Lt. Col. Robert Underwood was charged with three counts of felony harassment, but the charges were dropped after an investigation. KIRO-TV Courtesy
Lt. Col. Robert Underwood was charged with three counts of felony harassment, but the charges were dropped after an investigation. KIRO-TV Courtesy

Crime

Lindquist faces three more complaints to bar

June 25, 2016 04:00 PM

UPDATED June 27, 2016 10:08 AM

Three new state bar association complaints were filed against Pierce County Prosecutor Mark Lindquist in April and May, accusing him of violating the rules of professional conduct for lawyers and prosecutors.

That makes four active complaints, counting one filed in June 2015 against Lindquist and six of his staff members that remains under investigation. Costs of defending the 2015 complaint exceed $132,000, according to figures from the county’s risk management division, and the bills continue to rise. The number of complaints and named attorneys is greater under Lindquist’s stewardship than prior administrations, according to figures from the county’s risk management division.

Lindquist did not respond directly to a request for an interview regarding the bar complaints. Surrogates, including prosecutor’s spokesman John Nourse and attorney Steve Fogg, who is defending one of the complaints, called them “baseless” and politically motivated. Fogg also shared formal answers to the bar association; all of them deny wrongdoing by Lindquist and his staff members.

After investigation, if a complaint is deemed valid, consequences range from reprimands and temporary suspension to disbarment. The Washington State Supreme Court is the final arbiter.

Never miss a local story.

Sign up today for unlimited digital access to our website, apps, the digital newspaper and more.

Disciplinary action is rare; the bar association received 2,081 complaints (“grievances”) against lawyers in 2015. Most ended without consequence; 74 lawyers received some form of discipline in 2015, according to the bar’s discipline system annual report. The figures include some overlap from prior years.

Complaints and resulting investigations are confidential, preventing discussion of specific details, said Debra Carnes, spokeswoman for the state bar association.

She responded to more general questions about the process:

$132,000 Legal bills incurred by taxpayers to defend 2015 bar complaint against Lindquist and six of his staffers. The investigation remains active.

▪  How long do investigations take?

The bar generally tries to complete investigations within 180 days of filing. The 2015 complaint against Lindquist has taken longer.

“There are a number of factors that can impact the timeline such as the number of allegations, the complexity of the complaint, the number of witnesses, related grievances, etc.,” Carnes said.

▪  What about complaints involving matters subject to active litigation?

The 2015 complaint against Lindquist touches a long-running sex-abuse case that was dismissed in 2015, and a related lawsuit that was withdrawn in May.

The criminal case against former Longbranch resident Lynn Dalsing accused her of aiding in her husband’s sexual abuse of her daughter. The charges were dismissed twice, first in 2011 due to lack of evidence, then in 2015 due to prosecutorial vindictiveness. Dalsing filed a separate false-arrest lawsuit in 2012 and withdrew it last month after four years of bruising litigation. The bar complaint alleges that Lindquist and his staff members violated various rules of professional conduct in their pursuit of the criminal case against Dalsing

The bar association can defer investigations and (potential disciplinary decisions) if allegations are related to pending litigation, Carnes said.

Related stories from The News Tribune

“Whether an investigation is deferred is discretionary,” she said.

▪ Is the bar association soft on prosecutors accused of misconduct?

News stories published by The News Tribune and The Associated Press in 2015 noted that Lindquist’s office led the state in findings of prosecutorial misconduct and reversals due to misconduct. The AP also surveyed the state bar’s disciplinary actions from 2010 through 2015, and found 368 lawyers had been disciplined in that timeframe. Only two were prosecutors. Nationally, legal experts have suggested that prosecutorial misconduct has reached “epidemic” proportions.

Carnes said the bar is not soft on prosecutors.

“Every instance is taken seriously and reviewed on a case-by-case basis to determine if there is unethical behavior involved,” she said. “If there is proof that a prosecutor acted unethically and we can prove it, the case proceeds.”

Here’s a breakdown of the three new bar complaints, who filed them, and the underlying circumstances.

Every instance is taken seriously and reviewed on a case-by-case basis to determine if there is unethical behavior involved. If there is proof that a prosecutor acted unethically and we can prove it, the case proceeds.

Debra Carnes, Chief Communications Officer, Washington State Bar Association

April 20: Complaint filed by the Pierce County Sheriff’s Guild

Prosecutors named: Lindquist and Deputy Prosecutor Mike Sommerfeld.

Grounds: The guild alleges multiple acts of misconduct related to actions against sheriff’s deputies Glenda Nissen and Mike Ames.

Nissen has been involved in a long-running dispute with Lindquist over his text messages, which recently led to a court ruling that one of the messages qualified as a public record. A resulting judgment against the county ordered payment of more than $118,000 in fines and fees.

The bar complaint refers to those circumstances, as well as comments posted anonymously on The News Tribune website in 2011 by Sommerfeld. The News Tribune revealed the anonymous postings in January; Sommerfeld, then the legal adviser to county Sheriff Paul Pastor, subsequently was reassigned.

Sommerfeld’s anonymous statements criticized Nissen and her attorney, Joan Mell, immediately after the prosecutor’s office negotiated a settlement agreement with Nissen. The agreement included a stipulation that the prosecutor’s office would not disparage Nissen.

The complaint refers to comments posted on The News Tribune website in 2011 by Sommerfeld, then the legal adviser to Sheriff Paul Pastor. The News Tribune revealed the anonymous postings in January; Sommerfeld was subsequently reassigned.

The complaint also refers to Lindquist’s alleged egging on of such comments, revealed in a text message to a subordinate, which stated, “Tell allies to comment on TNT story.” The story referred to Nissen’s settlement with the county and the prosecutor’s office.

The complaint also accuses Lindquist of taking steps to wrongly label deputy Ames as a Brady officer (viewed as a badge of dishonesty in law enforcement), after Ames revealed emails regarding investigative problems in the Dalsing criminal case that complicated the long-running false-arrest lawsuit. Ames filed suit over the matter in superior and federal court; the case remains active, with procedural wins and losses for both sides.

More broadly, the guild complaint contends Lindquist retaliated against Nissen, Ames and another deputy to punish them for defying him.

“The only client Mark Lindquist serves is himself,” the complaint states. “He has so deviated from the required standards of conduct that he should be removed from the practice of law.”

Lindquist’s answer to the guild’s complaint, filed by attorney Steve Fogg, calls it “meritless” and “not worthy of investigation.”

May 3: Complaint filed by local defense attorney John Cain.

Prosecutors named: Lindquist and Deputy Prosecutor Jared Ausserer.

Grounds: The Cain complaint accuses Lindquist and Ausserer of violating rules governing public statements during an active trial by appearing on the “Nancy Grace” show and commenting on a defendant’s guilt. Lindquist’s answer to the bar association denies any wrongdoing by Lindquist and Ausserer.

May 12: Complaint filed by Robert Underwood.

Prosecutors named: Lindquist.

Grounds: Underwood, an Army lieutenant colonel stationed at Joint Base Lewis-McChord, was charged in March 2012 with three counts of felony harassment. Three months later, the charges were dismissed.

Underwood contends Lindquist violated rules governing statements about a defendant’s guilt by speaking to multiple news outlets about the case and implying Underwood suffered from mental illness.

Lindquist’s answer to the bar association denies wrongdoing, contends Lindquist’s actions were proper and justifiable given the initial allegations, and calls for the complaint to be dismissed outright.

Underwood also filed a claim for damages with Pierce County in 2013, alleging malicious prosecution, slander and false arrest tied to the same circumstances. The claim was denied.

The initial criminal charges suggested Underwood, who was in the midst of a contentious divorce, had threatened to hire a hit man to kill his estranged wife and his commanding officer.

The charges also referred to Underwood’s alleged threat to blow up the state Capitol and an unproven allegation that he kept a photo of his unclothed daughter on his phone. Underwood also contends that statements in charging papers regarding his family history were irrelevant and intended to further damage his reputation.

The allegations cited in the charges came from a woman Underwood had dated briefly. He said the woman invented stories about him after he rejected her.

After an investigation, prosecutors dismissed the charges. Lindquist told news outlets it appeared the woman who reported the threats might have made it all up. No evidence of a photo or threats to blow up the Capitol were found.

Underwood’s complaint focuses on two statements Lindquist made before the charges were dismissed. He contends they violated rules of professional conduct.

Lindquist appeared on a local radio show and said, “There’s something about divorces, particularly (unintelligible) divorces that makes people crazy.”

Lindquist appeared on a local radio show and said, “There’s something about divorces, particularly (unintelligible) divorces that makes people crazy.”

In an interview with The Seattle Times, Lindquist said, “If there are mental health issues, they will be addressed in this process.”

According to Underwood’s complaint, the statements led to separate court orders in the divorce case, forbidding Underwood from having contact with his daughters.

“Mr. Lindquist’s callous disregard for the truth, his unrelenting desire for publicity, his total lack of respect for the rights of the accused, his own need to self-promote, could not remedy the damage already done,” the complaint states.