Plein v. United Statesa Cas. Ins. Co.

• Decision Date: 21 May 2020
• Docket Number: No. 97563-9,97563-9
• Citation: 195 Wash.2d 677,463 P.3d 728
• Court: Washington Supreme Court
• Parties: Richard PLEIN, a married person, and Debra Plein (formerly Debra De Witt), a married person, and the marital community composed thereof, Petitioners, v. USAA CASUALTY INSURANCE COMPANY, an insurance company, Respondent, and The Sterling Group, Inc. (doing business as Sterling Group, DKI), a corporation, Defendant.

195 Wash.2d 677

463 P.3d 728

Richard PLEIN, a married person, and Debra Plein (formerly Debra De Witt), a married person, and the marital community composed thereof, Petitioners,

v.USAA CASUALTY INSURANCE COMPANY, an insurance company, Respondent,andThe Sterling Group, Inc. (doing business as Sterling Group, DKI), a corporation, Defendant.

No. 97563-9

Supreme Court of Washington.

Filed May 21, 2020

Joel Hanson, Attorney at Law PLLC, 13540 Lake City Way Ne, Ste. 120, Seattle, WA, 98125-3665, Ian S. Birk, Keller Rohrback, LLP, 1201 3rd Ave., Ste. 3200, Seattle, WA, 98101-3052, Philip Albert Talmadge, Talmadge/Fitzpatrick, 2775 Harbor Ave. Sw, Third Floor, Ste. C, Seattle, WA, 98126-2138, for Petitioners.

Mick Anthony Jaeger, William W. Simmons, Lewis Brisbois Bisgaard & Smith LLP, 1111 3rd Ave., Ste. 2700, Seattle, WA, 98101-3224, for Defendant.

Robert Stewart McLay, Joshua Nathan Kastan, DKM Law Group LLP, 1700 7th Ave., Ste. 2100, Seattle, WA, 98101-1360, Brian Roger Davis, Attorney at Law, 1700 7th Ave., Ste. 2100, Seattle, WA, 98101-1360, for Respondent.

GORDON McCLOUD, J.

¶ 1 Richard and Debra Plein sued USAA Casualty Insurance Company, alleging insurance bad faith. The Pleins hired three attorneys, two of whom were members of the Keller Rohrback LLP lawfirm (Keller), to represent them. But Keller had previously defended USAA in bad faith litigation for over 10 years.

¶ 2 Under the Rules of Professional Conduct, RPC 1.9(a) would bar Keller from representing the current clients, the Pleins, against former client USAA if the prior representation was in a matter "substantially related" to the current Plein¹ matter. We have never interpreted the meaning of this "substantially related" language under RPC 1.9(a). And since the last Court of Appeals decision interpreting this language, we amended the RPCs substantially and added two comments to guide our interpretation of RPC 1.9(a) ’s "substantially related" language.

¶ 3 We now hold that under current RPC 1.9(a), USAA fails to show a "substantial risk" that Keller obtained "confidential factual information" that would "materially advance" the Pleins’ case. RPC 1.9 cmt. 3. Accordingly, Keller did not represent former client USAA on any matter "substantially related" to the instant case. We therefore reverse the Court of Appeals decision that disqualification was required and reinstate the trial court's order that disqualification was not required.

FACTUAL AND PROCEDURAL HISTORY

I. KELLER'S REPRESENTATION OF USAA

¶ 4 Irene Hecht and her team at Keller represented USAA between 2007 and 2017. Clerk's Papers (CP) at 29. According to Keller, that representation of USAA in Washington included "over 165 matters between August 2006 and November 2017" and Keller had access to the following information:

a. The business customs and practices, including confidential claims handling materials and business relationships with outside companies and vendors;

b. The thought processes of adjusters, business representatives, and in-house attorneys; and c. Business and litigation philosophies and strategies, including approaches to settlement discussions, motion practice, case analysis, defenses, witness meetings, witness preparation, trial preparation, and discovery both on a case-by-case and institutional, company-wide level.

CP at 99. Further, Keller acknowledges that during the course of its representation of USAA, Keller

a. Had regular in-person and telephonic access to company employees, executives, and in-house attorneys relative to insurance claims and related Alleged Bad Faith Litigation;

b. Provided USAA CIC and its affiliated companies with advice, including as to insurance coverage matters, litigation strategies, factual positions, litigation mitigation recommendations for training and communication materials, and legal arguments; and

c. Was provided with electronic login credentials to certain internal proprietary and confidential documents regarding insurance bad faith litigation, including document repositories holding attorney-client information and electronic claim databases; and

d. Actively participated in court appearances, depositions, written court filings, correspondence, and mediations on behalf of USAA CIC and its affiliated entities.

CP at 100-01. Keller acted as USAA's sole defense counsel against four bad faith claims in Washington. CP at 100. USAA alleged that Keller "had (and has) extensive knowledge of how USAA CIC's adjusters analyze and handle homeowner's insurance claims and the interplay of this knowledge with the companies’ litigation strategy and analysis in defending Alleged Bad Faith Litigation in Washington." CP at 103.

¶ 5 Finally, between 2010 and 2012, Keller defended a USAA subsidiary in a Pierce County matter (Cueva² matter) against allegations of "bad faith relating to the handling of the fire and smoke damage claim to their house." CP at 102. In the Cueva matter, the Cuevas alleged that USAA "failed to provide adequate alternative housing" during repairs to their home after a fire. CP at 119.

II. PLEIN LAWSUIT

¶ 6 In 2016, a fire damaged the Pleins’ home and personal property.³ CP at 140. USAA agreed that the Pleins’ homeowners’ insurance policy covered the damage. Id. On USAA's recommendation, the Pleins hired The Sterling Group, Inc. to repair the damage. Id. But rather than repair the home, Sterling "concealed unrepaired fire damage." In addition, the work that Sterling did contained "numerous deficiencies." CP at 140-41. USAA nevertheless declined to pay the Pleins for either the cost of additional repairs to their home or the cost of the temporary living arrangements while their home was uninhabitable. CP at 141.

¶ 7 The Pleins hired attorney Joel Hanson to represent them in a lawsuit against USAA and Sterling, alleging insurance bad faith, violation of the Consumer Protection Act (CPA), ch. 19.86 RCW, and several other claims. CP at 142-44. Soon after filing the lawsuit, Hanson consulted with two Keller attorneys, William Smart and Ian Birk.⁴ CP at 8. The Pleins hired Smart and Birk to represent them along with Hanson. CP at 8-9.

¶ 8 USAA then demanded that Keller immediately withdraw from representing the Pleins due to a conflict of interest. CP at 60. USAA stated that it would move to disqualify if Keller did not comply within 24 hours. Id. USAA also stated that it would move to disqualify Hanson "on the grounds that his representation is likewise tainted by this direct conflict."⁵ Id.

¶ 9 The Pleins moved for a ruling regarding the "asserted conflict of interest." CP at 13. The trial court considered briefing and unrebutted declarations and then issued an order concluding that "the Plein matter is factually distinct from and not substantially related to the firm's prior representation of USAA, and as a result, the firm's representation of the Pleins is not a conflict under RPC 1.9." CP at 129. Accordingly, the trial court allowed Keller to continue to represent the Pleins. CP at 130.

¶ 10 USAA moved for discretionary review of this conflict issue. The Court of Appeals granted review and reversed. Plein v. USAA Cas. Ins. Co. , 9 Wash. App. 2d 407, 445 P.3d 574 (2019). After acknowledging its previous test for "substantially related" matters under RPC 1.9, the appellate court recognized that RPC 1.9 and its comments had been amended in 2006. Id. at 415-16, 445 P.3d 574. Since those 2006 changes, "no published Washington case ha[d] interpreted the comments to RPC 1.9 in order to address the definition of ‘substantially related matter.’ " Id. at 416, 445 P.3d 574. Relying largely on comment 3 to RPC 1.9, the Court of Appeals noted that "[w]hile the specific fact of the Pleins’ case may qualify as distinct, Keller learned significant confidential information about USAA's strategies for bad faith litigation." Id. at 418, 445 P.3d 574. Because USAA showed "a significant risk that Keller ha[d] knowledge of both specific and general confidential information that could materially advance the Pleins’ case," it held that RPC 1.9(a) precluded Keller's representation of the Pleins. Id. at 419, 445 P.3d 574.

¶ 11 We granted review, 194 Wash.2d 1009, 452 P.3d 1233 (2019), and now reverse.

ANALYSIS

¶ 12 RPC 1.9(a) states:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(Emphasis added.) The parties agree that Keller formerly represented USAA and that it now seeks to represent the Pleins,⁶ whose interests are materially adverse to the interests of USAA. The parties also agree that USAA does not consent to this representation. Thus, the question presented is whether the Plein matter is "substantially related" to any matter on which Keller previously represented USAA.

¶ 13 The Court of Appeals has applied RPC 1.9(a) ’s "substantially related" language many times over the years.⁷ We have not. And, as the Court of Appeals recognized, we amended the RPCs and their comments substantially in 2006. RPC Table of Rules, 157 Wash.2d 1135 (2006); see Wallace v. Evans , 131 Wash.2d 572, 577, 934 P.2d 662 (1997) (old cases may be "superseded by a significant change in the rule they interpret"). For purposes of this case, our amendments to RPC 1.9 effectively adopted the American Bar Association's Model Rules of Professional Conduct (ABA Model Rule) and their comments.

I. WE REVIEW INTERPRETATION OF A COURT RULE DE NOVO

¶ 14 "Whether attorney conduct violates the relevant RPCs is a question of law, which we review de novo." State v. Nickels , 195 Wash.2d 132, 136, 456 P.3d 795 (2020) (citing Eriks v. Denver , 118 Wash.2d 451, 457-58, 824 P.2d 1207 (1992) ).⁸ "When interpreting court rules, the court approaches the rules as though they had been drafted by the Legislature" and "appl[ies] principles of statutory...