FILED 

JULY 12, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, 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UNPUBLISHED OPINION 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 order that disqualified him from representing Gregg Belt in a 

different appeal, Cudmore v. Belt, case no. 32327-7-111, (Wash. Ct. App.) (hereafter the 

"Belt appeal"). Following the 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Belt in the Belt appeal, a resolution was quickly reached, and the appeal was withdrawn.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 in this appeal, the court initiated a motion to determine the 

appealability of the disqualification order. 1 After hearing from the parties, our 

commissioner determined that a lawyer may be aggrieved by an order of disqualification 

1 See Letter from Renee Townsley, Clerk of Court, Wash. Court of Appeals, to 

John Bolliger, attorney, John Bolliger Law 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 of misconduct. Following that ruling, the parties filed their 

briefs. 

Only one of Mr. Bolliger's assignments of error on appeal asks us to reverse what 

is arguably a formal finding of a violation of the rules of professional conduct. Because 

the finding of a violation was supported by substantial evidence and issues raised by the 

other two assignments of error are moot, we affirm the relevant finding and conclusions 

of the court's disqualification order and otherwise dismiss the appeal.2 

FACTS AND PROCEDURAL BACKGROUND 

On July 2, 2013, then 84-year-old Donald Cudmore visited attorney John Bolliger 

with the stated intention of altering his estate plan. This was the first time that Mr. 

Cudmore had sought legal advice from Mr. Bollinger. A friend of Mr. Cudmore's, Dona 

Belt, had both referred him to Mr. Bolliger and arranged the 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 be Analyzed and Decided at the Same Time. The relief requested 

would unnecessarily delay the disposition of this appeal, something our commissioner 

could not have anticipated when, in June 2014, she expressed the expectation that Mr. 

Bolliger's several appeals would be considered and decided at the same time. 

2 
No. 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 of attorney executed in 2008, learned that Ms. Belt was accompanying Mr. 

Cudmore to financial institutions and to Mr. Bolliger's office. He notified Abbie Elliott, 

a bookkeeper for The Manor, of Ms. Belt "and her possible intentions." Clerk's Papers 

(CP) at 297. On July 8, Ms. Elliott became concerned when Mr. Belt arrived at The 

Manor and, from her perspective, too persistently proceeded to Mr. Cudmore's room to 

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 providing Mr. 

Cudmore with transportation to an appointment, the officers did not interfere. 

On July 11, Mr. Lamberson petitioned for a vulnerable adult protection order 

under RCW 74.34.110 seeking to restrain Mr. Belt from having contact with Mr. 

Cudmore. In addition to his own handwritten statement of concerns, Mr. Lamberson 

attached an unsworn, unsigned statement from Ms. Elliott; a copy of the police report of 

the July 8 incident; and an unsworn but signed statement from Mr. Cudmore's primary 

care physician that "[t]his patient suffers from significant and worsening Alzheimer'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 "in the 

'moderate to 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 ex parte order appointing C. Wayne May to serve as guardian ad litem.3 On July 18, 

Mr. Bolliger filed a petition to have himself appointed as Mr. Cudmore's lawyer in the 

guardianship proceeding and filed a notice of appearance in the action against Mr. Belt, 

stating he was appearing "on behalf of the above-referenced respondent, Gregg L. Beltand the above-referenced alleged vulnerable adult, James Donald Cudmore." CP at 299. 

On July 19, Judge Salvador Mendoza heard the petition for a protection order 

against Mr. Belt, followed by competing petitions 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 order prohibiting Mr. Belt from having contact with 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.). Under ER 

201 ( c ), courts may take judicial notice of adjudicative facts, whether requested to or not. 

A distinction is made between consulting the record of another case to determine whether 

it contains something and consulting the record of another case to determine whether 

disputed facts were or were not found to be true. 5 KARL B. TEGLAND, WASHINGTON 

PRACTICE: EVIDENCE LAW AND PRACTICE§ 201.9 (5th ed. 2007). In this case, the 

relevance of the judicially noticed developments in the guardianship proceeding is not to 

rely on any trial court decision for its correctness (an appeal of trial court actions taken in 

the guardianship proceeding is separately pending) but only for the fact that relevant 

developments occurred. 

4 
No. 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 order that "John Bolliger's motion for appointment as Mr. Cudmore's 

counsel is denied." Order Appointing 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 of the 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 of reconsideration 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 whether to appoint a guardian for Mr. Cudmore was heard on 

December 27, 2013. At the conclusion of the hearing, Judge Mendoza found Mr. 

Cudmore to be incapable of handling his personal and financial affairs and appointed Mr. 

Lamberson as full guardian of Mr. Cudmore's person and estate. 

On January 27, 2014, Mr. Bolliger filed a notice of his intent to withdraw from 

representing Mr. Cudmore in the action against Mr. Belt. On the same day, and on behalf 

4 Mr. Bolliger makes passing argument on appeal about whether Judge Mendoza's 

decision was based on inadmissible evidence, but the rules of evidence need not be 

applied in protection order proceedings under chapter 74.34 RCW. ER l 10l(c)(4). 

5 
No. 33193-8-III 

In re the Matter of Cudmore v. Belt 

of his remaining client, Mr. Belt, Mr. Bolliger wrote to Judge Mendoza, asking that he 

conduct the hearing contemplated when he reserved ruling on Mr. Belt's motion for 

reconsideration the prior August. Judge Mendoza responded the following week, 

indicating that the issues raised by Mr. Bolliger had been addressed through his decision 

in the guardianship proceeding and adding, "No further proceedings are necessary unless 

[Mr. May or Ms. Woodard] feel a hearing is necessary." CP at 314. On February 20, 

2014, Judge Mendoza entered a written order denying the motion for reconsideration. 

On March 13, 2014, Mr. Bolliger filed a notice of appeal on behalf of Mr. Belt. 

The following month, Mr. Lamberson moved to disqualify Mr. Bolliger from 

representing Mr. Belt in the Belt appeal, arguing that in light of Mr. Bolliger's prior 

representation of Mr. Cudmore, he had a conflict of interest. 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. Bolliger from representing 

Mr. Belt on appeal. Mr. Bolliger's motion for reconsideration of the court's order 

disqualifying him was denied. Mr. Bolliger timely filed a notice of appeal of the 

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 behalf of Mr. 

Belt on March 9, 2015. On April 15, 2015, lawyers for the parties to that appeal filed a 

stipulation to vacate the order of protection against Mr. Belt. On May 4, 2015, the 

lawyers filed a joint motion to withdraw the appeal and for entry of mandate. 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 

presented by this appeal was resolved by one of our commissioners. The commissioner 

determined that a lawyer is an aggrieved party if a formal finding of misconduct 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 United States v. Talao, 222 F.3d 1133 (9th Cir. 2000)). This appeal was 

permitted to proceed. 

RPC 1.16 generally requires withdrawal if a lawyer's representation of a client 

will result in violation of the Rules of Professional Conduct or other law. In re Marriage 

of Wixom, 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 or her. See Wixom, 182 

Wn. App. at 904-05. 

7 
No. 33193-8-III 

In re the Matter of Cudmore v. Belt 

"Whether circumstances demonstrate a conflict under ethical rules is a question of 

law we review de novo." RWR Mgmt., 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 present requires the 

exercise of discretion, implicating the abuse of discretion standard. Pub. Util. Dist. No. 1 

of Klickitat County v. lnt'l Ins. Co., 124 Wn.2d 789, 812, 881 P.2d 1020 (1994). The 

posture of this case requires only review, as a matter of law, of any formal finding of 

misconduct. 

In briefing filed after he was allowed to proceed with the appeal, Mr. Bolliger 

makes three assignments of error. He contends first, that the motion to disqualify him 

was untimely and the issue of a conflict was thereby waived; second, that his continued 

representation of Mr. Belt would not have violated RPC 1.7 or 1.9; and third, that the trial 

court erred in failing to apply the guardianship doctrine of substituted judgment. The 

arguments advanced by Mr. Bolliger's brief revive the question of whether 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 if a court can no longer provide effective relief. Orwick v. City of 

Seattle, 103 Wn.2d 249,253,692 P.2d 793 (1984). Generally, courts should dismiss 

cases that involve only moot questions. Client Av. Yoshinaka, 128 Wn. App. 833, 841, 

8 
No. 33193-8-111 

In re the Matter of Cudmore v. Belt 

116 P.3d 1081 (2005). 5 This court may raise the issue of mootness 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 of the doctrine of substituted judgment would have supported Mr. Bolliger' s 

continued representation of Mr. Belt. Mr. Belt doesn't need further representation. Cf 

RWR Mgmt., 133 Wn. App. at 280 (declining to consider challenge to disqualification 

order that became moot after able substitute counsel tried the matter to completion). 

At most, consistent with the reasoning on which our commissioner allowed the 

appeal to proceed, Mr. Bolliger has a concern that he will be stigmatized or prejudiced by 

a finding that he committed an ethical violation. Cf Washington Rules for Enforcement 

of Lawyer Conduct (ELC) 10 .1 (a) ( during disciplinary proceedings, "either party may 

move at any time for an order determining the collateral estoppel effect of a judgment in 

another proceeding.") 

The only conflict issue properly before the trial court in connection with the 

disqualification motion was whether by representing Mr. Belt after that representation 

was challenged in April 2014, Mr. Bolliger violated 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 of substantial and continuing interest. In re Marriage of 

Horner, 151 Wn.2d 884, 891-92, 93 P.3d 124 (2004). 

9 
No. 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 of Mr. Bolliger's former client, Mr. Cudmore, 

whose informed consent (or, in light of the guardianship, Mr. Lamberson's informed 

consent) had not been obtained. Mr. Lamberson's motion also complained of an earlier 

conflict of interest when, in July 2013, Mr. Bolliger represented both clients, but Mr. 

Lamberson did not move to disqualify Mr. Bolliger from representing Mr. Belt until more 

than a year later. It was only the circumstances that existed at the time of the 

disqualification motion ( or thereafter) that were of legitimate concern in deciding the 

motion. The trial court's findings referring to an earlier concurrent conflict were not 

relevant to the motion or the court's decision and will not be considered further. 6 

While Mr. Bolliger has failed to assign error to any of the trial court's findings of 

fact in ordering disqualification, it is evident from his argument that he challenges the 

6 Mr. Bolliger's briefing discloses that a disciplinary complaint is pending before 

the Washington State Bar Association that may include allegations of conflicts of interest 

during earlier periods. That issue will have to be decided on the basis of evidence 

presented in that forum, because any findings and conclusions on that issue in the trial 

court were in the nature of advisory opinions. While collateral estoppel precludes relitigation of the same issue in a subsequent action involving the parties, one of its 

essential elements is that the identical issue necessarily was decided. Christensen v. 

Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 306-07, 96 P.3d 957 (2004). Any 

earlier concurrent conflict of interest was not necessarily at issue in deciding the 

disqualification motion. 

10 
No. 33193-8-111 

In re the Matter of Cudmore v. Belt 

trial court's implicit finding of a violation of RPC 1.9.7 Such a finding is implicit in the 

trial court's sixth finding of fact, its fifth and eighth conclusions of law, and its decision 

disqualifying Mr. Bolliger. 

RPC l .9(a) provides: 

A lawyer who has formerly represented a client in a matter shall not 

thereafter represent another person in the same or a substantially related 

matter in which that person's interests are materially adverse to the interests 

of the former client unless the former client gives informed consent, 

confirmed in writing. 

Mr. Bolliger proceeds from the position that Mr. Lamberson's petition for an order 

of protection against Mr. Belt was reasonably objectionable to both Mr. Cudmore and 

Mr. Belt: that Mr. Cudmore was mentally competent at all relevant times, 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. If undisputed evidence bore out those facts at the time Mr. Bolliger's 

representation was challenged, his point would be a legitimate one-it is only if a current 

client's interests are materially adverse to those of the former client that the rule requires 

obtaining informed consent, confirmed in writing. 

7 Under the Rules on Appeal, findings of fact 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 Daughtry v. Jet Aeration 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 of Mr. Lamberson's disqualification motion (and for that matter, 

at all times after the court appointed Mr. Lamberson as full guardian of the person and 

estate of Mr. Cudmore) undisputed evidence did not bear out Mr. Bolliger's position that 

the interests of his current and former client were the same. To the contrary; the trial 

court had determined in December 2013 that Mr. Cudmore was incapable of handling his 

personal or financial affairs and that all of the estate planning documents that Mr. 

Cudmore signed when driven to Mr. Bolliger's office by Mr. Belt were invalid. In 

February 2014, the court had denied reconsideration of the protection order against Mr. 

Belt on the basis of those findings. Mr. Bolliger could not close his eyes to those 

determinations. In ~ight of those determinations, no reasonable attorney could conclude 

that he could represent Mr. Belt without first obtaining the informed consent of Mr. 

Cudmore's guardian, confirmed in writing. 

And in reaching this conclusion, it does not matter that Mr. Bolliger believes 

errors were also made in the guardianship action, which are the subject of a separately 

pending appeal. Until and unless the trial court's orders in the guardianship proceeding 

are reversed, Mr. Bolliger is required to heed them. The following observation, while 

made before adoption of our current disciplinary rules, still obtains: 

"Although it is both the right and duty of a lawyer to protest 

vigorously rulings on evidence or procedure or statements in the judge'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." 

12 
No. 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. Bolliger had not obtained Mr. Lamberson's informed consent to his representation of 

Mr. Belt, confirmed in writing, his representation of Mr. Belt violated RPC 1.9. 

Mr. Bolliger's remaining assignments of error are dismissed as moot. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Z?~w~.} Siddoway, J. 

WE CONCUR: 

Pennellp ,Q · 

13