Law Firms Hired By Washington State Are Given Civil Immunity From Retaliatory Litigation

A split Washington state Supreme Court ruled that a government contractor—in this case, a law firm hired to perform an independent investigation of the Washington Attorney General’s Office—qualifies as a “person” under the state’s 1989 anti-SLAPP statute and is entitled to civil immunity from retaliatory litigation.

In a 5-4 ruling filed Jan. 28, the majority reversed the Court of Appeals and reinstated the trial court’s judgment in Leishman v. Ogden Murphy Wallace. The court was asked whether to exclude an otherwise covered individual or organization from immunity under the state’s anti-SLAPP law—RCW 4.24.510—because it was paid under a contract with the government to conduct an investigation and report the findings to a government agency. SLAPP stands for “Strategic Lawsuits Against Public Participation.”

“We hold that a government contractor hired to speak to a government agency is a ‘person’ under the statute,” Justice Raquel Montoya-Lewis, who delivered the 21-page majority opinion, said. “RCW 4.24.510’s immunity unambiguously applies to organizations and individuals, and there is no language in the statute limiting its application when an organization or individual communicates under a contract with a government entity.

“We reverse the Court of Appeals and find that [defendants] OMW and [Patrick] Pearce are entitled to a reinstatement of the trial court’s grant of reasonable attorney fees and costs, as well as attorney fees and costs for their appeal,” Montoya-Lewis said.

Associate Chief Justice Charles Johnson and Justices Mary Yu, Mary Owens, and Sheryl Gordon McCloud join Montoya-Lewis’ opinion.

Justice Barbara Madsen issued a separate eight-page dissent, joined by Chief Justice Steven Gonzalez and Justices Debra Stephens and G. Helen Whitener.

Madsen argued that the majority gave too broad of a definition of “person,” instead of narrowly construing the immunity law.

The anti-SLAPP statute was meant to blunt or prohibit such lawsuits, that the Legislature deemed are designed to intimidate the exercise of First Amendment rights and rights under Article I, Section 5 of the Washington state Constitution, when it passed the law in 1989.

“I disagree with the majority’s decision to give a broad meaning to the term ’person’ and extend protection to a government contractor that is neither exercising its First Amendment rights nor petitioning the government for redress of grievances,” Madsen wrote. “Precedent has established that immunities are to be narrowly construed.”

Plaintiff Roger Leishman, who represented himself, could not be immediately reached for comment.

Robert Sulkin and Malaika Eaton of McNaul Ebel Nawrot & Helgren in Seattle, represented Ogden Murphy Wallace, one of two defendants in the case. Sulkin was also not available to comment.

The entities in question, in this case, were Ogden Murphy Wallace (referred to as OMW in court documents) and Patrick Pearce, the law firm’s lead investigator, who were hired as outside counsel to conduct an independent internal investigation of Leishman’s allegations of discrimination against his employer. The investigation also would include, unbeknownst to Leishman, his workplace conduct with a supervisor.

Leishman, an openly gay man, began working at the Attorney’s General Office in Bellingham as chief legal adviser to Western Washington University in June 2015.

Shortly after starting the job, Leishman began exhibiting serious trichotillomania, anxiety, and other symptoms, which he disclosed to his employer. In November 2015, Leishman’s physician diagnosed him with post-traumatic stress disorder and co-dependency. Leishman informed the office about his new diagnoses, according to court documents.

In January 2016, Leishman learned he did not receive a $3,000 raise given to other assistant attorney generals because of complaints his supervisor made about his conduct at work. Leishman contended his supervisor’s complaints were based on homophobic beliefs.

In February 2016 Leishman made a formal request for reasonable accommodation of his disability, which the office denied. A month later Leishman drafted a discrimination complaint.

During a March 1, 2016 meeting with his supervisor over the complaint, the supervisor denied wrongdoing in connection with her statements, accused Leishman of faking his disability, and refused to support his then-pending accommodation request.

Leishman admitted that during this meeting he became angry, restless, and agitated, and he raised his voice. Leishman formally submitted his discrimination complaint to the Attorney’s General Office.

Leishman’s supervisor complained to the office about Leishman’s conduct during their meeting, and the office placed Leishman on home assignment, where he remained until his termination three months later.

The office retained Ogden Murphy to conduct the independent investigation but never informed Leishman that it was also investigating his alleged behavior during the March 1 meeting with his supervisor.

The law firm’s report concluded that “Leishman has not established support for his complaint of discrimination against him based on sexual orientation” and that “Leishman’s conduct during the March 1 meeting violated expected standards of conduct for his position as reflected in his job description.”

The office moved to terminate Leishman on June 1, 2016, and Leishman subsequently sued the law firm and Pearce for negligence, violation of the Consumer Protection Act, misrepresentation, fraud, and discrimination. Leishman alleged that neither Pearce nor Ogden Murphy was acting as the Attorney’s General Office’s agent and, therefore, his claims against the law firm and Pearce are not barred by the settlement.

Ogden Murphy filed a motion for judgment on the pleadings, under CR 12(c), arguing that it and Pearce had immunity under the anti-SLAPP law. The trial court granted Ogden Murphy’s motion, and Leishman appealed.

The Court of Appeals reversed, holding that “government contractors, when communicating to a government agency under the scope of their contract, are not “persons” entitled to protection under RCW 4.24.510.” The high court was asked to review.

In her dissent, Madsen contended the type of work the law firm conducted wasn’t covered by the anti-SLAPP law.

“RCW 4.24.510 does not contemplate the type of conduct OMW engaged in here,” Madsen wrote. “Rather, the communication was sought and contracted by the government. OMW was acting as the government and not in a personal capacity.”

But Montoya-Lewis and the majority disagreed: “It is not for this court to narrowly construe an unambiguously broad statute in order to make it comport with our vision of who anti-SLAPP statutes should protect.

“If OMW and Pearce are ’persons’ under RCW 4.24.510, then they are immune from Leishman’s suit based on their communication to the [Attorney's General Office], and the case must be dismissed,” Montoya-Lewis wrote in the Jan. 28 opinion.