Law Commons^™

One Crisis Or Two Problems? Disentangling Rural Access To Justice And The Rural Attorney Shortage, Daria F. Page, Brian R. Farrell

Washington Law Review

We have all seen the headlines: No Lawyer for Miles or Legal Deserts Threaten Justice for All in Rural America. There is a substantial body of literature, across disciplines and for diverse audiences, that looks at access to justice in rural communities and geographies. However, in both the popular and scholarly imaginations, the access to justice crisis has been largely conflated with the shortage of local attorneys in rural areas: When bar associations, lawyers, and legal academics define the problem as not enough lawyers, more lawyers become the obvious solution. Consequently, programs aimed at building pipelines from law schools …

The Regulation Of Lawyers In Compliance, Jennifer M. Pacella

Washington Law Review

The field of compliance has exploded in interest, attention, and growth over recent years. It has emerged as a popular career path for those trained in the law, giving rise to an influx of job opportunities for new law school graduates and seasoned attorneys alike. Additionally, compliance has tightened the essential interplay between business and law. Numerous compliance officers hold J.D. degrees and many also serve simultaneously as both an organization’s chief compliance officer and general counsel, thereby muddying the lines between which service constitutes the “practice of law,” requiring adherence to professional rules of responsibility, or non-legal work, where …

Rules Versus Standards: A Moral Inquiry Into Washington's Character & Fitness Hearing Process, Jennifer Aronson

Washington Law Review

Historically, moral character inquiries within the state bar admission process have led to the exclusion of diverse and important voices from the legal profession, both consequentially and at times by design. Washington does not keep statistics on the race, ethnicity, gender, or economic class of bar applicants who are referred to character and fitness hearings, nor on the outcomes of those hearings. Examining how implicit bias and disparate outcomes interact in other areas of discretionary adjudicative decision-making illustrates the potential impact that the character and fitness process has on underrepresented communities in the legal profession.

In a criminal justice reform …

Replacing Geographic Lines With Conceptual Lines: A Proposal For Limited Authorization Of Multijurisdictional Practice Of Law, Patrick Medley

Washington Law Review

State regulations have created substantial barriers to lawyers who engage in multijurisdictional practice of law. Applying the amorphous concept of practice of law to modern society results in many lawyers who knowingly or unknowingly practice in multiple states—including states where they are not admitted to the bar. Yet there is no simple means by which a lawyer can obtain permission to engage in multijurisdictional practice in the United States. This Comment proposes a way for Congress to authorize multijurisdictional practice for some aspects of legal practice without completely displacing the role of state bars. Drawing on analogies to the division …

The Legal Monopoly, Renee Newman Knake

Washington Law Review

Lawyers enjoy an exclusive monopoly over their craft, one unlike any other profession or industry. They bar all others from offering legal representation. In most jurisdictions, lawyer-judges draft, enact, and enforce their own professional conduct rules as well as preside over any legal challenge to the rules’ validity. Lawyer regulation purports to protect the public and preserve professionalism, but it also reduces competition, constrains information, and maintains artificially high prices. Consequently, much of the American public goes without help when a lawyer is needed. Federal antitrust law typically steps in to remedy this sort of pervasive market control, promoting competition …

"Clientless" Lawyers, Russell M. Gold

Washington Law Review

Class counsel and prosecutors have a lot more in common than scholars realize. These lawyers have clients, but their clients are diffuse and lack a formal decisionmaking structure. Because of the nature of their clients, class counsel and prosecutors have to make decisions for their clients that one would ordinarily expect clients to make—and indeed that legal ethics rules would expressly require clients to make in other contexts—such as decisions concerning objectives of representation or whether to settle or plead guilty. Both complex litigation and criminal law scholars recognize that these lawyers’ self-interests diverge from their clients’ interests. But the …

Put Privity In The Past: A Modern Approach To Determining When Washington Attorneys Are Liable To Nonclients For Estate Planning Malpractice, Kaitlyn C. Kelly

Washington Law Review

Even in the best of circumstances, an estate plan may leave intended beneficiaries frustrated. Occasionally, an attorney’s alleged mistake in the execution of a will or administration of a trust sparks the beneficiaries’ anger. Under Washington law, it is unclear whether intended beneficiaries may sue an estate planning attorney for malpractice. Generally, an estate planning attorney’s client is a testator, not a testator’s intended beneficiaries; thus, the intended beneficiaries are not in privity of contract with the attorney. Rather, the only individual in privity with the accused attorney is usually deceased at the time of a malpractice lawsuit. If a …

The House Edge: On Gambling And Professional Discipline, Stacey A. Tovino

Washington Law Review

On March 26, 2014, the Iowa Supreme Court revoked the license to practice law of Cedar Rapids attorney Susan Hense. Admitted to the Iowa Bar in 1996, Hense subsequently misappropriated $837,000 in client trust funds to feed her addiction to casino gambling. This Article assesses how attorneys like Hense who are addicted to gambling are treated in professional disciplinary actions, including license suspension, revocation, and reinstatement proceedings. Themes that emerge include public misunderstanding of gambling disorder, stigma against individuals with gambling disorder, statutory recognition of substance addictions but not behavioral addictions, and mandatory attendance at religion-based fellowship meetings as a …

An Ethical Dilemma: Attorneys' Duties Not To Reveal Elder Abuse In Washington State, Margaret Sholian

Washington Law Review

Elder abuse is a growing social issue in the United States. As a result of increasing awareness of elder abuse, every state has enacted mandatory or voluntary reporting laws to encourage public oversight of this vulnerable population. While mandatory and voluntary reporting statutes list a wide variety of professionals, such as physicians, social workers, and caretakers, as mandatory reporters, few of these statutes require attorneys to report elder abuse. Arguably, attorneys are in the best position to discover abuse of their elderly clients, as attorneys are advisors, counselors, and protectors of their clients’ affairs. However, in many circumstances, an elderly …

Drafting Agreements As An Attorney-Mediator: Revisiting Washington State Bar Association Advisory Opinion 2223, Caitlin Park Shin

Washington Law Review

This Comment argues that Washington State Bar Association Advisory Opinion 2223 (WSBA Advisory Opinion 2223) should be revisited. WSBA Advisory Opinion 2223 reaches the unqualified conclusion that an attorney-mediator violates the Washington Rules of Professional Conduct (RPC) when drafting legal documents such as Property Settlement Agreements, Orders of Child Support, or Parenting Plans for unrepresented parties. WSBA Advisory Opinion 2223 creates confusion because it contains two significant flaws: (1) an omission of relevant comments to the RPC, and (2) an inconsistent reliance on extra-jurisdictional authority. Given WSBA Advisory Opinion 2223’s practical ramifications, the opinion should be reconsidered. Reexamining this opinion …

The Undersigned Attorney Hereby Certifies: Ensuring Reasonable Caseloads For Washington Defenders And Clients, Andrea Woods

Washington Law Review

The Standards governing Washington’s public defenders represent a significant reform aimed at protecting an important constitutional right for our state’s vulnerable citizens. This Comment provides the necessary introduction to the Standards and addresses skepticism on the part of current practitioners and elected officials. Cooperation among defense attorneys, local governments, and the courts could ensure the Standards’ success and—in turn—a better system of public defense for attorneys and defendants alike. Part I of this Comment introduces the reader to the new Standards. Part II offers an overview of common critiques of the Washington State Supreme Court Standards that were voiced by …

Balancing Consumer Interests In A Digital Age: A New Approach To Regulating The Unauthorized Practice Of Law, Cristina L. Underwood

Washington Law Review

States have traditionally relied on unauthorized practice of law statutes and court rules to restrict nonlawyers from providing legal services. A majority of courts assess compliance with these statutes by applying set practice of law definitions and restrictive court precedent to nonlawyer activity. These methods of enforcement have failed to balance consumer protection concerns with the public's need for access to affordable legal services. Most state practice of law definitions have proven inflexible, broadly barring the practice of law by nonlawyers, with few exceptions. Courts interpreting unauthorized practice statutes have created bright-line rules that favor consumer protection, failing to incorporate …

Lawyer Communications On The Internet: Beginning The Millennium With Disparate Standards, Louise L. Hill

Washington Law Review

Lawyer communications on the Internet constituting commercial speech are subject to state ethics rules governing lawyer advertising and communication. Because each state operates as a separate entity with its own rules that govern the lawyers of its jurisdiction, the profession is faced with disparate standards on a jurisdictional basis. Of the forty-three states that have adopted the Model Rules of Professional Conduct, four-fifths have standards on lawyer communications that vary from those in the Model Rules. Not only is there variation in the rules themselves, but differences exist in the specific applicability and interpretation of these rules to components of …

Interest Or Principles?: The Legal Challenge To Iolta In Washington State, Jay Carlson

Washington Law Review

Interest on Lawyer Trust Accounts (IOLTA) programs exist in all fifty states and raise significant funding for legal services for the poor. A recent series of federal court lawsuits seeks to eliminate IOLTA programs on the grounds that they violate the Fifth and First Amendments to the U.S. Constitution. Washington Legal Foundation v. Legal Foundation of Washington, currently on appeal to the Court of Appeals for the Ninth Circuit, is one such lawsuit challenging Washington State's IOLTA program. In Phillips v. Washington Legal Foundation, a similar case from Texas, the U.S. Supreme Court recently ruled that funds raised …

Coming Of Age: Recognizing The Importance Of Interdisciplinary Education In Law Practice, Janet Weinstein

Washington Law Review

This Article proposes that lawyers need to be creative problem solvers if they are truly to serve the needs of their clients. The ability to collaborate with professionals from other disciplines is an important aspect of creative problem solving. The Article examines the skills required for creative problem solving and law students' and attorneys' facility with these skills.The Article further discusses the barriers to providing interdisciplinary training in law schools and suggests ways to incorporate such training.

A Proposed Conflict Of Interest Rule For Attorney-Mediators, Michelle D. Gaines

Washington Law Review

Maintaining the success and fairness of mediation requires mediators to be impartial toward all parties and to protect the confidentiality of mediation sessions. Attorney-mediators encounter conflicts of interest, based on prior or subsequent representation of clients, that can disrupt impartiality or confidentiality. When attorneys practice mediation, it is unclear where they should look for guidance: attorney rules of professional conduct, mediator ethical standards, or both. Additionally, attorney-mediators encounter unique issues that ethical guidelines designed for attorneys or mediators do not address adequately. This Comment proposes a comprehensive conflict of interest rule for inclusion in the Rules of Professional Conduct that …

Attorney-Client Privilege Versus The Pto's Duty Of Candor: Resolving The Clash In Simultaneous Patent Representations, Todd M. Becker

Washington Law Review

Patent attorneys play dual roles: they are simultaneously attorneys and patent practitioners. Their dual role causes problems when the rules that govern one role conflict with the rules that govern the other. One such problem is illustrated in Molins PLC v. Textron, Inc., where a patent attorney simultaneously representing two clients was caught between the Patent & Trademark Office's duty of candor and the attorney's duty of confidentiality imposed by the rules of professional responsibility. The Molins decision presents a problem because it creates uncertainty about whether confidentiality can be maintained by using the attorney-client privilege to defeat the …

Taxing Contingency Fee Attorneys As Investors: Recognizing The Modern Reality, Robert M. Amkraut

Washington Law Review

In the 1995 case of Boccardo v. Commissioner, the Ninth Circuit changed the tax treatment of advances made by attorneys working on contingency fee arrangements. The court held that, in a specific type of contingency fee arrangement, costs paid by an attorney are deductible as ordinary and necessary business expenses. This decision not only challenges assumptions underlying decades of case law and centuries of legal ethical tradition, but it also undermines the tax accounting principle of matching expenses with related income. This Note summarizes the traditional rationales for prohibiting attorneys from deducting such costs and analyzes the Boccardo decision. …

Attorney Malpractice Liability To Non-Clients In Washington: Is The New Modified Multi-Factor Balancing Test An Improvement?, Sheryl L.R. Miller

Washington Law Review

Most jurisdictions recognize a cause of action for legal malpractice against a non-client only where the attorney-client relationship is formed to benefit a third-party nonclient. This rule generally operates to preclude an attorney's potential liability to a client's adversary. Washington departed from the majority in 1992 in Bohn v. Cody, where the Washington Supreme Court found that an attorney did owe a duty to his client's adversary. Two years later, in Trask v. Butler, the supreme court modified Bohn's test for determining attorney malpractice liability to third parties to conform Washington's law with the majority of jurisdictions. …

Enforcing Lawyers' Covenants Not To Compete, Glenn S. Draper

Washington Law Review

Courts uphold most post-employment covenants not to compete if they meet a three part reasonableness test that balances the interests of the employer, the employee, and the public. Lawyers' covenants not to compete, however, are treated differently. Courts hold lawyers' agreements that prohibit competition with their former firms per se invalid, in order to preserve clients' unrestricted freedom to choose their attorneys. Courts have split on whether to apply the per se rule to invalidate lawyers' agreements that discourage rather than prohibit post-employment competition. The California Supreme Court's recent decision in Howard v. Babcock, applying the familiar reasonableness test to …

In-House Counsel's Wrongful Discharge Action Under The Public Policy Exception And Retaliatory Discharge Doctrine, Raymis H.C. Kim

Washington Law Review

Most courts hold that in-house counsel have no cause of action under public policy or retaliatory discharge exceptions to the at-will employment rule. This is true even when they are discharged in contravention of a clearly mandated public policy. These courts have rationalized that such recognition would be contrary to the at-will nature of attorney-client employment and would have an adverse effect on the attorney-client relationship. This Comment proposes that courts should extend the public policy exception and retaliatory discharge doctrine to in-house counsel to protect the public from illegal corporate acts and provide relief to in-house counsel.

Leaving Your Speech Rights At The Bar—Gentile V. State Bar, 111 S. Ct. 2720 (1991), Lester Porter Jr.

Washington Law Review

In Gentile v. State Bar the Supreme Court voided an attorney disciplinary rule regulating trial publicity for vagueness. The Court, however, upheld the substantive standard employed by the rule to identify dangerous speech. This standard restricts more attorney comments to the media than the Court has allowed for the press or public. This Note argues that the standard upheld in Gentile fails First Amendment scrutiny and proposes a response for states reviewing their professional disciplinary rules in light of Gentile. Adoption of this proposal will mitigate the danger of prejudicial trial publicity while recognizing the benefits of attorney publicity.

Defense Counsel As Prosecution Witness: A Combined Doctrine To Govern Attorney Disclosure, David B. Merchant

Washington Law Review

Prosecutors have increasingly used grand juries to compel defense attorneys to disclose client administrative data such as clients' names, fee amounts, or third-party fee payments. A majority of the federal circuit courts protect administrative information only if disclosure would reveal the substance of previous attorney-client conversations. In contrast, a minority of the circuits protect such information when disclosure would incriminate a client in the case at bar. This Comment argues that neither of the current doctrines accomplishes the goals of the attorney-client privilege. Instead, a doctrine that combines the majority and minority views would more effectively promote the policies underlying …

Attorney's Fee Contingency Enhancements: Toward A Complete Incentive To Litigate Under Federal Fee-Shifting Statutes—Pennsylvania V. Delaware Valley Citizens' Council For Clean Air, 107 S. Ct. 3078 (1987), Arthur J. Lachman

Washington Law Review

Federal fee-shifting statutes generally allow trial courts to award "reasonable" attorney's fees to prevailing parties in order to promote private enforcement of Congressional statutory directives. The starting point for the computation of fee awards under the fee-shifting statutes is the "lodestar" amount. The "lodestar" amount is defined as the reasonable number of hours spent by the attorney on the case multiplied by a reasonable hourly rate. Trial courts, in their discretion, have then enhanced the lodestar amount based on a variety of factors, including the quality of representation, delay in receiving payment, and contingency. Contingency is defined as the risk …

Attorney's Fee Contingency Enhancements: Toward A Complete Incentive To Litigate Under Federal Fee-Shifting Statutes—Pennsylvania V. Delaware Valley Citizens' Council For Clean Air, 107 S. Ct. 3078 (1987), Arthur J. Lachman

Washington Law Review

Federal fee-shifting statutes generally allow trial courts to award "reasonable" attorney's fees to prevailing parties in order to promote private enforcement of Congressional statutory directives. The starting point for the computation of fee awards under the fee-shifting statutes is the "lodestar" amount. The "lodestar" amount is defined as the reasonable number of hours spent by the attorney on the case multiplied by a reasonable hourly rate. Trial courts, in their discretion, have then enhanced the lodestar amount based on a variety of factors, including the quality of representation, delay in receiving payment, and contingency. Contingency is defined as the risk …

The Award Of Attorney's Fees To Prevailing Defendants Under The Washington Long Arm Statute, Valner L. Johnson

Washington Law Review

Numerous state and federal statutes award winning litigants attorney's fees from losing litigants. The Washington long arm statute, section 4.28.185(5) of the Revised Code of Washington, allows prevailing nonresident defendants to recover their attorney's fees from losing resident plaintiffs. The statute provides that when defendants are personally served outside the state on causes of action enumerated in the statute, the court may require a plaintiff to pay the defendant's reasonable attorney's fees. This Comment argues that the judicial implementation of this provision inappropriately inflicts injury upon Washington plaintiffs while often failing to protect nonresident defendants.

The Award Of Attorney's Fees To Prevailing Defendants Under The Washington Long Arm Statute, Valner L. Johnson

Washington Law Review

Numerous state and federal statutes award winning litigants attorney's fees from losing litigants. The Washington long arm statute, section 4.28.185(5) of the Revised Code of Washington, allows prevailing nonresident defendants to recover their attorney's fees from losing resident plaintiffs. The statute provides that when defendants are personally served outside the state on causes of action enumerated in the statute, the court may require a plaintiff to pay the defendant's reasonable attorney's fees. This Comment argues that the judicial implementation of this provision inappropriately inflicts injury upon Washington plaintiffs while often failing to protect nonresident defendants.

The Supreme Court's Interpretation Of Section 1988 And Awards Of Attorney's Fees For Work Performed In Administrative Proceedings: A Proposal For A Result-Oriented Approach—North Carolina Department Of Transportation V. Crest Street Community Council, Inc., 107 S. Ct. 336 (1986), Richard Gans

Washington Law Review

In 1976, Congress enacted the Civil Rights Attorney's Fees Awards Act, amending 42 U.S.C. § 1988. Section 1988 authorizes courts to award attorney's fees to claimants who prevail in actions or proceedings to enforce civil rights under any of the laws enumerated in the Section. In North Carolina Department of Transportation v. Crest Street Community Council, Inc., the United States Supreme Court for the first time addressed the issue of whether a party may seek attorney's fees in a court action apart from the action or proceeding in which the party seeks to enforce civil rights. Justice O'Connor, writing for …

Federal Courts And Attorney Disqualification Motions: A Realistic Approach To Conflicts Of Interest, Linda Ann Winslow

Washington Law Review

The motion to disqualify an adversary's attorney has become the newest weapon in a litigator's motion arsenal. Disqualification motions alleging conflicts of interest can result in a great advantage to the movant by denying the opposition their choice of counsel, or by delaying the proceedings for several weeks or months. The attractiveness of the attorney disqualification motion as a strategic weapon is enhanced by the failure of the courts to impose sanctions against attorneys who bring frivolous disqualification motions. This Comment examines the treatment in federal courts of motions made to disqualify an adversary attorney and the relevant rules of …

Rico And The Forfeiture Of Attorneys' Fees: Removing The Adversary From The Adversarial System?, Tim Tracy

Washington Law Review

Analysis of the courts' application of RICO's amended forfeiture provisions to attorneys' fees entails consideration of the language of the statute, congressional intent, and the requirements of the fifth and sixth amendments. That analysis leads to a conclusion that neither legislative history nor statutory language requires the inclusion or exclusion of attorneys' fees from RICO forfeiture. Likewise, the right to counsel provided by the sixth amendment, upon which some courts have relied, does not adequately resolve the issue. Instead, fifth amendment due process analysis provides the requisite constitutional framework to resolve the fee forfeiture issue. Fifth amendment considerations compel recognition …