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.”
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Bar News Dives Into Indian Law
The new issue of Bar News focuses on Indian Law; it was developed with the help of the Bar News Editorial Advisory Committee and members of the WSBA Indian Law Section.
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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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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 May 15, 2023) (unpublished), involved a variety of claims by a Washington dentist against a Massachusetts lawyer flowing from the dentist’s purchase of a practice in Longview.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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The 2023 Legislative Session, Involuntary Treatment Act, and More in the New Bar News
The 2023 Washington legislative session was a veritable who’s who list of divisive political issues. Affordable housing, assault weapons, drug possession, the death penalty—all were on the docket this year in Olympia. Indeed, over the 105-day session, followed by a brief special session, the WSBA Legislative Affairs Team tracked roughly 500 bills.
In addition to a brief glimpse at the hundreds of bills the Legislative Affairs Team tracked for WSBA sections, Walvekar also provides an overview of the WSBA’s Bar-request legislation, a look at the special session to address statewide drug possession law, and some of the expected issues to watch when the Legislature reconvenes in January 2024.
The June issue of Bar News also explores a bevy of Washington laws, policies, and organizations of relevance to the state’s legal profession.
What Happened in the 2023 Washington Legislative Session
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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The Benefits of Jumping
Hollywood is replete with stereotypes: Scientists are nerds, hackers spend their free time at raves, white men can’t jump. In the legal industry, we have a similar stereotype that established lawyers can’t jump … into a new area of law.
A tax lawyer, as the theory goes, must remain a tax lawyer for 35-plus years. A divorce lawyer, same thing. The idea being that after 10 years or so, we are stuck to our familiar, well-trodden practice areas. Something about our profession seems to create this sense that we’ll ruin everything we’ve worked so hard to build if we try something new. So the tax lawyer may indeed wish to switch to admiralty law, but doesn’t. It could be that their kids are in an expensive private school or the high monthly law school loan obligation that holds them back from making a needed change. The list of reasons why things can’t change is long, and it’s full of reasons beyond money.
Once you know something well, who wants to throw away all that knowledge? Plus, there’s the fear of losing referral sources. What of the established client base? Lawyers can spin up plenty of reasons to support the idea that, indeed, lawyers can’t jump.
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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Court of Appeals Rules on Law Firm Trade Secrets Claim
Over the past generation, lawyers have increasingly moved from firm to firm in private practice. Most moves occur with relatively little drama and, when there are issues over points like notice to clients, WSBA Advisory Opinion 201801 (2018) and ABA Formal Opinion 99-414 (1999) offer practical guidance to law firms and departing lawyers on their obligations under the professional rules.
The Washington Court of Appeals, however, recently issued a relatively rare decision involving a trade secrets claim by a law firm against a departing lawyer. Hudson v. Ardent Law Group, PLLC, 2023 WL 2859334 (Wn. App. Apr. 10, 2023) (unpublished), involved a law firm that had a very focused practice representing clients in real estate timeshare disputes. The firm had developed tailored forms and collected a large amount of electronic data for use in handling client work. While still employed by the firm, a lawyer secretly copied the firm’s entire client database. The lawyer then left the firm to start a competitor and used the information in an effort to recruit the firm’s clients.
The Richest Man in Town
One of the final scenes of Frank Capra’s classic “It’s a Wonderful Life” occurs when George Bailey, having been shown how truly full and blessed his life has been, is toasted by his younger brother: “A toast to my big brother George: the richest man in town.” The twist of the beloved movie is that, even in his darkest moments, George Bailey really had a wonderful life—he just didn’t realize it.
George Bailey is, of course, a fictional character. Today, however, I wish to honor a flesh-and-blood man—a man whom I was fortunate to count as a dear and treasured friend. As many attorneys in Spokane are aware, Ryan McNeice, one of the founding partners of McNeice Wheeler, PLLC, died on April 20 from cancer. Like George Bailey, Ryan had a loving wife and family, the respect and admiration of all who knew him, and a community that was positively impacted by him in more ways than can possibly be counted.
Of Climbing and Lawyering
On the cusp of my 40s, I began toying with the idea of a midlife rejuvenation. I wasn’t shopping around for a full-on crisis or reinvention, just something to add to my repertoire of interests. I was daughter, auntie, girlfriend, and lawyer; but while I had plenty of roles, I had a striking scarcity of hobbies. It was time to take inventory of how I spent my free time and perhaps add a little spice to my days.
I needed something physical to appreciate my health while I had it, before the inevitable mobility limitations of aging showed up to the party. I tried rollerblading, mountain biking, and—for a split second—archery. None stuck.
During a trip to REI to look for inspiration, I wandered into the previously ignored section of ropes and mysteriously elfish footwear. I eavesdropped on a salesperson explain the benefits of something called a locking carabiner. She was enthusiastic and met with the same from her shoppers.
Rock climbing. I had an old boyfriend who occasionally did it. I had seen the award-winning documentary Free Solo. I knew climbing was a thing. Maybe I could make it my thing.
DPP and Me: How the Diversity Pipeline Program Opened My New Career Path
The Diversity Pipeline Program (DPP) is an innovative legal internship and skills development program in tech, media, and telecom (TMT) law, created by members of the Federal Communications Bar Association (FCBA). The program provides 1L law students from historically underrepresented communities, and who are interested in TMT law and policy, with training and internship placements in law firms, the public and private sectors, nonprofits, and trade associations. The DPP is the inspiration of Rudy Brioché, Comcast’s vice president and global policy counsel based in Washington, D.C., and a member of the executive committee of the FCBA. Comcast and the FCBA got behind the idea early and actively shaped and launched the program.
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Help Wanted: Bar News Celebrates the Volunteers Who Power the Bar
Every year, we at the state Bar put our heads together to think up new ways to spread the word about volunteering. Particularly in recent years, we have experienced both sides of what WSBA Executive Director Terra Nevitt calls the “volunteerism tug-of-war.”
“Volunteers are the backbone of our work, and they, by and large, express satisfaction from their ability to shape and guide the profession through their work with the WSBA,” Nevitt writes in the new issue of Washington State Bar News, noting that a AmeriCorps/U.S. Census survey reveals how formal volunteerism with organizations dropped 7 percentage points from 2019 to 2021. “Simultaneously, engaging new volunteers and filling our many volunteer roles has become a heavier lift in recent years.”
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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An Unprecedented Opportunity for Cannabis: What’s Happening with Washington’s Social Equity Program
Mistakes were made. That was the assessment the state’s Liquor and Cannabis Board (LCB) made in 2020, eight years after Washington voters approved Initiative 502, which legalized recreational marijuana in the state; six years after the first marijuana retailers were licensed; four years after the state stopped issuing new retail licenses; and three years before the state would try to correct its mistakes.
For many, especially people of color, marijuana had for years meant incarceration, destroyed families, and uprooted lives. Today, the substance is mostly a great way to get rich without the same risk, and especially if you’re white.
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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