As the final days of the year wane, it’s become a bit of an annual tradition at NWSidebar to reflect on the previous 365(ish) days of legal news and, more to the point, examine which content drew the most eyeballs on this platform.
In a typical year, the most-popular NWSidebar blog posts run the gamut from lawyering lifestyle commentary to caselaw dissection to various WSBA news and happenings. The pool of contributors to this blog is also often reflected in the content that has been viewed the most. In 2023, however, the most-popular blog posts on NWSidebar were mostly penned by one author: Mark Fucile.
Fucile is a prolific writer for both NWSidebar and Washington State Bar News, covering ethics in the legal profession when, for example, there’s been a new update to the Rules of Professional Conduct or litigation related to lawyer and law firm conduct. In 2023, Fucile wrote about many such topics as new developments emerged from the courts.
Fucile may have the most entries on our list of most-viewed blog posts but he’s not the only author you, the audience, put on this list of the top most-viewed NWSidebar blog posts of 2023.
“On the cusp of my 40s, I began toying with the idea of a midlife rejuvenation,” writes Megan Starks, who practices civil litigation at Patterson Buchanan Fobes & Leitch, P.S. Surprisingly, she found that rejuvenation by dangling off vertical stretches of rock. And what she found on those walls she was also able to take back to her life back on the ground.
“As lawyers, our minds are often in a million places, as we consider contingencies and strategies for each of, often, several cases or clients all at once. … Not so in climbing. It is only the present moment’s problem that demands focus and resolution. Everything else needs to take a number and take a seat. In this way, climbing rejuvenates one’s ability to keep a clear head. Such a skill isn’t just for when I am hanging off the side of a big rock. It is useful when providing pointed, urgently needed advice, or confronted with the unexpected.”
9. Updated Advisory Opinion on Ethical Practices of the Virtual and Hybrid Law Office
For many, the COVID-19 pandemic might feel like it’s, finally and thankfully, a distant memory. While the days of microwaving mail and hording toilet paper are over, the lingering impacts of the pandemic continue to raise questions. In the legal profession, many of the questions about this new world often center on remote work.
In this blog, WSBA Professional Responsibility Counsel Sandra Schilling discusses the Committee on Professional Ethics “new and improved advisory opinion” about practicing in a remote or hybrid law office: “Ethical Practices of the Virtual or Hybrid Law Office.”
8. Federal Court Disqualifies In-House Counsel
In this post, Mark Fucile looks at a federal district court that in a rare decision disqualified in-house counsel from a case involving the lawyer’s corporate employer. The case, Docklight Brands, Inc. v. Tilray, Inc. and High Park Holdings, Ltd., involves a licensing agreement dispute and litigants who were formerly part of the same corporate group “before a restructuring split the plaintiff from the defendants. Although separated, they later entered into the licensing agreement that became the focal point of the litigation.”
The court ultimately disqualified the in-house counsel and in doing so “found that the in-house counsel had a former client conflict under RPC 1.9, which (absent a waiver) prohibits a lawyer from handling a matter adverse to a former client who is substantially related to work the lawyer did for the former client.”
7. Court of Appeals Addresses Receipt of Inadvertently Produced Privileged Documents
Here, Fucile discusses Hur v. Lloyd & Williams, LLC, and a case of not-quite-redacted information from about 1,000 pages of emails.
“The plaintiff’s attorney did not realize when producing the documents that although the portions redacted were ‘blacked out’ when viewed, the underlying terms could still be retrieved through an electronic word search,” Fucile writes. “… Instead of notifying the plaintiff’s attorney, the defendant’s lawyer used the email fragments that had been revealed in a motion for summary judgment.”
A motion to disqualify the defendant’s counsel was ultimately upheld but, as Fucile concludes, “Hur merits careful review by litigators involved in electronic discovery.”
6. Court of Appeals Issues Rare Decision on Litigation Privilege
First published in June and later updated in July, in this post Fucile provides an overview of a “comparatively rare decision on ‘litigation privilege’” from Division I of the Washington Court of Appeals.
Litigation privilege, Fucile says, “immunizes participants in legal proceedings from civil liability based on statements they make during litigation.” The Court of Appeals affirmed a trial court decision to dismiss an attorney’s claims on summary judgment based on the litigation privilege. However, Fucile notes in the updated blog post, the court’s revised opinion that corrected some of the underlying facts “did not alter either the outcome or the legal analysis.”
5. Timing is Everything: Motion to Withdraw With Pending Summary Judgment Denied
In what might be described as a case of legal-preceding procrastination, the federal court in Seattle denied the motions of two defendant’s attorneys who sought permission to withdraw from the case, but crucially waited until after the plaintiff’s motion for summary judgment was pending to seek such permission.
“3M doesn’t plow any new legal ground. It is, however, a pointed reminder that lawyers need to carefully consider when to seek leave to withdraw if they are in litigation.”
4. Federal Court Disqualifies Law Firm for Conflict with Key Witness
Presented with a medical malpractice case concerning a cancer misdiagnosis by a government doctor, the federal district court in Spokane “disqualified a law firm for a conflict with a key adverse witness.”
Writing about the decision in Caldwell v. United States, Fucile describes the plaintiff’s law firm’s arguments against being disqualified because the firm previously represented the doctor in question.
“Caldwell underscores the potential sweep of RPC 1.7,” writes Fucile, referencing a rule concerning conflicts of interest. “… The opinion is not clear on whether the law firm had run a conflict check when it took on the malpractice case and, if it did, the names that were run for the conflict check. Given the breadth of RPC 1.7, however, prudent practice suggests including the names of employees that a lawyer’s client will use to argue that an employer should be held vicariously liable.”
On Jan. 8, 2024, the Washington Legislature is scheduled to reconvene for its next legislative session. In preparation for the upcoming session, two legislative proposals were brought to the WSBA Board of Governors to consider for Bar sponsorship.
In this blog, WSBA Legislative Affairs Manager Sanjay Walvekar dives into the soon-to-be filed pieces of legislation, which originated from the WSBA’s Business Law and Real Property, Probate & Trust Sections. Walvekar also outlines the process that leads a Section proposal to become a Bar-sponsored bill and, eventually, new Washington law.
2. Supreme Court Examines Right to Counsel Involving Non-WA-Licensed Defender
“On unusual facts, the Washington Supreme Court recently examined the question of whether a lawyer not licensed in Washington but actively licensed in Idaho met the Sixth Amendment’s right to counsel,” writes Fucile.
The case, Matter of Lewis, involved multiple petitions for post-conviction relief against the same contract public defender and, more importantly, examines the Sixth Amendment guarantee of “the assistance of counsel” to criminal defendants and how it applies to a lawyer who was licensed in Idaho but not Washington. In a 5-4 decision, the Washington Supreme Court found that the constitutional requirement was satisfied. However, as Fucile notes:
“For lawyers handling criminal proceedings, Lewis merits careful review as the majority and dissenting opinions collectively survey a basic constitutional right—albeit under unusual circumstances. For other lawyers, Lewis underscores that even though the admission rules now make cross-border practice much easier, there are potentially significant consequences to a lawyer—and the lawyer’s clients—who does not follow those rules.”
What makes someone rich? Is it a matter of material wealth or perhaps something more?
In the most-viewed NWSidebar blog post of 2023, WSBA President Hunter Abell takes his cue from the fictional George Bailey in Frank Capra’s 1947 classic to argue that, of course, it’s people and not things who are the measurement of a truly “wonderful life.”
In a heartfelt tribute, Abell writes about his “dear and treasured friend,” Spokane attorney Ryan McNeice, who died in late April.
“Like George Bailey, Ryan had a loving wife and family, the respect and admiration of all who knew him, and a community that was positively impacted by him in more ways than can possibly be counted. … I dearly miss my friend. I know I am not alone. Our Washington legal profession is stronger for his service, his clients were blessed for his advocacy, and our lives were brighter for his existence. Ryan truly was ‘the richest man in town.’”
