Case Law Updates – NWSidebar

by NWSidebar

WA Legislature Special Session: A History of Drug Possession Law Following State v. Blake

In the evening of sine die of the 2023 session, April 23, the “Blake Bill”—the E2SSB 5536 conference committee proposal for replacing the expiring criminal provisions of ESB 5476 (2021)—was brought to the floor of the House and failed, an unexpected result. Much media attention has been paid to the apparent political snafu, but less attention has been paid to the history, evidence, policy options, and principles that underlay the votes taken that evening.

Gov. Jay Inslee has announced his intent to convene a special session to address this legislation, beginning May 16. Washington’s legal community has an immediate opportunity to express individual opinions to Washington’s elected decision makers about whether, and to what extent, use of criminal sanctions against people solely for drug use is consistent with the values and vision of Washington’s and the United States’ promises of justice for all.

by NWSidebar

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 Apr. 10, 2023) (unpublished), involved a law firm that had a very focused practice representing clients in real estate timeshare disputes.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.

by NWSidebar

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.

by NWSidebar

How Legal Name Changes Affect the Patent Application Process

There are many reasons why an inventor might undergo a legal name change, whether as part of a marriage or divorce, as part of a gender transition, or out of a desire for a name that better reflects the inventor’s sense of self. Even though name changes are handed through state-level legal procedures, the United States Patent and Trademark Office (USPTO) has specific rules about using legal names that can result in costly delays or even an abandoned or invalidated patent if not followed. With the patent application process often taking several years, consistency of inventor naming and compliance with state-level rules about legal names is important to avoid issues down the road.

by NWSidebar

Federal Court Orders Attorney Testimony in Insurance Bad Faith Case

The federal district court in Seattle recently ordered an attorney to testify at a deposition in an insurance “bad faith” case.

by NWSidebar

Important Supreme Court Cases That Could Be Impacted by Overturning Roe v. Wade

As the end of the Supreme Court’s 2021-2022 term is fast approaching, possibly one of the most anticipated decisions of the term will be the ruling in Dobbs v. Jackson Women’s Health Organization. In this case, Jackson Women’s Health Organization sued the state of Mississippi to stop the implementation of a 2018 law that prohibits abortions after 15 weeks of pregnancy. The justices heard arguments over the state’s law last year and the Court is expected to issue its ruling by June or early July. A leaked draft opinion suggests that the court is likely to rule in favor of Mississippi and overturn years of precedent established in Roe v. Wade, which would give lawmakers the ability to ban or restrict abortions. The draft is not final; however, questions remain as to what a reversal of the Court’s abortion rights precedents would mean and how it may affect other critical rulings.

by NWSidebar

Court of Appeals: New Management Entitled to Law Firm File

Division I of the Washington Court of Appeals in Seattle recently held that new management of an entity is entitled to a law firm’s file involving work prepared for the entity under prior management. Although the case does not plow any new conceptual ground, it offers Washington support for this general proposition with specific reference […]

by NWSidebar

Federal Court Finds No Personal Jurisdiction Over Out-of-State Attorney

The federal district court in Tacoma recently concluded that it did not have personal jurisdiction over a Mississippi attorney and his law firm who handled matters in Louisiana and Virginia for a Washington client. Bullis v. Farrell, 2022 WL 656204 (W.D. Wash. Mar. 4, 2022) (unpublished), involved claims for legal malpractice, breach of fiduciary duty, and violation of the Washington Consumer Protection Act by a Washington resident living in Dupont against a lawyer and his firm officed in Jackson, Mississippi. The claims arose out of lawsuits the lawyer handled for the client in Louisiana and Virginia. Neither of those involved conduct in Washington and the lawyer was not licensed in Washington.

by NWSidebar

$Multi-colored fractal background$

Strange New Trip: The Emerging World of Psychedelic Law and Decriminalization

After substances like LSD (acid), MDMA (ecstasy), and notably psilocybin (magic mushrooms) were classified as federally prohibited Schedule 1 drugs, a new wave of research into their therapeutic potential is growing, state and local governments are decriminalizing their use, and new areas of law are opening up. “Now there’s what’s referred to as a psychedelic renaissance …,” said Kathryn Tucker, special counsel at Emerge Law Group. “It’s just an incredible surge of interest.”

by NWSidebar

Inoculation Altercation: What Critics Misunderstand About the Washington Supreme Court Vaccination Order

Two months ago, the Washington Supreme Court issued an order requiring court employees and contractors either to be vaccinated against COVID-19 or to qualify for a medical or religious exemption from vaccination. The court also “strongly encouraged” other Washington courts to adopt a similar requirement for themselves. Since then, there has been public criticism of the court’s order, including from within the legal community. The Washington Supreme Court’s power to issue the order comes from two sources: inherent and statutory.

by NWSidebar

The Unsettled Policy Landscape of Drug Possession Laws in Washington

On Feb. 25, the Washington Supreme Court struck down the state’s main drug possession crime in a case called State v. Blake. The ruling meant there was no state law making simple possession of drugs a crime unless the Legislature recriminalized it, which it has now done via passage of Engrossed Senate Bill (ESB) 5476. In the debate over ESB 5476, some stakeholders argued that the Blake decision was an opportunity for Washington to adopt a new approach to substance use disorders based on solutions that heal rather than continue to inflict harm on people and communities. Others advocated for recriminalization. ESB 5476 ended up taking elements of both of these approaches. It provides new statewide planning and resources for substance use services, but also recriminalizes possession.

by NWSidebar

Court of Appeals Voids Fee-Sharing Agreement

Division I of the Washington Court of Appeals recently refused to enforce a fee-sharing agreement between two plaintiffs’ lawyers because the arrangement had not been confirmed in writing with the client as required by RPC 1.5(e)(1)(ii). Kayshel v. Chae, __ Wn. App.2d __, 483 P.3d 1285 (2021), involved an individual employment discrimination claim and a separate wage class action. The attorney who was retained initially by the client—the claimant in the individual case and the then-potential class representative in the class action—later associated another lawyer in the class action. The two lawyers eventually agreed on a fee split in percentage terms. They wrote the agreement by hand over breakfast and later confirmed the terms between themselves by email. Although the second lawyer related that he had received the client’s oral consent in a telephone call, the client was never presented with the written agreement.

by NWSidebar

What Renters Should Know About Tenant Right to Counsel and Eviction Law in Washington

For more than a year since the COVID-19 pandemic, Washington renters who have been unable to pay their rent have at least been safe from being evicted. As of this writing, bills for that unpaid rent will come due July 1 for tens of thousands of Washingtonians. However, changes to Washington’s landlord-tenant law have created new protections to help people avoid evictions, mediate disputes with landlords, and guarantee that certain renters have free legal representation. On April 22, Gov. Jay Inslee signed into law Senate Bill 5160. Originally sponsored by state Sen. Patty Kuderer, D-Bellevue, the legislation adds a number of tenant protections such as “providing for legal representation in eviction cases, establishing an eviction resolution pilot program for nonpayment of rent cases, and authorizing landlord access to certain rental assistance programs,” according to the final bill report.

by NWSidebar

The History and Mechanics of Qualified Immunity and Police Accountability

Among the many issues at the center of debates over police-involved killings, particularly killings of people of color, few are as impactful as qualified immunity. But for as often as qualified immunity is pulled into wider debates, the concept itself is idiosyncratic and opaque, perhaps even among legal professionals. It is not a law but a precedent, not an act of government but a judicially created doctrine. King County Superior Court Judge David Whedbee is one of the organizers behind a planned full-day event aimed at examining qualified immunity. On May 7, Whedbee and Washington Supreme Court Justice Mary I. Yu will cohost “Qualified Immunity 360,” sponsored by the Washington State Minority and Justice Commission and featuring panelist presentations and discussion “to educate practitioners, judges, law students, and the public on the mechanics, history, and public policy behind the doctrine.”

by NWSidebar

The Derek Chauvin Trial: Early Insights from WSBA President-Elect’s Judicial Perspective

Very little about the trial against former Minneapolis police officer Derek Chauvin is standard. The mere fact that there is a trial is somewhat unusual. Police-involved deaths rarely result in prosecutions, let alone convictions of the officers involved. (Despite about 1,000 police-involved deaths per year, since 2015 only 121 officers have been arrested on charges of murder or manslaughter resulting in 44 convictions, according to the New York Times.) Few police-involved deaths are as widely well-known as the summer day in 2020 and the now-infamous video showing Chauvin kneeling on the neck of George Floyd, ending in Floyd’s death. And certainly, never before has such an intensely high-profile criminal case taken place amid the unprecedented courtroom restrictions to amid the ongoing COVID-19 pandemic.

by NWSidebar

Court of Appeals Issues Rare Decision on Revoking Consent to Conflict Waiver

Earlier this year, Division I of the Washington Court of Appeals issued a decision touching on an area of the Rules of Professional Conduct (RPC) that is rarely litigated: revoking consent to conflict waivers. The decision was “unpublished” under General Rule 14.1, but is instructive nonetheless—both for its illumination of this comparatively “unplumbed” area of conflicts law and as an illustration of the result.