TASTES WORSE, MORE FILLING: Washington State thinks about making life more difficult for in-house lawyers

ACC recently wrote a letter to protest something bad. The state of Washington is thinking about changing its rules that apply to in-house counsel. It may increase the hassle for Washington lawyers who work in-house and whose law licenses come from elsewhere. And it may charge for the privilege, to boot. Meaning, the pending proposal is essentially the ethics rules equivalent of “tastes worse, more filling.”

Specifically, Washington is considering whether to trash one of the best systems in the country for in-house counsel whose licenses come from elsewhere. Right now, the system is pretty perfect — lawyers who get hired to work in-house in Washington, and who have already passed for the bar elsewhere, just need to show up and work. That’s it — no registration, no background checks, no fees, no friction.

That’s precisely the model that ACC has advocated for years. In-house lawyers work all over the place − in different states and in different countries. They move in and out of spots where their clients operate. They handle deals and even litigation in far-flung spots from their home offices. And they might not know where they’ll need to go or work next. To accommodate those changing demands, in-house counsel need flexibility. The most flexible system we can think of is to treat law licenses like drivers’ licenses. If you pass the driving test in one state in the US, you can travel all over the country. Why? Because roads go everywhere. Same thing should apply to in-house counsel. In-house work doesn’t screech to a halt at the state line.

But now Washington wants to hit the brakes. The state’s supreme court is considering a proposal to force these in-house counsel to both register and pay. We protested last year the Washington State Bar Association came up the proposal. But the proposal didn’t die, and we protested again last week to the Washington Supreme Court.

The proposal has other problems, too:

— It would exempt “temporary” work from the registration requirement, but never defines the term. That means in-house counsel risk stepping over an invisible line that could lead to serious sanctions.

— It would give registered in-house counsel only 90-days to find a new job after leaving their old one. In today’s job market, it often takes much longer to get new employment — but in-house counsel would need to go through the hassle and pay the fees all over again.

— It would require in-house counsel to use special business cards and letterhead, which risks making in-house counsel look like second-class citizens.

— It wouldn’t allow registered in-house counsel to appear in court without first going through the standard pro hac vice rigamarole.

— And the proposal would do nothing to make it easier for registered in-house counsel to practice pro bono work.

We’re all for thoughtful rules changes. But here, there’s no evidence at all that the current system has caused any problems.  And there’s certainly no evidence to support the specific changes in the proposal.

But if Washington really wants to change its rules, then how about this: take the current show-up-and-work system and EXPAND it, to also include pro bono work. That’s a win-win, for in-house lawyers and for all the people and organizations who need legal aid but can’t afford it. That’s a proposal we’d be thrilled to support.

–Evan Schultz