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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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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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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Warhol soup can parody from Wikimedia Commons

Warhol Foundation Doesn’t Benefit From ‘Plagiarist Privilege’

Andy Warhol Foundation for the Visual Arts, Inc. V. Goldsmith concerns whether the Andy Warhol Foundation (AWF) infringed the copyright held by Lynn Goldsmith in her photograph of the artist Prince, when it licensed Warhol’s version (“Orange Prince”) of Goldsmith’s photograph to the media company Condé Nast for a magazine cover. At issue was whether the fair use defense applies to appropriation. Rather than broadly refashion the law, the Court issued a narrowing interpretation of the first fair use factor, in the form of a new judicial test.

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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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Asian business man wear face mask and he is being fired because of economic downturn due to the covid-19 spread all over the world

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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Legal Scale

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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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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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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A lawyer reading documents

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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Dueling lightsabers in space environment

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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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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