to us unless its entire lien was paid
first. (Exhibit December 19, 2011 (2), Pg. 3, Lines
10-24.)
Note: Degginger and his colleagues were thus asserting the proprietary interest in the judgment and
admitting to the truth -- that they had wrested our case from us.
Degginger Admits Violating RPC 1.8. As we pointed out in Chapter 1, the Rules of
Professional Conduct, Rule 1.8(i), prohibit a lawyer from acquiring a proprietary interest in a case:
(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.
Again, as we already pointed out, Degginger actually claimed the legal fees in the Windermere
lawsuit had been 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.) In fact, the February 27, 2009 Judgment shows the fees were awarded to DeCourseys, the Judgment
Creditors. (Exhibit February 27, 2009 (1).)
Degginger’s insistence that the entire award go to his firm, even after they had been
terminated as our attorneys, is revealing. They had acquired proprietary interest in our case -- hijacked it --
and they were outraged because they saw the booty going elsewhere.
August 17, 2011: Demand for Fees. As pointed out in Chapter 1, two weeks after we
terminated Lane Powell -- Degginger wrote to us demanding that we pay his fees, and transmitting an Account Summary and
Invoice. The envelope in which the letter and attachment were sent was postmarked August 22.
(Exhibit August 17, 2011.)
Degginger’s letter is remarkable for completely ignoring the terms of our agreement,
pretending that payment of the invoice awaited only the decision of the Supreme Court to make the money magically
appear.
The December 30, 2008 agreement, however, made it 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. 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.
Secret Deal with Windermere Almost Completed. McBride’s Untruth Revealed.
Gabel also sent Earl-Hubbard a draft of the document, “Partial Satisfaction of Judgment” for $1,000,000,
which was ready for signature. (Exhibit August 19, 2011
Ex. E.) This document corroborated the statement by Hickman’s office on August 3 that the payment was so
imminent that Hickman’s people had to rush to stop payment.
(Exhibit December 19, 2011 (2), Earl-Hubbard Declaration,
Pg. 2, Para.6.)
Thus McBride’s August 2 statement to us that partial payment of judgment might be
“months away” was yet another effort to deceive.
(Exhibit LP Email August 2, 2011 at 3.01
PM.)
Degginger Feigns Ignorance of Our Complaints (RPC 3.4(a)). On August 23, in a telephone
conversation with Ms. Earl-Hubbard and Andrew Gable (Lane Powell attorney), Degginger “demanded to know what
issues the DeCourseys had with the amount” of the lien.
(Exhibit December 19, 2011 (2), Declaration of Michele Earl
Hubbard, Pg 4, Lines 10-13; and 24-26).
At no time ... was there any mention by Mr. Degginger or Mr. Gable that the dollar figure noted in that lien
notice was not the complete amount to which Lane Powell claimed a lien. They did not mention the concept of
interest, for example, nor did they ever inform me their fees and costs were allegedly accruing interest pursuant to
any agreement. (Exhibit December 19, 2011 (2), Declaration
of Michele Earl Hubbard, Pg. 5 at 24-26 and Pg. 6 at 1-3.)
Despite his feigned ignorance, Degginger knew full well what our issues were. We had informed
him on many occasions. (See 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. Degginger wrote:
Several hours after receiving the Court of Appeals lengthy opinion affirming both the judgment and the
attorneys’ fee award from the jury trial against Windermere, we received your November 7 letter. While it
is tempting to drop everything and prepare a point-by-point response to the items raised in your letter, this is
neither the time nor the place for such an exercise ...
Suffice it to say, we believe that the firm has been extremely fair and gracious with you and that we
continue to expect you to abide by the written agreements you have entered into with us.
(Exhibit November 18, 2010.)
Degginger’s hoity-toity, highfalutin attitude smacks of noblesse oblige. He and
his, who have high social rank or wealth, have been helpful to us, poor people of lower rank. But suffice it to
say, Degginger never did find time to address our complaints. He just rode over us.
See also multiple emails in February 2011 (Exhibit DeC
Email) containing contemporaneous protests we voiced to Degginger and his team about their services and
Degginger’s responses (Exhibit LP Email).
We argue that in feigning ignorance of our complaints, Degginger violated RPC 3.4(a) Fairness to
Opposing Party and Counsel (Earl-Hubbard being the opposing counsel in our dispute with Degginger and his
colleagues).
“Holding DeCourseys’ Money Hostage.” During the August 23
conversation with Earl-Hubbard, Degginger insisted on holding the uncontested funds hostage to his claim for full and
immediate payment of the lien. Earl-Hubbard stated that such a stance would be ethically and legally
“problematic.” Degginger did not deny that characterization nor address the ethics or legality of what he
was doing. (Exhibit December 19, 2011 (2),
Declaration of Michele Earl Hubbard, Pg. 6 at 10-15.)
Degginger Complains: “A Lot of Work Involved” in Doing What Was Required.
On August 23, Earl-Hubbard asked Degginger for documentation of the trial costs that Lane Powell had invoiced to
DeCourseys so she could represent DeCourseys on the remand. Degginger complained that it was “a lot of work
to sort out costs for what could be just a few thousand dollars.”
(Exhibit December 19, 2011 (2), Pg. 7, Lines 4-11.)
Degginger’s statement contrasts with McBride’s statement of August 2:
“... from our perspective there won’t be much to do. We should be able to agree
with Windermere on the proper amount of the amended cost bill and get a stipulated amended judgment reflecting that
amount as well as the additional amounts awarded on appeal.”
(Exhibit LP Email August 2, 2011 at 3:01 PM;
emphasis added.)
Degginger’s statement to Earl-Hubbard on August 23, combined with McBride’s statement of
August 2, shows that (1) these lawyers were not maintaining our records with the intention of making proper claims on
our behalf, and (2) that they intended to skin us once again on our lawful awards from Windermere. Whoever they
were working for -- it certainly wasn’t for us.
Contradictory -- And Wrong -- Interest Rate Information. On August 23, Earl-Hubbard asked
how the 3.49% interest rate was determined. Mr. Gabel answered with an email, attached as Exhibit G to
Earl-Hubbard’s Declaration. That email does not even refer to the judge’s award of 12% interest, but
states the 3.49% interest rate was statutory and based on T-bill rate. But 3.49 % interest was actually well
below the statutory rate, as shown by the State Treasurers’ Judgment Interest Rate webpage.
(Exhibit February 27, 2009 (2).
Gabel’s August 23 statement contradicts Mr. Good’s Declaration that the interest rate
was a compromise with Windermere’s counsel.
(Exhibit November 12, 2009, Pg. 2, Paras. 5, 6, and 7.)
We Seek To Negotiate: Atty. Fogarty’s 19-page Letter. On September 22, 2011,
attorney Paul Fogarty, on our behalf, sent a 19-page letter to Degginger’s managers listing many of our
disagreements with the Lane Powell’s representation and invoices.
(Exhibit September 22, 2011).
Fogarty’s September 23, 2011 Letter: Two More Issues. On September 23, 2011,
Fogarty wrote to Lane Powell’s Lewis Horowitz and Dwyer, informing them that Windermere was attempting to pay our
the judgment satisfaction:
... As you are also aware, the insurer for the judgment debtor is attempting to effectuate payment of the
judgment amount. (Exhibit September 23, 2011, para
4.)
Fogarty also objected to Lane Powell’s attempts to stop the payment of uncontested moneys to
us.
By blocking payment to the DeCourseys, LP is attempting to pressure the DeCourseys into paying the
disputed lien amount. LP’s conduct is akin to extortion (the wrongful obtaining of property from another induced
under color of official right). (Exhibit September 23, 2011,
Para. 6.)
Lane Powell’s Mike Dwyer: DeCourseys “Free” to Negotiate Payout of
Award. On September 28, 2011, Mike Dwyer, speaking for Lane Powell, answered Fogarty, objecting to the
suggestion that Lane Powell was holding the judgment hostage. Dwyer wrote:
... we would like to see that the DeCourseys are paid ... DeCourseys are free to make any arrangement they
want with Windermere’s insurer concerning payment [as long as Lane Powell’s] legal fees to which [Lane
Powell] is entitled [are protected] ... We will work with you concerning your request for documents
... (Exhibit September 28, 2011, Pgs. 1 and 2.)
Sulkin Refuses to Produce Necessary Remand Information and Documents:
Violations of RPC 3.4(a) and RPC 1.16(d)
Conduct Prejudicial to the Administration of Justice.
On August 18, 2011, Earl-Hubbard sent an email to McBride asking for a breakdown of the costs that
had been invoiced by Lane Powell on our case. Earl-Hubbard starts her email thus:
I am trying to sort out what costs the DeCourseys might be entitled to on remand and really need to get
their files from you showing the detail of the various costs charged to them and reflected in the submissions. It
is impossible to match up what was filed originally with the categories allowed without more detail and backup.
(Exhibit August 18, 2011 at Para. 1; also
at Exhibit December 19, 2011 (2), exhibit C.)
On August 23, 2011, Degginger and Gable called Earl-Hubbard on the speaker-phone. Of that conversation,
Earl-Hubbard declared:
I asked them for the files related to the judgment interest selection and the cost motion, their attorney bills to the
DeCourseys and the backup for costs on their invoices so I could try and break out the costs into the categories
required by the appellate court on remand. Mr. Degginger complained that it was a lot of work to sort out costs for
what could be just a few thousand dollars, and I said the clients were entitled to seek recovery of those costs if they
wanted so we needed the backup so the clients or a staff member could review it and do the parsing.
(Exhibit December 19, 2011 (2), Para. 16.)
On October 5, 2011 Earl-Hubbard wrote to Degginger, McBride, and Gable requesting information about
Lane Powell’s invoices and how it had structured its charges to the case.
Your bills do not provide any detail allowing me or the DeCourseys to break the costs down into the
categories under RCW 4.84.010.
(Exhibit October 5, 2011 (2), shown here without its
attachments. See also Exhibit December 19, 2011
(2), exhibit H.
On October 19, 2011, answering Earl Hubbard’s October 5, 2011 letter, Sulkin characterized
Earl Hubbard’s requests as a plea for “legal advice.”
Your letter requests that Lane Powell provide legal advice to the DeCourseys regarding the cost bill you
have apparently been tasked with submitting on their behalf ... Lane Powell is not responsible for providing DeCourseys
with legal advice ...(Exhibit October 19, 2011. Also
at Exhibit December 19, 2011 (2), exhibit I.)
On the very day Earl-Hubbard sent her October 5, 2011 letter, Sulkin filed Lane Powell’s suit
against us. Thus on October 5, 2011, Sulkin represented Lane Powell. He was fully empowered to facilitate
Earl-Hubbard’s request, but refused.
As a result, we were forced to compromise our claim for costs from approximately $20,000 to $650,
with a loss to us of $19,350. Sulkin’s actions violated the following Rules of Professional Conduct.
RULE
3.4
FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a
document or other material having potential evidentiary value.
RULE 1.16
DECLINING OR TERMINATING REPRESENTATION
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance
payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to
the extent permitted by other law.
Sulkin & Eaton Lie About Being “Kept in the Dark.” In December 2011,
Robert Sulkin and Malaika Eaton (Exhibit August 31, 2013),
representing Lane Powell totally lied about this whole effort to bring home the Windermere judgment. This
false statement to the court was a breathtaking fabrication:
Unbeknownst to Lane Powell, Defendants were working with the Windermere judgment debtors to obtain payment
of judgment. (Exhibit December 13, 2011, Pg. 4 at
9-10. Document signed on 12/7/11, filed on 12/13/11.)
Also:
On November 3, 2011, without notice to Lane Powell and to convince the judgment debtor to pay them despite
Lane Powell’s lien, the DeCourseys deposited $384,881.66--the amount due without interest--into the
Court Registry. Dkt. 46 at 4. (Exhibit June 27, 2012,
Pg. 3, at 5-7. Emphasis in the original.)
As shown, DeCourseys had worked through both Paul Fogarty and Michele Earl-Hubbard to communicate
with Lane Powell after the August 3 termination. Both attorneys had multiple exchanges with Lane Powell. On
the Lane Powell side, Andrew Gabel, Ryan McBride, Grant Degginger, Mike Dwyer, Lewis Horowitz, and Robert Sulkin were
directly addressed. All of those people (except Horowitz) actively participated in the exchanges concerning
various aspects of the remand, knowing that management of the remand and payment of the judgment was the subject under
discussion.
So Lane Powell’s claim that it knew nothing about efforts to secure the payment of judgment
and that Lane Powell was “kept in the dark” was a monstrous falsification of the facts and an intentional
design aimed at undermining the integrity of the judicial process itself: Fraud on the court.
(See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944); Great
Coastal Express, Inc. v. Int’l Bhd. of Teamsters, 675 F.2d 1349 (4th Cir. 1982).
In our opinion, Degginger and his colleagues were in violation of:
RPC 3.3
Candor Toward The Tribunal
(a) A lawyer shall not knowingly (1) make a false statement of fact or law to a tribunal or fail
to correct a false statement of material fact or law previously made to the tribunal by the lawyer ... (4) offer
evidence that the lawyer knows to be false ...
RPC 4.1
Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person ...
RPC 1.3
Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment [1] [Washington revision] A lawyer should pursue a matter on behalf+ of a client despite
opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are
required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the
interests of the client and with diligence in advocacy upon the client's behalf.
October 5, 2011: Surprise Lawsuit. Lane Powell -- despite its September 28 letter in which
it indicated cooperation and assistance (Exhibit September 28,
2011) -- surprised us by filing a lawsuit, and serving us with unlawful discovery requests on the same day. (Case
No. 11-2-34596-3SEA.) Exhibit October 5, 2011 (1) Dkt 1.)
Sulkin is a SLAPP suit attorney, known for his efforts to deprive Americans of their Constitutional
rights to free speech and political assembly under the First Amendment. Sulkin has been identified as an agent of
the Israeli Law Center, an organization devoted to “lawfare” and terrorizing political targets.
Challenge for Our System of Government
What is the Purpose of Law?
We conclude with the words we presented in “Introduction: Our Support”
Many citizens believe that the Bar Associations protect lawyers who lie and otherwise cynically use
the justice system to advance the interests of the elite they serve (and their own).
Many believe that when lawyers from big and politically influential firms commit offenses, the Bar
will not discipline them. Those views are reflected in a 2005 Harvard Law Review article, “Collective
Sanctions and Large Law Firm Discipline”:
An underdeterrence problem exists in the regulation of unethical conduct of lawyers in large firms.
Between 1995 and 1998, the American Bar Section on Litigation engaged a task force of professional responsibility
experts to study the many examples of 'talented partners at major establishment law firms in the nation's biggest
cities' committing 'clear ethical violations.' The fact that such violations were addressed and proscribed in ethics
rules was not enough to deter perpetrators. One likely cause of this underdeterrence is that state bar
disciplinary sanctions are almost never meted out against lawyers practicing in firms of any significant size.
Commentators have suggested that a cause of this lack of large-firm enforcement is that disciplinary sanctions apply
only to individuals, and the team-based nature of large law firm work obscures the identity of an individual
responsible for any particular instance of wrongdoing.
Professor Ted Schneyer has proposed that the responsibility-masking problem could be alleviated by
imposing fines on law firms as entities for disciplinary violations of their members under respondeat superior
liability ...
The article goes on to state:
... At one time, legal practice was characterized by the sole practitioner. Over the years, the makeup
of the profession has shifted. With this shift, it has been suggested that the primary mode of legal discipline
should also evolve to focus on firms as the culpable unit. Specifically, given that the benefits of wrongdoing
often flow from the firm (for example, salary, partnership draw, and the esteem of colleagues), the firm can properly
be viewed as liable for allowing these incentive schemes to reward unethical behavior.
We urge the Washington State Bar to help restore the confidence of the Washington public in the
legal profession. Our legal system was designed to dispense “equal justice under law” throughout
society. It was not designed just to provide a handsome living for lawyers, nor provide entrenched privilege for
the elite.
|
Next →
Full navigation panel for this site.
|