Division I of the Washington Court of Appeals recently addressed the “professional judgment” rule in Angelo v. Kindinger, 2022 WL 1008314 (Wn. App. Apr. 4, 2022). The rationale of the rule, which is a long-standing part of the decisional law of legal malpractice, is that a lawyer should not be held liable for malpractice for a good faith judgment within a range of reasonable alternatives.
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The federal district court in Seattle recently looked to a choice-of-law provision in an engagement agreement in denying summary judgment on the statute of limitations in a legal malpractice case. U.S. Bank, N.A. v. The Glogowski Law Firm, 2021 WL 3375942 (W.D. Wash. Aug. 3, 2021) (unpublished), involved legal malpractice claims by the plaintiff bank against the defendant law firm for work in Washington and Oregon. A choice-of-law provision in the engagement agreement involved, however, designated Minnesota law as controlling because the bank is headquartered there.
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The federal district court in Seattle recently enforced an arbitration provision in a lawyer’s engagement agreement in Dodo International, Inc. v. Parker, No. C20-1116-JCC, 2021 WL 4060402 (W.D. Wash. Sept. 7, 2021) (unpublished). The lawyer had represented some of the plaintiffs in a series of business transactions that the court described as “ill-fated.” Litigation followed against both the lawyer and the counterparties.
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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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In the latest issue of Washington State Bar News, attorneys David Sheldon and Leron Vandsburger answer some key NFT questions and explain the rights that are transferred through an NFT transaction and what legal professionals should know before talking to a client about whether to get into NFTs.
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For many, dairy farms will bring to mind pleasant imagery of placid cows nibbling grass and farmworkers ambling in the pre-dawn hours with stool and milking bucket in hand. In reality, the job of a dairy farmworker involves handling sometimes dangerous fully grown cows, machinery that can lead to injury or death, and long hours in a risky environment. These are some of the reasons why dairy farmworkers fought and won the right to overtime pay after the landmark Washington Supreme Court decision Martinez-Cuevas v. DeRuyter Bros. In the newest issue of Washington State Bar News, Marc Lampson breaks down the court’s decision and provides a detailed history of dairy farming to explain how this battle for overtime pay and worker safety on dairy farms came about.
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The federal district court in Seattle recently discussed the prospective client rule—RPC 1.18—in denying a motion to disqualify a law firm. Collins v. Nova Association Management Partners LLC, No. C20-1206-JCC, 2021 WL 2184879 (W.D. Wash. May 28, 2021) (unpublished), involved Fair Debt Collection Practices Act and related claims by a condominium unit owner against his owners association and its management company.
Read More… Division I of the Washington Court of Appeals recently refused to enforce a fee-sharing agreement between two plaintiffs’ lawyers because the arrangement had not been confirmed in writing with the client as required by RPC 1.5(e)(1)(ii). Kayshel v. Chae, __ Wn. App.2d __, 483 P.3d 1285 (2021), involved an individual employment discrimination claim and a separate wage class action. The attorney who was retained initially by the client—the claimant in the individual case and the then-potential class representative in the class action—later associated another lawyer in the class action. The two lawyers eventually agreed on a fee split in percentage terms. They wrote the agreement by hand over breakfast and later confirmed the terms between themselves by email. Although the second lawyer related that he had received the client’s oral consent in a telephone call, the client was never presented with the written agreement.
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On Jan. 8, the Washington Supreme Court approved significant amendments to the RPCs governing both lawyer advertising and in-person solicitation. The Supreme Court’s action culminates a lengthy review of the lawyer marketing rules by both the WSBA and the court itself and parallels similar developments nationally.
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It’s hard to believe that 2021 is already over. After a painfully slow 2020 during which the entire world was coming to grips with a (hopefully) once-in-a-lifetime pandemic, things almost began to feel normal this past year, and the weeks and months seemed to fly by. We started going out. We dared to think about things other than the virus. We gave our streaming services a much-needed break. The virus remained an ever-present part of life in 2021, but nowhere near what it was in the year before. You can see that reflected in the variety of topics covered on NWSidebar this year. Although the pandemic has remained a challenge for lawyers and non-lawyers alike, the blogs over the past year began to stretch beyond the limitations of COVID life and back into some semblance of normalcy. As has become our annual tradition, take a look back at 2021 to see the 10 most-read blogs of the year
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Earlier this year, Division I of the Washington Court of Appeals issued a decision touching on an area of the Rules of Professional Conduct (RPC) that is rarely litigated: revoking consent to conflict waivers. The decision was “unpublished” under General Rule 14.1, but is instructive nonetheless—both for its illumination of this comparatively “unplumbed” area of conflicts law and as an illustration of the result.
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Approximately every four years since 1985, the American Bar Association has published a “Profile of Legal Malpractice Claims.” Plaintiffs’ personal injury and family law are the most frequent source of claims, according to the latest profile. Although the Profile does not correlate the severity of claims by practice area, the Profile’s “anecdotal observations” section suggests that business and commercial law have traditionally been higher-risk areas on this score.
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After substances like LSD (acid), MDMA (ecstasy), and notably psilocybin (magic mushrooms) were classified as federally prohibited Schedule 1 drugs, a new wave of research into their therapeutic potential is growing, state and local governments are decriminalizing their use, and new areas of law are opening up. “Now there’s what’s referred to as a psychedelic renaissance …,” said Kathryn Tucker, special counsel at Emerge Law Group. “It’s just an incredible surge of interest.”
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Should you represent a witness in the same case in which you are representing a party? Mark Fucile examines Alaska Bar Association’s opinion.
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The pandemic has forced many lawyers to work remotely. In some instances, that simply means working out of a home office in the same city that the lawyer’s firm is based. In others, however, lawyers have been working from second homes in states in which they are not licensed to practice law. The American Bar Association (ABA) recently addressed this latter aspect of remote work in a new ethics opinion—Formal Opinion 495, issued on Dec. 16.
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Professional liability policies for lawyers and law firms often distinguish between disciplinary and malpractice defense. Some don’t cover disciplinary defense or, if they do, include a much lower coverage limit. A recent decision from the U.S. District Court for the Western District of Washington underscored the practical impact of the distinction between disciplinary and malpractice coverage.
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