Ethics – NWSidebar

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Pink Slips and Green Cards: How Tech Industry Layoffs are Impacting Immigrants

Not since the dot-com bubble of the 90s has the technology sector undergone such a massive downsizing. Seemingly bulletproof tech companies like Amazon and Microsoft have collectively shed tens of thousands of jobs in recent months. For U.S. citizens, being laid off from a prestigious job in tech may present a challenge, but for the thousands of people whose employment and immigration status are fully entwined, losing a job can also mean losing a new home.

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Updated Advisory Opinion on Ethical Practices of the Virtual and Hybrid Law Office

Over the last five years, many lawyers began the transition to remote work—then the pandemic added even more coal to the fire. Accelerated adoption of remote and hybrid work, however, did not mean there haven’t been questions about how to do so properly. The Committee on Professional Ethics recently released a new and improved advisory opinion which answers many questions about practicing in a remote or hybrid law office. “Ethical Practices of the Virtual or Hybrid Law Office” updates an opinion first published in 2016 and adds many topics relevant to today’s practice.

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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 Feb. 9, 2023) (unpublished), the defendants’ out-of-state lead attorney and their local counsel both moved to withdraw.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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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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Court of Appeals Addresses Receipt of Inadvertently Produced Privileged Documents

Division III of the Washington Court of Appeals in Spokane recently surveyed the duties under both the Rules of Professional Conduct and the Superior Court Civil Rules when a lawyer receives what reasonably appears to be a litigation opponent’s inadvertently produced privileged documents. Hur v. Lloyd & Williams, LLC, involved a contract dispute. In responding to the defendant’s document production request, the plaintiff produced over 1,000 pages of emails electronically. The plaintiff’s counsel redacted privileged information from the documents produced and provided a notice regarding the grounds for the redactions with the production rather than a privilege log.

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A Star Wars Exploration of the Law of Armed Conflict—Part I

With dozens of large-scale armed conflicts going on in the world, in Ukraine and elsewhere, a prospective client is bound to walk through your door one day, accused of war crimes. Well, the chances are at least higher if you practice this area of law. Should you receive such a client, this article will prepare you for your first war crimes case by exploring the violations of the law of armed conflict (LOAC) committed by everyone’s favorite war criminal, Darth Vader.

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Federal Court Disqualifies Law Firm for Conflict with Key Witness

The federal district court in Spokane recently disqualified a law firm for a conflict with a key adverse witness. Caldwell v. United States, 2022 WL 17408818 (E.D. Wash. Nov. 9, 2022) (unpublished), was a malpractice case stemming from the plaintiff’s treatment at a government medical facility. Although the U.S. government was the sole defendant, the focus of the case was on the doctor who allegedly failed to diagnose the plaintiff’s cancer. The plaintiff’s law firm had also represented the doctor in an unrelated employment matter.

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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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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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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.

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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.

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A Reservation Attorney’s Thoughts on the Castro-Huerta Decision

Several members of the U. S. Supreme Court deem themselves originalists or strict constructionists whose duty it is to decide cases based upon constitutional intent at the time of its adoption as reflected in its original terms. This nation could not have made it through its formative years without recognizing its dependence on what were then powerful sovereign nations with whom a solemn pact was made and never to be broken. The recent Castro-Huerta decision bodes well for the elevation of state sovereignty. For tribal nations, not so much.

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How the IRS Views Structured Legal Fees

All lawyers pay taxes and know that legal fees are income. They are ordinary income and even subject to self-employment taxes. But what about timing? Much in the tax law is about timing. A classic tenet of tax-planning is to try to defer income and to accelerate deductions. For generations, tax lawyers have explored all manner of tax-deferral strategies. According to the IRS, you have income for tax purposes when you have an unqualified, vested right to receive it. Asking for payment later doesn’t change that. The idea is to prevent taxpayers from deliberately manipulating their income. A classic example is a bonus check available in December, where the employee asks to have the employer hold it until Jan. 1. Normal cash accounting suggests that the bonus is not income until paid, but the employer tried to pay in December and made the check available. To the IRS, that makes the bonus income in December, even though it is not collected until January.

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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 […]

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What You Need to Know About Washington’s Silenced No More Act

On March 24, Washington Gov. Jay Inslee signed into law the Silenced No More Act, greatly restricting the scope of nondisclosure and nondisparagement provisions that employers may enter into with employees who either work or reside in Washington state. Effective June 9, the new law prohibits employers from requiring or requesting that an employment agreement contain a provision: “Not to disclose or discuss conduct, or the existence of a settlement involving conduct, that the employee reasonably believed under Washington state, federal or common law to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault, or that is recognized as against a clear mandate of public policy….” However, employers will still be able to enter into agreements that (1) prohibit the disclosure of the amount paid in a settlement agreement; and (2) protect “trade secrets, proprietary information, or confidential information that does not involve illegal acts.” An employer that violates the law can be found liable in a civil action for “actual damages or statutory damages of $10,000, whichever is more, as well as reasonable attorneys’ fees and costs.”

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New Advisory Opinion on Malpractice Insurance Disclosure

In September 2021, the Washington Supreme Court adopted amendments to RPC 1.4, which now require disclosure regarding minimum malpractice insurance levels. With some exceptions, this new requirement applies to all practicing attorneys and has generated many questions.