The Bushes Of Lake Whatcom

The Washington State Supreme Court suspended an attorney for 18 months in a unanimous  opinion authored by Justice Wiggins

Attorney David C. Cottingham embarked on a five-year boundary line dispute against his neighbor. His pursuit involved two lawsuits, four judicial appeals, two administrative appeals, countless motions, years of delay, unnecessary and wasteful expenditure of judicial resources, injury to his neighbors, and nearly $60,000 in sanctions for OR 11 violations. As a result, the Office of Disciplinary Counsel (GDC) charged Cottingham with violating the Rules of Professional Conduct (RPC). At the conclusion of the proceedings, the Washington State Bar Association (WSBA) Disciplinary Board (Board) recommended that Cottingham be suspended for 18 months. Cottingham appealed. We affirm the Board and suspend Cottingham for 18 months.

Locus in quo

David Cottingham has practiced law since he was admitted to the bar in 1979 and has had no record of prior discipline. Cottingham and his wife own two lots on Lake Whatcom, where they have lived since 1989. In 2006, Ronald J. and Kaye L. Morgan purchased a lot that shared a property boundary with the Cottinghams’ land. When the Morgans purchased the lot, laurel bushes were growing near the boundary line, planted there by Cottingham before 1995. In 2007, the Morgans removed eight laurel bushes along the common boundary.

The court summarized the litigation and concluded

Cottingham’s five-year pursuit to change the trial court’s decision regarding the boundary line resulted in over 700 filings and sanctions totaling $58,115.80. These sanctions were not imposed at the outset; in fact, Cottingham’s initial lawsuit was not frivolous. Rather, the judges and hearing officers found violations and imposed sanctions only as each stage of the litigation progressed. Cottingham had ample warning that his arguments were unavailing and his continued pursuit was frivolous…

Here, the findings of fact support the hearing officer’s conclusion that Cottingham’s actions were frivolous and carried out with intent to harass and annoy the Morgans. Cottingham repeatedly filed motions and appeals that had no basis in law or fact and had already been decided by various trial and appellate courts. Cottingham’s filings consistently failed in the courts and were repeatedly declared frivolous. This put Cottingham on notice of the meritless, frivolous, and sanctionable nature of his challenges. In re Disciplinary Proceeding Against Sanai, 177 Wn.2d 743, 769, 302 P.3d 864 (2013) (holding that a lawyer who repeatedly filed pleadings in multiple courts, all of which failed and many of which resulted in sanctions, was on notice of their frivolous nature). Even so, Cottingham continued his crusade and relentlessly pursued litigation intending, at least in part, to harass and annoy the Morgans. For these reasons, we adopt the hearing officer and Board’s conclusions that Cottingham violated RPC 3.1, and RFC 4.4(a).

And

Cottingham’s pleadings—repetitive, devoid of merit, and done with intent to harass his neighbors—were made in his role as an advocate for himself and his wife and were outside practice norms in violation of RPC 8.4(d). Thus, the unchallenged findings of fact support the hearing officer’s conclusions of law that Cottingham engaged in conduct prejudicial to the administration of justice. We adopt the hearing officer and Board’s conclusions that Cottingham violated RPC 8.4(d).

The court adoptd the hearing officer’s proposed sanction. (Mike Frisch)