280 P.3d 1091
Wash.2012Background
- McGrath challenges an 18‑month suspension recommended by the Board for disciplinary sanctions.
- Hearing officer found McGrath willfully obstructed discovery and falsely certified discovery responses.
- McGrath sent two ex parte communications to Judge Rogers disparaging Ellison based on her Canadian nationality.
- Board adopted the findings and increased the proposed discipline from the hearing officer.
- The underlying litigation involved Ellison’s wage and disparate treatment claims against CWC and involved multiple court orders and sanctions for discovery violations.
- Count II was dismissed; the Court reviews findings of fact for substantial evidence and conclusions of law de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sanctions were proper for discovery violations | McGrath argues discovery sanctions belong in trial court, not bar proceedings | Board/WBSA contends disciplinary sanctions are appropriate for repeated discovery violations | Disciplinary sanctions are appropriate for repeated discovery violations. |
| Whether ex parte communications violated ethical rules | McGrath disputes that ex parte letters influenced the judge | Ex parte communications to a judge were improper and prejudicial | Ex parte communications violated RPC 8.4(h) and RPC 3.5(b; and supported sanction. |
| Whether the hearing officer’s factual findings are supported by substantial evidence | McGrath challenges several underlying factual findings as unsupported | WSBA supports findings as supported by record | Findings of fact are supported by substantial evidence. |
| What is the appropriate sanction given the conduct | McGrath argues a lesser sanction is warranted | Board argues 18 months is warranted given aggravating factors | Suspension of 18 months is appropriate. |
Key Cases Cited
- In re Disciplinary Proceeding Against Cohen, 150 Wn.2d 744 (Wash. 2004) (standards for review and scope of attorney discipline; de novo review of sanctions)
- In re Disciplinary Proceeding Against Stansfield, 164 Wn.2d 108 (Wash. 2008) (de novo review of legal conclusions; weight to Board's sanction recommendation)
- In re Disciplinary Proceeding Against Kronenberg, 155 Wn.2d 184 (Wash. 2005) (consideration of aggravating/mitigating factors in sanctions)
- In re Disciplinary Proceeding Against Eugster, 166 Wn.2d 293 (Wash. 2009) (ABA Standards guidance; flexible, contextual sanctions analysis)