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E-FILED IN COUNTY CLERK'S OFFICE PIERCE COUNTY, WASHINGTON November 08 2012 10:20 AM

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REPLY RE: MOTION FOR RECONSIDERATION Page - 1

The Honorable Judge Johnson KEVIN STOCK Hearing Date: November COUNTY CLERK 9, 2012 Hearing Time:NO: 12-2-12552-5 9:00AM

IN THE SUPERIOR COURT OF WASHINGTON FOR PIERCE COUNTY CITY OF PACIFIC, Petitioner, vs. HERBERT Cy SUN, Respondent. RESPONDENTS REPLY TO PETITIONERS MEMORANDUM IN OPPOSITION TO MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO DISQUALIFY AND MOTION TO APPOINT INDEPENDENT STANDYBY COUNSEL NO. 12-2-12552-5

I. REPLY TO PETITIONERS REQUESTED RELIEF Cy 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 ISSUES 1. Where the Declaration of Professor Strait could not have been produced earlier with reasonable diligence should this Court now consider it in granting Respondents Motion to Reconsider Disqualification and Motion to Appoint Independent Stand-by Counsel? Yes.

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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2. Where Luce, Kenney and Associates were previously discharged by an authorized constituent 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 Court disregard it merely because Petitioner deems it erroneous? No. III. REPLY STATEMENT OF FACTS The facts related to this matter are contained in Respondents prior filings and are incorporated by reference here. IV. REPLY AUTHORITY AND ARGUMENT As 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.

REPLY RE: MOTION FOR RECONSIDERATION Page - 2

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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A. The Declaration of Professor Strait in support of the Motion to Reconsider and Motion 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. In August, 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
REPLY RE: MOTION FOR RECONSIDERATION Page - 3

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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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. (citing Anderson 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
REPLY RE: MOTION FOR RECONSIDERATION Page - 4

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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opportunity has passed, the party is not entitled to submit that evidence. See Wagner Dev., Inc. v, Fid. & Deposit Co., 95 Wn. App. 896, 907, 977 P.2d 639 (1999). The factual record outlined below, however, demonstrates the Declaration of Professor Strait was not something that was earlier available to Counsel with reasonable diligence. Previously, Counsel was under a deadline to note on the Motion for Disqualification for the same date as argument on the Writ of Mandamus before Judge Culpepper. Counsel initially contacted Professor John Strait of Seattle University School of Law in regard to this matter on October 5, 2012. Decl. of Tyler Firkins in Support of Reply to Petitioners Motion to Strike Exhibits dated November 6, 2012, at 2. Professor Strait opined that Kenyon Luce and Luce Kenney & Associates had a conflict of interest involving their representation of the City of Pacific. Counsel asked him at that time to provide a declaration. Id. at 3. Professor Strait indicated he was unable to draft a declaration for our motion by the dates our written materials (Motion to Disqualify) needed to be provided to the Court and Counsel. 5 It was only as of October 16 that Professor Strait actually agreed to provide our office with a declaration of his opinion on this matter. Professor Strait told Counsel he could provide that declaration no sooner than the following Tuesday (10/23/12). Id. at 6. To be heard on the next scheduled court date of 10/19/12, the Motion for Disqualification was due on October 11, 2012. Id. at 4. It was subsequently noted and filed on that date. Id. Our office received responsive briefing from Mr. Luces office and filed a reply on October 18. The motion underlying this motion to reconsider was argued on October 19, 2012. Id. at 7. Professor Straits declaration was not completed by him until

REPLY RE: MOTION FOR RECONSIDERATION Page - 5

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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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.

REPLY RE: MOTION FOR RECONSIDERATION Page - 6

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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B. RPC 1.13 does not shield Luce Kenney and Associates from the disqualifying conflict. 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.
REPLY RE: MOTION FOR RECONSIDERATION Page - 7

The article Petitioner previously provided VAN SICLEN, STOCKS & FIRKINS
A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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entitled (Why the Governments Lawyer May Not Be the Lawyer of the Council or Commission) in an attempt to address the question of who the city attorneys client is when a mayor and council are at odds over legal issues. The article indicates RPC 1.13 does not even conclusively resolve this question. Id. at 3. Nevertheless, the RPC 1.13(b) analysis Petitioner cloaks itself in is not reached. Once Luce Kenney and Associates had been terminated by an authorized actor within the entity (Mayor Sun) they could not be rehired on the basis of the inherent conflict. RPC 1.16 states a lawyer shall not represent a client, or where representation has commenced, shall, withdraw from the representation of a client if the lawyer is discharged. RPC 1.16(a)(3). A lawyer shall not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion. RPC 1.16 at Comment 1

(emphasis added). Also, a client (or authorized actor in the case of an entity in this situation) has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyers services. Id. at Comment 4. The firing by the executive of the City implicated a conflict of interest for the former City Attorney prohibiting him from accepting anew representation of the City following his discharge. Nothing in RPC 1.13 limits a lawyers obligations under RPC 1.16. Comment 6 to RPC 1.13. Nothing in RPC 1.13 allows an attorney to stay on in their representational capacity where there is a conflict of interest. Rather, RPC 1.13(b) provides a series of

preconditions for a lawyer for an organization to report up the chain within the organization to its highest authority actions that are ultra vires, unlawful, and/or likely to result in substantial injury to the organization. Under RPC 1.13(b) a lawyer: shall refer the matter to
REPLY RE: MOTION FOR RECONSIDERATION Page - 8

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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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)
REPLY RE: MOTION FOR RECONSIDERATION Page - 9

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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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 and constitutes 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

REPLY RE: MOTION FOR RECONSIDERATION Page - 10

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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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

REPLY RE: MOTION FOR RECONSIDERATION Page - 11

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899