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Sharon Lee Gain (WSBA No. 27972, admitted 1998), of San Antonio, Texas, was suspended for two years, effective February 4, 2010, by order of the Washington State Supreme Court following approval of a stipulation. This discipline was based on conduct involving the filing of frivolous motions, failure to respect the rights of third persons, conduct prejudicial to the administration of justice, and violations of court orders.
Ms. Gain was one of three co-counsel representing members of two citizens’ groups (groups) who were defendants in a SLAPP (Strategic Lawsuit Against Public Participation) lawsuit. The defendants filed counterclaims for damages in the lawsuit. In September 1999, the plaintiffs brought a motion to compel the production of documents. The groups filed motions for a protective order and to dismiss. Both motions were denied by the trial court. The groups appealed the denial of the protective order and, in its briefing, also requested review as to whether the trial court erred in denying their motion to dismiss. The Court of Appeals concluded that the groups’ motion to dismiss was not reviewable as it was not designated in the motion for discretionary review. The groups appealed. In a published decision, the Washington State Supreme Court remanded the matter to the trial court for dismissal and for a determination of attorneys’ fees. All of the groups’ counterclaims were preserved for trial. On July 19, 2002, Judge A signed an order dismissing the plaintiffs’ claims with prejudice and preserving the defendants’ counterclaims for trial.
Ms. Gain and her two co-counsels submitted fee petitions. Opposing counsel objected to Ms. Gain’s fee petition because she did not keep contemporaneous time records, and a hearing was set for July 26. On July 26, Ms. Gain filed a document appealing from the trial court’s order dismissing the case and sought a recall of the Supreme Court’s June 13 mandate. Her co-counsel did not join in the motion. Before the hearing, Ms. Gain also faxed a motion to recuse Judge A and a motion to continue the hearing. The trial court entered an order regarding all attorneys’ fees except Ms. Gain’s fees, which were reserved.
On July 30, 2002, Ms. Gain filed a motion for stay of all trial court proceedings and orders, which was denied. In August 2002, the clerk of the Supreme Court dismissed Ms. Gain’s appeal for failure to pay the filing fee. Ms. Gain’s Motion to Recall the Mandate and Motion for Stay were also denied by clerk’s ruling. In September 2002, Ms. Gain filed a motion to modify the clerk’s rulings, which was denied. Ms. Gain then wrote to the Supreme Court and requested that it transmit its records to the trial court for further proceedings. The clerk wrote to Ms. Gain that there was no basis for her request, and that any future requests without basis or authority would result in the imposition of sanctions. Ms. Gain faxed a letter to the Supreme Court that purported to contain authority for the transfer of the Supreme Court file to the trial court. The clerk responded that the Supreme Court’s mandate was final and that Ms. Gain’s arguments were frivolous. Sanctions of $250 were assessed against Ms. Gain.
In February 2003, Ms. Gain filed “counterclaims” and an “amended complaint and/or supplemental pleading” in Superior Court and in the Supreme Court stating that her clients “will request that the Supreme Court change its opinion” and requesting, among other things, that the Supreme Court reverse the previous sanction ruling against her. Among those named as defendants in the pleadings were Judge A, the County, the State of Washington, and Ms. Gain’s two former co-counsels and the opposing counsel in the original lawsuit. In April 2003, Superior Court Judge B entered an order striking the February 2003 pleadings in their entirety, finding that the pleadings were not well grounded in fact, and ordered CR 11 sanctions of $2,550 assessed against Ms. Gain.
In March 2003, while Ms. Gain’s “counterclaims” and “amended complaint and/or supplemental proceeding” were still pending, she filed a Notice of Appeal/Notice of Discretionary Review in the Supreme Court of Washington purporting to appeal, among other things, the Supreme Court’s published decision in the original lawsuit, and all previous rulings in the case. On March 5, 2003, the clerk informed Ms. Gain by letter that there was no copy of the signed order or judgment of which she sought review and that the failure to comply with the rules could result in dismissal of the matter. On March 21, 2003, Ms. Gain filed a motion to modify the clerk’s ruling of March 5, 2003. That same day, the clerk responded that this motion was ‘’premature, if not frivolous” as the court had not yet made a ruling on her appeal. The Supreme Court dismissed the Notice of Appeal/Notice of Discretionary Review, noting that no order had been filed and that it appeared no order existed. Sanctions in the amount of $500 were ordered against Ms. Gain personally. Ms. Gain’s subsequent motion to modify this ruling was denied.
In May 2003, Ms. Gain filed a Petition for Extraordinary Writ and Motion for Summary Judgment in the Supreme Court. Among those named as defendants in the petition were trial court Judge A, the State of Washington, opposing counsel, and Ms. Gain’s former co-counsels in the original lawsuit. The petition requested, among other things, that the Supreme Court change its published opinion in the original defamation lawsuit, dismiss the lawsuit against the petitioners (which had already been dismissed by Judge A), reverse its prior rulings on sanctions, and award compensatory and punitive damages against Judge A, the County, and the State of Washington. The Supreme Court sanctioned Ms. Gain $1,000 for this filing.
In June 2003, Ms. Gain filed and served another Petition for Extraordinary Writ and Motion for Summary Judgment in the Supreme Court, adding as additional defendants, among others, the Washington State Supreme Court, the Supreme Court justices, the Supreme Court clerks, the Supreme Court commissioner, the Washington Court of Appeals Division II, and several judges. In the petition, Ms. Gain added the allegation of bad faith on the part of plaintiff’s attorney and her former co-counsel “with the aid of [Judge A].” In this petition, Ms. Gain requested much of the same relief as in the prior petition. The clerk’s ruling stated “[Ms. Gain’s] pleadings constitute another frivolous filing in a case that has been mandated…” and sanctioned Ms. Gain $2,500.
In June 2003, Ms. Gain filed another “Motion to Recall the Supreme Court’s Mandate,” seeking to vacate the trial court’s orders dismissing the case against her clients and the orders awarding attorneys’ fees to her former co-counsel. Ms. Gain also filed a Motion to Modify the Clerk’s Rulings, arguing that the sanctions imposed against her were unconstitutional. Ms. Gain also filed a “Motion for Final Decision…” and a motion to disqualify any person who participated in decision-making since the remand of the original suit. On June 27, 2003, the clerk wrote a letter to Ms. Gain stating that all of these motions would be considered by the Supreme Court at its September 2003 en banc conference. Ms. Gain then filed a Motion to Strike Clerk’s Ruling of June 27, 2003, along with a document entitled “Demand for Final Decision on Petition for Extraordinary Writ/Motion for Summary Judgment…” On September 4, 2003, the Supreme Court entered an order denying all of Ms. Gain’s pending motions and directing the clerk to forward copies of all of Ms. Gain’s pleadings, responsive pleadings, and orders to the Washington State Bar Association.
Ms. Gain’s conduct violated RPC 3.1, prohibiting a lawyer from bringing or defending a proceeding, or asserting or controverting an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law; former RPC 4.4, prohibiting a lawyer, in representing a client, from using means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person; RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice; and RPC 8.4(j), prohibiting a lawyer from willfully disobeying or violating a court order directing him or her to do or cease doing an act which he or she ought in good faith to do or forbear.
Francesca D’Angelo represented the Bar Association. Ms. Gain represented herself. Octavia Y. Hathaway was the hearing officer.
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