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Part II, Chapter 1:
Lane Powell v. Mark and Carol DeCoursey — Chapter Outline
Definition of Legal Terrorism (“Lawfare”)
How Could a 32-1 Chance Be “Random”?
We Object to Husband of Windermere Broker Judging the Case
Why Was This Assignment So Important to Judge Eadie and Lane Powell?
The Perfect Storm
“Sue Windermere? Even if you win, you will lose”
Advice to the Reader
Extortion Under Color of Law: Threat to Privileged Communications
Extortion and Malice: Threat of Financial Ruin
Legislative Proposal
Denial of Due Process
Repeated Lies About Court Documents and Material, Verifiable Facts
Judge Accepts Proven Lies
Strategic Litigation Against Public Participation (SLAPP) Suit
Based on False Claim
More Evidence of False Claim: No Work Planned for Remand
Based on Invalid Contract
Attempt to Profit from Billing Fraud, Breaches of Fiduciary Duty, Contract, and RPC
Based on Wrongful Proprietary Interest in Windermere Lawsuit
If October 6, 2011 Threat Was Not Extortion, What Would Be?
Sulkin’s Threat Not Protected By ER 408
Lane Powell Effectively Denied Us Representation
Conduct Prejudicial to the Administration of Justice (RPC 8.4(d))
Legislative Proposal
Denial of Due Process
Law Firms as Incubators of Blackmail
Clients Sue Attorney: Can Attorney Defend Himself?
Attorney Sues Clients: Can Clients Defend Themselves?
Pappas v. Holloway
Critical Difference Between Cases
Pappas Court Cites Hearn v. Rhay
Pappas Court Cites Jakobleff
Eaton Turns Court Decisions on Privilege Upside Down
Eaton’s Dishonest Representation of Tegland to the Court
Eaton Omits Vital Tegland Qualifiers
Eaton Cited No Case Law
The Harm Eaton’s Lies Did the Court
How the Revised Code of Washington Defines Extortion
Legislative Proposal
What the Bar Oath Says About Confidentiality
Use of Trickery
Our Privilege Under Attack from Date of Filing
Material Relevant and Proper to Discovery
Washington’s Discovery Rules: Civil Rule 26(b)(1)
Washington’s Discovery Rules: Evidence Rule 502
Discovery Requests: A Violation of Law and Contract
Extortion Surely Not Proper to Discovery
Violation of Duties to Former Clients (RPC 1.9)
Violation of Confidentiality of Information (RPC 1.6)
Relevance to the Bar
Speaking from Both Sides of Their Mouths
What is a “Lie”?
Court Rules and RPC Prohibit Lawyers to Lie
Contradictory Statements Also Banned
“Inconsistent Material Statements” Is Perjury: RCW 9A.72.050
Legislative Proposal: Close the Perjury Loophole
List of Some of Sulkin and Eaton’s Contradictory Statements
We Move to Have Alleged Privileged Material Stricken and/or Sealed
An Oversight in the Rules of Professional Conduct
Definitions of Charade and Kangaroo Court
Judge Denies Discovery Protection
Ex Post Facto Discovery Sanctions
Stymied But Not Stymied
Violation of Attorney-Client Privilege
“Carefully Orchestrated” Standard -- Contempt of Court
The “In The Dark” Invention
Degginger Declaration Proves The Lie
More Lies from Sulkin et al.
Husband of Windermere Broker Strips Another $57,036.30 From Windermere Whistleblowers
We Request a Discovery Conference
Sulkin Categorically Refuses to Confer
Violation of Rules of Professional Conduct 3.4(d), RPC 4.1, and RPC 4.3
We File Appropriate Pleadings
Court Affirms Discovery Rules
We Waive Privilege Only on Matters Germane to Dispute
Sulkin & Eaton Truncate Court Order and Edit Out References to Privilege Rules
False Statements About Being “Prejudiced” and “Stymied”
What Stopped Sulkin & Eaton From Using Privileged Documents?
Degginger, Sulkin, Eaton et al. Did Not Believe Our Privilege Had Been Waived
Sulkin & Eaton NEVER Sought Permission of Court to Use Privileged Documents
April 27, 2012: Court’s About-Face on Privilege
The Meaning of Words
Sometimes the Words in a Court Order Have No Meaning?
Sulkin & Eaton NEVER Address Their False Statements to the Court
On the One Hand, DeCourseys Have Waived Privilege And Are Withholding Essential Documents
On the Other Hand, DeCourseys Still Hold Privilege and Lane Powell Has the Documents
On the Third Hand, Sulkin, Eaton, et al. Knew They Were Bound by Attorney-Client Privilege
We Ask For Reconsideration
Our Motion for Recusal
Proof of Lies in Court Documents Given To Court
No One Has License to Lie in Court
Judge Refuses to Recuse Himself
Legislative Proposal
Lane Powell’s Responses to our Discovery Requests: RPC 3.4
Contradictory Argument Concerning Waiver and “Ethical Obligations”
Sulkin, Eaton, Degginger’s Contradictory Position on Privilege
Reviewing the Contradictions: List of Seven
Sulkin and Eaton Give Proof of Their Knowing False Statements
Our Opposition to Lane Powell’s Partial Summary Judgment Motion
Self-Ascribed Breach of Attorney-Client Privilege
“Personal Knowledge” Fabrication
No Permission to Enter Confidential Information Sought or Granted
1. Attacking First Amendment Activities
Defendants: Olympia Food Co-op Directors
Defendants: Mark & Carol DeCoursey
2. Threat of Financial Ruin
Defendants: Olympia Food Co-op Directors
Defendants: Mark and Carol DeCoursey
3. Abuse of Court Process
Defendants: Olympia Food Co-op Directors
Defendants: Mark & Carol DeCoursey
4. Lies to the Court
Defendants: Olympia Food Co-op Directors
Defendants: Mark & Carol DeCoursey
5. No Argument Too Ludicrous or Contradictory
Defendants: Olympia Food Co-op Directors
Defendants: Mark and Carol DeCoursey
Trying to Suppress BDS Movement
Trying to Suppress President Jimmy Carter’s Free Speech on Palestine
Trying to Suppress Washington Whistleblowers
Judge Forbids Our Court Reporter from Providing Transcript
Sulkin Kicks Off Hearing with a Lie About Our “Lawyers”
Judge Effectively Admits He Is Disqualified
Other Issues Raised
Sulkin Lies to Judge Eadie’s Face: Background Facts
Sulkin Lies to Judge Eadie’s Face: At the Hearing
Judge Ignores Lie and Unlawful Contract: Adopts Lane Powell’s Position
Judge Eadie Refuses Evidence Impeaching Declarations of Lane Powell’s Attorneys
Judge Eadie Refuses to Acknowledge Our Claim of Fraud
Legislative Proposal
Sulkin Lies About Fees Found “Reasonable” by Prior Courts and Why a 1.3 Fee Multiplier Was Awarded
Judge Signs Off on Untruthful Statement In Sulkin’s Court Order
Judge Orders Windermere Whistleblowers to Pay $770,986.32
But What About Lane Powell’s $268,000 Gift to Windermere? And the Other Stuff?
Let’s Make That $1,968,721.72
Sulkin Claims DeCourseys Must “Reimburse” Lane Powell $45,000 in Costs
Judge Assists Lane Powell in $45,000 Swindle
Affidavit One
Affidavit Two
Affidavit Three
Affidavit Four
Official Transcript of November 16, 2012 Summary Judgment Hearing
Sulkin et al. Notified of Our Appeal
Sulkin et al. Demand Bond Release Despite Our Appeal
We are Notified of Improper Demand on Bond
We Alert Authorities to Improper Demand on Bond
Eaton Alleges Lane Powell Just Innocently “Reaching Out”
Part II, Chapter 1
Lane Powell v. Mark and Carol DeCoursey
Case No. 11-2-345976-3 SEA
Please see “Introduction: Our Support” for legislative
suggestions to remedy some of the problems described below.
Note: (1) Some Exhibits have been redacted in accordance with a settlement agreement with the
contractor who ruined our house. (2) Lane Powell’s attorneys allege they have placed attorney-client confidences
into the public record. Without affirming or denying the content of the allegations, we have redacted the
alleged confidences.
Lane Powell Sues DeCourseys Over Windermere Lawsuit
In this chapter, we present evidence of the use of legal terrorism in Washington courts.
Definition of Legal Terrorism (“Lawfare”).
The wrongful use of the courts and court processes to frighten or terrorize others into giving up their rights,
their freedoms, or their property, often in furtherance of financial or political objectives; sometimes called
“lawfare.”
We will show how Lane Powell attorneys Robert Sulkin and Malaika Eaton, acting on behalf of Lane
Powell:
- Attempted to retaliate against us, two whistleblowers
- Used judicial process to extort us into paying exorbitant legal fees
- Threatened to ruin us financially
- Threatened to expose our attorney-client confidences if we did not submit
- Insisted on retaining a judge who is married to a Windermere broker, and is beneficiary of the Windermere
Retirement Plan
- Lied to the judge repeatedly about court documents and other material and verifiable facts. See especially
Chapter 2, ‘The Truth, the Lie, and the Judge”
- Denied us due process of law as guaranteed by 14th Amendment to the US Constitution
Review of Prior History
As mentioned in Part I Chapter 4, on October 5, 2011 Lane Powell, represented by Robert Sulkin and
Malaika Eaton of McNaul, Ebel, Nawrot & Helgren, surprised us by filing a lawsuit against us. (Case
No. 11-2-34596-3SEA.) The outcome of the suit would decide how much money would be disbursed to Windermere’s
political enemies -- Carol and Mark DeCoursey, two whistleblowers -- and how much would be absorbed by Grant Degginger
and his business partners at Lane Powell.
It will be recalled that Lane Powell’s Grant Degginger, ex-Mayor of Bellevue, accepted the
DeCoursey lawsuit against Windermere (Washington’s largest real estate sales firm) without disclosing his
conflict of interest. Just two months prior to accepting our case, he had received a significant campaign contribution
from the Washington Association of Realtors (“REALTORS”): all Windermere agents were obliged to be
members of REALTORS and pay those dues from their own pockets. (Part I, Chapter 1.)
It will also be recalled that Degginger’s team refused to present to the court evidence of
public corruption -- state agencies (including the Attorney General’s office -- the employer for many years of
Degginger’s wife) were permitting Windermere to violate real estate and consumer protection laws. Degginger
and his team also refused to mention that Windermere historically forced wronged consumers to sue, wiped them out
financially by aggressive litigation, and forced them into silence with the onerous “Dark Clause” secrecy
agreement. This material was fully known to Degginger and his team, and public available at our
websites, http://RenovationTrap.com
and http://Windermere-Victims.com.
Of particular note is that, in suing us, Degginger and his colleagues selected Robert Sulkin to
represent Lane Powell. Sulkin is a well-known SLAPP suit attorney, noted 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 into silence.
And it will be recalled that Degginger et al., through Sulkin, refused to produce necessary remand
information and documents, despite the Rules of Professional Conduct enunciated
at RPC
3.4(a)
and RPC
1.16(d), forcing us to abandon almost $20,000 in legal fee claims.
When Judicial Assignments Don’t Pass the Smell Test:
Judge Is Married to a Windermere Broker
How Could a 32-1 Chance Be “Random”? While the Windermere lawsuit was still
ongoing in the King County Courthouse, Lane Powell filed its suit against us (October 5, 2011). King County claims
to assign cases to its judges randomly using a computer program. (Exhibit
December 23, 2012 and Exhibit
December 24, 2012.)
But Public Disclosure Commission documents reveal, of the 32 (thirty-two) judges on the Bench in
October, 2011, only one judge had family and ongoing financial ties to Windermere. That judge was Richard
D. Eadie, whose wife, Claire, is and has been a Windermere agent/broker for at least 10 (ten) years. Mrs. Eadie
works out of the Windermere Edmonds office.
(Exhibit August 9, 2012, and exhibits A through E.)
The documents attached to that August 9 motion show that part of Judge Eadie’s family income is
derived from his wife’s employment with Windermere Real Estate. He is, himself, a beneficiary of the Windermere
Retirement Plan.
Windermere is one company, with many franchises. See Windermere’s webpage, “About
Us.” (Exhibit November 4, 2013; also The Seattle
Times, “It’s a family affair at 40-year old Windermere,” Exhibit
November 9, 2012.) The courts have also ruled Windermere is one
company. (Rodriguez v. Windermere Real Estate/Wall Street, Inc., 175 P. 3d 604 - Wash: Court of Appeals,
1st Div. 2008.)
Assigning the October 5 lawsuit -- filed against two Windermere whistleblowers -- to a judge who is
socially and financially a member of the Windermere family, and assigning that case to that judge against 32-1 odds --
gives the impression that this case was not randomly assigned.
... judges are the primary regulators of litigation conduct. While much of the litigation action occurs
outside the courtroom, judges set the norms for that out-of-court litigation conduct through the signals that they send
and the sanctions they impose for conduct that occurs during pretrial conferences, discovery motions, and other pre- and
post-trial activity. (Authorities, McMorrow, [*1425])
Indeed, when reviewing the results of “pre-trial conferences, discovery motions and other pre-
and post-trial activity,” it is hard to resist the conclusion that Lane Powell’s case was assigned to Judge
Eadie knowing full well what the results would be.
We Object to Husband of Windermere Broker Judging the Case. We did not discover the
judge’s Windermere connection until August, 2012. We immediately asked the Judge to recuse himself.
(Exhibit August 9, 2012, and exhibits. For
more information, see “We Discover Judge Is Husband of Windermere Broker: More Lying in Court,”
below.)
Sulkin and Eaton vigorously opposed our motion. They told the judge if there was an appearance of
prejudice, he would have recused himself already, and that the Windermere connection didn't matter because Windermere
was not a party to the current case. The judge accepted Lane Powell’s reasoning and denied our motion.
(Exhibit September 5, 2012.)
Why Was This Assignment So Important to Judge Eadie and Lane Powell? Why would Judge Eadie insist on
presiding over this case, given the appearance of prejudice on his part? There were surely other cases over which
he could preside. And why would retaining Judge Eadie on this case be so important to Lane Powell? If Judge
Eadie were being properly impartial in his rulings, any other judge would rule the same. Why, then, would Lane
Powell oppose to his recusal? The answer is inescapable: Another judge would NOT give Lane Powell the same
sweeping victory. It seems that the arrangement was vital to both the judge Lane Powell.
The Perfect Storm. Because Lane Powell had threatened to spend $800,000 in legal fees
in this lawsuit (Exhibit October 6, 2011), and we could not afford to
match their purse. We resisted Lane Powell's ploy to pauperize us and represented ourselves pro se.
We were two pro se homeowners up against a powerful international law firm with deep pockets, and a judge whose
family income is partially dependent on Windermere. Had we known all at that time, we could have predicted the
result.
If there is any doubt there was fraud on the court, the reader is invited to consider (1) the
repeated and verifiably false material statements of facts made by Sulkin, Eaton, et al. (2) Judge Eadie’s
repeated refusal to comment upon, sanction, or strike those patently false statements, and (3) the incorporation of
those false statements into the rulings of the court. (See Part II, Chapter 2.)
“Sue Windermere? Even If You Win, You Will Lose.” The result of this combination of
factors and the ultimate ruling in favor of Lane Powell for $770,986.32 could send a clear message to the Washington
public: “Sue Windermere? Even If You Win, You Will Lose.”
Advice to the Reader.
- The reader should not accept, uncritically, Judge Eadie’s rulings in this case. (We have appealed Judge
Eadie’s failure to recuse himself.)
- The reader is referred to “Introduction: Our Support” for some expert
evaluation of the ethical issues involved in the conduct we document.
How Lane Powell’s Lawsuit Violates Professional Conduct:
Extortion Laundered Under the Cover of Judicial Process -- and Other Things
How does Lane Powell’s lawsuit against us violate professional conduct?
- Extortion under color of law: Threat to Privileged Communications. See definition of extortion
at RCW
9A.56.110, RCW
9A.56.130(1); RCW 9A.04.110(28)(e) and
(f). On the same day Robert Sulkin filed Lane Powell’s suit -- and weeks before we responded with
defenses and counterclaims -- Sulkin issued discovery requests that demanded ALL our communications with Lane Powell on
ALL subjects. Thus Lane Powell pressured us to pay whatever it demanded to make the suit go away -- or else have
our secrets -- those confidences not germane to its claims --put into evidence. Those October 5, 2011 discovery
demands violated Washington rules, laws, and precedents. Lane Powell already had the documents it requested, of
course -- and never denied that fact. If that wasn’t extortion, “extortion” has no meaning.
- Extortion and Malice: Threat of Financial Ruin. One day after filing suit, Lane Powell’s Robert
Sulkin promised to spend “$800,000” on legal fees to recover “$300,000” from us. That is,
the suit was not filed on rational basis. If we did not submit to Lane Powell’s fee demands, Sulkin and his
colleagues at McNaul would pauperize us. If that wasn’t extortion, “extortion” has no meaning.
- Denial of Due Process. Because we could not meet the $800,000 fee threat, we had to represent
ourselves pro se. Sulkin, Eaton, et al. surely knew judges rely upon lawyers, not pro se
litigants, for legal analysis. Predictably, the judge simply signed the orders written for him by Sulkin and
Eaton, disregarding rule, law, and precedent, and the arguments of two pro se litigants. The $800,000 fee
threat effectively denied us representation and consequently, due process under
law. RPC
8.1(d) forbids lawyers to “engage in conduct that is prejudicial to the administration of justice.”
Denial of due process is certainly comprised in that Rule.
- Repeated Lies About Court Documents and Material, Verifiable Facts. Sulkin and Eaton’s
pleadings were marked by repeated lies about objectively verifiable and material facts. Civil Rule 11(1) requires
an attorney to certify that any pleading, motion, or legal memorandum the attorney submits to the court “is well
grounded in fact.” The Bar Oath, Para. 5, and Rule of Professional Conduct 3.3, “Candor Towards the
Tribunal,” also require an attorney tell the truth -- at least, not to knowingly lie. The attorneys of whom
we complain violated the Bar Oath
and RPC 3.3
repeatedly, as will be shown below. Deliberate materially false statements to the court should be treated as
violations of RCW 9A.72, the State law on
perjury. The perjury loophole must be closed.
- Judge Accepts Proven Lies. Despite thorough documentation, and over our objections, Judge Eadie
accepted those lies, forwarded them as judicial verities, and awarded Lane Powell attorney fees for same. For a
graphic presentation of these lies, see Chapter 2, a matrix entitled “The Truth, the Lie, and the Judge,”
which is an integral part of this analysis. This offends
against RPC
8.4(f), which forbids a lawyer to “knowingly assist a judge or judicial officer in conduct that is a
violation of applicable rules of judicial conduct or other law.”
- Strategic Litigation Against Public Participation (SLAPP) Suit. We argue Lane Powell’s suit
against us was a SLAPP suit.
During the Windermere lawsuit, we testified before the Legislature concerning the connection between
Windermere and corrupt government agencies that permitted the company to violate state law. We appeared on national
media and local media outlets and engaged in many forms of civil informationing, including speaking at public meetings,
carrying signage in public places, distributing leaflets, etc.
We reasonably believe Lane Powell’s suit against us, and its discovery demand that we identify
“all persons with knowledge concerning the Windermere lawsuit” was harassment of two whistleblowers.
(Exhibit October 5, 2011 (1), Interrogatory 1.) It
was a blatant attempt to map our political connections, quash our participation in the political process, and chill
our First Amendment rights.
RCW 4.24.510 states:
Notes: Intent -- 2002 c 232: “Strategic lawsuits against public participation, or SLAPP suits,
involve communications made to influence a government action or outcome which results in a civil complaint or
counterclaim filed against individuals or organizations on a substantive issue of some public interest or social
significance. SLAPP suits are designed to intimidate the exercise of First Amendment rights and rights under
Article I, section 5 of the Washington state Constitution.
Although Washington state adopted the first modern anti-SLAPP law in 1989, that law has, in practice,
failed to set forth clear rules for early dismissal review. Since that time, the United States supreme court has made it
clear that, as long as the petitioning is aimed at procuring favorable government action, result, product, or outcome,
it is protected and the case should be dismissed. Chapter 232, Laws of 2002 amends Washington law to bring it in line
with these court decisions which recognizes that the United States Constitution protects advocacy to government,
regardless of content or motive, so long as it is designed to have some effect on government decision making.”
[2002 c 232 § 1.]
RCW 4.24.525 further provides:
(2) This section applies to any claim, however characterized, that is based on an action involving public
participation and petition. As used in this section, an "action involving public participation and petition" includes:
(c) Any oral statement made, or written statement or other document submitted, that is reasonably likely to
encourage or to enlist public participation in an effort to effect consideration or review of an issue in a
legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;
It is significant that Lane Powell chose SLAPP suit lawyer Robert Sulkin to represent the
firm. Sulkin spearheaded an attempt to abrogate the free speech and assembly rights of Washingtonians by filing a
SLAPP suit against the Olympia Food Co-op. (Exhibit February 28,
2012.) See, below, “Sulkin’s Work to Squash American Constitutional Rights”.
Based on False Claim: Lane Powell’s suit was based in part on a claim that we had
breached our contract with the firm. (Exhibit October 5, 2011
(1), Summons and Complaint.) The Complaint stated:
Lane Powell has performed all of its contractual obligations
... (Exhibit October 5, 2011 (1), Para. 3.9.)
But in fact, as we have shown in Part I, Lane Powell breached its contract with us during its
representation. Lane Powell also violated the fee and retainer agreement between the parties.
Sulkin’s Complaint falsely states:
“... DeCourseys have breached and repudiated their contractual obligations and have not paid Lane
Powell the amounts due and owing.” (Exhibit October
5, 2011 (1) Pg. 3, Lines 25-26.)
¶3.7 ... However, the DeCourseys have breached and repudiated their agreement with Lane Powell by
terminating Lane Powell ... (Exhibit October 5, 2011
(1) Pg. 3 Dkt. 1.)
In its December 30, 2008 agreement with us, Lane Powell agreed to postpone collection of fees until
the Windermere award had been satisfied. The December 30, 2008 Letter of Agreement between us and Lane Powell states:
[LP p.c.] agrees to forbear for a reasonable time on collecting the balance ...
(Exhibit December 30, 2008.)
What is a “reasonable time”? Lane Powell’s December 5, 2008 letter
explains the term:
... we will forebear on demanding payment on the balance of the amount owned until payment on the judgment
or settlement with Windermere. (Exhibit December 5, 2008, para
3).
Since we did not receive payment on the Windermere lawsuit until November 3, 2011, Lane Powell's
suit against us for nonpayment on October 5, 2011 was a violation of the contract.
Degginger and his colleagues at Lane Powell claim in their Complaint that our termination of Lane
Powell’s representation was a breach of the agreement between us. Not so. The September 19, 2007
retainer agreement with Lane Powell provides:
Both you and we have the right at any time to terminate the relationship.
(Exhibit September 19, 2007 (1), Pg. 5, Termination
of Representation.)
Under Civil Rule 11, Sulkin, Eaton et al. are presumed to have knowledge of the facts and must take
reasonable care to avoid false statements and claims. By filing the complaint over their signatures, they are in
violation of that Rule.
Certainly the statements cited above were untrue. Lane Powell breached its contract with us by
suing us before we were in a position we had received award monies.
More Evidence of False Claim: No Work Planned for Remand. Neither Degginger nor McBride
intended to correct the judgment on remand, recompute the costs, or correct the interest rate. On August 2, just
before we terminated Lane Powell, McBride wrote:
Okay, Mark, although from our perspective won’t be much to do.
(Exhibit LP Email, August 2, 2011 at 3:01
pm.)
“Won't be much to do,” is an artful way of announcing that Lane Powell “won't be
doing much.” Our new counsel, Michele Earl Hubbard, spoke to Degginger on August 23, 2011:
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) Pg. 7,
Para. 16.)
By terminating LP when we did and hiring another counsel to take us through the remand, we were able
to obtain a satisfaction of judgment in excess of $60,000 more than the amount LP would have accepted. But
contrary to McBride and Degginger's plans, it took some doing.
Lane Powell had clearly not performed all of its contractual obligations. The filing of the
lawsuit was yet another breach Lane Powell’s agreement with us.
Based on Invalid Contract. Degginger and his colleagues at Lane Powell had had written
the December 8, 2008 amendment to the September 19, 2007 agreement to proscriptively preempted Lane Powell from a
malpractice claim. This was done in violation
of RPC
1.8(h)(1). Such a contract is invalid. See Part I,
“RPC
1.8(h)(1): Amended Fee Agreement: December 30, 2008.”
Attempt to Profit from Billing Fraud, Breaches of Fiduciary Duty, Contract, and RPC.
Lane Powell’s October 5, 2011 lawsuit was an attempt to profit from its misconduct during the course of its
representation between September 19, 2007 and August 3, 2011.
Based on Wrongful Proprietary Interest in the Windermere Lawsuit. As we have already
seen (Part I, Chapter 1 “Our Case Is Hijacked and Becomes Cash Cow. We Become Hostages”), without
disclosing the fact to us, Degginger acquired a proprietary interest in our case in violation
of RPC
1.8.
Lane Powell took the position that we were obliged to abandon some of the Windermere award in order
to secure the earliest possible payment of Lane Powell’s invoices. Lane Powell's suit against us has no
other foundation. In a motion to the Court on December 13, 2011, Lane Powell argued:
Indeed, after learning that Windermere had expressed an interest in paying the judgment once the Supreme
Court denied Windermere’s petition for review, Defendants terminated Lane Powell’s representation in order
to prevent Lane Powell from recovering fees and costs to which it was entitled.
(Exhibit December 13, 2011, Pg. 3 at 5-10)
Those words clearly reveal a strategy: Without telling us, Degginger/McBride had negotiated an early
payment of the Windermere judgment, with the intention of foregoing the necessary remand work to correct the
post-judgment interest and recalculate the damages.
But on August 3, 2011, we terminated Lane Powell before the Degginger/McBride's plan bore
fruit. We did so in accordance with the specific language in the retainer agreement, which states: “Both
you and we have the right at any time to terminate the attorney client relationship.”
(Exhibit September 19, 2007 (1), Pg. 5, “Termination of
Representation.”)
Despite those words in the contract, in the Complaint to the Superior Court, Lane Powell claimed we
had “breached and violated” the retainer agreement by terminating Lane Powell.
¶3.7 Lane Powell is entitled to collect its attorneys' fees and costs of handling the Windermere
lawsuit and appeals. However, the DeCourseys have breached and repudiated their agreement with Lane Powell by
terminating Lane Powell and interfering with payment of Lane Powell's fees and costs.
(Exhibit October 5, 2011 (1) (Dkt. 1) Page 3, Para. 3.7,
emphasis added)
By his argument, Degginger shows that he had discarded the role of “legal adviser” and
had become “a participant in the transaction.” One might get the impression that Degginger considered Lane
Powell was the only participant in the transaction, and the DeCourseys were inconvenient baggage.
Certainly those words show that Degginger and McBride were trying to: “... structure
the transaction ... at the expense of the client”
(RPC 1.8),
that is, to take an early payout of the award even if it required us to take a haircut on the judgment.
Sulkin Uses Prohibited Strategy to Deny Us Representation
If October 6, 2011 Threat Was Not Extortion, What Would Be? On October 6 Robert Sulkin,
counsel for Lane Powell, called an attorney not representing us in the October 5 lawsuit (Paul Fogarty) to deliver a
threat: Robert Sulkin threatened Lane Powell:
... would pay $800,000 in fees in this suit to recover “$300,000.”
(Exhibit October 6, 2011.)
With that threat, Sulkin struck out against the court system itself.
Civil Rule 1
SCOPE OF RULES
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.
With the $800,000 threat, Sulkin was also promising to use the court system exactly
as CR 11
prohibits. CR
11 states, in part, that an attorney’s pleading to the court:
... is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation; (CR 11(a)(3))
So Sulkin was using the court for a prohibited purpose -- to harass and cause “needless
increase in the cost of litigation” -- costs he knew we could not pay.
And, in our court pleadings, we charged Lane Powell with exactly that: Extortion. (Docket Numbers
21, 42, 54, 67, 90, 97, 174, 225, 249, 304, 346. See also
Exhibit November 16, 2012, transcript of November 16, 2012 Summary
Judgment hearing, Pg. 32 at 18 and Pg. 72 at 24.)
Sulkin's $800,000 threat also violated and frustrated an important Rule of Evidence:
Evidence Rule 102
PURPOSE AND CONSTRUCTION
These rules shall be construed to secure fairness in
administration, elimination of unjustifiable expense and delay,
and promotion of growth and development of the law of evidence to
the end that the truth may be ascertained and proceedings justly
determined.
Sulkin’s $800,000 threat also violated and frustrated Evidence Rule 102 -- Purpose and
Construction.
These rules shall be construed to secure fairness in administration, elimination of unjustifiable
expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be
ascertained and proceedings justly determined.
Sulkin’s Threat Not Protected by ER 408. ER 408 protects communication offered in
attempts to reach compromise, but not communications offered for another purpose. Sulkin’s threat to wipe us out
financially was not an offer to compromise, and therefore not covered by Rule 408.
Lane Powell Effectively Denied Us Representation. After receiving Sulkin’s
threat, we realized we could not pay for representation -- he and Degginger would annihilate us with legal fees.
Sulkin effectively guaranteed we would have to represent ourselves in this lawsuit. In doing so, we consider he
violated the spirit
of RPC 3.4,
“Fairness to Opposing Party and Counsel.”
“Conduct Prejudicial to the Administration of Justice (RPC 8.4(d)). Sulkin, by
effectively denying us access to justice through his $800,000 threat, engaged in conduct that was prejudicial to the
administration of justice.
Legislative Proposal: The Revised Code of Washington and the United States Code should be
amended to prohibit attorneys from using economic threats to prevent citizens from finding representation. The
litigation budget of the wealthy should be limited to some proportion of the target’s annual income. The
monied interests should not be permitted to bludgeon the less wealthy into submission by their superior access to the
court system.
Denial of Due Process. In “Introduction: Our Support,” we quoted the words
of Dennis G. Jacobs, Chief Judge, Federal Appeals Court, Second Circuit, New York, when writing about the
judge’:s bias in favor of lawyers:
I am not--I repeat, I am not--speaking about a bias based upon politics or agenda, economic class,
ethnicity, or para-ethnicity. When I refer to the secret life of judges, I am speaking of an inner turn of
mind that favors, empowers, and enables our profession and our brothers and sisters at the bar. It is secret,
because it is unobserved and therefore unrestrained--by the judges themselves or by the legal community that so closely
surrounds and nurtures us. It is an ambient bias. (Authorities, Jacobs, Pg. 2856.)
In our “Introduction: Our Support,” we also quoted Professor Benjamin H. Barton of the
University of Tennessee College of Law, who spoke eloquently about “The Lawyer-Judge Bias in the American Legal
System.”
... when given a chance, judges favor the interests of the legal profession over the public.
(“Introduction: Our Support. Authorities, Barton (1), Pg. 2, Para.4.)
In an earlier article, “Do Judges Systematically Favor the Interests of the Legal
Profession?” (October 2007, University of Tennessee Legal Studies Research Paper No. 1) Professor Barton writes:
A brief study of judges -- who they are, how they are trained, what their jobs are like, and salary effects
-- leads to the inevitable conclusion that judges will regularly favor the interests of lawyers over other
litigants. Many judges rely upon lawyers to get or keep their jobs. Most state judges face some type of
election (either contested or retention and lawyers provide most of the elected judiciary’s campaign
donations. (“Introduction: Our Support.” Authorities, Barton (2), Pg. 4, footnote
omitted.)
The proclivity of judges to protect lawyers must be especially pronounced when a huge international
law firm sues two suburban homeowners who are forced to represent themselves pro se. In that situation,
Judge Eadie did not even have a DeCoursey attorney to deal with -- Judge Eadie had to deal directly with us -- two
non-lawyers. Sulkin accurately predicted we’d be treated as non-persons in the situation Sulkin created for
us.
Attack on Privileged Communications:
How Is This Not Extortion?
See definition of “extortion” in Revised Code of Washington,
RCW
9A.56.110, RCW
9A.56.130(1); RCW 9A.04.110(28)(e) and (f))
Law Firms as Incubators of Blackmail. During the course of representation, attorneys
are likely to discover all kinds of information about their clients. The potential for corruption inherent in
that situation proves to be irresistible to some.
Let us suppose an attorney has agreed to handle a dispute between a couple and a construction
company.
Clients Sue Attorney: Can Attorney Defend Himself? Let us further suppose that
the couple later sues the attorney for giving them bad legal advice about construction law, causing them losses, and
padding his bill.
The attorney wishes to defend himself. But the couple claim that everything they told the
attorney was covered by attorney-client privilege. Would that be fair to the attorney? Of course not.
The dispute the attorney handled and whether he committed malpractice and billing fraud are the issues of the
lawsuit.
To consider this case, the court needs to know the facts and transactions of the relationship.
Both sides must be permitted to bring forward relevant material to support their claims and defenses. Washington courts
are familiar with this situation and have dealt with it in such cases as Pappas v. Holloway. The courts
have ruled that the couple in this case must of logical necessity waive the attorney-client privilege regarding the
material related to their malpractice and billing fraud claims, and the attorney’s defenses.
But let us consider another situation. In this case, during the representation, the attorney
learns:
- the husband used to be a stripper in gay bars,
- the wife is a recovering kleptomaniac.
Items (1) and (2) are told in confidence to the attorney, and the couple have a right to expect that
the information will remain confidential.
Attorney Sues Clients: Can Clients Defend Themselves? After the judgment, the attorney sues
the clients for more money, presenting padded bills and demanding exorbitant fees.
Can the clients defend themselves? Not according to Degginger, Sulkin, et al. They argue that
if clients mount a defense -- that is, if clients dispute the fee claims -- the clients loose their attorney-client
privilege:
The DeCourseys” various counterclaims all complain about their relationship with Lane Powell and one of the
chief complaints is that Lane Powell’s fees are excessive for the work performed. E.g., Dkt. 21; Dkt. 13 5 at
3-4. Delving into these counterclaims requires them to produce all evidence on their representation with Lane
Powell. The DeCourseys” defenses to Lane Powell's claims relate to the same issues.
(Exhibit June 27, 2012, Pg. 12 at 14-19. Emphasis
added.)
And of course, production in discovery waives privilege, as Degginger, Sulkin, Eaton et al. argue:
Deliberate production of privileged documents in discovery waives the privilege. ER 502; see also
Morgan v. City of Federal Way, 166 Wn.2d 747, 757, 213 P.3d 596 (2009).
(Exhibit September 28, 2012 Pg. 5 at 22, Page 6 at
1-2. Dkt. 242.)
Thus, following the Degginger/Sulkin/Eaton rule, if a lawyer has any confidential material on the
client, he can scratch up any number for his fees, and sue the client if the client does not pay. If the client
defends himself, all the secrets are dumped in open court. What a windfall for the legal profession!
The extortion is as naked as a cold revolver in the back of the neck: Pay up or all confidences will
be published in evidence. This strategy is implicit in the discovery requests Lane Powell served with the October
5 Summons and Complaint, requesting us to voluntarily produce in discovery all privileged documents. Damned if
you do, and damned if you don’t. The fat bill wins either way.
What Do Courts Say About Privilege in Attorney/Client Lawsuits?
Pappas v. Holloway. In Pappas v. Holloway, 114 Wash. 2d 198, 210 (1990).
(Exhibit March 1, 1990.) Briefly: The Holloways sold diseased
cattle and were sued by the buyers. One of the lawyers they hired to defend them was John D. Pappas; they also
hired other lawyers at other times. Later, Pappas withdrew from the case, and the Holloways went forward with
their other lawyers. The Holloways lost at trial.
Pappas eventually sued the Holloways for fees, and the Holloways countersued for malpractice.
Pappas claimed the other attorneys, not he, caused the Holloways’ losses, and attempted to obtain privileged
documents from the other Holloway lawyers to defend himself. The Holloways objected, claiming the documents Pappas
sought from their other lawyers were privileged and not discoverable.
The court found that because the Holloways charged Pappas with malpractice and Pappas defended
himself by charging Holloway’s other lawyers had done the damage, Pappas was entitled to the discovery he
requested. That is, a central issue in the Pappas v. Holloway case was -- who did the damage to the case?
The court ruled that the Holloways had waived privilege on that specific subject by making that subject an issue.
Critical Difference Between Cases. Pappas’s request for discovery was markedly
different from the Degginger/Sulkin/Eaton request for discovery: Pappas asked for specific documents that were directly
relevant to the claims and defenses of the parties. The attorneys of whom we complain simply requested ANY and ALL
communication, on ALL subjects -- and they served their requests before we had filed any defenses or counterclaims;
they served their requests with the Complaint. (See further discussion below.)
In ruling for Pappas, the Pappas court relied on two earlier cases, Hearn
v. Rhay 68 F.R.D. 574 (E.D. Wash. 1975) and Jakobleff v. Cerrato, 97 A.D.2d 834, 468 N.Y.S.2d 895
(1983). The Pappas court drew from Hearn the power of the court to order a waiver of a litigant’s
privilege, but it invoked Jakobleff for restraint of the court in exercising that power.
Pappas Court Cites Hearn v. Rhay. The Pappas court cited the
1975 Hearn v. Rhay, decision, which specified a three-pronged test for waiver of attorney-client privilege:
Waiver is not permitted unless all three prongs are satisfied. The Pappas court wrote:
In Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), the United States District Court for Eastern
Washington developed a test to determine whether the facts in a given case support an implied waiver of the
attorney-client privilege. The plaintiff in Hearn, an inmate at the Washington State Penitentiary in Walla
Walla, sued state prison officials in their official capacity for alleged civil rights violations. Hearn,
at 576-77. The defendants raised the affirmative defense of qualified immunity from suit on the grounds they
acted in good faith and on advice of their legal counsel. Hearn, at 577. When
plaintiff requested disclosure of communications between defendants and their attorneys, defendants refused to comply
on the grounds the communications were protected under the attorney-client privilege. Hearn, at 577.
Plaintiff argued the attorney-client privilege did not cover the communications, or, in the alternative, that
defendants waived the privilege by asserting their good faith affirmative defense. Hearn, at 580. In
holding defendants were required to disclose the communications, the trial court concluded that where the following
three conditions are satisfied, an implied waiver of the attorney-client privilege should be found: (1) assertion of
the privilege was the result of some affirmative act, such as filing suit, by the asserting party; (2) through this
affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3)
application of the privilege would have denied the opposing party access to information vital to his
defense. Hearn, at 581. (Exhibit March 1,
1990.)
(For copy of Hearn v. Rhay, as reported by Westlaw,
see Exhibit September 26, 1975.)
In our case, Lane Powell initiated the law suit against us, claiming breach of contract, quantum
merit, and foreclosure of lien. We defended ourselves, on the basis of Lane Powell’s performance and
conduct. Both parties were entitled to discovery. We have waived some privilege -- but only on the
issues of the lawsuit. We have not waived privilege on any other subjects.
Pappas Court Cites Jakobleff. The Pappas court also cited the 1983
Jakobleff case thus:
In Jakobleff v. Cerrato, Sweeney &
Cohn, 97 A.D.2d 834, 468 N.Y.S.2d 895 (1983),
plaintiff sued her former attorneys for damages resulting from their alleged negligence in securing a proper settlement
in her divorce. Jakobleff, at 834. Defendants impleaded plaintiff's former husband as well as the
attorney who was handling plaintiff's claim against them, alleging plaintiff's present attorney failed to mitigate
damages by pursuing possible remedial actions available against plaintiff's former husband. Jakobleff, at
835. In order to prove this allegation, defendants sought disclosure of certain communications between plaintiff
and her attorney. Jakobleff, at 835. The court held the communications were protected by the
attorney-client privilege, and that the privilege had not been waived:
By bringing an action against her former attorneys for legal malpractice, plaintiff has placed her damages
in issue, and defendants may both raise the defense of plaintiff's failure to mitigate damages and assert a third-party
claim for contribution against the present attorney for those damages for which the former attorneys may be liable to
plaintiff. However, it simply cannot be said that plaintiff has placed her privileged communications with her
present attorney in issue, or that discovery of such communications is required to enable defendants to assert a
defense or to prosecute their third-party claim. To conclude otherwise would render the privilege illusory in
all legal malpractice actions: the former attorney could, merely by virtue of asserting a third-party claim for
contribution against the present attorney, effectively invade the privilege in every case. Jakobleff, at
835.
(Exhibit March 1, 1990, Para. 206,
emphasis added.)
The Pappas court then stated:
We agree with the concerns raised in Jakobleff regarding the danger of
making illusory the attorney-client privilege in legal malpractice actions. However, we find Jakobleff
distinguishable from the present case. The distinction between the two cases rests largely on the fact the plaintiff's
present attorney in Jakobleff did not participate in the underlying litigation which gave rise to the
malpractice claim against the defendants. Nor did the defendants' third party complaint against plaintiff's present
attorney allege involvement in securing a proper settlement in the underlying divorce proceedings. Instead, plaintiff's
present attorney was impleaded on the damage issue only. Consequently, any communications between this attorney and
plaintiff, which would have taken place after the underlying divorce became final, would have no effect upon the
malpractice issue raised in plaintiff's complaint. This is significantly different from the case before us
... (Exhibit March 1, 1990, Para. 206; emphasis added.)
At no time did Judge Richard Eadie ever apply the Hearn/Pappas three-prong test to our
alleged waiver of privilege -- and at no time did Lane Powell argued it.
In our first hypothetical example, the couple must waive some privilege to pursue their suit against
their attorney, but not necessarily all. Privilege, as perceived by the higher courts, is not an all-or-nothing
waiver. Evidence Rule 502 provides that waiver is selective by subject matter, and an argument over attorney
instructions waives privilege only on that one subject -- not all subjects. The Pappas case clearly indicates
that Pappas’ discovery requests were not a request for blanket waiver, but for specific matters relevant to the
claims and defenses of the parties -- exactly as CR 26(b) provides. And the court did not rule on anything broader than
Pappas requested.
Eaton’s Knowingly False Representation of Law
The Rules of Professional Conduct state:
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;
Comment
[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process ... the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false...
[4] Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. (Emphasis added.)
We will now focus more closely on Eaton’s dishonesty towards the tribunal.
Eaton Turns Court Decisions on Privilege Upside Down. In attacking our right to claim
privilege over communications and materials not relevant to the lawsuit before the court, Lane Powell attorney Malaika
Eaton misrepresented previous court decisions on attorney client privilege -- and dishonestly cited a lawyers’
handbook to support her misrepresentation. Eaton told the court:
Indeed, it is black letter law that a claim by a client against an attorney for malpractice waives the
privilege. KARL B. TEGLAND, WASH. PRACT. SERIES, EVIDE. LAW & PRACT. SECT. 501.23 (5TH ED. 2011).
(“The client normally waives the privilege by commencing an action against the attorney. Legal malpractice
actions are a familiar example.”)
(Exhibit November 10, 2011 (2), Pg. 6 at
18-20.)
Despite Eaton’s claim about “black letter law,” let us recall what
the Pappas court actually held:
We agree with the concerns raised in Jakobleff regarding the danger of making illusory the
attorney client privilege in legal malpractice actions. (Exhibit March
1, 1990, cited above.)
Eaton misrepresented the law. The “black letter law” she claimed exists does not
exist. Two additional points need be made:
Eaton’s Dishonest Representation of Tegland to the Court. Eaton cited Tegland
selectively, giving a false picture of Tegland’s stance. Eaton omitted these Tegland words:
An attorney or client does not waive the privilege by simply asserting the existence of a valid claim or
defense in communications with opposing counsel. If a waiver resulted from such communications, the privilege
would be rendered useless and the attorneys would be unable to represent clients effectively.
(Exhibit November 10, 2011 (3),
Pgs. 173-174.)
Nothing in Tegland’s writing justifies using the threat to expose privileged material as a
lever to force clients to pay exorbitant fees. Tegland does not represent the law as Eaton asserts; in fact, he
cited Pappas v. Holloway in his handbook.
(Exhibit November 10, 2011 (3), Pg. 173.)
Eaton Omits Vital Tegland Qualifiers. Tegland makes a few broad-brush statements, but also
steps carefully among the multiple cases he cites, hedging his words with qualifiers. Tegland writes:
The client likewise waives the privilege by claiming ineffective assistance of counsel, at least to the
extent necessary for others to respond to allegations of inadequate representation ... The client may also waive the
privilege by asserting affirmative defenses that call into question the nature and quality of the attorney's
work. (Exhibit November 10, 2011 (3), Pg.
173.)
Under the Eaton/Degginger broad brush treatment, however, the quote is butchered into "black letter
law":
Indeed, “affirmative defenses that call into question the nature and quality of the attorney's
work” waive the privilege. Id.
(Exhibit November 10, 2011 (2), Pg. 6 at
25)
Tegland obviously intended lawyers to read his footnotes -- that is why he put them
there. Eaton quotes Tegland in this manner:
“If the attorney commences an action against the client, as for example to collect a fee, the
client waives the privilege by asserting a counterclaim against the attorney.”
(Exhibit November 10, 2011 (2) Pg. 6 at
20-21)
But Tegland has a footnote that reads in part:
... where it would be a manifest injustice to allow the client to take advantage of the rule of privilege
to the prejudice of his attorney, or when it would be carried to the extent of depriving the attorney of the means of
obtaining or defending his own rights.
(Exhibit November 10, 2011 (3) Pg. 173,
fn. 15)
This is a huge qualifier. Relevance is obviously the issue. Tegland in no way, shape, or
form, represents that Washington practice endorses the extortive use of attorney-client privilege material.
Eaton Cited No Case Law. Without disrespecting the work of Tegland, it must be pointed
out that his Washington Practice Series are but CliffNotes for lawyers. Tegland cannot make new law, but only
summarize case law established by court decisions. Eaton dishonestly cited Tegland, but no case law, for obvious
reasons. Case law supports our assertion of privilege over matters not at issue in the claims and defenses of the
parties.
In Court, We Charge Extortion
In our opinion, the attorneys about whom we are complaining are using the judicial process to
extort. As attorney Paul Fogarty put it, extortion is “the wrongful obtaining of property from another
induced under color of official right.” (Exhibit September 23,
2011, Para. 6.)
And, as mentioned above, in our court pleadings, we charged the named attorneys with exactly that:
Extortion. (Docket Numbers 21, 42, 54, 67, 90, 97, 174, 225, 249, 304, 346. See also
Exhibit November 16, 2012, transcript of November 16, 2012 Summary
Judgment hearing, Pg. 32 at 16-20.)
The threat may be characterized as follows: “Pay Lane Powell’s inflated invoices or we
will force your attorney-client privileged communications into open court.
How the Revised Code of Washington Defines
Extortion. RCW 9A.56.110 states:
"Extortion" means knowingly to obtain or attempt to obtain by threat property or services of the
owner, and specifically includes sexual favors.
Notice that the crime of extortion includes the attempt to obtain, even if the attempt does
not succeed.
RCW 9A.56.130 defines extortion
in the second degree:
(1) A person is guilty of extortion in the second degree if he or she commits extortion by means of a
wrongful threat as defined in RCW 9A.04.110(25) (d)
through (j).
RCW 9A.04.110 provides
definitions:
(28) "Threat" means to communicate, directly or indirectly the intent: ...
(e) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any
person to hatred, contempt, or ridicule; or
(f) To reveal any information sought to be concealed by the person threatened;
So: Degginger and his colleagues, and their legal representatives Sulkin and Eaton, attempted to
obtain our property by threatening expose of our secrets. We believe those attorneys should be charged with
extortion as defined by the Revised Code of Washington, and held by the Bar as responsible for that crime.
Legislative Proposal: State and federal statutes on extortion should be amended to
specifically include attorney extortion: Threatening exposure of client’s confidences to force payment of money,
sexual favors, or anything else.
What the Bar Oath Says About Confidentiality. Paragraph 6 of the Oath states:
I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no
compensation in connection with the business of my client unless this compensation is from or with the knowledge and
approval of the client or with the approval of the court.
(Exhibit January 1, 2014.)
Notice that the Oath requires the confidences and secrets be preserved inviolate -- and that there
is no trace of a suggestion that clients can be extorted for legal fees under threat of exposing those confidences.
Use of Trickery. The attorneys against whom we complain were of course constrained by the
laws, codes, and canons of the legal profession. Therefore, to bring this privileged material into evidence, Lane
Powell and its counsel first tried to trick us into a general waiver of our privilege with a set of discovery requests
(served on October 5, with the Complaint). Among them:
REQUEST FOR PRODUCTION NO. 1: Please produce any and all documents referring to or relating to
the Windermere lawsuit.
REQUEST FOR PRODUCTION NO. 2: Please produce any and all documents reflecting or relating to
your communications with Plaintiff.
REQUEST FOR PRODUCTION NO. 5: Please produce any and all documents referring or relating to Lane
Powell’s representation of you.
Sulkin, Eaton, et al. revealed this discovery strategy on September 28, 2012, in argument to the
court:
Deliberate production of privileged documents in discovery waives the privilege. ER 502; see also
Morgan v. City of Federal Way, 166 Wn.2d 747, 757, 213 P.3d 596 (2009).
(Exhibit September 28, 2012, Pg. 5 at 22; Pg. 6 at 1-2; Dkt.
242.)
Our Privilege Under Attack from Date of Filing. As mentioned above, Sulkin, Eaton et
al. argued that by filing defenses and counterclaims, we had waived attorney-client privilege. But in truth, the attack
on our privilege came on October 5, 2011, the day Sulkin, Eaton et al. filed suit -- and requested discovery of ALL our
communication with Lane Powell, regardless of the relevance of those communications to Lane Powell’s claims. That
October 5 demand was made long before we had filed defenses and counterclaims. What Sulkin et al. did, by using court
process, fits the definition of extortion in the state of Washington: Our attorney-client privileged information --
even communication irrelevant to Lane Powell’s claims -- would be forced into evidence if we opposed Lane
Powell’s demands.
Material Relevant and Proper to Discovery. It goes without saying that -- had the issues in
the complaint been valid -- communication about those issues would have been a proper subject of discovery. But the
material requested was not relevant to their claims. They wanted “any and all” documents relating to
the Windermere lawsuit, any and all communication with Lane Powell attorneys, etc.
Washington’s Discovery
Rules: Civil
Rule
26(b)(1). Civil
Rule 26(b)(1) provides that:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action ... (Emphasis added.)
Washington’s Discovery
Rules, Evidence
Rule 502. The newly
adopted ER
502 states also that waiver of the privilege occurs only on single subjects.
Evidence Rule
502
ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT; LIMITATIONS ON WAIVER
(a) Disclosure Made in a Washington Proceeding or to a Washington Office or Agency; Scope of a
Waiver. When the disclosure is made in a Washington proceeding or to a Washington office or agency and waives the
attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information
in any proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they should, in fairness, be considered together.
For information on the Federal Rule of
Evidence 502, from which Washington's rule is derived, see (“Introduction: Our
Support,” Authorities, Noyes.
Collectively, attorneys Degginger, Sulkin, and Eaton have had decades of experience in
litigation, must know the rules of discovery and privilege, and are OBLIGED to operate according to those rules.
Discovery Requests: A Violation of Law and Contract. The attack on our privilege was
also a violation of Lane Powell’s agreement with us. On September 19, 2007, Degginger and his team promised
to keep our confidences and not disclose them to anyone outside his firm.
(See Exhibit September 19, 2007 (1), Pg. 4,
Confidences.)
Extortion Surely Not Proper to Discovery. Degginger’s team represented us for four
years, and during that time may have learned personal information about us that is irrelevant to the contract,
fees and services dispute. Since the information was already in Lane Powell’s files, the October 5 discovery
requests for irrelevant confidential information was clearly a gambit designed to a) trick us into waiving privilege
and relieving Lane Powell of its confidentiality oath, or b) extorting us into capitulating to Lane Powell’s fee
gouging and padded invoices.
Violation of Duties to Former Clients
(RPC 1.9)
. RPC
1.9 states, in part:
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has
formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except
as these Rules would permit or require with respect to a client, or when the information has become generally known
...
In our opinion, the lawyers of whom we complain were trying to extort us -- using irrelevant
confidential information -- information outside the matters that were in dispute -- and we have so charged in open
court.
Violation of Confidentiality of Information
(RPC 1.6). RPC
1.6 states in part:
(a) A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the
disclosure is permitted by paragraph (b).
(b) A lawyer to the extent the lawyer reasonably believes necessary:
... (5) may reveal information relating to the representation of a client to establish a claim or
defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a
criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer's representation of the client;
The Rule is clear and the exception is clearly defined. The lawyer has no right to use confidential
information except “to establish a claim or defense” in a controversy, etc. Outside the claims and defenses
of the parties, privilege is preserved.
Relevance to the Bar. In a Bar investigation, an investigator might think the above
matters are issues for a court to consider, not the Bar. But the purpose of this misuse and abuse of discovery by
Degginger, Sulkin, Eaton et al. was to evade the attorney's oath of confidentiality. By requesting the material
in discovery, Degginger, Sulkin, Eaton et al. expected to trick us (unrepresented persons appearing before the husband
of a Windermere broker), to waive our privilege, thus side-stepping their own constraints under the Rules of
Professional Conduct and the Bar oath.
The “Privilege” Lies and Use of Contradictory Statements
Speaking From Both Sides of Their Mouths. Later, Sulkin & Eaton would claim we waived
privilege on all subjects on October 25, 2011 when we filed counterclaims. For example, on November 10, 2011, Sulkin
and Eaton swore to the court:
It is through their own actions that they [DeCourseys] have waived the privilege (which, Lane
Powell agrees, was theirs to waive.) Thus, Lane Powell is not ‘maneuvering to force DeCourseys to breach
their own privilege,’ ... they did that on their own.
Indeed, it is black letter law that a claim against an attorney for malpractice waives the privilege
... (Exhibit 2011 at November 10, 2011 (2), Pg. 6, Lines
13-19.)
But the reader can see the history: Lane Powell attacked attorney client privilege from the outset
on October 5 as part of its litigation strategy.
Lawyers Prohibited from Lying and Using Contradictory Statements
“Our adversary system for the resolution of disputes rests on the unshakable foundations that truth is
the object of the system’s process with is designed for the purpose of dispensing justice … Even the slightest
accommodation of deceit or lack of candor in any material respect quickly erodes the validity of the
process.’”
Elaine E. Bucklo, US District Court, Northern District of Illinois, citing United States
v. Shaffer Equipment Co., 11 F3d. 450, 457 (4th Cir. 1993.) (“Introduction: Our
Support” Authorities, Bucklo.)
What Is a “Lie”? A lie is an intentional untruth. To err is
human. Honest persons who inadvertently make false statements withdraw those false statements when the falsity is
pointed out. Consistently throughout this litigation, Lane Powell attorneys Robert Sulkin, Malaika Eaton, et al.
make direct, material, and verifiably false statements; when the problem was pointed out, Sulkin and Eaton ignored the
correction and continued to lie. That is, Lane Powell consistently lied as part of their litigation strategy.
Court Rules and RPC Prohibit Lawyers to
Lie. Civil
Rule 11(1) requires an attorney to certify that any pleading, motion, or legal memorandum the attorney submits to
the court “is well grounded in
fact.” Rule
of Professional Conduct 3.3, “Candor Towards the Tribunal,” also requires an attorney tell the truth --
at least, not to knowingly lie. When attorneys lie about verifiable facts, such as the date upon which a lawsuit
was filed, who filed it, and whether October comes before November in the same
year, CR
11, RPC
3.3 and
RCW 9A.72 should all apply.
Certainly, the attorneys against whom we complain have lied to the court about such
issues. [Note: We documented these misrepresentations and drew them to the court’s attention in
Dkts. 18, 20, 46, 54, 67, 140, 152, 156, 158 165, 173, 174, 180, 225, among others.] See “The Truth, the Lie,
and the Judge” Part II, Chapter 2. An earlier presentation of that matrix was
incorporated into a pleading we filed on April 10, 2013, Docket #392.
(Exhibit April 10, 2013).
Contradictory Statements Also Banned. In like fashion, the principle of judicial
estoppel is designed to prevent a party from creating a case based on contradictory statements. Unless arguing a
legal theory “in the alternative,” a party must tell the truth and stick with it throughout. This
principle is enforceable if those statements become the basis of a court ruling. In our case, Lane Powell has
argued contradictory statements about our privilege and persuaded the court on all of them.
“Inconsistent Material Statements” Is
Perjury: RCW 9A.72.050. A person who
makes inconsistent material statements in court is guilty of perjury.
(1) Where, in the course of one or more official proceedings, a person makes inconsistent material
statements under oath, the prosecution may proceed by setting forth the inconsistent statements in a single count
alleging in the alternative that one or the other was false and known by the defendant to be false. In such case
it shall not be necessary for the prosecution to prove which material statement was false but only that one or the
other was false and known by the defendant to be false.
(2) The highest offense of which a person may be convicted in such an instance as set forth in subsection
(1) of this section shall be determined by hypothetically assuming each statement to be false. If perjury of
different degrees would be established by the making of the two statements, the person may only be convicted of the
lesser degree. If perjury or false swearing would be established by the making of the two statements, the person
may only be convicted of false swearing. For purposes of this section, no corroboration shall be required of
either inconsistent statement. (RCW
9A.72.050)
Legislative Proposal: Close the Perjury Loophole. Attorneys should be held accountable
for lying to the judge -- even if the judge lets them
lie. RCW 9A.72 does not specifically state that
attorneys are subject to perjury laws when making false statements in their pleadings, motions, or legal
memorandum. This is an anomaly that should be corrected. Attorneys should be subject to perjury laws for
knowingly making false material averments and declarations. We suggest the law should be amended to require that
every court filing (motion, response, reply, complaint, answer, and declaration, however named) include the language
found in RCW 9A.72 and be subject to the penalties and
provisions of that chapter.
To put a stop to attorneys using contradictory statements in court, the perjury loophole should be
closed: RCW 9A.72.050 should apply to
attorneys’ statements of fact to the court.
As we suggested in “Introduction: Our Support,” the Washington Legislature should follow
New York’s example. Washington should import New
York’s Judiciary Law Section 487, which makes lawyers who lie in court subject to criminal prosecution with
potential for jail time. Federal law should also be amended with similar provisions. Please see
"Introduction: Our Support" for other legislative suggestions to remedy the problems described in this report.
List of Some of Sulkin and Eaton’s Contradictory Statements.
- Addressing our motion for Discover Protection, Eaton claims that: “Defendant’s Motion fails for
numerous reasons. First, it rests on the notion that Defendants can be permitted to make claims against Lane
Powell and still assert the privilege. That is not the law in Washington. It is firmly established
precedent that a lawsuit against an attorney waives the privilege.”
(Exhibit November 10, 2011 (2), Pg. 2 at 1-4, Dkt. 18).
- Sulkin/Eaton state: “[t]he Court has already determined that the Defendants have waived their
attorney-client privilege regarding Lane Powell’s representation of Defendants.” (Exhibit
December 5, 2011, Pg. 5 at 24-26, Pg. 6, at 1, Dkt. 36.) (Judge had issued no such statement.)
- “The DeCourseys, of course, hold the privilege (not Lane Powell) and their continued (albeit improper)
assertion of the privilege needlessly complicates Lane Powell’s use of documents in its possession in this
litigation.” (Exhibit July 9, 2012, Pg. 16, Ftn. 5.)
- “Consistent with its ethical obligations, Lane Powell has not produced documents which may be subject to
DeCourseys’ privilege claim. Lane Powell is willing to produce those documents as long as DeCourseys
agree in writing that the privilege is waived.”
(Exhibit September 28, 2012, Pg. 2 at 2-5, Dkt. 242.)
- On December 12, 2012, Robert Sulkin swore to the court that he was producing an email sent by Mark in privileged
communication with our attorneys at Lane Powell. (Dkts. 314, 315, not included herein.) Sulkin attested
to personal knowledge of the genuineness of that email -- which “personal knowledge” he could not have,
as he had not been a Lane Powell employee. (Dkts. 314, 315, not included herein.)
- On December 12, 2012, Robert Sulkin swore to the court that Carol DeCoursey was an Internet writer who had
authored certain articles under a pseudonym and that he learned the information through privileged
communication. (Dkts. 314, 315, not included herein.) Sulkin argued that because the articles were
publicly available, the identification of Carol DeCoursey as that Internet writer was not a violation of
attorney/client privilege. In fact, Carol DeCoursey has never been publicly identified as that Internet
writer. Sulkin’s claim was thus either a lie and a violation
of RPC
3.3 Candor Towards the Tribunal, or a confession of Degginger’s violation
of RPC
1.9(c)(1)and(2) Duties to Former Clients.
We Move to Have Alleged Privileged Material Stricken and/or Sealed.
(Exhibit January 11, 2013 (1) (Dkt. 345). Judge
Eadie denied the motion. (Exhibit February 6, 2013,
Dkt. 358.) Judge Eadie’s Order read:
The Court agrees with Defendants that Exhibit XX to Mr. Sulkin's declaration, Dkt. 315 should have been
authenticated by an appropriate witness for the Lane Powell law firm. However the authenticity of Exhibit XX
was not challenged, and was later properly authenticated by the Declaration of Hayley A. Montgomery dated Jan 17,
2013 and should not be excluded from consideration, there being no prejudice to Defendants relating to any lack of
authentication. (Exhibit February 6, 2013.)
Judge Eadie, in his first sentence, ruled that Sulkin was not “an appropriate witness”
for authenticating the alleged email. In the following sentence, Judge Eadie ruled that the alleged email was
“properly authenticated” by Hayley Montgomery, an associate lawyer in Sulkin's firm who was every bit as
disqualified to testify to the content of email traffic between DeCourseys and their attorneys at Lane Powell. She
has never been an employee of Lane Powell and was not a recipient of the alleged email.
The conduct of Lane Powell’s attorneys demonstrates the truth of these words:
... judges are the primary regulators of litigation conduct. While much of the litigation action
occurs outside the courtroom, judges set the norms for that out-of-court litigation conduct through the signals that
they send and the sanctions they impose for conduct that occurs during pretrial conferences, discovery motions, and
other pre- and post-trial activity. (Authorities, McMorrow,
[*1425].)
As McMorrow et al. point out, judges set the standard for litigation. When judges signal that
they are willing to accept any old thing, lawyers such as these conduct themselves accordingly. Neither honor,
nor Bar Oath, nor professional codes hold them back from outrageous conduct and abuses of the truth.
And we are forced, by logical analysis, to conclude that our case was deliberately assigned to the
husband of a Windermere broker to assure the outcome of the case.
Bar Rules Should Specifically Forbid Extortion
An Oversight in the Rules of Professional Conduct. Apart
from RPC
8.4 which forbids criminal acts generally, we find no specific Rule in the RPC that forbids lawyers from extorting
their clients. Nonetheless, we do charge Lane Powell lawyers with extortion under the RPC, believing that
existing Rules pertaining to attorney-client privilege and fair treatment provide grounds for our complaint. The
Rules should be amended to include a specific prohibition on extortion.
Overview of Due Process Charade:
Due Process or Kangaroo Court?
Definitions:
Charade: Something that is done in order to pretend something is true when it is not really
true.
Kangaroo Court: 1. a mock court in which the principles of law and justice are disregarded or
perverted; 2. a court characterized by irresponsible, unauthorized, or irregular status or procedures; 3. judgment or
punishment given outside of legal procedure.
(Merriam-Webster Dictionary)
Judge Denies Discovery Protection. Judge Eadie, backed by the arguments of Sulkin,
Eaton, et al., refused to grant us discovery protection and denied us a court-supervised discovery plan. He also
refused to clarify his orders on privilege (Dkt. 53), then led us to believe he was protecting our privilege (Dkt. 98)
Ex Post Facto Discovery Sanctions. On April 27, 2012, without a finding of fact
or a ruling of law, and without any prior ruling that we had waived privilege, Judge Eadie held us in contempt and
sanctioned us for not producing privileged documents in discovery (Dkt 106A), even though we had produced more than
12,000 pages. He then stated our alleged discovery violations gave him “no choice” but to strike all
our counter-claims and defenses (Dkt. 164).
Stymied But Not Stymied. Lane Powell (i.e., Degginger, Sulkin, Eaton) argued that the
prosecution of its claims was “completely stymied” by our refusal to produce privileged documents, but
later argued it had all the evidence needed for summary judgment, which Judge granted (Dkt. 333).
Violation of Attorney-Client Privilege. Lane Powell’s counsel, Robert Sulkin, has,
according to his own statement to the court, put into evidence information and documents Lane Powell allegedly acquired
during privileged communications with us (Dkt. 315). Lane Powell has effectively admitted to violating the codes and
laws of Washington.
“Carefully Orchestrated” Standard -- Contempt of Court. We believe that
the Lane Powell attorneys against whom we complain conducted a carefully orchestrated scheme to undermine the integrity
of the entire judicial process.
- Lane Powell had all the documents that were generated in our case against Windermere. It had all the
documents we had -- and more. If documentation could prove Lane Powell’s case, it already had what it needed. If
Lane Powell was “stymied” in prosecuting its case, the problem was not lack of documentation, but a lack of
foundation for its claims.
- During discovery, we had provided McNaul with documents relevant to Lane Powell’s claims and
our defenses, but refused to waive privilege on non-relevant documents -- documents we asserted were protected by
Washington law.
- Because we refused to surrender non-relevant and privileged documents (which Lane Powell already
possessed --see 1, above) Lane Powell insisted we had “stymied” Lane Powell’s legal case against us.
But at the same time,
Lane Powell’s attorneys at McNaul insisted that the presiding judge, Richard Eadie, had waived
our “privilege.”
But at the same time:
Lane Powell claimed it could not use the documents it possessed because we continued to assert
privilege. (See (3), above).
All of which conveniently led to:
Judge Eadie’s ruling that because we would not produce documents to Lane Powell that Lane
Powell already had (and over which he had allegedly ordered our privilege waived), we were prejudicing Lane
Powell’s case; and as a result he was forced to strike our defenses and counterclaims.
The argument about privileged documents was a charade to strike our defenses and counterclaims from
the beginning of the lawsuit.
And the “charade” hypothesis explains why both Lane Powell and Judge Eadie insisted on
the continued presence of Judge Eadie on the bench. Dennis G. Jacobs, Chief Judge, Federal Appeals Court, Second
Circuit, New York is quoted by The New York Times thus:
Judges can be counted on to rule in favor of anything that protects and empowers lawyers.
(“Introduction: Our Support. Authorities,” Liptak.)
DeCourseys Kept Lane Powell in the Dark”
Court Documents Prove the Lie
The “In The Dark” Invention. In their pleadings, Sulkin and Eaton claimed we
kept Lane Powell “in the dark” about our efforts to secure judgment
payout. (Exhibit December 13, 2011, Pg. 1 at 21-23), Pg 4, Lines
9-14.)
But as shown, Lane Powell was fully informed and approved of our work to secure payment of judgment
from Windermere’s insurers. (Exhibits September 23, 2011
and September 28, 2011.)
Degginger Declaration Proves The Lie. Just a few days after the December 13 motion was filed,
Grant Degginger swore under penalty of perjury to quite another story:
During the [August 23] conversation Mr. Gabel and I had with Ms. Earl-Hubbard, we spoke, among other
things, regarding the payment of the judgment in the underlying case. I mentioned to Ms. Earl
Hubbard that one issue that would need to be resolved was how much could be disbursed to Defendants
while fully protecting Lane Powell’s lien rights. (Emphasis added.)
(Exhibit December 20, 2011 (1), Para. 3).
See also an email discussion between Earl-Hubbard to Lane Powell’s Ryan McBride concerning
judgment payout to us by Windermere’s insurer.
(Exhibit August 18, 2011, Para. 5, 6.) So Lane Powell was
“not kept in the dark” at all. Nonetheless, Sulkin and Eaton repeatedly told the court that Lane
Powell was “kept in the dark.”
We argue the conduct described above constitutes a violation of 3.3 Candor Toward The
Tribunal. In plain English, Degginger, in cooperation with Sulkin and Eaton, were lying again.
Lane Powell’s Grab for Pre-Judgment Interest
To support its allegation that Lane Powell was “kept in the dark,” Sulkin et. al.
produced a declaration by Pamela A. Okano, attorney for Windermere’s
insurer. (Exhibit November 2, 2011.)
More Lies from Sulkin et. al. Sulkin also told the court that we had
“misrepresented the amount of Lane Powell’s attorneys’ fee lien to the court commissioner in the
Windermere lawsuit.” (Exhibit December 13, 2011, Pg. 1 at
21-23.) But Pamela Okano’s Declaration (filed with the court commissioner in the Windermere
lawsuit, Exhibit November 2, 2011) stated the exact amount of the
lien -- it was the same amount we had deposited to the registry of the court.
Husband of Windermere Broker Strips Another $57,036.30 From Windermere Whistleblowers. Under color of
these specious allegations, Lane Powell demanded a further $57,036.30 be deposited in the Registry of the Court,
claiming that Lane Powell had been deprived of interest that would be awarded Lane Powell when it won its lawsuit
against us. (Exhibit December 7, 2011.) Judge Eadie
disregarded the arguments of the two homeowners that prejudgment interest should not be awarded before the jury had
heard the case. Thus, the husband of the Windermere broker granted Lane Powell’s motion and awarded it the
money, striking another blow against the two Windermere whistleblowers.
(Exhibit December 21, 2011 (1).) (Our
websites, http://RenovationTrap.com
and http://Windermere-Victims.com were still fully available at the time.)
Amount at Issue: $57,036.30.
Sulkin Misrepresents Discovery Rules to Court and DeCourseys
We Request a Discovery Conference. We objected to the scope of Sulkin’s and
Eaton’s discovery requests. We requested a discovery conference with Sulkin.
(Exhibit October 25, 2011 (1)). He refused.
(Exhibit October 25, 2011 (2). We then explained
that we had concerns that his October 5 requests sought privileged information, and that we declined to waive our
privilege. (Exhibit October 26, 2011 (1)).
Sulkin Categorically Refuses to Confer.
... even though you have appeared pro se, you are bound to follow the Civil Rules. I do not represent
you and will not help you interpret them. Please answer my discovery requests as required by the Civil
Rules. Once I have your actual responses, verified as required by the rules, we can arrange for a meet and confer
under Rules if that is necessitated by your responses ...”
(Exhibit October 26, 2011 (2)).
But we asked him again to participate in a face to face meeting. We told him we had arranged
to have a court reporter present to transcribe what passed between us. Sulkin wrote back:
... I have been quite clear about the parameters for any conversation we have. To date you have not
met them.” (Exhibit October 28, 2011 at 4:02 PM.)
The conditions under which Sulkin would have a conference with us are described in his October 26,
2011 12:21 mail: We must first answer his requests, then he would confer if he thought a conference was
“necessitated.”
Violation
of RPC
3.4(d), RPC
4.1,
and RPC
4.3. We believe the conduct described above constitutes a violation
of RPC
3.4(d),
and RPC
4.1,
and RPC
4.3.
RPC 3.4
FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
... (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort
to comply with a legally proper discovery request by an opposing party;
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 4.3
DEALING WITH UNREPRESENTED PERSONS
In dealing on behalf of a client with a person who is not represented by counsel ... The lawyer
shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or
reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict
with the interests of the client.
The Discovery Charade and the Discovery Facts
We File Appropriate Pleadings. Lane Powell’s attack on our attorney-client privilege
continued, and we filed the following pleadings:
- 11-03-2011 Motion for Discovery Protection; under CR 26(c)
- 11-09-2011 Motion for Discovery Plan Under CR 26(f)
- 11-21-2011 Amended Motion for Discovery Plan under CR 26(f)
- 11-28-2011 Motion for Reconsideration & Clarification of Order Denying Discovery Protection under CR 26(c)
- 12-06-2011 Motion Concerning Actual or Fabricated Ex Parte Communications Between The Court and Lane Powell.
Our productions of discovery materials responsive to Lane Powell requests were summarized for the
Court on March 13, 2012. (Exhibit March 14, 2012.) That
March 14 filing contained Exhibits A through M, approximately 115 pages (not included here). We told the court of
our inability to produce the volume of material in the time allowed
(Exhibit November 3, 2011 (3), Pgs. 4,5,12,13). On
July 16, 2012, we reminded the court of our voluminous production -- more than 12,000 pages of documents responsive to
Lane Powell’s discovery requests. (Exhibit July 16, 2012,
Pgs. 8, 9.)
Court Affirms Discovery Rules. On 12 December, 2011, the court observed and ordered the
following:
... neither party seeks an adjustment to the case schedule, and therefor the case schedule and civil rules
will govern discovery.” (Exhibit December 12, 2011.
Emphasis added.)
On March 2, 2012, the court ordered in part:
And therefore this Court ORDERS: That DeCourseys must respond to discovery requests in full with evidence
and materials in accordance with this Court’s order of 2/3/2012 in accordance with CR 26(b)
and ER
502.” (Exhibit March 2, 2012. Emphasis
added. Signed on February 29, 2012.)
We Waive Privilege Only on Matters Germane To Dispute. On March 6, 2012 we emailed one of
Lane Powell’s attorneys. The subject line of the email read: “Order from the court, March 2, 2012.”
We wrote, in part:
This case is about a contract for legal serviced between Lane Powell and DeCourseys, and the
parties’ performance thereunder. It also concerns Lane Powell’s duty as an attorney to its client.
We reserve privilege on all other subjects and issues under CR 26(b)
and ER
502. (Exhibit March 6, 2012. This email cited by
Lane Powell in its March 8, 2012 Motion, Dkt. 101, Ex. D)
Sulkin & Eaton Truncate Court Order and Edit Out Reference to Privilege Rules. On
March 8, 2012 in a motion for contempt for refusing to produce privileged materials, Sulkin & Eaton misrepresented
and truncated the words of the March 2 order, omitting the phrase that acknowledged and protected our privilege:
“in accordance
with CR
26(b) and ER
502.” Lane Powell misrepresented the Court’s words thus:
In that order, the Court required the DeCourseys to ‘respond to discovery requests in full with
evidence and materials in accordance with this Court’s order of February 3, 2011.’
(Exhibit March 8, 2012, Pg. 4, lines 12-14.)
We will examine this event more fully, below.
False Statements About Being “Prejudiced” and “Stymied”
“Lying to the judge ... violates a lawyer’s duty to candor, which takes precedence over the duty
to be a vigorous advocate.” Cleveland Hair Clinic, Inc. v. Puig, 200 F.3rd 1063, 1067 (7th
Cir. 2000.) (Cited by Elaine E. Bucklo, U.S. District Court, Northern District of Illinois Judge: “From the
Bench. When Lawyers Lie,” Litigation, Winter 2007, Vol. 33 No. 2, Pg. 4. See
“Introduction: Our Support, Authorities,” Bucklo.)
Lane Powell claimed we had waived privilege by “suing” Lane Powell and that Lane Powell
was “prejudiced” and “stymied” in preparation of its case because we would not give it the
documents it wanted. (Exhibit March 8, 2012, Pg. 9. Lines
13-15 and 19-26.) But on July 2012, Sulkin & Eaton reversed themselves and told the Court of Appeals:
The DeCourseys, of course, hold the privilege (not Lane Powell) and their continued (albeit improper)
assertion of the privilege needlessly complicates Lane Powell’s use of documents in its possession in this
litigation. (Exhibit July 9, 2012, Pg. 16, Ftn. 5.)
Thus did Sulkin, Eaton, et al. admit to the Court that they already possessed the documents
requested in Discovery -- that Lane Powell was neither “prejudiced” nor “stymied” by its lack
of documents or information.
What Stopped Sulkin and Eaton From Using Privileged Documents? If Lane Powell was so
certain we had waived privilege, why did it not simply proceed with the documents it already had on hand?
Apparently, Sulkin, Eaton et al. knew the non-existent order that supposedly waived our privilege -- without a finding
of fact or ruling of law -- would not be upheld on appeal.
Degginger, Sulkin, Eaton et al. Did Not Believe Our Privilege Had Been Waived. Even
Degginger, Sulkin, Eaton et al. did not believe the Court’s April 27, 2012 waiver of our privilege was
valid. On July 9, 2012, Sulkin, Eaton et al. argued to the Court of Appeals that our continued assertion of
privilege hampered Lane Powell’s use of the documents it had on hand.
(Exhibit July 9, 2012, Pg. 16, Ftn. 5.)
The DeCourseys, of course, hold the privilege (not Lane Powell) and their continued (albeit improper)
assertion of the privilege needlessly complicates Lane Powell’s use of documents in its possession in this
litigation. (Exhibit July 9, 2012, Page 16, Footnote
5.)
That is, On July 9, 2012, Sulkin, Eaton et al. effectively admitted they knew our attorney client
privilege had not been waived.
Sulkin & Eaton NEVER Sought Permission of Court to Use Privileged Documents. Given
that Judge Eadie had allegedly waived our attorney-client privilege, Sulkin and Eaton never asked the court for
permission to use the documents in their possession. They simply whined that we were hampering their ability to
use the documents by asserting the privilege.
Sulkin & Eaton’s Fraud on the Washington Court
As pointed out above, the Court accepted Lane Powell’s truncation of the March 2 order: On
April 27, 2012, granting a Lane Powell motion, the Court held us in contempt for not having produced privileged
material, even though the Court had never found we had waived our privilege and had never ordered us to produce
privileged material. (Exhibit April 27, 2012, Dkt. 106A.)
That is, the Court punished us ex post facto. We charge that Sulkin and Eaton
deliberately led the Court into dispositive error, through an intentional design aimed at undermining the integrity of
the adjudicative process and thus an act of fraud on the court. (See Bulloch v. United States), and
Hazel-Atlas Glass Co. v. Hartford-Empire Co.. Both cases are cited in “Introduction: Our
Support.”) We will leave it up to the reader to decide whether the judge (who is married to the Windermere
broker) was an innocent victim of unscrupulous lawyers or knowingly complicit in this fraud on the court.
April 27, 2012: Court’s About-Face on Privilege. On April 27, the Court filed the Order
On Motions to Compel And For Order Of Contempt demanding, among other things, that we produce privileged materials,
despite its earlier orders safeguarding our attorney client-privileges. The April 27 order demanded we produce:
... on the basis that attorney-client privilege between Plaintiff and Defendants has been waived with
respect to any representation by Plaintiff of Defendants in or related to the Windermere lawsuit.
(Exhibit April 27, 2012, Pg. 2, lines 7-10.)
Again, at no time previous to April 27, 2012 had the court found we’d waived our
attorney-client privilege. And no new facts had been presented regarding such alleged waiver since the
court’s last ruling upholding the privilege (March 2, 2012). The order contained no finding of fact or
ruling of law. It was an ex post facto punishment for violating an order that was never issued.
“Defendants refusal to comply with this Court’s Orders referenced above has been without reasonable cause
or justification,” wrote the judge. But despite those words, no orders regarding privilege or discovery
are “referenced above” in the April 27 order. And as told above, there were no previous orders
waiving privilege in the history of the case, either.
Note: As we have pointed out, Lane Powell’s October 5, 2011 lawsuit against us was
assigned to Judge Richard D. Eadie whose wife has been a Windermere broker and agent for many years. Yet Judge Eadie
did not recuse himself and did not disclose his conflict of interest. On August 9, 2012, a few days after the Public
Disclosure Commission delivered the incriminating documentation to us, we asked Judge Eadie to recuse himself. He has
refused.
The Meaning of Words. From the time of the Sumerians, through to the days of the Magna Carta,
and up to present day USA, society has expressed its rules and laws variously on stone tablets, parchment, or paper but
always in words. And words mean what the mean. Up means up, not down. Black means black, not white.
Society and its laws could function in no other way. And it is is the job of the courts to
administer and enforce society’s rules and laws.
Sometimes the Words in a Court Order Have No Meaning? On June 25, 2012, we filed a motion for
CR 11 sanctions against Degginger, Sulkin, Eaton, et al. charging that those attorneys had misrepresented a material
fact and led the court into error. (Exhibit June 25, 2012.)
Sulkin, Eaton et al. responded:
The DeCourseys' argument in this Motion is frivolous and made willfully without reasonable cause or
justification ... (Exhibit June 29, 2012 (1). Dkt. 151,
Pg. 3 at 11-19.)
Then Sulkin/Eaton reiterated the argument in its March 8, 2012 motion (Dkt. 101) that some words in
court orders have no meaning and should be ignored:
Lane Powell further stated in this regard that the DeCourseys “latch on to the [court’s] passing
citation to general evidence and discovery rules to twist the court’s order to mean the opposite of what it
actually says.” (Exhibit June 29, 2012 (1), Dkt. 151,
Pg. 2 at 22-25)
On July 3, 2012, Judge Eadie adopted Sulkin’s argument that some of the words in his order had
no meaning, and we were in contempt of court for failing to ignore those words (to wit, the Judge Eadie's order that we
should respond to discovery requests “in accordance with CR 26(b)
and ER
502.”) Judge Eadie wrote:
This matter is before the Court on Defendants' Motion to impose sanctions against Plaintiff and its
attorneys. Defendants charge Plaintiff with misrepresenting the content of this Court's Order dated February 29,
2012 (filed March 2, 2012, hereafter referred to as Dkt. 98), by quoting that Order in a subsequent pleading, but
omitting the words “... in accordance with CR26(b)
and ER
502.” However the inclusion or omission of those specific words does not alter the duties of
Defendants under this Court's Order of February 3, 2012. Therefore the Defendants must comply with the February 3,
2012 Order, and neither that Order, nor the effect of that Order is altered by the inclusion of the reference to CR26
and ER 502
in the Order filed under Dkt. 98. (Exhibit July 3, 2012, emphasis
added. Dkt. 161.)
The judge justified his order of April 27 by ruling that the words he wrote on March 2 (protecting
our privilege and referring to court rules) were not meaningful. “However the inclusion or
omission of those specific words does not alter the duties of Defendants under this Court's Order of February 3,
2012.”
We Go to the Court of Appeals:
Sulkin, Eaton et al. Want Us Sanctioned for Doing So
On May 1, we filed a Notice for discretionary review and a motion for stay with Division 1, (COA
Case No. 68671-2-I.) We asked the Court of Appeals to consider the privilege issue and the order to deposit another
$57,036.66 in the registry of the court. Because the motion for stay was imperfect, it was rejected. We
remedied the imperfections, posted a supercedeas bond for $57,036.66, and resubmitted it.
Sulkin & Eaton NEVER Address Their False Statements to the Court. On June 27, Lane Powell
filed a third motion to have us held in contempt for, among other things, resubmitting our perfected motion to the
Court of Appeals and for posting a supercedeas bond.
“... they have continued their pattern of delay and defiance by bringing yet another motion of
stay in the Court of Appeals.” (Exhibit June 27, 2012, Pg. Lines
5-8; Dkt 148.)
On July 6, 2012, the court ordered in accordance with Lane Powell’s bizarre argument and found
us once again in contempt. (Exhibit July 6, 2012, Dkt. 164.)
Sulkin & Eaton Reverse Themselves 180 Degrees in Court of Appeals
RPC 3.3
Candor Toward A 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 ...
... (c) If the lawyer has offered material evidence and comes to know of its falsity, the lawyer shall
promptly disclose this fact to the tribunal unless such disclosure is prohibited by Rule 1.6.
On the One Hand, DeCourseys Have Waived Privilege And Are Withholding Essential
Documents. In its filings to the Superior Court, Lane Powell has claimed that we waived privilege on ALL
matters when we counterclaimed against Lane Powell and that “black letter law” supports Lane Powell’s
position. (Exhibit November 10, 2011 (2), Pg. 6 at
18-19.) Lane Powell also told the Court that our continued assertion of privilege had prevented
(“stymied”) Lane Powell from preparing its case for trial.
(Exhibit June 27, 2012, Pg. 5, at 8-9; Pg. 11 at 19-25, Pg. 12 at 1.)
On the Other Hand, DeCourseys Still Hold Privilege and Lane Powell Has the Documents. In a
filing to the Court of Appeals on July 9, 2012, Lane Powell admitted (1) Lane Powell already possesses the
documents it wants to use in this litigation, (2) Lane Powell knows DeCourseys still hold privilege over
those documents, (3) the DeCourseys have the power to assert the privilege, and (4) privilege is a nuisance to
Lane Powell. Here is a quotation from that filing:
In this regard, the DeCourseys' protestations that Lane Powell has the information at issue ring
hollow. Mot. at 17. The DeCourseys, of course, hold the privilege (not Lane Powell) and their continued
(albeit improper) assertion of the privilege needlessly complicates Lane Powell's use
of documents in its possession in this litigation. See App. 33 (claiming Lane Powell
is not even entitled to provide "privileged" information to its own
counsel). (Exhibit July 9, 2012, Page 16, Ftn. 5.)
On the Third Hand, Sulkin, Eaton et al. Knew They Were Bound by Attorney Client Privilege: On
September 28, 2012, responding DeCoursey discovery request, Sulkin, Eaton, & Montgomery asserted:
... They [DeCourseys] fail to mention that they have refused to respond to Lane Powell’s numerous
emails asking whether, by demanding production of these electronic documents, the DeCourseys are now waiving their
privilege claim ... Consistent with its ethical obligations, Lane Powell has not produced documents which may
be subject to the DeCourseys privilege claim. Lane Powell is willing to produce those documents as long as
the DeCourseys agree in writing that the privilege is waived.
(Exhibit September 28, 2012, Page 1, Lines 20-23, page 2, Lines
2-4; emphasis added.)
So, then, why the elaborate charade -- why did Lane Powell’s attorneys labor through months of
litigation controversy over the documents, given their September 28, 2012 admission that we still held the privilege
and that they had always possessed the documents in question?
If their attorneys simply had used the disputed materials, they would doubtlessly face the
disapprobation of the entire American Bar by violating our attorney client privilege. Hence they tried to trick
us into waiving privilege.
Contradictions Show False Statements Are Intentional
On July 6, 2012, the Superior Court signed Lane Powell’s order striking all our counterclaims
and defenses. The order, stated in part:
Despite the fact that the Discovery Orders consistently rejected the DeCourseys privilege arguments, they
continue to obstruct discovery ... Due to the DeCourseys’ recalcitrance, Lane Powell’s efforts to litigate
this case on its merit have been stymied. (Exhibit July 6, 2012,
Pg. 4, Lines 3-4, Lines 11-12.)
Thus the purpose of the Discovery charade had been completed.
We Ask for Reconsideration. On July 16, we asked the court to reconsider its Order of
July 6, pointing out that it had been mislead by Lane Powell’s knowing false statements to the Superior Court,
now shown to be untrue by Lane Powell’s statements to the Court of Appeals.
We pointed out that Lane Powell had on multiple occasions misrepresented fact and law, and pointed
out the dismissal of our counterclaims and defenses would shield Lane Powell’s malpractice from public view.
We Discover Judge Is Husband of Windermere Broker:
More Lying in Court
Our Motion for Recusal. On August 9, 2012, a few days after learning about Judge
Richard Eadie’s conflict of interest -- that his wife Claire is, and has been, a Windermere Real Estate
agent/broker, and that Judge Eadie is himself a beneficiary of the Windermere Retirement Plan -- we filed a motion
asking him to vacate his orders and recuse himself. (Exhibit August
9, 2012; exhibits attached. See also previous discussion, above, “Uncanny Judicial Assignment: Judge is
Married to Windermere Broker.”)
In that motion, we stated:
It is axiomatic that, to the extent DeCourseys are stripped of their Windermere awards, DeCourseys will be
less able to draw public attention to the wrongdoing of Windermere and its government allies, and to lobby for equal
enforcement of laws.
Judge Eadie has denied every DeCoursey motion, even sua sponte opposing one of DeCourseys’ motions when it
was otherwise unopposed (Dkt. 35 11/30/2011). Judge Eadie has twice permitted Lane Powell to file untimely
oppositions to DeCourseys’ motions, ruling in both cases for Lane Powell. (Dkt. 23, 11/18/2011 and Dkt. 44,
12/12/2011.) He has refused to levy sanctions against Lane Powell for refusing to confer during discovery
(Dkt. 23, 11/18/2011) and for serving improper discovery requests (Dkt. 23, 11/18/2011). On December 12, 2011,
Judge Eadie refused to hold a court-supervised 26(f) discovery conference (Dkt. 44, 12/12/2011). Judge Eadie found
DeCourseys in contempt for failing to comply with orders he had not issued, and for failing to comply with an order that
was still under reconsideration. (Dkt. 106A, 4/27/2012.) When he finally ruled ex post facto on the
reconsideration, he left in place the order of contempt from a week earlier. (Dkt. 120, 5/2/2012.)
Conversely, Judge Eadie has granted every Lane Powell motion. Judge Eadie has permitted Lane
Powell to lie to the Court about fact, law, and previous court orders, and found excuses for the lies. (Dkt. 161
7/3/2012; Dkt. 167 6/29/2012; Dkt. 164 7/6/2012; Dkt. 185 7/27/2012; Dkt. 187 8/2/2012; Order signed 8/6/2012, no
Dkt. number assigned as of this writing.) He has granted a Lane Powell motion for fees and costs that does not
meet the Washington standard for such motions. (Dkt. 155 6/29/2012.)
Judge Eadie has even attacked the appeals system, holding DeCourseys in contempt for posting a
supersedeas bond and filing for discretionary review with the Court of Appeals. (Dkt. 167 7/11/2012.)
On August 15, Attys. Sulkin and Eaton filed a Response, in which they misrepresented the fundamental
facts of the lawsuit. (Exhibit August 15, 2012.)
Lane Powell filed and served an attorney’s lien in the Windermere lawsuit after judgment had been
entered against Windermere. (Exhibit August 15, 2012, Pg. 4 at
12-14.)
Not so. Lane Powell’s lien was filed on August 3, 2011
(Exhibit August 3, 2011 (3)), and the Windermere lawsuit was
still in spin until November 10, 2011. See also “Proof of Lies in Court Documents Given to Court,”
below. Sulkin and Eaton also state:
Lane Powell and DeCourseys were equally adverse to Windermere in the underlying lawsuit.
(Exhibit August 15, 2012, Pg. 4 at 5-6)
Not so. Lane Powell was not a party to our lawsuit against Windermere, and could not be
“equally adverse.”
Moreover, Lane Powell/Grant Degginger was covertly adverse to us in the Windermere
lawsuit. Degginger’s largest contributor to his re-election campaign in 2007 was from the Washington Board
of Realtors (monies largely collected from Windermere agents) -- just months before agreeing to take our case (see,
above, “Was Representation Undertaken in Good Faith? Or Was There Fraud In The Inducement?”) and then
did the following:
- Pressured us to allow Windermere experts into our house after discovery was closed (see, above, “How
Degginger Pressured us to Abandon Our Pre-Trial Advantage”)
- Advised us to capitulate to Windermere for $250,000 on the eve of a jury decision for $522,200 -- and subsequent
attorney fees/costs award of $508,427 (see, above, “Degginger Advises Surrender on Eve of Victory”)
- Without informing us or seeking permission, agreed to accept 3.49 per cent post judgment interest from Windermere
instead of the 12 percent the judge ordered, giving us a $268,000 loss (see, above, “The Great Interest
Rip-Off”)
- Failed to ask for a modification after the Court of Appeals error, refused to cross-petition to the Supreme Court,
Proof of Lies in Court Documents Given To Court. On August 16, we filed a Reply and
provided proof of the lies -- attaching the fundamental court documents as proof.
(Exhibit August 16, 2012, Pg. 2, Pg. 3 Lines 1-14, especially
Exhibits A (Amended Final Judgment of November 3, 2011) and B (First Partial Satisfaction of Judgment, November 4,
2011.) The reader may wish to review a truthful representation of the documents filed at the conclusion of the
Windermere lawsuit:
- November 3, 2011, the Order Granting Leave to Deposit Portion of Judgment Payment into Court Registry was
filed (Exhibit November 3, 2011 (1).)
- November 3, 2011, the Amended Final Judgment was filed
(Exhibit November 3, 2011 (2).)
- November 3, 2011, the Second Partial Satisfaction of Judgment was filed
(Exhibit November 3, 2011 (4).)
- November 4, 2011, the First Partial Satisfaction of Judgment was filed
(Exhibit November 4, 2011.)
No One Has License to Lie in Court. Our legal system is founded on the principle of
“Equal Justice Under Law.” Citizens do not have the right to lie in court. Lawyers do not have the
right to lie in court. Judges do not have the right to forward proven lies, just because the lies have been told
by lawyers.
Judge Refuses to Recuse Himself. On September 5, 2012, Judge Eadie refused to recuse
himself. (Exhibit September 5, 2012.) (The matter of
recusal is currently before Division 1 of the Court of Appeals, Case No. 69837-1-1.)
Legislative Proposal: We propose that the state of Washington require judges and magistrates
to make full financial disclosure statements and conflicts lists, that the statements be updated regularly, and that
the statements be posted on court’s “Judge’s Information” webpage. The United States
District Court for the Northern District of Iowa has such a program.
(Exhibit February 5, 2014, Pgs. 2, 3, gives a sample:
Conflicts list for Chief Judge Linda R. Reade.) In such a fashion, every litigant in the State of Washington will
have immediate information on an appearance of prejudice on the part of the judge. Please see
“Introduction: Our Support” for other legislative suggestions on how to
remedy some of the problems described in this report.
Sulkin Withholds Discovery Production and Spoliates Evidence
Lane Powell's Responses to our Discovery
Requests: RPC
3.4. In December 2011, we served discovery requests on Lane Powell, asking for supporting documents for
the costs it had billed to us, and other documents related to our claims and defenses. Sulkin et al. produced
some of the documents in January 2012, but withheld the rest. We complained to the court and reminded them of our
requests on multiple occasions in the succeeding months, but Lane Powell refused to produce – in violation of the RPC
rules concerning fairness to opposing party
(RPC 3.4)
RPC 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. A lawyer shall not counsel or assist another
person to do any such act;
... (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based
on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent
effort to comply with a legally proper discovery request by an opposing party;
Contradictory Argument Concerning Waiver and “Ethical Obligations”: In September,
2012, we filed a motion to compel production of 11,000 responsive documents that Lane Powell admitted it held.
(Exhibit September 21, 2012, Dkt. 237.) In response, Sulkin
et al. argued that they would not produce the requested materials unless we signed a written waiver of privilege.
Sulkin et al. responded:
Lane Powell has not produced the electronic documents because the DeCourseys refuse to take a position on
waiver. (Exhibit September 28, 2012, Pg. 5 at 21-22;
Dkt. 242)
This bizarre argument contradicted their previous arguments that we had already waived
privilege, and that the Court had ordered our privilege waived. It also violated the Civil Rules in that
Lane Powell does not have a bargaining position over producing discovery material.
On October 2, 2012, the Court ordered that Lane Powell need produce only a list of the documents,
and we must designate the documents over which we were waiving privilege; Lane Powell would then be ordered to produce
only those documents. (Exhibit October 2, 2012; Dkt. 248.)
Apparently, the Court was so confused by lane Powell’s oscillating arguments it did not believe its own order
that our privilege had been waived.
Picking and choosing among 11,000 documents on the basis of title and date is a very chancy
operation, and to accomplish it all within fourteen days is humanly impossible. In a request for reconsideration,
we took the position that demanding a waiver to produce back to us in discovery documents over which we held the
privilege was nonsense. (Exhibit October 12, 2012, Dkt. 249.)
To quote Sulkin et al.:
Indeed, it is the DeCourseys' -- not Lane Powell's—privilege to waive.
(Exhibit September 28, 2012, Pg. 1 at 23-24).
and
Consistent with its ethical obligations, Lane Powell has not produced documents which may be subject to the
DeCourseys' privilege claim.” (Exhibit September 28, 2012,
Pg. 2 line 2)
How could Lane Powell run afoul of its “ethical obligations” by producing documents to
DeCourseys over which DeCourseys hold the privilege? Or even odder, over which DeCourseys have waived the privilege by
“suing Lane Powell,” or odder yet, over which “the court has waived DeCourseys privilege numerous
times.” Of course, in the crooked world of Lane Powell's attorneys, it does not have to make sense, be legal, or
be consistent. Sulkin et al. had no intention to be fair to the opposing party. And of course they resisted producing
anything in compliance with the Civil Rules on discovery.
On October 16, 2012, Lane Powell produced a log of its withheld documents, but only
“non-privileged” documents:
In compliance with the Court's October 2, 2012 Order Denying Defendant's Motion to Compel 11,000 Responsive
Electronic Records, attached is a log of the responsive, nonprivileged documents Lane Powell intends to produce to
you. (Exhibit October 16, 2012.)
This was, of course, not in compliance with the court order of October 3, 2012. How could we make a
meaningful determination of the documents over which we claimed privilege from a log of “nonprivileged”
documents?
When we did not “claim privilege,” Lane Powell produced a portable computer hard disc of
the documents listed in the log. To our disappointment, we discovered Lane Powell had spoliated all of the documents
listed in the log by converting the file formats. In the log, the documents are listed as:
“Microsoft Word documents,” “.pdf documents,” “interoffice Lane Powell
emails,” and “emails between Lane Powell and others.”
(Exhibit October 16, 2012.)
But Sulkin produced only 60,000 picture files in “jpg” format. Where a document
consisted of multiple pages, these were apparently separated into multiple files in the heap of unsorted data. The jpg
format does not permit sorting, searching, indexing, or (barring expensive software) any other access except reading
with the human eye -- and there were 60,000 files.
In the meantime, on October 19, 2012, Lane Powell filed a motion for Partial Summary Judgment.
(Exhibit October 19, 2012 (1). We filed a CR 56(f)
motion to cancel or continue the hearing based on LP's spoliation of evidence and withholding discovery. Of course Lane
Powell’s attorneys objected to the motion, but Lane Powell also filed its response too late to satisfy the court
rules. Nonetheless, the court accepted Lane Powell’s objection, and denied our motion to cancel or
continue. (Exhibit November 16, 2012, Pg. 4 at 25, Pg. 5 et seq.)
Sulkin, Eaton, Degginger’s Contradictory Position on Privilege. What we have here
is a paradox. When these attorneys argued about the discovery they wanted us to produce, they alleged we had
“waived the privilege” as a matter of “black-letter law” by our own actions, and by the
judge’s order.
But when these attorneys were arguing about the discovery materials they were withholding, we still
“hold the privilege,” we were able to “assert the privilege,” and producing the materials to us
would not be consistent with Lane Powell’s “ethical obligations.”
Unfortunately, the judge bought the whole box of paradoxes. But are these attorneys excused from
their obligations under the Bar Oath, the Rules of Professional Conduct, and CR 11 simply because the court bought the
nonsense? The perjury loophole should also be closed: These attorneys should also be subject to the state laws on
perjury.
Reviewing the Contradictions: List of Seven. On September 21, 2012, we filed our Motion to
Compel Production of 11,000 Responsive Electronic Records.
(Exhibit September 21, 2012.)
Lane Powell attorneys Sulkin, Eaton (who was on maternity leave), and Montgomery (replacing Eaton) responded on
September 28. In part, they stated:
... They [DeCourseys] fail to mention that they have refused to respond to Lane Powell’s numerous
emails asking whether, by demanding production of these electronic documents, the DeCourseys are now waiving their
privilege claim. Indeed, it is the DeCourseys’ -- not Lane Powell’s -- privilege to waive
... (Exhibit September 28, 2012, Pg. 1 at, 20-24; emphasis
added.)
Note that the Sulkin et al. claim in the above that DeCourseys hold the privilege, and that
“DeCourseys are now waiving their privilege claim.”
And then Sulkin et al. continue, stating that Lane Powell refuses to violate DeCourseys’
privilege claim:
Consistent with its ethical obligations, Lane Powell has not produced documents which may be subject to the
DeCourseys’ privilege claim. Lane Powell is willing to produce those documents as long as the DeCourseys
agree in writing that the privilege is
waived. (Exhibit September 28, 2012, Pg. 2, at 2-5;
underlining added; bold-face in original.)
So in the Superior Court on September 28, 2012, Lane Powell contradicted its claim to the Superior
Court (November 10, 2011) that we had already waived privilege.
It is through their own actions that they [DeCourseys] have waived the privilege (which, Lane Powell
agrees, was theirs to waive.) Thus, Lane Powell is not ‘maneuvering to force DeCourseys to breach their own
privilege,’ ... they did that on their own.
Indeed, it is black letter law that a claim against an attorney for malpractice waives the privilege
... (Exhibit November 10, 2011 (2), Pg. 6, at
13-19.)
We replied to the September 28 Response on September 30, 2012 (the clerk recorded it filed on
October 1, 2012), summarizing to the court Lane Powell’s arguments supporting its refusal to produce the
discovery material thus:
- DeCourseys hold the privilege.
- DeCourseys don’t hold the privilege.
- DeCourseys must waive the privilege in order to receive discovery material.
- DeCourseys “likely” already have the material.
- DeCourseys refused to bargain for the material.
- Surrendering documents to DeCourseys that either originated with DeCourseys or were created for hire for
DeCourseys might involve Lane Powell in ethical problems because DeCourseys still hold the privilege (see # 1
above).
- DeCourseys have failed to inspect other documents -- which, by the way -- are available only under some unlawful
and bogus bargain because DeCourseys hold the privilege, don’t hold the privilege (etc #1 through #3 and
#6). (Exhibit October 1, 2012, Pages 9, 10.)
Lane Powell’s Motion for Partial Summary Judgment
Effectively Admits Discovery Charade
Sulkin & Eaton Give Proof of Their Knowing False Statements. Sulkin and Eaton argued on
numerous occasions that, by refusing to produce our privileged documents in discovery, we had “stymied” and
“prejudiced” Lane Powell’s case (see above). But on October 19, 2012, Lane Powell filed its
motion for Summary Judgment in which Sulkin and Eaton admitted the obvious: Lane Powell already possessed all the
documents it needed. (Exhibit October 19, 2012
(1).) That is, it did not require privileged material to establish its claims and defenses
(ref. RPC
1.6(b)(5)) and it was not prejudiced by our assertion of privilege. Sulkin and Eaton’s statements
include the following:
LP ... moves the Court to end this long and expensive litigation.
(Exhibit October 19, 2012 (1), Pg. 1 at 2-3 ...
[DeCourseys] will not produce key documents
... (Exhibit October 19, 2012 (1), (Dkt. 253) Pg. 1 at
17-19; Pg. 10 at 25-26, Pg. 11 at 1-3.
Fortunately, Lane Powell's case is straightforward and clearly subject to summary resolution based on the
discovery already exchanged ... (Exhibit October 19,
2012 (1), (Dkt. 253) Pg 1 at 20-22)
Summary judgment is proper because no issues of fact remain for trial and Lane Powell is entitled to
judgment as a matter of law ... (Exhibit October 19, 2012
(1), (Dkt. 253) Pg 10 at 9-10)
Either the privileged documents we withheld were not "key" to Lane Powell’s claims, or the
claims was not subject to summary resolution, as we told the
court. (Exhibit November 5, 2012, Pg. 4 at 14-24; Docket 275.)
Significantly, Lane Powell’s attorneys attached 39 (thirty-nine) exhibits to its October 19
motion (exhibits not included here). None were from our 12,000 pages of discovery production and none were
privileged. The documents Lane Powell used to support its Summary Judgment Motion were from its own files and had been
fully available for the prosecution of its claims from the moment it filed its suit.
Our Opposition to Lane Powell’s Partial Summary Judgment Motion. On November 5, 2012,
we filed our Opposition to Lane Powell’s partial summary judgment motion. Among other things, we showed
with evidence that Lane Powell’s bills were fraudulent.
(Exhibit November 5, 2012, Pg. 7 at 7 et seq.) We also showed that
the contract for services violated the RPC and was therefore invalid.
NOTE: We had charged Lane Powell with fraudulent billing since our Answer and
Counterclaims, Exhibit October 25, 2011 (3), Pg. 7,
Para. 39; Pg. 25, Para. 241, etc., Dkt. 8.
On December 14, 2012, we filed a Revised and Re-noted Motion to Reconsider Summary Judgment
(Dkt. 330). (Exhibit December 14, 2012
(2)). Again, we charged fraudulent billing and gave 11 (eleven) other reasons why Summary Judgment was
inappropriate. (See Pg. 4.)
Degginger, Sulkin, et al. Claim to be Publishing Confidential Information
in Violation of “Ethical Obligations”
Attorneys Degginger, Sulkin, and Eaton are not oblivious to the subject of attorney client
privilege. On the contrary, those attorneys refused to produce discovery materials on the fancied basis that producing
the materials back to the clients might violate Lane Powell's ethical obligations to those clients. On September 28,
2012, Lane Powell argued to the Court:
Consistent with its ethical obligations, Lane Powell has not produced documents which may be subject to the
DeCourseys’ privilege claim. Lane Powell is willing to produce those documents as long as the
DeCourseys agree in writing that the privilege is waived.
(Exhibit September 28, 2012, Pg. 2 at 2-5, emphasis in
original.)
Self-Ascribed Breach of Attorney-Client Privilege. On December 7, 2012, in Reply in
Support of Supplemental Brief re Reasonableness of Fees (Dkt. 314) and in an accompanying Declaration
(Dkt. 315), Robert Sulkin alleged that we confided a certain matter to our attorneys at Lane Powell during the trial
phase of the Windermere lawsuit. (Exhibit December 7, 2012,
allegedly privileged information redacted.)
If the Statement in His Declaration of December 7, 2012 Was True, Sulkin was confessing that
Lane Powell/Grant Degginger
violated RPC
1.6 Confidentiality of Information,
and 1.9(c) Duties
to Former Clients.
Regardless of his cover-story, Sulkin was not addressing any question before Judge Eadie’s
court relating to Lane Powell’s claims against us or our counter claims against Lane Powell. Moreover:
- The trial judge the Windermere lawsuit (Judge Michael J. Fox) had long since ruled the reasonableness of fees
during the trial phase of the Windermere lawsuit, and Judge Eadie, in his turn, ruled that he would accept the fee
rulings of other courts (i.e. Judge Fox’s court included).
- When Sulkin made his allegations on December 7, 2012, our claims and defenses had already been dismissed, and
Lane Powell had no need to defend anything.
That is, Sulkin’s December 7, 2012 allegations served no function in furthering Lane
Powell’s case. They were, in fact, a self-confessed violation of the RPC rules requiring attorney-client
confidentiality, those allegations published in open court were a clear violation.
In His Declaration of December 7, 2012, Robert Sulkin Committed Perjury. In
violation of RPC 3.3 Candor Towards the Tribunal, and RCW 9A.72, Robert Sulkin, under penalty of perjury,
attested to “personal knowledge” of the truth of that information and the genuineness of that email.
Sulkin could have no such “personal knowledge,” given that he was not a Lane Powell employee at the time of
the alleged communication and was not an addressee of the email.
(Exhibit December 7, 2012, allegedly privileged information
redacted.)
Sulkin’s Declaration was signed “under penalty of perjury.” At best,
Sulkin’s statement was hearsay, misrepresented as personal knowledge (that is, it was perjury), and at worst, it
was a rank fabrication (that is, it was perjury). Sulkin should be prosecuted for this perjury -- it was a Class B
felony.
No Permission to Enter Confidential Information Sought or Granted. Sulkin et al. never
sought, nor was granted, permission to enter confidential and privileged information into evidence. The material
Sulkin offered did not qualify as information allowed
under RPC
1.6(b)(5) (“to establish a claim or defense”). Without denying nor confirming the
authenticity of such alleged privileged communications, we filed a motion to strike the material from the court record
on January 11, 2013 (Exhibit January 11, 2013
(1);Dkt. 347). We filed an accompanying Declaration the same day
(Exhibit January 11, 2013 (2). Exhibits A to O
included, some longer exhibits excerpted for brevity; Dkt. 346.) Sulkin et al. responded on January 17, 2013, by
repeating their earlier statements, again indicting themselves and their clients by claiming such information was
authentic and privileged. (Dkts. 352, 353.) We replied on January 22, 2013
(Exhibit January 22, 2013, Dkt. 354.)
As already shown, the issues before the court pertained to the contract between Lane Powell and
DeCourseys for legal services -- and the parties’ duties under that contract, such issues as:
- Was the DeCoursey/Lane Powell contract legal?
- Were the attorney hours honestly derived?
- Was the contract voided by language that prospectively waived our right to object to the honesty of
the hours (in violation of the RPC)?
- Did the evidence demonstrate fraudulent or padded billing?
- Did the evidence indicate fee gouging?
- Did Lane Powell breach the contract by devaluing the post-judgment interest without notifying us and
getting our agreement
- Did Lane Powell breach the contract by failing to move for modification of our losses at the Court
of Appeals, and by refusing to cross-appeal our losses to the Supreme Court
- Did Lane Powell breach the contract by suing us before Windermere paid on the judgment?
There was no justification for putting any alleged attorney client privilege information into
evidence. Introduction of that allegedly confidential material could only be malicious, vindictive and illegal. We were
unable to defend ourselves -- even to denying the allegation -- without opening the door to a full-scale examination of
attorney client confidences.
Since the court has never done a Pappas v. Holloway analysis of the case, our privilege has
never been properly waived by the court. And Lane Powell knows this. Even after the court’s April 27, 2012 order,
Lane Powell complained to the Court of Appeals on July 9, 2012:
The DeCourseys, of course, hold the privilege (not Lane Powell) and their continued (albeit improper)
assertion of the privilege needlessly complicates Lane Powell’s use of documents in its possession in this
litigation. (Exhibit July 9, 2012, Pg. 16, Fn. 5.)
The introduction of allegedly privileged material into evidence should be a cause for severe
reprimand, as it strikes at a fundamental principle in American jurisprudence.
LEGAL TERRORISM (“LAWFARE”)
Legal terrorism is the wrongful use of the courts and court processes to frighten or terrorize others
into giving up their rights, their freedoms, or their property, often in furtherance of financial or political
objectives. Sometimes called “lawfare.”
How Sulkin does His SLAPP Suit Work
In the section “Strategic Litigation Against Public Participation (SLAPP) Suit” (above)
we identified Lane Powell’s suit as a SLAPP suit, and noted that SLAPP suit lawyer Robert Sulkin was chosen to
represent Lane Powell in its efforts.
Recently, Sulkin represented other clients in an attack on the free speech rights of the Olympia
Food Co-op. Sulkin, backed by the Israeli lobbying organization StandWithUs.com, sued board members of the Co-op for
boycotting a few small Israeli products. The Thurston County Superior Court dismissed the suit on special motion under
Washington's new Anti-SLAPP law, and awarded damages and fees to the defendants.
(Exhibit February 28, 2012.) Sulkin’s client appealed
to the Supreme Court.
That case and ours have many parallels:
1. Attacking First Amendment Activities. In both cases, the defendants
were engaged in First Amendment political speech that offended vested interests.
Defendants: Olympia Food Co-op Directors: A year prior to the suit, the Co-op Board members
passed a bylaw to boycott a dozen products from Israel in protest against Israel's treatment of Palestinians. Sulkin
demanded the Co-op “rescind the Boycott ...”
In May 2011, nearly a year after the Board made its Boycott decision, Appellants' lawyer sent its current
and former members a letter demanding they immediately rescind the Boycott, or else he and his clients would "hold each
of you personally liable." (Exhibit May 24, 2013, Pg. 5.)
Defendants: Mark & Carol DeCoursey: We had been engaged for years in a highly public
campaign to throw light on the “old boy network” in the Department of Licensing and the Attorney
General’s office. Those officials refused to enforce real estate and consumer protection laws on
Windermere. We testified before the Legislature, displayed signage in public places, distributed fliers, and
spoke out to the media. Our purpose was to restore law and order to Washington’s the real estate regulatory
environment.
http://Windermere-Victims.com
and http://RenovationTrap.com.
2. Threat of Financial Ruin. In both cases, the Co-op directors and the
DeCourseys were threatened financially by “complicated, burdensome, and expensive litigation.”
Defendants: Olympia Food Co-op Directors: On May 31, 2011, Sulkin sent a letter from
dissident members of the Co-op to present and former members of the Board of Directors, demanding the Co-op rescind its
boycott of Israeli goods, promising
... legal action against you, and this process will become considerably more complicated, burdensome, and
expensive than it has been already. (Exhibit May 31, 2011,
Pg. 3.
On June 30, 2011, the Board responded:
A great deal of careful and thoughtful time and discussion preceded the Co-op’s Israeli-product
boycott decision. Additionally, the Board revisited the boycott decision many times after the original decision
was made ...
... We also remind you that there is a democratic alternative to the litigation that you are
threatening. (Exhibit June 30, 2011, Para. 4.)
On July 15, 2011, Robert Sulkin and Ari Lipman of McNaul wrote back to the board. Clearly, they and
their clients were not interested in any “democratic” solution. They closed their letter with these words:
In short, the Board has failed to satisfy our clients’ demands. We will proceed
accordingly. (Exhibit July 15, 2011, Pg. 2.).
When the Thurston County court threw out Sulkin’s SLAPP suit, Sulkin and his clients appealed
to the Supreme Court. In response, the Co-op’s attorney recapped the history of the dispute for the court:
In May 2011, nearly a year after the Board made its Boycott decision, Appellants' lawyer sent its current
and former members a letter demanding they immediately rescind the Boycott, or else he and his clients would
“hold each of you personally liable.” CP 303 -05. The letter closed with a similar threat:
“If you do what we demand, this situation may be resolved amicably and efficiently. If not, we will bring
legal action against you, and this process will become considerably more complicated, burdensome, and
expensive.” Id. (Exhibit May 24, 2013, Pg. 5.;
emphasis added)
Defendants: Mark and Carol DeCoursey: The day after he filed suit against us, Sulkin called
Atty. Paul Fogarty, who was representing us in an attempt to negotiate a settlement with Lane Powell, and threatened to
spend “$8000,000” in litigation to recover “$300,000.”
(Exhibit October 6, 2011.) Significantly, Sulkin did not serve
Fogarty with the Summons and Complaint which he had served on us the day prior. The threat was obviously intended to
discourage Fogarty from representing us in the litigation, and it was successful.
3. Abuse of Court Process. Sulkin abused the court process with overly
broad discovery requests.
Defendants: Olympia Food Co-op Directors: Sulkin requested of every one of the 16 defendants
every document the Board had produced and every document it had seen. The judge of the Superior Court, in dismissing
Sulkin’s lawsuit, ruled:
In this case, in my view, the discovery sought fails for two reasons: First, it comes at the end of the
process. We are downstream by a long measure, and there's been no attempt to seek enforcement of a right to
discovery until here we are at the hearing where I am constrained by a very short time leash. Second, the
discovery is not focused. It is broad - ranging discovery encompassing several - - I can't remember if it's two
or three depositions and, most importantly, all of the records possessed or seen by any member of the
board. Court's Ruling on Discovery Motion, RP
2/23/2012 page 6 at 18 (emphasis added.)
Defendants: Mark & Carol DeCoursey. Sulkin requested the name, address (etc.), and a
summary of knowledge of every person who knew anything of the Windermere lawsuit during its highly public five and half
year history, every document concerning the lawsuit, all drafts, etc. etc., and every communication between DeCourseys
and Lane Powell with no restriction on relevance.
REQUEST FOR PRODUCTION NO. 1: Please produce any and all documents referring to or relating to
the Windermere lawsuit.
REQUEST FOR PRODUCTION NO. 2: Please produce any and all documents reflecting or relating to
your communications with Plaintiff.
REQUEST FOR PRODUCTION NO. 5: Please produce any and all documents referring or relating to Lane
Powell’s representation of you.
(Exhibit October 5, 2011 (1).)
4. Lies to the Court. In both cases, Sulkin trampled on the RPC by lying
to the court about verifiable documented events and court rulings.
Defendants: Olympia Food Co-op Directors: Significantly, Sulkin misled the Supreme Court by
misrepresenting what had occurred in the trial court. The Co-op’s attorney told the Supreme Court:
Appellants claim without explanation that the court “drew inferences in the moving party’s
favor.” Appellants’ Br. at 2. In fact, the record shows that the court’s ruling was made
as a matter of law by interpreting the Bylaws and Boycott Policy. RP 20-27. Nevertheless, Appellants
mischaracterize the court’s oral ruling and the evidence to claim that factual questions existed. For
example, they claim there was a question of fact as to whether there was a “nationally recognized boycott”
and that the trial court resolved the issue by agreeing there was no nationally recognized boycott.
Appellants’ Br. at 23. To the contrary, although not crucial to its holding, the court ruled that there was
such a movement, RP 23 -24, CP 293-94, and that the Board had considered the substantial evidence of it presented at
two Board meetings. RP 25, CP 115-19, 469-70, 476-515. The evidence included a list of about 380
state-level member organizations of the U.S. Campaign to End the Israeli Occupation, across the country, including five
businesses in Olympia. (Exhibit May 24, 2013, Pg. 25-26;
footnotes omitted.)
Defendants: Mark and Carol DeCoursey. We have already shown the repeated lies about material
and verifiable facts concerning our case -- and have presented some of those lies in graphic form in Chapter II,
“The Truth, the Lie and the Judge.” An earlier version of this document was presented to Judge
Eadie. (Exhibit April 10, 2013.) It would appear that lying to the
court is standard and habitual practice for Robert Sulkin.
5. No Argument Too Ludicrous or Contradictory. In both cases, Sulkin
made ludicrous and contradictory arguments.
Defendants: Olympia Food Co-op Directors: According to the Olympia Food Co-op’s
insurance policy, directors are indemnified when they act in good faith and in the interest of the Co-op. But
Sulkin argues that the Co-op directors he and his clients were accusing of bad faith would be indemnified by the
same policy.
Appellants’ argument that the directors would have a right to be indemnified for their legal expenses
is disingenuous. Under Co-op policy, indemnification is available where a director acts in good faith and in the
interests of the Co-op. CP 59. Appellants’ Complaint alleges the Respondents acted in bad faith and
contrary to the Co-op’s interests, and seeks to hold Appellants liable to the company. CP 14 - 17.
Appellants’ complicated tail-chasing scenarios do not negate Respondents’ clear right to relief on the
facts of this case, especially given the Legislature’s instruction that these anti-SLAPP remedies are to be
liberally construed. (Exhibit May 24, 2013, Pg. 48.)
Defendants: Mark and Carol DeCoursey: In our case, Sulkin et al. claimed that (a) that we had
waived the privilege (b) we held the privilege. See “Reviewing the Contradictions: List of Seven,” above.
Making ludicrous and contradictory arguments takes up Court time with nonsense and imposes ruinous
litigation expenses upon opponents.
Sulkin Linked to Israeli Foreign Ministry’s Legal Terrorism “Lawfare” Program
Trying to Suppress BDS Movement
In 2005, Palestinian civil society issued a call for a campaign of boycotts, divestment and sanctions (BDS)
against Israel until it complies with international law and Palestinian rights. A truly global movement against
Israeli Apartheid is rapidly emerging in response to this call. (BDS
Movement)
The lawsuit filed against the directors of the Olympia Food Co-op who approved its boycott of
Israeli products is a strike against the BDS movement, and a project of the Israeli Law Center. The Center
(“Shurat HaDin”) describes itself as:
... an Israeli based civil rights organization ... combating the terrorist organizations and the
regimes that support them through lawsuits litigated in courtrooms around the world ... Shurat HaDin seeks to bankrupt
the terror groups and grind their criminal activities to a halt - one lawsuit at a time.
Established in 2003 and based in Tel-Aviv, Shurat HaDin works together with western intelligence agencies
and volunteer lawyers around the world to file legal actions on behalf of victims of terror.
(Exhibit January 22, 2014, cached from
Israel Law Center.)
The Olympia Food Co-op’s boycott of Israeli products constitutes terrorism, according to the
thinking of the Center. Shurat HaDin boasts of Sulkin’s lawsuit:
Misguided BDS [Boycott Divestment Sanction] activists have landed the Olympia Food Co-op (the
“OFC”) in what is likely to be an expensive lawsuit. In July 2010 the OFC implemented a boycott of
Israeli products at its two stores in Olympia, Washington.
(Exhibit January 22, 2014, cached
from Israel Law
Center
Apparently, Robert Sulkin is one of the Israel Law Center’s “volunteer
lawyers.” Richard Silverstein of Tikum Olam exposes Robert Sulkin’s ties to the Israeli
Foreign Ministry’s StandWithUs project.
Though five coop members sued the coop itself in this case, the plaintiffs were recruited by the right-wing
pro-Israel advocacy group, StandWithUs and Israel’s Northwest Consul General, Akiva Tor. SWU and the MFA
also recruited the lawyers representing the anti-BDS group. Israel’s deputy foreign minister, Danny
Ayalon, told an Israeli TV news show that the government was using such suits in order to pre-empt what he called
efforts to delegitimize Israel internationally. Thus, today’s court victory is a small, but important
victory in the battle to bring Israel’s human rights abuses and illegal Occupation to a broader public
audience. It is a defeat for the Israeli government and its NGO allies who seek to sweep such issues under the
rug and use lawfare tactics to battle human rights activists.
The plaintiffs refuse to declare who is paying the legal fees and the attorney has refused to say that he
is doing the case pro bono. Bob Sulkin, the senior partner responsible for the case, has been publicly associated
with SWU fundraising efforts in the past and his wife is on the group’s board. It’s also not known
who will be paying the fine and court costs ordered by the judge.
Plaintiff’s attorneys told The Olympian that the matter would be decided in the Court of Appeals or
Supreme Court, indicating an appeal is likely. It would also appear that the Israeli government, seeing this type
of lawfare as a potent strategy in the fight against what they see as delegitimization, would want to maintain the suit
as long as possible and as high up the judicial food chain as possible. Even judicial sanctions and fines like
the ones the judge levied today are unlikely to deter.
(Exhibit February 29, 2012.)
“Lawfare” is the intentional abuse of the court system to burden and disable targets
with excessive legal expenses. (See “Threat of Financial Ruin,” above.)
Further information about Sulkin’s linkages can be found
at Exhibit January 11, 2013 (2) (Declaration of Carol
DeCoursey and exhibits attached thereto).
Trying to Suppress President Jimmy Carter’s Free Speech on Palestine. The
Israeli Law Center filed a class action suit against Nobel Peach Prize winner and former U.S. President Jimmy Carter,
and Simon & Schuster after the publication of President Carter’s Palestine; Peace, Not
Apartheid. Announcement of the suit was made on February 12, 2011
(Exhibit February 12, 2011.) Simon and Schuster called it
“a chilling attack on free speech.” (Exhibit May 5, 2011.)
The suit was withdrawn.
Trying to Suppress Washington Whistleblowers. We have already provided much evidence to
show the lawsuit Sulkin and his clients filed against us was filed to bring us to the verge of bankruptcy and
inhibiting our rights to speak out about corruption in Washington.
November 16, 2012: Partial Summary Judgment Hearing
Becomes “Summary Judgment Hearing”
Before the November 16 hearing, it appears that both Judge Eadie and Robert Sulkin knew the hearing
would not be for “partial” summary judgment, but for “full” summary judgment. However, we
had not been notified.
Judge Eadie’s announcement that he would be hearing a “motion for summary
judgment” can be found at Exhibit November 16, 2012, Pg. 13 at
6-7. Shortly after he made that statement, and still not understanding the nature of the hearing, we asked what
would happen when we presented our case to the jury (given that the judge had already stricken our claims and
defenses). Judge Eadie’s answer was this:
Court: I will answer that question because my understanding is that it is the
plaintiff’s position in this case that if the motion for summary judgment is granted there is nothing left to try
... The case is over. (Exhibit November 16, 2012, Pg. 28 at
1-11.)
In retrospect, the transition of the “partial” summary judgment hearing into a
“full” summary judgment hearing without notification to us -- and the judge’s dependence on Lane
Powell’s “understanding” of the procedure before him -- is curious. It is yet another example
of how Sulkin et al. led and misled this judge -- and the contempt in which these lawyers hold the judicial process.
Judge Forbids Our Court Reporter from Providing Transcript. Prior to the hearing on
Lane Powell’s Motion for Partial Summary Judgment, scheduled for November 16, 2012, we arranged to have our own
certified court reporter present at the hearing. Under King County rules, citizens are entitled to employ
“any transcriber of your choice” and use the transcription for any purpose other than an appeal.
(Exhibit November
6, 2012, cached as Exhibit October 19, 2013.) About ten
days before the scheduled hearing, we notified Judge Eadie’s office that we had hired a licensed court
reporter.
When the hearing began, Judge Eadie forbade our certified court reporter from transcribing the
hearing. (Exhibit November 16, 2012, Pg. 2 at
11-15. Also Exhibit December 10, 2012 (1).)
Given that we had only a limited time to raise objections after the hearing, not having a transcript would be a great
disadvantage to us. As we predicted, the official court transcript was not available until many weeks later, due
to the official court reporter’s heavy schedule.
Judge Eadie had scheduled Discovery Conference to be held at the conclusion of the Summary Judgment
hearing. We could not understand why: One side would win the Summary Judgment, one would lose -- why have
a Discovery conference after the event? At no time during the hearing did Judge Eadie cancel the post-hearing
Discovery conference. Nor did Robert Sulkin ever ask about it. But it did not take place. It would
appear both the Judge and Sulkin knew the post-hearing conference would not be held -- even though no one had told us.
Sulkin Kicks Off Hearing with a Lie About Our “Lawyers.” At the beginning of the
hearing, there was oral argument on a CR 56f motion we had filed. Sulkin argued that the motion did not meet
requirements because:
Sulkin: First, they just hired a new lawyer. That's reason number one. That was the
declaration of Lish Whitson saying I may join. (Exhibit November
16, 2012, Pg. 7 at 23-24.)
When Judge Eadie pointed out that we had NOT hired Mr. Whitson, Sulkin recovered by agreeing that
Mr. Whitson had not been hired, but went on to tell another lie:
Sulkin: They've had three previous lawyers in this case.
Judge: Okay. (Pg. 8 at 5-6.)
Yet no lawyer had ever filed a Notice of Appearance on our behalf in Judge Eadie’s
courtroom. Sulkin’s lie about our “three previous lawyers” was bald-faced, and the court knew
that, but he permitted the statement to stand.
Judge Effectively Admits He Is Disqualified. Despite Sulkin’s arguments that Judge
Eadie should not recuse himself, early in the hearing on November 16, Judge Eadie himself effectively admitted that, in
his own eyes and those of a reasonable person, he was insufficiently neutral to preside over the case.
At the beginning of the hearing, Judge Eadie instructed the litigants not to discuss the facts of
the dispute because his presence on the bench judging this matter might appear improper in the eyes of a reasonable
person:
Judge: Mr. Sulkin, I don't want to interrupt too much, but I think that the issues of the Windermere
lawsuit are sensitive in this case, and I don't want any suggestion in this record that anything that I am doing here
is affected at all by the facts of the Windermere lawsuit. So I'm going to ask you to skip over those
facts. (Exhibit November 16, 2012, Pg. 14 at 2-8, Official
Transcript.)
Later, Judge Eadie and Carol DeCoursey had an extended exchange about his wife’s Windermere
employment. (Exhibit November 16, 2012 Pg. 33 at 17-25, Pg. 34
at a-19). She said:
Carol: But really, sir, it doesn't look good and it doesn't feel good and it doesn't – it doesn't –
it doesn't – it's not good. (Exhibit November 16, 2012,
Pg. 33 at 24-25, Pg. 34 at 1)
Judge Eadie admitted that Carol's opinion was consistent with the view of a reasonable person.
Judge: Sure, I understand. (Exhibit November 16,
2012, Pg. 34 at 2.)
A short time later:
Judge: But in any event, I don't think I have a conflict on that but I respect your concern.
(Exhibit November 16, 2012, Pg. 59 at 12-13.)
Note: We are not arguing here that Judge Eadie was disqualified to preside over this case.
On November 16, 2012, Judge Eadie effectively admitted that his Windermere connections gave the appearance of
prejudice.
Other Issues Raised. During the hearing, we reminded Judge Eadie of our objections to Lane
Powell’s billing, based on the evidence we had produced of breach of contract, breach of fiduciary duty, conflict
of interest, fraudulent billing, invalid contract, extortion, malicious prosecution, unjust enrichment, consumer
protection violation, and telling direct, material, and provable lies in court
filings. (Exhibit November 16, 2012 , Pgs 10-11, Pgs. 27-33.)
Sulkin Lies to Judge Eadie’s Face: Background Facts. As described in Part
I Chapter 1, “DeCourseys Required To State Fees Were ‘Honestly Derived,’” Lane Powell
violated RPC
1.8(h)(1), which states:
(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; ...
Lane Powell required us to sign -- as a condition for continued representation -- an amended fee
agreement of December 30, 2008 which 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, Pg. 2; emphasis
added.)
Sulkin Lies to Judge Eadie’s Face: At the Hearing. At one point during the
hearing, Robert Sulkin handed Judge Eadie a letter which he identified as "Exhibit K." Sulkin claimed in that
letter (dated December 30, 2008), DeCourseys agreed Lane Powell’s fees were “reasonable.” Sulkin told
Judge the letter had been sent by the DeCourseys to Lane Powell.
(Exhibit November 16, 2012, Pg. 39 at 11-13.)
Mark asked to see that letter and showed it to Judge Eadie. It demonstrated that
Sulkin had downright lied. (Exhibit November 16,
2012, Pg. 39 at 20-22.)
The December 30, 2008 letter had been sent to the DeCourseys by Lane Powell --
the DeCourseys' names are on the inside address, and the Lane Powell attorney’s name appears in the
signature block. Exhibit K was in fact the document the reader can find in this analysis, attached
as Exhibit December 30, 2008.
When later, Mark proved the letter had been authored by Lane Powell
(Exhibit November 16, 2012, Pg. 50 at 24 through Pg. 51 at
9), Judge Eadie uttered not a word of surprise nor disapproval at being shown Sulking was lying. That is, he
simply ignored Sulkin’s blatant lie.
Is it OK for a lawyer to lie in court of the judge lets him?
This was one instance of the behavior that shocked the members of the public who attended the
hearing, and led them to write affidavits in which they deplored what they saw and heard in the courtroom. See
affidavits One, Two, Three, and Four, below.
Judge Ignores Lie and Unlawful Contract: Adopts Lane Powell’s Position. After
ignoring Sulkin’s lie, Judge Eadie immediately took Lane Powell’s position:
Judge: And you agreed in this that Lane Powell's fees were appropriate.
(Exhibit November 16, 2012, Pg. 51, at 10-11.)
Mark pointed out that by including that language, Degginger and his colleagues violated RPC 1.8
which forbids a lawyer from making an agreement that prospectively limits the lawyer's liability to a client for
malpractice. Mark then pointed out that the contract was unlawful.
(Exhibit November 16, 2012, Pg. 51 at 12-25.)
Judge: Okay. Got it.”
(Exhibit November 16, 2012, Pg. 51 at 19. See also
Pg. 51 at 23.)
But he was clearly disinterested in this information, too. He did not act on it, and he ruled
in favor of Lane Powell.
Judge Eadie Refuses Evidence Impeaching the Declarations of Lane Powell’s Attorneys.
Carol DeCoursey said:
Carol: May I offer you these documents? These are the documents that prove Lane Powell tells
lies about basic --
Judge: No.
Carol: They have impeached their credibility of themselves as witnesses.
Judge: No.
Carol: Lane Powell lies.
Judge: Mrs. DeCoursey, the documents upon which this motion has to be decided have already
been presented.
Carol: But we’ve presented this to you before, sir, many many times. Does it matter
when lawyers lie to judges or should that be swept under table? I don’t understand. Please
explain. (Exhibit November 16, 2012, Pg. 54 at 19-25,
Pg. 55 at 1-8. See also Pg. 30 at 12-25, Pg. 31 at
1-25.)
Judge Eadie then went on to say words to the effect we had not complained about the lies in the
summary judgment papers, so the information did not count. But Judge Eadie’s statement was untrue. In
our Response to Lane Powell’s motion for Partial Summary Judgment, we had written a dedicated paragraph entitled
“Lies My Lawyer Told Me.” (Exhibit November 5, 2012,
Pgs. 18, 19.)
Judge Eadie Refuses to Acknowledge Our Claim of Fraud. During the hearing, Judge Eadie refused to
recognize that we had complained of Lane Powell’s billing fraud both in written argument (described in above
paragraph, “Our Opposition to Lane Powell’s Summary Judgment Motion”) and during the hearing. Judge
Eadie said we had “no objection” to the fees
(Exhibit November 16, 2012, Pg. 57, at 22-25, Pg. 60 at 11-13.)
Mark DeCoursey told Judge Eadie:
I don’t understand why the Court keeps saying there’s no objection to the fees. We have
presented evidence of fraud. We have in our written presentation we presented that they mined the case and
refused to get CR 11 sanctions and to limit Windermere’s flagrant galaxies of arguments. Why does the court
say there has been no objection to the fees? We objected at the time in letter after letter, and we have
presented those letters as quite a packet in our submission to the court on summary judgment. (Exhibit
November 16, 2012, Pg. 66 at 11-20.)
Once again, Judge Eadie accepted Sulkin’s false statements of the case, and rephrased what he
had said before. (Exhibit November 16, 2012, Pg. 67
at 5-10.) Mark repeated that we had objected, and do still object.
(Exhibit November 16, 2012, Pg. 67 at 14-25.)
The fact that law firms commit billing fraud and fee gouging is widely known. The subject has
received widespread coverage in the popular press and legal journals (see discussion in “Introduction: Our
Support” and Part I, Chapter 1 concerning DLA Piper.)
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.
Sulkin Lies About Fees Found “Reasonable” by Prior Courts and Why a 1.3 Fee
Multiplier Was Awarded. For a history of lies told about the fee multiplier, see “Fabrications About
Multiplier Award” (Part I, Chapter 1.) For history of the lies told about the fees found
“reasonable” by prior courts, see rows 16 and 17 of “The Truth, the Lie, and the Judge” (Part
II, Chapter 2).
Sulkin Prepares False Statements for Court’s Signature:
Is That OK If the Judge Signs Off?
Judge Signs Off on Untruthful Statement In Sulkin’s Court Order. In our pleadings
prior to November 16, 2012 and at the November 16 hearing, we charged Lane Powell with, and produced evidence of, among
other things, breach of contract, breach of fiduciary duty, conflict of interest, fraudulent billing, extortion,
malicious prosecution, illegal contract, unjust enrichment, and consumer protection violation, and telling direct,
material, and provable lies in court filings. Most rational persons would regard our charges as
“challenging the reasonableness of fees and costs.”
Nonetheless, Judge Eadie signed Sulkin’s prepared “Findings of Fact, Conclusions of Law,
and Order on Lane Powell PC’s Motion for Summary Judgment” containing the following statement:
The DeCourseys did not present evidence challenging the reasonableness of the fees and costs on summary
judgment. (Exhibit December 14, 2012 (1),
Pg. 3 at 23-25.)
Once again, we are compelled to draw attention to the judge’s conduct to give an adequate
picture of Sulkin & Eaton’s violations
of RPC
8.4(f), wherein they:
... assist[ed] a judge or judicial officer in conduct that is a violation of applicable
rules of judicial conduct or other law.
The orders Judge Eadie signed after the hearing were written by Sulkin, et al.
Judge Eadie clearly had no regard for the documented statements of two pro se litigants when
those statements reflected badly upon a 200-lawyer international law firm, even when the law firm’s attorneys had
provably lied to the court on material matters of fact.
“Judges can be counted on to rule in favor of anything that protects and empowers
lawyers.” (“Introduction: Our
Support. Authorities,” Liptak.)
The Washington Bar should therefore not accept the Superior Court’s opinion as to whether the
conduct of Lane Powell’s attorneys was proper. The Washington Bar should use the Rules of Professional
Conduct as the standard.
Judge Orders Windermere Whistleblowers to Pay $770,986.32. In a Judgment on
March 8, 2013 (Dkt. 374), Judge Eadie awarded Lane Powell $431,738.80
(Exhibit March 8, 2013, Pg. 3 at 6).
On March 28, 2013 (Dkt. 383), he awarded Lane Powell another
$25,439.52. (Exhibit March 28, 2013, Pg. 2 at 20.) Given
that we had already paid Lane Powell $313,808, thanks to Judge Eadie, Lane Powell would receive $770,986.32 for its
efforts.
But What About Lane Powell’s $268,000 Gift to Windermere? And the Other Stuff? Judge
Eadie’s $770,986.32 bonanza to Lane Powell does not take into account Lane Powell’s gift of $268,000 in post-judgment
interest to Windermere. (See Part I Chapter 1, “Windermere Gets $268,000
Gift. We Get $268,000 Loss,” and Exhibits cited in that section.)
And what of the other losses we suffered at Lane Powell’s hand, listed in Atty. Fogarty’s
letter? (Exhibit September 22, 2011.) Summing the
individual losses documented by Fogarty with Eadie’s award, we arrive at a figure of $1,968,721.72.
No wonder Lane Powell did not want this case to go before a jury! And no wonder Sulkin et
al. insisted that the husband of a Windermere broker should judge the case!
Let’s Make That $1,968,721.72. Judge Eadie, who, through his wife is beneficiary of
Windermere Real Estate's public image and business success, apparently had a message for the Washington public:
“Sue Windermere? Even if you win, you will lose. And how much will you lose?
$1,968,721.72.”
Sulkin Alleges DeCourseys “Owe” Lane Powell Money
That Lane Powell Never Spent
Sulkin Claims DeCourseys Must “Reimburse” Lane Powell $45,000 in Costs. On
November 30, 2012, Lane Powell asserted:
The DeCourseys are responsible for reimbursing Lane Powell for the $45,000 in costs found reasonable by
Judge Fox but disallowed on appeal ... The DeCourseys are estopped from challenging these costs as unreasonable,
Mot. at 14-16, and remain responsible for paying them. Certainly, Lane Powell should not be required to bear
costs incurred on the DeCourseys' behalf that were found reasonable but disallowed on appeal.
(Exhibit November 30, 2012 (1) Pg. 4 at 13-26.)
But Sulkin had no documentation that Lane Powell actually spent the money. Why? Because
Lane Powell did not spend that money, and the expenses never appeared on the Lane Powell invoices
-- we paid for the expenses directly.
In fact, the December 30, 2008 agreement between us and Lane Powell stipulated that:
DeCourseys will pay the litigation vendors.
(Exhibit December 30, 2008, Pg. 2.)
Judge Assists Lane Powell in $45,000 Swindle. On December 6, 2012, we informed Judge
Eadie that we had paid those costs of the Windermere lawsuit directly:
...including experts, transcriptions, copying, and court fees, amounting to $45,422.03. We paid these costs
directly, to the service providers and vendors, and they never appeared on the Lane Powell invoices. Exhibit I.
(Exhibit December 6, 2012, Pg. 9, Para. d,
Ex. I.)
Nonetheless, Judge Eadie disregarded our objections, the lack of invoices showing Lane Powell
expended the money, and the presence of Lane Powell’s own documentation, which stated: “DeCourseys
will pay the litigation vendors.” (Exhibit December 30,
2008, Pg. 2.) Judge Eadie simply adopted Sulkin’s provenly false statement, forwarded Sulkin’s lies, and
helped Lane Powell swindle us of $45,000.
Robert Sulkin Gives Black Eye to Washington Bar -- and Washington Courts
Lane Powell’s conduct at the November 16, 2012 hearing gave a black eye to the Washington Bar
and Washington courts: There was not even an appearance of fairness.
Affidavit One. A number of interested members of the public attended the hearing.
Several filed affidavits with the court about their observations. One citizen stated:
... this was a sham of a hearing in my opinion. Why? Because present in Judge Eadie’s
courtroom that day were only two players that seemed to matter -- Judge Eadie and Mr. Robert Sulkin of Lane
Powell. If this hearing was in any way typical of the manner in which judicial decisions are made in King County
Superior Court -- and especially in cases involving pro se litigants -- then the entire state of Washington should not
only be highly concerned, but totally outraged. Citizens should be alerted to instances such as I witnessed on
November 16, 2012.
It couldn’t have been clearer who was running that courtroom -- Mr. Robert Sulkin. He had
Judge Eadie’s undivided attention. Yet Judge Eadie appeared to find the DeCourseys little more than mild
irritants taking up his time ...
Judge Eadie appeared riveted on every word Sulkin said ... He noted the documents to which Sulkin
referred, taking all the time he needed to make sure he understood what Sulkin wanted him to do ...
That was certainly not a fair and impartial hearing -- the very thing that our constitution guarantees
every citizen. (Exhibit December 10, 2012
(2).)
Affidavit Two. A second citizen stated:
I was struck by the behavior of the judge and the primary lawyer for Lane Powell. There was a
symbiotic relationship that bordered on merging. I had a difficult time determining who was running the court,
the judge or the Lane Powell lawyer. I have to officially say that it was, in my observed opinion, the Lane
Powell lawyer that was running the show and determining what the judge allowed in evidence and how the judge was going
to rule.
The Lane Powell lawyer was the recipient of many constant knowing head bops, and other attentions that
were disturbing to me ...
I was particularly disturbed by something called Exhibit K. The Lane Powell lawyer said it was
something the DeCourseys had written and signed and sent to Lane Powell. Mark DeCoursey asked to see the document
and it turned out that Exhibit K had been written and sent by Lane Powell to the DeCourseys.
When this was revealed the judge ignored the discrepancy and then prevented the DeCourseys’ from
presenting evidence. (Exhibit December 12,
2012.)
Affidavit Three. A third citizen stated:
... The judge also would not reply to Carol DeCoursey in her request for an explanation for not discussing
the records she had presented demonstrating false and contradictory testimony by Lane Powell.
The judge seemed too willing to accept a handwritten document presented by Lane Powell’s attorney
Robert Sulkin. I later saw the document, and it is illegible.
The judge politely ignored Mark and Carol DeCoursey and seemed willing to be led through the whole
proceeding by Lane Powell attorney Sulkin. (Exhibit December 11,
2012.)
Affidavit Four. A fourth citizen stated:
... Judge Eadie appeared to be somewhat nervous and concerned about his public image, as he squirmed about
his desk checking frequently with glances toward the Lane Powell attorney as if asking for approval on each statement
he made and then glancing toward the large audience in the courtroom who attended in support of the DeCourseys.
He was obviously nervous over his suggested conflict of interest with the case (He is married to a Windermere Broker)
and repeatedly proclaimed that he had no conflict of interest. Any reasonable person would agree that burying the
DeCourseys in legal debt would certainly discourage any other plaintiff from suing Windermere. He gave little
recognition to the fact that DeCourseys had pointed out lies and distortions told continually by the Lane Powell
attorney acting as if these lies and distortions were normal in the course of court business and he was little
interested in the actual truth. Judge Eadie’s behavior gave me an uneasy feeling that this was but a
kangaroo court whose final decisions were made long ago with the assistance of the plaintiff’s attorneys.
(Exhibit December 18, 2012)
Official Transcript of November 16, 2012 Summary Judgment Hearing. For the readers’
convenience, we have attached the transcript of the hearing made by the official court
reporter. (Exhibit November 16, 2012.)
Lane Powell Claims Bond While Case Is on Appeal
Sulkin et al. Notified of Our Appeal. On January 25, 2013, a new appeals attorney filed
a Notice of Appeal in our case and served it on Sulkin’s firm the same day.
(Exhibit January 25, 2013.) The Notice was docketed on January 28,
2013.
Sulkin et. al. Demand Bond Release Despite Our Appeal. As revealed in subsequent
correspondence, on or before January 31, 2013 (well after being notified of our appeal), H. Montgomery, under the
direction of Robert Sulkin, telephoned our bonding company and gave the bonding company executive to understand that
Lane Powell was demanding the bond. H. Montgomery then followed up by sending a copy of the judgment to the
bonding company -- conspicuously omitting our Notice of Appeal, for the second time giving the bonding company the
definite understanding that the case was over and the terms of the bond had been satisfied -- and that Lane Powell had
a legal claim on the bond.
We Are Notified of Improper Demand on Bond. We knew nothing about the matter until
February 5, when the bonding company sent us notification telling us that attorneys for Lane Powell were demanding that
the fully collateralized bond be liquidated to them. Along with the notification, the bonding company sent us the
correspondence that had taken place with the McNaul attorneys. (Exhibit
February 5, 2013 (1)). Note: The eight (8) pages of this exhibit
were sent to us in a single pdf file from the bonding company. All eight (8) pages are attached.)
We Alert Authorities to Improper Demand on Bond. The bonding company asked us if we had
any legally valid objection to the payment, in the absence of which the bond would be paid to Lane Powell.
(Exhibit February 5, 2013 (1)). We responded,
telling the bonding company we had notified Lane Powell of our appeal, and instructed the bonding company not to
release the funds. We also we immediately notified the Clerk of the Court and the Presiding Judge, Judge
McDermott, that the McNaul firm may be attempting to secure improper release of the bond, and warned them of a possible
attempt to seek release the funds in the Registry of the Court.
(Exhibit February 5, 2013 (2)).
Eaton Alleges Lane Powell Was Just Innocently “Reaching Out.” On February 5,
2013, Eaton emailed the Clerk and the Judge to say that we had been “misinformed” and had reached
“unwarranted conclusions without making adequate inquiry into the facts.” She said that McNaul had simply
“reached out” to the bonding company to “ask a question.”
Eaton did not reveal what the “question” was -- nor give a clue about how a professional
bonding company could have mistaken her “reaching out” with a “question” as a demand for the
release of our bond. (Exhibit February 5, 2013 (3).)
Doubtless if asked, Eaton will take the position that the bonding company does not know its business
-- that it does not know when it is being asked to release a bond.
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