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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

ROBERT BONNEVILLE a/k/a WILL

ELLWANGER,

Plaintiff,

v.

KITSAP COUNTY, a municipal corporation,

KITSAP COUNTY HEALTH DISTRICT,

STEPHEN MOUNT, TIMOTHY QUAYLE,

THOMAS WIGGINS, and MICHAEL

BARTH,

Defendants.

Case No. C06-5228RJB

ORDER ON MOTION TO

DISQUALIFY COUNSEL AND

MOTION TO CERTIFY

QUESTION 

This matter comes before the Court on Plaintiff’s Motion to Disqualify Counsel (Dkt. 5-1) and

Motion to Certify Question to the Supreme Court of the State of Washington (Dkt. 7-1). The Court

has considered the pleadings filed in support of and in opposition to the motions and the file herein. 

I. PROCEDURAL AND FACTUAL BACKGROUND

This dispute concerns improvements on two properties located in Kitsap County. Dkt. 1-3. 

On April 3, 2006, Plaintiff filed a complaint against Defendants in Kitsap County Superior Court. 

Dkt. 1-2. The complaint was amended on April 25, 2006, alleging the following claims: 1)

Defendants violated Plaintiff’s Due Process and Equal Protection rights under both the federal and

state constitutions contrary to 42 U.S.C. § 1983, and 2) Defendants conspired to violate Plaintiff’s

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ORDER

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constitutional rights contrary to 42 U.S.C. § 1985(3). Dkt. 1-3, at 30-33. On April 25, 2006, this

case was removed to this Court. Dkt. 1-1. 

Kitsap County has agreed to defend and indemnify Stephen Mount and Michael Barth. Dkt.

10-2, at 14 and 17. Kitsap County, Stephen Mount, and Michael Barth are represented by Kitsap

County Deputy Prosecutors Martin F. Muench and Philip A. Bacus. Dkt. 1-3, at 35 and 51. The

Kitsap County Health District (which is not a division of Kitsap County) has agreed to defend and

indemnify Thomas Wiggins and Timothy Quayle. Dkt. 14, at 2. The Kitsap County Health District,

Thomas Wiggins, and Timothy Quayle are represented by Scott M. Ellerby of the law firm of Mills,

Meyers, and Swartling. Id. at 38. 

Plaintiff now files two motions. The first is a motion to disqualify the Kitsap County

Prosecutor’s Office from representing both the County and Stephen Mount and Michael Barth, and to

disqualify Scott M. Ellerby and the law firm of Mills, Meyers, and Swartling from representing both

Kitsap County Health District and Thomas Wiggins and Timothy Quayle. Dkt. 5-1. Plaintiff also

argues that the Prosecutor’s Office, Scott M. Ellerby and the firm of Mills, Meyers, and Swartling

should not be permitted to represent both the public entity defendants and the individual defendants

due to what Plaintiff characterizes as a conflict of interest. Id. at 5-12. Plaintiff argues that due to

Deputy Prosecutor Philip A. Bacus’s responses to his Freedom of Information Act requests, Deputy

Prosecutor Bacus and Prosecutor Hauge will be called as material witnesses. Id. at 4. Plaintiff argues

that as material witnesses, Deputy Prosecutor Bacus, Prosecutor Hauge and the entire staff of the

Prosecutor’s Office must additionally be disqualified pursuant to Rule of Professional Conduct

(“RPC”) 3.7. Id. 

Plaintiff’s second motion is a motion to certify the following question to the Washington

Supreme Court: 

In the circumstances of a case arising under 42 U.S.C. § 1983 where it is alleged that

individual employee defendants of a public entity defendant acted both under an official

policy of that public entity defendant and outside the scope of that employment, does

joint representation by a single lawyer, law firm or County Prosecutor’s Office

constitute an impermissible conflict of interest under RPC 1.7 and 1.10? 

Dkt. 7-1. Plaintiff argues there is no Washington case law on the issue. Id. at 1. 

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II. DISCUSSION

A. MOTION TO DISQUALIFY COUNSEL

Plaintiff moves to disqualify opposing counsel on the following bases: 1) that there is a

conflict of interest in the representation of a public entity and individual defendants in violation of RPC

1.7 and 1.10, and 2) the Kitsap County Prosecutors will be called as witnesses, precluding their

representation of the County and Stephen Mount and Michael Barth in light of RPC 3.7. 

1. Conflict of Interest

RPC 1.7 prohibits a lawyer from representing a client if that representation will be directly

adverse to another client unless the lawyer believes the representation will not adversely affect the

relationship with the other client and each client consents to the representation after full disclosure. 

RPC 1.10 prohibits any member of a law firm from representing a client where a particular attorney in

that firm would be prohibited from representing that client. 

Plaintiff argues that the Kitsap County Prosecutor’s Office, (specifically Philip A. Bacus and

Martin F. Muench), Scott M. Ellerby, and the law office of Mills, Meyers, and Swartling should be

disqualified from representing both a public entity and the individual Defendants based solely on

unsupported allegations in the amended complaint that the individual Defendants acted outside the

scope of their employment. Dkt. 5-1. Plaintiff expresses concern that the public entities may claim

that the individuals’ actions were unauthorized and that the employees might argue that they were

acting according to the public entity’s policy, thereby creating a conflict of interest. Id. Plaintiff’s

concerns are misplaced. In their Answer to the Complaint, Kitsap County, Stephen Mount, and

Michael Barth plead that all actions in this case were taken in an official capacity. Dkt. 8, at 2. 

Likewise, the Kitsap County Health District, Thomas Wiggins, and Timothy Quayle plead that the

individual Defendants acted in their official capacity. Dkt. 17, at 2. The record indicates that the

lawyers disclosed the possibility of a conflict with each individual Defendant and each still agreed to

allow representation. Dkts. 10-2, at 2-10; 15; and 16. The fact that the Kitsap County Prosecutor’s

Office did not memorialize this disclosure until a few days after the notice of appearance was filed

does not mitigate the individual Defendant’s right to choose counsel. The public entities have agreed

to defend and indemnify each individual Defendant. Dkts. 10-2, at 14; 14 at 2. Because, at least at

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this stage in the litigation, the public entities’ are willing to pay for the defense of their employees and

for a judgment, if any, resulting from the actions of their employees, any potential conflict of interest is

eliminated. Manganella v. Keyes, 613 F.Supp. 795, 799 (D. Conn. 1985)(finding where a county

agrees to defend and indemnify individually named defendants, potential conflicts of interests are

eliminated). Moreover, courts have rejected disqualification of an attorney representing both a public

entity and individual defendants due to potential conflicts of interest based solely on allegations

contained in a § 1983 complaint. In the Matter of the Petition for Review of Opinion 552 of the

Advisory Committee on Professional Ethics, 102 N.J. 194. 206-207 (N.J. App. 1986). Plaintiff’s

motion to disqualify counsel should not be granted on the basis of RPC 1.7 or 1.10. 

2. Attorneys as Witnesses

RPC 3.7 provides, 

A lawyer shall not act as advocate at a trial in which the lawyer or another lawyer in the

same law firm is likely to be a necessary witness except where:

(a) The testimony relates to an issue that is either uncontested or a formality;

(b) The testimony relates to the nature and value of legal services rendered in the case;

or

(c) The lawyer has been called by the opposing party and the court rules that the lawyer

may continue to act as an advocate; or

(d) The trial judge finds that disqualification of the lawyer would work a substantial

hardship on the client and that the likelihood of the lawyer being a necessary witness

was not reasonably foreseeable before trial.

The Plaintiff argues that the Kitsap County Prosecutor’s Office should be disqualified from

appearing in this matter because Deputy Prosecutor Philip A. Bacus and Prosecutor Russell Hauge

may be called as material witnesses at trial. Dkt. 5-1. Plaintiff claims that these attorneys may be

called as witnesses in response to his Freedom of Information requests as Deputy Prosecutor Bacus

redacted some of the information claiming attorney client privilege. Id. at 3-4. Plaintiff argues that

the Kitsap County Prosecutor’s Office was not representing the Health District and therefore any

communications with or in front of employees of the Health District waived attorney client privilege. 

Id. Plaintiff indicates he is planning to call Deputy Prosecutor Philip A. Bacus and Prosecutor Russell

Hauge as witnesses in order to “disgorge from them the contents of these communications.” Id. at 4. 

Plaintiff’s assertions are without merit and Plaintiff’s motion to disqualify the Kitsap County

Prosecutor’s Office should be denied. The Kitsap County Prosecutor’s Office had a contract to

represent the Kitsap County Health District. Dkt. 11, at 2. The Kitsap County Prosecutor’s Office

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asserts that the redacted materials were confidential communications between its clients and/or

attorney work product. Dkts. 10-1, at 8-9 and 11 at 2. A court should not disqualify an attorney

under RPC 3.7 absent compelling circumstances. State v. Schmitt, 124 Wn.App. 662, 666 (2004). 

“To demonstrate compelling circumstances, a party must show that the attorney will provide material

evidence unobtainable elsewhere.” Id. at 666-7. The Plaintiff has failed to show that Deputy

Prosecutor Philip A. Bacus and Prosecutor Russell Hauge are “likely to be necessary witnesses” in

accordance with RPC 3.7 or that they “will provide evidence unobtainable elsewhere.” Plaintiff’s

motion to disqualify counsel should not be granted on the basis of RPC 3.7. 

B. MOTION TO CERTIFY QUESTION 

RCW 2.60.020 governs certification of questions to the Washington State Supreme Court. It

provides,

When in the opinion of any federal court before whom a proceeding is pending, it is

necessary to ascertain the local law of this state in order to dispose of such proceeding

and the local law has not been clearly determined, such federal court may certify to the

supreme court for answer the question of local law involved and the supreme court

shall render its opinion in answer thereto. 

Id.

Plaintiff moves to certify a question to the Washington Supreme Court regarding the

interpretation of the Washington State Rules of Professional Conduct 1.7 and 1.10. Dkt. 7-1. General

Rule 2(e) for the Western District of Washington provides in relevant part that:

In order to maintain the effective administration of justice and the integrity of the

Court, attorneys appearing in this District shall be familiar with and comply with the

following materials . . . 

(2) The Washington Rules of Professional Conduct as promulgated, amended and

interpreted by the Washington State Supreme Court (the “RPC”), and the decisions of

any court applicable thereto; . . . 

In applying and construing these materials, this Court may also consider the published

decisions and formal and informal ethics opinions of the Washington State Bar

Association, the Model Rules of Professional Conduct of the American Bar

Association, and Ethics Opinions issued pursuant to those Model Rules, and the

decisional law of the state and federal courts.

Plaintiff’s Motion to Certify a Question to the State Supreme Court should be denied. Plaintiff

argues that this Court should certify to the Washington Supreme Court the question of whether a

Prosecutor’s office or private law firm may represent both a public entity and individual defendants

consistent with the Washington State Rules of Professional Conduct. Dkt. 7-1. However, it is not

necessary to ascertain the local law of the state in order to dispose of Plaintiff’s motion. General Rule

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2(e) permits this Court to consult a wide range of authorities in order to determine whether an

attorney’s conduct is within the bounds of acceptable behavior. Moreover, no showing has been made

that local law on the issue of joint representation has not been clearly determined. The requirements

under RCW 2.60.020 have not been met, and Plaintiff’s motion should be denied. 

C. CONCLUSION 

Plaintiff’s motions should be denied. The Kitsap County Health District, Timothy Quayle, and

Thomas Wiggins note that Plaintiff’s pleadings appear to be drafted by an attorney. Plaintiff denies

this. All parties should be mindful that the Rules of Professional Conduct apply. 

III. ORDER

Therefore, it is hereby

ORDERED that Plaintiff’s Motion to Disqualify Counsel (Dkt. 5-1) is DENIED and

Plaintiff’s Motion to Certify Question to the Supreme Court of the State of Washington (Dkt. 7-1) is

DENIED. 

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to

any party appearing pro se at said party’s last known address. 

DATED this 14th day of June, 2006.

ARobert J. Bryan

United States District Judge 

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