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In re Larry Botimer, No. 200,625-6. Attorneys should review this case before entertaining the thought of retaliating against a client.

Attorney Larry Botimer served for several years as a tax preparer and tax advisor to Ruth Reinking, as well as Ruth’s son and daughter-in-law Jan and Janet Reinking, and he assisted Ruth with decisions related to her ownership stake in a nursing home facility. Botimer also assisted Ruth with business matters related to another care facility run by her other son, James Reinking. A dispute arose when James refused to recognize that Ruth or Jan had an ownership stake in this care facility. Botimer assisted Jan and Ruth in negotiations with James, but did not obtain conflict waivers in the course of his assistance of the various members of the Reinking family.

In 2002, Botimer terminated his representation of Ruth, citing her failure to cooperate with him, refusal to follow his advice and failure to pay for his legal services. Botimer also informed Ruth that he was sending a letter to the IRS informing the agency of Ruth’s failure to, contrary to his advice, correctly state her income and pay gift tax.

To resolve disputes stemming from the sale of Ruth’s nursing home facility, Jan and Janet sued Ruth and James. Botimer cooperated with Jan and Janet’s attorney in the lawsuit, providing him with three declarations to use in pretrial proceedings.

The Washington State Bar Association accused Larry Botimer of several ethical violations, and brought a complaint against Botimer for the following violations of the Rules of Professional Conduct:

• Count 1: Former RPC 1.7(b) by representing Ruth, Jan, and Janet; thereby creating a conflict of interest without obtaining informed consent in the form of conflict waivers.
• Count 2: Former RPC 1.6 and 1.9(b) by disclosing private information without consent to Jan’s lawyer when Jan and Ruth were counterparties to a lawsuit.
• Count 3: Former RPC 1.6 and 1.9(b) by disclosing without consent private information regarding Ruth’s prior tax returns to the IRS.

Today the Supreme Court unanimously affirmed the suspension in an opinion written by Justice Susan Owens.

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A. Mark Vanderveen appealed the Washington State Bar Association Disciplinary Board’s recommendation that he be disbarred after his guilty plea for willful failure to file a currency report after receiving cash payments amounting to $20,000. The hearing officer determined disbarment was the presumptive sanction but found mitigating factors and recommended a three-year suspension. The Board modified several of the hearing officer’s findings, including two mitigating factors, and instead recommended disbarment. The Supreme Court, with Justice Charles Johnson writing, upheld the disbarment.

Justice Sanders dissented, arguing that the appropriate sanction for Vanderveen would be a suspension from practice as a willful failure to file does not constitute dishonesty for the purposes of an attorney disciplinary proceeding.

The Seattle Times has this summary of the case.

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Sanders v. State, No. 80393-5. In a 5-4 decision by a panel of pro tem justices (judges drawn from lower appellate courts to act as State Supreme Court justices in this case only), the Court upholds an appeals court decision that the State is not obligated to pay for a judge's defense in an ethics case if the judge "knows or should know that the conduct of which he or she is accused is unethical and therefore not an official act."

In 2003, Justice Richard Sanders visited the Special Commitment Center (SCC) on McNeil Island, a State facility where certain convicted sex offenders were being held. A complaint was filed with the Commission on Judicial Conduct alleging that Justice Sanders talked with SCC residents who had cases pending before the Washington State Supreme Court. In 2005, the Commission held that Justice Sanders had violated Canons 1 and 2(A) of the Code of Judicial Conduct.

During the Commission's investigation, Justice Sanders asked the attorney general to provide him with a defense at public expense, citing RCW 43.10.030 and .040, which charges the attorney general with the duty to defend state officers in their official capacity. The attorney general refused, and Justice Sanders filed suit. A superior court judge dismissed the action, was upheld on appeal, and is upheld today. One dissent challenges that the majority fails to enforce the plain meaning of the statute or to create a workable framework for deciding future cases; a second dissent faults the majority for "improperly rel[ying] on the outcome of the underlying case as the basis for its decision." (case briefs and argument)

Chadwick Farms Owners Association v. FHC, LLC, No. 80450-8 and Emily Lane Homeowners Ass’n v. Colonial Dev., LLC, No. 80459-1 (consolidated). Can a Limited Liability Corporation sue or be sued after its certificate of formation is canceled? No, says the Supreme Court in an opinion by Justice Madsen, after cancellation an LLC ceases to exist as a legal entity and can neither sue nor be sued. These consolidated cases arose when homeowners associations sued the LLCs that had built their communities but had subsequently been canceled. While the LLCs no longer exist, however, the Court holds that the LLC members may be sued based on the same veil-piercing provisions that would apply while the LLC remained in existance. Justice Charles Johnson, joined by three other justices, dissents. (case briefs and argument)

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We'll have a more detailed review up shortly, but the Supreme Court has ruled that the attorney general had no duty to defend Justice Richard Sanders, at public expense, before the Commission on Judicial Conduct. At issue is whether the State, under RCW 43.10.030(3) is required to defend a judge who is alleged to have committed an ethics violation while otherwise within the purview of his or her official duties.

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The Supreme Court will issue rulings in two cases tomorrow.

Sanders v. State, No. 80393-5 (case briefs and argument). It’s not often that a seated Supreme Court justice has his own case before the court, but tomorrow the court will rule in a case brought by Justice Richard Sanders. The question here is whether the State has a duty to defend a judge in disciplinary proceedings.

On January 27, 2003, Justice Sanders visited the Special Commitment Center (SCC) on McNeil Island. Following that visit, a complaint was filed with the Commission on Judicial Conduct alleging that Justice Sanders had had contact with SCC residents who had cases pending before the Washington State Supreme Court. The Commission investigated the complaint and in 2005 held  that Justice Sanders had violated Canons 1 and 2(A) of the Code of Judicial Conduct. (The state Supreme Court eventually upheld this ruling. In re Disciplinary Proceeding Against Sanders, 159 Wash.2d 517 (2006).)

During the Commission investigation, Justice Sanders asked the attorney general to provide him with a defense at public expense, citing RCW 43.10.030 and .040, which charges the attorney general with the duty to defend state officers in their official capacity. The attorney general declined. Justice Sanders sued, and a superior court judge dismissed the action. On appeal, the Court of Appeals held that the attorney general acted within its discretion.

This case was heard by an panel of pro tem justices.

Chadwick Farms Owners Association v. FHC, LLC, No. 80450-8 and Emily Lane Homeowners Ass’n v. Colonial Dev., LLC, No. 80459-1 (consolidated). The question addressed in these cases is whether limited liability companies can continue to sue and to be sued after they are cancelled in accordance with the Washington Limited Liability Companies Act. (case briefs and argument)

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Washington Supreme Court Justice Richard Sanders has responded to the Seattle Post-Intelligencer's article that said he could benefit from his ruling in Yousoufian v. Sims. Justice Sanders disputes the article's implications.

The truth, however, is another matter. I will not gain from the decision; the Court’s own ethics advisor advised I need not recuse myself on public record act cases and my vote was not determinative.

. . . As the court’s ethics advisor told me, just because a judge is getting a divorce is no reason for him to be disqualified on all divorce cases. And there is another ethical provision not mentioned which states it is the ethical duty of the judge to hear cases properly before him when disqualification is not required. In general recusals are discouraged except in clear instances where recusal is required. I have recused in many cases where I thought the rules required it, but didn’t need to here.

UPDATE: I'm a day late posting this, but the Court of Appeals hearing Justice Sanders' case says it does not have the authority to apply the Yousoufian ruling to his own case.

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In January, Justice Richard B. Sanders authored an opinion that provided trial courts guidelines for assessing the severity of penalties when public agencies violate the Public Records Act. Yousoufian v. Office of Sims, 200 P.3d 232 (2009).

The Seattle Post-Intelligencer reports today that Justice Sanders could benefit from the ruling in his own public records lawsuit. Experts are mixed on whether this is appropriate. Several law professors say Sanders should not have participated in the Yousoufian case. Sanders says the law applies equally to all people, even judges. Sanders also said the Supreme Court’s ethics expert told him in May 2006 it was not necessary to recuse himself from public records cases.

I’ll let other folks comment on the ethical implications, but it’s worth noting that Sanders has been a consistent advocate for open, transparent government, so it’s hard to say his opinion in Yousoufian was a departure motivated out of personal gain. For example:

• Hangartner v. City of Seattle, 151 Wash.2d 439 (2004). Supreme Court ruled that records requests can be overbroad, and attorney-client privilege applies to records requests. (Sanders dissented.)
• Yousoufian v. Office of Ron Sims, 152 Wash.2d 421 (2004). Supreme Court ruled trial courts must assess a per-day (but not per-record) penalty for each day a record is wrongfully withheld. (Sanders dissented, calling for per-record penalty.)
• Koenig v. City of Des Moines, 158 Wash.2d 173 (2006). Supreme Court ruled the father of a child victim of sexual assault was entitled to police department records related to victim's case. (Sanders wrote majority.)
• Soter v. Cowles Pub. Co., 162 Wash.2d 716 (2007) Supreme Court ruled a school district's investigation of a student death not subject to the Public Records Act (Sanders dissented.)
• Bellevue John Does 1-11 v. Bellevue School Dist. #405, 164 Wash.2d 199 (2008). Supreme Court ruled the names of teachers alleged to have committed sexual misconduct against students are not subject to disclosure. (Sanders dissented.)

 UPDATE: Justice Sanders has responded to the P-I.

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