Wash Supreme Court – NWSidebar

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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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WA Legislature Special Session: A History of Drug Possession Law Following State v. Blake

In the evening of sine die of the 2023 session, April 23, the “Blake Bill”—the E2SSB 5536 conference committee proposal for replacing the expiring criminal provisions of ESB 5476 (2021)—was brought to the floor of the House and failed, an unexpected result. Much media attention has been paid to the apparent political snafu, but less attention has been paid to the history, evidence, policy options, and principles that underlay the votes taken that evening.

Gov. Jay Inslee has announced his intent to convene a special session to address this legislation, beginning May 16. Washington’s legal community has an immediate opportunity to express individual opinions to Washington’s elected decision makers about whether, and to what extent, use of criminal sanctions against people solely for drug use is consistent with the values and vision of Washington’s and the United States’ promises of justice for all.

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Status, History of Bar Structure Examined in Latest Bar News

This August, the WSBA Board of Governors is scheduled to wrap up its eight-month discussion about the very foundation of Washington’s mandatory, integrated bar and whether it should remain the same or undergo a structural change. The Board’s study process, ETHOS (Examining the Historical Organization and Structure of the Bar), is reaching the end of its mission from the Washington Supreme Court to answer three key questions about the Bar’s structure and the potential impact of federal litigation.

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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.

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What You Need to Know About the Latest WSBA Bar Structure Review

The basic question remains the same: Does the structure of an integrated bar association like that in Washington, and 31 other states like it, infringe on its members’ constitutional rights? To provide further clarity in answering that question, for the second time in three years, the structure of the Washington State Bar Association is undergoing a Washington Supreme Court-requested diagnosis.

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Washington Supreme Court Outlines Contours of Confidentiality Rule

The Washington Supreme Court recently addressed the scope of the confidentiality rule RPC 1.6 in In re Cross. Cross had represented a client in a criminal case arising out of an accident involving an all-terrain vehicle the client was driving. When the criminal case resolved, Cross and the client held a confidential discussion about the possibility of pursuing a product liability claim against the ATV manufacturer. Based on Cross’s advice, the client decided not to file a product liability claim. A passenger in the ATV accident later sued Cross’s by-then former client. When the former client’s defense lawyer in the civil case moved to add an affirmative defense attributing the accident to a product defect, the passenger opposed the motion. To support the opposition, the passenger’s lawyer obtained a declaration from Cross in which he disclosed the confidential conversation he had with the former client evaluating the possibility of bringing a product claim and revealing that the former client had decided not to pursue such a claim in light of the costs and risks. A bar grievance followed.

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Inoculation Altercation: What Critics Misunderstand About the Washington Supreme Court Vaccination Order

Two months ago, the Washington Supreme Court issued an order requiring court employees and contractors either to be vaccinated against COVID-19 or to qualify for a medical or religious exemption from vaccination. The court also “strongly encouraged” other Washington courts to adopt a similar requirement for themselves. Since then, there has been public criticism of the court’s order, including from within the legal community. The Washington Supreme Court’s power to issue the order comes from two sources: inherent and statutory.

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Legal Regulatory Sandbox Could Incubate Innovation in Washington

Judiciaries in Washington and other states are wrangling over how the practice of law can catch up with rapidly evolving demand and new technology. The answer might come in a Legal Regulatory Sandbox proposed by the Washington Supreme Court’s Practice of Law Board. Imagine a website that could guide people through contesting traffic infractions. More […]

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The Unsettled Policy Landscape of Drug Possession Laws in Washington

On Feb. 25, the Washington Supreme Court struck down the state’s main drug possession crime in a case called State v. Blake. The ruling meant there was no state law making simple possession of drugs a crime unless the Legislature recriminalized it, which it has now done via passage of Engrossed Senate Bill (ESB) 5476. In the debate over ESB 5476, some stakeholders argued that the Blake decision was an opportunity for Washington to adopt a new approach to substance use disorders based on solutions that heal rather than continue to inflict harm on people and communities. Others advocated for recriminalization. ESB 5476 ended up taking elements of both of these approaches. It provides new statewide planning and resources for substance use services, but also recriminalizes possession.

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The History and Mechanics of Qualified Immunity and Police Accountability

Among the many issues at the center of debates over police-involved killings, particularly killings of people of color, few are as impactful as qualified immunity. But for as often as qualified immunity is pulled into wider debates, the concept itself is idiosyncratic and opaque, perhaps even among legal professionals. It is not a law but a precedent, not an act of government but a judicially created doctrine. King County Superior Court Judge David Whedbee is one of the organizers behind a planned full-day event aimed at examining qualified immunity. On May 7, Whedbee and Washington Supreme Court Justice Mary I. Yu will cohost “Qualified Immunity 360,” sponsored by the Washington State Minority and Justice Commission and featuring panelist presentations and discussion “to educate practitioners, judges, law students, and the public on the mechanics, history, and public policy behind the doctrine.”

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Supreme Court Applies Corporate Attorney-Client Privilege to ‘Functional Employees’

The Washington Supreme Court recently applied the corporate attorney-client privilege to “functional employees” in Hermanson v. Multicare Health Systems, Inc. In the privilege context, “functional employees” are not directly employed by a corporation but are sufficiently integrated into a company’s operations that some federal courts—including the 9th Circuit and Washington’s federal district courts—had concluded that they fall within the corporation’s attorney-client privilege.

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Mandatory Equity and Anti-Bias Training on the Table Again

Six months after an unsuccessful effort to incorporate new mandatory subject areas within the ethics education requirements for Washington legal professionals, the Washington Supreme Court MCLE Board has suggested a similar but more narrowly focused amendment that is so far being viewed more favorably by WSBA members.

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When Court is Back in Session: The Plan for Washington Courts to Resume During COVID-19

Everything from social distancing in a jury trial to managing a backlog of cases remain top of mind for officials at all levels of the state court system. A review of county superior court websites reveals that many courts continue to prioritize virtual proceedings while developing methods to handle in-person interactions safely.

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Limited License Legal Technician Program Under the Lens

Eight years after it was created, the future of the Limited License Legal Technician (LLLT) program is at a crossroads and, following a May 12 meeting with members of the LLLT Board, WSBA staff, and the Budget and Audit Committee, the Washington Supreme Court has been asked take action ranging from expanding the program to sunsetting it.

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Retirement Retrospective: Washington Supreme Court Justice Charles K. Wiggins

As Justice Wiggins whiles away his last days on the bench, we asked him his views on judicial elections, among other things he’s learned as a Supreme Court justice.

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State Supreme Court Revisits Elected Prosecutor Conflicts

Ethics Guru Mark Fucile examines a recent Supreme Court ruling that an elected prosecutor’s entire office is disqualified to litigate in cases the prosecutor tried prior to election.