Category: Ethics

Division I of the Washington Court of Appeals recently issued an opinion parsing the difficult intersection of the doctor-patient and attorney-client privileges in medical malpractice cases. In Snyder v. Virginia Mason Medical Center, 2024 WL 419279 (Wn. App. Feb. 5, 2024) (unpublished), the plaintiff alleged medical negligence during surgery at Virginia Mason Medical Center. Virginia […]

The federal district court in Spokane recently surveyed Washington law on the need for an expert to support a legal malpractice claim. Peterson v. Best, 2023 WL 8791674 (E.D. Wash. Dec. 19, 2023) (unpublished), grew out of complex federal qui tam litigation. The defendant lawyer had represented the plaintiff in a related set of qui […]

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.

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.