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1 Honorable Janet Helson

Noted: February 2, 2017 Without Oral Argument


2

6 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON


IN AND FOR THE COUNTY OF KING
7
CCD BLACK DIAMOND PARTNERS
8 LLC, a Delaware Limited Liability No. 16-2-29091-4 KNT
Company,,
9
Plaintiff, DEFENDANT CITY OF BLACK
10 DIAMONDS MOTION FOR THE
v. COURT TO CONFIRM LEGAL
11 REPRESENTATION
CITY OF BLACK DIAMOND and
12 BLACK DIAMOND CITY COUNCIL, a NOTED: Thursday, February 2, 2017
Public Agency, and ERIKA MORGAN,
13 PAT PEPPER AND BRIAN WEBER,
Black Diamond City Council Members, , Without Oral Argument
14
Defendants.
15

16 I. RELIEF REQUESTED
17 Defendant City of Black Diamond (the City) seeks an order from the Court
18 confirming that Shannon Ragonesi of Keating, Bucklin & McCormack represents the City in

19 this litigation. The City understood from legal counsel for Defendants Pepper, Morgan and

20 Weber (the Individual Defendants) that they planned to file a motion on this issue.

21 However, they have not filed as planned; and a recent Council resolution by the Individual

22 Defendants purportedly removing Ms. Ragonesi from representing the City has forced the

23 City to file this motion in order to seek a court order on the issue.

24 The Individual Defendants constitute a majority of the City Council, and it is their
25 position that they have the power to waive the numerous actual and potential conflicts that

26 would result from having their private attorney, Mr. Jeff Taraday, represent the City as well.

27
DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 1 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
1
The most blatant conflicts are that the City and Individual Defendants have a total of four
2
cross-claims against each other, as well as several affirmative defenses asserting any fault
3
found is a result of the others actions. Additional conflicts are set up by the Plaintiffs
4
Complaint itself, which contains many allegations that the Individual Defendants acted
5
against legal advice of the City Attorney and passed resolutions that are void. For the
6
reasons set forth below, a single attorney cannot represent all Defendants.
7
The City respectfully requests the Court enter an order confirming Shannon
8
Ragonesi as legal counsel for the City. To do otherwise could set in motion a chain of
9
avoidable ethical issues based on having one attorney represent potentially adverse parties;
10
and eventual appeals based on inadequate representation from one side or the other or
11
both.
12
II. STATEMENT OF FACTS
13
Plaintiff in this case is a limited liability company alleging, primarily, that the City of
14
Black Diamond, the Black Diamond City Council (the City Council), and individual City
15
Council members Erika Morgan, Brian Weber, and Pat Pepper engaged in approximately
16
135 violations of the Open Public Meetings Act, Chapter 42.30 RCW. Exh. A to the
17
Declaration of Shannon Ragonesi, at p. 1-4. Plaintiff filed this case on or around December
18
1, 2016. Id. In the Complaint, Plaintiff essentially alleges the Individual Defendants are
19
liable for the violations; and requests to hold them responsible for all damages awarded, if
20
any, against the City. Id.
21
Black Diamond is classified as a noncharter code city and is therefore bound by
22
applicable state law for such cities. Black Diamond Municipal Code (BDMC) 1.08.010.
23
Carol Benson is the current Mayor for the City of Black Diamond, and has served in that
24
position since December of 2014. Declaration of Carol Benson, at 2. David Linehan, of
25
the law firm Kenyon Disend, is currently acting as the City Attorney for Black Diamond
26
at the Mayors direction. Benson Decl., at 3.
27
DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 2 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
1
Mr. Linehan filed a notice of appearance on behalf of the City on or around
2
December 8, 2016, but later advised the Mayor that he would likely withdraw as counsel of
3
record as soon as substitute counsel could be located, due to workload constraints and the
4
desire to focus his efforts on the day-to-day business of the City. Exh. B to Ragonesi Decl.
5
On December 15, 2016, the Individual Defendants, who are the majority of the 5
6
member City Council, attempted to discharge Mr. Linehan from serving as counsel to the
7
City by passing Resolution 16-1132. Exh. G to Ragonesi Decl. In the same resolution, the
8
City Council Members attempted to retain Mr. Taraday and his law firm, Lighthouse Law
9
Group, to represent all Defendants in this case. Id. Mayor Benson declined to recognize this
10
resolution as legally valid, stating the City Council did not have authority to select and hire
11
legal counsel for the City. Id., at p. 2. 1
12
Subsequently, Mayor Benson retained attorney Shannon Ragonesi of Keating,
13
Bucklin & McCormack, Inc. to represent the City in this lawsuit. Benson Decl., at 4. Ms.
14
Ragonesi filed her notice of substitution on or around January 11, 2017, and Mr. Linehan
15
withdrew as counsel for the City. Exh. C to Ragonesi Decl. After Plaintiffs counsel stated
16
she intended to file a motion for default if Defendants did not file their respective Answers,
17
Ms. Ragonesi was compelled to file an Answer on behalf of the City on January 12, 2017.
18
Exh. D to Ragonesi Decl. This Answer included an affirmative defense asserting that any
19
fault for violation of the OPMA was the result of actions taken by the Individual
20
Defendants. It also contains a cross-claim against the Individual Defendants for
21
indemnification and contribution, if appropriate; and a declaratory judgment stating the
22
Individual Defendants are not entitled to a City-funded defense under relevant provisions of
23
the Black Diamond Municipal Code. Id. at p. 32-34.
24
On January 19, 2017, the Individual Defendants purportedly passed a resolution
25

26 1
See, Steilacoom Town Council v. Volkmer, 73 Wn. App. 89, 93-94 867 P.2d 678 (1994) (affirming mayors
legal right to refuse to sign invalid resolution of the town council, and rejecting councils claimed authority to
27 hire outside legal counsel).
DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 3 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
1
discharging Ms. Ragonesi from serving as legal counsel for the City in this case. Exh. F to
2
Ragonesi Decl. In the resolution, however, the Individual Defendants acknowledged that
3
court action is needed to determine who has the right to choose counsel to represent the City
4
and City Council. Id.
5
On January 23, 2017, counsel for the Individual Defendants, Mr. Taraday, filed an
6
Answer on behalf of his clients. Exh. E to Ragonesi Decl. In this Answer, the Individual
7
Defendants asserted multiple affirmative defenses implicating the City, including Fault of
8
Third Party, Impossibility of Compliance, and violation of their Due Process Rights. Id.
9
at p. 38-40. These affirmative defenses are based on allegations against the City that the
10
Mayor and the City Clerk refused to post notice of their meetings to the Citys website, and
11
therefore any fault directly stems from the Mayor and City Clerks actions. Id. The
12
Individual Defendants also assert their own cross-claim against the City, insisting that the
13
City should pay their defense costs. Id. at p. 40-41.
14
III. STATEMENT OF ISSUES
15
1. Whether the Mayor has authority to retain legal counsel to represent the City as a
16 necessary power to enable her to fulfill her obligation to see that all City laws
and ordinances are faithfully kept and enforced.
17

18 2. Whether an attorney may represent multiple defendants in the same litigation


when actual conflicts already exist between the parties, including cross-claims
19 between the defendants, and such conflicts would materially limit the attorneys
ability to fully represent all defendants.
20
3. Whether the conflicts in this case are capable of being waived and if so, whether
21
the Individual Defendants have the authority to waive the conflict where three
22 out of the five City Council members are individual defendants in this case and
potentially have a direct financial interest, depending on the outcome of the case,
23 in the decision of whether to have separate counsel.
24 IV. EVIDENCE RELIED UPON

25 1. Declaration of Shannon Ragonesi and attached exhibits;

26 2. Declaration of Carol Benson.

27 V. ARGUMENT AND AUTHORITY


DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 4 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
1
The Individual Defendants efforts to pass a Council resolution discharging Ms.
2
Ragonesi from representing the City invoked language from RPC 1.2(f), which states:
3
A lawyer shall not purport to act as a lawyer for any person or organization if
4 the lawyer knows or reasonably should know that the lawyer is acting
without the authority of that person or organization, unless the lawyer is
5
authorized or required to so act by law or a court order.
6 (Emphasis added.) The City maintains that its legal counsel of record has been rightfully

7 selected by the Mayor pursuant to her authority to choose legal representation for the City,

8 and that the Individual Defendants do not have the authority to hire or fire legal counsel

9 except in extraordinary and very limited circumstances. See State ex rel. Steilacoom Town

10 Council v. Volkmer, 73 Wn. App. 89, 93-94 867 P.2d 678 (1994) (affirming mayors legal

11 right to refuse to sign invalid resolution of the town council, and rejecting the councils

12 claimed authority to hire outside legal counsel). See also Attorney Gen. Op. 1997, No. 7 at 4

13 ([W]e conclude the city council generally lacks authority to contract for the provision of

14 legal services solely under the direction of the city council.)

15 In addition, Keating, Bucklin & McCormack and Ms. Ragonesi take the Rules of
16 Professional Conduct extremely seriously, and therefore seek an order from the Court

17 confirming they are proper counsel for the City, while Mr. Taraday remains counsel for the

18 Individual Defendants. Ms. Ragonesi and her firm have not withdrawn their notice of

19 appearance as doing so would leave the City without representation in this case and could

20 potentially violate their ethical duties. See In re Disciplinary Proceeding Against Pfefer, 182

21 Wash. 2d 716, 730, 344 P.3d 1200, 1206 (2015) (Attorneys conduct of withdrawing

22 effective immediately violated the RPCs by leaving his former clients interests

23 unprotected.) However, due to the actions of the Individual Defendants in attempting to

24 pass a Council resolution to discharge counsel, this issue must now be put before the Court.

25 The Mayor retained Ms. Ragonesi to represent the City in this litigation, and Ms.
26 Ragonesi has already spent a substantial amount of time getting caught up to speed on this

27
DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 5 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
1
case and providing legal advice to the City. Ragonesi Decl., at 2. She also filed the
2
Answer for the City in this case. Id. Appointing any other counsel would result in waste to
3
the City and could delay the litigation.
4
A. The Mayor is Authorized to Select Legal Counsel as a Necessary Power to Enable
5 Her to Fulfill Her Obligation to See That All City Laws and Ordinances Are
Faithfully Kept and Enforced.
6
State law requires the Mayor to ensure all laws and ordinances are faithfully
7
enforced and that law and order is maintained in the city[.] RCW 35A.12.100. The Mayor
8
does not have a duty to sign invalid ordinances passed by the City Council, and in fact has a
9
duty to protect the city against such illegal actions. Volkmer, 72 Wash.App. at 93-4. While
10
the City maintains the Mayor has statutory authority to hire legal counsel for the City, the
11
Mayor has separate authority to hire counsel as necessary to uphold the laws of the City and
12
State where actions by City Council members threaten to subject the City to liability. Wiley
13
v. City of Seattle, 7 Wash. 576, 579-81, 35 P. 415, 417 (1894). Such a situation constitutes
14
an emergency for which neither laws, charters, nor ordinances expressly provide. Id., at
15
579.
16
In Wiley, the mayor vetoed an ordinance authorizing the issuance of illegal bonds,
17
which had passed by unanimous vote of the legislative body of the city and with advice of
18
the citys counsel. Id. at 576-7. The Mayor sought representation from the citys counsel,
19
who correctly acknowledged he could not advocate for the Mayors position given his
20
advice to the city council. Id. Acting pursuant to his duties to uphold the Citys charter and
21
all applicable laws, the Court held the Mayor was allowed to hire outside counsel to
22
effectuate his responsibilities. Id. at 579-80.
23
Here, the City faces a similar emergency. The Individual Defendants, who constitute
24
a majority of the City Council, have taken, and continue to take, actions to pass resolutions
25
that potentially violate local and State law. They have done this against the advice of the
26
Citys counsel, and have hired their own attorney, Mr. Taraday, who they are now
27
DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 6 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
1
attempting to have represent all Defendants despite obvious conflicts of interest. The Mayor
2
has contracted with outside counsel pursuant to her lawful authority under BDMC
3
2.90.010(B) 2 as a necessary measure to uphold the law and protect the Citys interests.
4
B. RPC 1.7 Prevents Mr. Taraday From Representing the City and the City Council as a
5 Whole.
6 The Individual Defendants appear to be attempting to have their own chosen counsel,
7 Mr. Taraday, represent all parties so they can control and direct the defense of this case on

8 behalf of all Defendants, even though the parties have, or are likely to have, conflicting

9 interests. The RPCs specifically forbid this.

10 The RPCs are intended to be construed broadly in favor of protecting against


11 attorney misconduct. In re Marriage of Wixom & Wixom, 182 Wash. App. 881, 898, 332

12 P.3d 1063, 1072 (2014). If there are doubts as to whether dual representation would affect

13 an attorneys obligations to his clients, the attorney should not represent both parties. Id.

14 (citing Eriks v. Denver, 118 Wash.2d 451, 460, 824 P.2d 1207 (1992); Gustafson v. City of

15 Seattle, 87 Wash.App. 298, 303, 941 P.2d 701 (1997)). RPC 1.7(a) states:

16
(a) Except as provided in paragraph (b), a lawyer shall not represent a client
17 if the representation involves a concurrent conflict of interest. A concurrent
conflict of interest exists if:
18
(1) the representation of one client will be directly adverse to
19 another client; or
20
(2) there is a significant risk that the representation of one or
21 more clients will be materially limited by the lawyer's

22
2
23 This code provision provides the Mayor can approve professional services contracts up to $15,000
if there is money to cover the cost and the services are included as a line item in the budget.
24 However, as part of their December 28, 2016 adoption of a temporary budget resolution to fund City
operations through March 31, 2017, the Individual Defendants inserted a proviso that purported to
25 require the Mayor to submit all contracts to the Council for approval. It is doubtful, at best, whether
this amendment to a temporary budget ordinance is legally valid, given that it violates the single-
26 subject rule for city ordinances, violates the statutory requirement that the full text of any repealed
ordinance be included in the repealer provision, and was appended to a temporary stop-gap budget
27 measure.
DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 7 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
1 responsibilities to another client, a former client or a third person or
by a personal interest of the lawyer.
2
(Emphasis added.)
3
Defendants interests are, at least in part, directly adverse to one another. The City
4
has asserted cross-claims for indemnification and contribution against the Individual
5
Defendants. Exh. D to Ragonesi Decl. It is the Citys position that if Plaintiff establishes a
6
violation of the OPMA, the Individual Defendants willfully took these actions in violation of
7
the Citys legal advice and applicable law, and therefore are not entitled to a city-funded
8
defense under BDMC 2.66.030. Further, the individual Defendants should be responsible
9
for indemnifying the City against any potential award.
10
The Individual Defendants have also filed a cross-claim against the City, claiming
11
the City is required to pay the cost of their defense in this case pursuant to BDMC 2.66.
12
Defendants Pepper, Morgan, and Weber Answer, Exh. E to Ragonesi Decl. The City
13
maintains it should not have to pay the defense costs for the Individual Defendants pursuant
14
to BDMC 2.66.030.
15
Moreover, under RPC 1.7(a)(2), it is undisputed that representation of both the City
16
and the Individual Defendants by the same attorney will be materially limited here. The
17
Defendants have asserted affirmative defenses arguing if there is any fault, it is due to the
18
actions of the other. A reasonable and competent lawyer representing the City would
19
necessarily be obliged to advise her client of the potential to assert a cross-claim for
20
indemnification against the Individual Defendants if their actions as Councilmembers are
21
found to violate the OPMA and give rise to liability for payment of plaintiffs attorneys
22
fees. Likewise, a reasonable and competent attorney representing the Individual Defendants
23
would advise his clients of the potential for indemnification by the City of their defense
24
costs (even if the right to such indemnification were debatable).
25
Even where there is no direct adverseness, a conflict of interest exists if there is a
26
significant risk that a lawyer's ability to consider, recommend or carry out an appropriate
27
DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 8 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
1
course of action for the client will be materially limited as a result of the lawyer's other
2
responsibilities or interests. Comments to WA RPC 1.7. Put simply, no single lawyer can
3
competently and diligently represent all of the Defendants in this case because their interests
4
do not align.
5
Nor does it suffice to say that any conflict or potential conflict may be
6
waived. Conflicts may be waived if the following conditions are met:
7
(b) Notwithstanding the existence of a concurrent conflict of interest under
8 paragraph (a), a lawyer may represent a client if:
9
(1) the lawyer reasonably believes that the lawyer will be able to
10 provide competent and diligent representation to each affected
client;
11
(2) the representation is not prohibited by law;
12
(3) the representation does not involve the assertion of a claim by
13
one client against another client represented by the lawyer in the
14 same litigation or other proceeding before a tribunal; and

15 (4) each affected client gives informed consent, confirmed in writing


(following authorization from the other client to make any required
16 disclosures).
17 RPC 1.7(b) (emphasis added.) As already discussed, condition (b)(3) of RPC 1.7 cannot be

18 satisfied because the representation does involve the assertion of a claim by one client (the

19 Individual Defendants) against another client (the City) in the same litigation. Further, there

20 has been no showing that Mr. Taraday has obtained the Citys informed consent, in writing,

21 following adequate disclosures by him of the potential conflicts and limitations in his

22 representation. Indeed, who would provide such consent on the Citys behalf other than the

23 Mayor? The three Individual Defendants are in no position to waive conflicts of interest.

24 Comment 10 to RPC 1.13 addresses issues like the one presented here:
25 There are times when the organizations interest may be or become adverse to
those of one or more of its constituents. In such circumstances the lawyer should
26 advise any constituent whose interest the lawyer finds adverse to that of the
organization of the conflict or potential conflict of interest, that the lawyer cannot
27
DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 9 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
1 represent such constituent, and that such person may wish to obtain independent
representation.
2
If anyone is going to waive the conflicts of interest to allow joint representation of all
3
defendants by a single attorney, that waiver should come from the Mayor and the other two
4
members of the City Council all of whom are duly elected representatives of the City, and
5
none of whom are named parties in this lawsuit. Because they do not have the same
6
financial interests in the outcome of the lawsuit that the Individual Defendants clearly have,
7
it is they who should decide whether the conflict should be waived, not the Individual
8
Defendants purporting to act on behalf of the City.
9
1. One Attorney Cannot Provide Competent Representation to All Defendants.
10
With complete respect to Mr. Taraday, who also recognizes that this issue must be
11
determined by the Court, the City believes there is no reasonable way a single attorney could
12
provide competent representation to all Defendants. Competent representation requires
13
the legal knowledge, skill, thoroughness and preparation reasonably necessary for the
14
representation. RPC 1.1. In re Disciplinary Proceeding Against Longacre, 155 Wash. 2d
15
723, 740, 122 P.3d 710, 718 (2005). While Mr. Taraday has the requisite legal knowledge
16
to represent the parties individually, such knowledge is immaterial if his obligations to one
17
client prevent him from taking certain positions and preparations on behalf of one client
18
because they are harmful to another. This is the essence of a conflict of interest. If plaintiff
19
proves that one or more violations of the OPMA occurred, no attorney would be able to
20
simultaneously argue both Defendants positions, as laid out above. Therefore, separate
21
counsel is necessary.
22
2. The City and the City Council Members Have Asserted Cross-Claims against
23 Each Other and Both Allege Potential Wrongdoing By the Other.
24 As discussed above, Defendants have asserted cross-claims against each other and
25 made asserted affirmative defenses arguing that if fault exists, it is the result of wrong-doing

26 by the other. Thus, representation by one attorney is barred under RPC 1.7(b)(3). Even if

27
DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 10 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
1
these conflicts could be waived, doing so would clearly place any attorney in the position of
2
violating his ethical requirements to at least one client, if not both, and such representation
3
would violate public policy. Mazon v. Krafchick, 158 Wash. 2d 440, 448, 144 P.3d 1168,
4
1172 (2006). The Court should use its broad authority to invalidate any such attempted
5
waiver. 3
6
C. State and Local Law Preclude the Defendant City Council Members from Voting on
7 a Resolution to Waive Potential Conflicts Or to Select Counsel in this Litigation
Because They Have a Financial Interest in the Outcomes.
8
Finally, the Individual Defendants vote itself to remove Ms. Ragonesi as counsel
9
for the City was invalid because the Individual Defendants are not allowed to vote on any
10
contracts for legal representation involving their personal defense. See RCW 42.23.030.
11
(A municipal officer may not vote in the authorization, approval, or ratification of a
12
contract in which he or she is beneficially interested even though one of the exemptions
13
allowing the awarding of such a contract applies.)
14
Here, the Individual Defendants voted to deny a contract to hire Ms. Ragonesi in
15
order to insert their own legal counsel as counsel for the City as well. Due to the
16
acknowledged disagreements and conflicts over liability and responsibility for potential
17
damages, the Individual Defendants understand their chances for a verdict that is financially
18
in their favor are greatly increased if their own counsel is also representing the City, giving
19
them some level of control over which arguments are made. The City Council Members
20
even introduced a resolution that would specifically take authority from the Mayor and
21
3
22 See State v. Rooks, 130 Wash. App. 787, 799800, 125 P.3d 192, 19899 (2005) (citing Wheat v.
United States, 586 U.S. 153, 162, 108 S.Ct. 1692 (1988)) addressing RPC 1.7:
23
When a trial court finds an actual conflict of interest which impairs the ability of a
24 [partys] chosen counsel to conform with the ABA Code of Professional
Responsibility, the court should not be required to tolerate an inadequate
25 representation of a defendant. Such representation not only constitutes a breach of
professional ethics and invites disrespect for the integrity of the court, but it is also
26 detrimental to the independent interest of the trial judge to be free from future
attacks over the adequacy of the waiver or the fairness of the proceedings in his own
27 court and the subtle problems implicating the [partys] comprehension of the waiver.
DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 11 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
1
create a steering committee comprised of two of the individually named defendants to
2
control the litigation on behalf of the City. Exh. H to Ragonesi Decl. This would allow them
3
to strike the Citys affirmative defenses alleging potential fault against them, thus protecting
4
their personal financial interests at the expense of the Citys best interests.
5
The City is not arguing that Mr. Taraday would intentionally violate any ethical rule.
6
It is simply showing that the conflicts of interest here prevent any one attorney from
7
representing all Defendants. For the same reason, even if the Individual Defendants have
8
legal authority to hire a specific attorney to represent themselves, their allegations as to the
9
Citys potential liability to them make their interest in who represents the City too high to
10
allow them to participate in any vote on the topic.
11
VI. CONCLUSION
12
The City regrets having to bring this issue to the Court to decide. However, the
13
recent purported resolution of the Individual Defendants, acting as a majority of the City
14
Council, has made it necessary in order for the City to establish its defense counsel in this
15
case, and the Citys legal counsel of record to avoid any allegation of a violation of the
16
Rules of Professional Conduct. The above analysis shows multiple avenues for this Court to
17
conclude Ms. Ragonesi should be allowed to continue as counsel for the City. Due to the
18
complex conflicts of interest in this case, the Defendants will clearly be better represented if
19
they have separate legal counsel. For these reasons, the City respectfully requests the Court
20
enter an order (1) confirming Shannon Ragonesi as counsel for the City in this matter, and
21
allowing the City, by and through Mayor Benson, to continue to contract for Ms. Ragonesis
22
legal services in this matter, either under the powers granted to her under state law and City
23
Code, or otherwise as a necessary power to enable her to fulfill her obligation to see that all
24
City laws and ordinances are faithfully kept and enforced under these unique circumstances,
25
and (2) that the Mayor can direct and control the Citys defense, including settlement
26
authority, and not be subject to interference or obstruction by the Individual Defendants.
27
DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 12 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
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Without these measures, the Defendants will likely be before the Court on similar motions
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repeatedly throughout this litigation.
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4 DATED: January 25, 2017


KEATING, BUCKLIN & McCORMACK, INC., P.S.
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By: /s/ Shannon M. Ragonesi
7 Shannon M. Ragonesi, WSBA #31951
8 Attorney for Defendants City of Black Diamond and
Black Diamond City Council
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800 Fifth Avenue, Suite 4141
10 Seattle, WA 98104-3175
Telephone: (206) 623-8861
11 Fax: (206) 223-9423
12 Email: dchen@kbmlawyers.com

13 My signature above certifies this memorandum


contains 4371words, in compliance with the Local
14 Civil Rules.
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DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 13 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT
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DECLARATION OF SERVICE
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I declare under penalty of perjury under the laws of the State of Washington that on
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January 25, 2017, a true and correct copy of the foregoing document and all supporting
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documents were served upon the parties listed below via electronic mail:
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Attorneys for Plaintiff
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Michele Earl-Hubbard
8 Allied Law Group, LLC
P.O. Box 33744
9 Seattle, WA 98133
Email: michele@alliedlawgroup.com
10 info@alliedlawgroup.com
11 Attorneys for Black Diamond City Council Members Erika Morgan, Pat
Pepper and Brian Weber
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Jeff Taraday
13 Lighthouse Law Group PLLC
1100 Dexter Ave., #100
14 Seattle, WA 98109
Email: jeff@lighthouselawgroup.com
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DATED this 25th day of January, 2017, at Seattle, Washington.
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/s/ Elena Ortiz
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Elena Ortiz, Legal Assistant to Ms. Ragonesi
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DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
MOTION FOR THE COURT TO CONFIRM 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
LEGAL REPRESENTATION - 14 PHONE: (206) 623-8861
FAX: (206) 223-9423
16-2-29091-4 KNT