IN THE MATTER OF JON E. CUSHMAN, An Attorney at Law, Respondent.
File No. 15-112
Michael W. Cotter Chief Disciplinary Counsel P.O. Box 1
Michael W. Cotter Chief Disciplinary Counsel
Cushman (Respondent), Shelly Smith (Court Reporter) Office
Administrator, Shelly Smith (Court Reporter) Office
AMENDED COMPLAINT MRPC 8.4(C), 8.4(D), 3.1, 3.4, 1.7,
1.8, 8.1, AND 3.3
leave of the Commission on Practice granted on April 19,
2018, the Office of Disciplinary Counsel for the State of
Montana ("ODC") hereby amends its
complaint and charges Jon E. Cushman with
professional misconduct as follows:
E. Cushman, hereinafter referred to as "Respondent,
" is licensed to practice law in Washington, having been
admitted in 1986. He is also licensed to practice law in
Oregon. He has been admitted pro hac vice to appear
in Montana state courts, as follows:
a. In 2003, Respondent was granted pro hac vice
status to appear on behalf of Donald Abbey in Lake County
District Court and Flathead County District Court.
b. On October 3, 2011, Respondent was admitted pro hac
vice to appear on behalf of the defendant Glacier
Construction Partners, LLC (hereinafter "GCP") in
Abbey/Land, LLC v. Glacier Construction Partners,
Defendant, and James River Insurance Company,
Intervenor, Flathead County District Court, Cause No.
c. On October 25, 2011, Respondent was admitted pro hac
vice to appear on behalf of plaintiff GCP in Glacier
Construction Partners v. Interstate Mechanical, Inc.,
Abbey/Land, LLC, et al., Lake County District Court,
Cause No. DV-11-276;
here, on August 5, 2011, Respondent appeared on behalf GCP as
defendant in Charter Oaks Fire Insurance Company, et al.
v. Interstate Mechanical, Inc., Glacier Construction
Partners, LLC, et al, United States District Court for
the District of Oregon, Case No. 3:10-cv-01505-PK.
the time of his most recent admission pro hac vice,
Respondent agreed to comply with all the applicable statutes,
laws, and procedural rules of the State of Montana, and be
bound by the Montana Rules of Professional Conduct.
Respondent further agreed to submit to the pro hac
vice rules and the Montana Rules for Lawyer Disciplinary
Montana Supreme Court has approved and adopted the Montana
Rules of Professional Conduct ("MRPC")»
governing the ethical conduct of attorneys licensed to
practice in the State of Montana, which Rules were in effect
at all times mentioned in this Complaint.
2001, Donald Abbey (hereinafter "Abbey"), a real
estate developer from Southern California, purchased Shelter
Island, a small island in Flathead Lake, in order to build a
personal residence. Abbey bought the island through
Abbey/Land, LLC (hereinafter "Abbey/Land").
Abbey/Land is a corporation wholly owned by Abbey.
Abbey/Land began construction of a large residence on the
island but fell into disputes with the original general
contractor. In 2003, Abbey formed GCP to act as a new general
contractor for the project. GCP was also solely owned by
Abbey. GCP's only construction project was the residence
on Shelter Island.
May 1, 2006, Abbey signed the Abbey/Land-GCP construction
contract (hereinafter "General Contract") on behalf
of each entity. The General Contract included a mandatory
arbitration clause (¶3.4), which limited the prevailing
party's recovery by excluding consequential, punitive or
other damages beyond the prevailing party's actual
was not an independent at-risk general contractor because its
sole function was to serve as a construction agent for
Abbey/Land; GCP was reimbursed for the cost of work performed
and relied on Abbey as its sole source of funds. The General
Contract contained no provision for a profit for GCP.
entered a $1.4 million contract with Interstate Mechanical,
Inc. (hereinafter "IMI") for the design and
installation of the plumbing and heating-cooling system
(HVAC) for the house. Subsequent change orders increased the
value of that contract by approximately $1 million.
2009, disputes arose among IMI and GCP and other
subcontractors and insurers. As a result of these disputes,
multiple lawsuits were initiated in state and federal courts
between 2009 and 2011, and arbitration was also conducted and
September 23, 2009, in Flathead County District Court,
Abbey/Land and GCP, as co-plaintiffs, filed a lawsuit against
multiple defendants, including IMI. The matter was styled:
Abbey/Land LLC and Glacier Construction Partners, LLC v.
Interstate Mechanical, Inc., et al. Federal District
Court Judge Donald Molloy compelled GCP and IMI to arbitrate
their disputes and stayed the Flathead County case by Order
entered May 12, 2010 pending arbitration.
the IMI v. GCP Arbitration, IMI sued GCP for breach
of contract, violation of the Montana Prompt Payment Act,
negligence and other claims; and GCP made affirmative claims
against IMI for damages. The Arbitrator awarded damages to
GCP in the amount of $497, 549.11 on its affirmative claims
and $83, 525.00 to IMI, resulting in a net award to GCP in
the sum of $414, 021.11. Among other things, the Arbitrator
found that GCP "was in complete control of the
construction project...when the HVAC system caused an air
handler to freeze, resulting in broken water pipes..."
which flooded the Main House. Some of the claims were
rejected because the arbitrator found fault with GCP in the
way the project was managed and that the categories of
damages were the shared responsibility of both GCP and IMI.
Subsequently, the award was affirmed in the Montana Federal
District Court by U.S. District Court Judge Donald Molloy on
March 1, 2011. Accordingly, although Abbey wholly owned both
Abbey/Land and GCP, Respondent ultimately concluded that
Abbey/Land could state a cause of action for damages against
GCP, their interests being adverse.
March 15, 2011, one of Abbey/Land and GCP's lawyers,
Michael Black, advised Abbey that if Abbey/Land were to file
a formal claim against GCP, the language of the arbitration
clause in the General Contract would limit Abbey/Land to the
recovery of only actual damages against GCP.
some point in time subsequent to the March, 2011 confirmation
of the Arbitrator's award, Abbey/Land and GCP entered
into a First Amendment to General Contract, deleting the
Section 3.4 arbitration clause in its entirety and stating
the agreement was "entered into as of June 9,
2009...." This document was signed by Abbey for both
entities. The document was not created on June 9, 2009, but
was actually created after the arbitration award was affirmed
with the intention to allow Abbey/Land to sue GCP for both
actual damages, and consequential and punitive damages.
Respondent, as the attorney for GCP and Abbey/Land, knew as
early as February 2012, that the First Amendment to the
General Contract had been signed and backdated by Donald
Abbey on or about April 15, 2011, deleting Section 3.4 of the
General Contract (the arbitration clause), which was intended
to allow Abbey's corporations to claim actual,
consequential and punitive damages from various insurance
Throughout 2011, 2012 and well into 2013, the First Amendment
to General Contract was unknown to GCP's attorney, James
Cumming, and to Trent Baker, who replaced Cumming at the
Respondent's insistence. This amendment did not surface
in any Abbey/Land or GCP litigation until July 19, 2013, when
Respondent's co-counsel George Best (hereinafter
"Best") attached it to a declaration after a $12
million confession of judgment had been filed in the Flathead
County case. (See, ¶¶27-3O, below.)
April 8, 2011, following the Arbitrator's Award and Judge
Molloy's Order affirming that award, GCP dismissed its
claims in the Flathead County case against all defendants
September 1, 2011, Respondent petitioned the State Bar of
Montana for admission to appear pro hac vice in the
Flathead County case on behalf of his client, GCP. In his
application, Respondent advised that George Best would appear
as counsel of record and Respondent would appear as
Subsequently, on September 23, 2011, Abbey/Land filed its
Second Amended Complaint, adding GCP as a party defendant. In
this newly amended complaint, Abbey/Land sought the
consequential and punitive damages from all the defendants,
including GCP, that had been precluded under the arbitration
clause. GCP admitted all allegations of the newly amended
complaint against it, and did not contest the claims for
consequential and punitive damages. Representing GCP,
Respondent then tendered Abbey/Land's claims to James
River Insurance Company ("James River"), which
refused to defend or ...