fall 2019

Inside Judicial Profiles Celebrating our Legal Community Nuturing the Next Generation Encouraging the DREAM and more... In this issue President’s Message By Steven Masada

President’s Message...... 3 In Gratitude to our Legal Community Like any organization, the Federal Bar Association of the Western District of The Honorable Theresa L. Fricke...... 4 Washington (FBA) is a product of its members and the countless practitioners who volunteered their time and energy to make 2019 another productive year. After four The Honorable Michelle L. Peterson...... 6 decades, the FBA remains one of only two independent federal bar associations in the United States and operates purely on a volunteer basis. That achievement stands as a The Honorable Richard C. Tallman...... 8 testament to this legal community, its cohesiveness, and its willingness to serve one another and promote the practice of law. The Honorable Eric D. Miller...... 10 Over the past year, we welcomed new Coughenour, Marsha Pechman, and of now-retired former Magistrate judges to the bench and bid farewell Richard Jones, moderated by newly Judge James Donohue. This year’s The Honorable James P. Donohue...... 12 to others, some of whom are profiled selected Magistrate Judge Michelle CLE programs included outreach for in this newsletter. The FBA launched a Peterson. Similarly, a May CLE offered pro bono services relating to domestic new website, formed new committees practical guidance from Magistrate violence. The Pro Bono Committee The 2018 FBA-WDWA Annual Dinner Photo Gallery...... 14 to address additional areas of perceived Judges Peterson, Mary Alice Theiler, continued to screen judicial referrals and need, and developed new programs and Brian Tsuchida. In addition, secure counsel for pro se civil litigants. in partnership with the Court. But, other CLEs sought to provide practical Meanwhile, the Federal Civil Rights Youth Law Day...... 20 most of all, the organization simply assistance and address timely topics. Clinic, through its many volunteers continued the work of past years in Topics included How to Become an and Director Tracy Morris, continued Step Up to Serve: Federal Pro Bono Panel...... 21 service to the bench and bar of Western Effective Disability Rights Ally and to offer legal assistance to community Washington. Advocate, domestic violence on tribal members not able to afford an attorney. lands, the #MeToo movement, and the United States Attorney Brian T. Moran...... 22 use of nondisclosure and non-compete “The first installment agreements and their impacts on the “Nurturing future labor market, discrimination, and pay of the program [the generations of legal Past President’s Reception...... 24 equity. The year-end CLE, scheduled Litigation Academy]... in conjunction with the annual practitioners and offers participants a full- dinner, will continue the tradition as The DREAM Program...... 25 distinguished panels will discuss such community leaders of day course on an aspect issues as criminal justice reform and Western Washington of trial practice from a the administrative state. Furthermore, “Save the Date” for the 2019 FBA-WDWA Annual Dinner...... 27 a dedicated committee, co-chaired remains one of the ‘faculty’ of federal judges by Molly Terwilliger and Jamal organization’s primary and distinguished trial Whitehead, in partnership with the District Court, developed a training goals.” attorneys of the region.” program called the Litigation Academy. The first installment of the program, As in previous years, the FBA which is slated for early 2020, offers On the Cover: The Federal Bar Association Newsletter is a publication of the Federal Bar In 2019, the FBA continued its also prioritized youth outreach. participants a full-day course on an Association of the Western District of Washington. Comments and proposed history of offering CLEs that foster Nurturing future generations of legal Federal Bar Association of the Western aspect of trial practice from a “faculty” District of Washington Annual Dinner. articles should be addressed to: relations and familiarity between practitioners and community leaders of federal judges and distinguished the judiciary and practitioners. The of Western Washington remains one trial attorneys of the region. Jessica Andrade Adrienne McKelvey year’s kick-off event, for example, of the organization’s primary goals. In [email protected] [email protected] offered attendees a candid panel The FBA also continued to promote pro March, the FBA hosted Youth Law Day discussion with the Honorable John bono services and meet the challenge (YLD) for the eighth year in a row at (continued on page 5)

Fall 2019 3 The Honorable Theresa L. Fricke The Honorable Theresa L. Fricke By Asti Gallina (continued from page 4)

Poised upon on an ornate chair in the lobby of the Fairmont When she’s not on the bench, Judge Looking back, Judge Fricke enjoyed the Fricke participates in community challenge of being an attorney handling Olympic Hotel, United States Magistrate Judge Theresa L. programs. She is a member of the complex litigation and had not, she Fricke pauses to consider the question posed to her. After a Honorable Robert J. Bryan American says, necessarily imagined she would brief moment she says, “intense.” A first-generation college Inn of Court, where she serves as an end up on the bench. Magistrate judges executive board member and co-chair in the Western District of Washington graduate with an illustrious career dedicated to serving of the outreach committee. She is also work on three-month rotations, the public, it is not hard to see why this is the word Judge a team member on Duke University’s handling pretrial felony criminal Fricke chose to describe herself. Thoughtful and direct, Electronic Discovery Reference Model matters, misdemeanors, and civil cases. project relating to the European General Judge Fricke, attracted to the variety Judge Fricke is passionate about community service and Data Protection Regulation; a topic she of subject matter and opportunity to lifelong education. She strives to approach her judiciary will introduce for a panel presentation serve her community from the bench, at this year’s Ninth Circuit Judicial says that so far, the job has exceeded responsibilities with the same curiosity, intention, and Conference. her expectations. preparation that have distinguished her career thus far. joined the King County Prosecutor’s President’s Message Office as a senior deputy prosecuting (continued from page 3) “Thoughtful and direct, attorney. There, she led the criminal Judge Fricke is passionate division appellate unit and specialized Judge Fricke the Seattle federal courthouse. Thanks through a mix of panel discussions Over the course of four days in April, in Washington Supreme Court practice about community service to a host of volunteers and the and interactive exercises. Among other a total of seven fifth-grade classes while supervising the increasing work to take the long view on the bench. special contributions of Chief Judge things, the students participated in in Seattle and Tacoma learned about and lifelong education.” of the unit. Judge Fricke then spent Elaborating, she says that the exercise Ricardo Martinez and Judge Jones, moot arguments in the trademark civics and the role of the judiciary one year as a staff attorney at the of thinking about cases from the about 60 high school students from infringement matter of McDonald’s directly from judges and lawyers. Washington Court of Appeals, Division II. perspective of an appellate lawyer underserved neighborhoods spent v. McDowell’s, and discussed IP issues In closing, during the past year, illuminates aspects of the case that a full day with judges, lawyers, and involving the works of some of their Judge Fricke was born in Seattle and Judge Fricke credits her time as an the FBA has continued its tradition might need more attention to avoid other professionals, gaining first- favorite bands. raised in Issaquah. She earned a degree appellate lawyer with her tendency of dedication and service to the problems down the road. hand insight into public interest in business administration from the bench, bar, and community. I cannot law, court and law enforcement job University of Washington, where she From 1999 to 2012, Judge Fricke understate my gratitude to the Board, opportunities, and the role of the “In closing, during the also studied communications and “Judge Fricke credits worked as a solo practitioner, primarily Trustees, Committee Co-Chairs, Ninth justice system in civil society. Due to public speaking. Her father became very practicing trusts and estates. But Judge past year, the FBA has Circuit Representatives, the Court, her time as an appellate the event’s success, in 2020, we are ill while she was in law school at the Fricke always kept one foot in public and the many others, both past and expanding the YLD program to host continued its tradition University of Puget Sound (now Seattle lawyer with her tendency service—she served as a pro tem judge present, whose contributions have a second annual event at the Kent University School of Law) and passed in the Pierce County District Court and of dedication and service made the FBA an enduring service to take the long view on Regional Justice Center in partnership away before she became an attorney. worked as a part-time staff attorney organization for 40 years — and, in with the King County Superior Court. to the bench, bar, and Her mother, Judge Fricke recalls with the bench... ‘The exercise for the Washington Pattern Jury turn, the President’s job easy. As well a smile, was misty-eyed at the pomp Instructions Committee. The Pacific Northwest is a creative hub, community.” stated by my predecessor, Cynthia and circumstance of her swearing-in of thinking about cases In 2012, Judge Fricke came full circle both for the arts and for innovation. Jones, it is the momentum created ceremony, which was administered by from the perspective and returned to public sector work In May, the FBA hosted high school Of the youth-oriented events, by those that came before us and the the Washington Supreme Court at the as an Assistant Attorney General. students from the Tacoma and Constitution Day remains one of the hard work on the committee-level that Temple of Justice. of an appellate lawyer Starting with a position representing Highline school districts as part of its most significant undertakings. This largely sustains this organization. I Judge Fricke’s career is marked by illuminates aspects of the Department of Social and Health annual Youth IP Law Day. The program year was no exception, as the program, appreciate the opportunity to serve in her commitment to public service. Services in complex litigation, she later described education and career which caters to younger students, has this great institution and look forward Beginning her career as an Assistant the case that might need represented the Washington State opportunities for students interested continued to expand thanks to the to being a spectator to and beneficiary Attorney General, she worked in the more attention to avoid Department of Transportation advising in technology, entrepreneurship, as contributions of Magistrate Judges of the FBA’s success in 2020 and Corrections Division and was later on compliance with federal programs well as arts/music, and explained Theiler and David Christel, Kymberly beyond. promoted to Chief of the Human problems down the road.’” and litigating construction-related cases. basic intellectual property concepts Evanson, Roger Townsend, and others. Rights Division. In 1990, Judge Fricke

4 FBA - WDWA News Fall 2019 5 The Honorable Michelle L. Peterson The Honorable Michelle L. Peterson By Ben Robbins (continued from page 6)

On March 1, 2019, Michelle L. Peterson was appointed as Washington Law & Politics, and she was listed as one of the Seattle Metropolitan a full-time Magistrate Judge for the U.S. District Court “District Judge Robert Magazine’s Top Women Attorneys for the Western District of Washington, sitting in Seattle. Lasnik commented ‘in in Washington for several years in a row. Before reaching the bench, Judge On August 2, 2019, I had the privilege of interviewing every circumstance, Peterson was also appointed as a special Judge Peterson for this article. Although it was my first Michelle Peterson displays master over two complex putative class time meeting her, Judge Peterson is a familiar face in actions. an excellence that sets Seattle’s federal courthouse, not only as a former law clerk When I asked Judge Peterson what some her at the very top of of her proudest moments in practice were, to District Judge James Robart but also as an experienced her profession. I have she told me about times in trial. Judge white-collar criminal defense practitioner, civil litigator, Peterson had a 2018 trial before Judge no doubt she will quickly Jones in which her client was accused and tireless pro bono advocate. of conspiring to traffic petrochemical achieve that same level Judge Peterson was raised in a working- The defining characteristics of Judge equipment into Iran. After a difficult class family in the roughly ten-thousand- Peterson’s career have been her desire of excellence as a U.S. trial, the jury returned a verdict in favor of her client. Judge Jones described resident town of Bemidji, Minnesota. to serve others and her demonstrated Magistrate Judge.’” After graduating from Seattle Pacific commitment to public service. In Judge Peterson’s use of the implicit bias jury instructions as “the most efficient University, Judge Peterson attended law addition to working as a law clerk for Judge Peterson had similar success in school at the University of Minnesota. two federal judges — first, as a term use of that video during her voir dire in Judge Peterson has also consistently her civil practice. In 2014, she defended a According to her long-time friend and clerk for District Judge Richard Kyle of that trial that I have ever seen . . . I copied dedicated efforts to serving and large bank in a truth in lending jury trial mentor Harold Malkin, Judge Peterson’s the District of Minnesota, and second, the transcript of her voir dire from that improving the bar. After discovering before District Judge Marsha Pechman in Midwestern upbringing imbued her with as a career clerk for Judge Robart — trial and will use it to train other lawyers.” Judge Peterson that most new lawyers did not feel which the jury also returned a favorable a unique combination of a tireless work Judge Peterson consistently dedicated He further commented that Judge confident enough to take federal pro verdict for her client. ethic with conscientiousness and a deep time in her private practice to public people going through difficult times with Peterson “was successful in that case not bono cases, Judge Peterson created a respect for justice. Judge Robart has service. Judge Peterson is especially a disease. She dedicated so much time only because of her voir dire, but because Aside from her professional series of “Introduction to Federal Court” also commented on Judge Peterson’s proud of her five years of service as the to the DREAM program that I’m sure of her overall excellent performance as accomplishments, Judge Peterson has courses to help demystify litigation in Midwestern roots, saying that she Federal Bar Association’s liaison to the her own practice must have suffered at a trial lawyer. As a result, my level of lived broadly and deeply, by both choice federal court. In these courses, judges believes in “that old-fashioned value of Western District of Washington’s Drug times, because she was so dedicated to respect for her as an attorney soared.” and circumstance. She is remarkably and law clerks from the Western District something that is right and something Reentry Alternative Model (DREAM) helping the less fortunate.” active and loves traveling, running, of Washington provided tips and insights that is wrong” and that she embodies Court, in which participants are eligible fishing, and scuba diving. The walls of her into federal practice. Judge Peterson that “particularly Minnesotan tradition to have federal charges dismissed if they chambers conference room are adorned also spearheaded efforts to revise the “Judge Jones described of humility . . . not taking claim for things successfully complete treatment. She with pictures of her family skiing in local civil, criminal, and magistrate judge but instead sharing the credit.” went on to be the chair of the DREAM “After discovering that Judge Peterson’s use of Chamonix, France, on strikingly thin cliff rules as the co-chair of the FBA WDWA Fund Committee to fundraise for this edges. She is a first-generation law school most new lawyers did Local Rules Committee. In this role, unique, life-changing program. District the implicit bias jury graduate and lawyer, wife, mother of she was largely responsible for drafting Judge Richard Jones, who worked not feel confident enough two, former law firm partner, and cancer “For the past five years, the Model ESI Protocol, which is now instructions as ‘the most closely with Judge Peterson on DREAM survivor. When I asked about the most to take federal pro bono regularly used in civil cases throughout she has performed pro Court, described her commitment to the efficient use of that video important lesson she has learned from the District. bono work for countless program as follows: cases, Judge Peterson during her voir dire in that life, she said she has always committed Often heard quoting the mantra “hard to keep showing up and working hard “For the past five years, she has individuals through created a series of work beats talent when talent doesn’t trial that I have ever seen through challenges and after failures. performed pro bono work for countless work hard,” Judge Peterson dedicated DREAM to provide individuals through DREAM to provide ‘Introduction to Federal . . . I copied the transcript As our time drew to a close, Judge an equal amount of effort toward opportunities for individuals to be drug Peterson explained that it was an Court’ courses to help her successful private practice, which opportunities for free and addiction free. She worked on of her voir dire from that exciting time to be a magistrate judge. focused on federal criminal defense, extraordinarily difficult and challenging demystify litigation in As the gatekeepers for government individuals to be drug free government investigations, and complex trial and will use it to train cases while she was voluntarily working search and seizure warrants, magistrate federal court.” civil litigation. Her excellence in practice and addiction free.” with participants, clearly demonstrating other lawyers.’” judges have daily interactions with our was recognized by multiple awards from capacity to work with less fortunate system’s constitutional protections. She

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6 FBA - WDWA News Fall 2019 7 The Honorable Richard C. Tallman The Honorable Richard C. Tallman By Caesar Kalinowski (continued from page 8)

“Know the record.” On my first day in Judge Richard better serve the enormous population Tallman’s chambers, the outgoing clerk gave me this currently entrusted to their bench. And “In 2018, Judge Tallman in 2018, Judge Tallman was honored singular piece of advice with no hint of irony in his voice. with the President’s Award from the Of course I planned to know the record. Former clerks and was honored with the Washington Women Lawyers, King President’s Award County Chapter, for his contribution colleagues, without exception, told me the same thing: Not to empowering the community’s “be familiar with the record” or “have a good grasp of the from the Washington female attorneys. Now, having taken record,” but know it—inside and out. Staring down one senior status and moved to the federal Women Lawyers, courthouse in Coeur d’Alene, Idaho, of my first assigned cases, with an administrative record King County Chapter, Judge Tallman has begun serving a new numbering over 70,000 pages, I was incredulous. But later for his contribution community in need. Despite having during discussions about the case and in oral argument, a new courthouse for over a decade, to empowering the Coeur d’Alene never had a resident Judge Tallman seemingly plucked facts and citations judge until Judge Tallman arrived. community’s female to the record out of thin air. Impressing (and no doubt Excited at the prospect of polishing attorneys.” his trial skills, he immediately offered intimidating) colleagues and advocates alike, one thing his services to the District of Idaho for was very clear during my time in chambers: Judge Tallman “hearings, arraignments, trials … really, whatever they need.” knows the record. Judge Tallman Looking at his contributions to the responsibility for promoting justice community, it’s clear that Judge Although Judge Tallman is now on in their community. I am certain he are not typically exposed to the same secretaries to security to cleaning staff. Tallman feels the same sense of duty senior status, it’s unlikely that much has still learns the stories of every new impassioned testimony as their trial Putting jurisprudential differences to the Pacific Northwest at large. For a or will change. Along with his wonderful colleague on the bench, civil servant court colleagues. They often do not aside, his chambers in Seattle acts as “Recognizing that his decade, he presided over naturalization wife Cynthia—herself a public servant in support, and new lawyer fortunate and have not had to listen to weeping the de facto welcoming committee for ceremonies in Seattle. Relishing and retired police detective of over 28 enough to serve in his chambers. And Circuit is the last chance victims or enraged plaintiffs. But his colleagues and their clerks visiting the opportunity to welcome new years with Seattle Police Department— whenever accusations are raised that Judge Tallman—who originally sought for a calendar. Unsurprisingly, he treats for the tens of thousands citizens, he spoke about the rights and he still (mostly) helps her raise national the government overlooks the plight a district court judgeship—always his clerks in the same manner. Along responsibilities that each new American champion retrievers. I hear from of common citizens, the residents, of litigants each year, relished his time serving others as a with his longtime beloved judicial bears. Even longer still, Judge Tallman current clerks that he still takes every lawyers, and servants of the Ninth trial lawyer. As a Ninth Circuit judge, assistant Alice, Judge Tallman adopts Judge Tallman’s impartial has been a leading voice in support of opportunity to speak at public events, Circuit can be proud and thankful that he brings the same passion for minute each clerk with the same warmth, care, splitting the Ninth Circuit in order to inspiring others to care about and feel Judge Tallman still knows the record. dedication reflects his details and facts that only a party (or and attention befitting a godson or care for their humanity. studious clerk) can normally be counted goddaughter. on to remember. Recognizing that his The Honorable Michelle L. Peterson Every fact matters and Circuit is the last chance for the tens of (continued from page 7) each party is deserving thousands of litigants each year, Judge Tallman’s impartial dedication reflects of his full and undivided “He still takes every described how there is little case law on by a defendant until sentencing. Judge what you are arguing. She is thoroughly his care for their humanity. Every fact the relationship between technology Robart also said that he “understands prepared, an excellent writer, and her judicial attention.” matters and each party is deserving of opportunity to speak at and our constitutional rights and how Judge Peterson’s values and her opinions will be well founded. I am his full and undivided judicial attention. public events, inspiring every single day she feels energized understanding of the law,” and for that quite sure that if she could change her and honored to be on the forefront of reason, he trusts her to produce the right name, she could change it to Michelle But Judge Tallman’s penchant for taking others to care about and an individual interest is not limited protecting these rights. result. B. Affirmed.” Similarly, District Judge Appellate practice and deliberation can Robert Lasnik commented “in every to the parties appearing before him. feel responsibility for When asked for thoughts about Judge Judge Jones had this to say about what often feel stale or antiseptic, far removed circumstance, Michelle Peterson displays Walking into the Circuit’s massive San Peterson, Judge Robart extolled her practitioners in the federal bar should from the gritty facts surrounding a promoting justice in their an excellence that sets her at the very Francisco courthouse with him is like deep passion for the law and personal know about Judge Peterson: “She is crime or controversy. Federal circuit top of her profession. I have no doubt attending an intimate family reunion. community.” commitment to the concept of justice. not afraid to poke you and make you judges, who spend their time reading she will quickly achieve that same level Judge Tallman seemingly knows the He explained that magistrate judges think about your decision in a kind and from cold archives and listening to of excellence as a U.S. Magistrate Judge.” names, children’s names, history, ails, play a crucial role, particularly because funny manner. She will listen to the dry arguments from seasoned counsel, and successes of every employee—from they are often the only judicial face seen argument and press you on the logic of

8 FBA - WDWA News Fall 2019 9 The Honorable Eric D. Miller The Honorable Eric D. Miller By Cynthia Jones (continued from page 10)

When Eric D. Miller started college, he would have said “very Although his legal career began in Washington D.C., he grew up in the confidently” that physics or engineering defined his future. “‘Walking out and feeling Bay area and missed being on the west “Miller argued dozens As an undergrad, the now judge of the U.S. Court of Appeals that I had had no control coast. He met his wife in law school. of cases in the Courts for the Ninth Circuit envisioned a path toward academia They both attended the University of over where the argument Chicago. Teal Luthy Miller – a talented of Appeals, including or research. Until one day, mid-way through college as an was going for the lawyer in her own right – grew up in some relatively high- undergraduate of Harvard, he returned home to California Bellevue, Washington. For all the time profile cases broadcast on for a summer job in the office of a solo practitioner. Over thirty-minutes I was up they spent in D.C., there were many trips cross-country to California and C-SPAN and still, arguing the course of the summer he researched law, instead of there” was an impactful Washington to visit family. Each time physics or engineering, and spent his midsummer days at experience. they returned to the east coast after at the Supreme Court the University of California Hastings College of Law library a home visit, they asked themselves, is ‘a different order of Miller went on to argue “Why do we live here?” rather than a laboratory. He identifies that summer as the experience.’” thirteen more cases for “We’d been telling our friends [in time when his career path veered toward the law. D.C.] for years ‘we’re going back west the Solicitor General’s someday’ but they really didn’t believe We sat down in his chambers on the When asked how his role from advocate us anymore,” he said. 26, 2019, the United States Senate 10th floor of the William K. Nakamura to judge might change, he looked down office for a total of confirmed Miller. Courthouse, in Seattle on a beautiful and thought for a long moment. His fourteen cases during his “We’re westerners,” he added. In fact, Judge Miller when he completed his clerkship for Justice Thomas spoke at his investiture sunny summer afternoon in early brow furrowed slightly, his eyes framed tenure there.” August to discuss his new career on by glasses, then he looked up. be thought of as someone who will listen Justice Thomas and decided to work in in Seattle at the William K. Nakamura the Ninth Circuit. In his chambers, D.C. “I had to take the bar somewhere,” Courthouse as did many other “Justice Thomas often talked about carefully to the parties’ arguments, last occupied by the late Judge Betty he said, so he decided it made sense to dignitaries, including the Chief Judge asking himself the question, ‘What is evaluate them fairly, and write opinions Binns Fletcher, who died in 2012 while take the bar exam in his home state of of the Ninth Circuit Court of Appeals, my role in this case as a judge?’ The role that clearly explain my reasoning and Supreme Court, for which he describes actively serving the court since her 1979 California. Sidney R. Thomas. Toward the end is different from that of an advocate or give the losing party the satisfaction his first appearance there as “terrifying.” appointment to the bench by President of the ceremony, after the “robing” – legislator,” he said. “I think he’s right, that they’ve been heard.” After years of working on the east coast, Jimmy Carter, Miller wore a peach tie Miller argued dozens of cases in the meaning the ritual donning the black that that’s a critical question to ask in Our conversation turned back to his the move back west finally came when and a friendly, if not cautious smile. Courts of Appeals, including some robe officially – assisted with his robe every case. And will influence how I’ll his children were about to start school. early years in the law. relatively high-profile cases broadcast by his parents and children, Judge approach the job.” Both he and Teal agreed that it would on C-SPAN and still, arguing at the Miller took his place with his colleagues “I really enjoyed law school. If you be harder if they waited. So, in 2012, he When asked how he would like to be Supreme Court is “a different order of on the bench. When he spoke to all like law school, the things you can do and Teal moved to Seattle. “I’m hoping I’ll be remembered, as he looks ahead, filling most like law school are teaching and experience.” assembled seated in the courtroom, He accepted a position at the law firm of thought of as someone the shoes of those who came before him, appellate law,” he said, talking about Among the differences, he said, is that the benches in rows, filled with friends, Perkins Coie as a partner and the firm- he again looked down, and thought for his career path that included a clerkship there are more judges, nine to be exact. family members, and members of the who will listen wide chair of Perkins Coie’s appellate a long moment. He crossed one hand with Supreme Court Justice Clarence And they’re better prepared and more legal community, he spoke directly to practice. While there, Miller argued two carefully to the parties’ across his chest and put the other hand Thomas. active than the average judge. his children. They sat front and center to his chin. Then, he raised his head and more cases before the U.S. Supreme looking up at their father from the first “How did it feel to get the call to be a arguments, evaluate gave a studied, thoughtful answer. “Walking out and feeling that I had had Court, for a grand total of sixteen oral row. He looked at them and said of all Supreme Court Law Clerk?” them fairly, and write no control over where the argument arguments before the high court. the important roles in his life, he would “I’ll start by saying the ways I do NOT was going for the thirty-minutes I was “It was an extraordinary honor to get Then, on March 3, 2018, Judge Richard always remember that being their opinions that clearly want to be remembered,” he said. up there” was an impactful experience. to work for someone I really admired.” C. Tallman of Coeur d’Alene, Idaho, father was the most important. He summed it up this way: Not to explain my reasoning and He added that what he learned from the Miller went on to argue thirteen more assumed senior status and a vacancy be a great champion of this cause or justices on the Supreme Court informed cases for the Solicitor General’s office opened on the Ninth Circuit Court of give the losing party the that cause, or a leader of the liberal, his understanding of his role as a judge. for a total of fourteen cases during his Appeals. conservative or moderate wing of the satisfaction that they’ve But it was the Solicitor General’s office tenure there. Ninth Circuit. By July 13, 2018, President Donald that informed more of his professional “It gets better,” he said, “but the Trump announced his intention to been heard.” “I think about what I, as an advocate, development and where he landed his nervousness never entirely goes away.” nominate Miller. And on February wanted from the judges. I’m hoping I’ll first argument at the United States

10 FBA - WDWA News Fall 2019 11 The Honorable James P. Donohue The Honorable James P. Donohue By Adrienne McKelvey (continued from page 12)

“Pro bono work will remind you of why you went to law school program is that it would allow the pro se plaintiffs to obtain an independent in the first place: to change the world,” retired Magistrate “Judge Donohue was evaluation of their claim, and possible Judge James “Jim” Donohue remarks to me on a crisp fall- redress, without requiring everyone to instrumental in expanding like day at a coffee shop in Seattle. “It is remarkable,” he “spend a bundle” on litigation. There and modernizing the Court’s are, the Judge explained, a significant continues, “that lawyers, through judgment, persistence, variety of non-monetary solutions that training, and skills, can change the trajectory of somebody’s pro bono program. He also many litigants want. Many are simply looking for “restoration of dignity.” life. And the work will be as impactful to the lawyer as the worked to educate attorneys litigant.” This is a message that Judge Donohue knows well: Judge Donohue retired from the about the benefits of joining bench in March 2019 after fourteen one that he has learned from experience and one that has years of service to the Court. Though the program and provided shaped his distinguished legal career. he misses his “incredible” former training for volunteers on judicial colleagues and court staff, he Judge Donohue began his legal career and newsworthy clients, including is relishing the reinstatement of what in the Pacific Northwest in public Nintendo in anti-counterfeiting cases, how to represent clients in he calls “his First Amendment rights,” meaning the ability to speak and write service. Shortly after graduating Neil Young in a case involving trade civil rights cases.” from UCLA law school in 1976, secrets, the publisher of the “I Love publicly on issues he is passionate Judge Donohue volunteered for the You” song (made famous by Barney about. Prior to his retirement, he organization VISTA (Volunteers in the Dinosaur), and the Beastie Boys Judge Donohue worked several years to get the Code of Service to America) assigned to Puget in a lawsuit involving counterfeit judges to send requests for pro bono Conduct Committee to issue a formal lives.” She more than kept her part of Sound Legal Assistance Foundation. merchandise. representation to attorney subscribers ruling on the appropriateness of He has also done work locally with the the bargain. One of her children is an He covered the legal needs of rural who could volunteer for cases. He also federal judges participating in or being Northwest Immigrant Rights Project But certain perks of this work electrical engineer, one works for the Pierce County at the time, and worked worked to educate attorneys about the members of the Federalist Society. (“NWIRP”) on political asylum cases, notwithstanding (including backstage United State Air Force, and the other on persuading the Puyallup school benefits of joining the program and On the day he retired, the Committee and intends to continue to doing so passes to a Beastie Boys concert that is a pre-med student. Judge Donohue district to adopt a school breakfast provided training for volunteers on finally issued Formal Opinion 116 during his retirement. It is a strange Judge Donohue’s son Mike enjoyed noted it is always “wonderful to see program. Before his appointment to how to represent clients in civil rights banning such participation by federal animal, he says, “to go from being while the Judge–who is more of a Neil them.” the bench in 2005, Judge Donohue cases. Judge Donohue describes the judges. He then had a subsequent a judge to being a litigator.” But the Young fan himself–enjoyed a Mariners had transitioned into private practice, Judge Donohue’s commitment to public Court’s pro bono program as the best Op Ed published by the Washington attorneys at NWIRP “are patient and game), Judge Donohue says that the focusing on commercial litigation service continued while he served in 94 districts, thanks to the joint Post, highlighting this new opinion. kind, even with an old, retired judge. most significant case of his career and intellectual property issues. on the bench. He was instrumental and overwhelming support of the bar In October 2019 he is heading to an Their sense of dedication is moving.” As involved a pro bono client seeking He represented many interesting in expanding and modernizing the and the bench. There is “nothing that Immigration and Customs Enforcement he did before he retired, he continues political asylum in the United States Court’s pro bono program. The Western a judge hates more than a potentially detention facility 90 miles south of San to urge attorneys to get involved and after they had fled threats from Islamic District of Washington implemented meritorious case when one party is Antonio to work on political asylum volunteer. fundamentalists in Malaysia. Judge a pro bono listserv that would allow not represented” the Judge said. Judge issues with the Refugee and Immigrant “It is remarkable that Donohue succeeded, obtaining asylum Donohue took his experiences with the Center for Education and Legal Service for the woman and her family so they Western District of Washington’s pro organization. lawyers, through judgment, could safely remain in the United bono program and became the chair persistence, training, States. “Judge Donohue describes of the Ninth Circuit Pro Se Litigation Judge Donohue has remained in Committee. and skills, can change the the Court’s pro bono contact with his client and her family Also during Judge Donohue’s tenure, “As he did before he retired, trajectory of somebody’s in the years after representing her. On program as the best in 94 the Court adopted a program of limited one occasion, she invited the Judge and representation, where attorneys could [Judge Donohue] continues life. And the work will be as his wife (and high school sweetheart), districts, thanks to the joint volunteer to provide limited service to urge attorneys to get Tanya Donohue, to dinner. The client and overwhelming support where they would meet with the client, impactful to the lawyer as told the Judge, “Mr. James, you always assist with case pleadings, and help involved and volunteer.” the litigant.” told me to be a good citizen and you of the bar and the bench.” bring the case to early mediation. hold a special place of status in our The benefit of this early mediation home because you have changed our

12 FBA - WDWA News Fall 2019 13 Photo Gallery 2018 Federal Bar Association Annual Dinner

14 FBA - WDWA News Fall 2019 15 Photo Gallery (continued) 2018 Federal Bar Association Annual Dinner

16 FBA - WDWA News Fall 2019 17 Photo Gallery (continued) 2018 Federal Bar Association Annual Dinner

18 FBA - WDWA News Fall 2019 19 Youth Law Day Step Up to Serve: Federal Pro Bono Panel Youth Law Day Expands! By Robert Flennaugh II and S. Kate Vaughan By Claire McNamara and Brett Purtzer

The College Success Foundation (CSF) supports young people from low-income families, students of color, foster youth and first-generation college students to enable them to I barely slept the night before we offered our CLE: “Stepping Up to Serve: Federal Pro finish high school and graduate from college. For the past eight years, the FBA-WDWA Bono Representation” presented by the Western District of Washington Federal Bar Criminal Law Committee has partnered with CSF to host Youth Law Day at the federal Association, Pro Bono Committee. Over 50 people had signed up to learn about how courthouse in Seattle. to serve as pro bono counsel, a number that made me nervous and thrilled as the Committee Co-Chair. The next day, 12 people showed up. I learned later that the CLE Youth Law Day provides students with insight into the role of the justice system was during a regularly packed civil motions calendar, and besides, offering a CLE, for in civil society, and direct access to free, on a sunny Friday in Seattle was begging for folks to skip out. Even so, and even learn about court and law enforcement though the 12 in attendance were enthusiastic, it felt like a missed opportunity—not job opportunities. On March 22, 2019, 60 high school students from only to recruit my own network of friends, but to invite a wider community to engage Seattle and Kent arrived at the Federal with the federal court on a pro bono case. I’d like to extend that invitation to step up again. Courthouse. The day kicked off with a talk by Denise Juneau, Superintendent of Seattle Public Schools, who inspired Taking a pro bono case can be an one case per month (or fewer) for attendees with tales of her educational incredible and unique experience. the last several years, the Judges at journey. Students then participated Frequently, the cases for which the “Taking a pro bono the Western District tell me and my in presentations from Chief Judge Judges decide to appoint pro bono co-chair time and again that they Martinez, Judge Jones, the Federal counsel have survived summary case can allow less would appoint more if they could. Defenders, the U.S. Attorney’s Office, judgment, meaning there is a high experienced attorneys Numerous pro se plaintiffs bring court reporter Nancy Bauer, and the U.S. likelihood that you could go to trial, their cases to the Western District, Marshals. Students enjoyed pizza and and perhaps seek attorney fees later to get into court sooner, asserting serious potential civil rights salad lunch hosted by the FBA-WDWA, on. As civil trials dwindle overall, so in a supported way. If violations, immigration claims, or too do opportunities to practice in employment issues. And although we court—especially it seems for young an attorney accepts have 75 attorneys on our pro-bono attorneys. Taking a pro bono case can appointment to a pro panel, frequently only one (or zero) allow less experienced attorneys to get attorney replies when we send out the into court sooner, in a supported way. bono case, we can match call asking for someone to take a case. If an attorney accepts appointment you with an experienced This hesitation or silence sometimes while participating in presentations chances of completing a college degree to a pro bono case, we can match you and a Q&A session with agents from on-time and with less debt.” case mentor.” confuses me. It feels like we’re in a DEA, FBI, Secret Service, ATF, Fish and Student attendance at this year’s Wildlife, U.S. Postal Inspectors and U.S. program was 20% higher than last year, Probation. The students wrapped up and the ongoing success of the program “Although we have 75 with an experienced case mentor. And “As attorneys, we the day with an afternoon mock trial, has inspired CSF and FBA-WDWA to in taking a case, attorneys can not only presided over by Judge Jones. attorneys on our expressly pledge to launch a second Youth Law Day in 2020 learn about new areas of law, but can Keith Stier-Van Essen, Director of at the Regional Justice Center in Kent. pro-bono panel, learn to handle client management, ‘never reject, from any Programs for CSF spoke at the 2018 King County Superior Court Judge frequently only one (or scheduling and status conferences, consideration personal to FBA Annual Dinner. According to Mike Diaz will host the program on hearings on discovery motions and Keith, “Youth Law Day makes a direct Friday, May 1, 2020. zero) attorney replies dispositive motions, and possibly even myself, the cause of the impact by helping our students find a when we send out the call go to trial long before they might have defenseless or oppressed, career pathway earlier, which drives If you are interested in in their regular practice. asking for someone to or delay unjustly the their motivations to do well in school, supporting the Kent program, The need in the Western District is and reduces the chances they will spin please reach out to Kate Vaughan take a case.” real. Although the Court has only cause of any person.’” their wheels with excessive exploratory at [email protected]. appointed pro bono counsel to around classes in college, increasing their

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20 FBA - WDWA News Fall 2019 21 United States Attorney Brian T. Moran United States Attorney Brian T. Moran By Charlene Koski (continued from page 22)

In his first office-wide meeting as United States Attorney for terrifying, but I loved the trial work,” every tribe in the district – an endeavor he said. Ten years later, he moved to he has found both enjoyable and the Western District of Washington earlier this year, Brian the Attorney General’s office, where he informative. He also serves on Attorney Moran explained that he often communicates through worked for fifteen years, first as Chief General advisory subcommittees on the sharing of anecdotes about his own experiences. And Criminal Prosecutor, then as Chief Native American issues, controlled Deputy Attorney General. In 2013, substances, and marijuana. Through so it was not all that surprising when, toward the end of he moved to the law firm of Orrick, meetings with local law enforcement the interview for this article, he asked if there was time to Herrington, and Sutcliffe. He credits his and others, he has gained an share a quick story. professional success to the excellence appreciation for some of the unique of the Kitsap bar, and the opportunity issues that exist here, especially related He then spoke about Jerry Wager, a in Vermont, then spent a year in so early in his career to work with, and to drug trafficking and border security. thirteen-year-old boy murdered in Colorado skiing and enjoying himself learn from, strong prosecutors and People frequently approach him with 1994, when Brian was still a Kitsap while deciding what to do next. A few defense attorneys. questions about his job, and especially his connection to White House politics. County prosecutor. The boy had been teachers had suggested law school, What Brian found most appealing He insists the two things are separate beaten, then killed by having a paper bag but he had doubts. He was the fifth of about the opportunity to serve as a and that, as long as he holds the stuffed down his throat. The attackers seven children and had grown up in a United States Attorney was the chance position, he hopes to add to the pot of left his broken body in the bushes, and small town in Vermont, just south of to return to mission-driven work and good will that exists in the local legal Brian responded to assist with search the Canadian border. A number of his public service. In his new role, he has community, not detract from it. warrants. He still recalls the gruesome relatives worked for the Border Patrol, prioritized prosecutions of violent and scene. For Brian, the work seems to and Brian was considering a career with U.S. Attorney Brian Moran environmental crimes, and is visiting always come back to the victims. He has that agency or the FBI. He eventually seen them, sat with them, and talked decided he would regret not pursuing a settled in Port Orchard and, for years with them. They are what motivates law degree. now, Brian has commuted to Seattle him, and fighting for them is a big part by ferry, often rising at 4 a.m. to go to Step Up to Serve: Federal Pro Bono Panel When he began looking at schools, of why he loves his job. the YMCA with Eileen before eating (continued from page 21) he immediately turned to the Pacific breakfast and heading out. Northwest. His sister had hiked sections of the Pacific Crest Trail and Brian had Brian began his legal career in insurance time when everyone is directing their with a supervising attorney, plunging been enamored with her photographs of defense, but wanted more courtroom attention, outrage, donations, and yourself into an unfamiliar legal “What Brian found most Washington and Oregon. While living experience. When a friend told him “likes” to the kind of issues our pro se landscape, or working for the first time “Helping someone litigants face, yet we aren’t showing up with someone facing mental illness or appealing about the in Vermont, he had also met someone of an opening in the Kitsap County from Roche Harbor. The town sounded Prosecutor’s Office, he applied, got the to represent them. I also understand. poverty. Do it anyway. As attorneys navigate a federal opportunity to serve as a distant and exotic to Brian, who had job, and started trying cases. “It was Many of us operate under the particular we expressly pledge to “never reject, demand of the billable hour. Taking on a from any consideration personal to claim can teach you United States Attorney spent his entire life in a small east- coast town and first boarded a plane pro bono case may require adding to an myself, the cause of the defenseless technical skills and was the chance to return to his sophomore year of college. Then already barely manageable workload, or oppressed, or delay unjustly the “He credits his professional having an awkward conversation cause of any person.” In essence, we’ve connect you to the mission-driven work and he received a brochure from Seattle University Law School (University of success to the excellence pledged every day to withstand the federal bench and bar. indifference and fatigue which fight public service.” Puget Sound in Tacoma at the time) of the Kitsap bar, and the Beyond that you might featuring a photo of Mount Rainier and fiercely in this work to overtake us. a sailboat. He was sold. opportunity so early in “We’ve pledged every Helping someone navigate a federal also save someone’s life claim can teach you technical skills In law school, Brian met his future wife, his career to work with, day to withstand the while fulfilling your But Brian did not always want to be and connect you to the federal bench Eileen McKain, now an Assistant City a prosecutor. After graduating from and learn from, strong indifference and fatigue and bar. Beyond that you might also promise to ensure the Attorney for the City of Lakewood. Like Middlebury College with degrees in save someone’s life while fulfilling your Brian, Eileen had six siblings, but all prosecutors and defense which fight fiercely in quality of justice in our German and Political Science (if he promise to ensure the quality of justice sisters. To preserve her last name, the could do it again, he would major in in our community. I hope you will. community.” couple gave their daughters, Kate and attorneys.” this work to overtake us.” history), he spent two years as a ski Molly, the last name of McKain. They bum. He worked as a ski instructor

22 FBA - WDWA News Fall 2019 23 FBA-WDWA Past President’s Reception The DREAM Program By Corey Endo and Jennifer Wellman

On October 18, 2018, the Federal Bar Association of the Western District of Washington hosted the inaugural Past President’s Reception. Numerous judges and 17 past presidents Since 2012, this district has been home to a pre-adjudication program known as of the organization attended the event to recognize the FBA’s nearly 40 years of service DREAM (Drug Reentry Alternative Model). DREAM was created to effectively address to this community. Chief Judge Ricardo Martinez and Roger Townsend, who chairs substance abuse through a comprehensive court-monitored program that blends the recently-created Past Presidents Committee, addressed the gathering of judges and treatment and sanction alternatives to incarceration. Because the program provides distinguished FBA alumni. both treatment and for the dismissal of criminal charges for DREAM graduates, it “create[s] the greatest safety for the community, impact[s] the most lives through rehabilitation and save[s] taxpayer dollars in future offender costs.” 1

These goals have been realized over and found ways to demonstrate their the course of the last seven years. To gratitude for the DREAM program. date, 47 participants have graduated “To date, 47 The FBA-WDWA has been a critical from DREAM, at an estimated savings partner in the success of the program. of $5,092,979.46 in incarceration participants have Under the leadership of Past President costs alone.2 While each participant’s graduated from Tessa Gorman, the FBA-WDWA story is unique, their personal stories appointed a representative to help show the transformation that DREAM DREAM, at an DREAM participants address legal allows for. K. came to DREAM on the estimated savings issues that are outside the scope of the heels of enormous personal tragedy, defense counsel’s representation. addicted to methamphetamine, and of $5,092,979.46 facing a guideline sentence of 87- in incarceration 108 months. Throughout her time in DREAM, K. overcame her resistance costs alone.” and skepticism, and rediscovered her “Throughout her time in DREAM, K. love of life and respect for community. overcame her resistance She has now been sober for nearly four “Graduates have not only years, runs a successful business, and and skepticism, and achieved sobriety and continues to bravely address not only rediscovered her love her addiction, but her grief and mental recovery in DREAM, but health. J. came to DREAM having lost of life and respect for his work as a first responder, addicted community. She has have also strengthened to opioids, and facing a guideline familial bonds, secured sentence of 51-63 months. He now been sober for committed himself to his own recovery employment and and to finding a new way to help nearly four years, runs housing, forged new others. He has been sober for more a successful business, than two years and works as a chemical relationships, and found dependency counselor, including with and continues to bravely ways to demonstrate some current DREAM participants. K., address not only her J., and the other graduates have not their gratitude for the only achieved sobriety and recovery in addiction, but her grief DREAM program.” DREAM, but have also strengthened and mental health.” familial bonds, secured employment and housing, forged new relationships,

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24 FBA - WDWA News Fall 2019 25 The DREAM Program (continued from page 25)

The Honorable Michelle Peterson, Under the leadership of Past President Donations to the FBA-WDWA account United States Magistrate Judge, then Roger Townsend and the generosity of earmarked for the DREAM fund an FBA-WDWA member and co-chair of several members of our community, program have been depleted. Please the Local Rules committee, represented the FBA-WDWA also created a DREAM consider donating to the DREAM fund the FBA-WDWA and volunteered fund to help participants avert financial so that we can continue to provide her time to DREAM for the next crises with small grants of money. this support. For more information, four years. Judge Peterson regularly The Probation Department pays for please contact FBA-WDWA Treasurer attended DREAM hearings, assisted treatment and many emergency and Jamie Lisagor, or send your donations participants find counsel to meet their transitional reentry services through today to: Federal Bar Association of needs, and herself helped participants funds made possible by the Second the Western District of Washington, address civil matters. She worked with Chance Act of 2007. However, the PO Box 21006, Seattle, Washington participants on parental and child Second Chance Act imposes limits, and 98111-3006. custody issues, bankruptcy questions, the FBA-WDWA fund helps fill the gap and divorce proceedings. Jaime Hawk created by those limitations. has graciously stepped in for Judge To date, the FBA-WDWA’s DREAM Peterson, continuing the FBA-WDWA’s fund has assisted four participants. invaluable support of the program and One beneficiary needed help when “Donations to the FBA- its participants. The partnership has this past winter’s snowstorms meant allowed DREAM participants to resolve WDWA account earmarked she missed many days of work. She matters that could be barriers to their was at risk of losing utility service for the DREAM fund recovery and long-term success. at the home that she shares with her children and grandchildren. The FBA- program have been WDWA grant meant she was able to depleted. Please consider “The FBA-WDWA also help her keep her utility services on donating to the DREAM created a DREAM fund uninterrupted. The support is greatly appreciated and integral to the success fund so that we can to help participants avert of the DREAM program. It is also continue to provide this financial crises with small consistent with the FBA-WDWA’s mission to “advance jurisprudence support.” grants of money.” and improve the administration of justice; ...encourage positive relations between practitioners and the federal “The support is greatly “...the Second Chance Act courts; ...encourage the development appreciated and integral to imposes limits, and the of alternative methods of resolving disputes and litigation; ...promote the success of the DREAM FBA-WDWA fund helps fill effective representation of indigent program.” the gap created by those litigants by competent counsel; ...and work to ensure that the federal court limitations.” system remains responsive to the needs of the public.”

1. The Honorable Ricardo S. Martinez, Chief United States District Court Judge, Criminal Defendants in the Western District Able to DREAM, FBA, W.D. Wash. Newsletter, vol. 35, issue 1 (Summer 2013), pp. 5, 16-17.

2. Taxpayers pay approximately $2,665.00 per month, or $31,976.00 annually, per offender, to incarcerate persons, including non- violent and victimless offenders.

26 FBA - WDWA News FBA – WDWA News Federal Bar Association of the Western District of Washington

OFFICERS President Vice-President Steven Masada Joanna P. Boisen PRSRT STD Secretary Treasurer U.S. POSTAGE Theodore Angelis Jamie Lisagor PAID Immediate Past President SEATTLE, WA Cynthia B. Jones PERMIT NO. 5544

TRUSTEES Genevieve Vose Wallace Andrea McNeely Colin F. McHugh Nicholas Brown Vanessa Soriano Power

COMMITTEE CHAIRS & LIAISONS Admiralty John Congalton • Kevin B. Smith ADR Jillian Barron • Anne-Marie Sargent Appellate Practice Helen J. Brunner • Jonathan S. Solovy Bankruptcy Capital Campaign David C. Neu • Aimee Willig Tracy Morris CLE Brooke Coleman • Elizabeth (Liz) Porter Clerk of Court Constitution Day Court Liaison William McCool Kymberly Evanson Christopher Blair Court Services Liaison / WSBA Liaison Shannon M. Jost • Lish Whitson Criminal Law Robert Flennaugh • Kate Vaughan Disabilty Law Dream Court Federal Appointments Jillian Cutler Jaime Hawk John Wolfe Federal Civil Rights Clinic Immigration Tracy Morris Christopher Strawn In-house Counsel Intellectual Property Mike Paisner • Cindy Randall Brian Park • Brian Bodine Litigation Academy Jamal Whitehead • Molly Terwilliger Local Rules Martha Dawson • Molly Terwilliger Membership Karen Orehoski • Mo Hamoudi Ninth Circuit Judicial Historical Society Liaison Robyn Lipsky Nominations Brian Kipnis Past Presidents Roger Townsend • Cynthia B. Jones Pro Bono Brett Purtzer • Claire McNamara Website & Communications Adrienne McKelvey • Jessica Andrade