Reply Re Reconsideration

7/30/2019 Reply Re Reconsideration

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30 REPLY RE: MOTION FOR RECONSIDERATIONPage - 1

VAN SICLEN,STOCKS &FIRKINSA Professional Service Corporation

721 45th Street N.E.

Auburn, WA 98002-1381

(253) 859-8899

The Honorable Judge Johnson

Hearing Date: November 9, 2012

Hearing Time: 9:00AM

IN THE SUPERIOR COURT OF WASHINGTON FOR PIERCE COUNTY

CITY OF PACIFIC,

Petitioner,

vs.

HERBERT Cy SUN,

Respondent.

NO. 12-2-12552-5

RESPONDENTS REPLY TO

PETITIONERS MEMORANDUM INOPPOSITION TO MOTION FOR

RECONSIDERATION OF ORDER

DENYING MOTION TO

DISQUALIFY AND MOTION TO

APPOINT INDEPENDENT

STANDYBY COUNSEL

I. REPLY TO PETITIONERS REQUESTED RELIEFCy Sun by and through his attorneys, Van Siclen, Stocks and Firkins, and replies to

Petitioners memorandum in opposition to Mayor Suns motion for reconsideration and

motion for the appointment of stand-by counsel. This reply is based on the cited authorities, as

well as the records and files herein.

II. REPLY STATEMENT OF ISSUES1. Where the Declaration of Professor Strait could not have been produced earlier with

reasonable diligence should this Court now consider it in granting RespondentsMotion to Reconsider Disqualification and Motion to Appoint Independent Stand-by

Counsel? Yes.

E-FILED

IN COUNTY CLERK'S OF

PIERCE COUNTY, WASHIN

November 08 2012 10:20

KEVIN STOCK

COUNTY CLERK


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Auburn, WA 98002-1381

(253) 859-8899

2. Where Luce, Kenney and Associates were previously discharged by an authorizedconstituent of the entity, can they resume representation and claim RPC 1.13 as a

shield for their actions outside of the entity? No.

3. Where the expert opinion of an authoritative source is proffered, should the Courtdisregard it merely because Petitioner deems it erroneous? No.

III.REPLY STATEMENT OF FACTSThe facts related to this matter are contained in Respondents prior filings and are

incorporated by reference here.

IV.REPLY AUTHORITY AND ARGUMENTAs opposing counsel states, Respondent cited to CR 59(a)(1), (7) and (9) in support of

his Motion to Reconsider. To be clear, it is the position of Respondent the Court erred in

denying the underlying Motion to disqualify Luce Kenney and Associates. Pursuant to

CR59(a)(1) Respondent asserts the Courts application of the RPCs in denying the Motion to

Disqualify was irregular. Pursuant to CR59(a)(7) Respondent asserts the Courts prior ruling

was not supported by the evidence or reasonable inferences therefrom to justify the decision,

and that it was contrary to law. Finally, pursuant to CR59(a)(9) Respondent asserts

substantial justice was not done by the Courts prior ruling. Put succinctly, the circumstance

of Luce Kenney and Associates representing the City in suing the Mayor, while at the same

time having a continuing obligation as City Attorney to advise the Mayor and the Mayors

office, has not been remedied. The actions of the firm acting as City Attorney prevent the

Mayor from effectively having a City Attorney. Counsel additionally addresses CR59(a)(4)

and its application to the declaration recently provided to the Court below.


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Auburn, WA 98002-1381

(253) 859-8899

A. The Declaration of Professor Strait in support of the Motion to Reconsider andMotion to Appoint Stand-by Counsel does not constitute new evidence of the kind

that with reasonable diligence could have been produced previously.

CR 59 provides grounds for reconsideration. CR59(a)(4) provides:

On the motion of the party aggrieved, a verdict may be vacated and a new trial

granted to all or any of the parties, and on all issues, or on some of the issues when

such issues are clearly and fairly separable and distinct, or any other decision or order

may be vacated and reconsideration granted. Such motion may be granted for any one

of the following causes materially affecting the substantial rights of such parties: (4)

Newly discovered evidence, material for the party making the application, which

he could not with reasonable diligence have been discovered and produced at the

trial.

(emphasis added).

It is the Respondents position the Declaration of Professor Strait does not constitute

new evidence previously available through reasonable diligence. In general, an issue may

be raised in a motion for reconsideration when the issue is closely related to an issue

previously raised and no new evidence is required. August v. U.S. Bancorp, 146 Wn. App.

328, 347, 190 P.3d 86 (2008). Nonetheless, in a motion for reconsideration, a plaintiff

cannot propose new case theories that could have been raised before entry of an adverse

decision. Wilcox v. Lexington Eye Inst., 130 Wn. App. 234, 241, 122 P.3d 729 (2005).

Mayor Sun is not proposing any new case theories. There is a conflict pursuant to the RPCs,

specifically 1.7, 1.13 and 1.16, involving the City Attorney of the City of Pacific. That was

the subject of the prior briefing and argument. That remains the substance of the Motion to

Reconsider. That is the subject of the Declaration of Professor Strait.

InAugust, 146 Wn. App. 328, no prejudice was found by the Court hearing a motion

to reconsider on a new theory based on closely related issues and where no new evidence was


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Auburn, WA 98002-1381

(253) 859-8899

required. There, the trial court had dismissed on summary judgment August's lawsuit against

U.S. Bancorp for its alleged mismanagement of several family trusts and estates. Id. at 336

37, 339, 190 P.3d 86. The trial court also denied August's motion for reconsideration, which

was based on a new theory of liability. Id. at 339, 346, 190 P.3d 86. On appeal, the bank

argued that August could not introduce the new theory in a motion for reconsideration. Id. at

346, 190 P.3d 86. The court of appeals held otherwise for two reasons. Id. at 34647, 190

P.3d 86. First, [i]n the context of summary judgment, unlike in a trial, there is no

prejudice if the court considers additional facts on reconsideration. Id. at 347, 190 P.3d 86

(citing Chen v. State, 86 Wn.App. 183, 192, 937 P.2d 612 (1997)). Second, generally even

after a trial an issue may be raised in a motion for reconsideration when it is closely related to

an issue previously raised and no new evidence is required. Id. (citingAnderson v. Farmers

Ins. Co., 83 Wn.App. 725, 734, 923 P.2d 713 (1996)

The Declaration of Professor Strait is based on the record and arguments the Court

already has before it. It does not constitute new evidence in the sense of including much (if

any) novel information. Rather, it is an analysis of issues previously put before this Court

with regard to the conflict of interest here at issue. There is no discernible prejudice to

opposing counsel in providing this analysis at this time where they have a full and fair

opportunity to respond. The Declaration of Professor Strait is closely related to the issues

previously raised. It is an analysis reliant upon the existing factual record before the Court.

Even if the Court is inclined to view the Declaration Professor Straits as new and

novel, the declaration was simply not available through reasonable diligence for inclusion

with the underlying briefing. Indeed, if evidence was available but not offered until after the


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Auburn, WA 98002-1381

(253) 859-8899

October 25. Id. at 8. Our Motion to Reconsider and Motion to Appoint Stand-by Counsel

was filed on October 29, 2012. Id. at 8.

Furthermore, this declaration was offered to the Court not only to support the Motion

to Reconsider, but also to support the newly-raised Motion for Appointment of Stand-by

Counsel that was contained in the prior filing. The Court had previously ruled that Mayor

Sun was entitled to representation on this matter only (the writ of mandamus proceeding).

That is an independent basis for the Court to consider the declaration. Therefore the

declaration is properly before the Court, even if only for purposes of the secondary motion.

Counsel did not begin its representation of Mayor Sun with the understanding that the

individual acting as City Attorney and his firm had an unwaivable conflict of interest

requiring their withdrawal or disqualification. When that issue became clear, Counsel

reasonably and timely sought an expert opinion. Professor John Strait is a unique resource

with regard to interpretation of the RPCs in this state. Counsel is unaware of another

individual possessing the same authority upon this topic. Professor Straits curriculum vitae

and CLEs he has given (previously provided) demonstrate the unique nature of the expert

opinion he can provide to this Court on this topic. Concomitant to his authority in this area,

Professor Strait is very busy with teaching, lecturing, and providing expert opinions to others.

Counsel exercised entirely reasonable diligence in efforts to contact Professor Strait for

expert assistance in this matter once the issue of Mr. Luce and his firms conflict of interest

reared its head and was fully apparent. Quite simply, Professor Strait could not analyze the

issues and provide a declaration any earlier than he has done.


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Auburn, WA 98002-1381

(253) 859-8899

B. RPC 1.13 does not shield Luce Kenney and Associates from the disqualifyingconflict.

The Petitioner continues to rely upon RPC 1.13 for the proposition that because they

represent only the entity of the City of Pacific and not the Mayor any issue of any conflict of

interest is obviated or nonexistent. This ignores RCW 35.23.111, which describes the duties of

the City Attorney to advise and represent city officers. To the extent that RPC 1.13 may

conflict (in this circumstance) with RCW 35.23.11, the RCW should control.

Moreover, the essence of the attorney/client relationship is whether the attorney's

advice or assistance is sought and received on legal matters. See 1 R. Mallen & J. Smith

11.2 n. 18; 7 Am.Jur.2d Attorneys at Law 118 (1980). Clearly, a Mayor must seek and

receive advice on legal matters from their City Attorney. The relationship itself need not be

formalized in a written contract, but rather may be implied from the parties' conduct. In re

McGlothlen, 99 Wash.2d 515, 522, 663 P.2d 1330 (1983). Whether a fee is paid is not

dispositive. McGlothlen, at 522, 663 P.2d 1330. The existence of the relationship turns

largely on the client's subjective belief that it exists.McGlothlen, at 522, 663 P.2d 1330. The

client's subjective belief, however, does not control the issue unless it is reasonably formed

based on the attending circumstances, including the attorney's words or actions. See 1 R.

Mallen & J. Smith 8.2 n. 12; Fox v. Pollack, 181 Cal.App.3d 954, 959, 226 Cal.Rptr. 532

(1986); In re Petrie, 154 Ariz. 295, 299-300, 742 P.2d 796, 800-801 (1987). It is entirely

reasonable where there is statutory authority to that effect for the Mayor to subjectively

believe there is an attorney-client relationship between his office and the City Attorney

warranting a corresponding duty of loyalty. The article Petitioner previously provided


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Auburn, WA 98002-1381

(253) 859-8899

higher authority in the organization, including, if warranted by the circumstances, to the

highest authority that can act on behalf of the organization as determined by applicable law.

RPC 1.13(b). The lawyer shall refer the matter to higher authority in the organization. Id.

There is nothing contained within RPC 1.13(b) that allows a lawyer to report the ultra vires

action or inaction to an outside entity or file suit in Court against a constituent or actor of the

entity. The RPC involves reporting up the chain within the organization not outside of the

organization. Petitioners 1.13(b) analysis also ignores Comment 6 to RPC 1.13, which

states: this Rule does not limit or expand the lawyer's responsibility under Rules 1.8, 1.16,

3.3 or 4.1. (emphasis added).

When Mr. Luce and his firm undertook representation of the City of Pacific, as is

generally true for all entity representation counsel, Mr. Luce had an obligation to remain

neutral in the internal dispute between the City Council and the Mayor and to advise each to

get separate and independent counsel if their positions were irreconcilable. Decl. of

Professor John Strait at 18. Mr. Luce was not free to choose sides, as he clearly did, adverse

to either the City Council or the Mayor. Id. His ethical obligation was to remain neutral in

the dispute and advise what was in the Citys interest were in the abstract to both the City

Council and the Mayor and, if the disputes could not be resolved internally between the

Mayor and the City Council, to refuse to choose sides. Id. By choosing the City Council

over the Mayor, Mr. Luce and his firm violated their obligations to the entity (City of Pacific)

and breached their obligations under RPC 1.13. Id.

Finally, the purpose of citing State ex.rel Steilacoom Town Council v. Volkmer, 73

Wn.App. 89 867 P.2d 678 (1994) and Tukwila v. Todd, 17 Wn.App. 401, 563 P.2d 223 (1977)


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Auburn, WA 98002-1381

(253) 859-8899

previously was to demonstrate an existing framework for how and when a city may hire its own

lawyer and pay for legal services separate from the city attorney when that recourse becomes

necessary (as in the case of a conflict). If extraordinary circumstances exist, such that the mayor

and/or town council is incapacitated, or the town attorney refuses to act or is incapable of acting

or is disqualified from acting, a court may determine that a contract with outside counsel is both

appropriate and necessary. Volkmer, 73 Wn.App. 89, 95.

C. The Declaration of Professor Strait is expert opinion, which stands on its own andconstitutes a correct analysis.

If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may testify thereto in the form of an

opinion or otherwise. ER 702. Professor Strait is such an expert on the issue before this

Court. Accordingly, the Court should be permitted to consider Professor Straits opinion

regardless of Petitioners conclusory and unsupported claim that his expert opinion is

erroneous. Petitioner ignores the extensive credentials of Professor Strait in flatly calling his

opinions erroneous. See Decl. Of Professor Strait at 2-6.

Petitioner claims Professor Straits opinion assumes facts not in evidence. This is

incorrect, and ignores the direct and obvious factual inferences to be drawn from the actions

of the City Attorney. The City Attorney has chosen sides; they filed suit against the Mayor

initially seeking monetary damages. The actions Petitioner undertook in retaining their

employment with the City of Pacific were objectively in furtherance of their own interest for


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Auburn, WA 98002-1381

(253) 859-8899

continued employment with the City following their termination. It is factually incorrect that

Luce Kenney and Associates were lawfully rehired.

Additionally, Petitioner repeatedly refers to an oral ruling by Judge Culpepper that

he was rehired lawfully. Petitioners Memorandum In Opposition et. Al. at p.13. This was

not the issue before Judge Culpepper. Furthermore, this ruling is contained in no writing, and

Counsel for the Respondent has a different recollection of Judge Culpeppers findings on

September 25, 2012. See Decl. of Tyler Firkins In Support of Reply to Petitioners

Memorandum in Opposition to Disqualification dated October 18, 2012, at 7.

V. CONCLUSION

Based on the aforementioned, the Court should grant the previously filed Motion to

Reconsider Disqualification and the Motion to Appoint Independent Standby Counsel and

consider the merits of all exhibits and declarations submitted.

DATED this 8th

day of November, 2012.

VAN SICLEN,STOCKS &FIRKINS

/s/ Tyler K. Firkins

By:_________________________________

Tyler K. Firkins, WSBA 20964

Attorney for Mayor Herbert Cy Sun


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