author: WIGGINS, J. OWENS, J. (dissenting)

text:
    Jared KARSTETTER and Julie Karstetter, his spouse, who together form a marital community, Petitioners, v. KING COUNTY CORRECTIONS GUILD, a nonprofit corporation doing business as a labor union; Randy Weaver, Sonya Weaver, Leonard Orth, Katherine Orth, Garrin Clark, Gabriel Vigil, Respondents, and William B. Aitchison, Anil S. Karia, Trevor Caldwell, individually and as representatives; and Public Safety Law Group, a legal services public corporation, Defendants.
    No. 95531-0
    Supreme Court of Washington.
    Argued October 23, 2018 Filed July 18, 2019
    Judith A. Lonnquist, Law Offices of Judith A. Lonnquist, P.S., 1218 3rd Avenue, Suite 1500, Seattle, WA 98101-3083, for Petitioners.
    Dmitri L. Iglitzin, Barnard Iglitzin & Lavitt LLP, 18 W. Mercer Street, Suite 400, Seattle, WA 98119-3971, Rory W. Leid, Peter Roy Barnett, Cole | Wathen | Leid | Hall, P.C., 303 Battery Street, Seattle, WA 98121-1419, for Respondents.
    Patrick N. Rothwell, Davis Rothwell Earle & Xochihua PC, 520 Pike Street, Suite 2500, Seattle, WA 98101-4083, for Defendants.
    Jesse Andrew Wing, Jeffrey Lowell Needle, MacDonald Hoague & Bayless, 705 2nd Avenue, Suite 1500, Seattle, WA 98104-1745, for Amicus Curiae (Washington Employment Lawyers Association).
    Valerie Davis McOmie, Attorney at Law, 4549 NW Aspen Street, Camas, WA 98607-8302, Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Avenue, Suite 1300, Spokane, WA 99201-0305, for Amicus Curiae (Washington State Association for Justice Foundation).
   WIGGINS, J.

¶1 Far from the lawyers of old, who toiled "alone in a solitary office ... unhallowed by humanizing domestic associations," today's attorneys often work together with lawyers and nonlawyers alike, for clients ranging from nonprofits and government agencies to massive, multijurisdictional corporations. See Hugh D. Spitzer, Model Rule 5.7 and Lawyers in Government Jobs-How Can They Ever Be "Non-Lawyers"?, 30 GEO. J. LEGAL ETHICS 45, 47 (2017) ("An increasing number of law graduates with licenses to practice are not engaged in traditional legal jobs."); Orly Lobel, Lawyering Loyalties: Speech Rights and Duties within Twenty-First-Century New Governance, 77 FORDHAM L. REV . 1245, 1262 (2009) (in-house attorneys have "administrative, managerial, and compliance responsibilities that are outside the direct scope of their legal roles"); Grace M. Giesel, The Ethics or Employment Dilemma of In-House Counsel, 5 GEO. J. LEGAL ETHICS 535, 544 (1992) (explaining that in-house counsel are considered "an essential component of the management team" by corporations and that these "attorneys affect the full range of corporate decisions"). The evolution in legal practice has uniquely affected the in-house attorney employee and generated unique legal and ethical questions unlike anything contemplated by our Rules of Professional Conduct (RPCs).

¶2 The case before us today presents just such a question: we must decide whether modern in-house employee attorneys should be treated differently from traditional private practice lawyers under our RPCs. We conclude that they should.

¶3 Solely in the narrow context of in-house employee attorneys, contract and wrongful discharge suits are available, provided these suits can be brought without violence to the integrity of the attorney-client relationship. Accordingly, we hold that Jared Karstetter alleged legally cognizable claims and pleaded sufficient facts to overcome a CR 12(b)(6) motion of dismissal. We reverse the Court of Appeals' ruling dismissing Karstetter's claims and remand the case to the trial court for further proceedings consistent with this opinion.

Facts and Procedural History

¶4 Karstetter worked for labor organizations representing King County corrections officers for over 20 years. In 1987, Karstetter began working directly for the King County Corrections Officers Guild (Guild). Throughout his employment with the Guild, Karstetter operated under successive 5-year contracts that provided for just cause termination. This termination clause states,

Consistent with the rights and expectations of the members that the GUILD represents ATTORNEY may be terminated for just cause. The definition of Just Cause shall be the same definition that is currently contained in the Collective Bargaining Agreement for GUILD members. In the event that the GUILD wishes to exercise this provision, due notice shall be provided to ATTORNEY and an opportunity to correct any behavior that GUILD deems inappropriate. ATTORNEY shall be afforded fundamental due process and an opportunity to answer to any and all charges. Termination of this Agreement shall be reserved as a final option.

CP at 13 (employment contract).

¶5 Eventually, Karstetter formed his own law firm and worked primarily for the Guild. He offered services to at least one other client. His employment contracts remained substantially the same. Karstetter's wife also worked for the Guild as Karstetter's office assistant.

¶6 In 2016, the King County ombudsman's office contacted Karstetter regarding a whistle-blower complaint concerning parking reimbursements to Guild members. The Guild's vice-president directed Karstetter to cooperate with the investigation. The Guild sought advice from an outside law firm, which advised the Guild to immediately terminate Karstetter. In April 2016, the Guild took this advice and, without providing the remedial options listed in his contract, fired Karstetter.

¶7 In response, Karstetter and his wife filed suit against the Guild, alleging, among other things, breach of contract and wrongful discharge in violation of public policy. The Guild moved to dismiss the suit for failure to state a claim. The trial court partially granted the motion but allowed Karstetter's claims for breach of contract and wrongful termination to proceed. On interlocutory review, the Court of Appeals reversed and remanded the case, directing the trial court to dismiss Karstetter's remaining breach of contract and wrongful termination claims. Karstetter v. King County Corr. Guild, 1 Wash. App. 2d 822, 407 P.3d 384 (2017). Karstetter sought review here, which we granted.

Analysis

¶8 The Guild argues that Karstetter's breach of contract and wrongful discharge claims are precluded by our ethical rules and should have been dismissed. Dismissal under CR 12(b)(6) is warranted only if we conclude that the plaintiff cannot prove any set of facts justifying recovery. Kinney v. Cook, 159 Wash.2d 837, 842, 154 P.3d 206 (2007) (quoting Tenore v. AT&T Wireless Servs., 136 Wash.2d 322, 330, 962 P.2d 104 (1998) ). All facts alleged in the complaint are taken as true, and we may consider hypothetical facts supporting the plaintiff's claim. Id. Whether Karstetter has alleged legally cognizable claims is a question of law that we review de novo. Hoffer v. State, 110 Wash.2d 415, 420, 755 P.2d 781 (1988), adhered to on recons., 113 Wash.2d 148, 776 P.2d 963 (1989).

1. RPC 1.16 does not necessarily prohibit in-house attorney employment claims

¶9 RPC 1.16(a)(3) states that "a lawyer shall not represent a client ... if ... the lawyer is discharged." This rule robustly protects a client's right to terminate an attorney at any time, for any reason. RPC 1.16 cmt. 4; Belli v. Shaw, 98 Wash.2d 569, 577, 657 P.2d 315 (1983). Clients must trust their lawyers. When a client loses confidence in his or her attorney, the trust relationship is fractured, and a client must be allowed to discharge that attorney in order to engage another, better-suited advocate. In this traditional attorney-client relationship, RPC 1.16 would almost certainly prohibit a lawyer from bringing employment claims against a client. But such an interpretation of RPC 1.16 is neither required nor reasonable in the nontraditional circumstances of in-house attorney employees.

¶10 The Guild asserts that to protect individual clients and the public generally, RPC 1.16 applies to all attorneys without exception. But in and of itself, RPC 1.16 does not stand for this proposition. The rule simply states that clients may discharge their attorneys. RPC 1.16(a)(3). The rule specifies no reasons or requirements a client must meet to discharge an attorney-termination is allowed "at any time, with or without cause." RPC 1.16 cmt. 4. Importantly, however, RPC 1.16 does not recognize, let alone discuss, the nontraditional circumstances surrounding in-house attorneys and whether the rule does or should apply in that context. We have not "set out any all-encompassing rule for how violation of any RPC in connection with a contract might affect that contract's enforceability." LK Operating, LLC v. Collection Grp., LLC, 181 Wash.2d 48, 89, 331 P.3d 1147 (2014). Nor have we interpreted our ethical rules as providing absolute insulation from attorney-client litigation. See Kimball v. Pub. Util. Dist. No. 1 of Douglas County, 64 Wash.2d 252, 258, 391 P.2d 205 (1964) (discharged counsel may seek recovery for unjust enrichment). Indeed, our professional rules themselves "do not apply uniformly to all lawyers." Chism v. Tri-State Constr., Inc., 193 Wash. App. 818, 839, 374 P.3d 193 (2016) (citing RPC 1.11 (concerning only government lawyers)). RPC 1.16 does not expressly prohibit Karstetter's claims.

2. In-house attorneys face unique employment expectations and should not always be treated the same as private practice lawyers under the RPCs

¶11 The unique employment status of and demands on in-house attorneys counsel against a rigid interpretation of RPC 1.16. Today's legal employees operate differently from private sector attorneys. See Gen. Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164, 1171-73, 876 P.2d 487, 32 Cal. Rptr. 2d 1 (1994). Economic success for in-house attorneys, unlike a law firm partner, "is tied directly to a single employer, at whose sufferance they serve." Id. at 1172, 32 Cal. Rptr. 2d 1, 876 P.2d 487 ; Crews v. Buckman Labs. Int'I, Inc., 78 S.W.3d 852, 860-61 (Tenn. 2002). The professional relationship between corporate counsel and a client employer is similarly distinct. The duties of today's corporate attorneys have grown increasingly complex, often including advisory and compliance roles as well as the more general aim of ensuring a successful business. See Gen. Dynamics, 7 Cal. 4th at 1172, 32 Cal.Rptr.2d 1, 876 P.2d 487 ; Lobel, supra, at 1262.

¶12 The expectations for in-house attorneys are distinct from outside lawyers. The expansion of an employee attorney's duties coupled with the professional and financial dependence on a single client employer "can easily subject [that] attorney to unusual pressures to conform to organizational goals, pressures that are qualitatively different from those imposed on the outside lawyer." Gen. Dynamics, 7 Cal. 4th at 1172, 32 Cal.Rptr.2d 1, 876 P.2d 487. While an outside lawyer enjoys distance and economic independence from the financial success of his or her client, an in-house attorney is dependent on the "good will and confidence of a single employer to provide livelihood and career success." Id. at 1182, 32 Cal.Rptr.2d 1, 876 P.2d 487. And unlike outside counsel, for in-house attorneys with only one client-an employer-the "withdrawal 'remedy' fails to confront seriously the extraordinarily high cost that resignation entails." Id. at 1188, 32 Cal. Rptr. 2d 1, 876 P.2d 487 ; see also Peter D. Banick, Case Note, The In-House" Whistleblower: Walking the Line between "Good Cop, Bad Cop," 37 WM. MITCHELL L. REV . 1868, 1884 (2011) (noting that in-house attorneys often "cannot simply withdraw from a case or refuse to represent a particular client and forego some attorney's fees"); John Jacob Kabus, Jr., Establishing Corporate Counsel's Right To Sue for Retaliatory Discharge, 29 VAL. U. L. REV. 1343, 1378 (1995). Thus, the relationship between corporate counsel and the employer client "cannot be characterized solely as an attorney-client relationship"; it must be "viewed as an employer-employee relationship as well." Banick, supra, at 1908 ; Gen. Dynamics, 7 Cal. 4th at 1171-72, 32 Cal.Rptr.2d 1, 876 P.2d 487.

¶13 A rigid application of RPC 1.16 to all lawyers, including in-house employee attorneys, not only ignores these abstract and practical distinctions but also overlooks that the RPCs were written when few lawyers worked outside the traditional private law firm practice model. See John M. Burman, Ethical Considerations When Representing Organizations, 3 WYO. L. REV. 581, 582 (2003) (the Model Rules "grew out of the traditional lawyer-client relationship" (citing C.W. WOLFRAM, MODERN LEGAL ETHICS § 2.6 (1986))); Gen. Dynamics, 7 Cal. 4th at 1171-72, 32 Cal.Rptr.2d 1, 876 P.2d 487 ("The growth in the number and role of in-house counsel has brought with it a widening recognition of the descriptive inadequacy of the nineteenth century model of the lawyer's place and role in society-one based predominantly on the small- to middle-sized firm."). Today, increasing numbers of attorneys work not in law firms but for governments, agencies, and nonprofits; in human resources, as lobbyists and corporate counsel. See, e.g., Spitzer, supra, at 47 & nn.1-4 (noting the rise in law graduates working in nontraditional jobs such as government and business); Alternative Careers, COLO . L. (listing nonlegal public and private sector careers for law graduates in business and finance, human resources, nonprofit administration, technology, etc.), https://www.colorado.edu/law/careers/career-paths/alternative-careers [https://perma.cc/JE8R-8458]; Alexandra Levit, Rethinking the Law, WALL ST. J. (Jan. 31, 2010) (discussing strategies for attorneys seeking nonlegal employment), https://www.wsj.com/articles/SB126489547645038023 [https://perma.cc/6Z8T-TAEL].

¶14 Despite numerous amendments over the years, our rules have not evolved with the profession. They are still fundamentally influenced by "traditional" notions of lawyer-client relationships. See RPC Scope cmt. 23 ("The structure of these Rules generally parallels the structure of the American Bar Association's Model Rules of Professional Conduct."); Gen. Dynamics, 7 Cal. 4th at 1171-72, 32 Cal.Rptr.2d 1, 876 P.2d 487. These traditional undercurrents pose little problem when applying the RPCs to traditional lawyer-client relationships. We are mindful, however, of the limitations of this traditional influence when determining whether and how our ethical rules should apply to attorneys working in nontraditional positions for nontraditional employer clients. See Gen. Dynamics, 7 Cal. 4th at 1185, 32 Cal.Rptr.2d 1, 876 P.2d 487 (noting criticism of cases rejecting in-house attorney wrongful discharge claims based on rules of professional conduct as reflecting "an unspoken adherence to an anachronistic model of the attorney's place and role in contemporary society" as well as "an inverted view of the consequences of the in-house attorney's essential professional role").

¶15 Given the many changes in legal practice since the RPCs were adopted, we decline to elevate RPC 1.16 against all competing interests. Concluding otherwise easily leads to unjust results. For instance, in-house attorneys would lose their jobs without the recourse afforded to their nonlawyer colleagues. Gen. Dynamics, 7 Cal. 4th at 1188, 32 Cal.Rptr.2d 1, 876 P.2d 487 ("Courts do not require nonlawyer employees to quietly surrender their jobs rather than 'go along' with an employer's unlawful demands."); Banick, supra, at 1884. An in-house attorney could be hired by a corporation with an employment contract and could agree to a scope of work, salary, and termination for cause. The in-house attorney begins work, performing both legal and nonlegal duties as needed by the employer. The in-house attorney is then summarily fired for reasons not specified in the contract, perhaps related to legal work, perhaps to nonlegal work.

¶16 Immunizing an employer in this situation from all consequence ignores the realities of modern legal work and risks creating unconscionable results. We will not instruct in-house attorneys that our ethical rules allow employers to take away their livelihood and then also leave them without any legal recourse under the facts before us today.

¶17 We have repeatedly held that violations of the RPCs in the formation of a contract may render that contract unenforceable as violative of public policy. LK Operating, 181 Wash.2d at 85, 331 P.3d 1147. Because RPC 1.16 is not a uniform and unequivocal ban on attorney employment claims, Karstetter's suit does not violate this rule.

¶18 We therefore hold that in the narrow context of in-house attorneys, contract and wrongful discharge suits are available, provided these suits can be brought "without violence to the integrity of the attorney-client relationship." Nordling v. N. States Power Co., 478 N.W.2d 498, 502 (Minn. 1991). In so doing, we join other states whose rules better fit the modern legal world. E.g., Gen. Dynamics, 7 Cal. 4th at 1178-79, 32 Cal.Rptr.2d 1, 876 P.2d 487 ; Burkhart v. Semitool, Inc., 2000 MT 201, 300 Mont. 480, 5 P.3d 1031 (holding the right to terminate attorney without consequences does not apply to attorney-client relationships where an attorney is a client's employee); GTE Prods. Corp. v. Stewart, 421 Mass. 22, 653 N.E.2d 161 (1995) (concluding that an in-house attorney may bring an action for retaliatory discharge against an employer); Parker v. M&T Chems., Inc., 236 N.J. Super. 451, 566 A.2d 215 (1989) (same); cf. Balia v. Gambro, Inc., 145 III. 2d 492, 584 N.E.2d 104, 164 III. Dec. 892 (1991).

¶19 Considering our reexamination and application of RPC 1.16 to in-house attorney employees, we hold that Karstetter's claims under CR 12(b)(6) should not have been dismissed. Karstetter sufficiently alleged that he was " 'an employee' " to overcome a CR 12(b)(6) dismissal, CP at 5, 14-16 (2006 "Employee Agreement" between Karstetter and the Guild), and his employment contract acknowledged the unique financial benefits and drawbacks of his employment situation: "It is understood that [Karstetter's salary] is substantially below market rates and is in consideration for the permanent employment relationship enjoyed by ATTORNEY as well as the unfettered access that the GUILD has to ATTORNEY Which is essentially 24-hours a day, 7-days a week." CP at 12. Karstetter refrained from taking on clients that would conflict with his "full-time services to the Guild" and "severely limited his acceptance of private clients." CP at 6. Karstetter's just cause termination clause was "the same definition" as contained in the collective bargaining agreement for nonattorney Guild members. CP at 13. Like other in-house attorneys, Karstetter's economic and professional success depended exclusively on the Guild's goodwill and confidence. See Gen. Dynamics, 7 Cal. 4th at 1182, 32 Cal.Rptr.2d 1, 876 P.2d 487. And, unlike private practice attorneys who enjoy some professional and economic distance from their clients, Karstetter's professional existence was intricately linked to the Guild.

¶20 For the reasons discussed above, we hold that in-house attorneys may pursue wrongful discharge and breach of contract claims against their client employers. We further hold that Karstetter has pleaded facts sufficient to bring these claims against the Guild as an in-house attorney employee. See FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wash.2d 954, 962-63, 331 P.3d 29 (2014) (dismissal under CR 12(b)(6) is warranted only if the plaintiff cannot prove " 'any set of facts which would justify recovery' " (internal quotation marks omitted) (quoting Kinney, 159 Wash.2d at 842, 154 P.3d 206 )); Kinney, 159 Wash.2d at 842, 154 P.3d 206 (all facts alleged in a complaint are taken as true and we may consider hypothetical facts supporting the plaintiff's claim). Provided Karstetter's suit does not violate the integrity of the attorney-client relationship, it may proceed.

3. Karstetter sufficiently pleaded whistle-blower protection

¶21 The Guild also contends that even if Karstetter could bring a wrongful discharge claim, he fails to plead that he was a whistle-blower. Dicomes v. State established four categories of protected behavior for wrongful discharge claims: (1) refusing to commit an illegal act, (2) performing a public duty or obligation, (3) exercising a legal right or privilege, or (4) whistle-blowing. 113 Wash.2d 612, 618, 782 P.2d 1002 (1989). The Guild argues that because Karstetter did not "desire[ ] to further the public good" when he provided the requested information (after obtaining permission to do so from his employer), he is not entitled to whistle-blower protection. We disagree.

¶22 The Guild's argument undercuts the fundamental purpose of our whistle-blower statutes. Washington's whistle-blower provisions are intended to encourage those with knowledge of institutional wrongs to come forward in order to safeguard the public. See, e.g., RCW 42.40.010, .020(2). Such protection is based on, among other things, the commonsense notion that employers should abide by the law and the intrinsic importance of fairness and justice in protecting individuals trying to "do the right thing." Banick, supra, at 1874-77; see Farnam v. CRISTA Ministries, 116 Wash.2d 659, 671, 807 P.2d 830 (1991) (stating that Diocomes' whistle-blowing protection focuses on the employer's wrongdoing, not the employee's actions). Protecting only those who directly reveal information while sacrificing others who assist them would unjustly narrow the scope of whistle-blower statutes and caution future whistle-blowers to think twice before helping other whistle-blowers.

¶23 Here, Karstetter pleaded that he assisted the investigation of a whistle-blower complaint and alleged that he was fired for doing so. Karstetter's complaint satisfied the notice pleading rule by containing a short, plain statement of the claims and demand for judgment sufficient to survive a CR 12(b)(6) challenge on this ground. CR 8. Even assuming a positive statement of subjective intent to further the public good is required, we construe pleadings to do substantial justice, and parties may clarify initial pleadings in the course of summary judgment proceedings. See State v. Adams, 107 Wash.2d 611, 620, 732 P.2d 149 (1987).

4. Karstetter's request for attorney fees is premature

¶24 Karstetter sought attorney fees and costs at the Court of Appeals and renews his request before this court. RCW 49.48.030 ; RAP 18.1. RCW 49.48.030 awards reasonable attorney fees to a person "successful in recovering judgment for wages or salary owed to him or her." But, as the Guild correctly points out, Karstetter has not recovered any judgment for wages or salary owed to him. Karstetter's request for attorney fees is premature. Mount Adams Sch. Dist. v. Cook, 150 Wash.2d 716, 726-27, 81 P.3d 111 (2003) ; accord Brundridge v. Fluor Fed. Svcs., Inc., 109 Wash. App. 347, 361, 35 P.3d 389 (2001) (holding pipe fitters' request for attorney fees arising from their wrongful termination claim was premature where pipe fitters had not yet obtained judgment for lost wages). We therefore deny his request for attorney fees.

Conclusion

¶25 Our rules of professional conduct do not foreclose an in-house attorney employee from bringing breach of contract and wrongful discharge claims against an employer-client.

We reverse the Court of Appeals and hold that in the narrow context of in-house attorneys, contract and wrongful discharge suits are available, provided these suits can be brought without violence to the integrity of the attorney-client relationship. We remand Karstetter's suit to the trial court for further proceedings consistent with this opinion.

WE CONCUR.

Fairhurst, C.J.

Madsen, J.

Stephens, J.

González, J.

Yu, J.

OWENS, J. (dissenting)

¶26 "A client has a right to discharge a lawyer at any time, with or without cause." RPC 1.16 cmt. 4. This long-standing ethical rule serves the important public policy of promoting client trust, attorney loyalty, and public confidence in attorney-client relationships by mitigating the power differential between client and attorney in favor of the client. This mandate applied without exception to every attorney licensed to practice law in Washington-until now. In opening the door for terminated attorneys to sue their former clients, the majority upends a hallowed policy and hallmark facet of attorney employment. Because RPC 1.16 clearly memorializes a client's unfettered right to terminate an attorney without reprisal, I would hold the remedy of contract damages and the tort of wrongful discharge unavailable as matters of law. If the majority believes an exception to RPC 1.16 is merited for in-house counsel attorneys, the proper method for effectuating such a change would be through rulemaking.

¶27 Washington law has long held that a client may terminate an attorney at any time and for any reason, including wantonly or out of caprice. Wright v. Johanson, 132 Wash. 682, 692, 233 P. 16 (1925) ; Kimball v. Pub. Util. Dist. No. 1 of Douglas County, 64 Wash.2d 252, 257, 391 P.2d 205 (1964). "[I]t follows as a corollary that the client cannot be compelled to pay damages for exercising a right which is an implied condition of the contract."

Wright, 132 Wash. at 692, 233 P. 16. Though the rule is a "harsh and stringent one against the attorney," it is "necessary for the protection of the client in particular and the public in general." Kimball, 64 Wash.2d at 257, 391 P.2d 205. This court codified the rule when it promulgated RPC 1.16 as part of the RPCs in 1985.

¶28 Whatever the nature of the relationship between Jared Karstetter and the King County Corrections Guild (Guild), Karstetter remained nonetheless an attorney subject to the distinct ethical rubric binding on our profession. Insofar as Karstetter's contract with the Guild contravened RPC 1.16,1 would hold it unenforceable as violative of public policy.

LK Operating, LLC v. Collection Grp., LLC, 181 Wash.2d 48, 85-89, 331 P.3d 1147 (2014). The remedy of contract damages is plainly anathema to the mandate memorialized in RPC 1.16 safeguarding a client's right to discharge an attorney. Accordingly, I would hold that the Karstetters failed as a matter of law to state a breach of contract claim for which relief can be granted.

¶29 Likewise, the tort of wrongful discharge is inappropriate in the attorney context because attorneys are not governed by the general at-will doctrine, but by a specific codified rule that expressly protects a client's right to release an attorney for any reason. See Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 232, 685 P.2d 1081 (1984). Even the California Supreme Court observed that "a majority of courts have refused to permit the maintenance of such suits on the ground that they pose too great a threat to the attorney-client relationship." Gen. Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164, 1182, 876 P.2d 487, 32 Cal. Rptr. 2d 1 (1994). Accordingly, I would hold that the Karstetters failed as a matter of law to state a wrongful discharge claim for which relief can be granted.

¶30 The majority purports to circumscribe its ruling by allowing terminated in-house counsel attorneys to bring contract and wrongful discharge suits "provided these suits can be brought without violence to the integrity of the attorney-client relationship." Majority at 1185. How such a parameter will be enforced, however, remains unclear. Thirty-five years ago, this court saw fit to eliminate any such risk to the integrity of the attorney-client relationship when it promulgated RPC 1.16 as part of the RPCs. Contrary to the majority's stark characterization of the time period from which the RPCs hail, 1985 can hardly be considered the Victorian Era. Rather, the underlying policy concerns and objectives of RPC 1.16 -ensuring trust and loyalty between attorneys and clients, and mitigating the inevitable power differential-remain as relevant today as ever.

¶31 In the majority's view, in-house attorneys are simply different and thus deserve different treatment under the law. Never before, however, has an exception to RPC 1.16 been enunciated for any subset of attorneys. Though this court possesses authority to promulgate, interpret, and enforce the RPCs, Hizey v. Carpenter , 119 Wash.2d 251, 261, 830 P.2d 646 (1992), pronouncement via judicial opinion is not the preferred method for amending them. See In re Disciplinary Proceeding Against Haley, 156 Wash.2d 324, 346-47, 126 P.3d 1262 (2006) (Sanders, J., concurring) ("If we conclude that [a rule needs to be changed], we should simply rewrite the rule .... Lawyers should not have to read slip opinions to divine their professional obligations."). When it comes to carving out a dramatic new exception to the RPCs, best practice would be to engage in rulemaking, which provides due notice through publication of proposed rules and opportunity for public comment. GR 9(g). Modifying the mandate of RPC 1.16 through this case undermines both the purpose and spirit of rulemaking.

¶32 Though I do not extol the Guild for capitalizing on the mandate of RPC 1.16 after 20 years of complicity in contracts establishing mutual expectations of security in Karstetter's position, the onus was nevertheless on Karstetter as a licensed Washington attorney to know and uphold the rules governing attorney conduct. I would not grant him an equitable exemption after the fact, as the majority elects to do. I respectfully dissent.

Johnson, J.

Gordon McCloud, J.

      Herman Melville, Bartleby, the Scrivener, in Legal Fictions: Short Stories About Lawyers and the Law 224, 248 (Jay Wishingrad ed., 1992).

      The most recent contract between Karstetter and the Guild ran from January 1, 2012 through December 31, 2016. Karstetter attached an unsigned copy of the contract to his complaint. Based on Karstetter's allegation that his "contracts have been rolled over continuously since 1987," CP at 4, and despite the lack of signature, it appears the 2012-2016 contract was in force when Karstetter was terminated in May 2016.

      Kimball does not control the outcome of this case. In Kimball, a law firm contracted with a public utilities district for payment of the firm's fees. 64 Wash.2d at 255-56, 391 P.2d 205. Unlike Karstetter, Kimball concerned a private law firm, with attorneys who were not considered employees of the utilities district. See id. Our decision to allow the public entity to terminate the law firm at any time, with or without cause, id. at 257, 391 P.2d 205, does not conflict with today's opinion because the Kimball lawyers were engaged in the traditional attorney-client relationship to which RPC 1.16 applies. Karstetter's nontraditional relationship with his client employer is different and must be analyzed differently. Kimball is therefore distinguishable.

      "The trial courts have at their disposal several measures to minimize or eliminate the potential untoward effects on both the attorney-client privilege and the interests of the client-employer resulting from the litigation of such wrongful termination claims by in-house counsel." Gen. Dynamics, 7 Cal. 4th at 1170, 32 Cal.Rptr.2d 1, 876 P.2d 487.

      While the rule making process would be an advantageous and prudent means of recognizing an in-house attorney's ability to bring employment claims against client employers, see dissent at 1194, we see no reason to wait for rule making when the case before us presents an opportunity to resolve this very issue. Indeed, we have not shied away from our duty to decide substantial legal issues in lieu of rule making in the past, even when proposed rules are pending before this court. E.g., City of Seattle v. Erickson, 188 Wash.2d 721, 398 P.3d 1124 (2017) (analyzing a defendant's alleged waiver to challenge the State's peremptory strike of the only black jury member despite the pending proposed GR 37, which would alter the method of evaluating these claims).

      We do not mean or imply that in-house attorneys escape disciplinary action or other consequences when they are required to take action under ethical rules not at issue in this case: For example, if Karstetter is found to have violated the integrity of the attorney-client relationship, not only would his wrongful discharge and breach of contract claims be unavailable under the rule established today, but he may also face attorney disciplinary action. See RPC 1.6(a) ("A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent."); In re Schafer, 149 Wash.2d 148, 66 P.3d 1036 (2003) (noting that a whistle-blower statute did not protect an attorney from disciplinary action for unnecessarily revealing client confidences to newspapers and the press). Further, our decision today is a narrow one, limited to in-house attorneys who are employed and operate as private employees for private employers. We do not opine on matters not before us: employment claims brought by traditional private practice attorneys and, more specifically, whether Karstetter's employment as an in-house attorney employee would survive summary judgment. Additional factual issues may arise should Karstetter decide to proceed with his complaint. Such potential issues are properly resolved at trial.

      Because we conclude that Karstetter alleged facts supporting whistle-blower protection under Diocomes, we do not opine on Karstetter's contention that his actions also qualify as performance of a public duty or obligation. 113 Wash.2d at 618, 782 P.2d 1002. We do, however, take this opportunity to clarify the appropriate application of the Perritt test. See Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 941, 913 P.2d 377 (1996) (establishing the four elements a plaintiff must prove under the Perritt test). The test was named after Professor Henry Perritt Jr., who first proposed the test in his 1991 academic treatise. See Henry H. Perritt, Jr., Workplace Torts: Rights and Liabilities § 3.7 (1991). Courts look to the Perritt test for guidance only when the facts of a claimed wrongful discharge suit "do not fit neatly into" one of the Diocomes categories. Rose v. Anderson Hay & Grain Co., 184 Wash.2d 268, 287, 358 P.2d 1139, 358 P.3d 1139 (2015). When, as here, a plaintiff meets his or her burden to allege facts that "fall directly within the realm of wrongful discharge," the four-part Perritt framework is "unnecessary." Id. ; accord Martin v. Gonzaga Univ., 191 Wash.2d 712, 722-24, 425 P.3d 837 (2018). Therefore, the Court of Appeals' reliance on the Perritt test to dismiss Karstetter's claim was error. See Karstetter, 1 Wash. App. 2d at 831-33, 407 P.3d 384.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE the DETENTION OF: B.M.
    No. 96826-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, June 6, 2019
    ORDER
   ¶1 This case came before the Court on its June 6, 2019, En Banc Conference to consider the petition for review. A majority of the Court voted in favor of the following result:

¶2 Now, therefore, it is hereby

¶3 ORDERED:

¶4 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J.

CHIEF JUSTICE


author: OWENS, J.

text:
    STATE of Washington, Petitioner, v. Brendan Reidy TAYLOR, Respondent.
    No. 96325-8
    Supreme Court of Washington.
    Argued May 28, 2019 Filed July 18, 2019
    Gregory Lee Zempel, Jodi Marie Hammond, Kittitas County Prosecuting Attorneys Office, 205 W. 5th Avenue, Suite 213, Ellensburg, WA 98926-2887, Pamela Beth Loginsky, Washington Association of Prosecuting Attorney, 206 10th Avenue SE, Olympia, WA 98501-1311, for Petitioner.
    Skylar Texas Brett, Law Office of Skylar Brett, PLLC, P.O. Box 18084, Seattle, WA 98118-0084, for Respondent.
   OWENS, J.

¶1 Brendan Reidy Taylor was charged with felony violation of a no-contact order. Before trial, Taylor offered to stipulate that a domestic violence no-contact order was in place and that he knew of the order. The trial court rejected Taylor's offered stipulation and admitted the no-contact order into evidence at trial. The trial court reasoned that the United States Supreme Court's decision in Old Chief v. United States , which requires a trial court to accept a defendant's offered stipulation to the fact of a prior felony conviction in a felon-in-possession prosecution, did not apply to the admission of a domestic violence no-contact order. The jury convicted Taylor as charged, and the Court of Appeals reversed, holding that Old Chief applied to the admission of the no-contact order and required that the trial court exclude the no-contact order from evidence.

¶2 This case presents an issue of first impression: Does the rationale of Old Chief apply to a defendant's offer to stipulate to a domestic violence no-contact order in a felony violation of a no-contact order prosecution, requiring the trial court to accept the offered stipulation and exclude the order under ER 403 ? We decline to extend Old Chief to felony violation of a no-contact order prosecutions. The probative value of a domestic violence no-contact order far outweighs any danger of unfair prejudice, a no-contact order provides the specific restrictions imposed on a defendant, is closely related to a felony violation of a no-contact order charge, and is evidence of multiple elements of that offense. Accordingly, we hold that the trial court did not abuse its discretion in admitting Taylor's no-contact order into evidence, and we reverse and remand to the Court of Appeals.

FACTS

¶3 Taylor and his girlfriend, Anna, began living together in January 2016. Later that year, Taylor was convicted of a domestic violence offense involving Anna. Following Taylor's conviction, the Kittitas County Superior Court entered a domestic violence no-contact order prohibiting Taylor from contacting Anna, finding that Taylor "represent[ed] a credible threat to [her] physical safety." Pl.'s Ex. 35, at 2. The order also forbid Taylor from coming within 1,000 feet of Anna's residence and prohibited Taylor from assaulting or causing any bodily injury to Anna.

¶4 Despite the no-contact order, Taylor and Anna resumed living together. On December 25, less than one week after the superior court entered the no-contact order, a neighbor saw that Taylor and Anna were having a verbal altercation in the driveway of their residence. Anna yelled out to the neighbor, stating that Taylor had hit her and asking the neighbor to call 911. Law enforcement responded to Taylor and Anna's residence soon after. When they arrived, law enforcement observed that Anna had bruising on her forehead and arms, a cut on her hand, and a swollen, black eye. Anna reported that Taylor had struck her in the head and face repeatedly. ¶5 The State charged Taylor with felony violation of a no-contact order predicated on his assault of Anna. Prior to trial, Taylor offered to stipulate that there was a no-contact order in place and that he knew of the no-contact order. Taylor also argued that due to his offer to stipulate, the no-contact order should be excluded from evidence at trial. The State refused to join in Taylor's offered stipulation. The trial court rejected Taylor's offer, ruling:

[T]he general rule is the defendant cannot force the state to accept a stipulation. The exception to the general rule is the Old Chief situation, when there's a conviction, which is the thing that needs to be proven by the state. Under that limited circumstance the defendant may force the state to not be able to utilize the underlying - conviction via a stipulation.
That's not this situation.

Verbatim Report of Proceedings (VRP) at 48. The trial court admitted the no-contact order into evidence at trial. Taylor did not object to the content or form of the no-contact order and did not move to strike any portion of the order. The jury ultimately found Taylor guilty of felony violation of a no-contact order.

¶6 Taylor appealed his conviction. Division Three of the Court of Appeals reversed and remanded for a new trial, holding that the trial court abused its discretion under ER 403 by rejecting Taylor's offered stipulation and admitting the no-contact order into evidence. State v. Taylor, 4 Wash. App. 2d 381, 388-89, 421 P.3d 983 (2018). The Court of Appeals determined that the rationale of Old Chief applies to the admission of no-contact orders because a no-contact order is relevant to prove only a defendant's legal status. Id. at 388, 421 P.3d 983. The court further reasoned that "the risk of unfair prejudice from admitting the no-contact order substantially outweighed its probative value" because "there was no additional probative value to the no-contact order beyond Taylor's offered stipulation." Id. at 389, 421 P.3d 983.

¶7 The State petitioned this court for review, and we granted its petition. State v. Taylor, 192 Wash.2d 1030, 439 P.3d 1063 (2019).

Taylor moved to reverse the deoxyribonucleic acid (DNA) collection and criminal filing legal financial obligations imposed against him pursuant to this court's decision in State v. Ramirez, 191 Wash.2d 732, 426 P.3d 714 (2018). We denied Taylor's motion without prejudice "to raising the issue at a resentencing hearing in the superior court." Order, State v. Taylor, No. 96325-8, at 1 (Wash. Feb. 20, 2019).

ISSUE

¶8 Did the trial court abuse its discretion under ER 403 by rejecting Taylor's offered stipulation and admitting a domestic violence no-contact order into evidence in a felony violation of a no-contact order prosecution?

ANALYSIS

¶9 The State argues that the trial court did not abuse its discretion under ER 403 by rejecting Taylor's offered stipulation and admitting the no-contact order because a domestic violence no-contact order is admitted to prove more than a defendant's legal status and because the probative value of the no-contact order substantially outweighs any danger of unfair prejudice. We agree. We hold that Old Chief does not apply to the admission of domestic violence no-contact orders in felony violation of a no-contact order prosecutions. We also hold that the State is not required to accept a defendant's offer to stipulate to the existence of a domestic violence no-contact order and that a trial court does not abuse its discretion under ER 403 by admitting the no-contact order into evidence.

¶10 ER 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." A danger of unfair prejudice exists when evidence is more likely to stimulate an emotional response than a rational decision. State v. Beadle , 173 Wash.2d 97, 120, 265 P.3d 863 (2011). We review a trial court's ruling under ER 403 for abuse of discretion. State v. Scherf, 192 Wash.2d 350, 387, 429 P.3d 776 (2018). A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds or reasons. Id.

¶11 "A 'stipulation' is an express waiver that concedes, for purposes of trial, the truth of some alleged fact, with the effect that one party need offer no evidence to prove it and the other is not allowed to disprove it." State v. Case, 187 Wash.2d 85, 90, 384 P.3d 1140 (2016). As a general rule, the State is not required to accept a defendant's offered stipulation regarding an element of the crime charged. See State v. Brett, 126 Wash.2d 136, 159, 892 P.2d 29 (1995). In addition,

"[T]he State is not automatically precluded from presenting its evidence on an issue merely because the defendant offers a stipulation. ... If the State does not agree to the stipulation, the issue remains open and the State can proceed to prove its case in the manner that it sees fit."

State v. Pirtle, 127 Wash.2d 628, 652, 904 P.2d 245 (1995) (alterations in original) (quoting State v. Rice, 110 Wash.2d 577, 598-99, 757 P.2d 889 (1988) ). However, ER 403 requires that the State accept a defendant's offered stipulation when unfair prejudice substantially outweighs the relevance of the proffered evidence. Id. ; State v. Johnson, 90 Wash. App. 54, 63, 950 P.2d 981 (1998). In such circumstances, the trial court also must accept the defendant's stipulation and exclude the proffered evidence under ER 403. Johnson, 90 Wash. App. at 63, 950 P.2d 981.

¶12 The United States Supreme Court recognized this exception in Old Chief, 519 U.S. at 191-92, 117 S.Ct. 644. In Old Chief, the defendant was charged with violating a federal statute that prohibited possession of a firearm by anyone with a prior felony conviction. Id. at 174, 117 S. Ct. 644. Prior to trial, the defendant offered to stipulate that he had been convicted of a qualifying felony. Id. at 175, 117 S. Ct. 644. The defendant "argued that the offer to stipulate to the fact of the prior conviction rendered evidence of the name and nature of the offense inadmissible under Rule 403 of the Federal Rules of Evidence, the danger being that unfair prejudice from that evidence would substantially outweigh its probative value." Id. The prosecution refused to join in the stipulation, seeking to admit the order of judgment for the defendant's prior conviction into evidence. Id. at 177, 117 S. Ct. 644. The trial court admitted the order of judgment, and the jury returned a guilty verdict. Id.

¶13 The Supreme Court reversed the defendant's conviction, holding that a trial court abuses its discretion under Federal Rule of Evidence 403 when it rejects a defendant's offer to stipulate to the fact of a prior felony conviction to prove his or her felon status in a felon-in-possession prosecution. Id. at 174, 117 S. Ct. 644. Significantly, the Court was careful to limit its holding to "cases involving proof of felon status." Id. at 183 n.7, 117 S. Ct. 644. The Court reasoned that the trial court's decision to reject the defendant's offer to stipulate and admit the order of judgment amounted to an abuse of discretion because the danger of unfair prejudice substantially outweighed the order of judgment's probative value. Id. at 191, 117 S. Ct. 644.

¶14 The Court noted that the prosecution is generally entitled to prove its case by evidence of its own choice in order to present its case with full evidentiary force. Id. at 186-87, 117 S. Ct. 644. However, the Court determined that this general rule has "virtually no application when the point at issue is a defendant's legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him." Id. at 190, 117 S. Ct. 644. The Court reasoned that the prosecution was required to prove only that the defendant's prior conviction fell within a broad category of qualifying felonies. Id. at 190-91, 117 S. Ct. 644. As a result, there was no appreciable difference in the evidentiary value of a stipulation to a qualifying felony and admission of the official record of that felony. Id. at 191, 117 S. Ct. 644. Moreover, the Court highlighted that "proof of the defendant's [felon] status goes to an element entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense." Id.

¶15 Washington courts have adopted the exception recognized in Old Chief and applied it to our state's identical evidence rule, ER 403. See Johnson , 90 Wash. App. at 63, 950 P.2d 981 ; State v. Garcia , 177 Wash. App. 769, 777-78, 313 P.3d 422 (2013). However, Washington courts have not yet expanded the Old Chief rationale beyond the admission of prior convictions in felon-in-possession prosecutions. See State v. Ortega, 134 Wash. App. 617, 624-25, 142 P.3d 175 (2006) (expressing doubt as to whether Old Chief extends to the admission of prior violation of a protection order convictions). This case presents an issue of first impression: Does the rationale of Old Chief apply such that a trial court must accept an offer to stipulate to a prior no-contact order in a felony violation of a no-contact order prosecution and exclude the order under ER 403 ?

¶16 Because this is an issue of first impression, it is helpful to explore how other courts have resolved whether Old Chief extends beyond the admission of prior convictions to prove only felon status. See In re Det. Of Pouncy, 168 Wash.2d 382, 392 n.9, 229 P.3d 678 (2010) ("Where our evidence rules mirror their federal counterparts, we may look to federal case law interpreting the federal rules as persuasive authority in interpreting our own rules."). Both federal courts and other state courts have widely, but not universally, declined to apply the Old Chief rationale to other offenses or elements. See, e.g., United States v. Williams , 238 F.3d 871, 875-76 (7th Cir. 2001) (declining to extend Old Chief to a defendant's offer to stipulate to the elements of knowledge and intent in a drug possession prosecution); Commonwealth v. Jemison, 626 Pa. 489, 501-02, 98 A.3d 1254 (2014) (finding Old Chief distinguishable because the Pennsylvania felon-in-possession statute requires the commission of a specifically enumerated prior offense). These jurisdictions have reasoned that Old Chief is expressly limited to only the admission of prior convictions as proof of felon status. See, e.g., United States v. Odeh, 815 F.3d 968, 982 (6th Cir. 2016) ("Because this case does not involve a prosecution under the felon-in-possession statute, the Old Chief exception does not apply."); People v. Brooks, 3 Cal. 5th 1, 38, 396 P.3d 480, 219 Cal. Rptr. 3d 331 ("Defense counsel's proposed stipulation ... did not concern defendant's status as a convicted felon. Old Chief's exception to the general rule is not applicable here.") cert. denied, --- U.S. ----, 138 S. Ct. 516, 199 L.Ed.2d 397 (2017). Courts have also noted that many of the issues addressed in Old Chief do not apply to other offenses: past crimes generally provide a narrative of events and prove multiple elements of the current charged offense. United States v. Luck, 852 F.3d 615, 624-25 (6th Cir. 2017).

¶17 We join these other jurisdictions and hold that the limited Old Chief rationale does not apply to the admission of domestic violence no-contact orders in felony violation of a no-contact order prosecutions. The admission of prior felony convictions in felon-in-possession prosecutions, as in Old Chief, is distinguishable from the admission of domestic violence no-contact orders.

¶18 Many of the concerns the Supreme Court highlighted in Old Chief are absent in felony violation of a no-contact order prosecutions. First, the Old Chief Court determined that the danger of unfair prejudice substantially outweighs the probative value of a prior felony conviction in part because a prior conviction involves actions independent of a felon-in-possession offense and is offered to prove that a defendant committed a general qualifying felony. But in a felony violation of a no-contact order case, the defendant is charged with violating the very no-contact order sought to be admitted. What's more, the State must show that the defendant violated a specific provision of that particular no-contact order. Accordingly, a no-contact order is closely related to a felony violation of a no-contact order charge, and the probative value of introducing that no-contact order into evidence is greater than the probative value of showing a general felony conviction in Old Chief.

¶19 Additionally, while the Old Chief Court decided that the general rule that the prosecution can present evidence of its own choosing does not apply "when the point at issue is a defendant's legal status," 519 U.S. at 190, 117 S.Ct. 644, a no-contact order establishes more than mere status. A domestic violence no-contact order provides the date the order was entered, the order's expiration date, the protected party, the specific restrictions on contact between the defendant and the protected party, that consent cannot be used as a defense, and that the defendant knows of the order's existence and its contents. The introduction of a no-contact order provides evidence of multiple elements of a felony violation of a no-contact order charge and allows the State to present the jury with a full narrative of the events leading to the charged offense. Even the Old Chief Court recognized that "the prosecutor's choice will generally survive a Rule 403 analysis when a defendant seeks to force the substitution of an admission for evidence creating a coherent narrative of his thoughts and actions in perpetrating the offense for which he is being tried." Id. at 192, 117 S. Ct. 644.

¶20 Moreover, the Supreme Court concluded in Old Chief that a defendant's offered stipulation to a qualifying felony conviction is equivalent to the prosecution's order of judgment for that felony. But the same cannot be said here. To prove Taylor's felony violation of a no-contact order charge, the State was required to prove that there was a no-contact order in place that applied to Taylor, as well as that he knew of the order, violated a provision of the order, and committed an assault. See RCW 26.50.110(1), (4). Taylor offered to stipulate that a no-contact order was in place and that he knew of the order, but his offered stipulation was insufficient in comparison to the no-contact order itself. By introducing the no-contact order, the State was able to show that a valid no-contact order was in place and the specific restrictions of the order Taylor violated. Excluding the no-contact order from evidence would allow Taylor to circumvent the full evidentiary force of the State's case. See Old Chief, 519 U.S. at 186-87, 117 S.Ct. 644 (stating that a "defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it."). Because the admission of prior felony convictions in felon-in-possession prosecutions is distinguishable from the admission of domestic violence no-contact orders, we decline to apply Old Chief here.

¶21 Taylor contends that inclusion of the term "Post Conviction" on the admitted domestic violence no-contact order was inherently prejudicial because the term indicated that he had been convicted of a domestic violence offense. Pl.'s Ex. 35, at 1. "A party may assign evidentiary error on appeal only on a specific ground made at trial." State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). Taylor did not make a specific objection to the content or form of the domestic violence no-contact order or move to strike any portion of the order when it was admitted at trial. Moreover, Taylor did not argue that the checked "Post Conviction" box on the no-contact order prejudiced him. Accordingly, Taylor failed to preserve this issue for our review. Despite this, we note that a trial court may redact any portion of a no-contact order that poses a risk of unfair prejudice. Cf. State v. Roberts , 142 Wn.2d 471, 492-94, 14 P.3d 713 (2000). Indeed, the State conceded at oral argument that "[a] judge could exercise his or her discretion to redact what kind of order it is .... [The type of order] may trigger an emotional response." Wash. Supreme Court oral argument, State v. Taylor , No. 96325-8 (May 28, 2019), at 7 min., 36 sec., video recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org.

¶22 Taylor's domestic violence no-contact order was admissible under ER 403 because the probative value of the no-contact order far outweighed any danger of unfair prejudice.

The no-contact order had significant probative value as to Taylor's felony violation of a no-contact order charge. The no-contact order provided the specific restrictions imposed on Taylor, was closely related to the charged offense, and offered evidence of multiple elements of the offense. In addition, there was nothing particularly inflammatory or unfairly prejudicial about the no-contact order. The no-contact order did not describe the nature of Taylor's prior domestic violence offense and was not more likely to stimulate an emotional, rather than a rational, decision from the jury. As a result, admission of the domestic violence no-contact order did not create a risk of unfair prejudice to Taylor. Consequently, the State was not required to accept Taylor's offered stipulation, and the trial court's decision to admit the no-contact order into evidence under ER 403 was based on tenable grounds. Thus, the trial court did not abuse its discretion.

CONCLUSION

¶23 We hold that Old Chief does not apply to the admission of domestic violence no-contact orders in felony violation of a no-contact order prosecutions. Stated another way, we hold that the State is not required to accept a defendant's offer to stipulate to the existence of a domestic violence no-contact order and a trial court does not abuse its discretion under ER 403 by declining to accept a defendant's offered stipulation and admitting a domestic violence no-contact order into evidence. Accordingly, the trial court's decision to admit Taylor's domestic violence no-contact order was based on tenable grounds and reasons, and the trial court did not abuse its discretion. We reverse and remand to the Court of Appeals for further proceedings in that court.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Madsen, J.

Owens, J.

Stephens, J.

Wiggins, J.

Gordon McCloud, J.

Yu, J.

      519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997).

      We refer to Anna by only her first name to avoid subjecting her to unwanted publicity. We intend no disrespect.