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Mary H. McIntosh (WSBA No. 12744, admitted 1982), formerly of Mount Vernon, was suspended for 90 days, effective September 22, 2008, by order of the Washington State Supreme Court following approval of a stipulation. This discipline is based on conduct involving lack of candor to a tribunal and initiating improper ex parte contact with a judge. Mary H. McIntosh is to be distinguished from Mary Ann Mcintosh of Wenatchee.
In November 2004, an individual (T.D.) and his attorney (Lawyer B) brought an action in Skagit County against a trade association and its directors individually. The action, filed in Skagit County Court, was in its infancy in the spring of 2005, and little or no discovery had taken place.
Ms. McIntosh had previously advised one of the trade association’s Board members (client) with regard to bringing a civil action against T.D. She had also previously been involved in a small-claim action and district court appeal involving T.D. By 2005, the relationship between Ms. McIntosh’s client and T.D. had become very hostile, and T.D. bore a great deal of animus against Ms. McIntosh.
Without consulting his attorney, T.D. filed a Freedom of Information Act (FOIA) request with the Washington Department of Licensing (WDL) for records regarding Ms. McIntosh’s client and for the recent audit of the client’s business. T.D. neither called his attorney, Lawyer B, nor sought any advice or assistance from Lawyer B in the preparation of that document. On or about April 18, 2005, the WDL called Ms. McIntosh’s client and indicated that, unless enjoined from doing so, they would be releasing the audit records to T.D. pursuant to his FOIA request. The client contacted Ms. McIntosh and requested that she prevent the WDL from releasing the audit records. Ms. McIntosh contacted the WDL and spoke with an investigator, who informed her that, unless an injunction was entered pursuant to RCW 42.17.330 (Court Protection of Public Records), the records would be delivered to T.D. on April 22, 2005.
During his conversation with her, the client indicated to Ms. McIntosh that he and his wife were leaving for China and would be unavailable. Ms. McIntosh was also scheduled to leave her office on vacation on April 21, 2005, and be gone until May 2, 2005. Ms. McIntosh was aware that her clients were, or would soon be, out of the country and unavailable for signatures on a complaint and pleadings in support of a Temporary Restraining Order (TRO) to block the release of the audit documents by the WDL. The client was also not available to provide the filing fee necessary to commence a separate action. Ms. McIntosh was aware that T.D.’s only available address of record was a post office box, making personal service on T.D. of a new summons, complaint, and other papers for a TRO very difficult.
On April 19, 2005, after reviewing RCW 42.17.330, Ms. McIntosh phoned Lawyer B. Ms. McIntosh decided to seek an injunction of the WDL in the already-filed action, although the injunctive relief would be against a non-party to the lawsuit and the materials sought to be prevented from being turned over were not being sought through discovery in that action. Lawyer B knew nothing of T.D.’s (his own client’s) request to the WDL. During his phone conference with Ms. McIntosh, Lawyer B disclosed that he did not know how to get in touch with his client. He also informed her that T.D.’s FOIA request for her client’s audit records had nothing to do with the lawsuit in which they were involved as counsel for their respective clients. Lawyer B further stated that the Skagit County Court would not have jurisdiction to enter a restraining order against the WDL in the existing action, as the WDL was not a party to the causes of action which were before the court. He advised Ms. McIntosh that she should start a different lawsuit to enjoin the WDL.
Lawyer B was very knowledgeable of the animosity between his client and Ms. McIntosh’s client, as well as the extreme dislike his client (T.D.) had for Ms. McIntosh. Lawyer B knew he could not agree to the entry of a TRO. Ms. McIntosh nevertheless prepared a Motion/Declaration for an ex parte TRO in the existing action. In her declaration supporting her motion for a TRO, Ms. McIntosh implied that Lawyer B had agreed to the order, made misleading statements, and did not set forth the key fact that opposing counsel told her she was legally incorrect in seeking the TRO against an unrelated, unnamed party in the existing action. Ms. McIntosh, in the preamble to the TRO, also stated that Lawyer B “was notified of the defendant’s intention to obtain this order and expressed no objection so long as the hearing could take place after the defendant’s vacation.” Before entering the order, Ms. McIntosh did not fax a copy to Lawyer B to obtain his consent or agreement to the entry of the order or provide him a copy of the order and related pleadings.
On April 21, 2005, Ms. McIntosh went to the Skagit County courthouse at approximately 8:45 a.m. looking for a judge to sign the temporary restraining order. This was before the regular ex parte calendar. Ms. McIntosh flagged down a judge in the court administrator’s office and handed him the motion and order, telling him that Lawyer B had agreed to the entry of the order. She did not tell the judge that Lawyer B not only opposed the TRO being entered in the action, but also objected to an injunction being sought in that action as the action was unrelated to the FOIA request and therefore the relief her client ultimately sought. During her ex parte contact with the judge, Ms. McIntosh also neglected to inform the judge that it was her opposing counsel’s opinion that the injunctive relief she was seeking could not be entered by the Superior Court of Skagit County for those very reasons. The judge signed the order temporarily enjoining the WDL from releasing the records to T.D. Ms. McIntosh returned to her office, left her staff with instructions to mail a copy of the order to Lawyer B and to fax a copy of the order to the WDL, and left for the airport to catch her flight.
Upon learning of the entry of Ms. McIntosh’s order, Lawyer B moved to set it aside. Eventually, an order vacating Ms. McIntosh’s order nunc pro tunc was entered following a hearing on the merits of the respective motions.
Ms. McIntosh’s conduct violated RPC 3.3(f), requiring a lawyer, in an ex parte proceeding to inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse; and RPC 3.5(b), prohibiting a lawyer from communicating ex parte with such a person except as permitted by law.
Francesca D’Angelo and Joanne S. Abelson represented the Bar Association. Kenneth S. Kagan and John W. Murphy represented Ms. McIntosh. Donald W. Carter was the hearing officer. |