In re McGrath

• Decision Date: 12 July 2012
• Docket Number: No. 200,917–4.,200,917–4.
• Citation: 280 P.3d 1091,174 Wash.2d 813
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Thomas F. McGRATH, an Attorney at Law.
• Court: Washington Supreme Court

174 Wash.2d 813

280 P.3d 1091

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Thomas F. McGRATH, an Attorney at Law.

No. 200,917–4.

Supreme Court of Washington,

En Banc.

July 12, 2012.

Kurt M. Bulmer, Attorney at Law, Seattle, WA, for Petitioner.

Francesca D'Angelo, Washington State Bar Association, Seattle, WA, for Respondent.

CHAMBERS, J.

[174 Wash.2d 815]¶ 1 Thomas F. McGrath seeks review of a recommendation by the Washington State Bar Association Disciplinary Board (Board) that he be suspended from the practice of law for 18 months. The hearing officer found that McGrath intentionally and repeatedly obstructed and delayed litigation by failing to respond to discovery requests and by falsely certifying that he had made a reasonable inquiry into the accuracy of the responses he eventually gave. Further, while the trial judge was considering imposing sanctions for these discovery violations, McGrath sent two ex parte communications to the judge disparaging the opposing party based upon her national origin. We conclude that the hearing officer's findings of fact are supported by substantial evidence. Reviewing the conclusions of law de novo, we also accept the officer's conclusions of law. With appropriate deference, we accept the recommendation of the Board and suspend McGrath from the practice of law for 18 months.

FACTS AND PROCEDURAL HISTORY

¶ 2 McGrath's wife, Melinda Maxwell, owned two chiropractic businesses in the Seattle area, both named the Chiropractic Wellness Center (CWC). McGrath was the lawyer for CWC as well as its corporate secretary. Katherine Ellison is a Canadian citizen who worked at CWC. Ellison left to open her own chiropractic business after spending about three years at CWC. Upon Ellison's departure, McGrath filed suit on behalf of CWC, alleging, among other things, breach of the duty of loyalty and unfair competition. Ellison filed an answer and counterclaim, asserting that “CWC has engaged in the practice of hiring Canadians, promising them employment under certain terms, and then altering those terms after the Canadian has relied on the terms promised.” Am. Answer (Ex. A–2) at 6. For example, Ellison claimed if the Canadian did not accept the new terms, “both their work visa and impending licensure would be jeopardized” by the potential loss of employment with CWC. Id.

¶ 3 In October 2007, CWC's complaint was dismissed with prejudice on summary judgment. Ellison's claims proceeded to trial, and on July 14, 2008, a jury awarded her approximately $500,000, finding, among other things, that she had suffered disparate treatment in her employment based on her alienage.

¶ 4 The litigation was “contentious.” Second Am. Findings of Fact (FF), Conclusions of Law (CL) and Hr'g Officer's Recommendation, FF 3. Discovery was particularly difficult. First, in April 2007, Judge Cheryl Carey imposed sanctions on McGrath and Maxwell for discovery violations, finding:

Ms. Maxwell, CWC, and Mr. McGrath falsely certified responses to requests for production as identified in this Court's findings of fact. This court finds that such conduct was willful, intentional, and geared to prevent Ms. Ellison from having information necessary to litigate the claims identified in this court's finding of fact paragraph 1. This court finds that those responses were falsely sworn to induce Ms. Ellison and this court to believe that the responses were completely answered.

Order (Ex. A–24) at 10. Later, in March 2008, Judge Jim Rogers signed an order on a motion by Ellison for default. Judge Rogers denied the motion, but granted alternative relief for discovery violations by ordering a spoliation of evidence instruction be presented to the jury. Specifically, Judge Rogers noted that “[i]n this case, that test [for presenting such an instruction] is easily met.” Order on Mot. for Default by Ellison (Ex. A–28) at 5. At the disciplinary hearing, the hearing officer found that McGrath repeatedly failed to make good faith efforts to fulfill discovery requests.

¶ 5 In response to Ellison's motion for default for discovery violations, McGrath submitted two ex parte communications to Judge Rogers. Both referred to Ellison's national origin and one asked that her assets be frozen. These ex parte communications will be detailed later. After the trial, concerned about these communications, Judge Rogers filed a grievance against McGrath.

¶ 6 The hearing officer found McGrath had engaged in four separate instances of conduct in violation of the rules of professional conduct (RPC). The first two violations involved McGrath's significant failures to respond to discovery requests and falsely certifying compliance with discovery rules. The third was based on McGrath's demonstrated prejudice and bias toward the opposing party based on national origin. The hearing officer found a fourth violation because McGrath communicated ex parte with the judge in his case without authorization. The hearing officer concluded that the second, third, and fourth violations caused actual harm, and he suspended McGrath for three months. The Board adopted the hearing officer's findings but decided the length of the suspension was insufficient; it increased the suspension to 18 months. McGrath contests the recommendation.

ANALYSIS

Standard of Review

¶ 7 This court has ultimate responsibility for attorney discipline in Washington. In re Disciplinary Proceeding Against Marshall, 160 Wash.2d 317, 329, 157 P.3d 859 (2007) (citing In re Disciplinary Proceeding Against Cohen, 150 Wash.2d 744, 753–54, 82 P.3d 224 (2004)). We uphold challenged findings as long as they are supported by substantial evidence. Id. “Substantial evidence exists if a rational, fair-minded person would be convinced by it. Even if there are several reasonable interpretations of the evidence, it is substantial if it reasonably supports the finding. And circumstantial evidence is as good as direct evidence.” Rogers Potato Serv., LLC v. Countrywide Potato, LLC, 152 Wash.2d 387, 391, 97 P.3d 745 (2004) (citations omitted). We give great weight to the hearing officer's findings of fact, especially where the veracity of witnesses is concerned. In re Disciplinary Proceeding Against Poole, 156 Wash.2d 196, 208, 125 P.3d 954 (2006) (citing In re Disciplinary Proceeding Against Guarnero, 152 Wash.2d 51, 58, 93 P.3d 166 (2004)). We review conclusions of law de novo. In re Disciplinary Proceeding Against Stansfield, 164 Wash.2d 108, 187 P.3d 254 (2008) (citing Guarnero, 152 Wash.2d at 59, 93 P.3d 166).

Discovery Discipline

1. Facts Relating to Discovery

¶ 8 The hearing officer found that “[McGrath] continually interposed general and specific objections to Ellison's discovery requests” many of which “were not made in good faith.” FF 4. The hearing officer also found “Respondent violated RPC 8.4(d) in providing discovery responses to opposing counsel without conducting a reasonable inquiry into the truthfulness of the responses in circumstances where inquiry and investigation by respondent was clearly called for.” CL 1 (count I). McGrath challenges these findings. A rather detailed discussion of the discovery violations is required for the reader to fully appreciate the conduct before us.

¶ 9 Among other things, Ellison requested “a full and complete personnel roster, identifying all individuals employed by [CWC] for a period of [five] years before the hiring of ... Ellison to present.” Request for Production (RFP) 9 (Ex. A–4). She also asked for the position held by each employee, the dates of the employment, and the reasons for separation. McGrath objected to this request, stating that it was “duly [sic] burdensome and [was] promulgated with the intent to harass and/or intimidate and will not likely lead to the discovery of relevant evidence.” Pl.'s Resp. to RFP (Ex. A–5) at 4. McGrath only produced the names and last known addresses of the chiropractors that were employed by CWC since 1999. He did not produce a personnel roster or contact information for any other employees.

¶ 10 Ellison also requested copies of all time cards for each and every chiropractor hired by CWC at both locations. RFP 18 (Ex. A–4). These time cards were documents that were required to be kept by the chiropractors and were important to prove Ellison's disparate wage claims. McGrath objected, alleging that the request was harassing, burdensome, and unlikely to lead to relevant evidence. He also stated, “Chiropractors were not ordinarily required to have a time card. Therefore [th]is information is not available. Further, there are no records prior to 2000.” Pl.'s Resp. to RFP (Ex. A–5) at 6.

¶ 11 Ellison requested the production of any and all records of income paid to another Canadian employee, Belinda Steenburg, “including any and all W–2s generated during her employment.” RFP 21 (Ex. A–4). These records were sought to show how CWC treated Canadian employees compared to the American employees. McGrath objected to this request, stating that “Steenburg was not a Chiropractor and a Canadian citizen” so the amount paid to her was not relevant or likely to lead to the discovery of relevant evidence. Pl.'s Resp. to RFP (Ex. A–5) at 6.

¶ 12 Ellison also requested copies of the marketing calendars for each clinic and the marketing calendar for every chiropractor that worked in the clinics. McGrath objected to both, stating respectively that “Ellison must define what a ‘Marketing Calendar’ [sic]” and “What is a ‘Marketing Calendar.’ ” Pl.'s Resp. to RFP (Ex. A–5) at 7. In fact, a marketing calendar was a specific compilation of information and dates described in CWC's office manual and was a term well understood by CWC and McGrath. This term was identified in the office manual and job descriptions that McGrath produced as a response in these same requests. McGrath testified that he knew what a marketing calendar was “but we didn't know if they did.” III Transcript (Tr.) at 553.

¶ 13 The court found that CWC...