IN THE MATTER OF: JON E. CUSHMAN, An Attorney at Law, Respondent.
ORDER OF DISCIPLINE
November 9, 2017, a formal disciplinary complaint was filed
in this matter against attorney Jon E. Cushman, who is
licensed to practice law in Washington and Oregon and had
been admitted to appear pro hac vice in Montana state courts
on three occasions. An amended complaint was filed on April
30, 2018. The complaint and amended complaint may be reviewed
by any interested person in the office of the Clerk of this
Commission on Practice (Commission) held a hearing on the
complaint on January 9 and 10, 2019. Both the Office of
Disciplinary Counsel (ODC) and Cushman, who appeared without
counsel, presented argument and questioned witnesses.
6, 2019, the Commission submitted to this Court its Findings
of Fact, Conclusions of Law, and Recommendation for
Discipline. ODC and Cushman each filed objections to the
Commission's decision and responses to each other's
objections. Cushman further filed a reply to ODC's
response to his objections.
many of Cushman's numerous objections stem from his claim
that the Commission improperly found facts by taking judicial
notice of the litigation underlying ODC's ethics
complaint, we recite the facts in some detail from the record
developed before the Commission during the hearing.
AND PROCEDURAL BACKGROUND
disciplinary matter arose from Cushman's representation
of two Montana limited liability companies-Abbey/Land, LLC
(Abbey/Land), and Glacier Construction Partners, LLC (GCP).
Both entities were formed by real estate developer Donald
Abbey, who was also the sole member of each entity.
Abbey/Land purchased Shelter Island in Flathead Lake and
commenced construction of a residence there. GCP acted as the
general contractor for that construction project. Abbey/Land
was GCP's only client, and this project was GCP's
only activity. Under the terms of the contract between
Abbey/Land and GCP- which Abbey signed on May 1, 2006, for
both Abbey/Land and GCP-any controversy or claim arising out
of it was subject to arbitration, and damages were limited to
actual damages, with punitive and consequential damages
specifically barred from being awarded in arbitration.
one of its subcontractors, Interstate Mechanical, Inc. (IMI),
became involved in a dispute over the project. Abbey/Land and
GCP commenced litigation against IMI. GCP, recognizing that
it might have some liability, asked its comprehensive general
liability insurer, James River Insurance, to provide a
defense, but James River declined. Arbitration occurred, and
the arbitrator awarded both GCP and IMI some recovery against
the other. The arbitrator concluded that GCP's own
negligence contributed to some of the losses.
April 2011, GCP voluntarily dismissed itself from the
litigation against IMI. Abbey/Land filed a Second Amended
Complaint, naming GCP as a defendant. Montana attorney
Michael Black, who had represented both Abbey/Land and GCP,
thereafter withdrew his representation of both entities.
September 2011, Montana attorney George Best appeared as
counsel for GCP and moved for the admission of Cushman pro
hac vice. The Eleventh Judicial District Court, Flathead
County, granted pro hac vice admission. Cushman also was
admitted pro hac vice, upon motion of Montana attorney John
Mercer, to represent GCP in a declaratory judgment action
filed in Lake County to determine the defense and indemnity
obligations of various insurers, including those insuring
Abbey/Land and GCP.
also worked on Abbey's behalf to resolve a fee dispute
which had arisen over Black's work as counsel for
Abbey/Land. Cushman informed Black that Abbey/Land could not
pay his fees and suggested Black assist in formulating a
malpractice claim against himself so that his malpractice
insurer would pay Abbey, who would in turn pay Black from the
proceeds. Black declined and later filed suit against
Abbey/Land to recover his fees.
October 2011, GCP again tendered James River for defense, and
James River again denied coverage and declined to defend. In
February 2012, Montana attorney James Cumming appeared as
co-counsel for GCP. He was hired by Continental Insurance
Company (Continental), another of GCP's insurers. Cumming
testified that he became concerned that GCP was admitting
things it should not admit and failing to contest things he
believed were contestable. At Cumming's request,
Continental authorized him to consult with Mike Herbst, a
construction contractor, to explore liability issues. Cumming
wanted GCP to raise affirmative defenses in response to the
Second Amended Complaint, including the "clear,
concise" arbitration clause in the Abbey/Land-GCP
contract. However, when Cumming broached the subject with
Cushman, Cushman resisted: "He didn't think that it
would be good strategy. It was sort of in the realm of this
is to be a cooperative litigation; that I was there
essentially to look for additional claims, sort of as a
case progressed, Cumming became increasingly concerned about
unlawful collusion. Cumming stated, "I was concerned
that I might be participating in a fraud upon the
reprimanded Cumming that Cushman had not authorized hiring
Herbst. Later, he e-mailed Cumming and stated that he wanted
Cumming "to maintain strictest silence on that expert
until I decide we want to identify him. Until then I do not
want [Continental] or anyone else to get any information
about him, or about the project from him." A short time
later, a representative of Continental informed Cumming that
he was fired from representing GCP at Cushman's request.
answer to Abbey/Land's Second Amended Complaint, signed
by Cushman, contained none of the affirmative defenses
Cumming had suggested. Rather, in the words of the
Commission, GCP "rolled over and played dead." The
Despite the arbitrator's findings that Abbey/Land and
Donald Abbey had played a role in causing the claimed
damages, that some types of damages were not legally
recoverable under the contract and that certain actions of
IMI had actually improved the quality of the project, the GCP
Answer admitted each allegation in the Second
Amended Complaint and did not raise the provision in the
General Contract precluding all but actual damages. The sole
affirmative "defense" GCP raised was that all of
Abbey/Land's damages were caused by the conduct of
others. Though obvious to virtually any capable litigator,
GCP did not raise common affirmative defenses that would have
limited, if not eliminated, GCP's liability to
Abbey/Land. These include failure to mitigate damages,
comparative/contributory negligence, the arbitration
requirement, the provision limiting damages,
seriatim legal proceedings, the 2-year Statute of
Limitations for damage to real property, or the preclusive
effect of the arbitration award itself.
April 2012, Cushman invited Montana attorney Terry Trieweiler
to meet with Cushman and Abbey to discuss becoming counsel
for Abbey/Land. Trieweiler became counsel of record for
Abbey/Land in the Flathead County litigation on July 5, 2012.
Trieweiler testified that initially, he did not understand
the relationship between the parties. He believed Cushman
represented Abbey, not GCP, and that Cushman was acting on
Abbey's behalf in getting Trieweiler up to speed on the
after Trieweiler appeared for Abbey/Land, an insurer that was
part of related litigation in Oregon requested both
Abbey/Land and GCP to designate representatives for Rule
30(b)(6) depositions. Cushman suggested William
"Bill" Matteson, a former Abbey/Land employee, to
Trieweiler. Cushman later sent an e-mail to Trieweiler,
Abbey, and others, which explained that Cushman had contacted
Matteson and gotten his agreement to be the designee. He
added, "I told him we would prepare him for each
subject," and suggested that they meet with Matteson and
Nathan Steinbeck, the Rule 30(b)(6) designee for GCP,
"together to go over this stuff at the same time."
Trieweiler countered that he was willing to prepare Matteson,
and he was opposed to preparing Steinbeck and Matteson at the
same meeting. He testified that he believed preparing the
designees together would not be appropriate.
Steinbeck's Rule 30(b)(6) deposition, Cushman wrote an
e-mail to Trieweiler, Abbey, and others in which he stated
that he had met with Matteson for eleven hours, during which
time they "covered many documents which may be presented
to [Matteson] at deposition." Cushman again recommended
meeting with both Matteson and Steinbeck to "set both of
these witnesses on a compatible course." Trieweiler
resisted Cushman's efforts to have a joint meeting. As
the deposition date approached, Cushman expressed a desire to
meet with Trieweiler and Matteson. Trieweiler disagreed,
opining this would waive privilege; Cushman insisted his
conversations with Matteson remained privileged because
Matteson was a former vice president of GCP. Cushman then
e-mailed Matteson and informed him, "every communication
we have ever had is in your capacity as a Glacier VP"
and that Matteson was prohibited from disclosing those
conversations to anyone. He added, "If they asked who
you met with in preparation for this deposition as a 30(b)(6)
designee of Abbey/Land, that was [Trieweiler]."
Trieweiler testified that during Matteson's deposition,
Matteson was asked who had prepared him for the deposition,
and Matteson responded that Trieweiler had done so. Matteson
was further asked who he had met with and he responded that
he had met with Trieweiler; he did not mention Cushman's
of his representation of Abbey/Land, Trieweiler worked with
accountant Paul Pederson to develop damage estimates.
Pederson provided Trieweiler with a report of estimated
damages, and Trieweiler forwarded that report to Cushman.
After discussing the matter with Cushman, however, Pederson
increased his estimate, including adding an estimate for
increased electricity usage totaling $767, 000.
arose between Trieweiler and Cushman over how to proceed with
the case. On numerous occasions, Trieweiler expressed
frustration with Cushman overstepping the bounds of his role
as counsel for GCP and attempting to dictate Trieweiler's
course of action for Abbey/Land. By March 2013, the conflict
reached a boiling point. Trieweiler explained in his
testimony that after he questioned Cushman's valuation of
the case, Cushman began to undermine Trieweiler's advice
to Abbey, and Trieweiler wanted to ensure that Abbey was
aware of the lack of factual support for the damages Cushman
was alleging. Trieweiler testified that he was never able to
document more than about $300, 000 in damages.
March 22, 2013, Trieweiler provided Abbey with a memorandum
in which Trieweiler reported that Abbey/Land's documented
damages were between approximately $225, 000 and $300, 000,
but if the residence's drain field was not functional, it
was possible that Abbey/Land could claim an additional $4.2
million in damages. On March 29, 2013, Cushman demanded that
Abbey terminate Trieweiler as Abbey/Land counsel immediately,
adding, "GCP will immediately, today after [Trieweiler]
is fired, stipulate to judgment in favor of A/L."
Cushman sent Abbey a draft e-mail to send to Trieweiler,
terminating his services. Abbey sent Trieweiler the
termination e-mail later that day.
2013, Abbey entered into contingent fee agreements with Best
and Cushman which provided they would receive compensation
for their services in the amount of 50% of net recovery
"on any judgment or settlement entered in favor of
Abbey/Land or GCP" in the pending litigation.
(Emphasis added.) Shortly thereafter, Abbey/Land and GCP
settled Abbey/Land's claims against GCP. In exchange for
Abbey/Land agreeing not to execute against GCP, GCP agreed to
confess judgment in the amount ...