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OCTOBER 2009

Don’t Call Me Counselor

WyLD

Washington State Bar Association YOUNG LAWYERS DIVISION

Volume 23 • Issue 5

A lawyer-in-recovery finds solace in Seattle By M. Susan Wilson

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kay, it’s time I admitted it. Spilled the beans. ’Fessed up. Came clean. After all, I can’t really keep it hidden forever. I harbor a secret identity. I am one of those you loathe. The butt of your cocktailparty banter. The easy target. I am, technically speaking, a lawyer. Mind you, I don’t practice. But being a non-practicing lawyer is sort of like being a non-practicing Catholic: Swear off it all you like, but the imprint of your training stays with you. For years, I’ve tried to keep my lawyerly leanings under wraps. Occasionally, I even try to blend in by telling lawyer jokes around the water cooler:

The author shows off her non-legal skills. (Photo: Doug Landreth)

Now stop me if you’ve heard this one. So, the Pope goes to heaven and he realizes while he’s up there that there’s a lawyer living on the next cloud in an absolute mansion, while the Pope is living in a simple little studio. So the Pope inquires of Saint Peter: ‘Pete, what gives?’ And Saint Peter responds: “Well, we’ve got scores of popes up here, Your Excellency. But we’ve only got one lawyer.” [Insert my forced, nervous laughter here.] As a rule, I never tell new friends — and certainly not romantic partners — until absolutely necessary. (“Sweetie, did you just say ‘heretofore now and hereafter?’”) My lawyer fate was inevitable. You see, I was raised by a pack of lawyers. It’s sort of a family tradition. Or perhaps a congenital disease. I’m not claiming my first words were “promissory estoppel” or “subpoena duces tecum” (why does that always sound dirty?) or anything like that. But when you live among lawyers, it gets in the blood. Sort of like radioactive waste. I always identified it as part of the life cycle: You graduate from high school. You go to college. You go to law school. Problem was, one year in, I knew it wasn’t entirely my cup of brew. But by then I’d knocked a good seven or eight years off the end of my life eating vending-machine food, spending late nights under fluorescent lights while crawling through library stacks looking for casebooks, and sleeping less than the average cult recruit. The next two years were, relatively speaking, cake. So I finished law school, secured my admission to the Wisconsin Bar, and headed west with dreams of doing, well, just about anything else.

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Don’t Call Me Counselor by M. Susan Wilson

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Editor’s Column by Jamila Johnson

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President’s Column by Julia A. Bahner

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How to Manage Your Manager by Allison Peryea

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All A-Twitter by Michael Heatherly

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Legal Ethics and Social Media by Christopher H. Howard and Colin Folawn

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Practice Success 101 by Pete Roberts

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The Legal Needs of Active-Duty Servicemembers and How You Can Help by Jason T. Vail

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The American Immigration Lawyers Association — Washington Chapter: Dedicated to Helping Our Community by Tahmina Watson

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When Procrastination Rears Its Ugly Head by Dan Crystal

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ABA YLD Annual Meeting in Chicago

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Meet the Trustees

Here in Seattle, I hid among the enemy, doing the least taxing job I was best trained to do. I took a temp position at the Washington State Bar Association, approving Continuing Legal Education courses. Much to my surprise, I never heard “Why not practice?” at WSBA. It was the ’90s, and all the glamour was in the rock scene and, later, in the dot-com world. Everyone was trying to get rich fast. Law school was old school. There were no rules here. You could reinvent yourself as you pleased. It sounds like a cliché, but it’s true: The temp who replaced me at the Bar Association had a

master’s in music; another temp was just shy of a Ph.D. in English. This city was, on so many levels, a frontier of sorts, a place where we could all come and start over. Granted, in the past few years, Seattle has changed. But, still, in this harsh economy, where golden dreams turn overnight into fairy dust — or worse, defunct dot-com stock options — you get a little more leniency when you decide to drop out and start again. Okay, yes, we still have some of the country’s richest bigwigs in this city. But we’ve also got high numbers of the unemployed. If you’ve got a job, great. If you’ve got one you love, you’re

damn lucky. So call me fortunate. Call me a wolf in lamb’s clothing. Call me whatever you like. Just, please, don’t call me Counselor.

study carrels but unsure about being a lawyer. I was unabashedly ambitious about journalism, but the idea of law school and I matured together. I liked competition, and was interested in the law, especially as it related to communications. I thought I would enjoy law school (and, unlike Susan, really did). As the sniffles developed into law school fever, I told Susan about my plans. Despite Susan’s valiant attempts to convince me otherwise, her experience made me confident to give the world of law a chance. I surely did not decide to go to law school based upon an article appealing to the masses’ distaste for lawyers — that would be unreasonable. But I did take, and continue to take, a lot from this humorous piece. The pre-article-me thought that you choose a career at age 18 and you work toward it. I thought any deviation was a sign of weakness. Susan went to law school, but was not chained to the practice of law. She had felt confident enough in herself to change paths after three years of law school. I was inspired. She was an amazing editor and one of the strongest people I knew. I saw no scars from her escape. I felt a freedom entering law school that few people have. “If this isn’t for me, I can do something else,” I thought. “But I want to devote myself to studying law.” Sure, I might have to change my name and get a tasteful wig if I didn’t decide to practice, but sacrifices can be made. Besides, I liked wigs.

For my first issue as De Novo’s editor, I wanted to share Susan’s piece and my reaction to it. I am blessed with the understanding that law school does not bind you to the practice of law: Each day, I choose to be a lawyer. When I wake and go to work, it is not because I dread fending off the student loan officers. I’ve ducked the Krishnas and the corner LaRoche supporters — I can fend off anyone but those male Greenpeace volunteers. I love my job. I love this legal community. Despite all of the stigma that goes with this profession, I am tremendously filled with joy to be a part of it. And I hope to spend the next year showing it through service to De Novo and its readers. I hope the content in De Novo over the next 12 months helps junior lawyers to remember why they choose to be lawyers, helps them progress as lawyers, and helps us all grow as a community to overcome the stigma associated with the two letters following our names. I have big shoes to fill in this regard, as the previous editor, Cynthia Jones, did wonders for De Novo. But it’s a challenge that I, along with our new associate editor, Allison Peryea, look forward to. ◊

More than 10 years out of law school, M. Susan Wilson published this article in Seattle Magazine in 2003. She won First Place, Humorous Writing, Society of Professional Journalists Western Washington for the piece in 2004. Some of her best friends are lawyers. To read more of her work, visit www. msusanwilson.com.

Editor’s Column by Jamila Johnson

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first met M. Susan Wilson, the author of this issue’s cover story, in the fall of 2002. I’d just finished an internship at The News Tribune in Tacoma and was interviewing (read: begging) for an editorial assistant position at Seattle Magazine. She was the managing editor back then, and, luckily, she hired me. In many ways, her decision led me to law school, and led her to obtain me as a groupie. I got the better end of the deal. For the first issue or so, I checked facts for the magazine and pitched random ideas. Most of these ideas dripped with the immaturity of a college junior who wants nothing more than to be commended for brilliance not truly possessed. But in the January issue, one of my articles was included. Tragically, my small piece, I believe on adult cheerleading, was overshadowed by Susan’s hysterical article about coming out of the closet as a lawyer. Go figure. In fact, Susan won a Society of Professional Journalism award for humor with “Don’t Call Me Counselor.” Until that point, I’d seen Susan as a beacon and a role model for a career in publishing: smart, successful, witty, and in a position of power at a glossy magazine. The fact that she had gone to law school made me reevaluate, suddenly finding her a symbol for something more. I began to think about law school. Not in a way that I would admit in public, but it was there — the small voice in the back of my head that was drawn to

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Jamila Johnson is the editor of De Novo. She is a litigator at the regional law firm Schwabe Williamson & Wyatt and can be reached at [email protected] or at 206-407-1555.

President’s Column by Julia A. Bahner

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elcome to the 2009–10 Bar year! It is my honor to serve as this year’s president of the Washington Young Lawyers Division. I have a long history of service to this great division, starting with when I served as a WYLD Board of Trustees (BOT) King County trustee from 2003–06. I then served for two years as the co-chair of the WYLD Membership Committee before being chosen president-elect for the 2008–09 Bar year. I have also been heavily involved with the American Bar Association Young Lawyers Division and served as the ABA YLD district representative (DR) for Oregon and Washington from 2006-08. As part of this position, I was in contact with all young-lawyer groups in Oregon and Washington and managed the Disaster Legal Services (DLS) program. During my term, DLS was activated twice in Washington as a result of severe flooding and we were able to respond to more than 130 calls from affected individuals. During my many years of service to the WYLD, I’ve also been a frequent author of articles for this publication, and I’m proud to author my first piece as the WYLD president. The WYLD is the voice of Washington’s new and young lawyers. To that end, it must stay relevant and responsive to its members. Soon, each WYLD member will be receiving an

e-mail with a survey focusing on WYLD programs and structure, demographics, and related issues. If you haven’t already done so, please make sure that WSBA has an e-mail address on file for you. Please take the 7 to 10 minutes necessary to respond to the survey. By doing so, you’ll help improve the WYLD so that it can serve its members in the best possible way. The survey will be anonymous, but there will be a link at the end to enter your name into a separate database to win some great prizes just for participating. I want to thank the ABA YLD for providing the WYLD with a subgrant to underwrite the costs of this survey. The WYLD will prepare an executive summary of the survey, so look for the results on our website and in an upcoming issue of De Novo. The WYLD is also working to get a page on Facebook so that those of you who use Facebook can join the site as a member or a fan. My research indicates that many YLD chapters across the country — state, minority, and local bars — already have Facebook pages, and I hope that the WYLD will join that group soon. It is a fantastic way to update members about WYLD programs and events. Privacy matters will, of course, be of utmost concern. The WYLD has a draft design of a page prepared and is seeking the necessary approvals to get it underway and posted as

soon as possible. This year’s WYLD BOT will also be engaging in a joint board meeting with the board members of the Portland YLD and the Oregon YLD. During my two years as the ABA YLD’s DR for Oregon and Washington, I became very impressed by the programs offered by each of these organizations and I hope that by sharing information with each other we can continue to identify the best ways to improve programming and outreach for each of our organizations. Overall, I think it will be a very positive year for the WYLD, but I need your help. Please contact me, Presidentelect Kari Petrasek, or your respective WYLD trustee (listed on the last page of De Novo), to tell us how we can best represent your concerns. Our WYLD staff liaison, Brian Halcomb, can be reached at [email protected]. We aim to serve each young and new lawyer in the state and look forward to hearing from you. It should be an exciting and productive year. ◊

Julia Bahner is the 2009–10 president of the WYLD and can be reached at julbahner@ hotmail.com.

Washington Young Lawyers Division Brings Home ABA Awards Let us know what the WYLD is up to in your area. Send your stories, articles, photos, reports, or calendars to denovo@ wsba.org. Please include author contact information.

During the August American Bar Association Annual Meeting, the Washington Young Lawyers Division received four Awards of Achievement. Three awards related to the Young Bar Leaders Summit on March 20–21, 2009, which united leadership from the WYLD, county YLDs, and minority bar associations to address pressing issues for young lawyers. The awards included “First Place – Service to the Bar” for similar-sized YLDs, “First Place – Minority Project,” and “Most Outstanding Single Project – Service to the Bar.” The WYLD also received commendation for the Washington First Responder Will Clinic.

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How to Manage Your Manager by Allison Peryea

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hough some junior associates may swear otherwise, supervising attorneys are indeed people. They breathe, eat, sleep — though never past the alarm — and, on occasion, even exhibit emotions other than fake outrage conjured up during depositions to shift momentum. And like many people — my ninth-grade homecoming date excluded — supervising attorneys have personalities. As a consequence, they bring managerial styles to the table more varied than one of my Grandma Taylor’s “Let’s empty out the entire contents of the fridge” lunches, which are always delightfully comprehensive. Often, as a result, one of the toughest aspects of an early legal career is trying to figure out what a new boss’s expectations are and how to meet (and maybe even exceed) those expectations. To help speed this process along, I have created a cheat sheet that shoehorns attorney managerial styles into 10 conveniently packaged, yet grossly stereotyped, categories. Every category is accompanied by some advice on how to adapt to each style, gleaned from my own personal experiences and (often wine-fueled) discussions with current and future members of the Bar. 1. The Screamer How to Spot One: A Screamer lets you know when you have screwed up. In fact, a Screamer lets everyone within a four-block radius know you have screwed up, using decibels rather than italics to emphasize that point. A new associate is especially susceptible, since Screamers like to point their bullhorn toward the lowest person on the totem pole (everyone higher up has learned to pack earplugs). What to Do: This is a tough one, since starting a legal career is hard enough without your boss using you as a verbal punching bag. One attorney who began under a Screamer simply quit, preserving her sanity and her hearing. Another harassed paralegal let a Screamer know that his banshee tirade was neither appreciated nor warranted, and she received a genuine apology. The best way to deal with a Screamer probably depends on his recidivism rate and his willingness and efforts to change (although you know

the old saying — “Once a Screamer, always a Screamer”). 2. The Surrogate Parent How to Spot One: This boss is the mother you never had. She insists that you take her morning yogurt when you forget to bring in your packet of instant oatmeal. She sends you home early when you have the sniffles. She puts smiley faces on things when you do a good job. She reminds you not to “work too hard” and to “be sure to take time for yourself.” You find yourself unintentionally referring to your paycheck as your “allowance” and showing up to work in pajamas. What to Do: Just because every day at the office feels like a family reunion does not mean that you can forget about professionalism. Unlike a real parent, a Surrogate Parent will not continue to love you after you are habitually late or would prefer to spend the work day gabbing about your new boyfriend (so dreamy!) rather than analyzing the economic-loss doctrine. And she will not simply deny you dessert after dinner if you screw up one too many times; she will cut off your “allowance” — permanently. So enjoy your enviable working relationship, but do not forget that you are an employee and need to act the part.

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3. The Micromanager How to Spot One: This type of boss is such a control freak that eventually you become afraid to use the stapler without permission. You cannot even conduct a simple Internet search without him lurking behind you, checking to make sure you typed in the word “Google” correctly. In fact, sometimes he even commandeers the computer mouse, citing insubordination after you hesitate between double clicks. One attorney recalls a supervisor who was so heavy-handed with his red pen that “he would even edit his own edits.” What to Do: This kind of supervisor watches your every move like a jealous girlfriend because he is insecure about your ability to get the job done. So you need to do everything you can to earn his trust, even if it means taking big swigs of his manic Kool-Aid and religiously following all 14 steps of his “how to address an envelope” memorandum, which he has used to wallpaper your office. Swallow your pride and feed this type of supervisor’s ego, so he feels not only that you are on his team but that you are the founder and president of his fan club. For example, one attorney adapted to a Micromanager by “agreeing with everything she said – it didn’t matter if it was a conversation about legal issues or some kind of women’s shoes. She just wanted to be the queen bee.” If the Micromanager refuses to ever let up on the leash, however, strongly consider leaving the hive. 4. The “Finding Nemo” Boss How to Spot One: This type of supervisor takes after that fish character Dory in the Disney movie: her memory seems to reset every three minutes or so, most frequently after giving you directions on how to proceed on a case or project. You spend hours — or even days — working on an assignment according to her directions, only to hear from her later that she not only does not remember instructing you to do what you have done, but actually wanted you to do the exact opposite. (The Finding Nemo Boss is a close relative of the Flip-Flopper, who changes his mind about what he wants you to do on a given case or project every

time you chat with him about it.) What to Do: Stop banging your head against your desk (or at least aim for the mouse pad, which will soften the landing). Instead, get out your pen and notebook (you know, like the cavemen used) and make sure that you write down everything your boss instructs you to do during meetings. Before you get started on a new project, write a memo summarizing the directions you received and give your boss the opportunity to review and sign off on it. This process may seem like a terrific waste of time, but so is working on the wrong assignment, or the right assignment the wrong way. If your boss pulls a Dory down the road, you will have written evidence that you were following directions, which you may even be able to admit in court under one or more hearsay exceptions. (Note: You can thank my sister — who is not a lawyer but still thinks she knows everything — for this tip). 5. The Absentee Boss How to Spot One: The scourge of unpaid legal interns, this type of supervisor is so busy and important that sometimes he forgets you exist, which inevitably leads to a paucity of work assignments. You, on the other hand — a lifelong overachiever who wears the adjective “workaholic” like a badge of honor — are acutely aware of both your existence and the fact that you are not spending it frantically preoccupied with tasks that showcase your brilliant legal mind. What to Do: Calm down. Rest assured that some day (to quote Casablanca: “Maybe not today. Maybe not tomorrow, but soon and for the rest of your life”), you will have a workload so heavy that it weighs you down like lead pants. Instead of wasting your precious downtime Facebook-stalking an old law-school flame, take advantage of the break to do those Things That Would Totally Benefit Your Legal Career That You Never Had Time For Before. Go to the courthouse and observe a trial. Expand your networking circle by looking into and joining professional groups and attending events. Try out a public-speaking club. Write an article for De Novo (which is always looking for talented contributors!). Check out some legal practice manuals from the library and actually read them. You will find that many of the most important things you will do to advance your legal career will

One of the toughest aspects of an early legal career is trying to figure out what a new boss’s expectations are. never be billed to a client. 6. The Sink or Swim Boss How to Spot One: This kind of supervising attorney begins a high percentage of his sentences with: “Well, when I was an associate 30-odd years ago…” Like an embittered former fraternity pledge, he thinks you must endure the same grueling initiation into the legal profession he suffered through when he was a rookie. As a result, you are forced to subsist on a diet of minimal feedback (work is deemed either “acceptable” or “unacceptable”) peppered with harsh criticism — all for your own good, of course. You are saddled with professional responsibility that is completely out of your comfort zone and you are terrified to approach your supervisor for help, since the last thing you want to do is give him another opportunity to point out how slowly you are progressing. You pop antianxiety medication like Tic-Tacs. You feel incompetent and have to call your mother all the time so she can remind you that you are a special person. On the bus, you find yourself intentionally sitting next to people with hacking coughs and dripping hankies in the hope that you will catch a cold and get a day’s reprieve (although you are well aware that you will get the “when I was an associate, I never took a single sick day” speech upon your return). What to Do: Put down that drink. Now. If you want to stay afloat with a Sink or Swim Boss, you will need a support crew. Keep in touch with law-school mentors and classmates who can remind you of your past successes, which will give you the confidence to keep paddling. Reach out to more experienced attorneys who can help guide you when you are lost (it turns out that most attorneys will give advice, even when they are not billing for it). Do not give in to self-pity and self-doubt: they will consume you. And though it may be hard, try to look on the bright side: you may be feeling scorched by your supervisor’s trialby-fire approach, but keep in mind that you are getting the opportunity to juggle

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torches while other young associates are not even allowed to light a match (though they may get a research project about matchlighting). Most importantly, recognize that nothing you ever do will be good enough for a Sink or Swim boss, so look elsewhere for the positive reinforcement you need to power you through the rough patches. Put your mom (or therapist) on speeddial, perhaps. And if you do feel like you are drowning, by all means, get the heck out of the pool. It doesn’t necessarily mean that you are incompetent or unusually thinskinned; it just means that you have an impossible-to-please boss who makes you feel like crap all the time. 7. The Dark Side Boss How to Spot One: This supervisor gives you tasks that seem to have been cribbed from a legal ethics exam hypothetical. She gives you ethically questionable assignments, putting you in the position of having to choose between potentially violating the rules (and possibly jeopardizing your license to practice) and refusing to follow a supervisor’s orders, which could mean risking your job. For example, one Bar member recalled an instance where a former supervisor instructed him to arrange for the defendant’s insurer to deposit settlement funds into the court registry — without ever informing the insurer that the plaintiff had died unexpectedly. What to Do: If you receive an assignment in an ethically grey area, do what you can to make things more black-and-white. Call the WSBA Ethics Hotline and discuss the situation with other attorneys (recall that, per RPC 1.6, you may disclose client confidences to the extent necessary to determine compliance with the Rules of Professional Conduct). You can reach the Ethics Line at 206727-8284 or 800-945-WSBA, ext. 8284. Provided you receive confirmation that the assignment is unethical, let your boss know about the feedback you have received. If she presses you to continue with the assignment, put your foot down and suggest ethical alternatives. You do not want to risk your law license and professional reputation just to satisfy an ethically suspect boss’s wishes. That was the conclusion reached by the attorney instructed to lie to the opposing side’s insurer. Refusing to cave in “may have cost me my job,” he said, “but it was one of my proudest moments.”

8. The Cheerleader How to Spot One: This type of boss thinks that everything you do is the most amazing, fantastic thing he has ever seen. He gushes about your talent and skill to everyone and everything in his path: even the potted plants in the lobby know about the spectacular motion for summary judgment you wrote. What to Do: Lose that self-satisfied grin, Ace. Since a Cheerleader never

Meet De Novo’s Associate Editor Allison Peryea is a secondyear litigation associate at Rand L. Koler & Associates, P.S., in Seattle. Her practice areas include real estate, consumer protection, and business law. She has a degree in political science and journalism from the University of Washington, and also attended law school at the UW. Despite her seven-year tenure as a Husky, she still does not think purple and gold are an attractive color combination. Before entering law, she wrote and edited for the University of Washington Daily and the Seattle Times, where she worked as a legislativereporting intern. When she is not representing clients or working on De Novo, Ms. Peryea enjoys traveling. This year alone, she has visited Hawaii, Phoenix, Boston, Detroit (don’t judge — her extended family lives there), and Denver. She grew up in Wenatchee, which she visits as often as she can to eat her parents’ groceries and see the sun. While in Seattle, she enjoys swimming at Lake Washington’s beaches and observing the local color at street festivals.

points out anything wrong with your work, while you are basking in his praise, your professional development is withering. Get off your (likely undeserved) laurels and seek some constructive criticism from your boss or anyone else willing to whip you into shape. Every young lawyer could use a little polish — even shiny, perfect you. 9. The Telepathic Boss How to Spot One: This kind of supervisor suffers from the mistaken impression that you can read her mind. As a result, she tells you only about 75 percent of what you need to know to get the job done (“Oh, I didn’t tell you that the house our client is fighting over burned down last week?”). Because she has squirreled away the missing piece of the puzzle, you repeatedly find yourself wasting time and looking like an idiot in front of clients, judges, and opposing counsel (well, even more so than usual). What to Do: Do your own factual investigation: do not rely exclusively on information learned second-hand from your boss. Supervisors’ brains are loaded with information from a mountain of different cases and projects: it is, accordingly, likely that some of your boss’s recollections will be inaccurate or incomplete, and even with the best of intentions, she will probably leave important things out when discussing an assignment with you. It is your job to fill in the gaps. Read every scrap of paper in the hard-copy file and review every document in the computer file. Peruse all case-related communications. Contact clients and witnesses personally to get the pertinent facts directly from the primary sources. Don’t play the blame game until you have examined every grain in the sand box. 10. The Ideal Boss How to Spot One: A rare but valuable species, this type of boss provides work that challenges you and the supervision you need to get it done right. He praises you for a job well done, but does not hesitate to correct your mistakes with thoughtful feedback. Local Bar lore is that he is a mystical being conjured up by young associates who are still playing the “my job is better than your job” game that started in law school, to give them something to rub in people’s faces during happy hours. What to Do: If you have an Ideal Boss or something even relatively close, be sure to let that person know that you appreciate his guidance. New lawyers depend on their

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supervisors to get them started on the right foot, which requires a lot of time and patience. (We are, after all, the professional equivalent of teenagers — on one hand, cocky and longing for independence, and on the other, completely insecure and dying for approval and someone to hold our hand.) I have been lucky to have had several supervisors who have valiantly taken on the mammoth challenge of molding me into a lawyer, and it has made all the difference. If you do have the good fortune of having a good supervisor, be sure not to take him for granted. Due to space constraints, I have, of course, left out a number of supervisor categories. These include, for example, the Straight Talker, who sugar-coats nothing in the office but his donuts, and the PassiveAggressive Boss, who waits weeks or months to confront you about something and then only does so by e-mail. A veteran trial attorney (himself a supervisor) offered the following recommendations for an array of sticky situations with the entire range of attorney managerial types: First, “surface the problem in a factual, non-judgmental way” — for example, by telling a Micromanager: “I am having difficulty getting my work done with the amount of time you are spending in my workspace.” Second, develop a lifeline of people who you can turn to when you need help or when your drive to succeed shifts into neutral, including “mentors you trust and respect who teach you to do better and inspire you to do better.” Third, if the situation feels intolerable and it becomes obvious that circumstances are not going to change, “you need to leave.” This may seem like an admission of defeat — or professional suicide in a job market where positions for new attorneys are as rare as a sale at Tiffany’s. But, in the long run, you will probably not regret withdrawing from a work situation that severely inhibits your professional growth or makes you utterly miserable. My final general advice is just to listen to what your boss asks you to do and then do your best to fulfill his requests. You cannot ask any more of yourself than that — or at least that’s what my mom tells me during our weekly “Allison is a special person” chats. ◊ Allison Peryea is a litigation associate at Rand L. Koler and Associates, P.S. This is her first issue as De Novo’s associate editor. She can be reached at [email protected].

All A-Twitter by Michael Heatherly

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reviously in this column I have referred briefly and derisively to the Twitter phenomenon. In the spirit of lawyer-like full disclosure, I hereby reveal that I have a Twitter account and read posts daily, although I submit few of my own. I have come to believe that Twitter has survived the fad stage and joined the array of modern communication tools. Accordingly, I am venturing to bring the Bar Beat, and by extension all of Bar News, into Twitterland. I have established a Twitter identity of “barbeat” and invite you to follow me on Twitter.com. For the uninitiated, Twitter is a social networking service. What distinguishes Twitter is that it relies entirely on microposts, messages limited to 140 characters (yes, 140 characters, not 140 words). Via e-mail or text message, users post their notes — commonly called “tweets” — to Twitter. com. Other Twitterers who have chosen to “follow” the user get instant access to the stream of messages, again via e-mail or text message. Users also can send private replies or messages to one another. Early Twitterers enlightened each other with tweets along these lines: “Egg salad for lunch again. Tired of it.” “Just saw [trendy new movie]. Went to restroom, missed best part.” “Off to bed now.” The problem was that Twitter pioneers, like most early adopters of technology, were pasty, Mountain Dewdrinking nerds who would have had trouble coming up with 140 characters’ worth of interesting conversation, even in person. (I say this with full knowledge that these people now rule the world and

For more articles, columns, and information about all of the WSBA, check out Bar News every month – in print and online at www.wsba.org.

the rest of us just work here.) But soon representatives from the opposite end of the social spectrum emerged to bridge the Twitter nerd gap. Celebrities, jocks, politicians, and others with too much to say were thrilled to discover another way to share their humanity with us. This elevated the level of tweet discourse about this much: “Egg salad for lunch again. Tired of it. FIND ME IN PKG LOT B4 GAME = 2 FREE TIX. THE_ REAL_SHAQ” “Just saw [trendy new movie]. Went to restroom, missed best part. NEW BEAT DROPS NXT WK. BUY IT BYOTCHES! LUV Y’ALL. BRITNEYSPEARS” “Off to bed now. DEMI’S WAITING! APLUSK (ASHTON KUTCHER)” Most recently, though, an increasing number of thoughtful people involved in activities that might actually interest or benefit others have ventured into Twitterland. For example, Twitterers can follow the athletic and philanthropic pursuits of Lance Armstrong (“lancearmstrong”), breaking headlines from all variety of news organizations, and the prognostications of numerous forward-thinkers in the digital world. Users also can be alerted to the posting of each new LOLcat (visual jokes consisting of random cat photos adorned with giant, often hilarious captions) on I Can Has Cheezburger (“ICHCheezburger”). Twitter can be oddly addictive and has spawned third-party software (e.g., TweetDeck) that organizes the stream of messages, which otherwise becomes overwhelming. Tweets have exponentially gained appeal and utility by incorporating links to photos, articles, blog posts, etc. Thus, a journalist or elected official might post tweets and photos before or during a news event to describe the setting and atmosphere, then afterward post a tweet linking to a more comprehensive article on the subject. On “barbeat,” I will attempt to tweet on subjects of more gravity than what I am having for lunch. At the same time, it is not

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intended as a news service for the WSBA. My goal will be to alert followers to Bar News content and goings-on and mention key WSBA issues that arise. I am still a rookie at posting tweets, but I’ll figure out how to incorporate photos and links to online sources. How to join in: If you’re a Twitterer already, just add “barbeat” to your list of friends to follow. If you aren’t on Twitter, go to Twitter.com, sign up, and add “barbeat” as a friend. It’s free and easy. You can request that I follow you, too. I will accept friend requests if I can, but I already follow a lot of people, so I may need to set a limit. You are competing for my attention with Shaq and Britney, after all. Disclaimer: Although I will make “barbeat” tweets relevant to WSBA, Bar News, and this column, the posts will be created by me alone. They will not be pronouncements of the WSBA. I do not intend to pontificate, but any opinions expressed will be mine, not those of WSBA leadership or staff. Obviously, I will refrain from posting any defamatory, confidential, or vitriolic material and ask that you observe the same rules in any replies or direct messages you might post. “Egg salad for lunch again. Tired of it. Just saw Hangover. Went to restroom, missed best part. Off to bed now. FOLLOW BARBEAT ON TWITTER!” ◊

Bar News Editor Michael Heatherly practices in Bellingham. He can be reached at 360-3125156 or [email protected]. Follow him on Twitter at “barbeat.”

Legal Ethics and Social Media: The More Things Change, the More They Stay the Same by Christopher H. Howard and Colin Folawn

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ocial media like Twitter, Facebook, MySpace, and LinkedIn are potentially powerful resources. These tools provide publicity and wide access to information. They also have made it easier for attorneys to exercise bad judgment or violate ethical rules without much thought. Social media do not present new ethical challenges, but they have the potential to magnify and accelerate the ramifications of ethics violations. Attorneys should exercise care and thought about why and how they intend to use any of these tools in relation to their practice. Social media are designed to encourage frequent and far-reaching communication about a variety of topics. The easier these tools are to use, the more likely they are to lower inhibitions about communicating on a variety of private or confidential topics. The scope of such communication is usually more like a broadcast than a private communication. Postings on social media are less like a private conversation and more like wearing a printed sandwich board while walking through downtown Seattle. The following are some ethical issues that any attorney should consider before posting. Solicitation Social media can help attorneys attract potential clients. But such tools also make it easy to forget the ethical prohibition against certain forms of solicitation. Attorneys may not make real-time pitches to those with whom there is no familial or prior professional relationship.1 Even if an e-mail message complies with RPC 7.3(b), RPC 7.1, RPC 7.2, and applicable state or federal law regarding unsolicited electronic communication, the sender should be careful not to include hyperlinks or embedded items that may be displayed to the recipient and lead directly to any means or form of live interactive communication.2 Social media may make it easy to blur the line between a permitted mailing and prohibited real-time communication. Even without a real-time element, repeat e-mails or postings may become an abuse

of permitted solicitation if no response has been received.3 Certain forms of communication may be considered advertisements. An attorney who advertises to recipients in other states, even if that advertisement is made electronically, should recall that some states’ ethical rules require express labeling of such communications as advertisements under their RPC 7.3(c). For example, Oregon’s version of RPC 7.3 provides, in part:

Postings on social media are less like a private conversation and more like wearing

a printed sandwich board while walking through downtown Seattle.

Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertisement” in noticeable and clearly readable fashion on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraph (a).4 Although Washington has not adopted RPC 7.3(c), the disciplinary authority of other jurisdictions may apply.5 When a communication is about a lawyer’s services, care must be taken to avoid false or misleading statements or omissions.6 Ethical obligations cannot be avoided simply by contending that such posts are personal: “A lawyer’s conduct

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should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs.” 7 Confidentiality Attorneys are ethically obligated to maintain client confidentiality, as well as certain confidences of others in various circumstances.8 The emergence of social media does not change those obligations. Social media has increased the risk of breaching such confidences by encouraging open, frequent, and broad communication. The ability to frequently, quickly, and widely disseminate information about what you are doing, the people with whom you are meeting, and your impressions can expand the ramifications of exercising bad judgment. For example, chatting over drinks with a friend about a client or potential client may violate confidentiality. Although a quick tweet or post about the same topic may be identical in terms of the type of ethical violation, its audience and scope is much larger and more damaging to the client or potential client, especially since such posts can then be forwarded and shared to many others. When a post may disclose confidentiality, the client’s informed consent is required. 9 Attorneys should not use social media to post anything that they would not be prepared to see posted on CNN.com within a matter of minutes. Work Product Blogging about your work may disclose attorney work product, even when one is careful not to disclose client confidences. In some circumstances, the attorney may be in a position to disclose portions of work product without the objection of the client. However, the result may be just as disadvantageous to the client. An attorney has an obligation to assiduously represent the client’s interests within the scope of the representation.10 This obligation takes priority over the attorney’s desire to network, obtain new

work, or increase visibility. Dumb Statements Posting about professional impressions can be problematic, even if there is no breach of confidentiality or disclosure of attorney work product. For example, an attorney who tweets that opposing counsel is a lying, cheating jerk should assume that someone will forward that message to the attorney (or the Bar). Postings also provide new ways in which lawyers may be discovered violating RPC 3.3. For example, Judge Susan Criss in Galveston, Texas, relayed at a recent ABA annual meeting program that she faced an attorney who asked for a continuance due to the death of her father. However, the judge found the attorney’s Facebook page, which detailed a week of drinking and partying. Judge Criss also relayed that she reviewed Facebook pages of lawyers who complained about handling motions in front of her.11 Investigation Social media can be gold mines for investigating parties, witnesses, other attorneys, and even potential jurors. But their use may also be considered improper ex parte contact.

If access to such information requires electronic communication with, or approval by, a person who cannot be contacted ex parte, such communication may be prohibited under RPC 4.2. Communications with jurors vary from jurisdiction to jurisdiction. In Washington, the rules regarding contact with jurors do not distinguish electronic communication.12 If you must seek permission or become a “friend” in order to access the information, one should assume that such contact is ex parte contact. The fact that the communication is made electronically does not lessen the prohibition. Social media are created to encourage people to communicate whatever is on their mind as frequently as possible. Lawyers are not ethically free to behave this way. Our ethical and fiduciary obligations place limits on our ability to post and share information. The rapidly expanding world of social media does not present new ethical problems for lawyers, but it does require careful thought before an attorney uses social media to post on or talk about work. These powerful tools can amplify the impact of a lapse in judgment, because such communications have broad audiences and are prone to limitless dissemination. ◊

Trial Advocacy Program CLE: Friday, November 7, and Saturday, November 8, at the WSBA Mock Trial: Saturday, November 21, at Seattle Municipal Courthouse $250 for full participation and 19 CLE credits (pending) $150 for CLE only – 12 CLE credits (pending) The annual WYLD Trial Advocacy Program offers intensive training by litigation experts and a true-to-life mock trial experience. Last year’s participants commented: “Completely engaging and thoughtprovoking. Entertaining, real-world skill development.” “Every young lawyer should attend.” To register, visit the WYLD website at www.wsba.org/lawyers/groups/ wyld/tapstdreg09.pdf.

Christopher Howard and Colin Folawn are trial lawyers at Northwest law firm Schwabe, Willliamson & Wyatt. They co-host Schwabe’s monthly ethics-hour CLEs and can be contacted at 206-622-1711, choward@ schwabe.com, or [email protected] about this topic or to attend the monthly ethics hour CLEs.

1. See Wash. RPC 7.3. 2. See Informal Opinion 1962 (2001), at http://pro.wsba.org/IO/print. aspx?ID=1204. 3. See Wash. RPC 7.3, Comment 5. 4. Ore. RPC 7.3(c). 5. See Wash. RPC 8.5. 6. See Wash. RPC 7.1. 7. Wash. RPC, Preamble at ¶ 5. 8. See Wash. RPC 1.6, 1.9, and 1.18. 9. See Wash. RPC 1.6(a). 10. See generally Wash. RPC, Preamble; see also Wash. RPC 113. 11. Molly McDonough, “Facebooking Judge Catches Lawyer Lie,” at www. abajournal.com/news/facebooking_ judge_c atc hes_lawyers_in_lies_ crossing_ethical_lines_abachicago. 12. See Wash. RPC 3.5.

ABA’s Celebrate Pro Bono Week October 25–31 The ABA’s annual Celebrate Pro Bono Week is scheduled for October 25–31, 2009. Sponsored by the ABA Standing Committee on Pro Bono and Public Service, the celebration is a coordinated national effort to showcase the impact that pro bono lawyers make on the nation, its system of justice, its communities, and to the clients they serve. The week is also dedicated to the quest for more pro bono volunteers to meet the ever-growing legal needs of our country’s most vulnerable citizens. The WYLD is actively involved in planning events in Washington state to commemorate this National Pro Bono Celebration Week – including a Pro Bono Fair and workshop October 30 at Seattle University School of Law – and encourages all new and young lawyers to participate. For the full list of activities in Washington state, please visit www.probono.net/celebrateprobono/events/location.2009-10-01.Washington.

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Practice Success 101: Malpractice Insurance by Pete Roberts

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s malpractice insurance required for practicing law in Washington? The short answer is no. But such coverage is highly recommended. Each year, the Washington State Bar Association asks you whether you have malpractice coverage.i The answer is public information that appears in your WSBA Lawyer Directory listing, as shown here:

Mandatory disclosure of this information is a service to the public. The “Click for more info” link takes potential clients to a WSBA webpage that describes in more detail what the member is reporting and not reporting. You are not required to report the following to the Bar: • Who your insurer is, if you have malpractice insurance coverage; • The limits of your policy; • The amount of any deductible you must pay before the insurance company is obligated to pay a claim; or • Any limitations on or exemptions from coverage. For example, most legalmalpractice insurance policies do not cover claims against a lawyer that arise out of the lawyer’s illegal conduct. However, a potential client may ask an attorney about any of the above. The “Click for more info” webpageii provides potential clients with sample questions to ask an attorney before deciding to retain him. These include: • Do you presently maintain professional liability insurance coverage? • What is the name of your insurer? • What are the limits of your coverage? Have any of those limits been used in the payment of other claims? • What is the deductible under your policy? • Does your policy cover the type of work you are doing for me? • What is the term of your current coverage? • Will you advise me if you discontinue your coverage or change your limits?

• Could you provide me with a Certificate of Insurance (evidence from an insurance company that the lawyer is insured)? • If you do not maintain professional liability insurance, why have you made that decision?

• Reporting requirements: You may have to report a claim as well as when circumstances give rise to the possibility of a claim. • Policy limit: The maximum amount that can be paid for a claim, usually expressed as per claim or aggregate (the sum of claims during the one-year policy Not all lawyers maintain professional period). Amounts range from $100,000 to liability insurance. $300,000 and up. Choose Some lawyers may Is malpractice limits that realistically make a responsible insurance represent the risk to your decision not to clients, based on the nature for maintain insurance of their matters. because the lawyer practicing law • Claim: Can be defined is an in-house or in Washington? as a demand for money government lawyer, The short answer or services, the service of or because the a suit, or merely a threat lawyer may choose is no. But such (oral or written) to hold to be “financially coverage is you responsible. (Read the responsible” (i.e., policy definitions carefully.) self-insured). • “Claims made” v.“occur The WSBA offers a sponsored rence”: Most malpractice policies are program that provides malpractice “claims made,” meaning that coverage is insurance through Kibble & Prentice.iii triggered when the claim is made during Call John Chandler at 206-695-3144 to the policy period. “Occurrence” polices are learn more. Other sources for this type of triggered based on the date of the event coverage are available from the WSBA Law or events in the past that give rise to the Office Management Assistance Program present claim. (LOMAP). • Defense: Costs associated with If you contact an insurer about defending you. Ask for this coverage obtaining coverage, the underwriter will “outside of the limit,” meaning that defense ask you to complete an application, which costs are not charged against the policy usually becomes a part of the policy. limits. There is usually no deductible for Typically, you are expected to name a back- defense costs. up lawyer and disclose that you have a dual • Deductible: If a claim is settled, you calendaring system. Describe only your are asked to pay an amount toward that actual practice areas — not what you plan agreed sum. Choices start at $5,000. to practice or wish to practice. Be sure the • Premium or “quote”: What you practice areas described on your website pay for the coverage. The premium may are the same as those you disclose on the take into account that you are part-time, application. The underwriter may check for working on only one matter, or a that the any discrepancies. policy is for shorter period of coverage. The Aspects of a policy include: premium is usually due as a lump sum but may be pro-rated over the year depending • Who is covered: Other lawyers, staff, on the carrier (if so, a surcharge may be contract lawyers, etc. added). Ask for several quotes based on • What is covered: A description of the differing limits and deductibles. Ask also if lawyer’s work. payment by credit card is available. • Exclusions: Who and what is not • “Tail” coverage: When you retire or covered. (Read this section carefully, as otherwise exit the practice of law, you can policies usually exclude fraudulent and purchase an extended reporting period for criminal acts and may exclude suits related a premium that is two or three times the to the return of legal fees.) usual annual premium.

required

highly recommended.

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Policy language will vary, so be sure to review each proposed policy to ensure that you are receiving the coverage you desire. As the policy anniversary approaches, you will be contacted and asked to complete a new application. If you wish to change carriers, plan to research other alternatives at least 90 days before the anniversary date. In your practice, you may also need a “business package policy” that covers premises liability, important papers, lost income, and auto coverage while using your vehicle on business. A home office may need at least a “rider” (added coverage) to your home insurance policy. Ask your broker or agent about these types of coverage. Note that insurance companies often offer free “loss control” services. This means that they send a person to meet with you about your office and your practice. The person can provide helpful forms and tips for helping to prevent a loss. At LOMAP, we can assist you with questions that may arise as you consider these insurance issues. We look forward to hearing from you! ◊

Pete Roberts is the practice management advisor in the WSBA Law Office Management Assistance Program (LOMAP). He has 18 years of experience as a legal administrator for law firms. Pete has an MBA from The College of William & Mary and a certificate as small business webmaster from the University of Washington. He is a frequent speaker and writer and has consulted with more than 400 WSBA members in Washington, Idaho, Oregon, Illinois, and Alaska. Reach him at 206-727-8237, [email protected], or www. lomap.org. He enjoys tennis, travel, cooking, and classical music.

i. APR 26 INSURANCE DISCLOSURE (a) Each active member of the Bar Association shall certify annually in a form approved by the Board of Governors by the date specified by the form (1) whether the lawyer is engaged in the private practice of law; (2) if engaged in the private practice of law, whether the lawyer is currently covered by professional liability insurance; (3) whether the lawyer intends to maintain insurance during the period of time the lawyer is engaged in the private practice of law; and (4) whether the lawyer is engaged in the practice of

law as a full-time government lawyer or is counsel employed by an organizational client and does not represent clients outside that capacity. Each lawyer admitted to the active practice of law who reports being covered by professional liability insurance shall notify the Bar Association in writing within 30 days if the insurance policy providing coverage lapses, is no longer in effect or terminates for any reason. (b) The information submitted pursuant to this rule will be made available to the public by such means as may be designated by the Board of Governors, which may include publication on the website maintained by the Bar Association. (c) Any lawyer admitted to the active practice of law who fails to comply with this rule by the date specified in section (a) may be ordered suspended from the practice of law by the Supreme Court until such time as the lawyer complies. Supplying false information in response to this rule shall subject the lawyer to appropriate disciplinary action. Adopted effective July 1, 2007. ii. See http://tinyurl.com/nal7c4. iii. The WSBA offers other sponsored insurance products. These include medical insurance (contact Marcus Forbes at 206-676-3303 or marcus.forbes@ kpcom.com) and long-term care insurance, longterm disability insurance, and life insurance (contact Clark Daffern at 800-767-0650 or clark.daffern@ kpcom.com).

Volunteer Jurors and Witnesses Needed When: Saturday, November 21 Where: Trial Advocacy Program, Seattle Municipal Courthouse

Network with judges and new lawyers, view courtroom procedure and instruction, and aid new lawyers in their growth as trial lawyers. The WYLD needs volunteers to act as trial witnesses and jurors for the Trial Advocacy Program (see info on page 9). No experience required. Juror information: www. wsba.org/lawyers/groups/wyld/jurorswantedformocktrial.pdf. Witness information: www.wsba.org/lawyers/groups/wyld/witnesseswantedformocktrial.pdf.

Join a WYLD Committee New WYLD committee and program chairs began their year of leadership October 1. These chairs are building committees and task forces to give input and plan WYLD events. To become involved in a committee, contact the chair (listed on the back page of De Novo) or join the committee’s list serve at www.wsba.org/lawyers/groups/wyld/committees.htm.

WYLD Membership Survey Your opinion counts! In an effort to better understand the needs and interests of new and young lawyers, the WYLD leadership will survey all members in the coming months. Look for an e-mail regarding the survey soon. Please take the brief survey in order to assist us in making the WYLD more relevant, responsive, and representative. All participants will be entered into a prize drawing.

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Another Front in the Fight for Access to Justice: The Legal Needs of Active-Duty Servicemembers and How You Can Help by Jason T. Vail

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s a lawyer and a member of the the practical. WSBA, you have undoubtedly heard It is generally accepted that the inability the term “access to justice” more to afford representation by an attorney is a than a few times. But what does this fundamental access-to-justice problem. But phrase really mean? Most would say that to say that this problem affects only those access to justice refers to the notion that living in poverty is an outdated concept. all should have equal access to our legal As the cost of attorney representation system in all of its forms, and that no one continues to climb, it is not only the poor should be barred from such access for any who cannot afford representation. Today, non-meritorious reason. Many examples even those who work and live a relatively of the barriers one might face to access to comfortable lifestyle find the thousands justice come to mind: where a low-income to tens-of-thousands of dollars that a person cannot afford to hire an attorney legal case may require in attorneys’ fees is to bring a case; where a domestic-violence simply too far beyond their reach. Concern victim must face her abuser without the for the ever-expanding class of persons benefit of counsel; where a limited-Eng- unable to afford skyrocketing legal fees has lish-proficient immiresulted in the raising Unless these grant cannot obtain of income-eligibility a court interpreter; servicemembers are ceilings within legalwhere a prisoner can- able to locate some aid programs and not effectively seek the development of form of modestlegal help to chal“modest-means panels” lenge the conditions means assistance, throughout the country of his confinement they may not be able to provide low-cost because of his incarrepresentation to those to secure the legal cerated status; and too “rich” to qualify for even where a person counsel they need, free legal aid. Even the with a disability simply because they WYLD is currently faces actual physical developing a statewide it. barriers to entry into initiative to meet the the courthouse. While the individuals needs of this population. These efforts are and groups for whom those in the fight commendable, but still rare. for access to justice advocate are myriad Those of modest means who cannot and diverse, there is one population whose afford full-fee representation frequently interests are often overlooked — the men include the enlisted men and women of the and women serving in our nation’s armed armed forces. This group is faced with an forces. unfair paradox: their military pay is too great Servicemembers encounter barriers to qualify them for the free legal aid that is to access to justice just as significant as typically available to those within a certain those experienced by the more “traditional” percentage of the federal poverty level, groups benefiting from the access-to- but is insufficient to allow them to afford justice movement, such as in the examples to pay for full-cost legal representation. above. The barriers facing active-duty Thus, unless these servicemembers are military personnel typically boil down to able to locate some form of modest-means two intersecting elements: the financial and assistance, they may not be able to secure

cannot afford

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the legal counsel they need, simply because they cannot afford it. The financial barriers to representation faced by many enlisted servicemembers are compounded by the practical challenges they encounter because of the circumstances surrounding their military service. Military personnel move around frequently and are often deployed to overseas locations. Their mobility often places them in the position of being thousands of miles from where a legal action may arise, with little idea of how to begin to find legal counsel — assuming they can afford such. These problems can play out in a variety of ways: a soldier serving in Afghanistan receives notice that the rental property in which his family lives back home is being foreclosed upon; a sailor stationed in Italy is notified of a divorce filed by his spouse in the United States; an airman in Nevada discovers a years-old default judgment entered against him in Virginia; a Marine in North Carolina receives notice of a childsupport proceeding filed against him in Puerto Rico. These examples illustrate the access-to-justice challenges associated with a level of mobility not typically experienced by civilians. And while a military legal assistance attorney may be of some limited help to the servicemember with these problems, it is very unlikely that the attorney is licensed in the subject forum — and even if she is, military regulations may prohibit her from providing in-court representation on behalf of the servicemember. Imagine being a servicemember and a party to a lawsuit that is filed thousands of

miles away. You have no means of traveling to the forum state, your legal-assistance attorney doesn’t know the particular state’s law, and you have no idea where to begin finding an attorney in the forum state — and on top of it all, you don’t qualify for free legal aid, so you don’t know how you will afford the attorney’s fees even if you could actually find someone to help you. Where do you turn? How do you secure your own access to justice? This is where you, a member of the Washington Young Lawyers Division, come in. There are two significant efforts, at the state and national levels, that need you to volunteer your time to provide active-duty servicemembers with much-needed pro bono legal assistance. Both programs seek the involvement of WYLD members to join in the effort to provide access to justice for servicemembers. The first, Attorneys Assisting Citizen Soldiers and Families (AACF), is a statebased referral network of volunteer attorneys who provide deploying Washington State National Guard members pro bono legal help on a range of civil legal issues. You can also receive CLE credit as a part of your pro

bono services on behalf of Guard members through this program. You can learn more about the AACF and how to join its volunteer roster at its website, http:// aacf.wordpress.com. You may also contact the AACF’s coordinator, Captain Alex Straub, Washington National Guard legal assistance attorney, at attorneysenlist@ gmail.com or 253-512-8262. The other program is the American Bar Association’s Military Pro Bono Project. Where the AACF is a statewide pro bono referral network, the ABA project’s network is national in scope, and it takes referrals from military installations and locations all around the world. All cases are pre-screened and worked up by military legal-assistance attorneys. Washington attorneys who register with the project roster will be given the opportunity to volunteer to handle Washington cases for servicemembers who may or may not be located in the state. More about the ABA Military Pro Bono Project and an opportunity to sign up can be found at www.militaryprobono.org. I am the director of the project, and I can be reached at [email protected]. org or 312-988-5783 for more information.

During my time working to meet the pro bono legal needs of servicemembers through the ABA Military Pro Bono Project, I am constantly impressed by the men and women of the armed forces whom I serve. Their courteousness, decorum, and — above all — gratitude for whatever legal help they can receive makes working with these clients a genuine pleasure. Similarly, I have found the military legal-assistance attorneys whom I work with every day to be exemplary lawyers, displaying the kind of professionalism that makes collaboration tremendously enjoyable. I have spent my legal career working to provide access to justice for an array of clients, and I cannot think of a more rewarding experience than working on behalf of military personnel. I hope my fellow young lawyers will join me in giving back to those who, every day, give so much for us. ◊

Jason T. Vail is the ABA Military Pro Bono Project director. He can be reached at 312988-5783 or [email protected]. He is a former editor of De Novo.

The American Immigration Lawyers Association — Washington Chapter: Dedicated to Helping Our Community by Tahmina Watson

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s I am a relatively new immigration attorney, my practice relies heavily on the assistance I receive from the American Immigration Lawyers Association (AILA). AILA is a national association of more than 11,000 attorneys and law professors who practice and teach immigration law. Founded in 1946, its mission is to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. AILA’s Washington Chapter (AILAWA) has about 300 members. Members are very friendly, welcoming, and supportive of each other. The chapter holds a free monthly CLE session on a variety of topics, both beginning and advanced. The chapter also puts on an annual two-day intensive

Northwest conference with beginning and advanced tracks. The national organization holds an annual four-day conference, usually in June or July. Immigration law is an intellectually stimulating, constantly evolving, and highly rewarding area of law in which you can have a diverse practice. You can focus solely on litigation matters and attend immigration court every day in “removal” (i.e., deportation) matters. Alternatively, you can have a transactional practice in family immigration or business-immigration law. Clients can range from multi-national corporations seeking the world’s top talent to destitute, battered women to individual refugees fleeing devastating or life-endangering conditions in their home country. Many practitioners enter the field because they truly want to help people. For many of our

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clients, our service can mean the difference between life and death. For business clients, our work often affects individual careers, product development, and/or future hiring of U.S. workers. While many may not be aware of its activities, AILA-WA is an active organization in our legal community. For example, it strongly encourages its members to participate in pro bono work. Its Pro Bono Committee supports the work of other community organizations, such as the Northwest Immigrant Rights Project (NWIRP), the King County Bar Association’s Neighborhood Immigration Clinics, Volunteer Advocates for Immigrant Justice (VAIJ), SGB-Latino/a Bar Association Immigration Clinics, and other programs. AILA-WA is also increasingly being asked to provide amicus briefs on issues concern-

promises great reward and ing the treatment of immisatisfaction by helping grants in criminal and state someone vulnerable and less court actions. fortunate, and gives you an AILA-WA began the opportunity to improve an first annual “Citizenship individual’s life situation by Day” program four years intervening on his behalf. ago. (Since then, the national Columbia Legal Services organization has adopted and the ACLU offer addithis project, held annually tional programs in Washingthroughout the country in ton where non-immigration April.) AILA-WA members, lawyers can volunteer and oblaw students, and members of tain experience touching on a the community volunteer at variety of immigration issues. several sites across the state, Seattle-based law students targeting locations where can gain practical experience there is minimal access to through the immigration attorneys who can provide law clinics at the University one-on-one legal advance of Washington and Seattle to potential naturalization University Law schools. applicants. Silviya Borroff and Tahmina Watson, of Watson Immigration Law, In addition to CLEs and Earlier this year, the at Yakima Citizenship Day. pro bono opportunities, benWashington program was efits of AILA membership expanded to three days and include: an active list serve where members 12 sites after AILA developed a partnership ship Day, with some people traveling long help each other solve problems; a New with One America (formerly known as Hate distances to receive assistance. “They were very Members Division that hosts government Free Zone). One America is a recipient of grateful for the service we provided,” she said. agency tours and social events; several subVolunteer turnouts have been impresa state grant to promote citizenship and stantive law and agency liaison committees new-citizen integration in the state. The sive, said AILA-WA Chapter Chair Lisa that offer opportunities to get involved; a next three Citizenship Days will be held Seifert, though she hopes participation will mentor program; advocacy and congresacross the state on October 24, 2009; Feb- expand among organization members and sional liaison training; the chance to attend ruary 6, 2010; and April 17, 2010. During non-members. “I am really proud of our an annual congressional lobby day; and local the program, pro bono attorneys, paralegals, chapter members for donating their time visits with state and federal legislators. AILA legal assistants, interpreters, and non-lawyer and energy to Citizenship Day,” she said, members regularly participate in legislative volunteers come together to assist people noting that “most people volunteered for drafting and analysis and regulatory review. with completing forms and to provide ad- more than one day.” Given the current economic climate In addition to organizing Citizenship vice on complicated legal issues. Training is of our country and the Obama adminisprovided for attorneys and others to ensure Day, AILA-WA regularly assists indigent tration’s interest in immigration reform, effective and accurate advice and assistance detainees held at the Tacoma Detention AILA-WA is reaching out to the State is given to clients. One America handles a Center. Many of you may be aware of the Bar to get involved and make a difference substantial portion of the logistics, media, recent immigration raids in Washington. in the lives of immigrants. To learn how to Sadly, countless detained people are unable and outreach aspects of the program. participate in Citizenship Day, visit www. Citizenship Days have been popular to afford attorneys to assist them. Accordwanewamericans.org. To find out more for immigrants, as the financial costs of ob- ing to the Transactional Records Access about AILA and its Washington chapter, taining citizenship in the United States can Clearinghouse (http://trac.syr.edu/immivisit www.aila.org or www.ailawa.org. be substantial. Many applicants have been gration), more than 80 percent of detained eligible for citizenship for more than 20 immigrants lack counsel. Studies also show Alternatively, you can contact the Washyears but have never had access to adequate that asylum seekers who have access to ington AILA membership chair, Cynthia information, legal counsel, or sufficient counsel are more likely to win their cases Irvine, at [email protected]. If your organization would like to collaborate with funds to file. Citizenship Days also provide than those who are unrepresented. In collaboration with the NWIRP and AILA-WA, please contact Lisa Seifert at a rewarding experience to volunteers, said AILA-WA Vice Chair Bonnie Stern Was- VAIJ, AILA-WA is able to reach out to those [email protected]. ◊ ser, a former Citizenship Day committee who are desperately in need of expert legal chair, offering an opportunity to make a advice through additional pro bono work. real difference in the lives of immigrants. Clients include asylees and refugees, battered Tahmina Watson is a solo immigration pracDuring the most recent Citizenship Day, women, victims of crime and trafficking, titioner with a downtown Seattle office. She “we were even able to determine that some and many others in need of representation. is a member of AILA-WA and is the current of our clients were already citizens and did NWIRP and VAIJ offer free CLE programs president-elect of King County Washington to those taking on a pro bono matter. An Women Lawyers. She can be contacted at tahnot know it,” she said. Wasser said that as many as 750 people AILA member who practices immigration [email protected] or 206used program services during the last Citizen- law provides supervision. The experience 856-3808.

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When Procrastination Rears Its Ugly Head by Dan Crystal

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rocrastination and lawyering seem to go hand in hand. Legal work is intricate and precise, and legal concepts are hard to communicate to most people. This can leave you feeling alone with your burden. There are so many elements of lawyering, such as being organized, using time efficiently, being a productive writer, and being financially savvy, that may not be related to why you became a lawyer in the first place. You are likely to think, “I didn’t think it would be this way.” You may feel abused by your long hours in the office, thinking about other things you would like to do. If you don’t attack these foreign skillsets head-on, it can generate an avoidant relationship with your work where you put off important responsibilities. Procrastination can be draining, leading to inefficiency and causing you to wonder why work is taking so long. At its most pernicious, you may experience an inability to concentrate or organize your thoughts. I definitely had my share of nights like this writing my dissertation. This can lead to panic about everything you have to do. But keep in mind that procrastination is the mind’s striving for health. It is a coping strategy when work becomes intolerable. In this article, I will offer ways of tapping your selfconfidence to combat procrastination, as well as practical suggestions like using your schedule and workspace more effectively. Why Do I Procrastinate? Procrastination is an avoidance behavior, so it’s not surprising that the reasons a person procrastinates are often not conscious. I have worked in therapy with lawyers hooked on Hulu.com, Facebook, and news sites, rather than writing the brief with the upcoming deadline. I also have clients with piles of old, unresolved cases who live in dread of confronting these matters. Since the reasons for procrastination will differ depending on the lawyer, the first step is to stop and ask, “Why do I procrastinate?” Since the impulse to stop working can be sudden, the answers will not always be clear. In this case, it is important to ask yourself, in that split second before leaving your computer to satisfy your chocolate craving, “What am I thinking?” Take a second to answer these questions. This is

the starting point.

Peak performers generally set easier goals than most people. That way, they can experience a continuous sense of efficacy. I Can’t Do This! The automatic thought that led you to flee your work often has something to do with self-confidence. The words may be something along the line of “I can’t do this.” The trick is to be able to hear this thought, acknowledge it, and come up with a practical solution. Affirming selfstatements make a difference here. Use a mantra that reminds you of your abilities. If you’ve thought about your mission statement as a lawyer, this is when to use it. The idea is to gently encourage yourself. Steve Pavlina, a motivational author, discusses replacing the words “I have to do this” with “I want to do this (if only to have it done).” That way, you don’t feel bullied by your work, and can feel autonomous. Your office should be dotted with visual reminders of your previous successes and abilities. I remind my clients to “keep your trophies close.” These are places to turn in inevitable moments of doubt. Perfectionist? Use Your Schedule. Many procrastinators are perfectionists who expect to hatch ideas from their minds all at once and perfectly formed. That is a lot of pressure to place on oneself. This is especially true of lawyers just starting out, who place the law on a pedestal and see themselves as an ant crawling up the side. Over time, you will learn to evaluate your effort less by your precision-crafted legalese and more by the outcome of your work. According to Pavlina, a way for perfectionists to take the pressure off is to replace the words “finish it” with “begin it.” Work with a matter in small, bite-sized chunks. You might expect successful lawyers to create challenging goals for themselves, but the opposite has been shown to be true. Peak performers generally set easier goals than

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most people. That way, they can experience a continuous sense of efficacy. Set small, realizable goals, followed by a reward. The trick with procrastination is to use the time away from one’s work to be rejuvenated and not avoidant of responsibilities. Successful people generally use their schedule not just for all of their onerous responsibilities, but also for things to look forward to. These plans can help make your hard work feel worthwhile. A good meal, tickets to a show or concert, a massage — you name it. Bringing Sanctity to Your Workspace Procrastination is, in fact, an act of prioritization. You are prioritizing your cognitive freedom (whether it involves navel-gazing or sudoku) over your work. This sometimes happens when you are burdened by so many responsibilities that a step in any given direction leads you to feel like you are neglecting several other matters. Cleaning rituals before periods of productivity can serve as a healthy pep rally, and can help sharpen your focus. Your desk can be seen as a metaphor for your mind. If your office space is cluttered with several disorganized matters, it is likely to be mirrored with several ideas competing for airspace in your mind (and vice versa). Cleanup can be a gentle, somewhat mindless ritual of moving papers around. This can help refine your focus to a single point — the matter you need to work on now. Having a system whereby you are sure that matters will be attended to can prevent the deepest form of anxiety: not knowing what you may be forgetting. You may avoid starting a matter because the effort required to find the necessary papers, reboot your slow computer, and return several non-urgent calls is distracting. The answer is to keep your office well-oiled, with several staging areas, so that you know that each area of work has room to breathe and is living in the right corner of your small town. Then, be sure to shut off the phone and flip the Do Not Disturb sign. There are many areas in life where multi-tasking is a wonderful skill, but writing briefs is not one of them. ◊ Dan Crystal, Psy.D., is a clinical psychologist at the WSBA’s Lawyers Assistance Program. Contact him at [email protected].

ABA YLD Annual Meeting in Chicago; Debate, Education, and Awards by Kari Petrasek

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he American Bar Association Young Lawyers Division’s (ABA YLD) annual meeting was held in Chicago from July 30 through August 2. More than 200 young lawyers from across the country attended the meeting, which featured networking events and educational programming.

before the membership, there were also informative CLEs and sessions featuring topics such as helping young lawyers in a down economy; business law tips and terms for corporate drafting; and Part Three of the “Anatomy of an Appeal” series, entitled “Review and Remand.” There was also a YLD Fellows Gala at the Field Museum in celebration of the ABA YLD’s 75th year of public service and education.

Issues Two issues were debated and voted on at this year’s assembly. The first was whether to apSpeakers and Awards prove a mandate requiring the The opening assembly for the appointment of a lawyer for ABA was held at Orchestra Hall each child who is the subject of L–R: Mark O’Halloran, WYLD past president; Jaime Hawk, at Chicago Symphony Center, a petition in an abuse, neglect, WYLD immediate past president; Kari Petrasek, WYLD pres- where U.S. Supreme Court Jusident-elect; Michael Pellicciotti, WYLD King County trustee; dependency, or termination of and Julia Bahner, WYLD president, gather at the ABA YLD tice David Souter addressed the parental-rights proceeding. This annual meeting. attendees. After the assembly, proposal was strongly opposed ABA President H. Thomas Wells and voted down. The second resolution the proposal passed and the American Bar held his President’s Reception at the Art was urging Congress to repeal 1 U.S.C. §7, Association Young Lawyers Division will Institute of Chicago’s new Modern Wing. which denies federal marital benefits and urge Congress to repeal the statute. The ABA YLD also presented awards to protections to lawfully married same-sex outstanding young military-service lawyers. spouses. This proposal had strong support CLEs There was one recipient from each of the and vigorous debate. With a majority vote, In addition to the hotly debated issues five branches of the military. The ABA YLD’s Awards of Achievement were also presented at the assembly. August 6 CLE: Family Law Topics and The Washington Young Lawyers Division Snohomish County GAAP Recruitment was awarded first place in the category “ABA YLD Outstanding Single Project — Service to the Bar” for its Washington Young Bar Leaders Summit, which was held in March 2009 in conjunction with state minority-bar leaders. The WYLD took first in its division (1B) in the categories of “Minority Project” and “Single Project — Service to the Bar” in recognition of the Summit. It also received a “Certificate of Performance” for its division in the category of “Single Project — Service to the Public” for its First Responder Will Clinic. For more information, visit www.abanet. org/yld/awards/aoa. ◊

L-R: Ritee Parikh, WYLD CLE Committee co-chair; Kari Petrasek, WYLD president-elect; G. Geoffrey Gibbs, WSBA Governor; Cynthia Buhr; Karen Moore

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Kari Petrasek is the WYLD Snohomish District trustee. She can be contacted at kari@ carsonlawgroup.com.

Meet the Trustees The WSBA Young Lawyers Division welcomes its new trustees, who were elected by members of the Bar this summer.

WYLD Trustees

King County — Megan Vogel

Term length: Three years Elected by: WYLD members in each district, or appointed by the Board (at-large position) Responsibilities: • Establish vision for WYLD programming and activities • Build relationships within their districts in order to represent the interests of young lawyers and to engage members in WYLD programs • Serve as liaisons to WYLD committees

Pierce County — Chris Maharry

Peninsula District Dionne Padilla-Huddleston

The 2008-2009 Board of Trustees focused the division around three priority areas: public service/ pro bono, transition to practice, and new/young lawyer advocacy and representation Do you have an idea or concern? Do you want to get more involved in the WYLD? Contact your district trustee – complete listings on page 18.

At-large — Dainen Penta 17

King County Megan Vogel [email protected]

Pierce County — Chris Maharry [email protected] Chris Maharry is an associate with McGavick Graves, P.S., in Tacoma. He has been practicing for almost six years and focuses on family law. A native of Port Orchard, Maharry attended Western Washington University followed by law school at Seattle University. You will find local music legend Pearl Jam on his iPod and Manchester United soccer matches on his television.

Megan Vogel spends her days as an associate at Davis Wright Tremaine in Seattle, her evenings driving back to her new home in Stanwood, and her nights dreaming about the mini-farm she and her husband hope to start next year, fully stocked with goats, chickens, and pigs. Her new home on Sunday Lake clearly is worth the many hours logged on the road. “It is a long commute — 50 miles each way — but such a beautiful place to live,” Vogel says.

According to Maharry, socioeconomic equality is one of the greatest challenges in law today. He likes how practicing law gives him a chance to improve the lives of his clients, but he sees room for improvement in the legal system. “If I could change one thing about the law, it would be the high cost of participation,” he said.

When unable to dream about the farm, she stays awake watching DVDs of TV series like Mad Men, The Wire, and The Sopranos. One of Vogel’s best qualities is her adherence to the notion of humble collegiality. Do not be surprised if one day she springs up on you, offering a handshake and friendly conversation.

Maharry, an uncle to five (soon to be six) of “the greatest nieces and nephews one could ever want,” recognizes the steep learning curve for new attorneys. “Get ready to spend the next three years learning even more than you learned during the previous three years in law school,” he warns.

Peninsula District Dionne Padilla-Huddleston [email protected]

At-large Dainen Penta dainen@spenceranderson. com

Dionne Padilla-Huddleston has a legal practice and life strategy marked by the word “freedom.” She enjoys making her own schedule by working on contract, which also gives her time to help her husband, Tom, run a small business. They live in Bremerton with their beagle, Piper. Proximity to the water is a necessity for Padilla-Huddleston, who jumps into a boat every chance she gets.

Dainen Penta is a partner with the law firm of Spencer Anderson & Buhr, PLLC. Though he enjoys practicing law, if he ever embarked upon a career change, he would swap his suits for cowboy boots and “be the world’s first Asian-American country-music star.” While he admires Rascal Flatts and other country-music groups, he has greater regard for attorneys who are highly involved in the community and “give freely of their time.” Penta also walks the walk, having volunteered as the 2008–09 president of QLaw, the GLBT Bar Association of Washington, and as a member of the WSBA Professionalism Committee. When he isn’t working or serving the legal community, Penta — who has a serious case of wanderlust — takes off to the beach or the mountains.

Though she enjoys the researching and writing associated with a legal career, she is happiest with an ocean or mountain breeze in her hair. “I like to spend my non-work time fishing, crabbing, and hiking in the Olympics,” says PadillaHuddleston. A fan of “anything that makes [her] heart race,” you won’t ever find her in front of the television. “I don’t even have cable,” she says.

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WYLD Committee and Program Chairs — 2009–2010 ATJ/WYLD Greater Access and Assistance Project Committee Jaime Hawk [email protected] Rachel Reynolds [email protected] WYLD Committee for Diversity Magdalena Bragun [email protected] Shaunna Gutina [email protected] WYLD Continuing Legal Education Committee Ritee Parikh [email protected] Douglas Reiser [email protected] WYLD Editorial Advisory Committee Jamila Johnson [email protected] Allison Peryea [email protected] WYLD Long-range Planning Committee Julia Bahner [email protected] Kari Petrasek [email protected] WYLD Membership Committee Jennifer Eugster Denenny [email protected]

Scott Husbands [email protected] WYLD Pre-Law Student Leadership Conference Mirta Contreras [email protected] Alma Zuniga [email protected] WYLD Public Service/Pro Bono Committee Erika Nusser [email protected] Julie Slawson [email protected]

WYLD Board of Trustees — 2009–2010 President Julia Bahner [email protected] President-Elect Kari Petrasek [email protected]

Pierce County Chris Maharry [email protected]

Immediate Past President Jaime Hawk [email protected]

South Central District Alma Zuniga [email protected]

Greater Olympia District Grace O’Connor [email protected]

Southeast District Nanette Blackburn [email protected]. wa.us

Greater Spokane District Elizabeth Tellessen etellessen@winstoncashatt. com

WYLD Trial Advocacy Program Mary Henderson [email protected]

Snohomish District Dubs Herschlip [email protected]

Southwest District Daniel Gasperino, [email protected]

King County (A) Megan Vogel [email protected]

At-Large Trustee Dainen Penta [email protected]

King County (B) Michael Pellicciotti [email protected]

Gonzaga University Trustee Brian Bean [email protected]

Dubs Herschlip [email protected]

King County (C) Manish Borde [email protected]

Seattle University Trustee Canek Gordillo [email protected]

WYLD Youth and Law Forum Committee Allyssa Wickstrom [email protected]

North Central District Beth Wilcox [email protected]

University of Washington Trustee Sarra Yamin, [email protected] BOG Liaison Carla C. Lee [email protected]

Kari Petrasek [email protected] WYLD YMCA Mock Trial Program Sean Walsh [email protected]

April Brinkman [email protected]

Northwest District Marie Gallagher [email protected]

WYLD Bridging the Gap Committee Stephanie Henderson [email protected]

Peninsula District Dionne Padilla-Huddleston [email protected]

For detailed contact information, please visit www.wsba.org/lawyers/groups/wyld Editor • Jamila A. Johnson Associate Editor • Allison Peryea Desktop Publisher • Stephanie Perry Past Editors • Cynthia B. Jones, 2008-09 • Shelley Ajax, 2007-08 • Jason T. Vail, 2005-07 • Eric B. Martin, 2004-05 • Jeannie Huddleston, 2002-03 • David Berger, 2000-01 • Geoffrey Hymans, 19992000 • Evan Loeffler, 1995-99 • Erin Moore, 1993-95 • Todd De Groff, 1991-93 • Steve Robinson, 1989-91 • Scott Jackson, 1987-89 © 2009 Young Lawyers Division • Washington State Bar Association • All rights reserved.

De Novo Mission Statement De Novo is published for the young lawyers of the Washington State Bar Association. Its general mission is to provide a forum for the exchange of ideas, information, and commentary, and to encourage discussion amongst the readership regarding the broad experience of young lawyers. De Novo additionally serves as a vehicle to facilitate the dissemination of information regarding member services, public service, programs, and activities of the Young Lawyers Division. Readers are invited to submit correspondence and articles. They may be sent via e-mail to [email protected]. By submitting articles, the author licenses

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De Novo to publish and permit reprints of the author’s article at the sole discretion of the editor. The editor reserves the right to edit articles and correspondence as deemed appropriate. Reproduction is expressly prohibited unless written permission is given by the editor. Unsolicited submissions may be sent; they may not be acknowledged or returned to the author. All photographs submitted with articles become the property of De Novo and will not be returned except by special arrangement. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the Washington State Bar Association or the Washington Young Lawyers Division. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement. The Washington State Bar Association, Washington Young Lawyers Division, editors, authors, and contributors do not make any express or implied warranties in regard to the use of any substantive material printed in De Novo. Each attorney must rely on his or her own legal knowledge and expertise in the practice of law.