Ms. Felice Congalton Associate Director WSBA Office of Disciplinary Counsel 1325 Fourth Ave #600 Seattle, WA 98101 April 25, 2012 Dear Ms Congalton: And to the WA STATE SUPREME COURT Representatives is my reply. REGARDING: This letter concerns your dismissal of grievance #12-00493 (Jeffrey Downer) and In my letter to you of April 9, 2012, I made protest to your involvement in this matter for reasons that are argued in grievance 12-00265. Grievance 12-00265 essentially proves that you, Ms. Congalton, and the WSBA are corrupt. In other words, my objection to your dismissal of the grievance filed against Mr. Downer was already anticipated and my objection entered when I raised my protest along with my reply to Downer s excuses. Nevertheless I will add the following in response to the points you raise as justification for dismissing grievance 12-00265. GENERALLY: 1. Neither Ms. Congalton, nor the Bar, has authority to render a statute irrelevant or misstate a statute, specifically misstate RCW 2.48.180(7). 1, 2, 3 As she has done. 4 1 RCW 2.48.180 (7) In a proceeding under this section it is a defense if proven by the defendant by a preponderance of the evidence that, at the time of the offense, the conduct alleged was authorized by the rules of professional conduct or the admission to practice rules, or Washington business and professions licensing statutes or rules. 2 RCW 2.48.210 Every person before being admitted to practice law in this state shall take and subscribe the following oath: I do solemnly swear: I am a citizen of the United States and owe my allegiance thereto; I will support the Constitution of the United States and the Constitution of the state of Washington; I will maintain the respect due to courts of justice and judicial officers; I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land, unless it be in defense
2. Neither Ms. Congalton, nor the Bar, has authority to render a rule of professional 5, 6, 7, 8 conduct irrelevant, 3.3, 3.4, 8.4(a). As she has done. of a person charged with a public offense; I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law; I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compensation in connection with his business except from him or with his knowledge and approval; I will abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any man's cause for lucre or malice. So help me God. 3 RCW 2.48.180 (6) A violation of this section is cause for discipline and constitutes unprofessional conduct that could result in any regulatory penalty provided by law, including refusal, revocation, or suspension of a business or professional license, or right or admission to practice. Conduct that constitutes a violation of this section is unprofessional conduct in violation of RCW 18.130.180. 4 [6] Statutes - Construction - Administrative Interpretation - Effect. An administrative agency cannot amend or alter the plain meaning of a statute by its interpretation and implementation. IN RE GEORGE 90 Wn.2d 90, 579 P.2d 354 5 [7] Courts - Rules of Court - Construction - Rules of Statutory Construction. Court rules are interpreted in the same manner as statutes. STATE v. BLILIE 132 Wn.2d 484, (1997) 6 RPC RULE 3.3 CANDOR TO A TRIBUNAL (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client unless such disclosure is prohibited by Rule 1.6; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (4) offer evidence that the lawyer knows to be false. 7 RPC 3.4FAIRNESS TO OPPOSING PARTY AND COUNSEL A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; 8 RPC 8.4 MISCONDUCT It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; (g) commit a discriminatory act prohibited by state law on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status, where the act of discrimination is
3. Neither Ms. Congalton, nor the Bar, has authority to shelter other attorneys in 9, 10 violating the law or RPCs. As she has done by the very fact of 1 and 2 above. 4. Neither Ms. Congalton, nor the Bar may delegate their powers to either the respondent lawyer or a Judge as that duty rests exclusively with the Supreme court/bar per RCW 2.48.060. 5. Is the Bar itself an unlawful organization? It is. 11 No one outside the Bar, from attorney to Chief Justice, may review or discipline a member of the Bar. The Bar and committed in connection with the lawyer's professional activities. In addition, it is professional misconduct to commit a discriminatory act on the basis of sexual orientation if such an act would violate this Rule when committed on the basis of sex, race, age, creed, religion, color, national origin, disability, or marital status. This Rule shall not limit the ability of a lawyer to accept, decline, or withdraw from the representation of a client in accordance with Rule 1.16; (h) in representing a client, engage in conduct that is prejudicial to the administration of justice toward judges, other parties and/or their counsel, witnesses and/or their counsel, jurors, or court personnel or officers, that a reasonable person would interpret as manifesting prejudice or bias on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status. This Rule does not restrict a lawyer from representing a client by advancing material factual or legal issues or arguments. (i) commit any act involving moral turpitude, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as a lawyer, or otherwise, and whether the same constitutes a felony or misdemeanor or not; and if the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition precedent to disciplinary action, nor shall acquittal or dismissal thereof preclude the commencement of a disciplinary proceeding; (j) willfully disobey or violate a court order directing him or her to do or cease doing an act which he or she ought in good faith to do or forbear; (k) violate his or her oath as an attorney; (l) violate a duty or sanction imposed by or under the Rules for Enforcement of Lawyer Conduct in connection with a disciplinary matter; including, but not limited to, the duties catalogued at ELC 1.5; (m) violate the Code of Judicial Conduct; or (n) engage in conduct demonstrating unfitness to practice law. 9 Id., RPC 8.4 10 RCW 9A.80.010 Official Misconduct. (1) A public servant is guilty of official misconduct if, with intent to obtain a benefit or to deprive another person of a lawful right or privilege: (a) He or she intentionally commits an unauthorized act under color of law; or (b) He or she intentionally refrains from performing a duty imposed upon him or her by law. 11 4] Administrative Law - Delegation of Powers - By Legislature - Validity - Procedural Safeguards - Felony Offense - Second Administrative Look - APA Rule-Making Requirements. For purposes of determining whether there exist sufficient procedural safeguards to uphold a legislative delegation of authority to an administrative agency to define an element of a criminal offense, the agency's action satisfies the requirement of a second look through administrative channels where the agency follows the rule-making procedures of the Administrative Procedure Act (chapter 34.05 RCW) of providing notice of
its members have absolute power to decided for themselves the meaning of the laws that apply to them unlike any other private citizen, business, profession, vocation, 12, 13 non-profit group, or agency. EVIDENCE Ms. Congalton makes these declarations: 1. It does not appear the court has found any impropriety by Mr. Downer. 2. A lawyer may be disciplined only upon a showing by a clear preponderance of the evidence. 3. Ms. Congalton s bare declarations are unsupported by law. 4. The WSBA is conflicted in that Mr. Ellerby and Mr. Mills are associated with the Bar or the Supreme Court. ARGUMENT 1. It does not appear the court has found any impropriety by Mr. Downer. To the extent the WSBA s dismissal is based in some notion that a court must first find an impropriety is unsupported by any rule or precedent and again speaks to the utter nonsense spewed by the WSBA. Said another way, violations of the Rules of Professional Conduct are not necessarily violations of law. RCW 18.235.130 expressly states, The following conduct, acts, or conditions constitute unprofessional conduct (1) The commission of any act involving moral turpitude, dishonesty, or corruption relating to the practice of the person's profession or operation of the person's business, whether the act constitutes a crime or not. Furthermore, The Supreme Court states in HIZEY v. CARPENTER 119 Wn.2d 251, P.2d 646, [1] Attorney and Client Malpractice Basis of Action Ethical Rules. A private cause of action for legal malpractice cannot be based on a violation of the Code of the proceedings, requesting public comment, conducting a hearing, and publishing the results. State v. Simmons 152 Wn.2d 450 451 (Oct. 2004) 12 SECTION 1 POLITICAL POWER. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights. 13 SECTION 12 SPECIAL PRIVILEGES AND IMMUNITIES PROHIBITED. No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.
Professional Responsibility or the Rules of Professional Conduct; neither the CPR nor the RPC sets a standard for civil liability. [2] Attorney and Client Malpractice Proof Ethical Rules. A violation of the Code of Professional Responsibility or the Rules of Professional Conduct may not be used as evidence of legal malpractice. The WSBA s dismissal of grievance 12-00698, against Downer, is improper because Ms. Congalton requires a finding of impropriety from litigation as a prerequisite to disciplinary proceedings. Yet the rules of professional conduct cannot be the bases for litigation. Ms. Congalton has introduced an unsolvable riddle to avoid exercising her public duty and allowing attorney misconduct to go unchecked. Also, this underlying premise, taken by Ms. Congalton, is a defacto delegation to the courts when it is the WSBAs inherent duties. The legislature has given attorney conduct to the Supreme Court as embodied in RCW 2.48.060. And the enforcement of the ethical rules of practice is for the WSBA. Said another way, the Rules of Professional Conduct, passed by the WA Supreme Court, are to be obeyed and the agency delegated the task of enforcement is the WSBA. Otherwise it would mean citizens can never raise a complaint unless it is first litigated but it cannot be litigated because the RPC cannot form a basis for litigation. Id., HIZEY. Ms. Congalton s position is absurd. 2. A lawyer may be disciplined only upon a showing by a clear preponderance of the evidence. To the extent the WSBA s dismissal is based in some notion that a violation of an ethical obligation must be proved by a preponderance of the evidence is unsupported by any rule or precedent and again speaks to the utter nonsense spewed by the WSBA. Said another way, in disciplinary proceedings for violations of the Rules of Professional Conduct, it is upon the lawyer to prove by a preponderance of the evidence that no violation of the RPC has occurred. RCW 2.48.180 (7) states in unambiguous language, In a proceeding under this section it is a defense if proven by the defendant by a preponderance of the evidence that, at the time of the offense, the conduct alleged was authorized by the rules of professional conduct or the admission to practice rules, or Washington business and professions licensing statutes or rules.
Ms. Congalton has reversed the standard of proof and is a violation of law. RCW 2.48.210 states that an attorney use such means that are consistent with truth and honor. Ms. Congalton is in violation of RPC 8.4, which states, It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; et seq. 3. Ms. Congalton s bare declarations are unsupported by law. Ms. Congalton s declarations provide no reasoning by which one can judge if her conclusions are based on untenable grounds, or made for untenable reasons. The WA Supreme Court has held in WILSON v. HORSLEY 137 Wn.2d 500, To constitute a clear abuse of discretion, the court's [WSBA in this instance] decision must be manifestly unreasonable, based on untenable grounds, or made for untenable reasons In RIVERS v. CONF. OF MASON CONTRACTORS 145 Wn.2d 674, (2002) Justice Chambers writes that [an abuse of discretion occurs] if the record is bare of reasoning that would allow us to review the trial court's [WSBA in this instance] reasoning. Ms. Congalton violates the Court s own conditions stated in both WILSON and RIVERS by not providing her reasoning. 4. The WSBA is conflicted in that Mr. Ellerby and Mr. Mills are associated with the Bar or the Supreme Court. The grievance against Mr. Downer, involves the perjured testimony of Scott Ellerby. Scott Ellerby provides service to the WSBA and therefore the WSBA is in conflict; not only in membership that is in common but in a side-by-side association as well. Furthermore, Mr. Mills, as a WSBA hearing officer, and witness in Ellerby s perjury, presents a conflict issue as well.
Conclusion: This grievance epitomizes the very issue of allowing the legal profession to police itself they break their own rules. The dismissal of grievance 12-00493 should be reversed and a special prosecutor appointed due to the parties involved and there association with the WSBA. Ms. Congaltons s conduct should be sanctioned. And Mr. Downer should be investigated for violations perpetrated upon Scheidler in violation of RCW 2.48.210, RCW 9A.72.040 RCW 9A.72.120, RCW 9A.72.050 (Ellerby), RPC 3.3, 3.4, and 8.4. Respectfully submitted on this April 24, 2012, and attest that the foregoing is true. William Scheidler,