### FILED JULY 12, 2016 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III 

### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In the Matter of: James Donald Cudmore and Gregg 

### L. Belt, JOHN C. BOLLIGER, Appellant, 

### v. JAMES DONALD CUDMORE, Respondent. ) ) ) ) ) ) 

### ) ) ) ) ) ) ) 

### No. 

### 33193-8-111

UNPUBLISHED OPINION

SIDDOWAY, J. -This appeal addresses a single issue: attorney John Bolliger's challenge to a trial court orderthat disqualified him from representing Gregg Beltin a different appeal, 

### Cudmore v. 

### Belt, case no. 

### 32327-7-111, (Wash. Ct. App.) (hereafter the "Belt appeal"). Followingthe disqualification order, a new attorney appeared for Mr. Belt in the Belt appeal, a resolution was quickly reached, and the appeal was withdrawn. Before briefs were filed inthis appeal, the court initiated a motion to determine the appealability ofthe disqualification order. 1 

### Afterhearing from the parties, our commissioner determinedthat a lawyer may be aggrieved by an order ofdisqualification

1

### See Letter from Renee Townsley, Clerk ofCourt, Wash. Court ofAppeals, to John Bolliger, attorney, John BolligerLaw Office (Apr. 

### 28, 2015), In re Cudmore, No. 

### 33193-8-111 (Wash. Ct. App.).No. 33193-8-111 In re the Matter of Cudmore 

### v. Belt

.that includes a formal finding ofmisconduct. Following thatruling, the parties filed their briefs. Only one ofMr. Bolliger's assignments oferror on appeal asks us to reverse what is arguably a formal finding ofa violation ofthe rules ofprofessional conduct. Because the finding ofa violation was supported by substantial evidence and issues raised by the othertwo assignments oferror are moot, we affirm the relevant finding and conclusions ofthe court's disqualification order and otherwise dismiss the appeal.2 FACTS AND PROCEDURAL BACKGROUND OnJuly 2, 2013, then 84-year-old Donald Cudmore visited attorney John Bolliger with the stated intention ofaltering his estate plan. This was the first time that

### Mr. Cudmore had sought legal advice from Mr. Bollinger. A friend ofMr. Cudmore's, Dona Belt, had both referred him to Mr. Bolliger and arrangedthe appointment. Mr. Cudmore lived at The Manor at Canyon Lakes (The Manor), an assisted living center, and Gregg Belt, Dona Belt's son, transported Mr. Cudmore to or from The Manor and Mr. Bolliger's office for appointments in early July.

2 We deny Mr. Bolliger's January 26, 2016 Motion for this Appeal, and its 2 Other "Linked"Appeals, to beAnalyzed and Decided at the Same Time. Thereliefrequested would unnecessarily delay the disposition ofthis appeal, something our commissioner could nothave anticipated when, in June 2014, she expressed the expectation thatMr. Bolliger's several appeals would be considered and decided at the sametime.

2No. 33193-8-111 In re the Matter of Cudmore v. Belt
Tim Lamberson, who is Mr. Cudmore's stepson and served as his attorney-in-fact under a power ofattorney executed in 2008, learned that Ms. Beltwas accompanying Mr. Cudmore to financial institutions and to Mr. Bolliger's office. He notified Abbie Elliott,
a bookkeeper for The Manor, ofMs. Belt "andherpossible intentions." Clerk's Papers (CP) at 297. On July 8, Ms. Elliottbecame concernedwhenMr. Belt arrived at The Manor and, from herperspective, too persistently proceeded to Mr. Cudmore's roomto transport him to a meeting with Mr. Bolliger. She called police, who arrived and spoke to Mr. Belt. After calling Mr. Bolliger and confirming that Mr. Belt was providingMr. Cudmore withtransportation to an appointment, the officers did not interfere. OnJuly 11, Mr. Lambersonpetitioned for a vulnerable adult protection order under RCW 74.34.110 seeking to restrain Mr. Belt from having contactwith Mr. Cudmore. In addition to his own handwritten statement ofconcerns, Mr. Lamberson attached an unsworn, unsigned statement from Ms. Elliott; a copy ofthe police report of the July 8 incident; and an unsworn but signed statement from Mr. Cudmore'sprimary
care physicianthat "[t]his patient suffers from significant and worseningAlzheimer's Type Dementia." CP at 296. The doctor's statement described Mr. Cudmore as being treated, but "continu[ing] to deteriorate," and characterized his mental faculties as "inthe 'moderateto severe' dementia category." Id.

3

### No. 33193-8-111 In re the Matter of Cudmore v. Belt
Mr. Lamberson filed a petition for a full guardianship-the next day, and obtained
an exparte order appointing C. Wayne May to serve as guardian ad litem. 3 OnJuly 

### 18, Mr. Bolliger filed a petition to have himselfappointed as Mr. Cudmore's lawyer inthe guardianship proceeding and filed a notice ofappearance inthe action againstMr. Belt, stating he was appearing "onbehalfofthe above-referenced respondent, Gregg L. Beltandthe above-referenced alleged vulnerable adult, James Donald Cudmore." CP at 299. On July 

### 19, Judge SalvadorMendozaheard the petition for a protection order against Mr. Belt, followed by competingpetitions to appoint a lawyer for Mr. Cudmore in the guardianship proceeding. Mr. May had petitioned the court to appoint Rachel Woodard to serve as Mr. Cudmore's lawyer. Judge Mendoza granted the request for a protective orderprohibiting Mr. Belt from having contactwith Mr. Cudmore for one

3 We rely in some cases on adjudicative facts from the guardianship proceeding,

### In re Cudmore, cause no. 13-4-00260-9 (Benton County Super. Ct., Wash.). UnderER 201( c), courts may takejudicial notice ofadjudicative facts, whetherrequestedto ornot. A distinction is made between consultingthe record ofanother case to determine whether it 

### contains something and consultingthe record ofanother case to determine whether disputed facts were orwere not found to betrue. 5 KARL B.TEGLAND, WASHINGTON PRACTICE: EVIDENCELAW AND PRACTICE§ 201.9 (5th ed. 2007). In this case, the relevance ofthejudicially noticed developments in the guardianship proceeding is notto rely on any trial court decision for its correctness (an appeal oftrial court actions taken in the guardianship proceeding is separately pending) but only for the fact thatrelevant developments occurred.

4No. 33193-8-111 In re the Matter of Cudmore 

### v. Belt
year.4 He appointed Ms. Woodard as Mr. Cudmore's lawyer, adding a handwritten notation to his orderthat "John Bolliger's motion for appointment as Mr. Cudmore's counsel is denied." OrderAppointing Att'y for Allegedly Incapacitated Person, In re Cudmore, cause no. 13-4-00260-9 (Benton County Super. Ct., Wash. July 19, 2013). Mr. Bolliger filed a motion for reconsideration ofthe protection order against Mr. Belt, asking the trial court to allow Mr. Cudmore to appear and express his opposition to the order. On August 12, the trial court entered an order stating that its previous order "shall remain in effect," but adding, The Court HEREBY[ r]eserves on the issue ofreconsideration until such time that an evidentiary hearing can be held to address whether Mr. Cudmore is unable, due to incapacity, undue influence, or duress, to protect his person or estate in connection with the issues raise[d] in the petition. CP at 383. The hearing on whetherto appoint a guardian for Mr. Cudmore was heard on December 27, 2013. Atthe conclusion ofthe hearing, Judge Mendoza found Mr. Cudmore to be incapable ofhandling his personal and financial affairs and appointed Mr. Lamberson as full guardian ofMr. Cudmore's person and estate. On January 27, 2014, Mr. Bolliger filed a notice ofhis intent to withdraw from representing Mr. Cudmore in the action against Mr. Belt. On the same day, and on behalf

4Mr. Bolliger makes passing argument on appeal about whether Judge Mendoza's decision was based on inadmissible evidence, butthe rules ofevidence need not be applied in protection orderproceedings under chapter 74.34 RCW. ER l 10l(c)(4). 5No. 33193-8-III In re the Matter of Cudmore v. Belt
ofhis remaining client, Mr. Belt, Mr. Bolligerwrote to Judge Mendoza, asking that he conductthe hearing contemplated whenhe reserved ruling on Mr. Belt's motion for reconsideration the priorAugust. Judge Mendoza responded the following week, indicating that the issues raised by Mr. Bolligerhad been addressed throughhis decision in the guardianship proceeding and adding, "No further proceedings are necessary unless [Mr. May orMs. Woodard] feel a hearing is necessary." CP at 314. OnFebruary 20, 2014, Judge Mendoza entered a written order denying the motion for reconsideration. OnMarch 13, 2014, Mr. Bolliger filed a notice ofappeal on behalfofMr. Belt. The following month, Mr. Lamberson moved to disqualify Mr. Bolliger from representing Mr. Beltin the Belt appeal, arguing that in light ofMr. Bolliger'sprior representation ofMr. Cudmore, he had a conflict ofinterest. Mot. to Disqualify Att'y John C. Bolliger as Counsel for Appellant, In re Cudmore, case no. 32327-7-III (Wash. Ct. App. April 17, 2014). Our commissioner remanded the motion for fact finding by the trial court. Comm'r's Ruling, case no. 32327-7-III, at 1(Wash. Ct. App. June 30, 2014). On remand, Judge Cameron Mitchell disqualified Mr. Bolligerfrom representing Mr. Belt on appeal. Mr. Bolliger's motion for reconsideration ofthe court's order disqualifying him was denied. Mr. Bolligertimely filed a notice ofappeal ofthe disqualification order on his own behalf, which was opened under the present cause number.

6

### No. 33193-8-111 In re the Matter of Cudmore v. Belt Meanwhile, in the Belt appeal, attorney Arthur Klym appeared on behalfofMr. Belt on March 9, 2015. On April 15, 2015, lawyers for the parties to that appeal filed a stipulation to vacate the order ofprotection against Mr. Belt. On May 4, 2015, the lawyers filed ajoint motion to withdraw the appeal and for entry ofmandate. This court's mandate in the Belt appeal issued on May 7, 2015. ANALYSIS A threshold, court-initiated motion to determine whether any viable issue is presentedby this appeal was resolved by one ofour commissioners. The commissioner determined that a lawyer is an aggrieved party ifa formal finding ofmisconduct by a trial court may stigmatize the lawyer among his colleagues, potentially have a serious detrimental effect on his career, or be viewed as final and binding in disciplinary proceedings. Comm'r's Ruling, case no. 33193-8-111, at 3 (Wash. Ct. App. June 15, 2015) (citing UnitedStates v. Talao, 222 F.3d 1133 (9th Cir. 2000)). This appeal was permittedto proceed. RPC 1.16 generally requires withdrawal ifa lawyer's representation ofa client will result in violation ofthe Rules ofProfessional Conduct or other law. In re Marriage ofWixom, 182 Wn. App. 881, 

### 897-98, 332 P.3d 1063 (2014), review denied, 353 P.3d 632 (2015) (citing State v. Rooks, 130 Wn. App. 787, 799, 125 P.3d 192 (2005)). Where
an attorney declines to withdraw, the court may disqualify him orher. See Wixom, 182 Wn. App. at 904-05. 7No. 33193-8-III 

### In re the Matter of Cudmore v. 

### Belt
"Whethercircumstances demonstrate a conflictunder ethical rules is a question of law we review de novo." 

### RWRMgmt., Inc. v. 

### Citizens Realty Co., 133 Wn. App. 265, 279, 135 P.3d 955, (2006) (citing 

### State v. 

### Vicuna, 119 Wn. App. 26, 30-31, 79 P.3d 1 (2003)). Determining the

### proper resolution where a conflict is presentrequires the exercise ofdiscretion, implicating the abuse ofdiscretion standard. 

### Pub. Util. Dist. No. 1 of Klickitat County v. 

### lnt'lIns. Co., 124 Wn.2d 789, 812, 881 P.2d 1020 (1994). The posture ofthis case requires only review, as a matter oflaw, ofany formal finding of misconduct. In briefing filed after he was allowed to proceedwiththe appeal, Mr. Bolliger makes three assignments oferror. He contends first, that the motion to disqualify him
was untimely and the issue ofa conflict was thereby waived; second, thathis continued representation ofMr. Belt would nothave violated RPC 1.7 or 1.9; and third, that the trial court erred in failing to apply the guardianship doctrine ofsubstitutedjudgment. The arguments advanced by Mr. Bolliger's briefrevive the question ofwhether any viable issue remains, since the Belt appeal was dismissed a year ago. After initially conferring
on the appeal, this panel invited the parties to address why the issues raised on appeal by Mr. Bolliger are not moot. A case is moot ifa court can no longer provide effective relief. 

### Orwickv. 

### City of Seattle, 103 Wn.2d 249,253,692 P.2d 793 (1984). Generally, courts should dismiss
cases that involve only moot questions. 

### ClientAv. Yoshinaka, 128 Wn. App. 833, 841, 8No. 33193-8-111 In re the Matter of Cudmore v. Belt
116 P.3d 1081 (2005). 5 This court may raise the issue ofmootness sua sponte. See In re Det. ofC. W., 105 Wn. App. 718, 723, 20 P.3d 1052 (2001), aff'd, 147 Wn.2d 259, 53 P.3d 979 (2002). 

### It no longer matters whether delay in bringing the disqualification motion or some implication ofthe doctrine ofsubstitutedjudgmentwouldhave supported Mr. Bolliger's continued representation ofMr. Belt. Mr. Belt doesn'tneed further representation. Cf RWRMgmt., 133 Wn. App. at 280 (declining to consider challenge to disqualification order thatbecame moot after able substitute counsel tried the matterto completion). At most, consistent withthe reasoning on which our commissioner allowed the appeal to proceed, Mr. Bolliger has a concern that he will be stigmatized orprejudiced by
a finding that he committed an ethical violation. CfWashington Rules for Enforcement ofLawyer Conduct (ELC) 10.1(a) (during disciplinary proceedings, "eitherparty may
move at any time for an order determining the collateral estoppel effect ofajudgmentin another proceeding.") The only conflict issue properly before the trial court in connection with the disqualification motion was whetherby representing Mr. Belt after that representation
was challenged in April 2014, Mr. Bolligerviolated RPC 1.9(a) and 1.16. The issue is

5 An exception to the general rule that we dismiss moot cases exists when a moot issue presents matters that are ofsubstantial and continuing interest. In re Marriage of Horner, 151 Wn.2d 884, 891-92, 93 P.3d 124 (2004). 9No. 33193-8-111 

### In re the Matter of Cudmore v. Belt
whether he was representing Mr. Belt in a substantially related matter in which Mr. Belt's interests were materially adverse to those ofMr. Bolliger's former client, Mr. Cudmore, whose informed consent (or, in light ofthe guardianship, Mr. Lamberson's informed consent) had not been obtained. Mr. Lamberson's motion also complained ofan earlier conflict ofinterest when, in July 2013, Mr. Bolligerrepresented both clients, but Mr. Lamberson did not move to disqualify Mr. Bolliger from representing Mr. Beltuntil more than a year later. It was only the circumstances that existed at the time ofthe disqualification motion (or thereafter) that were oflegitimate concern in deciding the motion. The trial court's findings referring to an earlier concurrent conflict were not relevant to the motion orthe court's decision and will notbe considered further. 6 While Mr. Bolliger has failed to assign error to any ofthe trial court's findings of fact in ordering disqualification, it is evident from his argument thathe challenges the

6 Mr. Bolliger's briefing discloses that a disciplinary complaint is pendingbefore the Washington State BarAssociation that may include allegations ofconflicts ofinterest during earlierperiods. That issue will have to be decided on the basis ofevidence presented in that forum, because any findings and conclusions on that issue in the trial courtwere in the nature ofadvisory opinions. While collateral estoppel precludes relitigation ofthe same issue in a subsequent action involvingthe parties, one ofits essential elements is that the identical issue 

### necessarilywas decided. 

### Christensen v. Grant CountyHosp. Dist. No. 1, 152 Wn.2d 299, 306-07, 96 P.3d 957 (2004). Any earlier concurrent conflict ofinterest was not 

### necessarily at issue in deciding the disqualification motion.

10No. 33193-8-111 

### In re the Matter of Cudmore v. Belt
trial court's implicit finding ofa violation ofRPC 1.9.7 Such a finding is implicit in the trial court's sixth finding offact, its fifth and eighth conclusions oflaw, and its decision disqualifying Mr. Bolliger. RPC l.9(a) provides: A lawyer who has formerly represented a client in a matter shall not thereafterrepresent anotherperson in the same or a substantially related matter in whichthatperson's interests are materially adverse to the interests ofthe former client unless the former client gives informed consent, confirmed in writing. Mr. Bolligerproceeds from the positionthat Mr. Lamberson's petition for an order ofprotection against Mr. Beltwas reasonably objectionable to 

### both Mr. Cudmore and Mr. Belt: that Mr. Cudmore was mentally competent atall relevanttimes, that Mr. Cudmore liked Mr. Belt and appreciated his assistance, and that no reasonable lawyer in Mr. Bolliger's position would have perceived the two men's interests as being materially adverse. Ifundisputed evidence bore outthose facts at the time Mr. Bolliger's representation was challenged, his point would be a legitimate one-itis only ifa current client's interests are materially adverse to those ofthe former clientthatthe rule requires obtaining informed consent, confirmed in writing.

7 Underthe Rules on Appeal, findings offact to which error is not assigned are verities on appeal. RAP I0.3(g); 

### State v. Hill, 123 Wn.2d 641,870 P.2d 313 (1994). We may excuse Mr. Bolliger's technical violation because his briefing makes this challenge sufficiently clear. 

### See Daughtryv. JetAeration Co., 91 Wn.2d 704, 709-10, 592 P.2d 631 (1979) (technical violations may be excused in appropriate circumstances). 11

### No. 33193-8-111 In re the Matter of Cudmore v. Belt
But by the time ofMr. Lamberson's disqualification motion (and for that matter, at all times after the court appointed Mr. Lamberson as full guardian ofthe person and estate ofMr. Cudmore) undisputed evidence did not bear outMr. Bolliger'sposition that the interests ofhis current and former client were the same. To the contrary; the trial courthad determined in December 

### 2013 that Mr. Cudmore was incapable ofhandling his personal or financial affairs and that all ofthe estate planning documents thatMr. Cudmore signed when driven to Mr. Bolliger's office by Mr. Beltwere invalid. In February 

### 2014, the court had denied reconsideration ofthe protection order against Mr. Belt on the basis ofthose findings. Mr. Bolliger could not close his eyes to those determinations. In ~ight ofthose determinations, no reasonable attorney could conclude that he could represent Mr. Beltwithout first obtaining the informed consent ofMr. Cudmore's guardian, confirmed in writing. And in reaching this conclusion, it does not matter that Mr. Bolligerbelieves
errors were also made in the guardianship action, which are the subject ofa separately pending appeal. Until and unless the trial court's orders in the guardianshipproceeding
are reversed, Mr. Bolliger is required to heed them. The following observation, while made before adoption ofour current disciplinary rules, still obtains: "Although it is both the right and duty ofa lawyerto protest vigorously rulings on evidence orprocedure or statements in thejudge's charge which he deems erroneous, nevertheless, when the ruling has been finally made, the lawyer must, for the time being, accept it and invoke his remedy by appeal to the higher court." 

### 12No. 33193-8-111 In re the Matter of Cudmore v. Belt
Dike V. Dike, 75 Wn.2d 1, 7,448 P.2d 490 (1968) (quoting HENRY S. DRINKER, LEGAL ETHICS 69 (1953)). We therefore affirm the trial court's implicit finding in January 2015 that since Mr. Bolligerhad not obtained Mr. Lamberson's informed consentto his representation of Mr. Belt, confirmed in writing, his representation ofMr. BeltviolatedRPC 1.9. Mr. Bolliger's remaining assignments oferror are dismissed as moot. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. 

# Z?~w~.} Siddoway, J. WE CONCUR: 

# Pennellp,Q·

13