Grant PUD's attorneys' ethics challenged in court

CRESCENT BAR - Crescent Bar Island residents question the ethics of the attorneys representing Grant County PUD.

The residents' attorneys motioned to disqualify the attorneys representing the PUD.

Judge Justin Quackenbush is set to make a decision Aug. 12.

Dale M. Foreman, attorney for the residents, claims the PUD's attorneys discussed representing the residents with islander Heather Trautman before they were hired by the Grant County PUD.

Foreman discovered the conflict of interest while reviewing more than 9,000 emails during the discovery phase of the case, according to Crescent Bar Condominiums resident John Polky.

"I knew about it, but I, just like Heather, had forgotten about it," Polky said.

Polky noted most emails are turned over during discovery, but some can be held if they contain privileged communication with an attorney. It's what Foreman was looking for when he came across the Trautman emails.

"Heather Trautman met with one of the partners in David Sonn's firm when we were looking for someone to represent us," Polky said. "The conversations included strategies. It's all right there in the emails."

In the motion to disqualify, Foreman wrote how Trautman initiated contact in July 2008 with Patrick Aylward, a partner in Jeffers Danielson Sonn and Aylward. The law firm had significant interactions with him regarding the Crescent Bar Condominium Master Association (CBCMA).

Aylward informed Trautman that Sonn had worked for the PUD but minimized that issue, Foreman wrote. Aylward attempted to get a waiver of conflict from then PUD attorney Ray Foianini so he could represent Trautman but did not receive one.

"Jeffers Danielson later withdrew its request for a waiver without telling the CBCMA," Foreman wrote.

Later, Aylward noted he and Jeffers Danielson would be conflicted from representing the PUD because of the contact with CBCMA.

"And this will confirm you will not see me on the other side of the table," Foreman read from an email from Aylward.

In his arguments for disqualification, Foreman wrote, "Washington Rule of Professional Conduct (RPC) 1.9 states, "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter."

Foreman employed case law to complete the argument.

Foreman wrote to Jeffers Danielson asking them to resign from the case by July 5 so he wouldn't have to file his motion, according to Polky. He got no response and he filed his motion on July 12.

"Given the clear attorney/client relationship and exchange of confidential information and advice, Mr. Aylward and Jeffers Danielson have a conflict of interest that only written, informed consent by CBCMA and cure," Foreman wrote. "As such consent has not been given, Jeffers Danielson, and all lawyers at the firm, must be disqualified from representing the PUD in this matter. Accordingly, CBCMA asks the court to enter such an order."

Polky noted this issue may not end with Jeffers Danielson. He said the PUD's current general counsel was part of Jeffers Danielson before he was hired and during the time of the Trautman communications.

"(The) entire firm is tainted," Polky said. "If one person is involved, they're all involved."