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In a case of first impression in Washington, Division I of the Court of Appeals recently found that a separation clause in a law firm employment agreement—allocating fees in cases handled at the firm but collected after a lawyer-employee left—did not constitute an impermissible non-compete under RPC 5.6(a).
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My father, grandfather, and uncles all served in the military. My family’s strong legacy of military service taught me the importance of honoring veterans and expressing gratitude for their service to our nation. Veterans Day holds special meaning for me as a day when we can collectively acknowledge the sacrifices of those who have served our nation. However, it is not enough to express our gratitude for veterans. We must show our support through action.
As attorney general, I am proud of the ways my office actively stands up for the rights of veterans every day through the work of every division in our office. I am pleased to announce three ways we are taking additional action to improve the lives of Washington’s veterans.
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.
At its Nov. 3, 2023 meeting, the WSBA Board of Governors will consider two legislative proposals for Bar sponsorship.
Proposal from the Business Law Section. This proposal amends the Washington Business Corporation Act to replace the current RCW 23B.11 with a new chapter 11 that substantially mirrors the current version of the Model Business Corporations Act. The proposal also changes other sections of RCW 23B dealing with definitions, quorum, and voting requirements; removal of directors by shareholders; entity conversion; and other issues.
Proposal from the Real Property, Probate & Trust Section. This proposal eliminates the requirement that leases for more than one year must have the landlord’s signature acknowledged before a notary.
All feedback is welcome and can be sent to barleaders@wsba.org. Comments are also welcome during the Board meeting.
Have you ever started a role knowing you have huge shoes to fill? For the last year, I served alongside our 2022-2023 WSBA President Dan Clark. As I step into the role as the 2023-2024 WSBA president, I feel like a small child trying on their parent’s shoes and clomping awkwardly around the room.
The WSBA membership has been extraordinarily well-served by Dan in his various leadership roles within the organization. Dan is believed to be the longest-serving member of the Board of Governors (ever), the first WSBA Treasurer to be reelected to that role (ever), and the first WSBA president with a speaking disability (ever). Indeed, Dan is believed to be the first state bar association president in the United States with a speaking disability—you guessed it … ever.
KV, a lanky 15-year-old boy, appeared in the doorframe of YouthCare shelter’s meeting room. He saw a jar of candies and methodically picked through to find the “good” ones. KV then sat down, surrounded by a group of YouthCare shelter staff and a youth law attorney. KV is not yet eligible for Transitional Living Program (TLP), which is available to youth when they reach age 16, and he doesn’t want to be “shelter hopping.”
“A host home sounds like a decent option for me and anyone else like me,” he said.
Youth who lack stable housing and cannot return home to their families have few options. Minors seeking to temporarily or permanently secure safe and stable housing can file for a Child in Need of Services (CHINS), a minor guardianship, or private dependency petition. Yet those ways mean they must experience the adversarial legal process of court, talk to a judge, disclose private aspects of their life (including traumas they will have to relive), and miss school. They often still have an emotional relationship with their parents and caregivers, which gets poked and prodded during court hearings.
Providing estate planning and end-of-life services to an ailing parent generation, within a culture that does not have tools in place to easily do so, is going to require new strategies and forward thinking about cultural relevance and cultural competency.
The issue is vast and complex, so I believe a good place to begin is with the hesitancy of many people to move forward with formal estate planning. This is especially true among those who are first-generation immigrants from a collectivistic culture, thereby leading to higher risk that their wishes will not be properly expressed during the end-of-life process.
Career is a vital part of our lives, and our day-to-day actions at work have resounding consequences on our personal and professional relationships, as well as on our mental and physical health. The prospect of shifting to a new path, even if it’s a lateral shift, can be both overwhelming and, at times, discouraging to navigate the complex decision-making process.
What I mean by “lateral shift” is a job transition involving a change in responsibilities or position, but maintaining a relatively similar level of seniority, compensation, or status. Typically, lateral moves do not entail a significant promotion or increase in pay. Contrary to a vertical move, which involves upward career progression, a lateral move focuses on acquiring new skills, broadening one’s experience, or seeking a better fit for one’s interests and strengths without necessarily climbing the corporate ladder.
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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The 2023 Member Demographic Study will be used to inform how to improve the legal profession in Washington, including how to better support underrepresented and historically marginalized legal professionals.
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“Welcome to my rabbit hole, Colin,” Ali Hohman said, “where dreams go to die.” Hohman is mostly joking—mostly. She’s the director of legal services for the Washington Defender Association (WDA), where much of her recent work has been focused on issues arising from the Washington Supreme Court’s earth-shattering decision in State v. Blake. In 2021, a court majority ruled that Washington’s strict liability drug possession statute is unconstitutional. That ruling was like dropping a thermonuclear bomb on almost a half-century of felony drug policy. It immediately prompted hurried statements from law enforcement agencies, a stop-gap measure by the Legislature in 2021, and a renewed legislative correction earlier this year that required a special session to finalize.
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In late June, Division I of the Washington Court of Appeals issued a comparatively rare decision on the “litigation privilege.”
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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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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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The 105-day 2023 legislative session began on Jan. 9 and adjourned sine die on April 23. Legislators passed a two-year, $69.2 billion state operating budget providing funding increases for K-12 schools, with an emphasis on special education and programs to support affordable housing, as well as a $13.5 billion biennial transportation budget that supports improvements to the Washington State Ferry System, increases bicycle and pedestrian access to schools, and funds major highway construction projects statewide.
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