Washington Lawyers Under the Purview of the State Consumer Protection Act—The "Entrepreneurial Aspects" Solution—Short v. Demopolis, 103 Wn. 2d 52, 691 P.2d 163 (1984)

In Short v. Demopolis the Washington Supreme Court held that certain "entrepreneurial aspects" of the practice of law constitute "trade or commerce" for purposes of RCW 19.86, Washington's consumer protection and antitrust law. This holding brings members of the legal community under antitrust and consumer protection scrutiny as embodied in the Consumer Protection Act (CPA). The Demopolis decision, however, only applies to the "entrepreneurial aspects" of the practice of law. Although many courts and commentators have struggled with the question of whether professionals should be given preferential treatment, the Washington court is the first to specifically exclude legal malpractice from consumer protection or antitrust legislation.

Under this rule, a lawyer who practices law negligently or otherwise commits malpractice is not subject to liability under the CPA if the malpractice involves the actual practice of law. This Note analyzes the court's decision in light of prior state cases and federal precedent and concludes that the court correctly applied the CPA to lawyers' "entrepreneurial activities." However, to the extent it rules that the performance of legal services is not trade or commerce, the holding is too narrow. The court should have concluded that all aspects of the practice of law are trade or commerce as defined by the CPA, but that certain acts, such as professional negligence, may not be classified as "unfair or deceptive." The court could have both clarified a troublesome area of consumer protection law and avoided establishing a special exemption for the legal profession by using this analysis.