                                                                                                     LEO
                                                                                                  T OF APPEALS
                                                                                                 D VLSI N11

                                                                                  2Q.       3   JUN - 3   N   8: 314
      IN THE COURT. OF APPEALS OF THE STATE OF WASHINGTON
                                                                                   STATE OE WASHINGTON

                                                     DIVISION II                        y




ROBIN           EUBANKS,       ERIN      GRAY, ANNA                                 No. 44969 -2 -1I
DIAMOND, and KATHY HAYES,

                                        Respondents,


           v.



KLICKITAT              COUNTY             and       DAVID                       PUBLISHED OPINION
BROWN,


                                        Appellants.




           MAXA, J. —      David Brown and Klickitat County appeal the trial court' s denial of their

motion to disqualify Thomas Boothe, counsel for Robin Eubanks, Erin Gray, Anna Diamond,

and   Kathy      Hayes ( collectively " the     plaintiffs ")   in their sexual harassment suit against Brown.


The trial court ruled that even though Boothe was Brown' s former attorney he was not

disqualified      under   Rule   of   Professional Conduct (RPC) 1. 9       or   RPC 1. 18. We do not reach the


merits of Brown' s disqualification motion because we hold that Brown waived any right to

require Boothe' s disqualification because of the delay in filing his motion to disqualify.

Accordingly, we affirm.

                                                          FACTS


Brown' s Communications With Boothe


           Brown, who at the time was a deputy prosecuting attorney for Klickitat County, decided

to   run   for Klickitat   County Prosecuting Attorney            in the 2010   election.         As Brown    was   preparing
No. 44969 -2 -II



to announce his candidacy, he became concerned with legal issues surrounding his decision to

run   for   office.   One   of   his   concerns related   to the Hatch Act, 5 U. S. C. §§ 1501 -08, which restricts



the political activities of individuals running for political office when they are employed in

government positions that receive federal grant funds. Brown also was concerned about his

rights as an at -will employee because another candidate for the prosecuting attorney position had

been fired after she announced her candidacy.

            In May 2010, Brown contacted Boothe, an attorney with employment law expertise, for

advice. During the month of May, Brown and Boothe had several telephone conversations and

exchanged numerous emails. The communications focused on the legal implications of Brown' s

decision to run for prosecuting attorney and other matters regarding Brown' s employment.

            In May 2010, Brown announced his candidacy to the public. A few days later,

prosecuting attorney' s office employees Eubanks and Gray filed a grievance accusing Brown of

inappropriate conduct. On June 12, Brown called Boothe and talked with him for approximately

15 minutes. According to Brown, he informed Boothe that the allegations had been made.

Boothe denies that he and Brown ever discussed the grievance.


            On June 23, Brown emailed Boothe, forwarding links to two articles quoting Brown on

the Hatch Act issues he was raising. Brown did not mention the grievances in the email. That

email was the last contact between Brown and Boothe until 11 months later. Boothe never sent

Brown a retainer letter, and did not bill him for their communications.




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No. 44969 -2 -1I


Boothe 's Representation of the Plaintiffs

        In December 2010, Eubanks and Gray filed a sexual harassment lawsuit against Brown.

At that time, they were represented by two other attorneys. In June 2011, Boothe was contacted

about serving as counsel for Eubanks and Gray. He investigated whether he had a conflict of

interest based on his communications with Brown in 2010 and concluded that there was no


disqualifying conflict that precluded him from representing Eubanks and Gray.

        On July 13, Boothe sent a letter to Brown' s counsel about becoming involved in the case

and describing his earlier contacts with Brown. Brown' s counsel told Boothe that Brown

believed there was a conflict of interest because Brown and Boothe had had an attorney -client

relationship the previous year. Boothe disagreed. In a letter to Brown' s attorney, Boothe stated:

        Because the Hatch Act is      outside of   my   practice area ...   I explained that I was the
        wrong person to call for assistance. Nonetheless, Mr. Brown and I discussed it a
        few times after he said he would just welcome thoughts from an outside attorney.
        I   never represented   him   or gave   any   advice of   any kind.   We were, instead, two
        colleagues conversing.


Clerk' s Papers ( CP) at 25 -26. Boothe also stated that he had conferred with both the Washington


State Bar Ethics Hotline and private counsel regarding his ethical obligations. Boothe formally

substituted as counsel on   July   28, 2011.    Diamond and Hayes later were added as plaintiffs.


        The litigation proceeded with Boothe representing the plaintiffs. Over the next 16

months, the parties engaged in document production and discovery and were involved in an

appeal regarding whether venue was proper in Clark County. Boothe recorded more than 450

hours of time and his paralegals recorded over 675 hours on the litigation. During this period

Brown did not mention his claim that Boothe had a conflict of interest or suggest that Boothe




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No. 44969 -2 -II



should be disqualified. Only after the parties started taking depositions in November 2012 did

Brown raise the issue again, taking the position that Boothe had a disqualifying conflict.

Motion to Disqualij) Boothe

        In January 2013, Brown moved to disqualify Boothe. Brown claimed that he had an

attorney -client relationship with Boothe in 2010 and that he shared confidences with Boothe

about the claims being brought against him in the sexual harassment suit. Brown argued under

RPC 1. 9( a) that Boothe must be disqualified because he was representing clients in the same or

substantially related matter in which his clients' interests were materially adverse to Brown.

Brown further argued that even if an attorney -client relationship did not exist, Boothe owed

duties to him as a prospective client under RPC 1. 18. The County joined in Brown' s motion to

disqualify Boothe.

        The plaintiffs opposed the motion, asserting that there was no attorney -client relationship

because, among other reasons, Boothe gave no legal advice and there was no retainer or

engagement letter. The plaintiffs further argued that there was no relationship between Brown' s

inquiry regarding the Hatch Act and employment law issues and the plaintiffs' sexual harassment

claim, and that there was no evidence that confidential information was communicated.


        The trial court denied Brown' s motion to disqualify Boothe, concluding that even

assuming the truth of Brown' s version of events, disqualification was not required under RPC

1. 9( a) or RPC 1. 18. We granted Brown' s and the County' s motion for 'discretionary review.

                                            ANALYSIS


        The plaintiffs argue that Brown waived his right to require Boothe' s disqualification


because of excessive delay in bringing the motion. Although the plaintiffs argued waiver below,


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No. 44969 -2 -
             II



the trial   court      did   not address    this   argument and    instead     ruled on   the   merits.   However, " we   can




affirm a trial court on any alternative basis supported by the record and pleadings, even if the

trial   court    did   not consider    that   alternative."      Champagne v. Thurston County, 134 Wn. App. 515,

520, 141 P. 3d 72 ( 2006), aff'd, 163 Wn.2d 69, 178 P. 3d 936 ( 2008).                           We hold as a matter of law


that Brown waived his right to move for Boothe' s disqualification. Accordingly, we need not
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reach    the    merits of     Brown'   s   disqualification    motion.




            Our Supreme Court has stated that the " failure to act promptly in filing a motion for

disqualification may            warrant    denial    of [the] motion."        First Small Bus. Inv. Co. v. Intercapital


Corp., 108 Wn.2d 324, 337, 738 P. 2d 263 ( 1987).

             A motion to disqualify should be made with reasonable promptness after a party
            discovers the facts        which       lead to the   motion.      This court will not allow a litigant
            to delay filing a motion to disqualify in order to use the motion later as a tool to
            deprive his opponent of counsel of his choice after substantial preparation of a
            case has been completed."


First Small Business, 108 Wn.2d at 337 ( quoting Cent. Milk Producers Coop. v. Sentry Food

Stores, Inc., 573 F. 2d 988, 992 ( 8th Cir. 1978)). "                   Delay in filing [a] motion to disqualify is

suggestive of its use for purely tactical purposes and could be the sole grounds for denying a

motion      to   disqualify." In re Firestorm 1991, 129 Wn.2d 130, 145, 916 P. 2d 411 ( 1996).

            The combination of three factors compels our conclusion that Brown waived any right to

require Boothe' s disqualification. First, Brown' s delay in filing the motion to disqualify was

excessive. Boothe notified Brown that he was substituting as counsel for the plaintiffs in July


1
 The County joined Brown' s motion to disqualify Boothe and filed its own motion for
discretionary review. However, there is no claim that the County was Boothe' s client or has an
independent basis for seeking Boothe'                  s   disqualification.      As a result, Brown' s waiver of his
right to require Boothe' s disqualification also precludes a non -client like the County from
pursuing Boothe' s disqualification.
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No. 44969 -2 -II



2011.   Although Brown immediately claimed that Boothe had a conflict of interest, he did not

move for disqualification until January 2013, 18 months after he received notice of Boothe' s

representation of the plaintiffs. In fact, after initially raising the issue, Brown did not even

mention the possibility of disqualification for the next 16 months. In Firestorm, our Supreme

Court indicated that a nine month delay in filing a motion to disqualify was significant in

evaluating whether disqualification was warranted as a sanction for inappropriate ex parte
contact with a witness.      129 Wn.2d at 144 -45. Brown waited twice that long before bringing his

motion to disqualify.

        Second, Boothe had engaged in extensive litigation activities on behalf of his clients


before Brown filed the motion to disqualify. Although the appellate record does not contain

much detail regarding these activities, the parties exchanged written discovery, argued discovery

motions in November 2011, and after that engaged in " eleven months of discovery struggles and

document   production."      CP at 97 -98. Brown also moved to compel production of the plaintiffs'


counseling and psychotherapy records in November 2012. In November 2012, the parties

scheduled depositions of the four plaintiffs, Brown, and another witness, and after two days of

                                                                       2
these depositions Brown       raised   the   disqualification issue.       During this time, Boothe recorded

more than 450 hours of time and his paralegals recorded over 675 hours on the litigation. Boothe

also advanced over $    10, 000 in litigation costs. Our Supreme Court in Firestorm found




2
 While discovery was ongoing Brown also appealed the trial court' s ruling that venue was
proper in Clark County. We accepted discretionary review and affirmed, and the Supreme Court
subsequently granted Brown' s petition for review. Eubanks v. Brown, 170 Wn. App. 768, 285
P. 3d 901 ( 2012),   review granted,     176 Wn.2d 1026, 301 P. 3d 1047 ( 2013).          The appeal still is

pending in the Supreme Court. It appears that separate appellate counsel is representing the
plaintiffs in this appeal.

                                                          6
No. 44969 -2 -II



significant that counsel had expended over 640 hours and incurred litigation expenses during the

period that the opposing party delayed in filing a motion to disqualify. 129 Wn.2d at 144 -45.

        Third, the plaintiffs would suffer prejudice if Boothe was disqualified. Although there is

no evidence that substituting new counsel for Boothe will affect the outcome of the case, the

record shows that disqualifying him may have a significant psychological impact on the

plaintiffs. Boothe emphasized the plaintiffs' emotional fragility. In his declaration Booth stated

that the three plaintiffs who had been deposed before Brown filed the motion to disqualify

suffered stress reactions   during    the depositions —one         cried throughout the deposition and needed


12 breaks to compose herself; the second burrowed her shoulder into Boothe' s for security and

needed two breaks; and the third was short of breath, panicked and shaking, and needed four

breaks. Boothe claimed that the development of trust in him over 18 months was especially

important for the plaintiffs, and that having to bring in new counsel would be " devastating" for

them. CP   at   101.   Brown did not attempt to rebut this testimony.

        We see no indication.that Brown delayed filing the motion to disqualify for tactical

reasons. In fact, Boothe made it a point to emphasize the professionalism of Brown' s counsel

throughout the case. Brown' s explanation was that he delayed filing the motion to disqualify

because Boothe had suggested in a July 2011 letter that the plaintiffs might dismiss Brown from

the lawsuit if Brown prevailed on the venue matter. Therefore, Brown did not want to bring the

motion while the appeal of the venue matter was pending. In addition, Brown stated that Boothe

threatened that if Brown     raised   the   conflict   issue he   would " make   it   a war."   CP at 484. In order


to avoid a contentious dispute and with the hope that Brown would be dismissed and the issue

avoided, Brown delayed filing the motion to disqualify.


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No. 44969 -2 -II



           Delaying the filing of what is expected to be a contentious motion to disqualify based on

a hope that the issue will resolve itself may be understandable in certain situations, and initially

may have been the prudent course of action here. However, when the attorney subject to

disqualification is actively involved in ongoing litigation, a party cannot continue on this course

of action indefinitely. At a certain point before that attorney engages in extensive litigation work

a party must decide whether to move forward with the motion to disqualify or to waive the right

to disqualify. Under the circumstances here Brown should have moved for disqualification far

earlier.




           We hold that Brown waived the right to have Boothe disqualified by waiting 18 months

and by allowing Boothe to participate in extensive litigation activities before filing the motion to

disqualify, particularly when disqualification after that delay would prejudice the plaintiffs.

Further, because the County is a non -client, Brown' s waiver also precludes the County from

pursuing Boothe' s disqualification.

           We affirm.




We concur:




F   ORS      N, AdJ




LL., J




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