Case No. 2:09-cv-0018-JLQ DATED JUNE 27, 2018 (ECF NO. 353) · 6. Attached as Exhibit D is a true and correct copy excerpt from the DV Manual for Judges 2015, published by the Washington

DECLARATION OF R. BRUCE JOHNSTON SUPPORTING

WAPATO HERITAGE, LLC’S RESPONSE TO

COURT ORDER - PAGE 1

FOREMAN, APPEL, HOTCHKISS, ZIMMERMAN &

BAUSCHER, PLLC 124 N. Wenatchee Ave., Suite A

P.O. Box 3125

Wenatchee, Washington 98807

(509) 662-9602 Fax (509) 662-9606

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The Honorable Justin L. Quackenbush R. Bruce Johnston, WSBA #4646 Johnston Jacobowitz & Arnold, P.C. 2701 First Avenue, Suite 340 Seattle, WA 98121 (206) 866-3230; Fax: (206) 866-3234 [email protected] Dale M. Foreman, WSBA #6507 Foreman, Appel, Hotchkiss, Zimmerman & Bauscher, PLLC P.O. Box 3125 124 N. Wenatchee Ave., Suite A Wenatchee, WA 98807 (509) 662-9602; Fax: (206) 662-9606 [email protected]

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

PAUL GRONDAL, a Washington resident and THE MILL BAY MEMBERS ASSOCIATION, INC., a Washington Non-Profit Corporation, Plaintiffs, v.

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF THE INTERIOR; THE BUREAU OF INDIAN AFFAIRS; et al.,

Defendants.

) ) ) ) ) )))) ) ) ) ) )))))

Case No. 2:09-cv-0018-JLQ

DECLARATION OF R. BRUCE

JOHNSOTON SUPPORTING

WAPATO HERITAGE, LLC’S

RESPONSE TO COURT’S ORDER

DATED JUNE 27, 2018 (ECF NO.

353)

R. Bruce Johnston declares under penalty of perjury:

Johnston Dec. re Wapato Heritage response to Dkt. No. 353Page 1 of 110

Case 2:09-cv-00018-JLQ ECF No. 361 filed 07/18/18 PageID.5164 Page 1 of 110






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1. I am Counsel for Wapato Heritage, LLC in the above captioned matter, am a

member in good standing of the WSBA, am competent to testify and testify

herein of my personal knowledge unless otherwise indicated.

2. I inquired with the Chelan County Superior Court and there are no transcripts

or records of the state court proceedings related to the 2004 settlement.

3. Attached as Exhibit A is a true and correct copy of the Last Will and

Testament of William Evans.

4. Attached as Exhibit B is a true and correct copy excerpt from Native

American Women: A Biographical Dictionary, ed. Gretchen M Bataille &

Laurie Lisa, indicating Mary Wynne’s Colville Tribal judgeship.

5. Attached as Exhibit C is a true and correct copy of a 2015 Lakota Country

Times article indicating Mary Wynne served as a Colville Tribal Judge.

6. Attached as Exhibit D is a true and correct copy excerpt from the DV Manual

for Judges 2015, published by the Washington State Administrative Office of

the Court, which indicates that Mary Wynne drafted the original chapter in

2001, and is the former Chief Judge of the Colville Federated Tribes as of that

2015 update.

7. Attached as Exhibit E is a true and correct copy of the order approving the

settlement agreement in the Federal Probate matter.








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8. Attached as Exhibit F is a true and correct copy of a Stipulation to two

reprimands in Mary Wynne’s bar grievance matter.

9. Attached as Exhibit G is a true and correct copy of the first of two reprimands

in Mary Wynne’s bar grievance matter.

10. Attached as Exhibit H is a true and correct copy of the second of two

reprimands in Mary Wynne’s bar grievance matter.

11. Attached as Exhibit I is a true and correct copy of the Approval of the

Stipulation found at Exhibit F.

12. Attached as Exhibit J are relevant portions of the transcript of a hearing in

Eastern District for Washington, Cause No. CV 07-314-EFS.

13. Attached as Exhibit K is a true and correct copy of an Adversarial Complaint

filed against Mary Wynne in South Dakota Bankruptcy Cause No. 14-30017.

14. Attached as Exhibit L is a true and correct copy of an Order of the Arizona

District Court in Cause No. CV-12-218-PHX-SMM.

15. The document identified as “Danielson 117” is a document produced by the

BIA in response to a FOIA request. Wynne met with Gene Nicholson and

others, and Wynne, without authority from her client, and contrary to her

duties as Ms. Evans lawyer bargained away the residuary interest of Mr.

Evans (and Ms. Evans and Wapato Heritage) in the entire MA-8 property.








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Counsel continues to seek a copy of this document and will submit it to the

Court once located.

16. Mr. Gargan, the husband and business associate of Ms. Wynne, attended the

2004 mediation.

EXECUTED this 18th day of July 2018 at Port Ludlow, WA.

/s/ R. Bruce Johnston

R. Bruce Johnston, WSBA # 4646

2701 First Street, Suite 340

Seattle, WA 98121

(206) 866-3230 Fax: (206) 866-3234

[email protected]








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CERTIFICATE OF SERVICE

I hereby certify that on the date set forth below, I caused the foregoing

document, to be electronically filed with the Clerk of the above entitled Court using

the CM/ECF system, which will send notification of such filing to the following:

James M. Danielson: [email protected]

Brian C. Huber: [email protected]

Franklin L. Smith: [email protected]

Dana Cleveland: [email protected]

Pamela J. DeRusha: [email protected]

Rudy J. Verschoor: [email protected]

Joseph P. Derrig: [email protected]

Timothy M. Lawlor: [email protected]

Matthew A. Mensik: [email protected]

Jason D’Avignon: [email protected]

and hereby certify that I have caused to be mailed by United States Postal Service the

document to the following non-CM/ECF participants:

Frances J. Reyes Enid T. (Pierre) Marchand

P.O. Box 215 aka Enid T. Wippel

Elmer City, WA 99124-0215 P.O. Box 101

Nespelem, WA 99155

Gary & Francis Reyes Linda Saint

P.O. Box 296 P.O. Box 3614

Newman Lake, WA 99025 Omak, WA 98841

Jeffrey M. Condon Vivian Pierre

P.O. Box 3561 P.O. Box 294

Omak, WA 98841-3561 Elmer City, WA 99124



mailto:[email protected]















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Arthur J. Dick Annie Wapato

P.O. Box 288 1800 Jones Rd.

Nespelem, WA 99155-0288 Wapato, WA 98951-9417

Mary J. Garrison Francis Abraham

P.O. Box 1922 11103 E. Empire Ave.

Seattle, WA 98111 Spokane Valley, WA 99206

Sonia W. (Wapato) Vanwoerkom Mike Palmer

810 19th St. P.O. Box 466

Lewiston, ID 83501-3172 Nespelem, WA 99155

Dwane Dick Hannah Rae Dick

P.O. Box 463 P.O. Box 198

Nespelem, WA 99155-0463 Nespelem, WA 99155-0198

Kathleen M. Dick Lydia A. Armeecher

P.O. Box 288 P.O. Box 475

Nespelem, WA 99155-0288 Wapato, WA 98951

Paul G. Wapato, Jr. Catherine L. Garrison

2312 Forest Estates Drive 3434 S. 144th St., Apt. 124

Spokane, WA 99223 Tukwila, WA 98168

Leonard M. Wapato Judy Zunie

P.O. Box 442 P.O. Box 3341

White Swan, WA 98952-0442 Omak, WA 98841

Stephen T. Wapato Travis E. Dick

246 N. Franklin Ave. Hannah Dick, Guardian

Wenatchee, WA 98801-2156 P.O. Box 198

Nespelem, WA 99155-0198

Jacqueline L. Wapato Deborah A. Blackwell

P.O. Box 611 24375 SE Keegan Rd.

Lapwai, ID 83540-0611 Eagle Creek, OR 97022








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DATED this 18th day of July 2018.

/s/ Dale M. Foreman

Dale M. Foreman





narnold

Typewritten text

EXHIBIT A

/ SEp242003

I LAST WILL AND TEST4MJ'Nf

OF

WILLIAM WAPATO EVANS, JR,

1. 03 4 00185 REW-C—LARAT.IONS

.T .1'10.C r, William Wapato evn, alk/a William Evan, Jr., horn:ne4.J9 , Confederated

Tribes of the Colville P"eservatiOn. Si of Washington

i.D. No. IGJ.U003058 being of sound and disposing 'mind and fliemo, and not atirtg

under duiess, menace, fraud, or undue influence of any person do maj publish and declare this my Last Will and Testament. I hereby revoke afl of m prior wifl

and codicils, and specifically that Will dated June, 2002. 1 .2

Domicile i am domiciled and reside in the Sate of Washingtor of C'helan,

,3 Emiy. 1,11-11 a widower and my deceased spouse Lucille Evs was a non-

Indian. I have two children, namely: Nancy Evans Gallagher, Unaj!oLLed CoJv 10

1U012369 Sandra D. Evans, Unaflotted Colville No. 101tJ013093 I have Lhre

grandchildren: Kenneth Evans, a Colville descendant John Jones, a Colville desce,dt an,

Jamie Jones, a Cølvj& descendant. I have eightgreat-grandchildrenKellen Wapata ?ones

and Guess Lynn. Wapato Jones (the natural children of my grandson Jamie Jones), Clinton P. DeFries and Bambie Ann Allie (the

stepchildren of Kenneth Evans), Dan kI Jcne,3chn

Wayne Jones, Jr., and William Wapato Jones (the natural children of John Jii). I lo

JAST WILL AN) iESTAMEN'r OF VVILLIA-M WAPATO EVANS. JR. -,

roi



have Iwo $tepchjJdrii. Larry Heyen and Tony leyen, from a prior marriage of my deceased spouse, Lucille Lvans

GENERAL PRON71 'I

2.1 11dren "Children' as sub.equentj. used in (his wi ll means my natural children named above, and all children born to or legally adopted by me

after the date of this will, "Child" means any one of the Children Children is not to include MY step-children,

2.2 "Descendants" means lineal descendants in

any degree of the ancestor

designated and includes persons adopted during minority,

2.3 Except as provided herein, I make no provision

any of my heirs, or persons clafng to be my heirs, living at the date of my death,

for

whether or not known to me,

2.4

&ort "Fee Property means and includes all property, or any interest in property, which I ownat the time of my death

that is gove by the laws of any one of

which is held in trust the fifty sovereign states of the United States, "Fee Property" is not to include property

by the United States government,for the benefit of Indian owners,

whether on or off reservation land, pursuant to Title 25 of the United States Code

2.5 "Indian" means and Includes all persons

for purposes who are recognized as Indian oses of the Indian Chjld Welfare Act CWA), 25 U.S. C. § 1901 . and far PUrpOSeS

of the Indian Land Consol idation Act (rLCA) and the 2000 amendments thereto (or its equivafl) 25 U.S.c § 220j, et,

2.6 TrustProperty" means and includ5

Code,

trust astr alloents and funds held by the United nd re icted

the Unjte,:j States Code, in tst for an Indian, pursuant to Title 25 of

LAST WILL AND ThSTAMEN OF WILLIAM WAPATO EVAiS, R, .



Ill. APPOINTMENTS

3. 1. I appoint Jeff Webb, C.P.A., as Personal kepresenttjve of that portion of my Estate which is probated under the laws of the Stte of Washington, or in any ancillary probate proceeding commenced in another State, If Jeff

Webb declines, fails, or is unable to act as my Personal Representative, I direct that my three

grandsons, Kenneth Evans, Jamie Jones, and John Jones, who are named in this instrument, shall act as my SUCCCSSOr Co-Personal Representatives

I appoint Kenneth Evans, Jamie Jones, and John Jones, as the trustee of the Wapato

Family Personal Artifacts Trust, created under this Will in Article IV, paragraph 4, and to be construed in accordance with Article VII,

Iv. SPECIFIC BEQUESTS ND DEV1,414Fq OF REAL 10 &QF—ERTY

4.1 SWcijc Bennittg to Step-Chilcj'enI give fifty-five thousand dollars to each child of my SPOUSC, Lucille Evans, that were born of her first marriage

(i.e., my step-children) prvided however, that such sum shall not have previously been paid by me to these

beneficiaries. Such sum shall be paid after the probate of my estate is completed, in five (5) annual installments without interest. Should any legatee for whom this paragraph 4.1 applies, predecease me in

death, or not survive me by sixty (60) days, this bequest shall lapse,

4.2 M in Wamr g.: I give

all of my interest in the membership of the Wapato Heritage L.L.C,, a Washington limited

liability company, to Sandra Evans, Nancy Evans Gallagher, Ja1nje Jones, Kenneth Evans,

and John Jones, to be distributed amongst these five beneficiaries in five equal shares. Each

beneficiary's individual share shall be equal to one-fifth of my ownership interest in the Wapato Heritage L.L.C.

LAST WiLE. AND TESTAMENT OF WILL lAM W.kPATQ EVANS, Ia. .



4.3 Wapail) Far ills persona! fa'tsTrui 1 gvc, devise,

and bequeath all of my interest in the personal property ofrnyestate which consists oflndiari

and Native AT1crican cultural artifacts, including masks. ceremonial iternN, regalia, histrirjcai

documents fishing and hunting equipment and iTems, photographs, sketches, àtork, and

map.,;, from my ancestors, and from the Wapato family, in trust 1,,-I the trustees of the Wapato

Family Personal Artifacts Trust, The Trustees, as named herein, shall hold, administer, and

distribute such property, as provided in Article VII (Wapato Family Personal Artifacts Trust)

of this Will.

4.4 ncific Bequest to the St. Jose Parish in East Omak, WashinRtn. I hereby

give $100,000 to the St. Joseph Parish in East Omak which operates the Paschal Sherman

Indian School in Omak, Washington on the Colville Reservation. It is my intent that this

bequest he used to establish a scholarship fund for the benefit of students who are enrolled or seek to enrol at the Paschal Sherman Indian School, it is my further intent that this

scholarship fund be administered in the discretion of the administrators/board of trustees (or

similar positions of authority) of the St. Joseph Parish. Such sum shall be paid to the St. Joseph Parish, in five (5) annual installments without interest, after the completion of the

probate of my estate. This bequest is made with the condition precedent that there be funds

available at the time of my death to make the specific bequests already made under this Will,

Specifically the bequests named in this Article IV, paragraphs 4.1 through 4.3. Should there be insufficient funds available to the Personal Representatives of my estate, or in an Indian

probate proceeding under federal law, this bequest shall be deemed to lapse—before any

specific bequest made in paragraphs 4.1 through 4.3 shall be deemed to fail or subject to

Payment in a pro-rata fashion.

4.5 Certain Real Property Owned in "Fee". I hereby give, bequeath and devise,

any interest I may have in real property owned in "fee" by me to the Wapato Heritage

Limited Liability Company, a Washington limited liability company. it is my intent that my

LAST WILL AND TESTAMENT OF WILLIAM W APATO EVANS, JR. .4 titi L!



persona! representative deed all such property directly to the Wapato Heritage Limited

Liability Company I do not intend that any property [own beneficially in trust, Pursuant to Title 25 of the United States Code, he devised bN, reason of this paragraph 45.

4.6 CertainTan gjj crson.al ProperEvbySçparj.5

4.6.1 1 understand that I may choose to dispose of some of my tangible

Personal properly as specified on a Separate list prepared by me., if 1 decide to prepare such

a list, then the list shall cQzu.am the item and the person to whom I wish this item to be

awarded. The list will either be signed by me or will be in my handwriting. i intend to date the list to help identify it, but the list shall still be effective even if I fail to date it.

4.6.2 I understand that the kind of tangible personal property that can be

disposed of by this list includes automobiles boats, airplanes, household goods, furnishings

and appliances, silverware, cooking utensils and dishes, paintings, pictures and books, collections, sporting equipment, jewelry, and clothing and personal effects. I further understand that the list

MAygj be used to dispose of interests in real estate, mobilehomes, money, bank accounts, securities, or intangible property.

4.6.3 Any items not included on this list shall be a part of the residue of my estate. In

the event no such list is found, then this paragraph shall be of no force and effect.

V. JDiIA!tY ESTATE

5.1 Qontingpmfieuts and ,Pevises: Due to the uncertainty regarding the probate

Of Indian trust lands, and the lack of definitive knowledge regarding the effect of the 2000

Amendments to ILCA, I have provided in this Will for certain contingencies depending (I) on the

dare of my death, and (2) the interpretation of ILCA as it applies to my estate.

5. 1.1 First Contingent e riDeh Prior to afecth'e Dat

Of LA Am M042f—MM. Should I die prior to the effective date of applicable sections

of the Indian Land Consolidation Act Amendments, of 2000, 1 hereby give a life estate in the

LAST WILL AND T TAMENj' GE WILLIAM WAPAT() EVANS, JR.. tnt,ls' _______



resjduc uf my estate to [tic Wapato Heritage Limited I.iabijjtv

Company , a Waslj, limited liabthy AgUll–It—re (for the life of) my great gFfl50 Danjeljones a Cclvjjk descendaxu but non-Indian)

The residue of my estate includes properly held in

trust by the t.Jnitcd States !3ureau of Indian Affairs and Specifjci trust cofnnionly referred to as MA- I 0 and MA -8.

11 is my inenz that at my death, the residue of my estate specificafly include any interest I may have in any Indian trust properly, real or

personal in nature, including rents, profits and personal property, beneficially titled in my name.

Then the remainder estate Igive in equal shares, simultaneously and without parti tion,

to the Confederated Tribes of the Colville Reservation and to Kellen Waparo Jones and

Guess Lynn Wapato Jones (the natural Children of my grandson Jamie Jones), Clinton P. DeFries and Bambie Ann Alije (the stepchildren of Kenneth Ev15), Daniel Jones,

John Wayne Jones, Jr., and to William Wapato Jones (the natural children of John Jones) as Joint

tenants in Common

The Testator hereby declares that the remainder shares provided to Kellen Wapato Jones, Guess Lynn

Wapato Jones, Clinton DeFries, Bambje Allie, Daniel Jones, John Wayne Jones, Jr., and William Wapato Jones, may be

purchased for fair market value, as appraised by a duly licensed appraiser qualified to appraise property owned in trust pursuant to Title 25 of the United States Code, by the

non-family remainder beneficiary of my estate: the Confederated Tribes of the Colville Reservation

5.1.2

QLthCAAmUJQQQ Should 1 die after the effecdve date of the applicable

sections of the ILCA Amendments of 2000, 1 hereby give that portion of my estate which

contains any interest! may Own, at my death in "fee" property to the Wapato Heritage Li,c,

In addition, should I die after the effective date of the applicable sections of the ILCA

Amendments of 2000, 1 hereby give a life estate in that portion of my estate which contains

LAST W{ LL AND TESTAMENT OF WILL" WAPATO EVANS, JR. -6



any interest I may own, at my death, in "trust" property, (including Without Iimtatjon [h{)SC

parcels commonly referred to as MA-8 and MA-IC) to the Wapato Heritage Limited LiahjJjr

Company, a Washington limited liability corporation pur autre vie (for the Iifc) of 1.)anici

Jonesrny great-grandson, a Colville descendant, but non-Indian) and thon the remtjIidcr

give in equal shares, simultaneously and without partition, to the Confederated Tribes of the

Colville Reservation, and to Kellen Wapato Jones and Guess Lynn Wapato Jones (the natural children of my grandson Jamie. Jones), Clinton P. DeFries and Barnbie Ann Allie (the

stepchildren of Kenneth Evans), Daniel Jones, John Wayne Jones,Jr, and to William Wapato

Jones (the natural children of John Jones) as joint tenants in common.

The Testator hereby declares that the remainder shares provided to Kellen Wapato

Jones, Guess Lynn Wapato Jones, Clinton DeFries, l3ambje Allie, Daniel Jones, John Wayne

Jones, Jr., and William Wapato Jones, may be purchased for fair market value, as appraised

by a duly licensed appraiser qualified to appraise property owned in trust pursuant to Title

25 of the United States Code, by the non-family remainder beneficiary of my estate: the

Confederated Tribes of the Colville Reservation

VI.

JATQ FAMILV ?RSOAL ARTIF4CTS TRUST

6.1 introduction. The primary purpose of the Trust is to provide for the inventory,

cataloging, and temporary custodial care of the Wapato Family's personal Indian and Native

American artifacts. It is my intent that the Trust hold artifacts and personal property which

represent and document my family's cultural history and its Native American heritage.

6.2 Fifteen Year Period of Collection and Inv entry. The Trustees shall have fifteen (15) years from the date of my death to collect, inventory, and catalogue the personal

artifacts given and bequeathed to this Trust. During the fifteen (15) year period, the Trustees shall make

every effort to locate and inventory all of the property intended to be transferred into this Trust from my estate. The Trustees shall have the ability (and I suggest the Trustees

LAST WILL AND TESTAMENT OF WILLIAM WAPATO EVANS 1R -7 J.ir41: 4,411



do so), to consult an Indian artitcts historian and preservation expert as to the best and niot

appropriate method of preserving and storing the artifacts until the Trust's terThinatiFi ll . During

this fifteen (15) year period, the Trustees shall Inquire from the Confederated Tribes of the Colville Reseji'atjojj and its duly authorized huines crporaiion (colletjve1y

referred to as Tribe) asto the status and construction of a new facility for a casino and gaming hail to be built closer

to the waterfront portion of the property known as

located on Lake Chelan, in Manson, Washington The Trustees shall inform the Tribe of my

wishes and desire that the Wapato Family's heritage and cultural artifacts be on public

display in the Tribe's new casino facility.

63 LcQeiarij-jstorjc5j Society an Museum. In addition, the Trustees during

the fifteen (15) year period as defined in paragraph 6.2 of this Article, may in their discretion,

lend the property of the Trust for display or preservation, to the Lake Chelan Historical

Society and Museum, located in Chelan, Washington.

6.4 TrustDjsjbutjOflafldTermiatjpn. Fifteen (15) years from the date of my

death, the Trustees shall distribute the entire property of the Trust and all interest and title thereto to either 1) the Lake Chelan Historical Society and Museum, in Chelan, Washington

or to 2) the Confederated Tribes of the Colville Reservation (with the express provision that

the property be placed on publib display at a new casino facility located in Manson, Washjflgtoxi) 1 hereby give the Trustees the discretion to make the decision as to

whom the Property should be distributed to, taking into consideration my intent and wishes that the

property be properly inventoried and preserved for historical and cultural purpose. The

Trust shall terminate after the completion of the Trustee's duties and distribution of the

Property of the Trust to either one of the beneficiaries named in this paragraph, 6.4.

VII. E&TTE PrjINISTR4TVE PRO vIsrgs

LAST WILL AND TESTAMENT OF WILLIAM WAPATO IiVANS JR. 8 UJO



7 1 1 rrodticjon The Personal I preenta(j\'es shall have tht powcrs and au0111 set forth in this article, and the absOlute discretion

with respect thereto, in addition to and no w ?inti of, any power or authoriy now or hereafter granted by iw. 7.2

The Personal Rpresentaj5 ma' exercise ail

powers and rights granted by the Jaws of the State of Washington to Personal Represenvaijve

acting under nonintervention Wilts, all without notice to or approval OtConhii-matjon by, any

court and whether or not necessary for the administration of my

estate.

7.3 The Personal Representatives may distribute any

portion of my estate in advance of any court decree of distribution or final settlement of my estate.

7.4 IXjections The Personal Representatives may make all ejections and take any other action affecting taxes, including claiming any administration expenses as either

or death tax deductions, and make such adjustments therefor between the persons having a beneficial interest in my estate as deemed equitable,

vrn. OFICIs OF TRUSTEE

8.1 More than pfl-tee Named in thjs Will. More than one Trustee is named to the Office of Trustee in this Will. I

intend that paragraphs 8.2 through 87 apply to each Trustee named in this Will. Each Trust created hereunder is however a separate Trust and

each Trustee is instructed to manage each Trust independently of any other Trust created hereunder,

8.2jisso Trustee At arty time after my death and after the Trustees have

succeeded to the office of Trustee as previously provided in this Will, the acting Trustee shall have the power to

appoint by a writing duly acknowledged, or by Will, a successor Trustee to act if the acting

Trustee shall be or become unable or unwilling to continue to act. Within

20 days after qualifying to act as Trustee, the successor Trustee shall give written notice of

LAST WILL AND TESTAMr1-0p WILLIAM WAPATO EVANS. JR, 9



Stich qualification to each person having a presern beneficial interest in the income of any trust hereunder.

83 JiejnTz-uste A majority of the persons having a present benecjai flterest in the income of a truci or ttiir legal representatives may change the Ttustee of that

trust to any Corporation or financial institution authorized to do trust business in the State of

Washington. The right of any person or persons to change the Trustee may only be exercised once in any two-year period.

8.4 Vacan—cy. U for any reason the position of Trustee becomes vacant without a

successor Trustee being appointed as previously provided in this instrument, a majority of

all persons having a present beneficial interest in the income of the trust 111 Which the Trustee's position has become vacant, or their legal representatives, may appoint as successor

Trustee any Corporation or financial institution authorized to do trust business in the State of Washington,

8.5 Resioation. The Trustee may resign as the Trustee of a ytrust created by this

instrument at nay time without court proceedings, by delivering a written notice of

resignation to the person or persons who are entitled to the trust income, or for whom income is then being accumulated.

8.6 Colngtnsation. The Trustee- sha]l receive for the Trustee's services hereunder

reasonable annual compensation in accordance with the fees customarily charged by

corporate Trustees for like services together with reimbursement for expenses. 8.7

Notwithstanding any provision in this

instrument to the contrary, the Trustee shall not be the guarantor or insurer of the

performance of the investments in any trust and shall not be surcharged for loss in any one or more investments where the overall conduct of the Trustee in managing the trust

investments has been reasonable and prudent. The conduct of the Trustee shall be measured

by the total performance of the trust rather than by the performance of each individual

LAST WILL AND TESTAMENT OF WILLIAM WAPATO EVANS, JR.' JO



investment. In determining the prudence of a particular investment, the Trustee shall give due consideration to the role that the Proposed tnvestmerjt or investment course of action plays Within the overall portfolio o f the

asscts in the trust. In applying such m total assets

anagernetit approach, the Lustee should consider the following: (a) the probE e c

as well as the probable. safety of the capital In the trust, (b) the markctbiIi

m

ty of the investments (C) the length of the term of the investments (d) the duration of the trust,. (e)

liçuidity needs, (1) the requiremen of the, beneficiary orbeneficjj5 (g) other assets of the

beneficiary or beneficiaries, including earning capacity, and (b) the effect of investments in

Increasing or diminishing liability for taxes.

ix. DTIE$ QF TRUSTEE

apply. 9.1

ituco For all trusts under this Will, the following provisions shall

92 Acntin After the end of each income tax year of any trust created hejn, the Trustee shall furnish to each person who had 8 current beneficial interest in the income of that (rust during the ra year just then ended a statement showing how the assets of the

trust were invested as of the end of that tax year together with a copy of the federal fiduciary

income tax return for the trust for that tax year. The statement and return shall be furnihecj

at or before the time the income tax return for the trust is due. To the extent that the law

permits, the Trustee is relieved from all of the duties which would otherwise beplaced Upon

the Trustee by the act relating to accountings by Trustees in force in the State of Washington

at the time this instrument is executed, or any future amendment or amendments or by any

similar act or acts of Washington or any other state or jurid1ti 9.3

1a2MM991!M9—etdL& The Trustee shall take such action as the Trustee deems

best to collect the proceeds of life insurance payable to the Trustee, paying the expenses of

collections from the trust estate, but the Trustee neednot enter into or maintain any litigation

LAST WILL AND TESTAM -1- OF WN-LIAM WAPATQ EVANS, YR. - in*,



to enforce pa'rncn of any pohcv until rnde,nnifjed to the. Trustee's satisacon aainsr all

epenscs and liabilities to which the Tirnstee might be subjected, and the Trustee may release

the insurance Company from liability under any policy, and may make any compromjc that

thc Trustee deems prope j.

X. MA iA GEMNJT POWERS or-TRUSTEE

1 0.1Intro.duction. The Trustee shall have the continuing, absolute, discretionary

power to deal with any property, real or personal, held in any trust hereunder as freely as l

might in the handling of my own affairs, Such power may be exercised independently and

without prior approval of any court or judicial authority, and no person dealing with the

Trustee shall be required to inquire into the propriety of any of the Trustee's actions. Without

in any way limiting the generality of the foregoing, the Trustee shall have the power,

authority, and discretion in administering any trust estate hereunder as subsequently set forth

in this article, all of which shall be in addition to the power, authority, and discretion given

a Trustee under the laws of the State of Washington on the date of this instrument, and all

future amendments to such laws, the provisions of all such laws being incorporated as a part

of this instrument.

10.2 The Trustee shall have the Power to merge orcombine any trust in this

instrument with any other trust or trusts, under this or any other instrument, which fulfills

similar purposes for the same person or class of persons, if the probable effect of such merger

Will not be to the substantial disadvantage of any such person or class of persons.

10.3 jflj1 and Income The Trustee shall have the power to determine the

allocation of receipts and expenses between income and principal in accordance with the

Washington Principal and Income Act, provided there is reserved to the Trustee the power

to make such equitable allocation as may nevertheless be contrary to the terms of that Act

LAST WILL AND'TESTAME ,,rr OF WILLIAM WAPATO EVANS, JR. - IriiaI;



with respect to allocations relating to underproductive property, depreciation, bond premium

and discount, corporate distributions and the operation of a trade, business, or farm.

10.4 Tax Elections. The Trustee shall have the power to take any action and make

ny election to minimize the tax liabilities of any trüt hi.1d under this instrument and 'i ts beneficiaries, allocate the benefits among the various beneficiaries, and make adjustments

in the rights of any beneficiaries, or between the income and principal accounts, compensate

for the consequences of any tax election or any investment or administrative decision that the

Trustee believes has had the effect of directly or indirectly preferring one beneficiary or

group of beneficiaries over others, all of such powers being in the Trustee's absolute

discretion,

10.5 Other Acts. The Trustee shall have the power to exercise any powers not

otherwise grantedin this instrument or given by law which the Trustee, in the Trustee's

absolute discretion, determines are necessary and desirable and not inconsistent with the

provisions of this instrument.

XL TRUST PROVISIONS

11.1 Iniro.ductio. For all trusts under this Will, the following provisions shall

apply.

11.2 Protective Provisiots. Neither the income nor the principal of any trust created

by this Will shall be alienable by any person having a beneficial interest therein, whether an

income or remainder interest, either by assignment or by any other method, or by any

representative thereof, by any process whatever, ilicluding, but not limited to, proceedings

in bankruptcy. This provision shall not limit the exercise of any power of appointment or the

right to disclaim.

11.3 Facility of Payment, The Trustee may do any one or more of the following

with respect to any principal or income which is payable to a person who is under a legal

LAST WILL AND TESTAMENT OF W1LLW' WAPATO EVANS, JR.- 13



disahlitv or under the age of 2 1 years: (a) deliver all or any parr to (i) the person, (ii) th

guardian of the person of that person. (iii) the custodian of the person, if the person is under

the age o12 I yews. who is designated by the Trustee under the (injforrn Gifis to Minors Act

of any state which pr(-.,vidcs f0i, the hlding'of custodial pruperty for the benefit of a person who is under the age of 21 years, (iv) the Trustee of any trust fund for the person's benefit, or (v) a relative of the person, or thr idjvlduai with whom the person resides, to bc expended by such relative or individual for the care, support, education andloj- maintenance

of the person; (b) expend all or any part directly for the care, support, education and/or

maintenance of the person; (c) place all or any part in safekeeping for the person and pay all

fees incurred; or (d) sell all or any part and distribute the proceeds as provided in provision (a) above; and the Trustee shall not be responsible for the application of any payment or

distribution after it has been made in accordance with the foregoing.

XLI. TAXES

12.1 Payable From, Residue. My Personal Representative shall pay all estate,

inheritance, and Succession taxes assessed by reason of my death and which are attributable

to property passing under this Will, from the residue of my estate disposed of by this WIll.

I waive for my estate all rights of reimbursement for any such payment. The directions ofthi.c

paragraph are not applicable to property passing outside this Will.

xm. BOND

111 Bond for Personal Represettative and Trustee. The Personal Representative,

and Trustee appointed herein need not give bond in any jurisdiction, If a fiduciary's bond

may not be dispensed with in any jurisdiction, I request that the bond be accepted without

surety and in the lowest possible amount. The cost of any fiduciary bond shall be borne by

the estate being administered by the fiduciary

LAST WELL AND TESTAMENT OF WILLIAM WAPATO EVANS, JR. - 14



xlv. NOCOrEST C44U$r

14,1 p cot Clause If any beneficiary shall contest the probate or validity of

this Will or any of its-provision orsall institute or join in (except as a party defendant) any

Proceeding to contest the validity of this Will or to prevent any of its provisions from being carried out in accordance with its terms (regardless of whether or not such proceedings are

instituted in good faith and with probable cause), then all benefits provided for such

beneficiary are revoked and such benefits shall be distributed as if such beneficiary were not

living. Each benefit conferred in this Will is made on the Condition precedent that the

beneficiary shall accept and agree to all of the provisions of this Will, and the Provisions of

this Article are an essential part of each and every benefit.

xv. RULE AGAINST PERPETUITIES

15.1 yjgClae: If any provision or provisions hereof shall violate the rule

against perpetuities, then the share or part of this Will so affected shall, in any and all events

not later than at least One day before the expiration of the period of said rule, be distributed

outright to vest absolutely and unconditionally in each beneficiary to or for whom and in. the proportion In which the income therefrom is' then being either paid or accumulated, subject, however, to any earlier distribution thereof which may be made under any other provisions

or provisions herein applicable to such share or part. No person shall be liable to any person

for any payments or distributions made by them in reliance upon any provision hereof prior

to the receipt of written notice of any court decision adjudicating such provisions in violation of the rule.

XYL CUTJON4NO A1TFSTATIpN

LAST WILL AND TESTAMENT OF WILLIANI WAPATO EVANS, JR. - 15



26, 1 Affidavit of 1'estatoi. 1, Willarn \Vaparo Evans, Jr. being first duly SWOrr QE]

oath, depose and sa That I am an enrolled member of the Co federated Tribes of Cciv ilk Reservation in the State of Washin ion: that on the jday o'j 2003. requested, (a( and [0 act

thereto; that I declared to said witnesses tha( said instrument was my Last Will and

Iesrneni; that I signed said Will in the presence of both , witnesses; and they signed the same as witnesses in my presence and in the presence of each other; that said Will was read and explained to me (or read by me), after being prepared and before I signed it and it clearly and

accurately expresses my wishes; and that I willingly made and executed said Will as my free

and voluntary act and deed for the purposes therein expressed.

2

TESTATOR

The foregoing instrument, cons I sting of eighteen (1 8)typewritten pages, of which this

is the eighteenth page (18th), was on the date thereof signed and published by William

Wapato Evans, a/k/a William Evans, Jr., who, at said time appeared to be of sound and

disposing mind and memory, and was by him declared to he his Last Will and Testament, in

the presence of us, who at his request and in his presence in the presence of each other,

have hereunto set our hands as witnesses thereto thi, day0

27Z, j , 2003.

residing at

residingar -.

LAST WILL AND TESTAMENT OP WILLIAM WAPATO EVANS, .JR 16 Injti It'd J(



AFFIDAWT OF Afl'ESTJNG WITNESSES

STATE OFWASIflNGTON ) )ss,

COIJNTYOF CHEL )

We, i iiI and each being first duly sworn, on oath, depose and state; That on thç,jy oQ1'LL 2003, William Wapato Evans, Jr., a member of the Confedera,j

Tribes of th&PjojvIle of the State of Washington, published and declared the attached instrument to be his Last Will and Testament, signed the same in the presence of both of us and requested both of us to sign the same as Witnesses; that we, in cornpltance with his request, signed the same as witnesses in his presence and in the presence of each other; that said testator was not acting under duress, menace, fraud, or undue influence of any person, so far as we could ascertai

n, and in our opinion was mentally capable of disposing of all his estate by Will.

e~;42 ,76 itness

Witness residing a residing at

SUBSCRIBED AND SWORN TO before methi by (it/,r and 2003, Witnesses

NOT Y P IC, State f Washi-N PUMP My Commjssj Expires if

'I.. L!. --• .. ..

..' .,,I ,.,i 1 •

t;. ju n.





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EXHIBIT B





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EXHIBIT C

7/18/2018 Chief Judge Wynne suspended, | www.lakotacountrytimes.com | Lakota Country Times

http://www.lakotacountrytimes.com/news/2015-04-16/Front_Page/Chief_Judge_Wynne_suspended.html 1/2

MARY WYNNE

Chief Judge Wynne suspended,Montileaux serving as interim chief judgeBy Tom CrashTimes Correspondent

PINE RIDGE – After receiving a complaint from court administrator, Rosalie Janis, against ChiefJudge Mary Wynne, the law and order committee recommended suspension without pay until ahearing could be held. The recommendation was forwarded to the tribe’s executive board whoconcurred; on March 26, Wynne was suspended without pay, a hearing was set for Tuesday,April 14. Asso- ciate judge Charles Montileaux was made interim chief judge until any action istaken.

With the passing away of past OST judge Vincent Brewer, the original date for the hearing wasun-workable, the new date for the Wynne hearing is Wednesday, April 29 in the councilchambers of the Red Cloud building in Pine Ridge.

Wynne was originally selected as chief judge by the council in June of 2013 to �nish out theunexpired term of past chief judge Merwin Smith. Over the next year and six months, while serving as chief judge, a number ofcomplaints were �led against Wynne from court sta� and clerks, one ended up with a reprimand against the judge, anotherresulted in a 45 day suspension. In the fall of 2014, Wynne was the only candidate running for the chief judge position and a fouryear term in the OST general election in November. By a vote of 2,152 to 1,809, Wynne earned a four year term as chief judge.

Wynne, a member of the Rosebud Sioux Tribe, graduated from Todd County high school then earned a bachelors from AugustanaCollege in Sioux Falls with a double major in criminal justice and social work. Since earning a law degree from the University ofMinnesota, Wynne has worked for tribes in North and South Dakota, Washington state, Idaho and the southwest, spent four yearsas assistant U.S. Attorney in Sioux Falls, six years as chief judge for the Colville Tribe and two and a half years at Arizona StateUniversity as director of the Indian Law Clinic, teaching federal Indian law and helping students.

The complaint �led, focuses on poor attendance; we’ve had to have Judge Black come into Pine Ridge to cover cases, that leavesKyle court without a judge, stated Ellen Fills Pipe, chair of the law and order committee, we’ve learned a lot about how better toadvertise both for current openings in the tribe’s legal department and for any judge vacancies we may have. We need good andcommitted law trained judges to hold our people accountable, to continue all of our work to build a strong, prosperous and safenation, added Fills Pipe.

While running for the four year term as chief judge, Wynne was asked why in the face of complaints and suspension, was sherunning for the full term, I have a tremendous amount of experience in court operations both in and out of Indian country, I feelthat I can help build a strong court system here at Pine Ridge, Wynne responded.

2015-04-16 / Front Page



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EXHIBIT D

DV Manual for Judges 2015 (Updated 2.22.2016) 13-1 Washington State Administrative Office of the Courts

CHAPTER 13 DOMESTIC VIOLENCE AND TRIBAL COURTS1

INTRODUCTION In recent years there has been improvement in enforcement of domestic violence protection orders across tribal and state jurisdictions. However, for many judges, contact with tribal courts or tribal court–issued protection orders may be rare. This chapter is designed to provide general information about Native American communities and tribal courts located in Washington. I. Native American Communities in Washington State

A. Native Americans in Washington State

There are twenty-nine federally recognized Indian tribes located in Washington.2 Each tribe is a sovereign entity with a governing body that is responsible for the administration of justice, promulgation of laws, and law enforcement for the tribe. The twenty-nine tribal communities vary in geographic size, economic resources, customs and traditions, population, and natural resources. Indian tribes are defined by 25 U.S.C. § 1301, as any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government. Powers of self-government include executive, legislative, and judicial functions. In 2010, the U.S. Census Bureau counted over half of Native Americans and Alaska Natives as living in ten states.3 Washington State ranked ninth with a population of

1 This Chapter was updated in 2014 by Randy Doucet, Chief Judge of the Lummi Nation Tribal Court, and Mark Pouley, Chief Judge of the Swinomish Tribal Court with input from Tom Tremaine, Presiding Judge at the Kalispel Tribal Court. The original chapter, written in 2001, was completed with input from a Reviewing Committee consisting of former Chief Judge Mary Wynne, Colville Federated Tribes; Judge Julian Pinkham, Children’s Court of the Yakima Nation; Commissioner Katherine Eldemar, Whatcom County Superior Court; Judge Susan Owens, Lower Elwha Tribal Court and Clallam County District Court; Dan Kamkoff, Director of the Lummi Victims of Crime; Dr. Anne Ganley, Domestic Violence Expert; Gloria Hemmen, Office of the Administrator for the Courts; and Margaret Fisher, Project Director, Office of the Administrator for the Courts, and updated in 2005 by Randy Doucet. 2 See Attachment 1 of this chapter for a list of federally recognized Indian tribes in Washington State. 3 T. Norris, P.Vines, & E. Hoeffel, The American Indian and Alaska Native Population: 2010 (Washington, DC: U.S. Census Bureau, January 2012) (Census 2010 Brief), available at: http://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf



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EXHIBIT E

PID-00277

Case 2:07-cv-00314-EFS Document 882-2 Filed 10/04/11



Exhibit 1

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EXHIBIT F

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F$tffinJUL 0 2 2013

DiSeiFLir*Anf fiilABEFORETTIE

DISqPLINARY BOARDOF THE

IYASHINGTON STA]3 BAR ASSOCI.ATION

Proceeding No. 12#00014

STIPULATION TO TWO REPRIMANDS

Under Rule 9.1 of tbe Rules for Enforcement of Lawyer Conduct (ELC)' the fotlowing

Stipulation to Two Reprimands is entered into by Oe Wasbington State Bar Association (Asso'

ciation), tbrough disciplinary counsel l{afsha Matsumoto and Respondent lawyer Mary Tur-

geon Wynne.

Raspondent undersunds th* she is entitled under the ELC to a hearing, to pres€nt exhib-

its and wiuresses on her belalf, and to have a headng officer determine the facts, misconduct

and sanction in this case. Respondent further understands that she is entitled undor the ELC to

appeal tbe outcome of a hearing to the Disciplinary Board, and, in certaia caseso tbe Supreme

Cogrt. Respondent fiu&er understands thnt a hearing and appeal could result in an outcome

more favorable or less favorable to her. Respondent chooses to resolve this procceding now by

eotering into the following stipulation to facts, misconduct and sanction to avoid tbe risk, time,

and expe,nse attendant to filCher proceedings,

Stipulation to DisciplinePage I

WASHINGTON STATE BAR ASSOCIATION1325 4t Aveuuo, Suite 600seanlo, wA 9E101-2539

QA6rW-8247

D

0q,7Johnston Dec. re Wapato Heritage response to Dkt. No. 353

Page 53 of 110


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I. ADMISSION TO PRACTICE

l. Respondent was admitted to practice law ia the Stete of Washington on May 17'

1982. She is cunently on inactive stahrs.

tr. STIPULATEDFACTS

Wanato Eeritase MstteJ

2. On September 11,2003, william wapato Evans, Jr. (William) dicd testatc. He

was snrvived by two daughters, Sandra Evans (Sandra) and Nancy Gallagher Q'lancy)' and by

Naocy's three sons, Kennsth Evans, Jobn Wayne Evans, and Janie Joues (tbe grandsons).

3. William was a menrber of the Confederated Tribes of thc Colville Reservation, and

his cstate included Indian tnrst property. ConseEre,ntly, tbe probate of William's will fell in part

undo the jruisdiction of the Office of Special TrustBe/Bureau of Indian Affairs (BIA).

4. At the time of William's death he held a 10070 intcrest in trust Foperty known as

Moses Allotroent No. l0 (MA-10). The lvlA-l0 property was subject to a lease in favor of

Wright-Wapato, [rc., with a remaining term of ap'proximatoly 70 years. The N{A-10 property

gen€,rates income of approximately $750,000 to $800,000 per year'

5. At the time of Wliasr's death, he also held a 24% interest in tnrst propcrty known

as Moses Allotncnt No. 8 (MA-8). The MA-8 property gencrates incoms of approximately

$370,000 pcr year.

6. Druing the probatc of Williorn's will, a disputo arosc between Sandra and the

grandsons, all ofwhom were bencficiaries of William's estate.

7. The parties to the diqputc eutcred into a Settlement Agreement, which was ap-

proved by the BIA on January 10, 2006.

8. Respondent represented Sandra in the BIA probate of William's will and in the

Stipulation ro DisciplinePage 2

WASHINGTON STATE BAR ASSOCTATION1325 4t Avauc, Suitq 600Soatla, WA 98101-2539

(206)721-8207



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drafting, negotiation" and execution of the Settlement Agreement.

9. Under the $ettlement Agreemen! Sandra received a 100% life interest in thE MA'

10 properfy; the gandsons received a 100% interest in the N{A-8 propert& and Wapato Herit-

age LLC (Wapato Heritage), a company owned by the graadsons, received 35% of the income

generated by the MA-10 property over a five-year period. The payments to Wapato Heritage

were to be made on a quarterly basis &om the MA-10 income tbat was deposited to Sandm's

individual Indian money (IM) account.

10. Sandra resides in the United Kingdon. Respondent states that Sandra needed an

account in the United States to receive wire hansfqs fiom her IIM account, but opening an ac-

count for Sandra was complicated by the fact that Sandra was unable to &avel to tbe Unit€d

Statcs due to ill healttr" Respondent states that she \ad a'W1rue Law Firm business account

ending in 6585 at Wells Fargo Bank (Wetts Fargo account 65S5) in South Dakota &at slrs no

longer needed because she was moving to Arizona for a new job. Reqpondent statos thal as a

result, in or uound December 2005, she decided to assign Wells Fargo account 6585 to Sandra

as a personal account to receive the IIM fiuds.

1 1. From at least the first quarter of 2006 through the fourth quarter of 2009, all ofthe

MA-10 income deposited to Sandra's IIM account was transferred to Wells Fargo account 6585,

inoluding the 35% in which rlfapato Heriage claimed an interest'

12. Throughout the time that the I{A-10 finds were dcposited to Wells Fargo account

5585, the account was held under the name of Wynne law Finn and under the firm's ta:< idcnti'

fisation number. The authorized signers on the account were Respondent and her non-lawyer

husband, Daniel Gargan (Gargan). The monthly bank statements were addressed to Wynne

Law Firm and sent to Respondent's address in fuizona.

Stipulatioo to DisciplinePago 3

WAST{INOTON STATE BAR ASSOCIATION1325 4s Avenuo, Suito 600Ssatlo, WA 9E101€539

QO6)127-82s7



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13, Wells Fargo accowrt 6585 was nwer actually assigned to Sandra and was never

held in Sandra's name or under her tor identification ntrmber.

L4. Wells Fargo account 6585 was trsver atrust account.

15. After deciding to assign the Wynne Law Firm business account to Sandra, Re-

spondent failed to take adequate measures to €nsure that the assignment was accomplished.

Had Respondent taken appropriale measures, sbe would have ascertained, at a rninimunr, $a1

tiVells Fargo did not allow assigrunmts of accounts.

16. Respondent states that, even though the bank statements for Wells Fargo account

6585 were sent to her address, she did not review the,m, Respondent states that the bank state-

msnts were reviewedby Gargan, who was employed as Sandra's financial advisor.

17. Thc MA-10 income, in which Evans and Wapato Heritage claimed an interest, was

repeatedty deposited to and disbursed from Wells Fargo accormt 6585.

18. Respondent did not notif V/apato Heritage or the grandsons when thc MA-10 in-

oome was received or doposited.

19. Respondent did not provide Wapato Heritage or the grandsons with an accounting

after distibutions of the t{A-10 income were made.

2A. Respondent did not provide Wapato Heritage or the grandsons with an annual ao-

counting ofthe MA-10 income.

21. For reasons that became the zubject of cxtensive litigation between Sandra and

Wapato Heritage, Wapato Heritage did not receive any palmcnts from the MA-10 income.

22. In October 2007, Wapato Heritage filed suit against Sandra in the U.S. District

Court for Eastem Washington" W..?pato Heritage. LLCI Kenneth Evans: Wayne-JonEs;,and Ja-

rlrie Jones vs. SBn4$ Evans. CV-07-00314-EFS (Wapato Heritage litigation),

Stipul*ion to DisciplinePage 4

'IIIASHINGTON STATE BAR ASSOCIAIION1325 4t Avcnue, Sutte 600Soattlc, wA 98i01-2539

(206)727-8207



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23. Respondent rcpresented sandra dwing pofiions of the wapato Heritage litigation'

24. On August 19, 2009, tb€ u.s. Dis;hict cowt determiaed that sandra had breached

the Settlemcnt Agreemcnt by refusing to pay 35%.ofthe MA'10 income to Wapato Heritage'

25. On February 9, 2010, the Disuict cowt awarded princrple damages to wapato

Hcritage in the amount of $1,355,099.62, reprasentingSSo/oof the lvlA'l0 insome forthe penod

covering the first qurter of 2006 through the fowtb qurter of 2009'

Statepents-lo the Court

26, In post-judgment proceedings, Wapato Heritage, through its counsel, subpocnaed

records from sweral wells Fargo accounts to tace the flow of the lvlA-l0 inoome' The zub-

poenaed accounts included the Wynne Law Firm account ia South Dakota that was "assigned'

to Sandra and tlree acsounts in.Arizona-

27. On Febnrary 11, 2011, Respondent filed a motion to quash the subpoena and' in

the altemative, for a protective ordcr.

Zg. On Febnrary 11, 2011, the U.S. Disbict Court held a hearing on Respondent's mo'

tion to quash. Druing &e hearing, Respondent represented to the corrrt &at the wlmne Law

Firm accourt in South Dakota was an IOLTA accout and had always been an IOLTA accolmt'

Respondent argued that producing records for this accounl would disclose information relaiing

to other clients.

Zg. Respondent,s stat€,ments to the court were susceptible to more than one interpreta-

tion and caused the court to believe that the Wyme Law Firm account was an IOTTA acoount,

which it was nol Respondent had an IOLTA account at Wells Fargo in Soutb Dakots' but it

was not the accognt that Respondent "assigned" to Sandra and was not tbe account wed for the

MA-10 fimds.

WASHINCTON STATE BAR ASSOCIATION1325 46 Avecrug Suite 600$eattle, WA 9810i-2539

QA6)727-8201

Stipulation to DiscipliuoPage 5



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30. on March 9, 2011, wapato Heritage filed a Request for srrmmary Assistance cit-

ing prior statcmcnts by Respondent tbat the wynne Law Firm accou$t was not a tilst accounl

3 1 . on April 1 , 201 1 , the court issued an order denyrng Respondent's motion to quash'

32. Rcspondent siates that she did not intend to mislead the court' Respondent

acknowledges, however, that her statements were confising to tle court.

ITI. STIPIiLATION TO MISCONDUCT

33. By depositiag the MA-10 fimds, in which sandra Evans and wapato Heritage

claimed an interest, to the Wpne Law Firm brsiness accoun! u&ich was not a tnrst accoun1

Respondent violated RPC l. 1 5A(c) and RPC 1' 1 5A(g)'

34. By failing to notiS Wapato Heritagc of the receipt of the MA'10 funds' Respondent

violaredRPC 1.15A(d)

35. By failing to provide Wapato Heritage with an accounting anngally orupon disnribu'

tion of the MA-10 funds, Respondent violated RPC l'i5A(e)'

36. By making oonfiising statements to the court during the February 11, 2011 hearing'

Respondent violated RPC 8.4(d).

rV. PRIORDISCPTNIE

37. Respondent does not have a record of prior discipline with the Washington Stats Bsr

Association.

V. APPLICATION OT ABA STANDARDS

3g, The following American Bar Assooiation Standards for lnoosins Lan'y.er Sanctions

(1991 ed. & Feb. 1992 Supp.) apply to this case:

Stipulation to DisciplinePage 6

WASHINGTON STA13 BAR ASSOCIATION1325 46 Aveuug Suito 600

seanlc, WA 98101-2539

Q06)7Tt-8247



4.1 Frilure to Preserve the Client's Propertv

Absent aggravating or mitigatiug circums.tan"'' upoo applieation of tbe factors

set our in g.o, td ioirodg sanctions are generatty appropriatc in cases

involving the faihue to preserve client property

4.11 Disbarment ir;;.rrlli appropriate when a lawyer knorruingly converts

client property tA ca*tt io3uty ot potential uliury to a clicnt'

4.12 Suspension i, g.oe'mliy apgrdryiaie when a lawyer knows or should

know that n" is"a"afi"gi*fitopof' with clie,lrt property and causes inj*ry

or Potential rniurY to a client'

4.13 Reprinanrt ii,l""rony appropriate when a laryer is negligent in

oeating witn cnint prop*rty *d caores iniury or potential iniury to a

client.4'l4Admonitionisgerrerallyappmpriatewhenalawyerisnegligentildeal-

ing *ith rU*;;;Oy *i "uut*t

li6le or no acfiral or potentid injury to

a clisnt.

6.1 False Statements, Fraud, and Misrepresentatlon

aU$ot usgrun"ti"g ot nitlgaii"g circunsianccs' upon application of the factors

set out in Sundard:]0, tf,e following sanctions are ge,lrerally appropriate

in cases in rotuiog coniuct that is prqiudicial to the adsrinistration ofjus-

ticc or that invoties dishonesty, fraud, deceif or misrepresentation to a

court:6.11 Disbarment is generally appropriate when a lawyer, with ths intent to de-

ceive ths cou:i makes a-fatse gtraternent, submits a faise dOcument, or

improperly witbholds material infornoation, asd causes serious or potgn-

taify ierious injury to a party, or @uses a significant or poteirtially sig'

nificant adverse effect on the legal proceeding'

6,72 Suspension is generally upptopti"t" whe,n a lawyer tnows that false'

state,ments or dJcr.rments arJUeing submitted to the court or that mat€rial

information is improperly being witbheld, and takes no remedial action,

and oauses rnjury or pot"itiut injuty to a party to the fegal proceeding, or

causes an anverse orpoteutially adn"rs" effect on the legal proceedrng,

6.13 Reprimand is genoralty nppropriate when a lawyer is negligent eithgr

in determlniniwhether siitemsnts or documentu are false or in tak-

ing remedial ictionwhen material information is beingwithheld, and

oirr., injury or potential iniury to r parfy to the legrl procceding, o-r

causes * oA"."r. or potentially advirse effet on the legal proceed'

ing.6.14 Admonition is genemally appmpriatc whcn a lawyer eo.gsges in an isolat'

ed instance of neglcct in determining whether zubmitted statements or

documeuts are falk or in failing to disclose material information tpon. learning of its falslty, and causes little or no actual or potential injury to a

parry, or causes lffidor no adverse or potentially adverse effeet on the le-

gal proceeding.

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39. Given tbe circunrstances surtounding Respondent's intended assignment of the

WASHINGTON STATE BAR ASSOCIATION1325 4t. Avenue, Suite 600

soattlo, wA 98101'2539

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S$pulation to DlsciplinePage 7



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Wynne Law Firm business account to SandraEvans and her faih[e to complete tbe assignmelrt

or find an alternative solution, Respondent's failrrre to deposit the MA-10 fuitds to a tust ac-

corrnt and to render appropriate accounts was negligent'

40. In making statements that were conftsing to the court regarding the natwe of the

Wynne Law Firm account, Rcspondent's conduct was negligent'

41. The deposit of the lv[A-l0 funds into &e Wynne Law Firm business accout caused

potsntiaj injury inthat it rendered &e fiurds vulnsrabte to Respondeirt's creditors'

42. Respondent,s failure to account to Wapato Heritage oaused aotual and potential iqiu'

ry in that wapato Heritage trad to pursue legal proceedings to locate and trace the flow of the

MA -10 firnds and collect on its judguent.

43. Respondent's confirsing statcments to the court caused potential injury to the legal

system and to Wapato Heritage's efforts to obtain discovery'

44. The presumptive sanction under ABA Standar* 4.1 is a reprimand.

45. The presumptive sanction rmder ABA StandBlds 6.1 is a reprimand.

46. The following aggraveting factor appiies under ABA Standardg Section 9'22:

(t) zubstantial experience in the practice of law (Respondent was admitt€d to

practice in Wasbiuglon in 19-82, Nortb Dakota h 1978, and South Dakota

in 1982).

4T.Ibefollowing mitigating factor applies rurder ABA Standards Section 9.32:

(a) absenceofpriordisciplinaryrecord-

48. On balance the aggravating and mitigating do not rcquire a departure &om the pre-

sumptive sanotion of two reprimands.

VI. STIP{'LATED DISCIPLIhTE

49. Respondent shall receive two reprimands for her violations of the Rules of Profes-

Stipulation to DisciplincPage 8

WASHINCTON STATE BAR ASSOCTATION1325 4e Avenuc, Suitc 600soattlo, wA 98101-2539

QA6jW-8207



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sional Conducl

VII. RESTITUTION

50. Rsstitution is not appropriate in this matter'

vIN. COSTS AND EX}ENSES

51. Respondent shall pay attomey fee and adninistative costs af $2,798.29 in accord-

ance with ELc 13.9(i). The Association will seek a money judgment under ELC 13.9(I) if these

costs arc not paid within 30 days of apprtval of this stipulation.

T)t VOLT]NTARY AGREEMENT

52. Reqpondcnt states that prior to entering into tbis Stipulation she has had an oppor-

tunity to consult independcnt legal counsel regarding this Stipulation, that Respondent is enter-

ing into this Stipulation voluntarily, and that no promises or tbreats have been madc by the As-

sociation, nor by any representative thercof, to induce the Respondent to enter into this Stipula-

tion except as provided hcrein.

]t LIMITATIONS

53. This Stipulation is a compromise agreement intended to resolve this mafter in ac'

cordance with the pqposes of lawyer disoipline while avoiding firther proccedings and the ex'

penditgre of additioual tesoulces by the Responde,nt and the Associatioa. Both the RespOndent

and the Association acknowledgs that the result after firlher proceedings in this matt,et night

differ from the result agreed to he'rein.

54. This Stipulation is not binding upon the Associatioa or the Rapondent as a state-

ment of all existing facts relating to the professional condust of thc respondcnt lawyer, and any

additional existing facts maybe proven in any zubsequent disciplinary proceedings.

Stipulatiou to DisoiplinoPagc 9

WASHINCTON STATts BAR ASSOCIATION1325 4e Avcuuc, Suito 600

wA 98101-2539

Qo6r127-E207



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55. This Stipulation results from the considerafion of various factors by botb parties, in-

cluding thc bencfits to both by prornptly rcsolving this maftgr without the time aad etEense of

hearings, Disciplinary Board appeals, and Supreme Court appeals or petitions for rcview' As

such, approval of this stipulation will not constitute precedent in detcrmining tbe appmpriate

sanction to be imposed il other cases; br:t, if approved, this stipulation will be admissible in

subsequent proceedings against Respondent to the same extent as any other approved Stipula'

tion.

56. Under ELC 3.1O), all docunaents that form the record before the Hearing Ofrcer for

bis or bor review beoome pubiic information on approval of the Stipulation by tbe Hearing Of-

ficer, unless disclosure is resnicted by order or rule of law'

5?. If this Stipglation is approved by the Hearing Officer, it wili bc followed by the dis'

ciplinary action agreed to in this Stipulation. Ali notices required in thc Rules for Enforccment

of Lawyer Conduct will be made.

58. If this Stipulation is not apprcved by the Hearing Officer, this Stipulation will have

no force or effect, and neither it nor the fa.ct of its execution will be admissible as evidence in

the pending disciplinary proccoding, in any subsequent disuiplinary proceeding, or in any civil

or criminal aotion.

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\IITASHINCTON STATE BAR ASSOCIAfiON1325 46 Avcnue, Suito 600seattle, wA 98101-2539

Qo6)7Tt-8201

$tipulation to DiscipliaePagc l0



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WIiEREFORE the un<lersigned being firlly advised, adopt and agree to tbis Stipulation

to Discipline as set forth above.

C\CI ' Z \' -?--r:t >

Marsha Matsumoto, BarNo. 15831

Senior DisciplinarY Counscl

Sdpulation to DisciplbePage l1

WASHINGTON STATE BAR ASSOCIATION1325 46 Avauo, $uib 600

Sca$lc, WA 9El0l'2539Q06)127-8207





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EXHIBIT G

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BEFORE THEDISCIPLINARY BOARD

OF THEWASHINGTON STATE BAR ASSOCIATION


REPRIMAND (1 of 2)

Under the Rules for Enforcement of Lawyer Conduct promulgated by the Supreme

Court of the State of Washington, you have been directed to receive this FORMAL

REPRIMAND.

You represented a client in a probate dispute involving Indian trust property. To resolve

the dispute, the parties entered into a Settlement Agreement, which provided that your client

would a receive a 100Yo life interest in the trust property and the other party woul d receive 35o/o

of the income generated by the trust property (trust income) over a five-year period. Payments

to the other party were to be made quarterly from the trust income deposited into your client's

Individual Indian Money (IIM) account. The Settlement Agreement was approved by the

Bureau of Indian Affairs and bv the state court.

AUG 0 E Z0B

El$tfFril,iirjT ufffi

Because

ReprimandPage I

your client resided in another country, you decided to assign your law firm

WASHINGTON STATE BAR ASSOCIATION1325 4'n Avenue, Suite 600Seanle, wA 98101-2539

(206) 727 -8207

MARY TURGEON WYNNE,

Lawyer (Bar No. 12441).

D

0qqJohnston Dec. re Wapato Heritage response to Dkt. No. 353

Page 65 of 110


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business account to your client so that she could receive wire transfers from her IIM account.

You failed, however, to ensure that the assignment was accomplished.

Over the next four years, I00% of the trust income, includingthe35Yo claimed by the

other party, was deposited into your business account, which was not a trust account. You did

not notify the other party when the funds were received. You did not provide the other parly

with an accounting when the funds were disbursed or annually. The other party did not receive

any payments from the trust income until it frled a federal lawsuit and obtained a judgment

against your client.

Your conduct in depositing funds in which your client and a third party claimed an

interest into your business account, which was not a trust account, violated RPC 1 .15A(c) and

RPC 1 .1sA(e).

Your conduct in failing to notify the third party of your receipt of funds in which the

third party claimed an interest violated RPC L l5A(d).

Your conduct in failing to provide the third party with an accounting, annually or upon

distribution of the funds in which the third party claimed an interest, violated RPC 1.15A(e).

These actions merit a Formal Reprimand. Your actions discredit you and the legal

profession and show a disregard for the high traditions of honor expected from a member of the

Association.

NOW, THEREFORE, YOU ARE HEREBY REPRIMANDED by the Washington State

Bar Association for this misconduct. This Reprimand will be made a part of your permanent

record with the Association, and will be considered along with other evidence regarding any

future grievances against you.

Your privilege to practice law in the State of Washington is based on the finding that

ReprimandPage 2

WASHINGTON STATE BAR ASSOCIATION1325 4th Avenue, Suite 600Seattle, WA 98101-2539

(206)727-8207Johnston Dec. re Wapato Heritage response to Dkt. No. 353

Page 66 of 110


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you are a person of good moral character, and on your commitment to abide by the rules

governing the conduct of members of the Association. The Association expects all your future

conduct as a lawyer to be consistent with that finding as to your character, and with a continuing

commitment on your part to the letter and spirit of those rules.

ReprimandPage 3

Dated thi. ?P d^y or hK6-,zot3.WASHINGTON STATE BAR ASSOCIATION

CERTIFICATE OF SEqI4CF

I cerlify rhar I cAusert a cooy ot.}nrvlllturlrltitt!\to.$e dehvered to the Office of l)iscinlinary Cnrnsel anr, ro be mailed

tl@F-d!!B/Responr{enr's Cou nsel

WASHINGTON STATE BAR ASSOCIATION1325 4'h Avenue, Suite 600Seattle, WA 98101-2539

(206) 727-8207

Michele Radosevich. President

at





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F$fl*ffiffiAUG 0 5 2013

BEFORE THEDISCPLINARY BOARD



REPzuMAND (2 of 2)

Under the Rules for Enforcement of Lawyer Conduct promulgated by the Supreme

Court of the State of Washington, you have been directed to receive this FORMAL

REPRIMAND.

You represented a client in a probate dispute involving Indian trust property. To resolve

the dispute, the parties entered into a Settlement Agreement, which provided that your client

would a receive a l00Zo life interest in the trust property and the other party would receive 35o%

of the income generated by the trust property (trust income) over a five-year period. Payments

to the other party were to be made quarterly from the trust income deposited into your client's

Individual Indian Money (IIM) account.

income, including the 35Yo claimed by the

account into your business account, which

WASHINGTON STATE BAR ASSOCIATION1f.25 46 Avenue, Suite 600Seattle, WA 98101-2539

(206)'727-8207

MARY TURGEON WYNNE,


Over the next four years, 100% of the trust

other party, was transferred from your client's IIM

ReprimandPage I

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was not a trust account. The other party did not receive any payments from the trust income

until it filed a federal lawsuit and obtained a judgment against your client.

On February 11, 2011, during post judgment proceedings, you moved to quash the other

party's subpoena for bank records. In support of your motion, you represented to the court that

the account where the trust income had been deposited was an Interest on Lawyers' Trust

Account (IOLTA) account. You argued that producing records for this account would disclose

information relating to other clients.

Your statements to the court were susceptible to more than one interpretation and caused

the court to believe that your business account was an IOLTA account, which it was not. You

had an IOLTA account at the same bank, but it was not the account used for the trust income.

Your conduct in making confusing statements to the court during the February II,20ll

hearing violated RPC 8.4(d).

These actions merit a Formal Reprimand. Your actions discredit you and the legal

profession and show a disregard for the high traditions of honor expected from a member of the

Association.

NOW, THEREFORE, YOU ARE HEREBY REPRIMANDED by the Washington State

Bar Association for this misconduct. This Reprimand will be made a part of your permanent

record with the Association, and will be considered along with other evidence regarding any

future grievances against you.

Your privilege to practice law in the State of Washington is based on the finding that

you are a person of good moral character, and on your commitment to abide by the rules

governing the conduct of members of the Association. The Association expects all your future

conduct as a lawyer to be consistent with that finding as to your character, and with a continuing

Reprimand WASHINGTON STATE BAR ASSOCIATION1325 4th Avenue, Suite 600Seattle, WA 98101-2539

(206) 727-820'7Johnston Dec. re Wapato Heritage response to Dkt. No. 353

Page 70 of 110


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gommitment on your part to the letter and spirit of those rules.

Dated thist0

day of b%*4l6 ,2073.'-=o-WASHINGTON STATE BAR ASSOCIATION

I cenify thar lnausprl a cooy of ,f'," &.,ttt,th,rtM-

A2

ReprimandPage 3

WASHINGTON STATE BAR ASSOCIATION1325 4'n Avenue, Suite 600Seattle, WA 98101-2539

(206)'tz'l -8207

to he de

to

MMMichele Radosevich. President

CERTIFICATE OF SEqI'ICF

to the Office ol Discinlinary Qnlnsel anrl ro be mailed's Counsel

L e rt { reel / 6rs{6 a{{naiP

Disciplinary Board





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EXHIBIT I

MemorandumTo: Allison Sato, Clerk to Disciplinary Board

From: Marsha Matsumoto, Senior Disciplinary Co*r.l $S

Date: August 5,2013

Re: Service of Reprimand on Mary Turgeon Wynne

I am attaching two original reprimands for service on Mary Turgeon Wynne. I have filed the

duplicate originals in the public file.

Thank you.



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FILEDJUN 2I 2013

DISCIPLII\jA|{Y BOARD

BEFORE THEDISCIPLINARY BOARD


Public No. l2#00014

ORDER ON STIPULATION TO TWOREPRIMANDS

On review of the June 22,2013 Stipulation to Two Reprimands and the documents on

file in this matter, IT IS ORDERED that the June 22,2013 Stipulation to Two Reprimands is

approved.

Dated this fi aav ot Cz:u) ,2013.(

cERTIFTCATE Of spqta5'p

r cerrify rhar I carrsprr a cooy or.n" !u-4fr l@ \tlMsthe Offrce of Discinlinary Cnrrnsel and ro be mailed

posiage prepard on

WASHINCTON STATE BAR ASSOCIAI'IONOrder on SlipulationPage I Board 1325 4th Avenue, Suite 600

Seattle, WA 98101-2539(206',) 727-8207

Mary Turgeon Wynne,


Linda D. O'DellHearing Officer

i::ffi

ru!oJohnston Dec. re Wapato Heritage response to Dkt. No. 353

Page 74 of 110




narnold

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EXHIBIT J

1

1 IN THE UNITED STATES DISTRICT COURT

2 IN AND FOR THE EASTERN DISTRICT OF WASHINGTON

3 WAPATO HERITAGE, LLC, et al,) )

4 Plaintiffs, ) )

5 VS. ) NO. CV 07-314-EFS )

6 SANDRA D. EVANS, et al. ) )

7 Defendants. ) Richland, Washington ____________________________) Tuesday, September 13, 2011

8

9 TRANSCRIPT OF MOTION HEARING

10

11 BEFORE THE HONORABLE EDWARD F. SHEA

12 UNITED STATES DISTRICT COURT JUDGE

13

14 For Plaintiffs: R. BRUCE JOHNSTON, ESQ. 200 Winslow Way West, Suite 300

15 Bainbridge Island, Washington 98110

16 DALE FOREMAN, ESQ. (telephonically) PO Box 3125

17 Wenatchee, Washington 98807

18 For Defendants: CHARLES STEINBERG, ESQ 119 Fifth Street


20 For the Receiver: ALLAN GALBRAITH, ESQ. (telephonically) PO Box 2136


22

23 REPORTED BY: Stephanie Smithson, CRR, RMR

24

25 Proceedings recorded by mechanical stenography; transcript produced by computer-aided transcription.

STEPHANIE SMITHSON, CRR, RMR



2

1 TUESDAY, SEPTEMBER 13, 2011 3:04 P.M.

2 P R O C E E D I N G S

3 ---o0o---

4 THE CLERK: Matter before the Court is Wapato versus

5 Evans, Cause Number CV-07-314-EFS. Time set for motion hearing.

6 Counsel, please state your presence for the record.

7 MR. JOHNSTON: Bruce Johnston for the plaintiffs.

8 THE COURT: You have to speak into that.

9 MR. JOHNSTON: Bruce Johnston.

10 MR. STEINBERG: Charles --

11 MR. FOREMAN: Dale Foreman, cocounsel for the

12 plaintiff.

13 MR. GALBRAITH: This is Allan Galbraith. I'm

14 standing in for Lewis Card.

15 MS. WYNNE: Your Honor, this is Mary Wynne. I'm here

16 in the response to the Court's order asking that the Evans'

17 counsel be present without any specification as to whether it

18 was counsel at the trial level or at the court of appeals, and

19 also with interest to the extent that the motion seeks to strike

20 the notice of appeal.

21 MR. STEINBERG: Charles Steinberg, attorney for

22 Sandra Evans.

23 DEFENDANT EVANS: Sandra Evans.

24 THE COURT: Yes. Thank you, Ms. Evans.

25 Well, there's somebody who thinks they're in this


Your Honor, this is Mary Wynne. I'm here

16 in the response to the Court's order asking that the Evans'

17 counsel be present without any specification as to whether it

18 was counsel at the trial level or at the court of appeals, and

19 also with interest to the extent that the motion seeks to strike

20 the notice of appeal.



3

1 case, and that's some person named Mario Gonzales. Is Mr. Mario

2 Gonzales present in the court?

3 Is Mr. Mario Gonzales present on the line? Please

4 speak up if you're on the line.

5 Well, that seems appropriate, really, in the one

6 sense, because Mario Gonzales is not a member of the bar of the

7 Eastern District of Washington. I've asked Ms. Brasel to check

8 that, and she did. And we called Spokane and asked Spokane to

9 check it, and they did.

10 And Ms. Brasel, is that what we learned?

11 THE CLERK: Yes, judge.

12 THE COURT: For the record, my deputy clerk has

13 answered yes.

14 So we not only checked through our offices here, but

15 we also checked with the people in Spokane who have the

16 responsibility to maintain the rolls of attorneys admitted to

17 practice in the Eastern District, and he is not. And I say that

18 so we can start off on the right foot.

19 Let me remind everybody present on the phone of the

20 Rules of Professional Conduct in existence and in effect here in

21 the state of Washington. Under Rule 3.3, Candor toward the

22 Tribunal, it says, in pertinent part:

23 "(a) A lawyer shall not knowingly:

24 (1) make a false statement of law to a tribunal or

25 fail to correct a false statement of material fact or law


Let me remind everybody present on the phone of the

20 Rules of Professional Conduct in existence and in effect here in

21 the state of Washington. Under Rule 3.3, Candor toward the

22 Tribunal, it says, in pertinent part:

23 "(a) A lawyer shall not knowingly:

24 (1) make a false statement of law to a tribunal or

25 fail to correct a false statement of material fact or law



4

1 previously made to the tribunal by a lawyer;

2 Fail to disclose a material fact to a tribunal when

3 disclosure is necessary to avoid" -- that doesn't apply.

4 Well, it applies insofar as it relates to a

5 "fraudulent act by the client unless such disclosure is

6 prohibited by Rule 1.6."

7 Those are the duties.

8 And I say that -- and I caution you now -- that any

9 violation of those rules in this case will be reported to the

10 state bar, and I say that, because I find this is particularly

11 perplexing. This spring on motion of the -- of Ms. Wynne, I

12 made an explicit finding which was supported by the facts before

13 the Court that she had an irreconcilable conflict of interest

14 and, therefore, could not be on this case. It was after that,

15 that Mr. Steinberg, I think, appeared and took the burden of the

16 representation.

17 That irreconcilable conflict of interest continues to

18 this day to the best of the knowledge of this Court, and on the

19 record before the Court, that still exists. There has been

20 nothing submitted to this Court that eliminated that

21 irreconcilable conflict of interest at all. And, therefore, any

22 effort by Ms. Wynne to file any documents in this lawsuit is

23 specifically barred by the ruling the Court made on her motion,

24 and I will say, as well, during the time when her malpractice

25 carrier was present on the line and appearing, so to speak, only


previously made to the tribunal by a lawyer;

2 Fail to disclose a material fact to a tribunal when

3 disclosure is necessary to avoid" -- that doesn't apply.

4 Well, it applies insofar as it relates to a

5 "fraudulent act by the client unless such disclosure is

6 prohibited by Rule 1.6."

7 Those are the duties.

8 And I say that -- and I caution you now -- that any

9 violation of those rules in this case will be reported to the

10 state bar, and I say that, because I find this is particularly

11 perplexing. This spring on motion of the -- of Ms. Wynne, I

12 made an explicit finding which was supported by the facts before

13 the Court that she had an irreconcilable conflict of interest

14 and, therefore, could not be on this case. It was after that,

15 that Mr. Steinberg, I think, appeared and took the burden of the

16 representation.

17 That econcilable conflict of interest continues toirre

18 this day to the best of the knowledge of this Court, and on the

19 record before the Court, that still exists. There has been

20 nothing submitted to this Court that eliminated that

21 irreconcilable conflict of interest at all. And, therefore, any

22 effort by Ms. Wynne to file any documents in this lawsuit is

23 specifically barred by the ruling the Court made on her motion,

24 and I will say, as well, during the time when her malpractice

25 carrier was present on the line and appearing, so to speak, only



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1 to monitor the proceedings because of the lawsuits pending in

2 state court in which she is a named party.

3 And if I've said something that's incorrect,

4 Mr. Steinberg, please tell me now.

5 MR. STEINBERG: Not to my recollection at all, your

6 Honor.

7 THE COURT: Okay. Ms. Wynne, have I said something

8 that's incorrect?

9 MS. WYNNE: No, your Honor, not that I know of.

10 THE COURT: Well, that said, there is literally no

11 basis for any filing by Ms. Wynne, in particular, no basis

12 whatsoever for her to have filed a notice of appearance on

13 behalf of Ms. Evans and to have filed a notice of appeal, unless

14 somehow that's been -- that's been superseded by some notice of

15 appeal by Mr. Steinberg.

16 Did you author a notice of appeal?

17 MR. STEINBERG: I did not author a notice of appeal,

18 your Honor.

19 THE COURT: Were you ever instructed to file an

20 appeal?

21 MR. STEINBERG: I was not instructed by Sandra Evans

22 to file a notice of appeal.

23 THE COURT: From the receivership order?

24 MR. STEINBERG: From the receivership order. I did

25 timely advise her of her rights and the date and deadlines to


to monitor the proceedings because of the lawsuits pending in

2 state court in which she is a named party.

3 And if I've said something that's incorrect,

4 Mr. Steinberg, please tell me now.

5 MR. STEINBERG: Not to my recollection at all, your

6 Honor.

THE COURT: Okay. Ms. Wynne, have I said something

8 that's incorrect?

9 MS. WYNNE: No, your Honor, not that I know of.

THE COURT: Well, that said, there is literally no

11 basis for any filing by Ms. Wynne, in particular, no basis

12 whatsoever for her to have filed a notice of appearance on

13 behalf of Ms. Evans and to have filed a notice of appeal, unless

14 somehow that's been -- that's been superseded by some notice of

15 appeal by Mr. Steinberg.

16 Did you author a notice of appeal?

17 MR. STEINBERG: I did not author a notice of appeal,

18 your Honor.

19 THE COURT: Were you ever instructed to file an

20 appeal?

21 MR. STEINBERG: I was not instructed by Sandra Evans

22 to file a notice of appeal.

THE COURT: From the receivership order?

24 MR. STEINBERG: From the receivership order. I did

25 timely advise her of her rights and the date and deadlines to



6

1 file an appeal. I advised her of the date and times.

2 THE COURT: Okay. So that's part of where we are.

3 So there's several motions. There's a motion to

4 withdraw by Ms. Wynne. There's a motion to substitute by an

5 unadmitted attorney named Mario Gonzales. There's a motion to

6 strike the notice of appearance in all related filings by

7 Ms. Wynne from the plaintiffs.

8 The Court grants the motion to strike, because there

9 is an irreconcilable conflict already found months ago in this

10 case which disqualified Ms. Wynne from appearing. Any

11 appearance or effort to appear may well trigger Rules of

12 Professional Conduct issues that the state bar has to consider.

13 At this point, this Court can only say on the record

14 before it Ms. Wynne subsequent to the order approving her

15 withdrawal because she had an irreconcilable conflict of

16 interest remains in full force and effect, and any filings by

17 her are stricken. She was completely without any authority to

18 make those filings.

19 The motion to withdraw is denied as moot, because she

20 had no standing to make -- to appear in the first place.

21 The motion to appear by Mr. Gonzales is denied as

22 moot -- or denied, simply because, he's not a member of the bar,

23 and he cannot substitute for an attorney who was barred from

24 appearing in the first place.

25 So those are my rulings on those issues, but I'll


file an appeal. I advised her of the date and times.

THE COURT: Okay. So that's part of where we are.

3 So there's several motions. There's a motion to

4 withdraw by Ms. Wynne. There's a motion to substitute by an

5 unadmitted attorney named Mario Gonzales. There's a motion to

6 strike the notice of appearance in all related filings by

7 Ms. Wynne from the plaintiffs.

The Court grants the motion to strike, because there

9 is an irreconcilable conflict already found months ago in this

10 case which disqualified Ms. Wynne from appearing. Any

11 appearance or effort to appear may well trigger Rules of

12 Professional Conduct issues that the state bar has to consider.

At this point, this Court can only say on the record

14 before it Ms. Wynne subsequent to the order approving her

15 withdrawal because she had an irreconcilable conflict of

16 interest remains in full force and effect, and any filings by

17 her are stricken. She was completely without any authority to

18 make those filings.

The motion to withdraw is denied as moot, because she

20 had no standing to make -- to appear in the first place.

The motion to appear by Mr. Gonzales is denied as

22 moot -- or denied, simply because, he's not a member of the bar,

23 and he cannot substitute for an attorney who was barred from

24 appearing in the first place.

25 So those are my rulings on those issues, but I'll



7

1 hear from any party that wishes to comment, starting with

2 Mr. Johnston on those rulings.

3 MR. JOHNSTON: Your Honor, we concur with those

4 rulings, and I believe the Court has indicated every element

5 that I would have included. And unless there are questions the

6 Court has further, that's all I would have to say.

7 THE COURT: Let's make sure that -- you can remain

8 seated and speak into the microphone so those on the phone can

9 hear you.

10 Did everybody hear Mr. Johnston?

11 MS. WYNNE: No, sir.

12 MR. GALBRAITH: No, sir.

13 THE COURT: Please repeat.

14 MR. JOHNSTON: Your Honor, I don't have anything to

15 add. I believe that -- I agree that the Court has covered the

16 essential elements of our motion, and we ask it be granted and

17 concur with the Court's action.

18 THE COURT: Mr. Steinberg next.

19 MR. STEINBERG: I have no comment on that, your

20 Honor. I concur with the Court's decision based on the record.

21 THE COURT: Ms. Wynne, you can make a record.

22 MS. WYNNE: Your Honor, for the record, the motion to

23 withdraw and substitute counsel was filed with the Ninth Circuit

24 Court of Appeals. A courtesy copy was sent to the Court, not

25 for the purpose of filing it with the federal district court,


hear from any party that wishes to comment, starting with

2 Mr. Johnston on those rulings.

3 MR. JOHNSTON: Your Honor, we concur with those

4 rulings, and I believe the Court has indicated every element

5 that I would have included. And unless there are questions the

6 Court has further, that's all I would have to say.

MR. JOHNSTON: Your Honor, I don't have anything to

15 add. I believe that -- I agree that the Court has covered the

16 essential elements of our motion, and we ask it be granted and

17 concur with the Court's action.

THE COURT: Mr. Steinberg next.

19 MR. STEINBERG: I have no comment on that, your

20 Honor. I concur with the Court's decision based on the record.

THE COURT: Ms. Wynne, you can make a record.

MS. WYNNE: Your Honor, for the record, the motion to

23 withdraw and substitute counsel was filed with the Ninth Circuit

24 Court of Appeals. A courtesy copy was sent to the Court, not

25 for the purpose of filing it with the federal district court,



8

1 but for the purpose of letting the Court know that the notice of

2 appeal filed on behalf of Sandra Evans was filed solely for the

3 purpose of preserving her right to appeal after direction from

4 the client to do so with no intent to appear in the federal

5 district court, and was solely the intent to appear in the Ninth

6 Circuit as is set forth in the notice of appeal.

7 THE COURT: Ms. Wynne, if you're telling me that you

8 filed a notice of appearance in this court -- did you not file a

9 notice of appearance in my court?

10 MS. WYNNE: Your Honor, the notice of appeal -- of

11 appearance was directed to the Ninth Circuit court and specifies

12 that the appearance is solely for the purpose of the appeal in

13 the Ninth Circuit court. And for the record, it is --

14 THE COURT: Why did you file a copy in my court?

15 MS. WYNNE: I filed it solely with the understanding

16 that it would be lodged with the Ninth Circuit, your Honor. And

17 I have no objection to striking it if it has remained with your

18 court, because there was never an intent to appear before you.

19 I do need to let the Court know, for the record, it

20 is my understanding that Mario Gonzales is licensed in the Ninth

21 Circuit Court of Appeals, and that is where he intended to

22 appear and nowhere else.

23 THE COURT: Well, thank you for that, because I

24 misread it, and I stand corrected then. If, in fact, you filed

25 a notice only in the Ninth Circuit, then it's clear that you


but for the purpose of letting the Court know that the notice of

2 appeal filed on behalf of Sandra Evans was filed solely for the

3 purpose of preserving her right to appeal after direction from

4 the client to do so with no intent to appear in the federal

5 district court, and was solely the intent to appear in the Ninth

6 Circuit as is set forth in the notice of appeal.

THE COURT: Ms. Wynne, if you're telling me that you

8 filed a notice of appearance in this court -- did you not file a

9 notice of appearance in my court?

MS. WYNNE: Your Honor, the notice of appeal -- of

11 appearance was directed to the Ninth Circuit court and specifies

12 that the appearance is solely for the purpose of the appeal in

13 the Ninth Circuit court. And for the record, it is --

THE COURT: Why did you file a copy in my court?

MS. WYNNE: I filed it solely with the understanding

16 that it would be lodged with the Ninth Circuit, your Honor. And

17 I have no objection to striking it if it has remained with your

18 court, because there was never an intent to appear before you.

I do need to let the Court know, for the record, it

20 is my understanding that Mario Gonzales is licensed in the Ninth

21 Circuit Court of Appeals, and that is where he intended to

appear and nowhere else.

THE COURT: Well, thank you for that, because I

24 misread it, and I stand corrected then. If, in fact, you filed

25 a notice only in the Ninth Circuit, then it's clear that you



9

1 have an irreconcilable conflict of interest here. I don't know

2 by what authority you filed a notice of appeal. I have no -- I

3 have no idea whether there's a pending motion to disqualify you

4 in the Ninth Circuit, and Mr. Gonzales, and I have no idea what

5 the Ninth Circuit will do that with that. So if you're telling

6 me you did not file a notice of appearance in this case in this

7 district court, then I'll sure check that, Ms. Wynne, and I

8 stand corrected if that's the case.

9 Mr. Johnston.

10 MR. JOHNSTON: May I address that?

11 THE COURT: Go ahead to the podium.

12 MR. JOHNSTON: Your Honor, the motion that we

13 filed --

14 THE COURT: I'm listening.

15 MR. JOHNSTON: -- addressed a notice of appearance on

16 the caption of this case filed in this case by Ms. Wynne. It

17 stated in the notice of appeal that she was filing a notice of

18 appeal in this court for the purpose of filing a notice of

19 appeal.

20 Now, your Honor, we know that a notice of appeal must

21 be filed in the district court by an attorney of record in the

22 action and admitted to practice before the bar of the court.

23 Our concern was that the notice of appearance was an attempt,

24 clearly, by the follow-up documents that were filed by Ms. Wynne

25 to appeal this court's order and deprive this Court, as she


have an irreconcilable conflict of interest here. I don't know

2 by what authority you filed a notice of appeal. I have no -- I

3 have no idea whether there's a pending motion to disqualify you

4 in the Ninth Circuit, and Mr. Gonzales, and I have no idea what

5 the Ninth Circuit will do that with that. So if you're telling

6 me you did not file a notice of appearance in this case in this

7 district court, then I'll sure check that, Ms. Wynne, and I

8 stand corrected if that's the case.

Mr. Johnston.

10 MR. JOHNSTON: May I address that?

11 THE COURT: Go ahead to the podium.

12 MR. JOHNSTON: Your Honor, the motion that we

13 filed --

14 THE COURT: I'm listening.

15 MR. JOHNSTON: -- addressed a notice of appearance on

16 the caption of this case filed in this case by Ms. Wynne. It

17 stated in the notice of appeal that she was filing a notice of

18 appeal in this court for the purpose of filing a notice of

19 appeal.

20 Now, your Honor, we know that a notice of appeal must

21 be filed in the district court by an attorney of record in the

22 action and admitted to practice before the bar of the court.

23 Our concern was that the notice of appearance was an attempt,

24 clearly, by the follow-up documents that were filed by Ms. Wynne

25 to appeal this court's order and deprive this Court, as she



10

1 later argued it had, of jurisdiction over Ms. Wynne in the

2 process of filing the notice of appearance and the subsequent

3 notice of appeal. Our motion was directed to the fact that the

4 notice of appearance was improper for all of the reasons

5 specified in our pleading and that, therefore, the notice of

6 appeal was without authority and must also fall and be stricken.

7 The Ninth Circuit gains no jurisdiction from an

8 invalid notice of appeal, as was filed in this case. We may in

9 order to clear the docket and record of the Ninth Circuit, your

10 Honor, have to take this Court's rulings to the Ninth Circuit by

11 motion and, therefore, concur that to the extent that Ms. Wynne

12 filed a notice of appearance, it was invalid, should be

13 stricken, and invalidates the notice of appeal as a document

14 required to be filed in the district court.

15 THE COURT: Well, let's start with a couple things.

16 One, Ms. Wynne's appropriately pointed out that the

17 documents filed here as -- in a series of documents beginning

18 with 826 all are filed here but bear the Court of Appeals for

19 the Ninth Circuit. 26, 27, 28, 29, 32, and 34-1 all bear in the

20 Court of Appeals for the Ninth Circuit.

21 If there's a document -- I thought that I saw a

22 document for a notice of appearance here in the district court

23 on the heading in the district court, and, perhaps, I'm

24 mistaken, but I need to check the docket, and so I'm going to do

25 that right now with my staff, and we'll take a look to see what


later argued it had, of jurisdiction over Ms. Wynne in the

2 process of filing the notice of appearance and the subsequent

3 notice of appeal. Our motion was directed to the fact that the

4 notice of appearance was improper for all of the reasons

5 specified in our pleading and that, therefore, the notice of

6 appeal was without authority and must also fall and be stricken.

The Ninth Circuit gains no jurisdiction from an

8 invalid notice of appeal, as was filed in this case. We may in

9 order to clear the docket and record of the Ninth Circuit, your

10 Honor, have to take this Court's rulings to the Ninth Circuit by

11 motion and, therefore, concur that to the extent that Ms. Wynne

12 filed a notice of appearance, it was invalid, should be

13 stricken, and invalidates the notice of appeal as a document

14 required to be filed in the district court.

THE COURT: Well, let's start with a couple things.

16 One, Ms. Wynne's appropriately pointed out that the

17 documents filed here as -- in a series of documents beginning

18 with 826 all are filed here but bear the Court of Appeals for

19 the Ninth Circuit. 26, 27, 28, 29, 32, and 34-1 all bear in the

20 Court of Appeals for the Ninth Circuit.

If there's a document -- I thought that I saw a

22 document for a notice of appearance here in the district court

23 on the heading in the district court, and, perhaps, I'm

24 mistaken, but I need to check the docket, and so I'm going to do

25 that right now with my staff, and we'll take a look to see what



11

1 it shows.

2 MR. JOHNSTON: I believe it's Document 826, your

3 Honor.

4 THE COURT: 826. Let's take a look at that.

5 I have 826. It's the Court of Appeals for the Ninth

6 Circuit. Now, it's filed here as Document 826, but it shows

7 notice of appearance on the heading in the Court of Appeals for

8 the Ninth Circuit, and it shows a date of 8/17, and so I'm

9 looking at that to determine -- okay.

10 Give me a second.

11 (Pause in proceedings)

12 THE COURT: I think the way I construed this was that

13 you had no authority to appear -- to file a notice of appearance

14 in the first place even for the purposes of filing a Notice of

15 Appeal, because you do have -- you're irreconcilably conflicted

16 out of the case. I so ruled. And I think you need to help me

17 understand then what difference it makes when, in fact, you have

18 that irreconcilable conflict and withdrew and how you could

19 possibly file documents in my court on behalf of that same

20 party, even if it is a notice of appeal, how you overcome that

21 bar due to the irreconcilable conflict, Ms. Wynne.

22 MS. WYNNE: Your Honor, I have been advised that I

23 did have an irreconcilable conflict with continued

24 representation in your court with regard to the issues that are

25 before your Court in this case. However, the notice of appeal


it shows.

2 MR. JOHNSTON: I believe it's Document 826, your

3 Honor.

4 THE COURT: 826. Let's take a look at that.

I have 826. It's the Court of Appeals for the Ninth

6 Circuit. Now, it's filed here as Document 826, but it shows

7 notice of appearance on the heading in the Court of Appeals for

8 the Ninth Circuit, and it shows a date of 8/17, and so I'm

9 looking at that to determine -- okay.

10 Give me a second.

(Pause in proceedings)

12 THE COURT: I think the way I construed this was that

13 you had no authority to appear -- to file a notice of appearance

14 in the first place even for the purposes of filing a Notice of

15 Appeal, because you do have -- you're irreconcilably conflicted

16 out of the case. I so ruled. And I think you need to help me

17 understand then what difference it makes when, in fact, you have

18 that irreconcilable conflict and withdrew and how you could

19 possibly file documents in my court on behalf of that same

20 party, even if it is a notice of appeal, how you overcome that

21 bar due to the irreconcilable conflict, Ms. Wynne.

MS. WYNNE: Your Honor, I have been advised that I

23 did have an irreconcilable conflict with continued

24 representation in your court with regard to the issues that are

25 before your Court in this case. However, the notice of appeal



12

1 is with regard to the necessity of protecting Ms. Evans' right

2 to an appeal in the Ninth Circuit.

3 THE COURT: The fact that you're trying to do -- the

4 fact that you're trying to protect her rights, it seems to me,

5 immaterial to the question of whether or not the irreconcilable

6 conflict barred you from doing so. You had a conflict. It

7 still exists, and, nevertheless, you purport to act on her

8 behalf despite that conflict of interest. And I don't

9 understand how that's possible. I have nothing in the record

10 indicating that that conflict has been reconciled.

11 Has it been?

12 MS. WYNNE: Your Honor, the conflict with continued

13 appearance in your court on the issues that are within your

14 jurisdiction, I have no reason to believe that issue has been

15 resolved.

16 THE COURT: Well, are you still -- are you still a

17 party being sued by Ms. Evans?

18 MS. WYNNE: I am, your Honor.

19 THE COURT: Well, if you're still being sued by

20 Ms. Evans in state court -- and I believe that to be correct --

21 it's immaterial whether your appearance is here for the purposes

22 of litigating the issues or here for the purpose of appealing

23 the issues. The notion that somehow you're conflicted out here

24 in district court but you still have the capacity to file a

25 notice of appeal of orders relating to Ms. Evans is in my mind


is with regard to the necessity of protecting Ms. Evans' right

2 to an appeal in the Ninth Circuit.

THE COURT: The fact that you're trying to do -- the

4 fact that you're trying to protect her rights, it seems to me,

5 immaterial to the question of whether or not the irreconcilable

6 conflict barred you from doing so. You had a conflict. It

7 still exists, and, nevertheless, you purport to act on her

8 behalf despite that conflict of interest. And I don't

9 understand how that's possible. I have nothing in the record

10 indicating that that conflict has been reconciled.

11 Has it been?

12 MS. WYNNE: Your Honor, the conflict with continued

13 appearance in your court on the issues that are within your

14 jurisdiction, I have no reason to believe that issue has been

15 resolved.

16 THE COURT: Well, are you still -- are you still a

17 party being sued by Ms. Evans?

18 MS. WYNNE: I am, your Honor.

THE COURT: Well, if you're still being sued by

20 Ms. Evans in state court -- and I believe that to be correct --

21 it's immaterial whether your appearance is here for the purposes

22 of litigating the issues or here for the purpose of appealing

23 the issues. The notion that somehow you're conflicted out here

24 in district court but you still have the capacity to file a

25 notice of appeal of orders relating to Ms. Evans is in my mind



13

1 simply irrational. I don't know how you can analyze that

2 logically and say that you have the one but you're prevented

3 from doing the other since the very interests at stake are the

4 ones resolved here in district court, the receivership, and to

5 the extent you were barred by that conflict of interest in doing

6 so. And from the Court's mind, that's exactly the position that

7 I believe to be correct.

8 So I did note that your Document 859 was, in fact,

9 signed by both you and Mr. Steinberg and was submitted September

10 1st of this year. Is that correct?

11 MS. WYNNE: Your Honor, I did not authorize the

12 filing of that document under my name and did not in any way

13 attempt to appear in your court through that document or any

14 other document.

15 I did file the notice of appeal for an appearance in

16 the court of appeals. And I'd like to make my record on this

17 for two reasons. The rules require even though you are making

18 the appearance in the court of appeals that you file that

19 appearance with the district court. That appearance was filed

20 with the understanding that Mr. Gonzales would take over the

21 appeal before any substantive issues needed to be argued or

22 briefed or put into the record, and, indeed, he has moved

23 forward to do so, and was filed solely with the purpose of

24 preserving the client's right to the appeal. And for that

25 limited purpose, your Honor, it did not appear to conflict with


simply irrational. I don't know how you can analyze that

2 logically and say that you have the one but you're prevented

3 from doing the other since the very interests at stake are the

4 ones resolved here in district court, the receivership, and to

5 the extent you were barred by that conflict of interest in doing

6 so. And from the Court's mind, that's exactly the position that

7 I believe to be correct.

So I did note that your Document 859 was, in fact,

9 signed by both you and Mr. Steinberg and was submitted September

10 1st of this year. Is that correct?

MS. WYNNE: Your Honor, I did not authorize the

12 filing of that document under my name and did not in any way

13 attempt to appear in your court through that document or any

14 other document.

I did file the notice of appeal for an appearance in

16 the court of appeals. And I'd like to make my record on this

17 for two reasons. The rules require even though you are making

18 the appearance in the court of appeals that you file that

19 appearance with the district court. That appearance was filed

20 with the understanding that Mr. Gonzales would take over the

21 appeal before any substantive issues needed to be argued or

22 briefed or put into the record, and, indeed, he has moved

23 forward to do so, and was filed solely with the purpose of

24 preserving the client's right to the appeal. And for that

limited purpose, your Honor, it did not appear to conflict with



14

1 the ongoing jurisdictional issues -- or issues remaining within

2 the jurisdiction of the district court.

3 THE COURT: Ms. Wynne, here's my problem. You, in

4 fact, were out of this case based on a conflict that was clear

5 and certain and advanced by you and your malpractice carrier in

6 this court. Mr. Steinberg was the attorney of record. He was

7 the only person who had authority in this court to file a notice

8 of appeal. I don't see how you end up permitted to file a

9 notice of appeal under the Rules of Professional Conduct in this

10 court for the Ninth Circuit with that bar in place and

11 Mr. Steinberg in place as attorney of record where there's no

12 joinder of attorneys, there's no association of record, and you

13 could not appear, as well. So let's -- that's my position on

14 that.

15 But let's go to 859.

16 Mr. Steinberg, Ms. Wynne says she was not a signatory

17 to that letter even though it bears her typed signature on page

18 9 of 859. Mr. Steinberg.

19 MR. STEINBERG: Your Honor, Ms. Wynne prepared this

20 document. She e-mailed it to me. I reviewed it. I e-mailed

21 drafts of it to Ms. Wynne and Ms. Evans. Ms. Evans reviewed it

22 and advised me to file it. I filed -- electronically filed,

23 because the deadline of the court was fast approaching, but I

24 did make a couple minor revisions in it, and I did -- it

25 originally came to me -- I don't remember on the original


the ongoing jurisdictional issues -- or issues remaining within

2 the jurisdiction of the district court.

THE COURT: Ms. Wynne, here's my problem. You, in

4 fact, were out of this case based on a conflict that was clear

5 and certain and advanced by you and your malpractice carrier in

6 this court. Mr. Steinberg was the attorney of record. He was

7 the only person who had authority in this court to file a notice

8 of appeal. I don't see how you end up permitted to file a

notice of appeal under the Rules of Professional Conduct in this

10 court for the Ninth Circuit with that bar in place and

11 Mr. Steinberg in place as attorney of record where there's no

12 joinder of attorneys, there's no association of record, and you

13 could not appear, as well. So let's -- that's my position on

14 that.

15 But let's go to 859.

Mr. Steinberg, Ms. Wynne says she was not a signatory

17 to that letter even though it bears her typed signature on page

18 9 of 859. Mr. Steinberg.

MR. STEINBERG: Your Honor, Ms. Wynne prepared this

20 document. She e-mailed it to me. I reviewed it. I e-mailed

21 drafts of it to Ms. Wynne and Ms. Evans. Ms. Evans reviewed it

22 and advised me to file it. I filed -- electronically filed,

because the deadline of the court was fast approaching, but I

24 did make a couple minor revisions in it, and I did -- it

25 originally came to me -- I don't remember on the original



15

1 format, if it came with Ms. Wynne's signature bar or not. I do

2 not recall that specifically.

3 Mary, do you?

4 MS. WYNNE: No, I don't recall.

5 I do remember and would like to make a record of the

6 e-mail which I have faxed to the Court and sent out to all

7 parties which specifically stated that I was not attorney of

8 record for the trial court matter and, therefore, could not file

9 the document.

10 THE COURT: What are you referring to, Ms. Wynne?

11 MS. WYNNE: And that would be --


13 Because you said you specifically did something. What is it

14 that you did, and who did you give notice to?

15 MS. WYNNE: Initially, I did do the research and

16 drafted the response to Mr. Johnston's motion because of my

17 concern for the notice of appeal, your Honor, however, before

18 filing it, recalled that I'm unable to appear on the case and on

19 the matters before the district court, and, therefore, sent it

20 over to Mr. Steinberg with an e-mail specifically stating that I

21 could not appear and that the attorney of record, Mr. Steinberg,

22 would need to file the response. I did send him my research and

23 draft in an effort if it would assist him in filing, but I did

24 not file anything before the district court, your Honor.

25 THE COURT: Mr. Steinberg.


format, if it came with Ms. Wynne's signature bar or not. I do

2 not recall that specifically.

3 Mary, do you?

4 MS. WYNNE: No, I don't recall.

I do remember and would like to make a record of the

6 e-mail which I have faxed to the Court and sent out to all

7 parties which specifically stated that I was not attorney of

8 record for the trial court matter and, therefore, could not file

9 the document.


11 MS. WYNNE: And that would be --


13 Because you said you specifically did something. What is it

14 that you did, and who did you give notice to?

MS. WYNNE: Initially, I did do the research and

16 drafted the response to Mr. Johnston's motion because of my

17 concern for the notice of appeal, your Honor, however, before

18 filing it, recalled that I'm unable to appear on the case and on

19 the matters before the district court, and, therefore, sent it

20 over to Mr. Steinberg with an e-mail specifically stating that I

21 could not appear and that the attorney of record, Mr. Steinberg,

22 would need to file the response. I did send him my research and

23 draft in an effort if it would assist him in filing, but I did

24 not file anything before the district court, your Honor.

25 THE COURT: Mr. Steinberg.



16

1 MR. STEINBERG: Your Honor, I didn't even know an

2 appeal was being undertaken. So when I got the e-mail across my

3 desk that an appeal had been undertaken, I was very surprised.

4 THE COURT: And here's my problem, Ms. Wynne. It's a

5 repeat of what I think is likely to be testified to in the

6 lawsuit between you and Ms. Evans and Ms. Evans and

7 Mr. Weatherhead or that entity that's involved in that

8 malpractice claim and that attorney's fee issue where your --

9 you were out of the case formally, but it's my impression that

10 there may well be some testimony that you were actively

11 involved -- it may turn out to be that's incorrect -- that you

12 were actively involved in structuring the defense of the case

13 and that there may well have reached a disagreement between you

14 and the attorneys who were actually of record in how to handle

15 the case or what to do and when to do it, because I do remember

16 that you then got into the case at some point after I had made

17 certain rulings.

18 And this seems to be a repeat of that same behavior.

19 The notion that you could be preparing and drafting an appeal

20 for Ms. Evans with whom you had an irreconcilable conflict of

21 interest seems to me to be -- and then send it to Mr. Steinberg

22 essentially saying do this.

23 And tell me, Mr. Steinberg, before you actually filed

24 this document, what did you do by way of talking with Ms. Evans

25 without revealing the nature of the conversation?


MR. STEINBERG: Your Honor, I didn't even know an

2 appeal was being undertaken. So when I got the e-mail across my

3 desk that an appeal had been undertaken, I was very surprised.

THE COURT: And here's my problem, Ms. Wynne. It's a

5 repeat of what I think is likely to be testified to in the

6 lawsuit between you and Ms. Evans and Ms. Evans and

7 Mr. Weatherhead or that entity that's involved in that

8 malpractice claim and that attorney's fee issue where your --

9 you were out of the case formally, but it's my impression that

10 there may well be some testimony that you were actively

11 involved -- it may turn out to be that's incorrect -- that you

12 were actively involved in structuring the defense of the case

13 and that there may well have reached a disagreement between you

14 and the attorneys who were actually of record in how to handle

15 the case or what to do and when to do it, because I do remember

16 that you then got into the case at some point after I had made

certain rulings.

And this seems to be a repeat of that same behavior.

19 The notion that you could be preparing and drafting an appeal

20 for Ms. Evans with whom you had an irreconcilable conflict of

21 interest seems to me to be -- and then send it to Mr. Steinberg

22 essentially saying do this.

And tell me, Mr. Steinberg, before you actually filed

24 this document, what did you do by way of talking with Ms. Evans

25 without revealing the nature of the conversation?



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1 MR. STEINBERG: I had e-mail contact with her, and

2 she authorized me to electronically file it.

3 THE COURT: Okay.

4 MR. STEINBERG: With Ms. Evans.

5 THE COURT: That's right, with Ms. Evans. Okay.

6 Ms. Evans, have you heard anything that you believe

7 to be incorrect?

8 DEFENDANT EVANS: No, sir, I haven't.

9 THE COURT: Okay. All right. Well, I think for the

10 record then, since we're straightened out that all these notices

11 I misread to be in my court, even though they were filed in my

12 court, at the Ninth Circuit, it seems clear to me that you lack

13 any authority whatsoever to involve yourself in this lawsuit and

14 any appeal of it given your irreconcilable conflict. And the

15 notion that you did this, quote, only to preserve the client's

16 right of appeal when she had an attorney of record, and that you

17 worked with that attorney to make that -- to accomplish that and

18 presumably worked behind the scenes with Ms. Evans to do that,

19 as well, is very troubling to this Court.

20 Give me a moment.

21 (Pause in proceedings)

22 THE COURT: Well, I think we're looking at Rule 4 of

23 the Appellate Rules of Procedure, and it says under 4, "Appeal

24 as of Right -- When Taken":

25 "(a) Appeal in a civil case.


MR. STEINBERG: I had e-mail contact with her, and

2 she authorized me to electronically file it.

3 THE COURT: Okay.

4 MR. STEINBERG: With Ms. Evans.

5 THE COURT: That's right, with Ms. Evans. Okay.

6 Ms. Evans, have you heard anything that you believe

7 to be incorrect?

8 DEFENDANAA T EVAVV NAA S: No, sir, I haven't.

THE COURT: Okay. All right. Well, I think for the

10 record then, since we're straightened out that all these notices

11 I misread to be in my court, even though they were filed in my

12 court, at the Ninth Circuit, it seems clear to me that you lack

13 any authority whatsoever to involve yourself in this lawsuit and

14 any appeal of it given your irreconcilable conflict. And the

15 notion that you did this, quote, only to preserve the client's

16 right of appeal when she had an attorney of record, and that you

17 worked with that attorney to make that -- to accomplish that and

18 presumably worked behind the scenes with Ms. Evans to do that,

as well, is very troubling to this Court.

20 Give me a moment.

THE COURT: Well, I think we're looking at Rule 4 of

23 the Appellate Rules of Procedure, and it says under 4, "Appeal

24 as of Right -- When Taken":

25 "(a) Appeal in a civil case.



18

1 (1) Time for filing a notice of appeal.

2 (A) In a civil case, except as provided in" --

3 certain rules -- "the notice of appeal required by Rule 3 must

4 be filed with the district clerk within 30 days after the

5 judgment or order appealed from is entered."

6 That requires that you appear in my court by virtue

7 of filing the notice of appeal, and you're, frankly, barred from

8 doing so. And the question of who filed the notices of appeal,

9 it's clear that in all the documents I've cited, the ones that

10 I've indicated, 826, 827, 828, I believe, 829, 834-1 and 832,

11 were all signed by you, and you know very well that you could

12 not file those documents in my court, because you had an

13 irreconcilable conflict of interest.

14 Now, the Ninth Circuit may well have to take this

15 issue up, but the Court finds that those -- that to the extent

16 that I can exercise jurisdiction over this matter that your

17 appearance in this court for the purposes of filing a notice of

18 appeal was barred by your irreconcilable conflict of interest.

19 It's for the Ninth Circuit to dismiss the case or not as it sees

20 fit as having been filed by an attorney who was conflicted out

21 of the case and whom the Court has found was barred from filing

22 documents in its court by virtue of that irreconcilable

23 conflict. Whether that produces in the district -- in the

24 appeals court some relief on equitable grounds, I don't know,

25 but I don't know whether such a notice or such a motion's been


(1) Time for filing a notice of appeal.

2 (A) In a civil case, except as provided in" --

3 certain rules -- "the notice of appeal required by Rule 3 must

4 be filed with the district clerk within 30 days after the

5 judgment or order appealed from is entered."

6 That requires that you appear in my court by virtue

7 of filing the notice of appeal, and you're, frankly, barred from

8 doing so. And the question of who filed the notices of appeal,

9 it's clear that in all the documents I've cited, the ones that

I've indicated, 826, 827, 828, I believe, 829, 834-1 and 832,

11 were all signed by you, and you know very well that you could

12 not file those documents in my court, because you had an

13 irreconcilable conflict of interest.

14 Now, the Ninth Circuit may well have to take this

15 issue up, but the Court finds that those -- that to the extent

16 that I can exercise jurisdiction over this matter that your

appearance in this court for the purposes of filing a notice of

18 appeal was barred by your irreconcilable conflict of interest.

19 It's for the Ninth Circuit to dismiss the case or not as it sees

20 fit as having been filed by an attorney who was conflicted out

21 of the case and whom the Court has found was barred from filing

22 documents in its court by virtue of that irreconcilable

23 conflict. Whether that produces in the district -- in the

24 appeals court some relief on equitable grounds, I don't know,

25 but I don't know whether such a notice or such a motion's been



19

1 filed in the Ninth Circuit.

2 MR. JOHNSTON: We intend to file that motion, your

3 Honor, but we were awaiting the rulings of this Court on our

4 belief that those documents were miscaptioned and were required

5 to be captioned in this court and that the fact that they were

6 captioned in the Ninth Circuit simply indicates the intent to

7 file documents inappropriately by Ms. Wynne.

8 THE COURT: Well, we'll see, in fact, how that works

9 out at the Ninth Circuit level.

10 Now, let's move on then to who's here and what's

11 going on. We have a motion under -- to hold you in contempt and

12 then another motion to hold Ms. Evans in contempt and then a

13 motion for attorney fees or reconsideration of attorney's fees.

14 So go ahead, Mr. Johnston.

15 MS. WYNNE: Your Honor, this is Mary Wynne. May I be

16 excused?

17 THE COURT: Ms. Wynne, that's entirely up to you, as

18 far as I'm concerned. If you have some reason to be before this

19 Court for any reason, that's up to you, but this is a public

20 hearing. So I'm conducting a public hearing. As you know, I

21 believe you're barred from representing any interest of

22 Ms. Evans based on the record before me. That's all I can say.

23 MS. WYNNE: Thank you, your Honor.

24 (Ms. Wynne disconnects from the phone

25 conference.)


filed in the Ninth Circuit.

2 MR. JOHNSTON: We intend to file that motion, your

3 Honor, but we were awaiting the rulings of this Court on our

4 belief that those documents were miscaptioned and were required

5 to be captioned in this court and that the fact that they were

6 captioned in the Ninth Circuit simply indicates the intent to

7 file documents inappropriately by Ms. Wynne.

8 THE COURT: Well, we'll see, in fact, how that works

9 out at the Ninth Circuit level.

MS. WYNNE: Your Honor, this is Mary Wynne. May I be

16 excused?

17 THE COURT: Ms. Wynne, that's entirely up to you, as

18 far as I'm concerned. If you have some reason to be before this

Court for any reason, that's up to you, but this is a public

20 hearing. So I'm conducting a public hearing. As you know, I

21 believe you're barred from representing any interest of

22 Ms. Evans based on the record before me. That's all I can say.

23 MS. WYNNE: Thank you, your Honor.

24 (Ms. Wynne disconnects from the phone

25 conference.)





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EXHIBIT K

UNITED STATES BANKRUPTCY COURT DISTRICT OF SOUTH DAKOTA

In re: DANIEL THOMAS GARGAN AND MARY TURGEON WYNNE Debtors. ---------------------------------------------------- SANDRA D. EVANS Plaintiff, vs. DANIEL THOMAS GARGAN AND MARY TURGEON WYNNE individually and as husband and wife, Defendants.

BANKRUPTCY CASE NO. 14-30017 Chapter 13 Adv. No. __________________________

COMES NOW SANDRA D. EVANS, by and through her attorneys of record, CHARLES

R. STEINBERG, of The Steinberg Law Firm, PS and JAMES E. CARLON of The Carlon Law

Office, and hereby requests the Court to enter an Order determining that the Debt owed to

SANDRA D. EVANS by Debtors DAN GARGAN AND MARY T. WYNNE is Non-

Dischargeable, pursuant to 11 USC 523 (a) (4):

In support thereof the following is alleged:

1. JURISDICTION. This court has jurisdiction over this proceeding under 28 USC Sec.

1334 (a) and (b), and 28 USC Sec. 157 (a) and (b).

This is a Core Proceeding under 28 USC Sec. 157(b)(2)(I) as it involves a determination as to

the Dischargeability of a particular debt under 11 USC 523 (a)(4).

2. VENUE is appropriate pursuant to 28 USC Sec. 1409 ( a ).

3. FIDUCIARY RELATIONSHIP. Plaintiff Sandra Evans hired Attorney Mary T.

Wynne to assist in legal matters relating to her father Wapato Bill Evans’ estate, back in 2001.

From 2001 through 2009, Attorney Mary T. Wynne and her husband and employee in the

Case: 14-30017 Document: 71 Filed: 07/14/14 Page 1 of 4



WYNNE LAW FIRM, Daniel T. Gargan, gained control over the assets of Sandra D. Evans,

and they advised her in investments to make, and additionally, they borrowed monies from her,

and used monies of Sandra Evans to purchase real property in their names. Sandra D. Evans

appointed Daniel Gargan and Mary T. Wynne as attorney in fact and also as her attorney.

4. Sandra D. Evans, at the recommendation and urging of Mary T. Wynne, hired Daniel

Gargan to be her financial advisor.

5. From her father’s estate, Sandra D. Evans was to receive income for life from real

property known as MA-10, which amounted to over a million dollars per year. Sandra Evan’s

nephews and Sandra Evans had a disagreement over the settlement of her father’s estate.

A settlement was reached, which called for Sandra D. Evans to loan her nephews a portion of

the MA-10 monies, so that her nephews could invest the monies. Sandra Evans was told by Dan

Gargan and Mary Wynne that the monies were being set aside for the nephews, when in fact it

was not. The nephews sued Sandra Evans, which resulted in a money judgment against Sandra

Evans for damages in the amount of $1,355,099.62, and Attorneys Fees in the amount of

$623,521.50, plus interest.

6. During the time that Daniel Gargan and Mary T. Wynne had control over the finances

of Sandra Evans, they advised her about various investments. Some were in a corporation

known as First Phoenix International, a corporation where Sandra Evans fronted the monies, and

the board of directors were Mary T. Wynne, Daniel Gargan, and a person known as Thomas

Frederick. First Pheonix corporation never made any monies.

7. As attorney in fact, and financial advisor, DANIEL T. GARGAN owed a fiduciary duty

to Sandra Evans.

8. As attorney at law, and directing monies of Sandra Evans, Mary T. Wynne owed a

fiduciary duty to Sandra Evans.

9. Sandra Evans requested several times for an accounting of her monies and where her

monies were being spent from Dan Gargan and Mary Wynne. No accounting was ever

forthcoming.

10. A forensic accounting was performed of MA-10 Monies received by Daniel Gargan

and Mary T. Wynne for Sandra Evans for the period of time from Febuary 21, 2007 through

January 20, 2010. The accounting shows that $4,029,349.05 was received, and that SANDRA

EVANS’ expenses were $746,938.97 for that same time period.




11. Based upon the forensic accounting, it appears that during that time period, Dan Gargan

and Mary T. Wynne, used Sandra Evans’ funds for their personal expenses in the approximate

amount of $262,565.73, additionally Dan Gargan paid himself the sum of $544,565.73 for his

fees and expenses.

12. Even factoring in the above figures, it appears there is “missing” the sum of

$2,475.278.62.

13. Mary T. Wynne advised Sandra Evans, that Sandra did not need to worry about a thing,

and that Mary had stashed monies for her, and that there was enough stashed to keep Sandra

Evans going for at least ten years.

14. When Sandra asked for more monies to live on, Dan Gargan and Mary Wynne would tell

her the money was all gone, and spent on legal fees.

15. The fiduciaries, Mary T. Wynne, and Dan Gargan have failed to account for the monies of

Sandra Evans.

16. Mary T. Wynne and Dan Gargan committed fraud or defalcation, while acting in a

fiduciary capacity, and the debt owed to Sandra Evans should be completely excepted from

Discharge.

WHEREFORE, having alleged the above facts, Plaintiff SANDRA D. EVANS requests the

court issue an Order that pursuant to 11 USC Section 523 (a)(4), the entire debt owed to

SANDRA DIANE EVANS by DANIEL GARGAN and MARY T. WYNNE are for fraud or

defalcation while acting in a fiduciary capacity, and should be excepted from Discharge, plus an

award of reasonable attorneys fees and costs allowed by law.

DATED this 14th day of July, 2014.

___/s/ Charles R. Steinberg____________________ CHARLES R. STEINBERG, Admitted Pro Hac Vice 323 N Miller Street Wenatchee, WA 98801 509 662 3202 509 662 5221 fax




DATED this 14th day of July, 2014.

___/s/ JAMES E. CARLON____________________ James E. Carlon Attorney for Plaintiff

PO Box 249 Pierre, SD 57501-0249 (605) 224-5880






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EXHIBIT L

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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Attorneys Liability Protection Society,Inc.,

Plaintiff,

v.

Mary Wynne, et al.,

Defendants.

))))))))))))

No. CV-12-218-PHX-SMM

MEMORANDUM OF DECISION ANDORDER

Before the court is Plaintiff’s Motion for Summary Judgment or, in the Alternative,

Default Judgment. (Doc. 29.) Defendants Mary Wynne and Daniel Gargan have not

responded to the motion, and the deadline for them to do so has passed, making the matter

fully briefed. After consideration, the Court will grant the motion for default judgment.

BACKGROUND

Plaintiff is Attorneys Liability Protection Society, Inc., a provider of professional

liability insurance. Plaintiff brought this action against Mary Wynne, d/b/a Wynne Law

Firm, and Wynne’s husband Daniel Gargan (collectively “Defendants”).

I. The Underlying Lawsuits

Wynne was a licensed attorney in the states of North Dakota, South Dakota, and

Washington during the time period relevant to this suit, and represented Ms. Sandra Evans

in probate proceedings related to the death of Ms. Evans’ father William Wapato Evans in

2003. These probate proceedings involved Ms. Evans’ dispute with her three nephews

Case 2:12-cv-00218-SMM Document 36 Filed 08/30/13 Page 1 of 10



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regarding the division of William Wapato Evans’ property, including interests in federal

Indian trust real property, specifically his 100% interest in the Moses Allotment No. 10

(“MA-10”). These probate issues were resolved by a settlement agreement in 2005, whereby

Ms. Evans was to receive a 100% interest in William Wapato Evans’ interest in MA-10, and

for a period of five years loan 35% of her annual MA-10 income to her nephews through

their company, Wapato Heritage, LLC. The settlement agreement was approved by

November, 2005.

Some time prior to December 17, 2005, Ms. Evans retained Defendant Gargan to

provide services as a financial advisor, and executed a power of attorney granting Gargan

authority to act on her behalf with respect to financial matters. In April of 2006, Gargan

instructed the Bureau of Indian Affairs to transfer Evans’ MA-10 income from her Individual

Indian Money account to a business account in the name of Wynne Law Firm at a Wells

Fargo Bank branch in Mission, South Dakota. Both Wynne and Gargan had signatory

authority over this account. Between April 2006 and August 2007, $1,259,255.56 of Evans’

income was transferred from her Individual Indian Money account to the Wells Fargo

Account.

Neither Wynne nor Gargan took any steps to ensure that the required 35% of the WA-

10 income was paid to Wapato Heritage. Instead, between April 2006 and August 2007,

Gargan paid Evans an allowance of $340,000, paid himself a salary of $225,000, paid for half

of the expenses for his and Wynne’s residence in Chandler, Arizona, and paid the Wynne

Law Firm $75,000. In October of 2007, Wapato Heritage and Ms. Evans’ nephews filed a

lawsuit (“the MA-10 lawsuit”) against Evans for her failure to loan the required 35% of the

MA-10 income to Wapato Heritage pursuant to the settlement agreement.

Later that same month, First Phoenix International, Inc. was incorporated by Evans,

Wynne, and Gargan as a “development company.” In October of 2008, Wynne entered

appearance on behalf of Ms. Evans in the MA-10 lawsuit. In correspondence dated that same

day, attorney R. Bruce Johnston, counsel for the nephews and Wapato Heritage, requested

that Wynne withdraw her appearance in the MA-10 lawsuit, in part due to Wynne’s conflict




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of interest in representing Evans because Evans had potential claims against Wynne

associated with the improper use of moneys from the MA-10 account by Wynne and Gargan.

On November 13, 2008, Wynne submitted an application for professional liability

insurance to Plaintiff. Wynne’s application did not disclose any information regarding

Johnston’s assertions in the October, 2008 letter that Evans may have had claims against

Wynne arising out of her representation of Evans in executing the probate settlement.

In December of 2008, attorney Leslie Weatherhead of the firm Witherspoon, Kelley,

Davenport & Toole, P.S. (“Witherspoon Kelley”) entered an appearance on behalf of Evans

in the MA-10 lawsuit. In a January 2009 letter addressed to Evans and copied to Wynne,

Witherspoon Kelley agreed to represent Evans with respect to matters related to the MA-10

lawsuit, but explicitly excluded from the scope of its representation any possible claims

Evans may have had against Wynne. The letter specifically referenced Johnston’s repeated

suggestions that Evans may have had claims against Wynne and/or Gargan.

In October of 2009, Wapato Heritage and Evans’ nephews filed a motion to disqualify

Wynne as counsel for Evans in the MA-10 lawsuit, asserting that she had irreconcilable

conflicts of interest with Evans and had committed unethical acts. The court granted the

motion to disqualify Wynne in part.

Wynne subsequently submitted a Solo Renewal Application to Plaintiff for renewal

of her professional liability insurance in December of 2009. In her application and

supplementary information, she stated that she had “received no notification of any potential

claims against me or the Firm for acts or failures to act in my professional capacity as an

attorney, during the year 2009 or in any prior year when I have practiced law.” (Doc. 21 ¶

39.) Two days later, Wynne submitted to Plaintiff two separate faxes containing additional

information, which finally revealed the potential that she may have been liable to Wapato

Heritage and Evans’ nephews due to her management of the Wells Fargo account, though

Wynne did not mention the assertions that she had engaged in unethical conduct, nor did she

disclose the Johnston letter or the Witherspoon Kelley letter. Plaintiff thereupon issued a

renewal of Wynne’s insurance policy, albeit with a revised quote, based on the information




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contained in her renewal application and the supplemental information she provided.

On February 19, 2010, the Blackstone Corporation, a wholly owned subsidiary of

Witherspoon Kelley, filed suit (“the Blackstone suit”) against Evans for attorneys’ fees and

costs incurred on her behalf in the MA-10 lawsuit. Evans responded by filing a third-party

complaint against attorney Weatherhead and the firm of Witherspoon Kelley. Weatherhead

and Witherspoon Kelley then filed a fourth-party complaint against Wynne and Gargan,

seeking contribution and/or apportionment based on Wynne’s representation of Evans in the

MA-10 lawsuit and Gargan’s provision of financial advice to Evans. Evans thereafter

amended her third-party complaint to add claims against Wynne and Gargan alleging

breaches of their duties to her in connection with both the MA-10 lawsuit and the

management of the MA-10 funds.

At the same time, Wapato Heritage served Wynne with a summons and copy of a

complaint in a separate suit (“the Wapato Heritage suit”). The Wapato Heritage suit asserted

claims for conversion, unjust enrichment, constructive trust, and legal malpractice based on

Wynne’s representation of Evans, and Gargan’s provision of financial advice to Evans.

Thus, the claims asserted against Defendants in both of the underlying suits (the Blackstone

suit and the Wapato Heritage suit) relate only to the disposition of Evans’ MA-10 income and

the exclusive control Wynne and Gargan exercised over those funds, and these suits sought

the return of such funds.

Plaintiff accepted Wynne’s tender of the defense of both lawsuits, subject to a

complete reservation of its rights to deny coverage and seek reimbursement of amounts paid

in defense of non-covered claims. Plaintiff also accepted the defense of Gargan in the

underlying suits subject to the same complete reservation of rights. Plaintiff eventually paid

$194,503.38 in attorneys’ fees and costs in defense of Wynne and Gargan against the

underlying suits, up until the point at which defense counsel in those actions withdrew from

their representation of Wynne and Gargan for failure to assist and cooperate in their defense.

II. The 2009-2010 Liability Insurance Policy

The 2009-2010 policy issued to Wynne by Plaintiff defines an “insured” in relevant




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part as a non-attorney “who is or was an employee of the Named Insured,” but “solely for

claims arising from actions within the scope of such person’s duties as an employee of the

Named Insured” “and arising from the provision of professional services by the Named

Insured.” (Doc. 21-5.) The policy agreement also provides as a condition precedent to

coverage that “at the effective date of this policy, no Insured knew or reasonably should have

known or foreseen that the act, error, omission or personal injury might be the basis of a

claim.” (Id.)

The policy further states that

The Company shall not have a duty to defend or to pay suchexpenses as to any claim not covered under this policy, and shallhave the right to seek reimbursement from any Insured, whoshall promptly provide such reimbursement, for any amountpaid by the Company in defending any such non covered claim,including any amount paid in defending a non-covered claimthat is asserted together with one or more covered claims.

(Id.)

III. Procedural Background

Plaintiff filed its Amended and Supplemental Complaint (“ASC”) in this action on

October 18, 2012. Plaintiff seeks reimbursement of the attorneys’ fees and costs paid to

defend Defendants in the underlying suits, and a judgment declaring that: (1) Gargan is not

an insured under the 2009-2010 policy with respect to the underlying suits; (2) the policy

does not afford coverage for the underlying suits; and (3) Plaintiff has no duty to defend or

indemnify Defendants with respect to the underlying suits. (Doc. 21.)

Plaintiff served Wynne with summons and a copy of the ASC on November 7, 2012,

and served Gargan on November 14, 2012. (Docs. 25, 26.) Neither Wynne nor Gargan filed

any answer or response to the ASC, and the Clerk entered default against Defendants on

December 13, 2012. (Doc. 28.) To date, Defendants have filed no appearance in this Court.

STANDARDS OF REVIEW

I. Default Judgment

Federal Rule of Civil Procedure 55(a) provides that “[w]hen a party against whom a

judgment for affirmative relief is sought has failed to plead or otherwise defend as provided




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by these rules . . . the clerk shall enter the party’s default.” After a default has been entered

and the defendant fails to appear or move to set aside the default, the court may, on the

plaintiff’s motion, enter a default judgment. Fed. R. Civ. P. 55(b)(2).

Granting default judgment is within the court’s discretion. See Aldabe v. Aldabe, 616

F.2d 1089, 1092 (9th Cir. 1980) (considering lack of merit in plaintiff’s substantive claims,

the court did not abuse its discretion in declining to enter a default judgment). When

deciding whether to grant default judgment, the court considers the following factors: (1) the

possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claim; (3)

the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the

possibility of a dispute concerning material facts; (6) whether the default was due to

excusable neglect; and, (7) the strong policy underlying the Federal Rules of Civil Procedure

favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

Having considered Plaintiff’s motion for entry of default judgment, the Court finds

that default judgment is appropriate under the Eitel factors, as set forth below.

A. The First, Fourth, Fifth, Sixth, and Seventh Eitel Factors

The first, sixth, and seventh Eitel factors weigh in favor of default judgment in this

case. The first factor considers whether Plaintiff will suffer prejudice if default judgment is

not entered. Pepsico, Inc. v. Cal. Sec. Cans., 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002).

Defendants have failed to appear or otherwise defend this action. In the absence of a default

judgment, Plaintiff “would be without other recourse for recovery,” to which it is entitled.

See Philip Morris, 219 F.R.D. at 499.

The sixth factor considers whether the default was due to excusable neglect. There

is no evidence that Defendants’ failure to appear or otherwise defend was the result of

excusable neglect. Rather, the record reflects that Defendants failed to appear after being

served by mail and by personal service with the ASC. Thus, the sixth Eitel factor weighs in

favor of default judgment.

Under the seventh factor, the Court must also consider the policy considerations that,

whenever possible, cases should be tried on the merits. Eitel, 782 F.2d at 1472. The




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existence of Rule 55(b), however, indicates that the preference for resolving cases on the

merits is not absolute. PepsiCo, Inc., 238 F. Supp. 2d. at 1177. Because Defendants have

not appeared or responded in this action, deciding this case on the merits is “impractical,”

if not impossible. Id. Thus, the seventh factor weighs in favor of default judgment.

The fourth and fifth Eitel factors are neutral in this case. The fourth factor balances

the amount of money at stake in relation to the seriousness of the defendant’s conduct. Eitel,

782 F.2d at 1471-72. Here, Plaintiff seeks compensatory damages of $194,503.38,

representing the amount paid by Plaintiff in attorneys’ fees and costs in defense of Wynne

and Gargan against the underlying suits. Although these are sizeable amounts, considering

the seriousness of the allegations and the need to deter such behavior in the future, the

amount at stake is not necessarily excessive. Thus, the fourth factor is neutral.

The fifth factor considers the possibility that material facts may be in dispute. Eitel,

782 F.2d at 1471-72. Because Defendants have failed to respond in this action, and thus

have not asserted that there are material facts in dispute, the Court cannot adequately weigh

this factor. Thus, this factor is neutral.

B. The Second and Third Eitel Factors

The second and third Eitel factors consider the merits of the plaintiff’s claims and the

sufficiency of the complaint. As set forth below, after considering Plaintiff’s claims for

declaratory judgment and compensatory damages, the Court finds that these factors also

support default judgment in this case.

1. Plaintiff’s claim for declaratory judgment of non-coverage.

Plaintiff seeks a declaration from the Court that the underlying suits are outside the

coverage afforded by the 2009-2010 policy. (Doc. 29 at 9.) Plaintiff argues that coverage

is precluded because Defendants knew or reasonably should have known that their conduct

might be the basis of a claim, but did not give Plaintiff notice prior to the effective date of

the policy. (Id. at 10.) Plaintiff argues also that coverage is precluded because: the

underlying suits did not seek “damages” as required by the policy; Defendants triggered the

conversion/misappropriation exclusion of the policy; and Defendants triggered the “return




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of fees or other funds” exclusion of the policy. (Id. at 10-13.)

The Court finds that Plaintiff’s complaint sufficiently pleads the claim for a

declaration of non-coverage, and that the claim is meritorious. Plaintiff alleges that at the

time Wynne applied for her 2008-2009 liability insurance policy, she had knowledge of

potential claims against her regarding her misuse of the MA-10 funds. Rather than disclosing

the fact of these potential claims, Wynne withheld that information from Plaintiff. By failing

to report this information at the time of her application, Wynne thus clearly violated the

policy agreement’s provision making it a condition precedent to coverage that “at the

effective date of this policy, no Insured knew or reasonably should have known or foreseen

that the act, error, omission or personal injury might be the basis of a claim.” (Doc. 21-5.)

Wynne subsequently submitted a Solo Renewal Application to Plaintiff for renewal

of her professional liability insurance in December of 2009. At that time, Wynne again failed

to provide information on the potential claims against her – despite the fact that she knew

even more certainly of the possibility she would be sued, as evidenced by the superior court’s

October 2009 grant of the nephews’ motion to disqualify Wynne from representing Evans

in the MA-10 lawsuit due to her conflict of interest and the alleged unethical management

of Evans’ MA-10 funds. Instead of giving Plaintiff this information at the time of her

renewal application, she stated in her application that she had “received no notification of

any potential claims against me or the Firm for acts or failures to act in my professional

capacity as an attorney, during the year 2009 or in any prior year when I have practiced law.”

(Doc. 21 ¶ 39.)

Even when Wynne supplemented her application two days later, finally providing

information concerning the potential for these claims against her, she informed Plaintiff only

that she might be liable to Wapato Heritage and the nephews because she “assigned, in

writing, a Law Firm bank account to [Evans], but did not change the name on the account,

in or about June of 2005.” (Doc. 29 at 4.) She did not mention the assertions that she had

engaged in unethical conduct, nor did she disclose the Johnston letter or the Witherspoon




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Kelley letter.

Through this concealment, Wynne clearly violated the terms of the insurance

agreement. The Court therefore finds that Defendants’ conduct and knowledge prior to

November 21, 2009 (the start-date of the policy) preclude coverage for the underlying suits.

Accordingly, Plaintiff was and is under no obligation to defend Defendants in the underlying

suits nor indemnify Defendants for liability in the underlying suits. Because the Court finds

that the underlying suits were excluded from coverage under the policy on this basis, the

Court needs not address Plaintiff’s additional alternative arguments in support of this

conclusion.

2. Plaintiff’s claim for declaratory judgment of non-insured status ofDefendant Gargan.

The 2009-2010 policy defines “Insured” in relevant part as “[t]he Named Insured

listed in Item 1 of the Declarations,” which is Wynne Law Firm, and “[a] non-attorney who

is or was an employee of the Named Insured . . . , solely for claims arising from actions

within the scope of such person’s duties as an employee of the Named Insured.” (Doc. 21-5.)

Plaintiff argues that Gargan is not an insured under the policy. The underlying suits

allege counts against Gargan for conversion and unjust enrichment based on his handling of

the Wapato Heritage Funds. (Doc. 21-2 at 5-9; Doc. 21-4.) As such, Plaintiff argues, the

underlying suits asserted claims against Gargan based on his provision of services to Evans

as a financial advisor and as her attorney-in-fact. Therefore, Plaintiff argues, the claims

against Gargan were based upon actions not within the scope of his duties as an employee

of Wynne Law Firm, and Gargan is thus not an “Insured” under the policy language.

The Court finds Plaintiff’s argument on this point only cursory, and thus insufficient

for the Court to conclude that all claims in the underlying suits against Gargan were for

actions not within the scope of his employment with Wynne Law Firm. However, the Court

finds that a declaration of Gargan’s status as a non-insured under the policy is unnecessary

and redundant in light of the Court’s finding that the policy provides no coverage for the

underlying suits due to Defendants’ actions, as discussed above.




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3. Plaintiff’s claim for compensatory damages.

Plaintiff asks the Court to award it $194,503.58 in compensatory damages, as

reimbursement of amounts paid by Plaintiff to defend Wynne and Gargan in the underlying

suits. (Doc. 29 at 17.) The policy provides that Plaintiff has the right to seek reimbursement

for any amounts paid defending a non-covered suit. (Doc. 21-5.) As discussed above, the

underlying suits were not covered by the policy due to Wynne’s concealment of material

facts relating to the potential suits against her, and therefore Plaintiff had no duty to defend

Wynne or Gargan in the underlying suits. The amount spent by Plaintiff in defending Wynne

and Gargan is supported by the affidavit of John Ries, Plaintiff’s Claims Attorney.

Accordingly, the Court finds that Plaintiff’s claim for this amount in compensatory damages

is sufficiently pled and supported by evidence in the records.

CONCLUSION

Accordingly, for the foregoing reasons,

IT IS HEREBY ORDERED granting the Motion for Default Judgment. (Doc. 29.)

Judgment is hereby entered in favor of Plaintiff Attorneys Liability Protection Society, Inc.,

against Defendant Mary Wynne, individually and d/b/a Wynne Law Firm, and Defendant

Daniel Gargan.

IT IS FURTHER ORDERED declaring and adjudging that:

(1) The Lawyers Professional Liability Insurance Policy No. ALPS13543-1 issued

by Plaintiff to Wynne Law Firm for the policy period November 21, 2009 to

November 21, 2010 does not afford coverage for the underlying suits; and

(2) Plaintiff has no duty to defend or indemnify Wynne or Gargan in the

underlying suits.

IT IS FURTHER ORDERED entering judgment in favor of Plaintiff against

Defendants Wynne and Gargan in the amount of $194,503.58, representing compensatory

damages for amounts paid by Plaintiff in defense of Defendants in the Underlying Suits.

IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action.

DATED this 29th day of August, 2013.




Documents

Case No. 2:09-cv-0018-JLQ DATED JUNE 27, 2018 (ECF NO. 353) · 6. Attached as Exhibit D is a true and correct copy excerpt from the DV Manual for Judges 2015, published by the Washington