Court opens lawyer's case file, kept secret 8 years

Eight years ago, Bradley Marshall, a prominent civil-rights attorney in Seattle, was being sued for sexual harassment by a former employee. Marshall and the woman cut a deal. He handed over a check, and she, in turn, agreed to let the entire file be sealed.

Lawyers call this a quid pro quo: one thing in return for another. Marshall purchased secrecy — with the secret tucked away in a file in King County Superior Court, locked behind a computer password.

As part of a larger campaign to open court files, The Seattle Times asked two weeks ago for the lawsuit to be unsealed. But Marshall's attorney objected. She characterized the file's concealment, in part, as a property right — one that Marshall bargained and paid for, and which could not be taken away without just compensation.

The Washington Constitution says, "Justice in all cases shall be administered openly." So the attorney's objection presented this question: Can parties negotiate away the public's right to open courts?

The answer came down this week: No.

Michael Trickey, the court's presiding judge, ordered the file opened — every document in it, with nothing blacked out. His order, signed Wednesday, said the public's "compelling interest" in open court records trumps the parties' agreement to have the file sealed.

His is the first ruling responding to a set of unsealing motions filed by The Times. The newspaper has filed 22, and plans to file many more.

At least 420 civil suits have been sealed in their entirety in King County Superior Court since 1990, The Times has found. Most were sealed improperly, with judges failing to meet standards for secrecy established by the state Supreme Court.

In at least 58 of these cases, a lawyer or law firm is a party, usually as a defendant. These lawyers have been accused of everything from legal malpractice to domestic violence to harassing, or discriminating against, employees.

Although unsealed, the Marshall file is not yet available to the public. The judge's order has to work its way through the clerk's office, a process that can take several days.

The Times pursued Marshall's file because of his troubled history with the Washington State Bar Association, which polices the legal profession.

The bar has accused Marshall repeatedly of dishonesty and of failing to own up to misconduct. Last year, a disciplinary board voted for disbarment. Its recommendation is now before the state Supreme Court, which has received letters from Marshall's supporters touting his high moral standards.

Stellar résumé, hidden allegations

Bradley Marshall's résumé shines. Civil-rights lawyer. Adjunct professor. Sports agent.

He represented the families of Robert Thomas Sr. and Harold McCord Jr., both killed by police. He has taught at Seattle Pacific University (business law and ethics) and at the University of Washington (sports-management law). He has represented such athletes as basketball players Clifford Robinson and James Edwards.

A few years ago, Marshall commissioned a mural for his law office, memorializing his career. End to end, the panels run 80 feet.

But disciplinary records and lawsuits — some sealed, some not — do not flatter Marshall. They allege dishonesty, malpractice, domestic violence, harassment.

The lawsuit accusing Marshall of sexual harassment was filed in 1995. The plaintiff used to work for Marshall as a paralegal, said Charles Kimbrough, one of her lawyers in the case.

The two sides eventually settled and signed a sealing agreement with these terms: Marshall would deliver a certified settlement check. The parties would wait to make sure the check was good. Then, Marshall would present their sealing request to a judge, saying secrecy was required to protect the parties' "privacy and dignity."

In January 1998, Judge Trickey sealed the file.

The woman who sued Marshall couldn't be reached for comment. The Times is not naming the woman because the newspaper has not been able to reach her and because details of the alleged sexual harassment have not been made public. The Times sometimes does not name victims in sexual-harassment cases, depending on the circumstances.

Kimbrough said he believes the woman "did not care one way or another" whether the file was sealed and went along only because Marshall insisted, according to a court document filed this week. Asked why the check had to clear first, Kimbrough said: "All we wanted was to get the young lady a reasonable amount and get her away from him and back on her feet. I wasn't sure he could pay it, frankly."

Marshall referred a request for comment to Phil Talmadge, a former state Supreme Court justice defending him against disciplinary charges. Talmadge initially said he didn't know if he could talk about the case because it was sealed. He couldn't be reached Thursday, after the file was opened.

When Marshall got the lawsuit sealed, he was under investigation by the bar. In July 1998, the bar reprimanded him, finding he had instructed his staff to "emulate" signatures of other people on legal documents — which Marshall then filed with the court, knowing the signatures to be false. The written reprimand told Marshall his law license was based upon his being "of good moral character" and scolded him for refusing to accept personal responsibility for his misconduct.

Five years later, Marshall found himself in a similar situation.

In 2003, the bar was investigating allegations that Marshall had shared a client's fee with a nonlawyer — paid a finder's fee, essentially — and then had the fee's recipient submit a false hourly bill to conceal the arrangement. He now faces possible disbarment on these grounds.

Marshall has denied the allegations, and Talmadge has written in bar records: "It would be a disservice to remove this capable attorney from representing people in our state."

The same year, Marshall was sued. A woman accused him of domestic violence in Pierce County Superior Court. But the two sides asked that the matter be dismissed and the file sealed. A court commissioner went along, making this sealed file No. 2 for Marshall.

In seeking to unseal the harassment lawsuit, The Times argued that Trickey failed to explain the need for secrecy and didn't weigh the public interest in open courts.

But another of Marshall's attorneys, Christine Foster, filed a brief last week opposing the newspaper's motion. She argued that the unsealing request came too late; opening the file would violate the parties' right to privacy; litigants have a right to finality; and the newspaper was interfering with the "sanctity of contract" — that is, the parties' agreement to have the file sealed as a condition of settlement.

She also said opening the file would deprive Marshall of property without due process, claiming, in effect: Marshall made sealing part of the bargain. He now owns a right to secrecy.

The Seattle Times countered by saying court files do not belong to the parties. They belong to the public.

The newspaper is being represented by Davis Wright Tremaine, a law firm with expertise in open-records laws.

Trickey's order opening the file said he had initially closed it to "facilitate settlement." But in light of recent Supreme Court rulings, he wrote: "Sealing the entire file is much too broad."

Warning signs placed under seal

When judges grant secrecy to fellow lawyers, they keep information away from the state bar and from people looking to hire an attorney.

For example, a malpractice lawsuit against a lawyer and law firm resulted five years ago in a judgment of nearly $4 million — a figure gleaned from other records. But because the file is sealed, the allegations remain secret.

"These are things the bar would want to know about," said the bar's spokeswoman, Judy Berrett. "But if the file is sealed, then we don't have any way of knowing."

In 1993, Nicki Garcia sued Dan Danilov, a prominent immigration attorney who had fired her as office manager. Garcia told The Times that her lawsuit — alleging wrongful termination — could have warned the public that Danilov ran his office poorly and lacked regard for some clients.

That file was sealed in 1996. The bar subsequently accused Danilov of bungling one case after another — with one client even being deported as a result. The state suspended Danilov's license in 2002, and he is currently listed as "disability inactive."

Kent attorney Adina Atwood was sued in 2000, only to have the file sealed the same year. Records provide no clue what the lawsuit is about. The state disbarred Atwood in 2004, finding she had abandoned her practice without letting her clients know. She even kept money owed to some clients, the bar found.

In 1997, a malpractice lawsuit against lawyer S. Don Phelps was sealed. He was later convicted of child molestation and disbarred. Besides having a criminal record, Phelps engaged in such misconduct as having sexual contact with a client, the bar found.

In some cases, it's unclear why the parties even bothered with secrecy.

In 1993, lawyer David Krull sued a former employer, also a lawyer, seeking about $1,500 in unpaid wages. The file was sealed in 1994. Krull said recently that he didn't remember the file being sealed and doesn't know why it was. "Overanxious sealing," he called it, saying: "This goes in your category of shouldn't have been sealed in the first place."

In some cases, lawyers have requested secrecy based, in part, upon their profession or position.

In 2001, Richard Bathum got a lawsuit sealed accusing him of malpractice. His attorney wrote that Bathum was now a sitting judge in King County District Court, and believed certain allegations in the lawsuit "would cast him in a false light." A judge recently opened this file, without requiring a motion to unseal.

Two years ago, Seattle lawyer Mary Ruth Mann asked to have a file sealed in which she was suing someone else. Saying other lawyers might use the file's contents against her, she framed her request this way: "Should the court seal the file and enter a protective order to protect the personal and financial privacy of an active and visible member of the local bar and her clients?"

Judge Mary Yu's answer: No. She refused to seal the file.

Ken Armstrong: 206-464-3730 or karmstrong@seattletimes.com; Cheryl Phillips: 206-464-2411 or cphillips@seattletimes.com; Justin Mayo: 206-464-3669 or jmayo@seattletimes.com.