Recent – NWSidebar

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Examining the Bar Exam in the New Issue of Bar News

Few academic milestones have achieved the same level of deserved notoriety as the bar exam. If graduating law school is a difficult achievement, passing the bar exam is a veritable stress caldron—one that distinguishes a licensed lawyer from a well-educated (and debt-riddled) law school grad.
“When it comes to assessing lawyer competence, we saw again and again and again in our research conclusive evidence that the existing bar exam is far from a foolproof or even reliable measure of competence; and, to the detriment of both candidates and the profession, it replicates and perpetuates bias,” Seattle University School of Law Dean Anthony E. Varona says in the latest issue of Washington State Bar News.

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3 Ways the Washington Attorney General is Helping Improve the Lives of Veterans

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.

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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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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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WSBA Legislative Proposals

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.

by NWSidebar

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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Change is Afoot in the New Issue of Bar News

October changes are abundant. Foliage transforming. Air crisping. Lattes pumpkin-spicing.
At the WSBA, the autumnal transition also signifies the annual changing of the guard on the Board of Governors. With the start of the new fiscal year in October, those governors who finished their terms welcome their replacements, and new Board officers assume their roles in the seats of president, president-elect, outgoing president, and treasurer.
It’s all highlighted in Washington State Bar News—this year, there is even a change to note in that regard.

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Thank You, Mr. President

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.

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A Teen’s Viewpoint on Host Homes as an Option to Provide Housing

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.

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Building Collectivistic Cultural Relevance, Competency for Estate Planning

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.

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The Art of Appreciation in the New Issue of Bar News

WSBA President Daniel D. Clark set pen to paper for the last time to write the final President’s Corner column of his time in the role. In that column, which appears in the latest issue of Washington State Bar News, Clark wrote, “this is my last opportunity to encourage each of you to volunteer at the WSBA—YOUR Bar Association—to get involved in pro bono legal services, to serve on the Board of Governors, and to vote in WSBA elections. It’s my hope that I have encouraged at least some of you to consider volunteering at the WSBA. For those of you I haven’t reached, it’s not too late, and I encourage you to consider getting involved in the future.”

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From Burnout to Balance: 4 Key Considerations for a Lateral Move

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.

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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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What You Need to Know About the 2023 WSBA Demographic Study

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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The Blake Refund Program and Washington’s 39 Flavors of Rabbit Hole

“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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Court of Appeals Issues Rare Decision on Litigation Privilege

In late June, Division I of the Washington Court of Appeals issued a comparatively rare decision on the “litigation privilege.”