Residents challenge ethics of PUD's attorneys
CRESCENT BAR - Residents of Crescent Bar Island are scratching their heads. A decision Federal Judge Justin Quackenbush was to make on July 22 in the residents' lawsuit against the Grant County PUD, was delayed until Aug. 12 without explanation.
The explanation could be a new submission by attorneys for the residents who are plaintiffs in the suit. The motion asks Quackenbush to disqualify all of the attorneys for the PUD for unethical conduct.
Dale M. Foreman, attorney for the residents, claims the attorneys now representing the PUD discussed doing the same for the residents with resident Heather Trautman before they were hired by the PUD.
According to Crescent Bar Condominiums resident John Polky, Foreman discovered the conflict of interest while reviewing more than 9,000 emails that were considered for delivery to the PUD during the discovery phase of the case.
"I knew about it, but I, just like Heather, had forgotten about it," Polky said.
Polky noted that most emails are turned over in discovery, but some can be held if they contain privileged communication. That'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 that Trautman initiated contact in July of 2008 with Patrick Aylward, a partner in Jeffers Danielson Sonn & Aylward and, over several months, had significant interactions with him regarding issues facing the Crescent Bar Condominium Master Association (CBCMA).
Foreman wrote that Aylward informed Trautman that Sonn had worked for the PUD but minimized that issue. Aylward attempted to get a waiver of conflict from then PUD General Counsel Ray Foianini so that 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, Foreman added, Aylward noted he and Jeffers Danielson would be conflicted in representing the PUD because of the contact with CBCMA.
Quoting an email, Foreman said Aylward wrote: "And this will confirm you will not see me on the other side of the table."
In his (written) 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.
According to Polky, Foreman wrote to Jeffers Danielson asking them to resign from the case by July 5 so he wouldn't have to file his motion. He got no response, Polky said, 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 can 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."
In a related matter, Polky noted that his wife Nancy and Condo residents Jan Shabro and John Jessup are scheduled to meet with the staff of Congressman Richard "Doc" Hastings on August 11.
That meeting represents progress for the residents. Hastings demonstrated little, or no interest the first time he was contacted by the residents.
Shabro, a former state legislator, is part of the Condos residents' leadership. Jessup, who resides in Yakima, is a constituent of Hastings.