Ethics – NWSidebar

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Appeals Court Rejects Application of Corporate Attorney-Client Privilege for ‘Functional Employees’

In the privilege context, “functional employees” are not directly employed by a corporation but are sufficiently integrated into a company’s operations that some federal courts—including the 9th Circuit and Washington’s federal district courts—have concluded that they fall within the corporation’s attorney-client privilege.

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UPDATE: Proposed Ethics CLE Requirements Headed to Supreme Court

A majority of the Supreme Court’s Mandatory Continuing Legal Education Board voted to send a recommendation for a suggested amendment to Admission and Practice Rule 11 to the Board of Governors.

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Court of Appeals: New Standard in Disqualification for Former Client Conflicts

Washington’s Court of Appeals recently issued a significant decision applying a new standard for former client conflicts in the disqualification context.

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Washington Supreme Court: In-House Counsel Can Sue for Wrongful Discharge

In a case of first impression in Washington, the Supreme Court held that former in-house counsel can sue their employers for wrongful discharge. Karstetter v. King County Corrections Guild was before the Supreme Court after the trial denied a defense motion to dismiss and the Court of Appeals later reversed the ruling. The initial pleadings framed the narrow legal issue before the Supreme Court.

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Lawyer as Witness: What the Court of Appeals Said About RPC 3.7

Mark Fucile explains the Supreme Court’s analysis of RPC 3.7. RPC 3.7(a), which generally prohibits a lawyer from acting “as advocate at a trial in which the lawyer is likely to be a necessary witness.”

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Top Recent Developments in Ethics Rules Every Washington Lawyer Should Know

Get the latest updates on ethics amid new challenges to the rule of law. And take advantage of the last chance to save on related on-demand CLEs.

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Appeals Court Weighs in on Successor Personal Representative Malpractice Claims

Division I of the Washington Court of Appeals recently addressed whether a successor personal representative had standing to bring a legal malpractice claim against a law firm that had worked solely with an earlier personal representative. The answer: “No.” In reaching its conclusion, the Court of Appeals in Benjamin v. Singleton, ___ Wn. App. 2d […]

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Court of Appeals Discusses Elected Prosecutor Conflicts

Division III of the Washington State Court of Appeals recently, in a split decision, drew from a 1988 death penalty case to refine the determination for when a prosecutor’s client conflict might extend to the office as a whole. State v. Nickels, ___ Wn. App. 2d___, 434 P.3d 535, 2019 WL 479494 (Feb. 7, 2019) […]

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New WSBA Advisory Opinion on Contacting Government Employees

The WSBA Committee on Professional Ethics recently released a new advisory opinion No. 201803 to address the contours of contacting government employees under Washington Rule of Professional Conduct 4.2. The rule generally prohibits communication with a person whom the contacting lawyer “knows to be represented by another lawyer in the matter[.]” Under Wright v. Group […]

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New WSBA Advisory Opinion on ‘Quadripartite’ Relationships

The WSBA Committee on Professional Ethics recently released advisory opinion No. 201802 addressing “quadripartite” relationships. “Tripartite” relationships among an insurer, the insured, and defense counsel have been delineated extensively in both court decisions and advisory opinions. “Quadripartite” relationships, by contrast, are a fairly new development and remain comparatively unplumbed. The term generally describes situations where […]

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3 Questions We Frequently Answer on the Ethics Line

At the WSBA Ethics Line, we take calls all the time. Have you ever needed to hash out a sticky conflicts situation? Ever felt unsettled by your client’s behavior or unsure how to handle something confidentially? If so, you’re not alone. Here are three common questions we receive as well as a few tips we […]

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U.S. District Court Highlights Importance of ‘Non-Engagement’ Letters

A recent decision from the U.S. District Court in Seattle highlights the importance of “non-engagement” letters: a letter or other communication to a non-client involved in the background context of a representation telling the non-client that the lawyer is not representing the non-client. Smartek21, LLC v. VisiKard, Inc., 2018 WL 5024031 (W.D. Wash. Oct. 17, […]

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Demystifying the Qui Tam Process

There’s No Such Thing as an Average False Claims Case Defendants in qui tam lawsuits—in which a whistleblower accuses someone, usually a corporation, of fraud against the government—often don’t realize they’ve been targeted until months, or sometimes years, past the original filing date. This is deliberate: The federal False Claims Act (FCA) requires whistleblowers to […]

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Supreme Court Holds No Double Jeopardy for Lawyer Discipline

In a case of first impression in Washington, the Supreme Court recently held that the double jeopardy provisions of the United States and Washington Constitutions do not apply to lawyer discipline proceedings. In re Waechter, ___ Wn.2d ___, 419 P.3d 827, 2018 WL 2977072 (June 14, 2018), involved a lawyer who had allegedly converted client […]

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Confirming When Representation Begins Matters

A recent decision by Division III of the Washington Court of Appeals illustrates the importance of confirming whether or not you have taken on a client at an initial meeting. Fechner v. Volyn, ___ Wn. App. ___, 418 P.3d 120, 2018 WL 2307703 (May 22, 2018), was painted against the backdrop of a medical malpractice […]

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When Opposing Counsel Goes Dark—Can You Communicate Directly With the Adverse Party?

I have taken multiple calls at the WSBA Ethics Line from attorneys who feel stymied because opposing counsel isn’t responding and hasn’t terminated their attorney-client relationship. In one instance, the caller said the opposing party wanted to work directly with him, but the caller could not get confirmation from opposing counsel that contact was permitted.