Admissions vs Stipulations, Corrupt vs Dumb Lawyers
- Peter Schneider
- Aug 15
- 6 min read
Updated: Aug 17
I've previously written about the important distinctions between admissions and stipulations here and here. If there is one thing judges don't like, it's not having options. Tied hands. Forced actions. Having to find for a party when they would prefer to help the other.
This played out when the defendants in the Nathen Barton v Joe Delfgauw litigation stipulated to willfully destroying evidence, and then wanted to take it back. Their lawyer, Donna Gibson, apparently thought that a simple "oops" on her part would get it done without a kerfuffle, but a kerfuffle is what she got. Ms. Gibson is now on her way to the Washington State Bar Association.
This matter is before the undersigned pursuant to United States District Court Chief Judge David Estudillo’s Order on Sanctions and Referral under LCR 83.3 (“Referral Order”). Dkt. No. 490. Chief Judge Estudillo referred the matter under Local Civil Rule (“LCR”) 83.3 for consideration of whether professional discipline against Donna Gibson, Counsel for Defendants (“Counsel Gibson”), is warranted. On June 30, 2025, the undersigned issued an Order requiring Counsel Gibson to show cause why this matter should not be referred to the Washington State Bar Association (“WSBA”) for consideration of whether Counsel Gibson had failed to comply with Washington Rule of Professional Conduct (“RPC”) 1.3 by failing to act with reasonable diligence. Dkt. No. 492. Having considered Counsel Gibson’s response (Dkt. No. 508), Plaintiff’s reply (Dkt. No. 509), and the relevant record, the undersigned concludes that a referral to the WSBA for consideration of whether Counsel Gibson should be disciplined for failure to comply with Washington Rule of Professional Conduct 1.3 is appropriate under the circumstances. Chief Judge Estudillo’s Referral Order laid out both the case history and the failures of Counsel Gibson that led first to that referral, and now to this one. See Dkt. No. 490 at 1–6. This Court will not repeat that history here but summarizes that Chief Judge Estudillo’s Referral Order was based upon the following: (1) Counsel Gibson’s filing of a stipulation that, due to a lack of diligence, contained a false statement that was prejudicial to her clients; [the court keeps pushing this narrative even though the defendants own document admitted the statement was true. Ms. Gibson must have thought that changing her story again to the stipulation being true would just dig her hole twice as deep.] (2) the history of sanctions imposed in this case against Defendants—including for carelessness by Counsel Gibson; and (3) Counsel Gibson’s history of discipline by the Washington State Bar Association (“WSBA”) for other failures of diligence. The specific incident that proverbially broke the camel’s back involved Counsel Gibson signing and filing a stipulation in which her clients, the Defendants in this case, admitted to purposely destroying evidence (Dkt. No. 378 ¶ 30), a statement Defendants subsequently claimed was false and erroneously filed due to a lack of diligence (Dkt. No. 429 (Defendants’ Response to Plaintiff’s Motion for Reconsideration) at 3). In responding to the Order to Show Cause issued by the undersigned, Counsel Gibson repeats what she stated in her response (Dkt. No. 472) to a related Order to Show Cause issued by Chief Judge Estudillo (Dkt. No. 462), as well as in other previous filings related to requests for sanctions by Plaintiff. Compare Dkt. No. 508 at 2–3, with Dkt. No. 472 at 2, 4–5; see also Dkt. No. 427 (Gibson Decl.) at 1–2; Dkt. No. 429 at 2–3. Counsel Gibson asserts that her notes on the drafts of the stipulation reflect that the paragraph at issue was supposed to be stricken (Dkt. No. 472 at 2; Dkt. No. 508 at 1-2; Dkt. No. 427 at 2; see also Dkt. No. 427-1 at 2) but admits that her oversight in failing to thoroughly review the final stipulation caused the erroneous filing at issue (Dkt. No. 472 at 4, Dkt. No. 508 at 2; Dkt. No. 427 at 2). Counsel Gibson “concedes she should have been more attentive when agreeing to finalize the stipulation” but asserts this lapse does not rise to the level of a violation of RPC 1.3. Dkt. No. 508 at 2; see also Dkt. No. 472 at 4 (same language regarding Rule 11 sanctions). She asserts that “[m]istakes happen, especially when iterations of a lengthy draft joint filing are exchanged late into the evening.” Dkt. No. 508 at 2; accord Dkt. No. 472 at 4. [It doesn't help that Ms. Gibson filed the document] The undersigned agrees that mistakes happen, and if this had been the first mistake, it might not warrant a referral to the WSBA for further review. But the circumstances in this case counsel otherwise. First, this was not just any mistake. This was counsel signing a stipulation that included a very substantial, significant, and harmful mistake for her clients. A document containing stipulations is one of the most important documents in a case as it locks the signing party into a factual representation that can no longer be disputed and is an admission [you would think a court would encourage stipulations to make their job easier]. See 83 C.J.S. Stipulations § 5 (a stipulation “is evidentiary in nature,” is “a judicial admission that obviates the need for proof on the stipulated matters,” and “once entered into, filed and accepted by the court, is binding upon the parties”); 73 Am. Jur. 2d Stipulations § 17 (“When an adverse party is willing to stipulate to the truth of a certain allegation, the party having the burden of proving that allegation is relieved from proving it, that is, a stipulation renders proof unnecessary, and both prevents an independent examination by a judicial officer or body with respect to the matters stipulated and binds the parties on appeal.”) [This is the power of stipulations over admissions - they strongly tie the judge's hands, where admissions give the judge a huge amount of wiggle room]. If there is any document for which an attorney must be on the highest alert—regardless of its length or what time of day or night it is being reviewed, it is a stipulation. Therefore, the undersigned shares Chief Judge Estudillo’s incredulity as to “how any member of the bar could sign and submit a stipulation that their client purposefully destroyed evidence to deprive an adversary of it.” Dkt. No. 490 at 3. [Defendants stipulate to things harmful to them all the time. See pretty much every guilty plea ever in criminal cases. See the many consent decrees in civil cases, stipulations harmful to one side or the other are all over the place. So why is this one drawing the lightning of the court? Did the court take personal interest in helping this defendant, and then their attorney went with a narrative different from what the court wanted? Is Ms. Gibson's real crime that she stipulated the truth, a truth that her defendants eventually wanted to run from, or that she went against the court's preferred narrative of the case?] Second, this was not Counsel Gibson’s first mistake in this case, nor was this the first case in which she has made considerable mistakes as she previously stipulated to a reprimand in 2020 for lack of diligence under RPC 1.3. For these reasons, the undersigned determines that Counsel’s Gibson’s actions in this case warrant further review but that the grievance would more appropriately be addressed by the Washington State Bar Association. LCR 83.3(c)(5)(B). Accordingly, the undersigned FINDS a referral to the WSBA is appropriate in this case and REFERS this matter back to Chief Judge Estudillo for further action pursuant to LCR 83.3(c)(5)(B). Dated this 11th day of August, 2025.
Courts generally loath punishing lawyers. I laugh all the time seeing pro-se court filings asking for sanctions that are never going to happen (to be fair attorneys grand stand this way too) but this case put the courts on the horns of a dilemma, save the attorney or save the attorney's client, and Ms. Gibson seemed to think that admitting to a small mistake would fix everything. It didn't.
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