The 21st century is almost one-quarter complete. When the calendar switches over and 2024 moves aside for 2025, it’s hard not to think about where we were 25 years ago. Back then we were worried about Y2K and a technological apocalypse; today our lives have been infiltrated by artificial intelligence. Then we were raising the alarm about a crisis in public defense; now we’re taking new steps toward addressing that ongoing crisis.
One thing remains the same: At the close of each year we take a look at the numbers and share the most-read blog posts published on NWSidebar. This year, as is often the case, readers of NWSidebar eagerly read all the latest and greatest from our hugely prolific ethics analyst, Mark Fucile, who covers RPC changes, appellate decisions, and more for both NWSidebar and Washington State Bar News. But there was much more on the blog in 2024. Here are the top 10 posts from this year.
10. How Washington’s New Noncompete Law Affects Physician Employment Agreements
Beginning in 2019, Luke Campbell, who represents dentists and other health-care providers, began covering Washington’s noncompete law, particularly in how it affects physicians. Over the years, Campbell has continued to keep tabs on updates and changes to the rules, most recently with this post.
“In reaction to court cases that, in the eyes of lawmakers, interpreted the statute too narrowly,” Campbell wrote, “Washington’s Legislature passed a bill this year, SB 5935, to expand the application of the noncompetition statute.”
Speaking of physicians: in March, Fucile covered the Division 1 Washington Court of Appeals decision in Synder v. Virginia Mason Medical Center. In it, the court “concluded that because the non-party doctors were former employees, they could not be contacted ex parte under Loudon and instead defense counsel would either need to take their depositions as fact witnesses or conduct informal interviews with Snyder’s counsel present.”
As Fucile summarized: “Snyder merits close review by counsel on both sides of the aisle in medical malpractice litigation as it succinctly summarizes the key decisions at the complicated interface between the doctor-patient and attorney-client privileges.”
8. Court of Appeals Affirms Order Prohibiting Pro Se Party from Contacting Represented Opponent
In what Fucile calls “an unusual order,” Division II of the Washington Court of Appeals in Ryan v. Timmerman affirmed the order which prohibited a pro se party from contacting a represented party opponent.
“In most instances, represented clients are allowed to continue to contact each other even during litigation because, as noted, RPC 4.2 applies to lawyers rather than their clients,” wrote Fucile. “Ryan, however, is an unusual application of the court’s inherent case management authority to reach functionally the same result.”
7. Walking in Their Shoes: A Day in the Life of a Spokane City Public Defender
What’s it like to be a public defender in Washington? Overworked, underpaid, and under-resourced. Those have long been the conclusions in Washington and elsewhere about an overstrained public defense system. This year, the Council on Public Defense, WSBA Board of Governors, and Washington Supreme Court voted to reduce the caseload maximums for public defenders, but the fix is far from simple. In this blog—the full version of which also appeared in Bar News—we shadowed two public defenders in Eastern Washington and spoke with experts around the state to highlight the challenges affecting public defenders, and explain what’s being done to help.
6. Court of Appeals Affirms Dismissal of Legal Malpractice Claim on Lack of Causation
In Flanigan v. Herman, a lawyer who defended three businesspeople in a case involving an alleged breach of a commercial lease eventually sought to withdraw as their representative. After withdrawing he provided copies of the case schedule to the former clients, one of whom later alleged he had not received the schedule even though it had been mailed to his business, and he later sued the lawyer for malpractice over his failure to receive the case schedule.
“Although causation is inherently fact-driven and often disputed,” Fucile wrote in conclusion, “Flanigan is a reminder that sometimes the link between a lawyer’s asserted negligence and a claimant’s injury is too indistinct to find liability.”
5. New Ethics Advisory Opinion on Surrendering the Client File
In this blog, author Sandra Schilling, professional responsibility counsel with the WSBA Advancement Department, wrote that, “Questions from lawyers about surrendering the client file have been around since lawyers have created client files, whether they be in paper or electronic format.” Questions like: If your former client didn’t pay a fee for their file copy, do you have to give it to them? Do you have to oblige if they ask for the same file a second time? Can you charge for your time doing it? Can you charge for duplication costs?
Such questions are a regular to the WSBA Ethics Line, but the new resource, Advisory Opinion 202401, addresses what documents a lawyer must surrender upon termination of representation. In this blog, Schilling gives an overview of the updated opinion and its implications.
4. Court of Appeals Discusses Emotional Distress Damages for Legal Malpractice
Not every court decision will completely shake up the legal world. In the Division I Washington Court of Appeals decision in Echols v. Lee, Fucile concludes that: “While not plowing any new legal ground, Echols offers both a useful survey of the law in this area and a pointed reminder of the relatively narrow circumstances when emotional distress damages may be included in a legal malpractice claim.”
3. Court of Appeals Affirms Denial of Withdrawal with Sanctions Pending
“Knowing when to withdraw is often a difficult exercise,” Fucile wrote in the opening lines of this blog. “A recent decision by Division I of the Washington Court of Appeals in Seattle, however, underscored the risks of waiting too long.”
In Atlas Debt Holdings, LLC v. Seafood Express, “by the time the law firm sought court permission to withdraw, the attorney-client relationship had unspooled, the trial court had entered a contempt order against the client, and sanctions were also pending against the law firm.” Here, Fucile helps remind that if there are reasons to withdraw, it’s best to do so sooner rather than later.
2. Confronting a Crisis: The State of Public Defense
At the beginning of 2024, the crisis in public defense was becoming front-page news around the country. In September 2023, the National Public Defense Workload Study conducted by the Rand Corporation, the National Center for State Courts, and the American Bar Association concluded that the caseload standards first set in 1973 “should not be applied to determine appropriate public defense workloads in 2023.”
In this blog, the WSBA began to share with members what was going on in public defense and the efforts underway to study the problems and propose solutions through policy, legislation, and litigation.
1. Join the Discussion: WSBA’s Legislative Proposal on Washington Business Corporation Act
Here it is! The most-read blog post of 2024. And you, the readers, in 2024 were hot to learn about the legislative proposals emerging from the WSBA via our Sections.
In this blog, WSBA Outreach and Legislative Affairs Manager Sanjay Walvekar detailed, among other things, a legislative proposal brought by the WSBA Business Law Section.
“This proposal from the WSBA Business Law Section would amend the Washington Business Corporation Act (WBCA) to update provisions regarding committees of the board of directors to align more closely with the current version of the Model Business Corporation Act and the Delaware General Corporation Law principally with respect to the limitations to the authority of the board of directors regarding the establishment and governance of board committees,” Walvekar wrote.
