WALLA WALLA -- A visiting judge late Wednesday afternoon dismissed the more serious of two charges against a well-known local defense attorney accused of improperly issuing a document purporting to be a subpoena in connection with a client's business dispute.Terry McConn can be reached at email@example.com or 526-8319.
William McCool, whose Superior Court trial began Wednesday morning, faced a felony charge of improperly obtaining financial information. But Judge Richard W. Miller of Adams County ruled after the prosecution completed its side of the case there "isn't sufficient evidence to establish all the elements" of the crime.
Miller -- who is presiding over the non-jury trial at the Walla Walla County Courthouse -- will render a verdict on the remaining charge against McCool after hearing the defense side today.
McCool said in an interview after Miller dismissed the felony that "it's appropriate under the law and the facts."
"I'm pleased, of course," McCool added.
He still is charged with barratry, which is a lesser, misdemeanor crime. However, an attorney may be disbarred if convicted.
The charge of barratry stems from an allegation that last year McCool sent a man a subpoena without the required judicial process in an attempt to get information for local real estate broker and Preferred Properties owner Trisha Bush.
Bush was involved in an acrimonious business dispute with Nick Ellenburg, publisher of the now-defunct Foyer magazine.
Assistant Attorney General Justin Ericksen said in his opening statement Wednesday that McCool was "abusing his position and abusing the legal process" in seeking privileged information by issuing the subpoena.
But McCool's attorney, Janelle Carman, said, "Reasonable and experienced attorneys make mistakes with regard to the issuance of subpoenas." A court rule spells out specific requirements and Carman maintains that proper procedures weren't even followed by Ericksen's office in issuing subpoenas for this criminal trial McCool is undergoing.
Walla Walla City Attorney Tim Donaldson testified Wednesday afternoon he once made a mistake by issuing a subpoena across state lines. "What I did was improper," Donaldson said, adding he since has taken steps to assure the procedure won't be repeated. But "I don't believe I was committing a crime," he said, because "there was no criminal intent at all."
A charge of barratry is rarely filed against a defendant and Donaldson smiled at the beginning of his testimony, saying, "I haven't heard of it since reading from the common law."
Bush -- who advertised in Foyer -- said she had reason to believe Ellenburg was having thousands fewer copies of the magazine printed than what he had agreed to print, thereby misleading and shortchanging advertisers. She testified Wednesday that Ellenburg claimed at one point that 20,000 copies were being printed.
But Ellenburg had denied that when he took the stand earlier, saying he tried to average a 10,000-print run during Foyer's existence between 2005 and 2008.
Officials allege that in April 2008, McCool sent to Scott Rowland, a representative of a Salem-based company that printed the magazine, a document purporting to be a subpoena. The document commanded Rowland to appear for a deposition at McCool's law office and to take along all records relating to receipts showing publication of Foyer for the past year. Alternatively Rowland could send information disclosing the number of copies printed.
Officials say the subpoena was improper because no lawsuit related to the business dispute had been filed or was pending in the court system.
Rowland testified he previously had had a cordial phone conversation with McCool and told him "if I was legally obligated I would disclose (the print quantities)." When Rowland received the "subpoena," he initially believed he had to comply, but later learned the document was improperly issued.
McCool has admitted in court documents that he made a mistake in issuing the "subpoena," but thought at the time it was proper. He also said he never tried to obtain financial information -- defined by law as assets, liabilities or credit data -- and sent Rowland the document so as not to place him in a "compromised situation."
Ericksen maintains Rowland made it clear he would only respond to a legitimate subpoena and that McCool undoubtedly would glean financial information about Foyer if he was provided with the number of magazine copies that were printed.
Ericksen told Miller on Wednesday, "What we have here is more than a mistake," adding there is evidence McCool had motive and intent to misrepresent the document.
But Bush, who testified she previously dated McCool, said, "Bill McCool would never do anything illegal or immoral."