EPHRATA - A bar complaint alleges Prosecutor Angus Lee had a conflict of interest when he assigned a deputy prosecutor to review three cases in 2009.

Washington State Bar Association Senior Disciplinary Counsel Christine Gray recommended a review committee examine whether Lee should have handled police reports related to former Administrative Assistant Cathleen Neils and District Court Judge Richard Fitterer, according to a letter sent to Lee.

Lee provided a copy of the letter to the Columbia Basin Herald.

The claims revolve around three cases Lee asked then Deputy Prosecutor Albert Lin to review, according to Gray's letter.

The cases were part of a $2.5 million tort claim and whistleblower complaint Lin filed with the county after his contract was not renewed following Lee's election as prosecutor.

Lin lost two election bids to Lee. He was also one of the candidates the Grant County commissioners reviewed before selecting Lee as the interim prosecutor following John Knodell's election as judge.  

Gray's investigation for the state bar conflicts with Yakima attorney Jeanie Tolcacher's 2010 report on the same issues.  

Tolcacher was hired by Grant County to conduct an independent investigation.

Gray stated it appeared Lee had a conflict of interest, and Tolcacher argued the prosecutor is not expected to be completely neutral.

Lee stated he didn't have time to respond to each of the allegations individually. He referred to them as false "political accusations."

"Regarding the opinion that 'it appears' my office 'may have' had a conflict of interest, I strongly disagree with both the factual assertions and the legal analysis contained in the letter," Lee wrote. "It appears that the analysis relies on information provided solely from persons with a political motive ... (The) counsel for the bar acknowledges that  'there appears to have been little or no effect on prosecutorial decisions,' because in fact, there was no impact upon my prosecutorial decisions. The letter ignores or does not discuss relevant facts and controlling legal authority, and I look forward to having the review committee address this matter."

Lin did not respond to Columbia Basin Herald requests for an interview.

False reporting case

Gray questioned how Lee handled an Ephrata police report filed by Elisia Dalluge alleging Neils filed a false police report against her in November 2008.

The allegations stemmed from an anti-harassment order former deputy prosecutor Teddy Chow obtained against Dalluge, according to the letter. Gray noted Lee helped to obtain the order.

Chow was a deputy prosecutor in 2008 but his contract was not renewed by Lee in late 2009. Chow publicly accused Lee of lying about a collision involving a district court judge weeks before the 2009 election.

In a courtroom where Chow was appearing, Neils reportedly saw Dalluge and reported the incident to the Grant County Sheriff's Office, according to an Ephrata police report. When police contacted Dalluge, she allegedly stated she hadn't been served the second order and the judge told her it would be acceptable for her to be in the courthouse.

The deputies spoke with Dalluge, presented a second copy of the order to her and forwarded the report to the prosecutor's office, which was run by Knodell, according to the police report.

Dalluge filed the false reporting case against Neils with Ephrata police in June 2009. The file was forwarded to Lee's office, and Lee forwarded the report to Lin.

What Lee expected Lin to do with the report is disputed.

Gray stated Lee expected Lin to make a charging decision, according to the letter. Lee stated he asked his deputy to review the case, not make a charging decision.

Lee pointed out to bar investigators he chose Lin because Neils sued Lee personally, and he couldn't give the file to Chow because the deputy was personally involved in the case, according to Gray's letter.

Lin responded by sending a memo to Lee, stating the case represented a "clear conflict of interest for the Grant County Prosecutor's Office. We should not review this because the above mentioned person has filed a lawsuit against Grant County and is a former employee of this office."

Lin's response led to a series of memos between the two, where Lin refused to review the file and Lee continued to request a review, according to the letter.

Lee and Civil Deputy Prosecutor Lee Pence questioned Lin about his relationship with Neils three days after Lin's first refusal to review the case. Lin told Pence and Lee he was friends with Neils and she was working on Lin's campaign for prosecutor at that meeting.

Lin later hired attorney Thomas Fitzpatrick, who stated in a Sept. 4 letter a conflict existed because Neils was friends with Lin and supported Lin's campaign.

The prosecutor's office sent the case to the Washington State Attorney General's Office in September 2009, according to the bar letter. The attorney general's office declined to review the case.

Neils said the investigation was unwarranted, and she was following her responsibility as an employee of the prosecutor's office.

"I was in superior court waiting to speak with Mr. Knodell, when I observed Ms. Dalluge enter to take a seat behind Mr. Chow," she stated to the Columbia Basin Herald. "I was pretty sure there was an order forbidding her from being within so many feet of him (Mr. Chow). I never spoke with Ms. Dalluge. I went to the sheriff's office to verify whether the order was still active. I was informed that it was. The (sheriff's office) had a deputy go up to the courtroom and escort her out. If you will notice, Mr. Lee was involved in obtaining the order on Ms. Dalluge. I broke no law by verifying the order."

Dalluge saw the event differently, saying the judge issuing the order allowed her to be in the courtroom.

"Once they cleared my name, they let me go," she said.

No charges were filed against Dalluge for violating a no contact order nor against Neils for false reporting.

Perjury complaint

The second case came a day after Lee sent the false reporting case to the attorney general's office. Dalluge filed a criminal complaint against her ex-husband accusing him of perjury. Contained in the file was a letter from Dalluge to the FBI referring to her criminal complaint against Neils, according to Tolcacher's and Gray's reports.

"In that letter, Ms. Dalluge criticized the report on the John Doe/Dalluge matter and its author, and claimed that the report's author had also mishandled the Neils/Dalluge matter," according to Gray's letter.

According to Tolcacher's report, Lin discussed the perjury case with Chow and Deputy Prosecutor Carole Highland, who advised him it was a conflict of interest. He declined to review the perjury case, pointing out references to Neils in Dalluge's letter to the FBI.

Lin's memo prompted Lee to demand an explanation about the nature of the conflict.

Lee asked Lin to review the matter twice more, and when Lin refused Lee told him "his continued refusal to review the Doe/Dalluge matter would be considered insubordination."

Lin continued to decline to review the case and had his personal attorney send a letter to Lee stating his opinion that it was a conflict of interest for the deputy to review the case.

No charges were filed in the case.

Dalluge blames Lin for not following through. She claims he covered it up.

"I believe that Mr. Lee is doing a good job," she said. "I believe his hands have been tied."

Judge's collision

The final portion of Gray's letter dealt with a June 2009 collision where Fitterer, a Grant County District Court judge, allegedly collided with another car near Quincy but continued driving. The judge was stopped and claimed he didn't know about scraping a pickup truck where the road narrows. He later traded information with the other driver. Fitterer was not arrested or charged.

Gray's issue came after a October 2009 candidate forum, when former state Sen. Harold Hochstatter questioned why Lee's office hadn't done anything concerning the collision, according to the letter.

Following the candidate forum, Lee gave a copy of the police report to Lin, who claims he was requested to make a charging decision.  

Lee stated that he didn't ask Lin to make a charging decision, he only wanted the file reviewed.

Lin again contacted his attorney, who sent a letter stating it was his opinion that the office's relationship with the district court judge created a conflict of interest.

Conflict of interest

Tolcacher's and Gray's reports both refer to the section of the rules of professional conduct governing conflicts of interest. The rule cited by Lin in his argument with Lee stated a conflict exists if "there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer."

Gray pointed out several issues with Lee handling cases dealing with Neils or Fitterer. She pointed out Neils had filed a lawsuit against the office and Lee, she publicly opposed Lee's appointment, Lee filed a criminal report against Neils, and the prosecutor's office filed the initial anti-harassment order against Dalluge.

Lee accused Neils of lying about the amount of time she worked while at the prosecutor's office. She denies the accusation. No criminal charges have been filed against her for theft.

Gray noted in Fitterer's case, prosecutors routinely appeared before the judge, Lee was publicly accused by Hochstatter at the forum, and Lin was Lee's political opponent, according to the letter.

Gray suggested Lee had a personal bias in the cases, citing a bar opinion, she stated Lee's client, the State of Washington, "is entitled to representation by a prosecuting attorney, unhampered by conflicts of interest."

When Tolcacher issued her report, she dismissed the conflict of interest claims, stating prosecutors aren't expected to be impartial. She cited a Washington State Court of Appeals case for Charles B. Finch.

Finch killed two people, including a police officer and attempted to kill his estranged wife.

Finch argued the prosecutor's office should be recused because the prosecutor stated, at the time, the deceased officer "was respected by every member of our department and people are taking this as hard as the people in the sheriff's office," according to court records.

The appellate court disagreed with Finch stating a prosecutor's decision to file charges, seek the death penalty or plea bargain are executive, and don't need to appear fair.

"While there is a possibility that Mr. Lee could have a concurrent conflict of interest ... this fact does not automatically mean that Mr. Lee's personal interests would materially limit his ability to prosecute the matter for the state," Tolcacher wrote.

Gray had a different interpretation, stating the appellate court case applies "when a criminal defendant claims a prosecutor should be impartial in dealing with his criminal matter." She stated Lee's circumstances are different.

Lee's attorney, Leland Ripley, added additional arguments, stating Neils' civil lawsuit isn't enough to form a conflict of interest, according to the letter. Ripley cited a bar opinion indicating a criminal defendant's threat to file a lawsuit against a prosecutor doesn't create a conflict of interest.

Gray responded by stating the facts go far beyond the ones in the bar opinion. She pointed out Dalluge's false reporting claim was based on an incident involving a number of office employees, including Lee.

Ripley offered a final argument, suggesting even if Lee had a personal conflict of interest in the Dalluge false reporting case, Lin didn't have the same conflict, according to the letter.

"Factually, this argument does not apply here because Mr. Lee did not recuse himself from the (Dalluge false reporting) matter, leaving it to others in the office to determine the appropriate assignment and disposition of the matter," according to the letter. "Instead Mr. Lee personally required Mr. Lin to review the matter. When Mr. Lin declined, Mr. Lee personally and repeatedly challenged Mr. Lin's determination that neither he, nor the office, should review the matter."

Dishonesty complaint

The initial grievance contained an accusation Lee lied at the candidates forum when he said he was unaware of what Hochstatter was talking about. Gray stated they couldn't prove Lee "engaged in an act of dishonesty."

"Mr. Lee had indicated that his statement at the candidates forum was intended to convey that he was unaware that his office had received a police report regarding the June 5 incident," according to the letter. "Since the forum, Mr. Lee has consistently acknowledged that he learned about the June 5 incident the day it occurred."

There was also insufficient evidence to prove Lee sought to influence any investigation of the incident or deter any official report, according to the letter from the bar.

Review committee

The investigation now goes to a bar association review committee. The committee, made up of two lawyers and one non-lawyer, determines whether the matter should proceed to a hearing, said Judy Berrett, the bar association communications director. The committee has four options. It can dismiss the grievance, dismiss it with an advisory letter, issue an admonition or order the matter to a hearing.

If the matter is dismissed, then it won't go any further, Berrett said.

An admonition would stay on Lee's record for about five years, but wouldn't prevent him from practicing law, she said.

If the review committee orders it to a hearing, then a public hearing would be held in front of a hearings officer, Berrett said. The hearings officer would make a determination, and recommend discipline.

If the hearing officer recommends removing Lee from the bar association or suspending him, then the matter would go to the state Supreme Court, Berrett said. The hearings officer can also recommend a reprimand, which would stay on Lee's permanent record, but not affect his ability to practice law.

Berrett explained the investigation wasn't public until a hearing is ordered and was speaking about how the process worked in general.