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Law Firm That Investigated State Lawyer’s Bias Claim May Be Sued

Oct. 22, 2019, 4:50 PM

A Seattle law firm that contracted with the Washington state attorney general’s office to investigate a sexual-orientation discrimination claim by one of the AG’s lawyers may be sued over his firing despite a state free-speech law, the Washington Court of Appeals ruled.

The purpose of laws fighting “strategic lawsuits against public participation” is to protect individuals’ First Amendment rights, the appeals court said.

A government contractor like the law firm involved in this case doesn’t exercise its First Amendment rights in its work for an agency, the court said, and so it isn’t a “person” protected by Washington’s anti-SLAPP law, the court said. It reinstated the employee’s suit against Ogden Murphy Wallace PLLC.

Roger Leishman, an openly gay man with a history of mild anxiety, alleges he began experiencing more serious anxiety symptoms, including a hair-pulling disorder, shortly after starting work at the Washington Attorney General’s Office. In that position, he served as a legal adviser to Western Washington University. He received a diagnosis that included post-traumatic stress disorder, and requested a disability accommodation.

Leishman attributed his PTSD to allegedly homophobic comments and micromanaging by his supervisor, Kerena Higgins, and submitted a discrimination claim to the attorney general’s office. In a meeting with Higgins to discuss the accommodation request and her comments, he raised his voice and pounded his fists, according to the court.

The state AG’s office contracted with Ogden Murphy Wallace PLLC to conduct an independent investigation. The firm reported back that Leishman’s discrimination claim lacked support and that his conduct in the meeting “violated expected standards of conduct.” Leishman was fired.

Leishman sued, and settled with, the state. Then he sued Ogden Murphy Wallace.

The firm argued the anti-SLAPP law protected it from suit, and the trial court threw out the case.

But a Washington Supreme Court opinion establishes that the state isn’t a “person” protected under the law because its agencies “are not exercising First Amendment rights,” and the same reasoning applies to government contractors, the appeals court said here.

“When government contractors are communicating, for the purpose of carrying out their duties under a contract with a government agency, they are similarly not exercising First Amendment rights,” Judge David Mann said.

Chief Judge Marlin J. Appelwick and Judge John H. Chun also served on the panel.

Leishman represented himself.

McNaul Ebel Nawrot & Helgren represented the law firm.

The case is Leishman v. Ogden Murphy Wallace PLLC, 2019 BL 402026, Wash. Ct. App., Div. 1, No. 77754-8-I, 10/21/19.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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