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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CHRIS M. DAVIES,

Plaintiff,

v.

STATE OF WASHINGTON; DEPARTMENT

OF LABOR & INDUSTRIES; GARY

WEEKS, in his individual capacity; PAUL

TRAUSE, in his individual capacity; PATRICK

WOODS, in his individual capacity; and

ROBERT “ROBB” MARVIN, in his individual

capacity,

Defendants.

Case No. C05-5587FDB

ORDER GRANTING DEFENDANTS’

MOTION FOR LEAVE TO

WITHDRAW AS COUNSEL FOR

DEFENDANT ROBERT ”ROBB”

MARVIN

Counsel for Defendants moves pursuant to GR 2(f)(4) for an order allowing defense counsel

to withdraw as counsel for Defendant Robert “Robb” Marvin for the reason that after her entry of

appearance, the State received results of an independent investigation indicating that Defendant

Marvin is not entitled to state defense pursuant to RCW 4.92.070. (See Decl. of Suzanne Parisien.) 

The Court then ordered Defendant Marvin to advise the Court whether he would proceed pro se or

with new counsel. Marvin responded objecting to withdrawal of counsel arguing that all of the acts

and omissions alleged against him were done while he was in good faith performing his duties as the

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26 ORDER - 2

Chief Boiler Inspector for the State of Washington. Marvin also argues that he has not waived his

attorney client privilege with the Attorney General’s Office and he opines that it is not appropriate

for Co-defendant Gary Weeks to be making the decision that he is not entitled to a state defense. 

The Attorney General sets out the procedure followed by the Attorney General’s Office once

a complaint has been filed. First, a notice of appearance is filed, because time does not allow the

Office to wait until the three separate people who review a defendant’s request for defense is

completed. In this case, neither the Agency Director, the Assistant Attorney General representing

the agency and the Attorney General recommended a state defense for Marvin. While there is no

formal procedure for such a request, Marvin asked for reconsideration and Deputy AG Fischer once

again considered Marvin’s request for representation and again concluded that he was not entitled to

the state defense. Plaintiff’s objection to Gary Weeks participation in the review of his request is

without merit, as Agency Directors are frequently named in lawsuits, and there was independent

review of the Attorney General in addition. 

Also, counsel for defendants did not at any time speak to Marvin. (Parisien Decl. ¶ 5.) 

Marvin has not submitted evidence otherwise. 

“The sole judge under the statute as to whether an employee acted or purported to act in

good faith within the scope of his duties is the Attorney General.” State v. Hermann, 89 Wn.2d 349,

572 P.2d 713 (1977). The Court in that case also stated that “where the Attorney General fails to

find that the acts or omissions of the elected official, officer or employee were or were purported to

be within the scope of his official duties, then the defense of th[e] action shall not be at the expense

of the State.” Id. Under the circumstances herein, Marvin’s objection must be overruled and the

State’s Motion for Leave to Withdraw must be granted. 

NOW, THEREFORE, 

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26 ORDER - 3

IT IS ORDERED: 

1. Defendants’ Motion For Leave To Withdraw as Counsel for Defendant Robert

“Robb” Marvin [Dkt. # 9] is GRANTED. 

2. Defendant Robert “Robb” Marvin shall advise the Court by no later than Friday,

January 6, 2006 whether he will proceed pro se or with counsel, who shall appear by

that date. 

DATED this 13th day of December, 2005.

AFRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

Case 3:05-cv-05587-FDB Document 20 Filed 12/13/05 Page 3 of 3