Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DENISE V. ENGSTROM, a married               )
person,                                     )       No. 66557-0-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
              v.                            )
                                            )
REBECCA HARSTEN GOODMAN,                    )
N.R. GOODMAN, N. REBECCA                    )       PUBLISHED OPINION 
GOODMAN, NANCY REBECCA                      )
GOODMAN, NANCY R. GOODMAN,                  )       FILED:  March 5, 2012
R. N. GOODMAN, REBECCA N.                   )
GOODMAN, REBECCA H. GOODMAN, )
REBECCA CONRAD-GOODMAN,                     )
REBECCA CONRAD, REBECCA                     )
HJORTSHOJ-GOODMAN,                          )
                                            )
                      Appellant,            )
                                            )
              and                           )
                                            )
JOHN DOE GOODMAN, individually              )
and as wife and husband, and their          )
marital community composed thereof,         )
                                            )
                      Defendant.            )
________________________________)

       Becker, J.  --  Denise Engstrom, plaintiff in this personal injury suit, 

prevailed at mandatory arbitration.  The attorney for defendant Rebecca 
Hardesten1 signed and submitted a request for a trial de novo.  Counsel for 

       1 While the case caption refers to Rebecca Harsten Goodman, we follow the  

No. 66557-0-I/2

Engstrom moved to strike the request on the ground that Hardesten had not 

authorized it.  The trial court denied the motion and sanctioned counsel for 

Engstrom for communicating directly with Hardesten, a represented party, in 

order to obtain declarations supporting the motion.  We affirm these rulings.  

Hardesten is entitled to proceed to trial de novo.

                                        FACTS

       The arbitrator found Hardesten liable for damages incurred by Engstrom 

in a car accident.  Hardesten's attorney filed a timely request for trial de novo on 

October 25, 2010.

       On November 3, 2010, Hardesten personally sent an e-mail to Engstrom's 

attorney, John Williams, in which she said she did not agree to a new trial and

she did not wish to be represented by her attorney.  

       Engstrom served requests for admission asking whether Hardesten had 

authorized or consented to the request for trial de novo. Hardesten's attorney 

objected on the basis of attorney-client privilege and did not provide answers.

       Under MAR 7.1(a), a request for trial de novo after an award in mandatory 

arbitration must be filed by an "aggrieved party." Engstrom took the position that 

the request for trial de novo, filed by Hardesten's attorney and not signed by 

Hardesten herself, was a nullity unless Hardesten herself authorized or 

consented to the filing.  Engstrom's attorney, Williams, prepared a declaration 

for Hardesten stating that she did not authorize or consent to the filing.  

convention of the parties, which is to refer to appellant as Rebecca Hardesten.  
                                           2 

No. 66557-0-I/3

Hardesten signed the declaration.  Willliams signed his own declaration.  Armed 

with these declarations, Engstrom moved to strike Hardesten's request for trial 

de novo.  

       Hardesten's attorney withdrew.  Represented by new counsel, Hardesten

moved to strike the declarations of Williams and Hardesten as improperly 

obtained in violation of the rules of professional conduct. Hardesten also moved 

for sanctions against Williams. After a hearing on December 17, 2010, the trial 

court granted Hardesten's motions and denied Engstrom's motion to strike the 

trial de novo.  

       Williams withdrew a few days later. Engstrom, through her new attorney, 
brings the trial court rulings before us on discretionary review.2

                        ORDER STRIKING DECLARATIONS

       2 The record contains materials submitted to the trial court after the trial 
court made the rulings that are before us on discretionary review.  Hardesten 
has moved to strike these materials from the appellate record.  She relies on the 
rule that in reviewing an order granting or denying a motion for summary 
judgment, this court will consider only evidence and issues called to the attention 
of the trial court.  RAP 9.12.  But this is not summary judgment.  And in any 
event, a motion to strike is typically not necessary to point out evidence and 
issues a litigant believes this court should not consider.   No one at the Court of 
Appeals goes through the record or the briefs with a stamp or scissors to prevent 
the judges who are hearing the case from seeing material deemed irrelevant or 
prejudicial.  So long as there is an opportunity (as there was here) to include 
argument in the party's brief, the brief is the appropriate vehicle for pointing out 
allegedly extraneous materials -- not a separate motion to strike.  See Cameron 
v. Murray, 151 Wn. App. 646, 658, 214 P.3d 150 (2009), review denied, 168 
Wn.2d 1018 (2010).  
       The rules of appellate procedure allow a party to designate "those clerk's 
papers and exhibits the party wants the trial clerk to transmit to the appellate 
court."  RAP 9.6(a).  Engstrom's designation of the record was within this rule.  
We deny the motion to strike. 

                                           3 

No. 66557-0-I/4

       Engstrom presented the declarations of Hardesten and Williams to the 

trial court to prove that the request for trial de novo was filed without Hardesten's 

consent.  The trial court struck the declarations, finding that they contained 

information Williams obtained in violation of the rule against communicating with 
a represented party when her attorney was not present.3  Engstrom contends the 

declarations should not have been stricken as they provided key admissible 

evidence that Hardesten did not want a trial de novo.  We review a trial court's 

ruling on a motion to strike for an abuse of discretion.  King County Fire Prot. 

Dist. No. 16 v. Hous. Auth. of King County, 123 Wn.2d 819, 826, 872 P.2d 516 

(1994).  Likewise, we review a trial court's decision to admit or exclude evidence 

for abuse of discretion.  City of Kennewick v. Day, 142 Wn.2d 1, 5, 11 P.3d 304 

(2000). 

       The Hardesten and Williams declarations are not in the appellate record.  

Instead, the record contains two pages, mostly blank, one for each declaration, 

each marked with the title of the document ("Declaration of John M. Williams" 

and "Declaration of Rebecca Hardesten"). Each page is labeled "Snohomish 
County Clerk's Office:  Documents Removed."4  

       How these documents came to be "removed" is a topic in itself.  Counsel

for Hardesten drafted the order striking the declarations with a finding that the 
declarations should be "removed from the court file by the clerk."5 The final 

order, however, shows the quoted phrase lined out.  Instead, the sentence (with 

       3 Clerk's Papers at 38-40 (order entered December 17, 2010).  
       4 Clerk's Papers at 112, 113.  
       5 Clerk's Papers at 39.

                                           4 

No. 66557-0-I/5

a handwritten interlineation) reads, "The declarations shall therefore be stricken 
from consideration in the motion to strike trial de novo."6  The transcript of the 

hearing on December 17, 2010, confirms that the change was the result of a 

deliberate decision by the court.  Hardesten's counsel asked the trial court to 

"expunge" the declarations from the court file to prevent the possibility that the 

judge who would eventually preside over the trial de novo would see them and 

be prejudiced against Hardesten.  Counsel claimed she had been able to get a 

court in a different county to "expunge" prejudicial documents.  The court refused 

this request:  "It can't be expunged.  Even when I say strike that, she writes 
down 'strike that' and she leaves what information is there."7  

       Although the finding that directed removal of the documents was deleted, 

the order as drafted by counsel for Hardesten contained similar language on the 

next page granting the motion "with the instruction to the court clerk to remove 
these declarations from the court file."8 It appears that the judge overlooked this 

second reference to removal, with the result that the court clerk acted upon it

and removed the declarations.  This was clearly not the trial court's intention.  

Counsel should have alerted the court to the discrepancy to ensure that all parts 

of the order were consistent and reflected the court's ruling.  

       As shown by the transcript of the oral ruling, the trial court correctly 

understood that granting a motion to "strike" does not have the effect of 

physically altering the documents or removing them from the file.  See GR 

       6 Clerk's Papers at 39.  
       7 Report of Proceedings at 14-15.  
       8 Clerk's Papers at 40.  

                                           5 

No. 66557-0-I/6

15(b)(7):  "A motion or order to strike is not a motion or order to seal or destroy."  

Court records can be sealed in some circumstances using the procedures in GR 

15.  But they cannot be destroyed unless destruction is expressly permitted by 

statute.  GR 15(h).  The rules make no provision for having documents 

"removed."  By "striking" the declarations, the court merely declared them 

inadmissible as evidence, with the effect that they would not be considered in 

support of Engstrom's motion to strike the request for trial de novo.  For future 

reference, counsel and court personnel who were involved in removing the 

declarations from the record are advised to consult the rules and case law 

concerning court records.  

       One reason for maintaining the integrity of court records is that having the 

underlying documents in the record is essential to appellate review of a trial 

court ruling.  Appellate review is not hampered in this case, however, because

the record elsewhere includes sufficient documentation of how Williams 

obtained Hardesten's declaration and what it said.  Engstrom's "Motion to Strike 

De Novo Appeal" acknowledges as an "undisputed" fact that Hardesten 

contacted Williams to advise him that she "was seeking independent counsel."  
The motion quotes the contents of the Hardesten declaration.9  

       The record also includes a later declaration by Williams stating that he 
received an "unsolicited electronic mail" from Hardesten on November 3, 2010.1  

Attached to this declaration is a copy of the e-mail, in which Hardesten invited 

       9 Clerk's Papers at 102-04.  
       1 Clerk's Papers at 26 (declaration signed by Williams on January 18, 2011, 
after he withdrew from the case).
                                           6 

No. 66557-0-I/7

Williams to contact her:  

       John,

       I do not agree to a new trial.

       I am not happy with these events, with my lawyers, or with Unitrin 
       [Hardesten's insurance company] pursuing this further.  I can not 
       imagine how Ms. Engstrom would want more than the existing 
       settlement, and although I do not agree with it, I would rather leave 
       it as is, than open this case back up.  

       I am consulting with third party attorneys, but feel free to contact 
       me further as I do not wish to be represented by Mr. Welchman.[11]  

After receiving this e-mail, Williams obtained from Hardesten her signed 

declaration stating that she did not authorize her attorney to request a trial de 

novo:

       1.  I am the named Defendant in the above-captioned case.  My 
           current name is Rebecca Hardesten.

       2.  It is my understanding that this case was arbitrated on October 
           5, 2010 and an award was entered for the Plaintiff Denise 
           Engstrom.

       3.  It is now my understanding that my attorney at that time, Philip 
           Welchman, appealed the arbitration award by filing a Request 
           for a Trial De Novo.

       4.  I did not authorize Mr. Welchman to appeal the arbitration 
           award by filing the Request for a Trial De Novo, nor did I 
           consent to it in any manner. 

       5.  It is my belief that my insurance company, Unitrin, told Mr. 
           Welchman to appeal the arbitration award.

       6.  I was under the impression that I was Mr. Welchman's client, 
           however, it appears that he was really representing Unitrin 
           Insurance.

       11 Clerk's Papers at 27 (attachment to Williams' declaration signed on January 
18, 2011).  
                                           7 

No. 66557-0-I/8

       7.  I am currently seeking independent counsel, but have not 
           retained an attorney to date.[12]

These documents show that plaintiff's attorney Williams communicated directly 

with defendant Hardesten.  

       Williams contends it was error to strike the declarations because the 

matters communicated were not protected by the attorney-client privilege.  This 

argument is misplaced.  The motion and order to strike the declarations were 

based on ex parte communications with a represented party, not the attorney-

client privilege.  

       The rules of professional conduct prohibit attorneys from communicating 

with a represented party:

       In representing a client, a lawyer shall not communicate about the 
       subject of the representation with a person the lawyer knows to be 
       represented by another lawyer in the matter, unless the lawyer has 
       the consent of the other lawyer or is authorized to do so by law or a 
       court order.

RPC 4.2.  The purpose of RPC 4.2 is to prevent situations in which a 

represented party is taken advantage of by adverse counsel.  In re Disciplinary 

Proceeding Against Carmick, 146 Wn.2d 582, 597, 48 P.3d 311 (2002).  

       Engstrom contends there was no violation of the rule because it was 

Hardesten who initiated the communication with Williams by sending him the e-

mail message.  

       The fact that Hardesten first approached Williams is irrelevant.  As the 

official comments make clear, the rule applies "even though the represented 

       12 Clerk's Papers at 103.  

                                           8 

No. 66557-0-I/9

person initiates or consents to the communication;" in such a case, the lawyer 

"must immediately terminate communication" with the represented person. RPC 

4.2, cmt. 3.  Williams did not immediately terminate communication with 

Hardesten.  Instead, he obtained from her a signed declaration repeating the 

substance of her email message.

       Engstrom further argues that Williams should be excused for soliciting 

Hardesten's declaration because her e-mail message gave him a reasonable 
basis to believe she was unrepresented.13  Engstrom is mistaken.  The question 

is whether there is a reasonable basis for an attorney to believe a party may be 

represented.  If so, the attorney's duty is to determine whether the party is in fact 

represented.  Carmick, 146 Wn.2d at 598.  Williams did not fulfill this duty.       As 

Hardesten's attorney had not withdrawn, Williams had a reasonable basis for 

believing Hardesten was still represented, despite her statement that she did not 

"wish to be represented" by that attorney.  By taking the matter into his own 

hands, Williams took advantage of Hardesten.  

       Williams could have simply forwarded the e-mail to Hardesten's attorney.  

Alternatively, he could have submitted it to the court under RCW 2.44.030.  

       The court, or a judge, may, on motion of either party, and on 
       showing reasonable grounds therefor, require the attorney for the 
       adverse party, or for any one of several adverse parties, to 
       produce or prove the authority under which he or she appears, and 
       until he or she does so, may stay all proceedings by him or her on 
       behalf of the party for whom he or she assumes to appear.

       13 In support of this argument, Engstrom cites In re Users Sys. Servs., Inc., 22 
S.W.3d 331, 42 Tex. Sup. Ct. J. 836 (1999).  The case does not constitute persuasive 
authority because it is factually and procedurally distinguishable.  
                                           9 

No. 66557-0-I/10

RCW 2.44.030.  We do not hold that Hardesten's e-mail amounted to 

reasonable grounds for a court inquiry into the authority of Hardesten's counsel 

under RCW 2.44.030, but if Williams believed it did, his professional recourse 

was to address the court under this statute, not to communicate directly with 

Hardesten.  

       Engstrom has not argued that striking the declarations was an improper 

remedy for the violation of RPC 4.2; her position is that no violation occurred.  

We conclude the trial court correctly determined there was a violation.  The court 

did not abuse its discretion by striking the declarations.

            ORDER DENYING MOTION TO STRIKE TRIAL DE NOVO

       The trial court denied Engstrom's motion to strike Hardesten's request for 

a trial de novo.  Engstrom contends the motion should have been granted 

because the request was filed without the consent of Hardesten, the aggrieved 

party.  

       MAR 7.1(a) allows a request for trial de novo to be filed by an "aggrieved 

party":

       Within 20 days after the arbitration award is filed with the clerk, any 
       aggrieved party not having waived the right to appeal may serve 
       and file with the clerk a written request for a trial de novo in the 
       superior court along with proof that a copy has been served upon 
       all other parties appearing in the case.[14]

See also RCW 7.06.050.  

       14 We note that MAR 7.1 was amended on September 1, 2011.  Former MAR 
7.1 (2001) applies here.  

                                           10 

No. 66557-0-I/11

       With the Hardesten and Williams declarations having been properly 

excluded, Engstrom had no factual evidence to support her claim that Hardesten 

did not consent to the request for trial de novo.  As well, the claim was without 

legal support.

       Once a party has designated an attorney to represent the party in regard 

to a particular matter, the court and the other parties to an action are entitled to 

rely upon that authority until the client's decision to terminate it has been brought 

to their attention.  Haller v. Wallis, 89 Wn.2d 539, 547, 573 P.2d 1302 (1978).  

Absent fraud, the actions of an attorney authorized to appear for a client are 

generally binding on the client.  Haller, 89 Wn.2d at 545-47; Rivers v. Wash. 

State Conference of Mason Contractors, 145 Wn.2d 674, 679, 41 P.3d 1175

(2002).  The requirement for filing by an aggrieved party is satisfied when an 

attorney files a request for trial de novo on behalf of an aggrieved client.  Russell 

v. Maas, No. 65523-0-I (Wash. Ct. App. March 5, 2012).  

       The filing of the request for trial de novo by Hardesten's attorney was 

binding on Hardesten.  Following Russell, we affirm the order denying 

Engstrom's motion to strike the trial de novo.

                        SANCTIONS AGAINST ATTORNEY

       The court sanctioned Williams $3,000 under CR 11 for bringing a 

frivolous motion and for submitting declarations secured in violation of the 

prohibition of communicating with a represented party.  Engstrom assigns error 

to the sanction.

                                           11 

No. 66557-0-I/12

       A pleading, motion, or legal memorandum may be subject to CR 11 

sanctions against an attorney if it is both (1) baseless and (2) signed without 

reasonable inquiry.  Hicks v. Edwards, 75 Wn. App. 156, 163, 876 P.2d 953 

(1994), review denied, 125 Wn.2d 1015 (1995).  A filing is "baseless" if not well 

grounded in fact, or not warranted by existing law or a good faith argument for 

the alteration of existing law.  Hicks, 75 Wn. App. at 163. The imposition of 

sanctions is reviewed for abuse of discretion.  Wash. State Physicians Ins. Exch. 

& Ass'n, 122 Wn.2d at 338.  

       "Only an aggrieved party may seek review by the appellate court."  RAP 

3.1.  An attorney sanctioned by a court may appeal the sanctions on his own 

behalf, but his client is not aggrieved by the sanctions and may not appeal them.  

Breda v. B.P.O. Elks Lake City 1800 So-620, 120 Wn. App. 351, 353, 90 P.3d 

1079 (2004).  Because Williams has not separately appealed, the issue is not 

properly before us.  Even if it were, we would find no abuse of discretion.  Before 

our decision in Russell, it was not unwarranted to argue that the law requires an 

attorney to obtain the client's express authority to request a trial de novo under 

MAR 7.1(a).  But as discussed above, the motion Williams filed was not well 

grounded in fact.  He had no admissible evidence that the request was 

unauthorized by Hardesten.

                          ATTORNEY FEES ON APPEAL

       Hardesten requests attorney fees on appeal under CR 11.  She argues 

that Engstrom has perpetuated the violation of RPC 4.2 by relying on the e-mail 

                                           12 

No. 66557-0-I/13

Hardesten sent to Williams and that by seeking relief in this court, Engstrom has 

delayed resolution of the underlying case.  We find no basis for imposing 

sanctions on appeal.  The request is denied.

       Affirmed.

WE CONCUR:

                                           13