    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION ONE

TERENCE BUTLER,                                  No. 74258-2-1


                     Respondent,



RANDALL T. THOMSEN, individually
and on behalf of the marital community
comprised of RANDALL T. THOMSEN
and JANE DOE THOMSEN; CALFO
HARRIGAN LEYH & EAKES, LLP,
a Washington Professional Limited
Liability Partnership, f/k/a DANIELSON
HARRIGAN LEYH & TOLLEFSON, LLP,                  UNPUBLISHED OPINION
JOHN JOHNSON,
                                                 FILED: August 29, 2016
                     Appellants


      Verellen, C.J. — When Terence Butler filed this legal malpractice lawsuit

against his former attorney, Randall Thomsen and Thomsen's law firm, Calfo Harrigan

Leyh & Eakes (Thomsen), Thomsen sought to invoke an arbitration provision contained

in a settlement agreement drafted by Thomsen resolving claims between Butler and

third parties. The arbitration clause extends to "[a]ny dispute arising out of the

settlement agreement.1 Because the malpractice claim is based upon an allegedly

overbroad release provision drafted by Thomsen, Thomsen argues the scope of Butler's

release is a dispute arising out of the settlement agreement. But Thomsen does not


       1 Clerk's Papers (CP) at 68, U 19.
No. 74258-2-1/2


establish an objective manifestation of intent to extend arbitration to any portion of a

subsequent malpractice claim against him. Neither does he establish any disclosure to

Butler that by signing the settlement agreement, he was agreeing to arbitrate any

portion of a malpractice claim he might have against Thomsen. We conclude Thomsen

is not entitled to invoke arbitration and affirm the trial court.2

                                            FACTS


                  /. White v. ImageSource, Zvirzdys, Sutherland, and Butler

       Terence Butler, Shadrach White, Victor Zvirzdys, and Terry Sutherland were

equal co-owners of ImageSource, a company that sells and services document imaging

software and equipment. In 2011, White resigned from the company and sued

ImageSource and the remaining three owners, asserting claims for wrongful

(constructive) termination, breach of fiduciary duty, and shareholder oppression, among

others. Butler, Zvirzdys, Sutherland, and ImageSource retained Randall Thomsen and

his law firm Calfo Harrigan Leyh & Eakes to jointly represent them in defense of White's

claims.3

       In 2012, the parties to the White lawsuit mediated and signed a CR 2A

agreement by which White was to release all claims against the defendants and the

defendants to release all claims against White. Seven months later, Thomsen drafted

and circulated the final settlement documents contemplated by the CR 2A agreement.

The resulting release and settlement agreement provided in pertinent part:




       2We also grant Butler's motion to strike the portions of Thomsen's briefs
containing matters outside the record.
       3 The fee agreement did not include an arbitration clause.
No. 74258-2-1/3


             10. Complete Release. In consideration of the promises set forth
      herein, the Parties agree to release one another, their spouses, their
      respective heirs, agents, attorneys, employees, directors, heirs, assigns
      and personal representatives from any and all charges, claims, and
      actions, whether known or unknown, arising prior to the date of this
      Agreement and arising directly or indirectly out of the Lawsuit or their
      previous dealings. This release specially includes and releases all claims
      that were asserted or could have been asserted in the Lawsuit by White
      relating to ImageSource (including employment issues) and any claims or
      counterclaims that were asserted or could have been asserted by
      Defendants in the Lawsuit against White.



             19. Dispute Resolution. Any dispute arising out of this Agreement
      shall be settled by arbitration before Judicial Dispute Resolution ("JDR") in
      Seattle, using Paris Kallas or a single arbitrator as agreed by the Parties.[4]
                   //. Butler v. ImageSource, Zvirzdys, and Sutherland

       Several months later, ImageSource terminated Butler's employment. Butler then

commenced a separate lawsuit against Sutherland, Zvirzdys, and ImageSource alleging

claims for breach of fiduciary duty, oppression of minority shareholder, conversion, and

willful failure to pay wages, among others. None of the defendants demanded

arbitration in their answers to Butler's lawsuit.5 Instead, in response to Butler's motion

for partial summary judgment on his breach of fiduciary duty and failure to pay wages

claims, the defendants asserted that Butler's claims against them were barred by virtue

of the release in the White settlement agreement. The trial court agreed and denied

Butler's motion:

               The plain and unambiguous language of the release contained in
       paragraph 10 of the [White] Release and Settlement Agreement applies to
       all claims by and between the Parties thereto, arising out of their previous
       dealings. The claims for relief asserted in the Motion arise from dealings


       4 CP at 67-68 (emphasis added).
       5 See CR 8(c) (arbitration is an affirmative defense).
No. 74258-2-1/4



       of the Parties pre-dating the January 2, 2013 date of the Release and
       Settlement Agreement. Those claims have therefore been released as a
       matter of law.[61

No one sought review.

                           ///. Butler v. Thomsen and Calfo Harrigan

       Thereafter, while Butler's remaining claims against Sutherland, Zvirzdys, and

ImageSource were still pending (shareholder oppression, conversion, conspiracy, unjust

enrichment, accounting, removal of directors, declaratory relief, criminal profiteering,

and derivative liability), Butler brought this legal malpractice action against his former

lawyer Thomsen and the Calfo Harrigan law firm based in part on the trial court's partial

summary judgment in Butler v. ImageSource that the White release covered his breach

of fiduciary duty and failure to pay wages claims.7 Thomsen then moved to compel

arbitration based on the arbitration clause he drafted as part of the White settlement

agreement. The trial court denied his motion.

       Thomsen appeals.8




       6 CP at 74. The court also determined Butler's breach of fiduciary duty claim was
based on the alleged wrongful use of corporate funds and thus, was based on harm to
the corporation. The court therefore concluded Butler did not have standing to pursue
that claim because it belonged to the corporation. Butler later amended his complaint to
assert derivative claims.

       7 Butler also asserted claims against Thomsen for breach of contract and breach
of fiduciary duty.
       8An order denying a motion to compel arbitration is appealable as a matter of
right under RAP 2.2(a)(3). Stein v. Geonerco, Inc., 105 Wn. App. 41, 44-45, 17 P.3d
1266(2001).
No. 74258-2-1/5



                                        ANALYSIS

                                        Arbitrability

      Thomsen does not contend that the White settlement agreement constituted a

release of Butler's legal malpractice claims against Thomsen. Neither does he contend

that the malpractice claim itself is subject to arbitration. Rather, Thomsen contends that

the broad language of the arbitration clause—"[a]ny dispute arising out of the

settlement agreement—extends to the question of whether the release Butler signed

encompassed his claims against other shareholders and the corporation. According to

Thomsen, even though that question is critical to Butler's malpractice claim against him,

it is a discrete dispute subject to arbitration, and Thomsen can invoke arbitration even

though he is a nonsignatory to the White settlement agreement.

       We review the decision on a motion to compel arbitration de novo.9 A trial court's

determination regarding the arbitrability of a dispute is also reviewed de novo.10

       "Washington law vests courts with the power to determine 'whether... a

controversy is subject to an agreement to arbitrate.'"11 "The arbitrability of a dispute is

determined by examining the arbitration agreement between the parties."12 "Although it

is the court's duty to determine whether the parties have agreed to arbitrate a particular

dispute, the court cannot decide the merits of the controversy, but may determine only



       9 Saleemi v. Doctor's Assocs.. Inc.. 176 Wn.2d 368, 375, 292 P.3d 108 (2013);
Wiese v. CACH, LLC, 189 Wn. App. 466, 473, 358 P.3d 1213 (2015).
       10 Heights at Issaquah Ridge. Owners Ass'n v. Burton Landscape Grp., Inc., 148
Wn. App. 400, 404, 200 P.3d 254 (2009).
       11 Saleemi, 176 Wn.2d at 376 (quoting RCW 7.04A.060(2)).
      12 In re Marriage of Pascale. 173 Wn. App. 836, 842, 295 P.3d 805 (2013) (citing
Heights, 148 Wn. App. at 403).
No. 74258-2-1/6


whether the grievant has made a claim which on its face is governed by the contract.'"13

"Ifthe reviewing court 'can fairly say that the parties' arbitration agreement covers the

dispute, the inquiry ends because Washington strongly favors arbitration.'"14

       "In interpreting an arbitration clause, the intentions of the parties as expressed in

the agreement control."15 This court follows the "objective manifestation theory" of

contract interpretation, focusing on the "reasonable meaning of the contract language to

determine the parties' intent."16 In Washington, the intent of the parties to the

agreement may be discovered not only from the actual language of the agreement but

also from "'the contract as a whole, the subject matter and objective of the contract, all

the circumstances surrounding the making of the contract, the subsequent acts and

conduct of the parties to the contract, and the reasonableness of the respective

interpretations advocated by the parties.'"17

       The arbitration clause in the White settlement agreement provided that "[a]ny

dispute arising out of this Agreement shall be settled by arbitration before Judicial

Dispute Resolution ('JDR') in Seattle, using Paris Kallas or a single arbitrator as agreed


       13 Heights, 148 Wn. App. at 405 (quoting Peninsula Sch. Dist. No. 401 v. Pub.
Sch. Employees of Peninsula. 130 Wn.2d 401, 413, 924 P.2d 13 (1996)).
     14 Pascale, 173 Wn. App. at 842 (quoting Davis v. Gen. Dynamics Land Svs..
152 Wn. App. 715,718, 217 P.3d 1191 (2009)).
       15 Tacoma Narrows Constructors v. Nippon Steel-Kawada Bridge. Inc.. 138 Wn.
App. 203, 216, 156 P.3d 293 (2007).
       16 Viking Bank v. Firgrove Commons 3. LLC. 183 Wn. App. 706, 712-13, 334
P.3d 116 (2014); Berg v. Hudesman. 115 Wn.2d 657, 663, 801 P.2d 222 (1990) ("The
cardinal rule with which all interpretation begins is that its purpose is to ascertain the
intention of the parties.'" (quoting Corbin, The Interpretation of Words and the Parol
Evidence Rule, 50 Cornell L. Quar. 161, 162 (1965))).
      17 Tanner Elec. Co-op. v. Puoet Sound Power & Light Co., 128 Wn.2d 656, 674,
911 P.2d 1301 (1996) (Quoting Scott Galvanizing. Inc. v. Nw. Enviroservices. Inc.. 120
Wn.2d 573, 580-81, 844 P.2d 428 (1993)).


                                                6
No. 74258-2-1/7


by the Parties."18 The settlement agreement specifically defined "the Parties" to consist

of "Shadrach White (individually and on behalf of his marital community), ImageSource,

Inc., a Washington corporation ('ImageSource'), Terry Sutherland ('Sutherland'),

Terrence Butler ('Butler') and Victor Zvirzdys ('Zvirzdys') (each individually and on

behalf of their respective marital communities), and CloudPWR LLC, a Washington

limited liability company (collectively, "the Parties")."™

       We are unpersuaded by Thomsen's contentions. First, the objective

manifestation of intent in signing the arbitration clause is not so broad that "any dispute"

includes a critical portion of a legal malpractice claim based on the theory that Thomsen

drafted an overbroad release clause.20 The provisions for selecting an alternative

arbitrator are entirely inconsistent with Thomsen's broad reading of the arbitration

clause. The parties, as defined in the settlement agreement, agreed to use Paris Kallas

as the arbitrator, "or a single arbitrator as agreed by the Parties."21 If Thomsen is
correct that the arbitration clause extends to a portion of Butler's malpractice claim

against him, then the settlement agreement would contemplate his participation in the
selection of an arbitrator. And the lack of any role in that selection is an objective

manifestation of intent that no portion of the malpractice claim is subject to arbitration.


       18 CP at 68.
       19 CP at 64 (emphasis added). Thomsen concedes he is not a party to the
settlement agreement. Reply Br. at 1.
       20 See Nelson v. Westport Shipyard. Inc.. 140 Wn. App. 102, 113-14, 163 P.3d
807 (2007) (disputes "arising out of this Agreement" is "much narrower" than disputes
"arising from or relating to this Agreement"); Wiese. 189 Wn. App. at 477 ("an arbitration
provision that encompasses any controversy 'relating to' a contract is broader than
language covering only claims 'arising out' of a contract" (quoting McClure v. Tremaine.
77 Wn. App. 312, 314-15, 890 P.2d 466 (1995))).
       21 CP at 68,H19.
No. 74258-2-1/8


       Second, although "Washington has long favored arbitration of disputes, [and]

contract law still provides that 'parties to a contract may determine the specific terms of

the agreement, but. .. the contract provisions are subjectto limitation and invalidation if
they contravene public policy.'"22 An agreement is contrary to public policy if it has a

tendency to be against the public good.23 Even assuming that Thomsen qualifies as a

nonsignatory entitled to invoke arbitration of a client's malpractice claim, there is a
public policy concern. Thomsen represented Butler when he drafted the arbitration

clause he now seeks to invoke.

       An attorney has a fiduciary duty to advise a client of the substance of an
agreement with a third party drafted by the attorney.24 And Washington State Bar's
Ethics Opinion 1670 expressly provides that the inclusion ofan arbitration provision in a
fee agreement requires it be "done only with full disclosure to the client."25 RPC 1.4(b)



       22 Tiart v. Smith Barney. Inc.. 107 Wn. App. 885, 901, 28 P.3d 823 (2001)
(quoting Whitaker v. Spiegel Inc., 95 Wn.2d 661, 667, 623 P.2d 1147 (1981), amended.
95 Wn.2d 661, 637 P.2d 235 (1981)).
       23 jldL at 899.
       24 See Perez v. Pappas. 98 Wn.2d 835, 840-41, 659 P.2d 475 (1983) ("the
attorney-client relationship is a fiduciary one as a matter of law and thus the attorney
owes the highest duty to the client"); accord Versuslaw. Inc. v. Stoel Rives. LLP. 127
Wn. App. 309, 333, 111 P.3d 866 (2005); see also Burien Motors. Inc. v. Balch. 9 Wn.
App. 573, 577, 513 P.2d 582 (1973) ("A fiduciary such as an attorney must exercise
reasonable care. He must protect his client's interest out of a sense of loyalty, good
faith, and duty to exercise reasonable care. Such protection may well involve the duty
to investigate the law and facts applicable to the transaction and to disclose the results
to his clients. The duty is similar to the duty to disclose imposed upon a trustee who
must disclose all material facts concerning the transaction the trustee knows or should
know.").
       25 Washington State Bar Ass'n Advisory Opinion 1670 (1996) (issued before
adoption ofthe amended RPCV see generally Am. Bar Ass'n Comm. on Ethics &ProfI
Responsibility, Formal Op. 02-425 (2002) (emphasizing that the client must be "fully
apprised ofthe advantages and disadvantages ofarbitration" and have "been given

                                               8
No. 74258-2-1/9


provides, "A lawyer shall explain a matter to the extent reasonably necessary to permit

the client to make informed decisions regarding the representation." Comment 5 to the

rule states:


               The client should have sufficient information to participate
       intelligently in decisions concerning the objectives of the representation
       and the means by which they are to be pursued .... For example, when
       there is time to explain a proposal made in a negotiation, the lawyer
       should review all important provisions with the client before proceeding to
       an agreement. . . . The guiding principle is that the lawyer should fulfill
       reasonable client expectations for information consistent with the duty to
       act in the client's best interests, and the client's overall requirements as to
       the character of representation.

"[T]he relationship of attorney-client places upon the attorney the strict duty of full

disclosure."26

              "The relation of attorney and client has always been regarded as
       one of special trust and confidence. The law therefore requires that all
       dealings between an attorney and his client shall be characterized by the
       utmost fairness and good faith, and it scrutinizes with great closeness all
       transactions had between them. So strict is the rule on this subject that
       dealings between an attorney and his client are held, as against the
       attorney, to be prima facie fraudulent, and to sustain a transaction of
       advantage to himself with his client the attorney has the burden of
       showing not only that he used no undue influence but that he gave his
       client all the information and advice which it would have been his duty to
       give if he himself had not been interested, and that the transaction was as
       beneficial to the client as it would have been had the client dealt with a
       stranger."^

       Consistent with his fiduciary duty and the ethics opinion, we conclude Thomsen

had a duty to disclose to Butler that, by signing the agreement with the third party,

Butler was agreeing to arbitration of what might be a critical part of a potential


sufficient information to permit [him] to make an informed decision about whether to
agree to the inclusion of the arbitration provision in the retainer agreement").
       26 Transcon. Ins. Co. v. Faler, 9 Wn. App. 610, 612, 513 P.2d 864 (1973).
      27 In re Beaklev. 6 Wn.2d 410, 423-24, 107 P.2d 1097 (1940) (quoting 7 C.J.S.
Attorney and Client, § 127).
No. 74258-2-1/10


malpractice claim against Thomsen. Absent a showing of some disclosure to Butler at

the time he signed the settlement agreement, we conclude Thomsen is not entitled to

invoke the arbitration clause he drafted.

      The trial court did not err in denying Thomsen's motion to compel arbitration.

                                     Motion to Strike

       Butler moves to strike references in Thomsen's opening brief that are not

supported by the record. Specifically he challenges Thomsen's references to the

dismissal of Butler's remaining claims in Butler v. ImageSource following settlement,

and that Butler had separate counsel review the settlement agreement before Butler

signed it. Neither of those facts are part of the record on appeal. Thomsen does not
satisfy the demanding requirements of RAP 9.11, and judicial notice is not available

under these circumstances. The motion to strike is granted.

       Affirmed.




WE CONCUR:




        I / ^o(^ 0 N/ I-J
                   u
                                                          Ccn^ -



                                            10
