Justia Legal Ethics Opinion Summaries

Articles Posted in Washington Supreme Court
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Petitioners Robert Ayerst and Justin Lewis were represented at their criminal trials by Robert Van Idour. Though a licensed attorney in Idaho, Van Idour was never admitted to practice in Washington. Accordingly, Van Idour was not authorized to practice law when he represented the petitioners, along with 100 other indigent defendants in Asotin County. Th Washington Supreme Court found Van Idour’s failure to gain admittance to the Washington bar was not just shockingly unprofessional, it was "unethical and indefensible." The issue presented here was whether a lawyer who is licensed in Idaho but not in Washington was nevertheless a lawyer for purposes of the Sixth Amendment to the United States Constitution. Ayerst and Lewis contended this failure resulted in a complete denial of counsel, which constituted structural error and demanded reversal of their convictions. While the Washington Supreme Court agreed Van Idour’s actions violated state licensure rules, it disagreed that they amounted to a constitutional denial of counsel. Therefore, the Court affirmed the Court of Appeals’ denial of Ayerst’s and Lewis’s personal restraint petitions. View "In re Pers. Restraint of Lewis" on Justia Law

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Janelle Henderson, a Black woman, and Alicia Thompson, a white woman, were involved in a motor vehicle collision. Thompson admitted fault for the collision but made no offer to compensate Henderson for her injuries. Henderson claimed that her preexisting condition was seriously exacerbated by the collision and sued for damages. During the trial, Thompson’s defense team attacked the credibility of Henderson and her counsel—also a Black woman—in language that called on racist tropes and suggested impropriety between Henderson and her Black witnesses. The jury returned a verdict of only $9,200 for Henderson. Henderson moved for a new trial or additur on the ground that the repeated appeals to racial bias affected the verdict, yet the trial court did not even grant an evidentiary hearing on that motion. The court instead stated it could not “require attorneys to refrain from using language that is tied to the evidence in the case, even if in some contexts the language has racial overtones.” The Washington Supreme Court concluded the trial court abused its discretion by failing to grant an evidentiary hearing and also by failing to impose any sanctions for Thompson’s discovery violations. Judgment was reversed and remanded for further proceedings. View "Henderson v. Thompson" on Justia Law

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The Commission on Judicial Conduct (Commission) ruled that Judge David Keenan, a King County Superior Court judge, violated the Code of Judicial Conduct (CJC or Code) when he approved a bus advertisement for North Seattle College. The ad pictured him and stated, in part, “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities.” North Seattle College was a nonprofit community college where Judge Keenan received both his high school and his associate’s degrees. The ad ran for three weeks as part of North Seattle College’s fall enrollment campaign. The Washington Supreme Court concluded Judge Keenan’s conduct did not violate Rules 1.1, 1.2, or 1.3 of the Code. He did not violate his duty to be, and to appear, impartial, and he did not abuse the prestige of his office. The Court therefore reversed the Commission’s decision and dismissed the charges. View "In re Keenan" on Justia Law

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The issue this case presented for the Washington Supreme Court's review related to the boundaries of the corporate attorney-client privilege and how it operated when in conflict with a plaintiff’s physician-patient privilege. In 2015, Doug Hermanson sideswiped an unoccupied vehicle and crashed into a utility pole. Hermanson was transported to Tacoma General Hospital, which was owned by MultiCare Health System Inc. Hermanson was treated by several MultiCare employees, including two nurses and a crisis intervention social worker. However, the physician who treated Hermanson, Dr. Patterson, was an independent contractor of MultiCare pursuant to a signed agreement between MultiCare and Trauma Trust, his employer. Trauma Trust was created by MultiCare; Dr. Patterson had his own office at Tacoma General Hospital and was expected to abide by MultiCare’s policies and procedures. During Hermanson’s treatment, an unidentified person at Tacoma General Hospital conducted a blood test on Hermanson that showed a high blood alcohol level. As a result, someone reported this information to the police, and the police charged Hermanson with first degree negligent driving and hit and run of an unattended vehicle. Based on this disclosure of his blood alcohol results, Hermanson sued MultiCare and multiple unidentified parties for negligence, defamation/false light, false imprisonment, violation of Hermanson’s physician-patient privilege, and unauthorized disclosure of Hermanson's confidential health information. MultiCare retained counsel to jointly represent MultiCare, Dr. Patterson, and Trauma Trust, reasoning that while Dr. Patterson and Trauma Trust were not identified parties, Hermanson’s initial demand letter implicated both parties. Hermanson objected to this joint representation and argued that MultiCare’s ex parte communications with Dr. Patterson violated Hermanson’s physician-patient privilege. The Supreme Court determined that Dr. Patterson still maintained a principal-agent relationship with MultiCare, and served as the "functional equivalent" of a MultiCare employee; therefore MultiCare could have ex parte communications with the doctor. The nurse and social worker privilege were "essentially identical in purpose" to the physician-patient privilege, making ex parte communications permissible between MultiCare and the nurse and social worker. View "Hermanson v. Multicare Health Sys., Inc." on Justia Law

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At issue before the Washington Supreme Court in this matter was whether trial courts had discretion to impose remedial sanctions under RCW 7.21.030(3) in the absence of ongoing, continuing contempt. Derek Gronquist was convicted of violent sexual offenses in 1988. While confined, he participated in a sex offender treatment program until 1991. That same year, former participants of the program brought a class action against the Department of Corrections (Department) to enjoin the release of their treatment files, which contained extensive medical and personal information. Gronquist was not a named class member. The case resulted in a permanent injunction in 1993 that prohibited the Department from releasing certain documents from any class member’s file. Though not a named party, Gronquist fell within the class of persons protected by the injunction. As Gronquist approached his earned early release date, the Department referred him to the King County prosecutor for possible commitment as a sexually violent predator. Under then-current statutory law, the prosecutor sought all records relating to Gronquist’s treatment. Gronquist filed a civil contempt motion against the Department and the King County prosecutor for releasing his treatment records. He also sought an accounting for all breaches of the injunction, an order transferring him to community custody, destruction of all improperly disclosed confidential information, at least $500 a day per contemnor, disqualification of a potential expert witness, and attorney fees and costs under RCW 7.21.030(3). The Department and the prosecutor may have shared some of Gronquist’s files in direct contravention of a valid injunction. On the Department's motion, but before considering Gronquist's contempt motion, the trial court prospectively invalidated the injunction as to Gronquist. The Department them moved to dismiss the contempt motion as moot. The Washington Supreme Court determined courts had discretion to impose remedial sanctions in the absence of contempt, but in this case, Gronquist failed to establish he suffered any compensable losses. With no ongoing contempt, any claim for sanctions here was moot. View "Gronquist v. Dep't of Corrections" on Justia Law

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Richard and Debra Plein sued USAA Casualty Insurance Company, alleging insurance bad faith. The Pleins hired three attorneys, two of whom were members of the Keller Rohrback LLP lawfirm (Keller), to represent them. But Keller had previously defended USAA in bad faith litigation for over 10 years. Under the Rules of Professional Conduct, Keller would have been barred from representing the Pleins if the prior representation was in a matter "substantially related" to the Plein matter. Interpreting the "substantially related" language in the Rules of Professional Conduct was one of first impression for the Washington Supreme Court. The Court held that under RPC 1.9(a), USAA failed to show a "substantial risk" that Keller obtained 'confidential factual information" that would 'materially advance" the Pleins’ case. Accordingly, Keller did not represent former client USAA on any matter "substantially related" to the instant case. The Court therefore reversed the Court of Appeals decision that disqualification was required, and reinstated the trial court’s order that disqualification was not required. View "Plein v. USAA Cas. Ins. Co." on Justia Law

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Naziyr Yishmael, who was not an attorney, advised clients that they could "homestead" in apparently abandoned properties and, after a period of time, acquire title through adverse possession. After some of his clients were arrested for taking up residence in other people's houses, he was charged with and convicted of misdemeanor unlawful practice of law. On appeal, he contended: (1) the jury was improperly instructed that the unlawful practice of law was a strict liability offense; (2) the trial court's use of GR 24 to define the practice of law violated separation of powers was an inappropriate comment on the evidence; (3) the Statute was unconstitutionally vague; and (4) the evidence presented was insufficient to sustain his conviction. Finding no reversible error, the Washington Supreme Court affirmed Yishmael’s conviction. View "Washington v. Yishmael" on Justia Law

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The State charged David Nickels with first degree murder in 2010 in Grant County, Washington. Though represented by counsel. Nickels acquired additional legal assistance from a local criminal defense attorney, Garth Dano. The parties agreed that Dano's involvement in Nickels' defense created a conflict of interest requiring Dano's personal disqualification, but they disputed the scope of his involvement. The record established that Dano entered a notice of association of counsel and appeared on the record to receive a jury question and to receive the jury's verdict. The record further establishes that after Nickels' conviction in 2012, Dano conducted interviews with jurors and potential exonerating witnesses. Via his counsel's uncontested affidavit, Nickels claimed Dano received privileged work product through his participation in crafting the defense's strategy and theory of the case, and his meeting personally with Nickels. In 2014, while Nickels' appeal was pending, Dano was elected Grant County prosecutor. Subsequently, in 2017, the Court of Appeals reversed Nickels' conviction. On remand, the Grant County Prosecuting Attorney's Office immediately sought to screen now-Prosecutor Dano. Nickels moved to disqualify the entire office, arguing that under “Stenger,” Dano's prior involvement in his defense necessitated the blanket recusal. The trial court denied Nickels' motion; but the Court of Appeals reversed and, applying Stenger, ordered the disqualification of the entire Grant County Prosecuting Attorney's Office. The Washington Supreme Court determined Stenger’s narrowly crafted rule applied only to Washington's 39 elected county prosecutors who, despite adequate screening, retained broad discretionary and administrative powers over their offices and employees. Accordingly, the Supreme Court held that Stenger remained good law, and affirmed the Court of Appeals' decision disqualifying the Grant County Prosecuting Attorney's Office. View "Washington v. Nickels" on Justia Law

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The clerk of DivisionTwo of the Washington Court of Appeals imposed a $200 fine on attorney Travis Stearns for seeking an extension of time to file an opening brief in an indigent criminal appeal. Stearns' client, Randolph Graham, was convicted of first degree murder and other crimes and sentenced to 800 months' confinement, about 300 months above the standard range. Graham appealed, and counsel from the Washington Appellate Project was appointed to represent Graham when his original attorney left the practice to join the judiciary. The opening brief in Graham's case was originally due on January 17,2019, but the first attorney the Washington Appellate Project assigned to Graham's case asked for an extension of time to file the opening brief after discovering that the record was incomplete and that more transcripts had to be ordered. In requesting a second extension of time, Stearns explained that the record was voluminous: 1300 pages of transcripts, which he received 63 days previous to the second request; coupled with the other demands o his time, Stearns anticipated filing the brief as soon as possible, working quickly as he could within his constitutional obligations and the Standards for Indigent Defense. The clerk of the Court of Appeals granted the extension, but also sanction Stearns $200 for not filing the opening brief by April 17. Because Stearns was fulfilling his duty of effective representation in asking for an extension, the Washington Supreme Court granted discretionary review and reversed the Court of Appeals with regard to Stearns' motion and sanction. View "Washington v. Graham" on Justia Law

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A wine bottle shattered in Rolfe Godfrey's hand while he was working as a bartender, injuring him. He filed a products liability suit against the winery, St. Michelle Wine Estates, Ltd. and the bottle manufacturer, Saint-Gobain Containers, Inc. (collectively, Ste. Michelle). The case was assigned to Pierce County, Washington Superior Court Judge Garold Johnson, who set the initial case schedule, including discovery deadlines. The case was later reassigned to Judge Katherine Stolz, who, upon a stipulated and jointly proposed order, extended the parties' deadlines to disclose their witnesses. This case turned on the nature of that stipulated order. Two months later, and before Judge Stolz made any other rulings in the case, Godfrey filed an affidavit of prejudice and a motion for Judge Stolz's recusal under former RCW 4.12.040 and .050. Judge Stolz denied the motion, concluding that the earlier stipulated order to extend witness disclosure deadlines involved discretion and, thus, the affidavit of prejudice was not timely. Judge Stolz presided over the bench trial. Ste. Michelle prevailed, and Godfrey appealed. The Washington Supreme Court concluded that under Washington law, a party does not lose the right to remove a judge when the judge takes certain categories of actions, including arranging the calendar. The Court held that a stipulated order extending discovery deadlines that did not delay the trial or otherwise affect the court's schedule was an order arranging the calendar under the former RCW 4.12.050. Accordingly, the affidavit of prejudice was timely, and the case should have been reassigned to a different judge. View "Godfrey v. Ste. Michelle Wine Estates, Ltd." on Justia Law