VOL. 30 NO. 1

FALL 2008 FBA-WDWA NEWS

PRESIDENT’S MESSAGE: THE CHANGING FACE OF THE FBA-WDWA

By Tracy M. Morris

ne reason many of us become involved with the Federal Bar Association of the Western Dis- O trict of Washington, and stay so involved, is that it pro- vides a positive place for us to contribute to our legal community. When I think about the FBA-WDWA in this District, I think about cooperation and camaraderie – the bench and the bar working to- gether to improve the practice of law and to serve the public. What troubled me as I began my presidency last year was that many of my contemporaries did not share this view. They did not see the benefit of joining the FBA-WDWA and they did not feel connected to this community. In an effort to change this, we worked this year Richard A. Jones from the King County on two key initiatives: increasing accountability to members and the Superior Court bench to the U.S. Dis- courts, and increasing membership diversity. trict Court. And Judge Benton’s vacancy was officially filled by our first Assistant Federal Public Defender to take the fed- To be more accountable, the FBA- evant. Along with making these mem- eral bench, Judge Brian A. Tsuchida. WDWA has taken steps to clarify and bership improvements, we updated our enhance membership experience. membership database and reached out In the midst of these many changes, we Through the hard work of the officers to new and long-time members. In so continued our tradition of presenting a and the Membership and Website/Com- doing, we both increased our numbers vast array of quality continuing legal edu- munications Committee co-chairs, we and made our membership more diverse cation programs. This year’s topics ran wrote new membership letters; made ad- in terms of geography, practice area, the gamut from a brown bag lunch with ditional points of contact with new and ethnicity and age. We hope that by mak- Ninth Circuit mediator Christopher A. prior members throughout the year; au- ing ourselves more accountable, you will Goelz regarding the process for mediat- tomated our membership services so that retain your membership, we will attract ing cases pending before the Ninth Cir- all FBA-WDWA registrations (including new members with fresh ideas, and we cuit, to a four-day, fifteen-hour, CR 39.1 membership renewals, reminders, in- will create a community that makes training program. And, for the first time, voices and CLE registrations) can be people want to volunteer their time. the Criminal Law Committee presented handled on-line; conducted a swearing- a comprehensive look at white collar in ceremony for new bar admittees in The face of our court changed this year, criminal legal issues, followed up by the Seattle and Tacoma; published this news- as well. With the untimely passing of Ethics and Practice Committee’s half- letter; and, our piece de resistance, pro- retired Magistrate Judge Philip K. day session on ways for civil lawyers to fessionally redesigned our website. We Sweigert in May, we lost one of our fin- avoid violating criminal laws. With the hope that the technological facelift will est jurists and a great friend. In addi- participation of several FBA Officers, the improve our members’ experience. Our tion, Magistrate Judge Monica J. Benton Ninth Circuit Lawyer Representatives goals were to make your interaction with left the bench, taking a position at the also presented a stellar program about the FBA-WDWA easier and more dy- King County Superior Court. At the namic, and to ensure that the FBA- same time, our District had the good for- WDWA remains current, useful and rel- tune to witness the elevation of Judge Continued on page 9

12 FALL 2008

In this issue:

President’s Message: The Changing Face of the FBA-WDWA ...... 1 In Memoriam: U.S. Magistrate Judge Philip K. Sweigert ...... 3 Reminiscences: Judge Sweigert ...... 4 FBA-WDWA Celebrates Another Successful Year at 2007 Annual Dinner and CLE ...... 5 ADR Committee Presents ADR Neutral Training Program ...... 12 Western District Magistrate Judges Host FMJA Annual Meeting and FJC Workshop ...... 13 Profile of Judge Brian A. Tsuchida...... 14 Criminal Law Committee Co-Sponsors Wide-Ranging White Collar Crime CLE ...... 16 Profile of Judge Richard A. Jones ...... 20 Reciprocal Discipline and Changes to the Local Federal Rules ...... 24 Military History Meets Current Events in Powerful Annual District Meeting and CLE...... 27 Lawyers and Judges Gather in Sun Valley for Ninth Circuit Judicial Conference ...... 29 Announcements Appellate ECF Training ...... 19 FBA-WDWA Slate of Officers and Trustees ...... 26 Reappointment of Magistrate Judge Brett ...... 28 2008 Annual Dinner and CLE ...... 30

On the cover: The Federal Bar Association News is a publication of the Federal Bar Association of the U.S. Courthouse in Seattle Western District of Washington. Comments and proposed articles should be addressed to: © Frank Ooms, courtesy of NBBJ Duncan Manville Joanna Plichta Boisen Savitt & Bruce LLP Foster Pepper PLLC Puget Sound Plaza 1111 Third Avenue 1325 Fourth Avenue, Suite 1410 Suite 3400 Seattle, WA 98101-2509 Seattle, WA 98101-3299 (206) 749-0500 (206) 447-5144 [email protected] [email protected]

332 FBA-WDWA NEWS

IN MEMORIAM: U.S. MAGISTRATE JUDGE PHILIP K. SWEIGERT

he Honorable Philip K. Sweigert, who served this District as a U.S. Magistrate Judge for over 20 years, passed away on TMay 23, 2008. He was 74 years of age. [The following are major excerpts Alice and their daughter Elizabeth from an article distributed at the moved to Seattle where he became the memorial service for Judge Sweigert law clerk for U.S. District Judge Will- at the Faith Lutheran Church. iam T. Beeks. In 1965 Phil joined the These excerpts are reproduced here law firm of Bogle & Gates. He was with the permission of his family appointed U.S. Magistrate Judge in Se- and the Church.] attle in 1977, and held this position until he retired in 1998. He was recalled to Philip Kerner Sweigert was born and serve in a part-time capacity, and con- raised in San Francisco. He attended tinued to do so until the date of his parochial schools both there and in death. Phil loved his work as a judge, he developed a love for travel in Eu- Sacramento, receiving a classical edu- and was highly regarded for all aspects rope, and made many trips there with cation including Greek and Latin, of his work. He particularly enjoyed Alice and with others in the family. He which would serve him well in his ca- conducting settlement conferences, and also loved their annual trips to Maui, reer. He graduated from the Jesuit was very skilled in assisting the parties where he spent time with friends from St. Ignatius High School in San Fran- in reaching agreed resolutions without Seattle and elsewhere, enjoying a re- cisco. the delays, uncertainties and costs spite from the cold and wet Seattle win- which accompany trials and appeals. At Stanford University he received his ters. B.A. in History in 1955. He then spent Phil and Alice raised four children: Another beloved place for Phil was the two years in the Army at Fort Lewis, Elizabeth, Jonathan, Jennifer and Amy. family’s summer home on Guemes Is- serving in a clerical position, develop- Phil was a husband and father ahead land. When he was there, he rarely ing a taste for creamed tuna on toast, of his time, actively involved in raising stopped working on the upkeep of the and visiting his future wife’s parents his children and helping around the family properties, catching and cook- in Seattle. In 1958 he married his home. It was his job to give the chil- ing crab, taking care of his motor boat, Stanford sweetheart, Alice Hanson. In dren their baths and he told wonderful giving rides to his grandchildren and order to marry Alice he chose to be bedtime stories. He cleaned house, did others, and keeping in shape by cycling confirmed in the Lutheran Church, and the dishes every night, and later learned around the island. He also enjoyed re- was a faithful church member for the to cook, becoming an expert at various laxing on the beach with a book. He rest of his life. He attended the Uni- delicacies ranging from enchiladas to was known for putting on one of the versity of California Hastings College pizza to Christmas cookies and candy. best fireworks displays on North Beach of Law at Berkeley from 1958 to 1961, He was particularly proud of his almond on the Fourth of July. graduating summa cum laude, and was roca and loved discovering new reci- a member of the Order of the Coif pes such as microwave peanut brittle. Music was a joy to him. He sang in and President of the Thurston Honor Phil leaves five grandchildren: Elsa, the barbershop quartet “What Four” at Society. Alexander and Thea Lund, and Nicho- Stanford, was active in church choirs las and Miranda Sweigert. Upon graduation from law school, he at both Phinney Ridge and Faith joined the law firm of Kindel & Ander- Although Phil didn’t have the opportu- son in Los Angeles. In 1963, he and nity to travel overseas until his fifties, Continued on page 12

43 FALL 2008

fortable appearing before him, or REMINISCENCES: JUDGE SWEIGERT felt that I had entered a venue where the judge’s personal By Judge John L. Weinberg views might have presented me U.S. Magistrate Judge (Ret.) with an uphill path. Phil on the U.S. District Court for the Western District of Washington bench was like posting a sign, “Justice will be dispensed here t was my privilege and pleasure to serve with Phil Sweigert this day.” To me, that’s the high- est performance of judicial duty throughout his distinguished career as a Magistrate Judge with which any lawyer can expect. our Court. He was held in the highest respect by those who I Because Phil was so sharp and quick, appeared before him. All of us at the courthouse, who worked with he sometimes had limited patience for a him for almost twenty-one years, had the highest respect and deep- lawyer who went on and on, or who pre- est affection for Phil. sented arguments which could not pass the “straight face test.” Sometimes when this happened, Phil’s courtroom staff I first met Phil in 1966 when I came to ments of terror more vividly than any- would hear the sound of a ballpoint pen work as a law clerk for U.S. District thing else at the ceremony. clicking. Phil had stopped taking notes, Judge William T. Beeks. Phil had served and was running his pen so fast it sounded in that same job three years earlier. He As a new judge, Phil was eager to learn something like his outboard motor at was a very tough act to follow. everything he needed to know about how Guemes Island. The staff would imme- to perform his responsibilities. So for diately know that this lawyer – or at least But it was in 1977, when Phil came back several months we would meet in the this argument – was in deep trouble. to our court as a U.S. Magistrate Judge early mornings, long before court opened, Eventually, the more perceptive lawyers in Seattle, that we became the closest of to discuss selected areas of court pro- caught on, and would say something like, professional colleagues and personal cedure and of the applicable statutes and “Yes, well, moving right along….” friends. rules. His conscientious nature was im- mediately obvious to me. I also soon Phil and I both learned from Judge Beeks Phil’s father was the Honorable William discovered that Phil was one of the to insist that lawyers be fully prepared, T. Sweigert, who served as a U.S. Dis- brightest people and “quickest studies” I and that they “do it right.” But we also trict Judge in San Francisco. He was a had ever met. These morning meetings learned that cases and issues must be longtime close colleague of Chief Jus- alone were not enough for him; he also decided according to what the law and tice Earl Warren, when Warren was gov- requested reading assignments for the justice require – not as a report card for ernor of California. I met Phil’s father subjects we were covering. With all this the lawyers. when he came to Seattle for Phil’s in- study and discussion, and with his insight- vestiture ceremony. He was so proud ful questions, I was soon learning as Phil and I were the closest of friends at and excited he could hardly hold still. At much as he was from our meetings. the courthouse. One or the other of us the ceremony, he joined all of our district would come down the internal corridor judges on the bench in the eighth floor The same theme continued throughout between our chambers many times each ceremonial courtroom of the old court- Phil’s twenty-one years on the bench. day to brainstorm as to what had just house. The trouble was, there was A lawyer who practiced frequently be- occurred, or what was about to occur. barely room for all those judges, and fore him, and who came to know him Frequently when Phil came in he wanted Phil’s father was seated on the far left, well, put it this way: some ideas as to how to tackle a prob- right next to the precipitous set of stairs lem he had not seen before. But I quickly by which the judges entered and left the I always think of Phil as a very learned that sometimes he was not look- bench. In his enthusiasm, Judge good judge. He worked hard ing for advice – mostly he just wanted to Sweigert was rolling that big chair and was well prepared on every decompress or to vent a little. In those around, and I could just envision him roll- occasion. He never assumed situations my best contribution was to say, ing too far to one side and plummeting, that a proceeding over which he “Really? Did he really do that? It must chair and robe flying, down four steps to was presiding was about him. He have made it tough for you.” an uncertain fate. Fortunately it never was fair, attentive and courteous happened, but I remember those mo- to those appearing before him. As a lawyer, I never felt uncom- Continued on page 13

45 FBA-WDWA NEWS

FBA-WDWA CELEBRATES The Association also welcomed back now-former Chief Ninth Circuit Court ANOTHER SUCCESSFUL YEAR of Appeals Judge Mary M. Schroeder. Chief Judge Lasnik eloquently expressed AT 2007 ANNUAL DINNER AND CLE the Association’s and the U.S. District Court’s sincere gratitude to Judge By Tracy M. Morris and Duncan Manville1 Schroeder for her unwavering support. As her last “official duty” as Chief, he Federal Bar Association of the Western District of Judge Schroeder discussed her years at Washington’s 24th Annual Federal Practice CLE and Din- the helm of the largest Circuit in the coun- try and her continued interest in support- Tner, held on December 5, 2007, welcomed many esteemed ing our District. guests and members. The day began with a packed house as CLE Chair and current FBA-WDWA Secretary, Jim Savitt, introduced In appreciation of both Chief Judge Schroeder’s and Mr. Koh’s service, three timely subjects for discussion – the evolving legal landscape President Morris presented each with a for use and control of the Internet; the decision in Parents Involved piece of art from Seattle’s oldest glass- in Community Schools v. Seattle School District, et al. (a.k.a. the blowing studio. She also promised to Seattle School District decision); and the much-talked-about deci- continue with ongoing court projects, while updating the Association’s use of sion in Bell Atlantic. Panelists included Judges M. Margaret technology and improving diversity within McKeown, Marsha J. Pechman, Benjamin H. Settle, Thomas S. the FBA-WDWA. Zilly and Mary Alice Theiler; and Chief Judge Robert S. Lasnik. The evening’s judicial honoree was U.S. Seasoned local practitioners also contributed to the lively discus- Magistrate Judge Monica J. Benton, who sion, opening up many topics to debate. left the federal bench after eight years

The Spanish Ballroom at the Fairmont Olympic Hotel supported the time-hon- ored tradition of a savory salmon dinner amongst great colleagues and friends. Newly appointed President Tracy M. Morris welcomed a bustling room, bid- ding farewell to outgoing President Steve Koh. Mr. Koh’s leadership supported numerous CLEs and special court projects, including commencement of revisions to our local and patent rules, and the taking of oral histories of our senior judges. Prior to being relinquished of his duties, Mr. Koh presented the Association’s Pro Bono Service Award to pro bono attorneys from the Pro Bono Panel and the Federal Civil Rights Legal Clinic, and attorneys who have agreed in advance to handle pro bono cases in this District. The pre-dinner reception in the Spanish Ballroom of the Fairmont Olympic Hotel

5 FALL 2008 to become a King County Superior Court Wrapping up an eventful evening was behind. A riveted audience hung on Pro- Judge. Newly appointed Judge Richard the keynote speaker, former United fessor McKay’s words as he gracefully A. Jones, Senior Judge John C. States Attorney John McKay. Now a addressed the ever-evolving political cli- Coughenour, and President Morris bid Visiting Professor of Law at Seattle mate in Washington, D.C. It was a pow- her farewell, highlighting the compassion University, Professor McKay candidly erful end to an eventful evening. and good humor that she brought to the shared his thoughts regarding the De- bench. The Association made a $500 partment of Justice’s decision to termi- contribution in Judge Benton’s name to nate him along with eight other U.S. At- 1 Tracy M. Morris is the President of the the University of Washington School of torneys. He noted with sincere appre- Federal Bar Association of the Western Dis- Law’s pilot program aimed at support- ciation the high-caliber colleagues and trict of Washington. Duncan Manville is of ing women and diversity students during judges that he had been forced to leave counsel at Savitt & Bruce LLP, and co-chairs the Website/Communications Committee of their first year. the Federal Bar Association of the Western District of Washington

Judge Richard A. Jones, Judge Barbara J. Rothstein Mark E. Johnson, Judge Mary Alice Theiler

Mark M. Hough, Jerry R. McNaul Judge James P. Donohue, Kevin D. Swan

6 FBA-WDWA NEWS

Judge Benjamin H. Settle, Judge Philip H. Brandt

James F. Williams, Juli E. Farris

John S. Congalton, Judge Carolyn R. Dimmick Steve Secrest, Karen F. Jones Mark E. Johnson, John McKay

Marco J. Magnano, Peter M. Vial, Mary Vial David C. Martin, Anthony L. Rafel, Steven A. Reisler

7 FALL 2008

Cynthia B. Jones, David C. Martin, Aviva Kamm Brett A. Purtzer, J. Richard Creatura, Judge Charles W. Johnson

James R. Hennessey, J.J. Leary Jr., John McKay

Michael K. Ryan, Rodrick Dembowski, Miles A. Yanick

Philip S. McCune, William R. Sherman Marlys S. Palumbo, Ralph H. Palumbo, Timothy G. Leyh

8 FBA-WDWA NEWS

James F. Williams, J. David Andrews, Stanley A. Bastian J. Kirkham (Kirk) Johns, Judge J. Kelley Arnold

David L. Garrison, Philip E. Cutler

Judge Monica J. Benton, Charles Fulcher, Margaret Martinez, Judge Ricardo S. Martinez, Norman B. Rice, Constance W. Rice

and local practitioners will be Linda Greenhouse, Pulitzer Prize-winning jour- President’s Message nalist, formerly of the New York Times Continued from page 1 and now at Yale Law School, who will also be our keynote speaker for our An- military and criminal justice at their An- nual Dinner that evening. nual District Meeting. On December 10, 2008, our most anticipated CLE will The year would not have been complete showcase a timely program addressing without our special court projects and patent and immigration law, and presi- events. The FBA-WDWA was honored dential efforts to mold the judiciary. to have been asked by the District Court Blake E. Marks-Dias, William P. Brewer Alongside our esteemed federal judges to propose revisions to the federal oath

9 FALL 2008

Judge Carolyn R. Dimmick, Judge Thomas S. Zilly, Judge Benjamin H. Settle, Daniel F. Johnson Judge James L. Robart, Charles R. Ekberg reached and we now work to complete of office, Local Rule 5(g) and the patent sity of Washington, the Annual Meeting the balance of them. With unprecedented rules; and to continue an oral history of the national Federal Magistrate Judges technological improvements and mem- project involving our most senior federal Association in Seattle, and the Ninth Cir- bership outreach and diversification, we judges. In addition, the Ninth Circuit cuit Judicial Conference in Sun Valley, have set a new standard. It has been Court of Appeals asked us to assist it Idaho; and to have submitted an article both a privilege and a pleasure to serve with two projects at the newly remod- for the updated United States District you and our community. I extend a eled Nakamura Courthouse – adorning Court’s History Book due out next year. heartfelt thanks to my fellow officers, to its walls with art and resolving a disabil- the FBA-WDWA’s dedicated committee ity access issue. Finally, we were hon- Fall is the perfect time to reflect upon chairs, and to the district and appellate ored to attend the William L. Dwyer Jury the year’s accomplishments, as the ma- judges whose support enabled us to ac- Project Award Ceremony at the Univer- jority of our ambitious goals have been complish so much this year.

Patrick J. Preston, Kathryn C. Pineda, Krista K. Bush Dana Dimmick Scarp, Bradley P. Scarp, Judge Richard A. Jones

10 FBA-WDWA NEWS

Judge Benjamin H. Settle, Tracy M. Morris Chief Judge Robert S. Lasnik Chief Judge Robert S. Lasnik

Steve Y. Koh Judge Richard A. Jones Judge Mary M. Schroeder

Judge Monica J. Benton Judge John C. Coughenour John McKay

11 FALL 2008

ADR COMMITTEE PRESENTS ADR the same four-day schedule as the live program. NEUTRAL TRAINING PROGRAM

1 By J. Kirkham (Kirk) Johns1 J. Kirkham Johns is of counsel at Stafford Frey Cooper, and serves as the Treasurer of the Federal Bar Association of the Western n January and February of this year, the Alternative Dispute District of Washington. Resolution (ADR) Committee of the Federal Bar Association 2 See CR 39.1(b)(2) and the Court’s General of the Western District of Washington presented an ADR neu- Order of January 17, 1997. I 3 See CR 39.1(a)(2). tral training program. The program was presented as a service to 4 the Court and to attorneys interested in becoming a certified ADR See CR 39.1(b)(1) and (b)(4). neutral under Local Civil Rule 39.1. It provided attendees with the fifteen hours of training necessary to be included in the Western In Memoriam: Judge Sweigert 2 District’s register of neutrals. Continued from page 3

The ADR Committee assists the Court The program was well-attended and well- Lutheran Churches, and picked up the in the administration of CR 39.1.2 This received. Over 160 attorneys attended. guitar in the John Denver era and the assistance includes the processing of The success of the program was attrib- ukulele in Hawaii. He sang in the Se- attorney applications for inclusion on utable to the generous support, effort and attle Symphony Chorale and the Se- the Court’s register of neutrals, includ- professionalism of many people: First, attle Back Choir. Many remember his ing attorney certifications that they the ADR Committee planning group. pure, clear tenor. have the training and experience re- Second, the Court and the Western Dis- quired by the Rule.4 trict judges and ADR neutrals who Phil enjoyed playing golf, though he didn’t served as faculty members (in addition have much time for it until his children The training program was developed to Chief Judge Robert Lasnik, Judge were grown. He was a long-time mem- over a six-month period by an ADR Ricardo Martinez and Magistrate Judges ber of the Washington Athletic Club, Committee planning group consisting J. Kelley Arnold and Mary Alice Theiler, working out faithfully during his adult- of Committee Co-Chairs Spencer Hall twenty-eight Western District neutrals hood. He continued his workout routine and Kirk Johns, Committee members served as faculty, and twelve additional during his retirement, starting his day by Judge Robert H. Alsdorf (Ret.), Western District attorneys participated doing both crossword puzzles in the Se- Carolyn Cairns, Philip E. Cutler, Den- in the mock mediation sessions). Third, attle Times and then heading down to nis George and Edward W. Pettigrew, staff from the Clerk’s Office (Bruce the WAC. He was also a big sports fan, and Magistrate Judge Mary Alice Rifkin, Janet Bubnis and Sharon Haas). rooting for the Stanford Cardinal and the Theiler. The four-day program con- And finally, the law firm of Stokes Husky football and basketball teams, and sisted of three half days of panel pre- Lawrence, which duplicated the program both rooting for and castigating the Mari- sentations and one full day of mock materials at no cost to the FBA-WDWA. ners, depending on the quality of their mediation exercises. The panel pre- play. He enjoyed many varied social sentations covered such topics as “The In addition, Prolumina Technologies vid- activities with good friends and family. Overall Spectrum of ADR Proce- eotaped the training program for the dures,” “Variations & Hybrid Proce- FBA-WDWA at a reduced rate. This Phil lived his life to the fullest. He was a dures,” “CR 39.1,” “The Benefits of enabled the ADR Committee to sched- blessing to his friends, his family and his ADR,” “The Dynamics of ADR – ule a video repeat of the program for colleagues. He will be greatly missed. People, Processes and Perspectives,” those who attempted to enroll in the pro- Remembrances may be made to the “Attributes of Effective Party Repre- gram but were unable to attend due to Parkinson’s Disease Foundation sentatives,” “Mediation – the Funda- space constraints. The video repeat was (www.pdf.org) or to Faith Lutheran mentals,” and “Ethics.” presented in October and November on Church (www.faithseattle.org).

12 FBA-WDWA NEWS

WESTERN DISTRICT MAGISTRATE Reminiscences: Judge Sweigert JUDGES HOST FMJA ANNUAL Continued from page 4 MEETING AND FJC WORKSHOP Phil and I also went to lunch most days, at the Washington Athletic Club or else- By Judge J. Kelley Arnold where. In fact, one day when I was Chief U.S. Magistrate Judge headed toward the WAC by myself, U.S. District Court for the Western District of Washington Judge Walter T. McGovern saw me and said, “Where’s your consort today?” I nder cloudless blue skies with soft summer breezes and 75 guess Wally picked up that term from degree sunshine, the Magistrate Judges of the Western Dis his days as a Navy officer. Utrict of Washington hosted the national FMJA (Federal Mag- The magistrate judges and our staffs are istrate Judges Association) annual meeting and FJC (Federal Judi- close-knit families, operating as a unit th within the federal court. Several times, cial Center) workshop the week of July 7 . Judge James Donohue, over the years, Phil and his wife Alice with the assistance of Judge Mary Alice Theiler, pulled the laboring hosted summer picnics for all of us at oars rowing the event to an overwhelmingly acclaimed success. their beautiful place on Guemes Island. Frequently Phil and I shared law clerks ner at the Mu- and courtroom deputies. I know every- one who has worked with Phil enjoyed seum of Flight the chance to do so, learned a great deal and an Argosy from the experience, and joins in offer- Cruise to Kiana ing the best wishes to Phil’s family. Lodge on the Kitsap Penin- My wife Sherry and I have many happy sula. Tracy memories of times we spent with Phil Morris, Presi- and Alice at judicial conferences in Ha- dent of the Fed- waii and elsewhere. We also shared the eral Bar Asso- work and the fun of hosting in Seattle ciation of the two national conventions of our Federal Western District Magistrate Judges Association. of Washington, When a federal judge retires, he or she greeted our is entitled to keep his desk chair. I re- guests at the member the day Phil retired, in 1998. We Museum of sat him down in his desk chair, handed U.S. Magistrate Judges James P. Donohue, Karen L. Strombom, Flight. Officers him his gavel, and all of us – magistrate J. Kelley Arnold, Mary Alice Theiler, Brian A. Tsuchida and board mem- judges and staff – wheeled him to the bers attended as elevator, to the Sixth Avenue entrance Over 150 judges and their families gath- well. The Kiana Lodge cruise began to the old courthouse, and out the door, ered in the Emerald City. The Judges’ with an escort by the Seattle Fire Boat where we helped him load the chair into Workshop included updates on a multi- featuring giant sprays and a vivid rain- his beloved little pickup truck. tude of issues including, but not limited bow, backdropped by the Seattle skyline. I will miss Phil as a very good friend and to, Attorney-Client Privilege/Work Prod- Mt. Rainier also made a cameo appear- highly esteemed colleague. The court uct, Multi-District Litigation, and Elec- ance. and community will remember him, and tronic Discovery in Civil Litigation. miss him, as a very fine judge. We who Our thanks to the FBA-WDWA and the remain can do no better than to follow Tours of the sites and sounds of Seattle U.S. District Court for their support in his example. were available to our guests. Included this most successful event. in the registration fee was a buffet din-

13 FALL 2008

PROFILE OF JUDGE BRIAN A. TSUCHIDA

By Jennifer E. Wellman1

ucky” is the word Judge Brian A. Tsuchida claims best describes his legal career. Judge Tsuchida attributes “L his successes and ascendancy to the federal bench to having had the good fortune of working with a series of inspira- tional lawyers. “Nonsense,” counter lawyers who have worked with the Judge. While his view of himself reveals Judge Tsuchida’s unassuming and humble side, his colleagues attribute the Judge’s professional achievements largely to his unflagging commitment to the fundamental principle that justice should be the same, in sub- stance and availability, for everyone.

Judge Tsuchida was born and raised in cases, the complexity of the issues pre- Hawaii, the second of four children. In sented, the lack of resources, and the containing asbestos. The litigation was 1976, he left Hawaii’s sandy beaches and needs of difficult clients, Judge Tsuchida complex, involving substantial prepara- tropical weather to attend Grinnell Col- was always cheerful. He was never flus- tion and research, as well as lengthy tri- lege in Grinnell, Iowa. He earned his tered, panicked or discouraged by the als. In one such trial, Judge Tsuchida bachelor’s degree in 1980. tasks at hand. He quietly worked each represented an individual who had been and every case to a just end. Judge a ship worker from the 1960s through From that small town in Iowa, Judge Tsuchida recalls that he enjoyed the pres- the 1980s. His client had contracted Tsuchida went on to law school at the sure and pure joy of litigating. He loved mesothelioma, a rare cancer caused by University of Oregon. He graduated in trials – presenting the case, bonding with exposure to asbestos. His client died prior 1983, and passed the Oregon bar exami- the jury, the focus. But despite having to trial, but not before Judge Tsuchida nation that year and the Washington bar spent countless hours in court, he always had obtained his deposition, literally from examination in 1984. He is a member of entered the courtroom nervous because the confines of the hospital. Judge the United States District Courts for the of the stakes involved and because he Tsuchida won a verdict for his client Western and Eastern Districts of Wash- cared about what happened to his cli- even though the resources of his corpo- ington, the Ninth Circuit Court of Ap- ents. rate opponent had created an uneven peals, and the United States Supreme playing field that was all too familiar to Court. In 1988, Judge Tsuchida decided it was the former public defender. time for a new challenge. He accepted Judge Tsuchida began his legal career in an associate position with Schroeter, Judge Tsuchida also helped people with 1984 at The Defender Association in Se- Goldmark and Bender, a personal injury social security claims and appeals, help- attle. Over the next four years or so, he firm known for its passion for its clients ing these clients achieve financial secu- worked in the juvenile, misdemeanor and and for justice. Thus, while he left pub- rity despite the obstacles of a complex felony divisions. As a staff attorney, he lic defense, he chose a law firm re- process. Thus, in private practice Judge represented indigent clients throughout nowned for its commitment to equal jus- Tsuchida once again thrived when faced King County on charges ranging from tice. with the challenge of helping people who petty theft to aggravated first degree could not, for whatever reason, help murder. Judge Tsuchida’s practice at Schroeter themselves. focused on representing plaintiffs in prod- His colleagues describe how, despite the ucts liability cases brought against com- In 1992, finding that he missed public de- stress of the practice, the volume of panies that sold or manufactured items fense, Judge Tsuchida left private prac-

14 FBA-WDWA NEWS tice and, in his words, the “great” attor- watched Boruchowitz negotiate addi- eral defenders handle matters at both the neys he had worked with, and returned tional funding for death penalty cases in trial and appellate levels. Judge Tsuchida to The Defender Association. By virtue order to meet the particular demands of helped his clients through all stages of of his hard work and skill, Judge Tsuchida these representations. Judge Tsuchida district court proceedings, and soon mas- quickly moved from felony attorney to emphasizes that Boruchowitz acted with- tered the craft of arguing before the Ninth felony supervisor in 1994. As the divi- out fanfare, guided only by solid principles Circuit. He also represented individuals sion supervisor, Judge Tsuchida not only and the interests of justice. challenging the constitutionality of their appeared in court on a wide variety of detentions via habeas corpus petitions. matters (including the representation of Judge Tsuchida put the lessons learned These “last hope” cases required spe- 30 to 40 clients per year), but also as- from Boruchowitz to use when video- cial skill and creativity. sisted, advised and trained staff attor- conferencing was explored as an effi- neys, recruited and supervised legal in- cient, cost-effective means of conduct- In all these representations, Judge terns and volunteers, and managed the ing some criminal proceedings. He and Tsuchida tended to the needs of his cli- assignment and staffing of over 3,500 Boruchowitz argued that such “effi- ents – clients who were not just eco- new felony cases per year. ciency” would serve only the court and nomically disadvantaged, but who prosecutors, not the individuals whose oftentimes suffered from mental illnesses What’s more, Judge Tsuchida took on liberties and rights were at stake. Judge or miserable childhoods, addictions or dis- any number of administrative tasks criti- Tsuchida pointed out that in the civil crimination. Judge Tsuchida believes it cal to the operation and goals of the of- arena, it was highly unlikely that any liti- was his contact with these individuals fice. He helped resolve personnel dis- gant (plaintiff or defendant) would agree facing some of the most important events putes, including disagreements involv- to appear at trial via closed-circuit tele- of their lives that best prepared him for ing his lawyers or support staff. He de- vision and thereby limit his or her ability his newest challenge. veloped training and division resources, to interact with counsel. The video- projected future felony caseloads and conferencing idea never gained traction. Further evidence of Judge Tsuchida’s staffing needs, and fought off fines and “Lucky,” says Judge Tsuchida about this commitment to the principle of equal sanctions imposed by the court or the part of his career. access to justice is his work with the clerk’s office against staff attorneys. He Washington State Bar Association. His also worked with King County and state In 1999, Judge Tsuchida left The De- experience with Bob Boruchowitz, Tom officials on systemic issues such as case fender Association and joined the office Hillier and others taught him that it is not flow management, video-conferencing of the Federal Public Defender for the enough to be a good public defender. and jail population reduction. Western District of Washington. Com- Developing ties and partnerships with paring his old and new caseloads, his those outside the legal profession is also During this time Judge Tsuchida worked colleagues at The Defender Association very important. Thus, despite the de- closely with his former supervisor, Rob- joked that his move amounted to “retire- mands of public defense, he volunteered ert Boruchowitz, Director of The De- ment.” But having interned with the for a host of committees, including the fender Association. Judge Tsuchida Federal Public Defender in Denver, WSBA’s Opportunities for Minorities in credits Boruchowitz’s mentoring as hav- Colorado, Judge Tsuchida knew he the Legal Profession Committee (1991 ing been the most influential of his ca- would be facing new and difficult chal- to 1994), Lawyers Assistance Program reer. As described by the Judge, lenges. He looked forward to joining an (1997), and Continuing Legal Education Boruchowitz was a visionary, positive office populated, according to the Judge, Committee (1994 to 1996). He also and principled leader. by seasoned, quality lawyers with a repu- chaired the Washington Supreme Court tation for tenacious, compassionate rep- Capital Counsel Panel from 1998 to Judge Tsuchida witnessed how resentation of their clients’ interests. 2008. Boruchowitz successfully pushed for case load limits for his lawyers in order For approximately nine years, Judge Judge Tsuchida and his wife, Barbara, to enhance their ability to provide effec- Tsuchida worked in the office of the Fed- have been married for twenty years. tive assistance to their clients. He saw eral Public Defender. His new supervi- Their daughter, Holly, is fifteen. The Boruchowitz fight for better salaries for sor, Thomas W. Hillier, II, set high stan- Judge likes to cook for the family – a his lawyers, despite the political unpopu- dards for his lawyers, and required ex- time when he can clear his mind. He larity of this public expenditure. He cellent litigation and writing skills. Fed-

15 FALL 2008 also enjoys running, which he describes CRIMINAL LAW COMMITTEE as “pure movement.” CO-SPONSORS WIDE-RANGING He ran the Portland Marathon in 2005, hoping to qualify for the Boston Mara- WHITE COLLAR CRIME CLE thon. He tore his calf muscle prior to the race but decided to run it anyway. By Kristine A. Costello1 He was limping by the second mile. Most runners in Judge Tsuchida’s posi- his past February the Criminal Law Committee of the Fed- tion would have stopped, but the Judge kept running until he finished – looking, eral Bar Association of the Western District of Washington he says, much the worse for the wear. Tand the law firm of Dorsey & Whitney co-sponsored a CLE He did not qualify for Boston that year, at the federal courthouse in Seattle. The CLE, entitled “Current or in 2006 when another injury side- tracked him. Issues in White Collar Litigation,” provided an overview of white collar issues of concern to both criminal and civil practitioners. Undeterred, he lined up to race Portland Experienced practitioners spoke and participated in panel discus- again in 2007. This time he completed the race and qualified for the 2008 and sions. Below is a summary of the topics discussed and presented. 2009 Boston Marathons. Reaching his goal required the discipline to get up at STRATEGIES FOR MANAGING CONCUR- 4. A class-action lawsuit; and 5:00 a.m. every morning to run. He still RENT PROCEEDINGS 5. Shareholder derivative litiga- runs, and describes his athletic accom- tion. plishments with characteristic humility Attorney Jeffrey B. Coopersmith2 pre- and humor. sented strategies for managing concurrent Mr. Coopersmith indicated that a proceedings. His presentation addressed company’s duty, risks and objectives in Judge Tsuchida is the first person with the most common substantive issues that these instances are not always the same substantial criminal defense experience counsel face in the white collar arena and and can often work at cross-purposes. to serve on the bench in this District. He provided an excellent framework for the will be missed at the office of the Fed- CLE. Cooperation with Enforcement Au- eral Public Defender, where he was a thorities. One of the first decisions a com- brilliant lawyer, a good friend, and a skill- Stock Option Backdating Litigation. pany has to make when facing an allega- ful mediator of daily lunchroom world- Mr. Coopersmith used the example of an tion of wrongdoing is whether to cooper- saving bull sessions and banter. Despite allegation of stock option backdating to il- ate with government enforcement entities. their loss, the entire staff was elated lustrate the type and number of parallel There are huge incentives built into both when Judge Tsuchida was selected to proceedings that can be triggered when a the civil and criminal enforcement systems be our new Magistrate Judge. As Tom corporation or its employees are suspected for companies to cooperate with the gov- Hillier noted, “Brian earned it, and he or accused of wrongdoing. He noted that ernment. Through cooperation, a company brings something to the bench that it has a single allegation that a company had im- can convince the government that there never had. He has stood with our cli- properly awarded stock options could trig- was no wrongdoing. In instances where ents. He knows how they feel, how their ger at least five simultaneous and parallel there have been violations or it is unclear families feel, and how we feel. Our investigations or proceedings: whether a violation occurred, the decision bench will be better for what Brian brings to cooperate can be more complicated. and because of who Brian is. He was a 1. A Department of Justice in- However, companies still have a high in- great selection.” vestigation or indictment; centive to cooperate, as both the civil and 2. A U.S. Securities and Ex- criminal enforcement entities have discre- change Commission (SEC) tion to make a decision not to prosecute 1 Jennifer E. Wellman is an Assistant Fed- investigation and proceeding; the violations.3 These decisions will de- eral Public Defender, and serves as a Trustee pend in large part on how the government of the Federal Bar Association of the West- 3. The company’s own internal ern District of Washington. investigation; judges the company’s cooperation. Over

16 FBA-WDWA NEWS

the years, the Department of Justice has a showing by the government of a “legiti- the limits of such agreements and advised tried to standardize and outline how dis- mate need” for the waiver.10 Also, coun- counsel that disclosure to the government cretion in this area ought to be applied by sel for the government must draw a dis- could constitute a complete waiver of the its attorneys when deciding whether to pros- tinction between waivers relating to privi- privilege. Mr. Coopersmith pointed out a ecute a business. A number of memoranda leged factual information and waivers re- split among the circuits as to whether dis- have been published over the years in an lating to materials reflecting the mental im- closure to the government waives the privi- attempt to outline these standards. pressions of counsel. lege. There may be different standards for waiver of attorney-client and work prod- The McNulty Memo. On December Indemnification for Attorneys’ Fees. uct protection. Most courts have held that 12, 2006, former Deputy Attorney General The McNulty Memo also changed the disclosure to the government, even with a Paul J. McNulty issued a memorandum government’s policy regarding indemnifi- confidentiality agreement in place, does entitled Principles of Federal Prosecu- cation for attorneys’ fees. Previously, the constitute a waiver – although the law, par- tion of Business Organizations.4 The government could consider as evidence of ticularly in the Ninth Circuit, may be evolv- memorandum is commonly referred to as non-cooperation a company’s payment of ing.13 the “McNulty Memo.” (Subsequent to the its employees’ attorneys’ fees. The training, on August 28, 2008 the Depart- McNulty Memo directed government Fifth Amendment Privilege vs. Nega- ment of Justice issued a new memoran- counsel to refrain from holding indemnifi- tive Inference in Civil Proceedings. dum.5) The McNulty Memo was issued cation against companies unless it was done Mr. Coopersmith discussed issues associ- in response to a number of criticisms that to impede the investigation. ated with concurrent civil and criminal pro- had been raised about the 2003 “Thomp- ceedings – specifically whether and in what son Memo” on the same subject.6 The SEC Seaboard Factors. Mr. circumstances the privilege against self- McNulty Memo was intended to super- Coopersmith noted that the SEC has pro- incrimination should be invoked in the civil sede and revise the Thompson Memo in mulgated guidelines for how it will weigh case. From the perspective of criminal two significant areas, including: (i) the at- cooperation in its investigation and enforce- defense counsel, the classic view is that torney-client privilege waiver, and (ii) in- ment actions. These guidelines are referred even when the criminal defendant is inno- demnification for attorneys’ fees. to as the “Seaboard Guidelines,” after an cent, the defendant should be conserva- October 23, 2001 SEC report explaining tive and invoke the right to remain silent The Thompson Memo had required com- why the SEC was not taking action against guaranteed by the Fifth Amendment. But panies to waive the attorney-client privi- Seaboard Corporation after an investiga- while this strategy may be wise when con- lege in order to be considered for the ben- tion of accounting irregularities.11 The Sea- sidering the potential criminal ramifications efits associated with cooperation. Further, board Guidelines are a non-exhaustive list of testifying freely in the civil case, it could it directed counsel for the government to of thirteen factors (relating to self-policing, adversely effect a corporation’s position in weigh the decision by a company to pay its self-reporting, remediation and coopera- the civil arena, since traditionally, when a employees’ attorneys’ fees against the com- tion) that the SEC uses when deciding party asserts the Fifth Amendment in a civil pany in determining whether the company whether to initiate enforcement proceed- proceeding, the opposing side can infer the had cooperated. These two provisions and ings. Some of the factors include whether negative from these assertions in the pre- the implementation of these policies caused the company has waived the attorney-cli- sentation of its case. great concern among the criminal defense ent privilege, the company’s response to bar, the American Bar Association,7 and misconduct, its cooperation with SEC staff, Mr. Coopersmith outlined a number of strat- ultimately Congress8 and the courts.9 and the likelihood of future violations.12 egies for managing this troublesome di- lemma. Civil counsel can make legitimate Attorney-Client Waiver. The McNulty Selective Attorney-Client Waivers. efforts to delay testimony until the criminal Memo established new criteria and pro- Mr. Coopersmith explained that waiving the case has been resolved (for example, coun- cesses regarding the attorney-client privi- attorney-client privilege incident to a gov- sel can move for a protective order or a lege. Most significantly, the memo changed ernment investigation can negatively im- stay of the civil proceeding). Depending the rules regarding how the government pact subsequent or parallel civil proceed- on the circumstances, counsel may be able can go about asking companies to waive ings. He advised company counsel to seek to cure the adverse inference by advising the privilege in order to be deemed to have confidentiality agreements when disclos- his or her client to invoke the privilege while cooperated. Under the McNulty Memo, ing privileged information to government at risk of criminal liability, and then make there can be no waiver of privilege absent enforcement agencies. However, he noted the client available after the risk has passed.

17 FALL 2008

In those instances, counsel should seek a interpreting it. He discussed the possible entities in the investigation of federal crimes, pre-trial ruling to limit the use of the asser- causes of action authorized by the statute, and the trend toward more coordination with tion to support a negative inference. De- and their legal requirements; and also ad- state prosecuting authorities in bringing pending on the specifics of the matter, dressed recent decisions by the Fifth, Eighth criminal charges – including the use of “fed- courts have granted relief in these circum- and Tenth Circuits providing an expansive eral leverage” letters (which are intended stances.14 view of the CFAA. He noted that the to encourage defendants to dispose of their statute’s expanded use could benefit civil cases at the state level or face federal INTERNAL INVESTIGATIONS litigants seeking relief for a variety of charges). wrongs, including theft of computer data, 15 16 Edward B. Magarian, Leslie J. Hagin schemes to defraud, trafficking in computer ETHICAL ISSUES FOR THE FEDERAL WHITE 17 and Kristin M. Cappel participated in a passwords, destruction of computer data, COLLAR PRACTITIONER panel discussion analyzing the different is- hacking, and creation and circulation of sues and concerns that may arise when a computer viruses. The day concluded with a valuable and company, or its individual employees or engaging discussion of some of the ethical executives, is accused of wrongdoing. CURRENT TRENDS IN WHITE COLLAR dilemmas facing white collar practitioners. 25 Specifically, the panel addressed what to PROSECUTION AND POLICY Irwin H. Schwartz and Robert C. do when wrongdoing is detected or alleged Bundy26 discussed the ethical issues for at a company, either internally or by an Tessa M. Gorman,22 Carl Blackstone,23 and counsel that arise during a white collar in- outside government agency. The panel Amanda E. Lee24 participated in a panel vestigation, including internally-initiated in- also provided advice on how to identify and discussion on current trends in white collar vestigations and investigations initiated by manage the different interests and dynam- prosecution and policy in the Western Dis- enforcement actions. Mr. Schwartz and ics in play, during a corporation’s internal trict of Washington and on the national level. Mr. Bundy presented a hypothetical that investigation, between corporate counsel, The panel was moderated by Kristine A. posed a variety of ethical, and potentially counsel for individual executives and em- Costello. Mr. Blackstone and Ms. Gorman legal, dilemmas that counsel for the corpo- ployees, and investigators. discussed the U.S. Attorney’s current pros- ration (including in-house counsel) could ecution objectives and priorities for the Dis- face in these circumstances. The hypo- The panel’s excellent discussion touched trict. Their topics included a focus on pub- thetical and the discussion touched on con- on the following specific issues: (i) What lic corruption, mortgage crimes, computer flict-of-interest issues that come up almost are the company’s duties with regard to crimes, copyright and trademark infringe- immediately. Mr. Schwartz and Mr. Bundy requiring participation in the investigation? ment, and procurement fraud. discussed how best to identify and man- (ii) Must the company give its employees age these issues. They also discussed cor- “Corporate Miranda” warnings?18 (iii) The panel also discussed the implications porate counsel’s duties in dealing with un- What are the potential consequences of of the Thomas Memo and McNulty Memo represented persons. The discussion pro- not doing so? (iv) What can and should for this District. The panel specifically vided an excellent bookend for a very in- the company say to its employees? (v) addressed the District’s practice of requir- formative day. Should employees seek counsel to assist in ing the disclosure of internal investigations, interviews? (vi) What, if any, other pro- and what weight is given to such disclo- tections are available to employees? sures. The AUSAs opined that the gov- 1 Kristine A. Costello is a partner at ernment relies on its own investigative work Costello & Black, P.S., co-chairs the COMPUTER FRAUD and that the weight given to internal inves- Criminal Law Committee of the Federal Bar tigations depends on the circumstances sur- Association of the Western District of 19 Nick Akerman presented on the Com- rounding the investigation, as corporate in- Washington, and co-chaired this CLE. She 20 thanks the speakers and panel participants puter Fraud and Abuse Act (CFAA). He ternal investigations are no substitute for for their contributions to this article. noted that although the CFAA was origi- the government’s own investigative work 2 nally enacted as a criminal statute, it af- and credibility determinations. Jeffrey B. Coopersmith is a partner at DLA fords a private right of action to individuals Piper, and a former Assistant U.S. Attorney. or companies “who suffer damage or loss There was also some discussion about the 3 See United States Attorneys’ Manual by reason of a violation of” the statute.21 new and increasing trend of cooperation (USAM) 9-27.600(A) (available at http:// Mr. Akerman provided a comprehensive with state law enforcement agencies. The www.usdoj.gov/usao/eousa/ review of the statute and the circuit law panel discussed the increased use of state foia_reading_room/usam/title9/27mcrm.

18 FBA-WDWA NEWS htm#9-27.600) (“Except as hereafter 11 See Report of Investigation Pursuant to 18 “Corporate Miranda” warnings are given provided, the attorney for the government Section 21(a) of the Securities Exchange to employees during internal investigations. may, with supervisory approval, enter into a Act of 1934 and Commission Statement on The information communicated typically in- non-prosecution agreement in exchange for the Relationship of Cooperation to Agency cludes notification that the attorney repre- a person’s cooperation when, in his/her Enforcement Decisions (available at http:// sents the corporation and not the employee, judgment, the person’s timely cooperation www.sec.gov/litigation/investreport/34- and that the corporation may decide to turn appears to be necessary to the public interest 44969.htm). over anything told to its counsel during the and other means of obtaining the desired 12 The SEC recently published an enforce- investigation. cooperation are unavailable or would not be ment manual that clarifies its policies, includ- 19 Nick Akerman is a partner in Dorsey & effective.”) ing bringing its policy on requests for privi- Whitney LLP’s Trial practice group, and co- 4 Available at http://www.usdoj.gov/dag/ lege waiver more in line with DOJ policy. See chairs the firm’s Computer Fraud and Abuse speeches/2006/mcnulty_memo.pdf. http://www.dlapiper.com/files/upload/ practice group. 5 See USAM 9-28.000 through 9-28.130; Jef- White_Collar_Alert_Oct08.html. 20 18 U.S.C. § 1030. 13 frey B. Coopersmith and Kevin D. Galbraith, See U.S. v. Reyes, 239 F.R.D. 591 (N.D. Cal. 21 See 18 U.S.C. § 1030(g). New DOJ Guidelines: Fig Leaf To Avoid Leg- 2006). 22 Tessa M. Gorman is an Assistant U.S. At- islation?, www.law360.com, September 2, 14 See SEC v. Dibella, 2007 WL 1395105 (D. 2008. torney for the Western District of Washing- Conn.); SEC v. Cassano, 2000 WL 1512617 ton assigned to the Complex Crime Unit. 6 See January 20, 2003 memorandum from (S.D.N.Y.); SEC v. Herman, 2004 WL 964104 She co-chairs the FBA-WDWA’s Criminal Deputy Attorney General Larry D. (S.D.N.Y.); SEC v. Freiberg, 2007 WL Law Committee. Thompson entitled Principles of Federal 2692041 (D. Utah). The SEC acknowledged 23 Prosecution of Business Organizations its support of selective waivers in the Sea- Carl Blackstone is an Assistant U.S. At- (available at http://www.usdoj.gov/dag/cftf/ board Memo. torney for the Western District of Washing- ton. He supervises the Complex Crime Unit. corporate_guidelines.htm). The purpose of 15 Edward B. Magarian is a partner in 24 the memorandum was to give prosecutors a Dorsey & Whitney LLP’s Trial practice Amanda E. Lee is a partner at Schroeter revised set of principles to guide them as group, and co-chairs the firm’s international Goldmark & Bender. they decided whether to file charges against White Collar Crime and Civil Fraud prac- 25 Irwin H. Schwartz is a private criminal business organizations. tice group. law practitioner. He was formerly an Assis- 7 See Statement of Karen J. Mathis Presi- 16 Leslie J. Hagin is a litigation partner at tant U.S. Attorney and Executive Assistant dent of the American Bar Association be- McNaul Ebel Nawrot & Helgren. U.S. Attorney, and served as Federal Pub- fore the Committee on the Judiciary of the lic Defender for the Western District of Wash- 17 United States Senate Concerning “The Th- Kristin M. Cappel is a principal with ington from 1975 to 1981. He is a past ompson Memorandum’s Effect on the Right Seabold Group, a professional investiga- President of the FBA-WDWA. tion and workplace consulting firm located to Counsel in Corporate Investigations” 26 Robert C. Bundy is of counsel at Dorsey (Sept. 12, 2006). in Seattle, and was formerly an Assistant U.S. Attorney for the Eastern District of New & Whitney LLP. He served as United States 8 On March 7, 2006, a hearing was held on York. Attorney for the District of Alaska from 1994 this subject before the House Judiciary Sub- to 2001. committee on Crime, Terrorism, and Home- land Security. 9 See U.S. v. Stein, 435 F.Supp.2d 330 APPELLATE ECF TRAINING (S.D.N.Y. 2006) (implementation of policy during IRS investigation of KPMG resulted The Ninth Circuit’s new Electronic Case Filing (ECF) system is up and running, and using it in interference with constitutional rights to will become mandatory for most filers on January 2, 2009. Bring your brown bag lunch, see a demo of the new system, and ask questions about opening cases, filing briefs and motions, due process and counsel). and receiving court orders via email. 10 Legitimate need is established based on the likelihood and degree to which the privileged Dates: Monday, December 8, 2008 and Friday, January 9, 2009. information will benefit the investigation, and Times: 12:00 noon, 1:00 p.m., and 2:00 p.m. Location: U.S. Courthouse, 700 Stewart Street, 19th Floor Conference Room. whether it can be obtained in a timely and complete fashion through alternative means. Details are posted on the Ninth Circuit’s Web site (www.ca9.uscourts.gov) and the Web site Possible collateral consequences and the of the Federal Bar Association of the Western District of Washington (www.fba-wdwash.org). completeness of voluntary disclosures previously provided may also be considered. Questions? Contact Ninth Circuit Staff Attorney Liz Noteware at (415) 355-7972. See McNulty Memo at 8-9.

19 FALL 2008

PROFILE OF JUDGE RICHARD A. JONES

By Duncan Manville1

Every job I’ve had,” says U.S. District Judge Richard A. Jones, “I’ve always said was the best job I’ve ever “E had in my life.” Judge Jones feels the same way about his new position, to which he was elevated last year from the King County Superior Court bench – and not just because he now has law clerks.

It’s different in terms of how big Judge Jones was born in Seattle, and grew these cases are. The volume of up in the Central District around the cor- cases. The variety of cases. I ner from Garfield High School. He was don’t try as many cases here by a the youngest of eight children (including his long shot compared to what I tried brother, musician and record producer in Superior Court. But in terms Quincy Jones). The Judge’s parents, a of the degree of complexity, we’ve carpenter and a maid, raised their family in got everything from securities vio- a small two-bedroom house. Things were lations to patent infringement, § “slightly chaotic from time to time,” says grams, yell leading and athletics. He played 1983 actions, class action litiga- the Judge. “But it worked. It worked.” football, but “got knocked out” and real- tion, and complex criminal pros- His parents were tough because times ized that maybe there were better sports ecutions. It’s all over the place in were tough, and because they expected for a boy of his stature. So he threw him- terms of the type of responsibili- much from their children. Judge Jones’ self into track and field and wrestling, a ties that we have. And it’s at a “father particularly was always pressing sport in which he particularly excelled, com- different level of judging. in our minds the importance of education, peting in the state meet. He remains an the importance of being the very best at avid sports fan, and has been known to There is no question that Judge Jones will whatever direction that you wanted to stop by the U.S. District Courthouse in be up to the task. Bucking recent trends, take.” “Once a task is once begun,” the Seattle on weekends in full Washington his March 2007 nomination by President Judge’s father used to say, “never leave it Huskies regalia. George W. Bush was applauded by Demo- ‘til it’s done. Be it a labor great or small, crats and Republicans alike. Senator Patty give the job your very best or not at all.” After graduating from Saint Martin’s, Murray, speaking on the U.S. Senate floor Judge Jones has followed that maxim Judge Jones enrolled at Seattle University, in October 2007, praised Judge Jones’ throughout his life. where he focused on academics and tu- “sensitivity, his professionalism, and his toring inner-city kids. His tutoring work overall sense of fairness”; and noted that Judge Jones attended Saint Martin’s High was a paid position that helped him meet the Judge “enjoy[ed] broad bipartisan sup- School, a Benedictine boarding school in his college tuition obligations. “I had a goal port and … deserve[d] a seat on the fed- Lacey, Washington. The school presented and a mission, and that was to get a good eral bench.” And John McKay, former the Judge with a “wonderful opportunity” education. If you wanted it, you had to go U.S. Attorney for the Western District of to leave a rough neighborhood, avoid out and fund it, because my parents didn’t Washington, called Judge Jones “a fantas- trouble, “learn how to interact with differ- have the financial resources to pay for it.” tic candidate” for the position. The U.S. ent people from different backgrounds,” Senate confirmed Judge Jones’ nomination and develop a college mentality. He was a The tutoring program in which Judge Jones on October 4, 2007, and he was sworn in scholarship student, and worked in the participated was called CARITAS, for on October 30, 2007 as Western school’s cafeteria to help defray tuition Community Action Remedial Instruction Washington’s newest U.S. District Judge. costs. Other than work and academics, Tutoring Assistance Services. The Judge’s his high school interests included social pro- responsibilities included recruiting college,

20 FBA-WDWA NEWS junior college and high school students to A lot of the coaching I received the tutoring program and try to serve as tutors, coordinating their sched- from so-called college counselors catch the evening session from ules and those of the kids they were teach- and advisors was for me to pur- 7:00 to 9:00, then I would do my ing, and testing the kids to make sure their sue a career in the trades. Be- studies for class the next day. I needs were being met. The program be- cause my father was a carpenter, was glad to graduate from school, came more of an “expanded social pro- that was supposed to be indica- so I could just concentrate on one gram,” Judge Jones recalls. tive of my only professional op- thing, that was practicing law. portunity. I always thought being It got to a point where many kids a carpenter would be a wonder- Judge Jones earned his J.D. in 1975. His became dependent upon the pro- ful and great opportunity in life. experience working at the U.S. Attorney’s gram for their social outlet. And But my dad kept pushing me, say- Office had sparked an interest in litigation. so they came in to play. They ing “Richard, you can do far more He recalls that during his third year of law came in to socialize, and for many than what I’m doing right here.” school one of Seattle’s largest law firms it served as an opportunity to get I remember seeing my dad come recruited him. He submitted an applica- a free meal. They came immedi- home after working a graveyard tion, went through the interview process, ately after school. They came in or swing shift, and he’d have mud and had his references checked. At the on the weekends. And for many on his pants. And I’d see him end of the process the person who had ini- of these kids, we turned out to be hauling his tools inside the home. tially contacted him set up lunch for the surrogate fathers. And I saw how hard his existence two of them at Rossellini’s 410, an upscale was, and the hours that he had to Italian restaurant downtown. Judge Jones Judge Jones grew close to many of the work to take care of his family. expected to receive an offer of employ- kids he worked with, and some still keep in He wanted me to do something ment that day, but instead he was bluntly touch. Although a few have passed bigger and better. He didn’t know told that although his lunch companion and through his courtroom over the years, oth- what it was. And I didn’t know others at the firm had recommended that ers have charted a more positive course, what it was. I just knew that the he be hired, the firm would not extend him and from time to time they let the Judge law looked like a way to gain that an offer due to concern that clients would know what is going on in their lives and freedom and independence. react negatively to being represented by a with their families. Judge Jones enjoys re- black lawyer. Judge Jones was furious. ceiving these updates. Judge Jones enrolled at the University of He consulted with several attorneys (in- Washington School of Law, where he again cluding Lembhard G. Howell and former Judge Jones graduated from Seattle Uni- juggled academics and work. For the first Washington State Supreme Court Justice versity in 1972 with a degree in public af- two years of school he continued to work Charles Z. Smith, both longtime friends and fairs. He had become interested in attend- as a tutoring coordinator and bookkeeper mentors) about whether to sue, but decided ing law school because he believed that as for CARITAS. He also took a position as against litigation because he did not want a lawyer he could be independent and con- a law clerk in the office of the U.S. Attor- to undermine his chances of being hired by trol his career path. His original passion ney for the Western District of Washing- another firm, and because “frankly, I didn’t had been education, but the early 1970s ton, where he “did a little bit of everything” have the financial resources to take on a were a period of frequent strikes and tre- – including writing legal briefs, assisting with firm that large.” mendous instability in the market for teach- investigations, and preparing cases for trial. ers, and the Judge wanted a more stable Judge Jones promptly sent out a flurry of profession. He also viewed becoming a I can remember a schedule where resumes, and within a week or two he re- lawyer as a challenge, a response to the I would perform my bookkeeping ceived an offer from the King County message that he could not succeed as an duties in the morning, then I would Prosecutor’s Office. That offer “took attorney because he had no culture in the go to class at law school. And I some of the sting away,” says the Judge. law – no lawyers in the family and no fam- would get three or four classes “And it actually proved to be probably a ily connections to lawyers. “Somebody just out of the way. Then I had to better thing for me, because that’s what I said no,” Judge Jones explains. “And that rush back and work at the U.S. wanted to do in the first place, become a put up the target for me to pursue and go Attorney’s Office, where I typi- good trial lawyer.” He accepted the offer after it.” cally worked from 1:30 until 5:30 and became a Deputy Prosecutor for King or 6:00. And I would go back to County.

21 FALL 2008

Judge Jones began working at the Shore- phone. That was the umbilical tuitous. He was in that office one day de- line District Court and the Federal Way cord getting cut. And that was my fending the deposition of a doctor whom District Court. He had one week of train- true beginning as a trial lawyer. he was representing. At the end of the ing, during which he spent a couple of days deposition (and after his client had left), watching his mentor attorney, Frederick Judge Jones enjoyed the challenges of the prosecutor in the case took him around Mendoza, handle a number of misde- working for the King County Prosecutor’s the office to visit with former colleagues. meanor trials. After a few days Mendoza Office. Occasionally he would be handed Judge Jones said hello to some old friends, told Judge Jones, “Ok, this is your first a file in a case that was going to trial that including U.S. Attorney Gene Anderson, case. Just go up there and try it.” “So I same day, and would have to scramble to who suggested that the Judge join his of- walked up,” Judge Jones recalls, “and I put the case on effectively. He generally fice as an Assistant U.S. Attorney “and do struggled my way through my first speed- had more time to prepare, though, and he some real work.” Judge Jones applied for ing ticket.” He handled several more short learned how to conduct an investigation, and got the job. He enjoyed the work im- trials, and Mendoza told him he had done find and call witnesses, put cases together mensely – largely because of the indepen- just fine. and try them. He became comfortable in dence and responsibility that Assistant U.S. the courtroom and honed his trial skills. He Attorneys have to direct investigations, The following Monday, Deputy Prosecu- handled hundreds of misdemeanor trials build cases, present them at trial, and liti- tor H. Duane Evans was supposed to come and at least 25 to 35 felony trials during gate matters on appeal. with Judge Jones and supervise his han- this period. dling of the calendar. After several years at the U.S. Attorney’s After three years in the King County Office, Judge Jones started to do some I remember turning around and Prosecutor’s Office, Judge Jones left in “soul-searching” about how long he looking at Duane when they called 1978 to become the first staff attorney at wanted to be a litigator. He enjoyed the the calendar at 9:00 a.m., and the Port of Seattle. In that capacity he work, but found that fewer and fewer of Duane was sitting in the front row provided legal advice to all divisions of the his cases were going to trial. He applied and he waived and he said, Port – the Aviation Division, the Real Es- for appointment to the King County Supe- “You’re fine. Go ahead. Go for tate Division, the Port Police, and so on. rior Court, and was reviewed by various it!” And then we got into it, and He dealt with union issues, strikes and First bar committees. After King County Supe- about the third or fourth trial that Amendment claims. He worked with the rior Court Judge Frank L. Sullivan passed morning on the calendar, I turned Washington State Human Rights Commis- away in July 1994, Judge Jones sent a re- back to look at Duane and he was sion and the U.S. Equal Employment Op- quest to the Governor’s Office to be con- gone. And I called back at lunch- portunity Commission. He used “every- sidered to fill the vacancy. This was on a time and said, “Duane, where are thing he learned in law school,” and devel- Tuesday. Judge Jones received his appoint- you at?” And he said, “You didn’t oped an entirely new set of legal skills. ment three days later. need me, you were doing fine.” In 1983 he had the opportunity to partici- So a couple of days later, I ran The following Monday, however, was the pate in an exchange program with one of into an issue where lawyers raised beginning of filing week. Three other can- the law firms that was serving as outside the question of compromising mis- didates filed for the position, thinking it was counsel for the Port, Bogle & Gates. At demeanors, and I’d never heard vacant, and Judge Jones found himself si- the end of the exchange period, the Bogle of this, and I thought somebody multaneously winding down his practice at firm offered him a job and the Port ex- was trying to pull a fast one on the U.S. Attorney’s Office, learning a new pressed a desire to keep him in a staff at- me to get a case dismissed. And job, assembling a campaign team, and cam- torney position and expand his role in man- so I remember calling downtown paigning for the seat to which he had just agement. He had to decide whether he and asking for assistance from my been appointed. He “campaigned like wanted to be a manager or whether he supervisor, Fred Yeattes. I said, crazy,” and won the election in the primary. had a greater passion for the practice of “Fred, I’ve got this problem. He would not be challenged again. law. He took the Bogle job, and spent the We’re in recess. The judge told next five years at the firm practicing civil me I’ve got five minutes. Can On the Superior Court bench Judge Jones commercial and labor litigation. you give me a hand?” And he found himself surrounded by intense and said, “You’re the prosecutor. Fig- In 1988 Judge Jones moved on to the U.S. bright colleagues with whom he quickly ure it out.” And he hung up the Attorney’s Office. The transition was for- established close friendships. The job was

22 FBA-WDWA NEWS stimulating and demanding – particularly This little girl cried uncontrollably ber at the National Judicial College and the since an enormous amount of paperwork in court, and she had to go through National Center for Courts and Media; and crosses a Superior Court Judge’s desk ev- the victimization process over and he serves on the University of Washington ery week, and Judge Jones read every- over and over again. That was a Law School Advisory Committee and the thing that came in. “I’ve always main- horrible experience. And people board of directors of the YMCA of Greater tained that practice. If a pleading comes don’t realize that, as trial judges, Seattle (he has held this position for almost in before I go out on the bench, I will never particularly in superior court, you twenty years, and served as board presi- go out on the bench without familiarizing see that type of circumstance, dent from 2000 to 2002). For the past sev- myself with the facts and the details of the those combinations of events, hap- enteen years he has been a University of case and having enough information to talk pen all the time. And judges have Washington Law School mentor. He has to the lawyers.” the responsibility of dealing with received numerous awards, including most those cases, trying to be fair, try- recently the Loren Miller Bar Association My typical approach now when ing to be impartial. And at the Professional Achievement Award (2001); lawyers come in, even on sum- same time you have to walk away the YMCA Volunteer of the Year Award mary judgment motions, is before and leave that at work and not (2003); the Seattle University School of the lawyers say anything, I indi- carry it with you. So those are Law Investment in Justice Award (2003); cate to counsel there are several experiences that you remember, Outstanding Judge Awards from the Wash- questions I want to make sure are and it just makes you a little bit ington State Bar Association, the Wash- answered before we go any fur- more attentive the next time to ington State Trial Lawyers Association, the ther. The lawyers know I’ve read make sure that you’re compas- Asian Bar Association of Washington State, the briefings, I’ve read the plead- sionate. and the King County Bar Association (all ings, and I’m comfortable with the in 2004); Seattle University’s Alumnus of facts. That saves the lawyers Judge Jones approaches his new job with the Year Award (2004); the YMCA’s A.K. time, and they can focus on their the same civility and compassion that he Guy Award (2007); and an honorary doc- legal arguments. And your court- demonstrated on the King County Supe- torate of humane letters from Saint Martin’s room can be much more efficient. rior Court bench. “The best thing about University (2008).2 being a judge,” he says, “is having a real Judge Jones presided over a number of opportunity to have some involvement in Judge Ricardo S. Martinez, Judge Jones’ high-profile cases during his years on the changing people’s lives. I can’t tell you friend since law school and his new neigh- King County Superior Court bench. The over the years how many letters I’ve re- bor at the U.S. Courthouse in Seattle, ex- most famous of these was the murder trial ceived from different individuals, whether plains that Judge Jones is a leader in the of Gary Leon Ridgeway, the “Green River they were jurors, defendants, litigants and truest sense of the word: Killer.” Other memorable cases include a lawyers or even witnesses, talking about trial of six defendants charged with aggra- how they were treated when they came Judge Jones has demonstrated an vated murder, one of whom overturned a into the courtroom.” Judge Jones worries incredible commitment to this heavy oak table during the trial and at- about the erosion of judicial independence, community and especially to its tempted to attack the Judge; and a moles- believing that judges take their obligations young people. Real leadership is tation case in which a ten-year-old girl had seriously and should be given the latitude not about the position one holds. to testify against her father, who was the to take actions that they think are appro- It’s about the depth of one’s char- defendant. priate in a given case. “Once you start to acter and commitment. Judge trample upon the independence of the judi- Jones is life tenured and will never She was telling me that the only ciary to be able to make decisions,” opines have to run for election, yet he reason she had said anything was the Judge, “I think that’s justice in jeop- still devotes an enormous amount because she didn’t want to have ardy.” of time towards helping young happen to her little sister what had people understand and try to real- happened to her; but at the same Judge Jones’ passion for justice is reflected ize their potential. The genuine time, she felt bad because she felt in the leadership role he has played in a passion that he shows towards our it was her responsibility, and that myriad of community organizations and community and its youth truly ex- was the reason why her father programs. Currently, he is a faculty mem- emplifies leadership. I’m honored was being sent away to prison.

23 FALL 2008

to have him as a colleague on the federal bench and even more RECIPROCAL DISCIPLINE AND CHANGES proud to call Richard Jones my TO THE LOCAL FEDERAL RULES friend.

1 As a King County Superior Court Judge By Felice P. Congalton, Joanna Plichta Boisen, and Alexander A. Baehr and community leader, Judge Jones forged Reprinted with the permission of the Washington State Bar News a reputation for being smart, hard-work- ing, professional, compassionate and fair. his article describes reciprocal discipline in Washington and, Those qualities were instilled in him by his parents, and nurtured by experiences that more specifically, its relationship to local rule changes in the taught him the value of hard work and the TUnited States District Court for the Western District of Wash- importance of helping others overcome ington. Lawyers should know that an order imposing discipline in life’s obstacles. They are qualities that federal district court can be the basis for the Washington State have earned him universal respect, and will undoubtedly make him an outstanding U.S. Supreme Court to impose the same discipline, affecting a lawyer’s District Judge. broader ability to practice law in Washington state. Whether disci- pline is imposed in federal district court, or otherwise, a Washing- 1 Duncan Manville is of counsel at Savitt & ton lawyer has a duty to report to disciplinary counsel the entry of a Bruce LLP, and co-chairs the Website/ disciplinary order in another jurisdiction. Communications Committee of the Federal Bar Association of the Western District of Washington. WHAT IS RECIPROCAL DISCIPLINE? When the Supreme Court receives a certified copy of a disciplinary order, it 2 In addition: Judge Jones was previously Reciprocal discipline is a public proceed- orders the respondent lawyer to show an instructor at the United States Attorney General’s Advocacy Institute; the Executive ing against a lawyer who has been disci- cause why it should not impose the iden- Office of the United States Attorney in plined in another jurisdiction to impose tical discipline. With some exceptions, a Washington, D.C.; and the Washington corresponding discipline in Washington. final adjudication in another jurisdiction State Judicial College (where he served as Because reciprocal discipline is a public that a lawyer was guilty of misconduct dean in 1997 and 1998). He has served on proceeding, the record and nature of the conclusively establishes the misconduct the KCBA Awards Committee, the KCBA discipline in the other jurisdiction become for the purposes of a disciplinary pro- Martin Luther King Jr. Celebration Commit- available in Washington when the pro- ceeding. The Supreme Court will im- tee (which he co-chaired), the Washington ceeding is initiated. The rules governing pose identical discipline against the law- State Minority Justice Commission, the reciprocal discipline make it unnecessary yer unless the lawyer or disciplinary Northwest Minority Job Fair Committee, the to relitigate a complaint that has been counsel demonstrates, or the Supreme KING-TV Community Advisory Forum, and the Seattle University Board of Regents. He fully and finally litigated in another juris- Court finds, that there was a procedural 2 co-chaired the Youth Law Forums in Yakima diction. irregularity or infirmity in the underlying and Tri-Cities. From 1987 to 1994 he chaired proceeding, or other reason as described the Loren Miller Bar Association Thanks- In Washington, Rule 9.2 of the Rules for in ELC 9.2(e)(1), that identical discipline giving Food Drive. Additional awards in- Enforcement of Lawyer Conduct (ELC) would be inappropriate. clude the KCBA’s Affirmative Action Award provides that disciplinary counsel must (1991); the WSBA’s Special Recognition obtain a certified copy of a disciplinary FEDERAL COURTS A RE “ANOTHER JU- Award for Furthering Equal Opportunity order when notified from any source that RISDICTION” FOR PURPOSES OF RECIP- (1991); the U.S. Attorney’s Director’s Award a lawyer admitted in Washington was ROCAL DISCIPLINE for Superior Achievement in Furthering Equal disciplined in another jurisdiction. Upon Employment Opportunity (1993); the Seattle receipt of the disciplinary order, disciplin- University Public Service Award (1995); and The Washington State Supreme Court the University of Washington Law School ary counsel must file the order with the has imposed reciprocal discipline based Alumni Public Service Recognition Award Washington State Supreme Court. on disciplinary orders from a number of (1995). states (Alaska, Arizona, California, Colo-

24 FBA-WDWA NEWS rado, Hawaii, Illinois, Massachusetts, tion of discipline, and reciprocal disci- ministrative body which regulates the Michigan, Montana, New Hampshire, pline. practice of attorneys.” An attorney sub- New Jersey, Oregon, Rhode Island, ject to the disciplinary jurisdiction of the Wyoming), from the Commonwealth of Although the old rule briefly discussed court in the Western District has an af- the Northern Mariana Islands, and from the consequences and rights of an attor- firmative obligation to provide the clerk British Columbia. The Supreme Court ney facing disciplinary action before the of the court with a copy of the other also reciprocated discipline based on an court, it did not expound on the various jurisdiction’s disciplinary letter, notice, or order in a military tribunal. grounds for discipline and the attorney’s order. For purposes of the reciprocal rights in such proceedings. The 2005 discipline section, discipline refers to dis- In proceedings in 2005, the Washington rule, however, plainly lists all of the barment, suspension, or disciplinary ac- State Supreme Court reciprocated dis- grounds on which an attorney may be tion that temporarily or permanently de- cipline based on a disciplinary order sus- subject to disciplinary actions and the prives an attorney of the right to prac- pending a lawyer from practice in the attorney’s procedural rights. The attor- tice law. In addition, if an attorney re- United States District Court for the ney discipline section includes a list of signs from the bar of any other jurisdic- Western District of Washington. Al- sanctions (disbarment, suspension, in- tion while disciplinary proceedings are though the federal district court disciplin- terim suspension, reprimand, admonition, pending in that jurisdiction, the attorney ary order pre-dated more comprehen- probation, restitution, payment of fines/ must notify the clerk of the court. sive local rule changes in the Western costs, referral to another appropriate dis- District for the handling of the investiga- ciplinary authority) and Standards of Pro- CONDUCT IN FEDERAL COURT THAT tion and prosecution of disciplinary pro- fessional Conduct (the District’s Local COULD LEAD TO DISCIPLINE AND RE- ceedings (as discussed below), the or- Rules, the Rules of Professional Con- CIPROCAL DISCIPLINE der was sufficient basis for the Supreme duct, Federal Rules of Civil and Crimi- Court to reciprocate discipline from “an- nal Procedure, General Orders of the Among other things, GR 2(f) contains other jurisdiction.” Recently, proceed- Court). Grounds for discipline include Standards of Professional Conduct that ings for reciprocal discipline were initi- violations of the Standards of Profes- must be followed. There are a number ated in a second case based on a disci- sional Conduct, discipline by another au- of unique aspects to federal practice plinary order in the Western District. thority, conviction of a felony or a mis- which, if not understood, could lead to demeanor involving dishonesty or corrup- violations of those standards, discipline RECENT CHANGES TO GR 2(F) IN THE tion,4 and misrepresentation or conceal- in federal district court, and subsequent WESTERN DISTRICT OF WASHINGTON ment of a material fact made in an appli- reciprocal discipline by the Washington cation for admission to the court, or in a State Supreme Court. Two of these as- The United States District Court for the pro hac vice or reinstatement applica- pects (involving local counsel assign- Western District of Washington’s Gen- tion. ments and declarant signatures) related eral Rule (GR) 2, entitled “Attorneys,” to practice in the Western District of governs professional conduct, reporting RECIPROCAL DISCIPLINE: REPORTING Washington are highlighted below. obligations, procedures, and due process RESPONSIBILITIES FOR ATTORNEYS rights in disciplinary actions. Enacted in WHO PRACTICE IN THE WESTERN DIS- Local counsel practice has become an 1992 and amended in 1994, 1997, 2002, TRICT ever-growing need as matters in the and 2005, the rule has been reviewed Western District of Washington increase and modified over the years, but GR 2(f) Similar to ELC 9.2, GR 2(f) provides that in complexity, size, and geography. Be- received its most significant facelift in a lawyer disciplined elsewhere can be fore accepting a local counsel assign- 2005.3 The changes to GR 2(f) include disciplined in the Western District. The ment, lawyers should be aware of the several new explanatory categories reciprocal discipline section of GR 2(f) obligations imposed by the Western (grounds, types of discipline) and spe- incorporates discipline by any other ju- District’s Local Rules. GR 2 imposes cifics on the handling of grievances and risdiction, which includes “any federal or specific obligations on a lawyer who initial investigations, appointment of spe- state court, bar association or other gov- agrees to act as local counsel for a for- cial disciplinary counsel, immunity, no- erning authority of any state, territory, eign non-admitted lawyer in a specific tice and hearing, confidentiality, imposi- possession, or the District of Columbia, case. GR 2(d) requires the local coun- or any other governing authority or ad- sel (and not the pro hac vice admitted

25 FALL 2008 counsel) to “sign all pleadings” that are viewed as originals when filed with the 2 See In re Disciplinary Proceeding Against filed with the court and to comply with court. However, under the court’s ECF Dann, 136 Wn.2d 67, 85-86, 960 P.2d 416 Civil Rule (CR) 10(e).5 Because local guidelines, the filing party must keep the (1998) (quoting In re Disciplinary Proceed- counsel is required to sign all filed plead- paper document with “original” signa- ing Against Immelt, 119 Wn.2d 369, 371, 831 ings, it becomes local counsel’s respon- tures for the duration of the case and P.2d 736 (1992)). sibility to ensure compliance with rules any appeals. A responding party can 3 The rule has increased from one-and-a-half like Federal Rule of Civil Procedure object to the authenticity of the declara- pages to more than five pages and contains (Fed. R. Civ. P.) 11 and Local Civil Rule tion, or the authenticity of the signature, many more detailed explanations. 37. within 10 days of filing.7 Securing the 4 This includes those matters listed in ELC original signed declaration at the time of 7.1(a)(2)(B)–(C). An example of the importance of this filing ensures that the lawyer submitting 5 CR 10(e) imposes formatting obligations obligation on local counsel involves dis- the declaration has been candid with the for all pleadings submitted in the Western covery of electronically stored informa- court and opposing counsel in terms of District, which are familiar to those lawyers tion (ESI). Typically, the lawyer with having an original signed declaration. By who practice regularly in the Western Dis- the primary client relationship manages trict but possibly new to lawyers admitted contrast, failure to secure the original sig- pro hac vice. It remains the local counsel’s the discovery process. However, in a nature could lead to claims that a decla- obligation to ensure compliance with this local counsel setting, the ESI discovery ration was submitted without the author- rule, regardless of whether pro hac vice coun- process might not be managed by the ity of the declarant and could lead to sel files the at-issue pleading. local counsel but by the pro hac vice action against the lawyer, including dis- 6 See R & R Sails, Inc. v. Ins. Co. of Pa., 2008 counsel who presumably has the primary ciplinary action by the court. WL 2232640 (S.D. Cal. April 18, 2008). attorney-client relationship. Nonetheless, 7 See United States District Court, Western it is the local counsel’s responsibility un- CONCLUSION District of Washington ECF User’s Manual der GR 2(d) to ensure that the pro hac at 21–22. vice counsel complies with the federal The local federal rules concerning law- rules regarding ESI, and local practice yer discipline have changed considerably on discovery. In a recent case, a fed- in recent years. Lawyers should be FBA-WDWA ANNOUNCES eral district court imposed sanctions un- aware that misconduct in federal district SLATE OF OFFICERS der Fed. R. Civ. P. 26(g) and 37 against court may be treated for disciplinary pur- AND TRUSTEES a lawyer and his client for failure to pro- poses like misconduct committed by the duce ESI in a timely manner.6 The dis- lawyer in another state. In addition to The Federal Bar Association of the trict court ordered the defendant either discipline in federal district court, the Western District of Washington has to produce certain documents or to sub- misconduct can lead to reciprocal disci- announced its proposed slate of of- mit a sworn declaration that the records pline by the Washington State Supreme ficers and trustees for 2008-2009. did not exist. The defendant submitted Court. The slate is: a sworn declaration from a senior em- ployee stating that the specific documents President: did not exist, but the statement was in- 1 Felice P. Congalton is senior disciplinary Stuart R. Dunwoody counsel with the Washington State Bar As- accurate. If facts similar to R & R Sails Vice-President: sociation, and a member of the Ethics and are presented in a matter in the Western J. Kirkham (Kirk) Johns District with local counsel representa- Practice Committee of the Federal Bar As- sociation of the Western District of Wash- tion, local counsel could be accountable Treasurer: ington. Joanna Plichta Boisen is pro bono Jane E. Pearson under GR 2(d). legal counsel at Foster Pepper PLLC, a member of the Ethics and Practice Commit- Secretary: In another aspect of local federal prac- tee, and Co-Chair of the FBA-WDWA’s Alexander A. Baehr tice, pleadings are filed easily through the Website/Communications Committee. Trustees: Western District’s Electronic Case Fil- Alexander A. Baehr is a partner at Dorsey ing (ECF) system. It has now become & Whitney LLP, and co-chair of the Ethics Ivy D. Arai commonplace to secure “electronic sig- and Practice Committee. Frederick B. Rivera natures” from declarants, which are

26 FBA-WDWA NEWS

available to the prosecution during the MILITARY HISTORY MEETS CURRENT trial and had subsequently been buried EVENTS IN POWERFUL ANNUAL in the national Archives for four decades. DISTRICT MEETING AND CLE The lead prosecutor in the 1944 court martial was Leon Jaworski, who went By David B. Bukey and Judith H. Ramseyer1 on to great fame and distinction, notably as special prosecutor in the Watergate highlight of the year in the Western District of Washington was case. The lead defense counsel was William T. Beeks, who later served for the Annual District Meeting that took place on May 9 at the many years as a distinguished U.S. Dis- AUnited States Courthouse in Seattle. A packed house of over trict Judge for the Western District of 120 people attended the meeting. An opening plenary session reviewed Washington. The defense had less than two weeks to prepare for trial. Mr. Noyd the famous 1944 court martial of 43 African-American soldiers at Fort confirmed Mr. Hamann’s descriptions of Lawton in Seattle following a riot in which an Italian prisoner of war his and Judge Beeks’ efforts to defend, had been found hanged. The panel for the session was lead by Jack in a very compressed time frame, forty- Hamann, a local journalist and author of the prize-winning book On three clients (including three facing the death penalty) with frequently-conflict- American Soil: How Justice Became a Casualty of World War II. ing defenses. Twenty-eight of the sol- The book explores the themes of justice in times of war and stress, diers charged in the case were convicted possible wrongful convictions, the limits of appropriate conduct by of offenses ranging from rioting to man- prosecutors and others, and reforms that followed what is generally slaughter. The discussion traced the defense’s successful efforts to save the considered to be a low point in the annals of military law. Break-out lives of the three murder defendants, and panel sessions pursued two of those themes in-depth. One panel dealt the eventual exoneration of all twenty- with developments in military law, with particular emphasis on current eight convicted soldiers. Professor Hillman and Judge Lasnik provided in- issues associated with the War on Terror and the conflict in Iraq, and sight about reforms to the Code of Mili- the other panel addressed the work of the Innocence Project, featuring tary Justice that were implemented in as part of a distinguished panel Herman Atkins, an exoneree who spent part as a result of this court martial, and twelve years in prison for crimes he did not commit. Judges, lawyers the overall changes that have occurred in the delivery of justice since 1944. The and other attendees uniformly praised the event as perhaps the best sense of history, especially vignettes of seminar presented at any District Meeting. a segregated society that existed not too long ago; the poignancy of the events, PLENARY SESSION: ON A MERICAN SOIL of the Law; and Howard D.E. Noyd, personified by Mr. Noyd, an actual par- – A PANEL DISCUSSION retired general counsel for Unigard In- ticipant; and Mr. Hamann’s relentless ef- surance, who served as one of the de- forts to unearth the true story of this trial The opening session was moderated by fense attorneys in the 1944 court mar- and its aftermath, created a stunning and Harry H. Schneider, Jr., who has been tial. Mr. Hamann described the events powerful presentation. deeply involved in current military jus- of the 1944 riot, the ensuing military trial tice issues through his pro bono repre- and its participants, and his effort to un- BREAKOUT SESSION ON MILITARY LAW sentation of Salim Hamdan, a earth and expose the injustices that had Guantanamo Bay detainee. Panel par- occurred – an effort that succeeded The breakout session on military law was ticipants included Mr. Hamann; Chief through research, extensive personal in- moderated by Jenny A. Durkan. It fea- Judge Robert S. Lasnik; Professor Eliza- terviews of participants and their rela- tured former JAG officer and current beth Hillman, a scholar and expert on tives, and discovery of an Inspector U.S. District Judge Benjamin H. Settle; Military Law from UC Hastings College General’s report that had only been made Professor Hillman, author of the book

27 FALL 2008

Defending America: Military Culture his wife to help exonerees with basic ne- Foundation. These sums were matched and the Cold War Court-Martial; and cessities as they attempt to reintegrate by the Federal Bar Association of the Lt. Commander Brian Mizer of the U.S. into their communities. Judge Bryan, a Western District of Washington, for a Navy JAG Corps, who, along with Mr. trial judge for almost 40 years, offered total contribution of $2,000 to each group. Schneider, represented Mr. Hamdan. highly insightful observations about the Monies donated to the 1944 Fort Lawton The panel captivated the audience with balances and tensions that exist in the Courts-Martial Tribute helped bring the a discussion of the history of the courts delivery of justice. He described his few surviving veterans of the court mar- martial system and its influence on and experiences with death penalty cases, in- tial and their family members to Seattle differences from the military tribunal cluding a case in which he granted ha- in July 2008 for a ceremony in which an system for “enemy combatants.” The beas corpus relief to a petitioner under Army representative formally apologized panelists debated whether a separate tri- sentence of death. for “a grievous wrong.” bunal system was needed when both the federal courts and the courts martial sys- DONATIONS TO THE 1944 FORT 1 tem have been successfully employed to LAWTON COURTS-MARTIAL TRIBUTE David B. Bukey owns the Law Offices of David B. Bukey, and serves as a Co-Chair prosecute many high-profile cases in- AND THE LIFE FOUNDATION volving classified information and national of the Ninth Circuit Lawyer Representa- security. The corrosive effects of politi- tives. Judith H. Ramseyer owns the Law Due to the powerful effect of the Dis- Offices of Judith H. Ramseyer PLLC. She cal pressure to obtain convictions were trict Meeting and in view of its great suc- also serves as an At-Large Member of the discussed, along with worrisome issues cess, the Ninth Circuit Lawyer Repre- Ninth Circuit Conference Executive Com- surrounding the use of evidence alleg- sentatives in attendance contributed mittee, and chairs the Pro Bono Committee edly obtained by torture. $1,000 to the 1944 Fort Lawton Courts- of the Federal Bar Association of the West- Martial Tribute and $1,000 to the LIFE ern District of Washington. BREAKOUT SESSION ON THE INNOCENCE PROJECT PUBLIC NOTICE This breakout session was led by Tho- REGARDING REAPPOINTMENT OF INCUMBENT mas W. Hillier, II, Federal Defender for PART-TIME U.S. MAGISTRATE JUDGE DEAN BRETT IN THE the Western District of Washington. Join- WESTERN DISTRICT OF WASHINGTON AT BELLINGHAM ing the discussion were Professor Jacqueline McMurtrie from the Univer- The current four-year term of office of part-time U.S. Magistrate Judge Dean Brett is due to sity of Washington Law School, Mr. expire on June 22, 2009. The U.S. District Court is required by law to establish a panel of Atkins, and U.S. District Judge Robert citizens to consider the reappointment of the Magistrate Judge to a new four-year term. J. Bryan. Professor McMurtrie de- The duties of the part-time Magistrate Judge position include the following: (1) trial and scribed the work of the Innocence disposition of petty and misdemeanor cases arising from Whidbey Island Naval Air Station; Project Northwest, which has obtained (2) conduct of regular calendars involving charges of traffic offenses and violations of park the exoneration of eleven people sent to regulations in Mt. Baker National Park, and in other areas within federal jurisdiction; (3) prison for crimes they had not commit- conduct of various preliminary proceedings in criminal cases. The jurisdiction of the Part- Time Magistrate Judge is specified in 28 U.S.C. 636(a). ted. Professor McMurtrie outlined cer- tain factors – including some present in Comments from members of the bar and the public are invited as to whether the incumbent the Fort Lawton trial – that research has Magistrate Judge should be recommended by the panel for reappointment by the court and shown contribute to wrongful convictions. should be directed to: Mr. Atkins discussed his own situation Bruce Rifkin, District Court Executive (conviction for rapes he had not com- United States Courthouse mitted and twelve years in prison before 700 Stewart Street, Lobby Level his release), the efforts of the Innocence Seattle, Washington 98101 Project on his behalf, and his ultimate Or by e-mail at [email protected] exoneration through the use of DNA evi- dence. He also described the LIFE Comments must be received no later than December 31, 2008. Foundation, a group that he founded with

28 FBA-WDWA NEWS

that trial skills and oral advocacy do not LAWYERS AND JUDGES GATHER IN become lost arts. SUN VALLEY FOR NINTH CIRCUIT A presentation on the nature of fires in the JUDICIAL CONFERENCE western United States was both comfort- ing and scary – comforting because fire is By Paula T. Olson1 a necessary and curative natural process, and scary because overdevelopment has n the arid beauty of Idaho’s Sun Valley, Ninth Circuit Court of radically changed how long and hot mod- Appeals Chief Judge Alex Kozinski graciously hosted his first ern fires burn and how dangerous fire fight- Ninth Circuit Judicial Conference in late July 2008. ing is today. The panel presentation in- I cluded vivid descriptions of life on the fire This year’s conference had many high- of experts discussed the impact of televi- line. During the presentation Judge Rich- lights. One was a review of the Ninth Cir- sion forensic shows (such as Crime Scene ard R. Clifton was dressed in the multiple cuit cases heard by the U.S. Supreme Court Investigation, or CSI) on jurors in the court- protective layers of the average fire fighter. during its 2007-2008 term. Although the room. Research suggests that good trial One of the high points of the conference Supreme Court reversed in eight of the ten attorneys must be very aware of the huge was a conversation with U.S. Supreme Ninth Circuit cases it reviewed, other cir- influence that television can have on ju- Court Justice Anthony M. Kennedy. He cuits’ statistics showed identical or higher rors’ deliberations. gave attendees wonderful insights into his

Judge Marsha A. Pechman, Jenny A. Durkan, Judge Barbara J. Rothstein Tracy M. Morris, Judith H. Ramseyer, Judge Richard A. Jones reversal rates. It was also reported that of In the collaborative session, entitled “Break- personal life, suggested a “must read” book the 71 cases the Supreme Court decided fast with the Bench,” the participants dis- list for aspiring attorneys, and shared his in 2007-2008, Justice Clarence Thomas cussed whether experienced lawyers and views of current events and work on the wrote the most opinions, and Chief Justice judicial officers are effectively training new court and abroad. John Roberts voted with the majority most lawyers in the skills of trial and argument. often. The question arises because alternative Finally, congratulations to Judith Ramseyer dispute resolution procedures have dramati- for her election to a three-year term on the A session entitled “Executive Power: Does cally reduced the number of trials in fed- Lawyer Representative Coordinating Com- the President Have to Obey the Law?” eral court, and because written motions mittee as an “at large” member. included very interesting historical and eliminate most oral arguments. While no modern perspectives on the constitutional clear conclusions were drawn, explora- 1 powers granted to the President. In an- Paula T. Olson is an associate with Burgess Fitzer P.S., tion of the issues made attendees much and serves as a Ninth Circuit Lawyer Representative. other session, an extremely qualified panel more aware of their obligation to ensure

29 FALL 2008

ANNUAL DINNER AND CLE

WEDNESDAY, DECEMBER 10, 2008 The Fairmont Olympic Hotel, 411 University Street, Seattle, Washington

FEDERAL PRACTICE CLE 1:00 P.M. TO 5:00 P.M.; $130 FBA members; $150 non-members ($100 public interest/government) Promoting the Useful Arts: Invention, Innovation, and the Reformation of Patent Law and Policy. Article I, Section 8, of the U.S. Constitution grants Congress the power to promote the progress of science and the useful arts by securing exclusive rights to inventors for limited times. Congress is considering significant reforms to patent law, while the U.S. Supreme Court has been unusually active in the field, remaking patent law in a series of major decisions over the past three years. At the same time, new models and approaches for promoting invention and innovation have emerged. How are the changes in the law affecting inventors and innovators? How do we strike the right balance to promote the useful arts? Ramsey Al-Salam, Perkins Coie LLP Hon. James P. Donohue, U.S. Magistrate Judge John J. Murphy, T-Mobile USA, Inc. Nathan Myhrvold, Intellectual Ventures, LLC (invited) Brooke A. M. Taylor, Susman Godfrey LLP Immigration Law and Enforcement in the Federal Courts: How Is It Working? Our immigration laws, policies, and practices intersect with the federal courts in a variety of ways. On the criminal side, immigration enforcement focuses on the illegal reentry of aliens who have committed crimes and then been deported from the United States, although cases involving alien smuggling and the employment of illegal aliens capture a greater share of public attention. On the civil side, there have been notable challenges to the administrative aspects of our immigration laws, including lawsuits filed in this district challenging lengthy detentions and delays in the processing of citizenship applications. Since September 11, 2001, pressures on immigration law and enforcement have mounted. How are the courts handling these matters? Rita V. Latsinova, Stoel Rives LLP Hon. Ricardo S. Martinez, U.S. District Judge Brian C. Kipnis, U.S. Attorney’s Office Hon. Brian A. Tsuchida, U.S. Magistrate Judge Shaping the Courts: Presidential Efforts to Mold the Judiciary. U.S. Presidents have taken varying approaches to their power to nominate judges to serve on the federal courts. Some have sought to implement their own politics in the judicial branch, while others have taken less ideological approaches. What approaches have we seen in the past? What are we likely to see from our new President-Elect? Jenny A. Durkan, Attorney at Law Hon. Betty Binns Fletcher, U.S. Circuit Judge Linda Greenhouse, Yale Law School Michael D. McKay, McKay Chadwell, PLLC Local Rules Update. The U.S. District Court for the Western District of Washington is adopting revisions to the Local Rules. Judge Robart and Magistrate Judge Theiler will provide us with the highlights of those revisions, which include significant changes to the procedures for sealed filings. Hon. James L. Robart, U.S. District Judge Hon. Mary Alice Theiler, U.S. Magistrate Judge

ANNUAL RECEPTION AND DINNER Reception 5:30 p.m., Dinner 7:00 p.m.; $110 per person

Guest Speaker Linda Greenhouse Knight Journalist-in-Residence and Joseph M. Goldstein Senior Fellow in Law, Yale Law School, Supreme Court correspondent, New York Times, 1978-2008 REGISTER AT www.fba-wdwash.org

30 FBA-WDWAFBA-WDWA N NEWSEWS

FEDERAL BAR ASSOCIATION of the Western District of Washington OFFICERS President Tracy M. Morris (206) 992-7594 Vice President PRSRT STD Stuart R. Dunwoody (206) 757-8034 U.S. POSTAGE PAID Secretary SEATTLE, WA James P. Savitt (206) 749-0500 PERMIT NO. 3466 Treasurer J. Kirkham (Kirk) Johns (206) 623-9900 Immediate Past-President Steve Y. Koh (206) 359-8530 TRUSTEES Jennifer E. Wellman Ann Marie Bender Spencer Hall Brett A. Purtzer Renee C. Warren COMMITTEE CHAIRS Admiralty Scott E. Collins Š James R. Woeppel ADR Spencer Hall Š J. Kirkham Johns Appellate Practice Kathleen M. (Katie) O’Sullivan Bankruptcy Jane E. Pearson CLE Floyd G. Short Court Services and WSBA Liaison Lish Whitson Criminal Law Kristine A. Costello Š Tessa M. Gorman Ethics and Practice Alexander A. Baehr Š Merrilee A. MacLean Federal Appointments John S. Congalton Intellectual Property Robert A. Medved Local Rules Mark M. Hough Š Karl J. Quackenbush Membership Maria A. Milano Š Katriana L. (Katy) Samiljan Nominations Brian Kipnis Pro Bono Judith H. Ramseyer Website/Communications Duncan Manville Š Joanna Plichta Boisen