(The Center Square) – Washington Solicitor General Noah Purcell is the focus of a Washington State Bar Association complaint alleging misconduct for responding on Attorney General Nick Brown’s behalf in a separate bar complaint, and directly communicating with private law firm Perkins Coie without its attorney’s consent.
The complaint comes right after news broke that Brown faces an inquiry by the bar association over an amicus brief filed in support of Perkins Coie, The Center Square reported this month.
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Although WSBA is a private organization and the complaints are made against individuals as private attorneys, both these complaints concern activities by attorneys in public offices who have used taxpayer resources to respond to at least one complaint, making communications regarding the inquiry subject to public disclosure.
In March, several Washington AGO attorneys including Purcell communicated via email with Perkins Coie attorneys regarding an amicus brief the AGO was working on in support of the law firm’s motion for a temporary restraining order against President Donald Trump’s executive orders cancelling the firm’s federal contracts and revoking its security clearance.
The amicus brief, signed by 20 other state attorneys general, was filed in federal court the day after Perkins Coie filed its motion, which was ultimately granted. The complaint itself is in the process of appeal by the Trump administration.
The emails sent to and from Purcell, a former Perkins Coie attorney, along with Deputy Solicitor General Emma Grunberg concerned drafts for both the amicus brief as well as the complaint, in addition to AGO suggestions on where and when to file the lawsuit. Although Grunberg ultimately signed the amicus brief, along with Brown, Purcell did not sign it.
However, not included in any of those communications between the AGO and Perkins Coie was Williams & Connolly, a D.C.-based law firm that Perkins Coie hired to represent the firm in its lawsuit.
Perkin Coie’s complaint filed in federal court was signed by Dane Butswinkas, a partner at Williams & Connolly. There was no communication between the Washington AGO and anyone at Williams & Connolly regarding the amicus brief in records obtained by The Center Square subject to an open records request.
A provision in Washington state’s Rule of Professional Conduct is “Communication with Person Represented by Counsel,” which states the following: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
The ethics complaint filed against Purcell with the WSBA argues that “if the Perkins recipients were not acting as litigation counsel in that matter, these direct discussions circumvented counsel of record… Even if some recipients were lawyers, there is no indication W&C consented to direct contacts or designated those individuals as litigation counsel.”
When The Center Square reached out to the WSBA for comment, Chief Communications and Outreach Officer Sara Niegowski wrote that an attorney communicating with another attorney’s client without their consent can be unethical, but “there are many elements that require careful case-by-case analysis in actual situations, such as the nature of the representation and/or the lawyer’s state of mind and/or subject matter of the communication. The rule says what it says, and that must be interpreted in light of all the case-specific facts.”
The Center Square reached out to Butswinkas to inquire whether he was aware of the communications between the AGO and Perkins Coie and if he had consented to the direct communications. He did not respond.
The Center Square also reached out to the Washington AGO as to whether it received permission from Williams & Connolly to directly communicate with Perkins Coie, but did not receive a response.
When asked about the AGO’s email communication with Perkins Coie, Niegowski declined to comment.
The WSBA complaint against Purcell also concerns a response he wrote to the WSBA on behalf of Brown and “the State Attorney General’s Office” regarding a complaint filed after The Center Square broke the story that Perkins Coie had 10 active contracts with the AGO that were not disclosed in the amicus brief. The response was sent to WSBA almost a month after it threatened Brown with an interim suspension of his license to practice law for failing to initially respond. Purcell’s response came a day after The Center Square reached out to the WSBA for comment on the matter.
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“Mr. Purcell did not state he was privately retained by Mr. Brown,” the Aug. 23 complaint states. “The WSBA disciplinary matter is personal to Mr. Brown and the AGO is not a party. Mr. Purcell is a necessary and material fact witness regarding the amicus drafting and coordination with Perkins Coie. These matters are central to the grievance against Mr. Brown. Acting as an advocate and representing the respondent attorney in the related disciplinary matter would be improper if this proceeds to a hearing or related litigation where Mr. Purcell is a likely necessary witness.”
The complaint also noted that “AGO resources (letterhead, systems, and personnel) were used to prepare and transmit the ODC (office of Disciplinary Counsel) response for Mr. Brown’s personal disciplinary matter.”