Boise, Idaho

Idaho Adopts Entire File Approach when Withdrawing

Under American Bar Association Model Rule 1.16(d), when a lawyer withdraws the lawyer is to surrender papers and property to which the client is entitled. Neither the ABA model rule nor most state counterparts (including Washington RPC 1.16), however, include a definition of what constitutes “papers and property” in this context.
The ABA noted in Formal Opinion 471 (2015) that states have generally adopted two approaches through state bar ethics opinions in the wake of this ambiguity. Most that have addressed the issue take the “entire file” approach, under which the lawyer must generally provide the client with all materials in the lawyer’s file (whether in paper or electronic form) typically subject to a relatively narrow band of exceptions. A minority, by contrast, take the “end product” approach—with the lawyer only needing to provide the client with the final product generated and not intermediate items like drafts or notes.

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Books

Idaho Adopts ‘Entire File’ Approach When Withdrawing

Under ABA Model Rule 1.16(d), when a lawyer withdraws, the lawyer is to “surrender … papers and property to which the client is entitled[.]” Neither the ABA Model Rule nor most state counterparts (including Washington RPC 1.16), however, include a definition of what constitutes “papers and property” in this context.
The ABA noted in Formal Opinion 471 (2015) that states have generally adopted two approaches through state bar ethics opinions in the wake of this ambiguity. Most that have addressed the issue take the “entire file” approach, under which the lawyer must generally provide the client with all materials in the lawyer’s file (whether in paper or electronic form) typically subject to a relatively narrow band of exceptions. A minority, by contrast, take the “end product” approach—with the lawyer only needing to provide the client with the final product generated and not intermediate items like drafts or notes.

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Cover of February 2023 Bar News depicting a glass piggy bank

ESGs and ABCs in the February Bar News

A little over one year ago, the Harvard Business Review said that “virtually all of the world’s largest companies now issue a sustainability report and set goals; more than 2,000 companies have set a science-based carbon target; and about one-third of Europe’s largest public companies have pledged to reach net zero by 2050.” In other words, ESG is now the standard. But, of course, what the hell is ESG? Seattle-based attorney and sustainability consultant Nicole DeNamur explains in the newest issue of Washington State Bar News that ESG—which stands for Environmental, Social, and Governance—describes data and reporting that is steadily gaining in market demand and federal regulatory oversight.

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A summer day in front of the US Supreme Court Building in Washington, DC.

Federal Court Applies Attorney-Client Privilege to ‘Functional Employee’ of Corporation

The U.S. District Court for the Western District of Washington recently applied the attorney-client privilege to a “functional employee” of a corporate defendant.
National Products, Inc. v. Innovative Intelligent Products LLC, 2023 WL 6215296 (W.D. Wash. Sept. 25, 2023), is a patent infringement case. During discovery, the plaintiff took the deposition of an outside contractor with his own company who worked closely with the defendant in developing the latter’s product designs. The defendant’s attorney asserted privilege and instructed the contractor not to answer when the plaintiff’s attorney asked questions about conversations the defendant’s attorney had with the contractor concerning the litigation. The plaintiff moved to compel. The court denied the motion.

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A summer day in front of the US Supreme Court Building in Washington, DC.

Federal Court Disqualifies In-House Counsel

The federal district court in Seattle recently issued a rare decision disqualifying in-house counsel from participating in a case that involved the lawyer’s corporate employer. Docklight Brands, Inc. v. Tilray, Inc. and High Park Holdings, Ltd., 2023 WL 5279309 (W.D. Wash. Aug. 16, 2023), is a dispute over a licensing agreement. The litigants were formerly related affiliates within the same overall 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.

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A gavel on gray background, retro toned

Federal Court Finds No Private Right of Action for Unauthorized Practice

The federal district court in Tacoma recently ruled that there is no private right of action for the unauthorized practice of law under RCW 2.48.180. Wise v. Eskow, 2023 WL 3456815 (W.D. Wash. May 15, 2023) (unpublished), involved a variety of claims by a Washington dentist against a Massachusetts lawyer flowing from the dentist’s purchase of a practice in Longview. The dentist claimed that the lawyer’s work on the transaction was deficient. In addition to a negligence-based legal malpractice claim, the dentist also brought a claim for unauthorized practice under RCW 2.48.180 because the lawyer was not licensed in Washington and had not associated Washington counsel to assist.

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Melting clock

Timing is Everything: Motion to Withdraw With Pending Summary Judgment Denied

A recent decision by the federal court in Seattle underscored that when attempting to withdraw from litigation, timing can be critical. In 3M Company v. AIME LLC, 2023 WL 1863517 (W.D. Wash. Feb. 9, 2023) (unpublished), the defendants’ out-of-state lead attorney and their local counsel both moved to withdraw. Both cited a variety of grounds supporting their motions—many of which would ordinarily be sufficient under the “withdrawal rule,” RPC 1.16. Although many of their reasons had existed for a substantial period, the lawyers waited until the plaintiff’s motion for summary judgment was pending to seek court permission to withdraw. Given the timing, the court denied their motions.

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Illustration of male and female attorneys shaking hands from computer monitors

Top 10 NWSidebar Blog Posts of 2022

Roe v. Wade is out. Oklahoma v. Castro-Huerta is in. The challenges of attracting new lawyers to Washington’s rural communities. Court decisions that clarify the Rules of Professional Conduct. A lot has happened in the past year. Surprisingly and thankfully, much of the news had nothing to do with the COVID pandemic. As has become tradition at NWSidebar, we looked back at the blogs of 2022 to see which stories resonated most with our readers. Read on to see the most-read articles of 2022.

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Washington Supreme Court Inauguration of Chief Justice Debra L. Stephens, Jan. 12, 2015

Supreme Court Examines Right to Counsel Involving Non-WA-Licensed Defender

The Sixth Amendment guarantees “the assistance of counsel” to criminal defendants. Most post-conviction relief cases addressing this issue focus on whether counsel was “ineffective.” 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. In a 5-4 decision, the Supreme Court found that the constitutional requirement was satisfied.

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Lawyers standing and chatting, seen through rippled glass.

Court of Appeals Rules on Law Firm Trade Secrets Claim

Over the past generation, lawyers have increasingly moved from firm to firm in private practice. Most moves occur with relatively little drama and, when there are issues over points like notice to clients, WSBA Advisory Opinion 201801 (2018) and ABA Formal Opinion 99-414 (1999) offer practical guidance to law firms and departing lawyers on their obligations under the professional rules.
The Washington Court of Appeals, however, recently issued a relatively rare decision involving a trade secrets claim by a law firm against a departing lawyer. Hudson v. Ardent Law Group, PLLC, 2023 WL 2859334 (Wn. App. Apr. 10, 2023) (unpublished), involved a law firm that had a very focused practice representing clients in real estate timeshare disputes. The firm had developed tailored forms and collected a large amount of electronic data for use in handling client work. While still employed by the firm, a lawyer secretly copied the firm’s entire client database. The lawyer then left the firm to start a competitor and used the information in an effort to recruit the firm’s clients.

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Cover of June 2023 Bar News

The 2023 Legislative Session, Involuntary Treatment Act, and More in the New Bar News

The 2023 Washington legislative session was a veritable who’s who list of divisive political issues. Affordable housing, assault weapons, drug possession, the death penalty—all were on the docket this year in Olympia. Indeed, over the 105-day session, followed by a brief special session, the WSBA Legislative Affairs Team tracked roughly 500 bills.
In addition to a brief glimpse at the hundreds of bills the Legislative Affairs Team tracked for WSBA sections, Walvekar also provides an overview of the WSBA’s Bar-request legislation, a look at the special session to address statewide drug possession law, and some of the expected issues to watch when the Legislature reconvenes in January 2024.
The June issue of Bar News also explores a bevy of Washington laws, policies, and organizations of relevance to the state’s legal profession.

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Cove of June 2022 Bar News

Status, History of Bar Structure Examined in Latest Bar News

This August, the WSBA Board of Governors is scheduled to wrap up its eight-month discussion about the very foundation of Washington’s mandatory, integrated bar and whether it should remain the same or undergo a structural change. The Board’s study process, ETHOS (Examining the Historical Organization and Structure of the Bar), is reaching the end of its mission from the Washington Supreme Court to answer three key questions about the Bar’s structure and the potential impact of federal litigation.

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A lawyer questioning a witness in front of the judge in a courtroom.

Federal Court Rules Tardy Disqualification Motion Waived

The federal district court in Seattle recently issued a pointed reminder on disqualification motions: move promptly or risk waiver. Olson Kundig, Inc. v. 12th Avenue Iron, Inc., 2022 WL 14664715 (W.D. Wash. Oct. 25, 2022) (unpublished), involved patent and trademark claims between the plaintiff designer and the defendant manufacturer. The plaintiff’s law firm had done transactional work in the past for the defendant, but that work had concluded, and the defendant was a former client of the law firm.

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Lady Justice

Court of Appeals Discusses Professional Judgment Rule for Legal Malpractice

Division I of the Washington Court of Appeals in Seattle recently discussed the professional judgment rule in Dang v. Floyd, Pflueger & Ringer, PS, Wn. App.2d, 2022 WL 9732289 (Oct. 17, 2022). Under that rule, a lawyer is generally not liable for legal malpractice if the lawyer was simply exercising reasonable professional judgment. The plaintiff doctor in Dang argued that his defense counsel in a regulatory hearing before the Washington Medical Quality Assurance Commission made decisions on witnesses and exhibits that led to an unfavorable outcome. The defendant law firm in the subsequent legal malpractice case moved for summary judgment relying on the professional judgment rule. The trial court granted the motion. The Court of Appeals affirmed.

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