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 …

Translation: The Korean Bar Association's Code Of Ethics For Attorneys, Wonji Kerper, Changmin Lee

Washington International Law Journal

No abstract provided.

Korean Code Of Ethics For Attorneys, Wonji Kerper, Changmin Lee

Washington International Law Journal

In 2009, Korea implemented a law school educational system, which not only changed the legal education system, but the legal landscape as a whole. This has led to rapid growth in the number of attorneys. Although the increased number of attorneys has resulted in lower barriers to accessing justice, it has also brought the unintended consequence of cut-throat competition. With the number of disciplinary actions rising by four-fold in the last three years, the current version of the Korean Code of Ethics for Attorneys is certainly a step in the right direction but may not be enough to strengthen attorneys’ …

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 …

Beyond The Fakultas'S Four Walls: Linking Education, Practice, And The Legal Profession, Stephen A. Rosenbaum

Washington International Law Journal

More than fifty years after the first post-colonial Southeast Asian regional conference on legal education, commentators and educators do not necessarily agree on the appropriate curricular balance between theory, doctrine, and practice, or what role the government should play in directing the orientation of legal studies and careers in Indonesia’s law schools. The author argues in favor of legal education that is rich in experiential learning and integrates the involvement of practitioners and doctrinal faculty. This objective may be a relatively new reality in Indonesia, but also one that needs revitalization in other Southeast Asian nations and beyond. This article …

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 …

Social Media Policies For Character And Fitness Evaluations, Jessica Belle

Washington Journal of Law, Technology & Arts

In 2009, Florida became the first U.S. jurisdiction to articulate a Character and Fitness Evaluation (CFE) policy of examining the social media accounts of bar applicants who had demonstrated a history of questionable conduct such as substance abuse or seeking to violently overthrow the U.S. government. This policy may allow access to otherwise legally inaccessible data, which creates a risk of the bar unlawfully considering information protected by applicants’ constitutional rights. Over the past 60 years, the U.S. Supreme Court has split on whether bar organizations may constitutionally deny bar admission to applicants who refuse to answer certain questions on …

The Brave New World Of Lawyers In Japan Revisited: Proceedings Of A Panel Discussion On The Japanese Legal Profession After The 2008 Financial Crisis And The 2011 Tōhuku Earthquake, Bruce E. Aronson

Washington International Law Journal

In the United States, the 2008 financial crisis had a serious impact on a legal profession that had been growing strongly for three decades, highlighting fundamental issues concerning the business and educational models of both law firms and law schools. This raises the interesting question of how Japan, with its much shorter history of large law firms and professional law schools, has been affected by the 2008 financial crisis and the 2011 Tōhoku earthquake, tsunami, and nuclear reactor crisis. At a recent conference sponsored by the University of Washington School of Law and the law firm of Perkins Coie, a …

The Training, Appointment, And Supervision Of Islamic Lawyers In Singapore, Nik Hasyila Bte Nik Ibrahim

Washington International Law Journal

This article provides a snapshot of the administration of Muslim law as practiced in Singapore through the prism of the legal profession. In particular, it provides a brief background on the role of the legal profession in the administration of justice at the Syariah Court of Singapore. While it is beyond the scope of this paper to urge for institutional and legal reform, the paper nonetheless highlights the absence of a dedicated and specialized training program that can aid lawyers to be familiar with Muslim law and jurisprudence and provide better representation to their clients at the Syariah Court.

The Training, Appointment, And Supervision Of Islamic Lawyers In Indonesia, Ratno Lukito

Washington International Law Journal

Lawyers who practice before Islamic courts play a crucial role in framing and presenting the issues for decision and in mediating between the courts that apply Islamic law and the public who have recourse to the state’s official Islamic legal institutions, but research on the professional training and governance of these lawyers is almost entirely lacking at present. This article offers a descriptive overview of the training, work, and professional regulation of Islamic lawyers in contemporary Indonesia. This material is presented in a clear format, structured to highlight key aspects of how these lawyers are trained, accredited, and organized. In …

The Training, Appointment, And Supervision Of Islamic Lawyers In The Federal Territories Of Malaysia, Amanda Whiting

Washington International Law Journal

Although much has been written about the place of Islam, as law and as religion, in Malaysia, considerably less attention has been paid to Islamic lawyers (“peguam syarie”). This article undertakes a preliminary examination of a topic that demands closer scrutiny, relying chiefly upon parliamentary acts, state enactments and the rules made pursuant to them, as well as in-depth oral history interviews with Islamic and secular lawyers that were recorded from May through August 2010. It describes the training and practice of Islamic lawyers in one jurisdiction of the federation of Malaysia—the Federal Territories of Kuala Lumpur, Putrajaya …

To Mine Or Not To Mine: Recent Developments In The Legal Ethics Debate Regarding Metadata, Boris Reznikov

Washington Journal of Law, Technology & Arts

The American Bar Association recently decided that attorneys are not violating the Model Rules of Professional Conduct by reviewing opposing parties’ electronic documents for metadata. The stance taken by the American Bar Association contradicts views from ethics committees in other jurisdictions that have determined that lawyers who examine metadata are acting unethically. This Article summarizes the American Bar Association’s decision, as well as the other opinions on metadata, to help practicing attorneys understand the proper ethical considerations they must make when determining whether to look into an electronic document’s metadata.

Client Confidentiality, Professional Privilege And Online Communication: Potential Implications Of The Barton Decision, Kelcey Nichols

Washington Journal of Law, Technology & Arts

In a recent case of first impression, Barton v. U.S. District Court for the Central District of California, the U.S. Court of Appeals for the Ninth Circuit held that an online communication involving an online intake form filled out by prospective clients gave rise to an attorney-client relationship governed by the duty of confidentiality and subject to attorney-client-privilege. The Ninth Circuit’s multi-factored analysis suggests a modified framework for evaluating when the duty of confidentiality and attorney-client relationship can be formed through online communications. This Article discusses Barton’s implications for attorneys and law firms that communicate with clients and …

Hiding Evidence From The Boss: Attorney-Client Privilege And Company Computers, Kelcey Nichols

Washington Journal of Law, Technology & Arts

Recent court decisions in In re Asia Global Crossing, Ltd., People v. Jiang, and Curto v. Medical World Communications have held that attorney-client privilege can protect certain information located on an employer-issued computer from disclosure if the employee had a reasonable expectation of privacy. This Article provides a brief background on attorney-client privilege and explores the factors courts consider when determining whether an employee has this reasonable expectation. These factors include the scope of employer monitoring, the employer-employee agreement pertaining to the computer, the presence of password-protection, the location of the computer, and the relevancy of the evidence …

Legal Market Liberalization In South Korea: Preparations For Change, Hyung Tae Kim

Washington International Law Journal

South Korea’s World Trade Organization membership requires the “Land of the Morning Calm” to liberalize its legal market. South Korea submitted its proposal for liberalization in the spring of 2003 and planned to begin opening its legal market in 2005. However, disagreements between South Korea and other World Trade Organization members over the scope of liberalization have led to a one-year negotiation period extension, pushing back the planned market opening to early 2007. The Korean Bar Association has strongly opposed liberalization, claiming that liberalization will lead to the foreign domination of South Korea’s legal market. On the other hand, most …

Electronic Case Filing: Is Failure To Check Email Related To An Electronically Filed Case Malpractice?, Jessica Bekskis

Washington Journal of Law, Technology & Arts

This article explores electronic case filing and the duties of lawyers with regard to electronic filing. A recent federal district court case held that an attorney’s failure affirmatively to check the status of his case via email or the court’s PACER system, which resulted in dismissal of the case, did not constitute excusable neglect under Rule 60(b)(1) of the Federal Rules of Civil Procedure. This holding imputes a professional duty on lawyers who use the electronic filing system to check email and the status of their case, suggesting that breaching of such duty may constitute malpractice.

"I Didn't Know My Client Wasn't Complying!" The Heightened Obligation Lawyers Have To Ensure Clients Follow Court Orders In Litigation Matters, Mafé Rajul

Washington Journal of Law, Technology & Arts

Ensuring a client’s compliance with court orders and federal law is becoming a bigger responsibility for attorneys. This is because courts and Congress are starting to hold attorneys to higher standards with respect to their clients’ compliance with litigation duties and with federal law. This Article will address the duties Congress imposed on lawyers through the Sarbanes-Oxley Act with respect to up-the-ladder reporting and will parallel such standards with those set by the Southern District of New York court in Zubulake with respect to preserving electronic discovery in anticipation of litigation. Although the duties imposed by the Sarbanes-Oxley Act and …

E-Discovery—Can The Producing Party Expect Cost-Shifting?: The New Trend And What Can Be Done To Reduce Production Costs, Mafé Rajul

Washington Journal of Law, Technology & Arts

Now that computers and the Internet have radically changed the way businesses create and transmit information, questions about discovery rules in litigation continue to arise, such as which party should pay for producing electronic discovery. The courts are now considering cost shifting when the cost of production is unduly burdensome on the producing party by applying a seven-factor test. However, cost shifting is not always considered or granted, which is why it is important to have electronic documents relevant to anticipated litigation accessible in order to minimize the cost of producing electronic discovery. This Article will examine how courts are …

Ethical Standards Of Japanese Lawyers: Translation Of The Ethics Codes For Six Categories Of Legal Service Providers, Kyoko Ishida

Washington International Law Journal

Today, Japanese attorneys and so-called "quasi-lawyers" (jun hōritsuka) face significant regulatory reforms to the legal services they provide. The justice system reform (shihō seido kaikaku) significantly expanded the scope of practice for quasi-lawyers in order to meet the country's growing need for legal assistance. Also, in November 2004 attorneys established new ethical standards which also apply to registered foreign business attorneys for the preparation of upcoming increase of population of attorneys. In contrast to the United States, where attorneys provide legal services almost exclusively, there are several licensed legal service providers other than attorneys (bengoshi …

Can Law Firms Spam?, Kevin Michael

Washington Journal of Law, Technology & Arts

The CAN-SPAM Act of 2003 presents a compliance problem for law firms that issue periodic newsletters to clients or prospective clients. While the Act does not expressly include such newsletters, nor define commercial advertisement in a manner that suggests newsletters will be included, the advisory opinions from state ethics boards suggest that newsletters are advertisements. Arguments can be made that newsletters to current clients are not advertisements. However, given the low cost of compliance with the Act, firms should treat these newsletters as commercial advertisements and adhere to the provisions of the Act.

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 …

China's New Foreign Law Firm Regulations: A Step In The Wrong Direction, Jane J. Heller

Washington International Law Journal

Following China's accession to the World Trade Organization ("WTO"), the Chinese government issued new regulations governing foreign law firms in China. A number of commentators have analyzed these regulations to evaluate whether China is "'on track" to fulfilling the commitments it undertook to gain entry to the WTO. However, a more basic question that should be addressed is whether the new regulations meet China's goals in joining the WTO: to foster trade and economic development and to accelerate the growth of China's legal profession. Although China appeared willing to engage in significant liberalization of the legal services sector when it …