Vancouver USA Law

Please don't be discouraged. Restraining orders work.

2009-12-03T22:31:00.000-08:00

Today was another sad day here in Western Washington, with news of yet another domestic violence murder-suicide. See the Columbian.

Coincidentally, this week, I listened to the Dixie Chicks singing "Goodbye Earl," in which Earl "walks right through that restraining order and put her in intensive care." I like the music, but I don't like the message.

Because, for most people, restraining orders work.

I'm not citing any authority here except myself. I prosecuted domestic violence crimes for years, and I have heard it all. And yes, there are people who don't find peace in a court order. But believe me, believe me, it DOES make a difference to tell an offender, you are going to JAIL if you make contact. It does. Really, it does.

If you are a domestic violence victim or you love someone who is, please encourage them to seek protection.

Words and Violence

2009-09-25T19:52:00.000-07:00

This morning, after a court appearance in Olympia, I passed a newspaper box and read this headline in The Olympian: "Worker Killed at Cider Mill."

The headline should have been "Abusive Ex-Boyfriend Hunts and Kills Worker at Cider Mill."

It is a familiar but heart-breaking story, made more so by the detail that the victim's 77-year old boss tried to pull the killer away from her. The victim, Kay I. Langford, had left her reportedly-abusive boyfriend only weeks before.

Domestic violence homicides are deeply saddening, but thankfully most of us will not be touched by violent death. But most of us will encounter domestic violence, perhaps in our own relationship, or perhaps we will see our loved ones go through it.

I don't practice much divorce law or criminal defense. Still, unfortunately, I encounter domestic violence regularly.

Here's what domestic violence looks like to me:

* It is the charming, nice-looking boyfriend who insists on attending my female client's appointments (I'm just as charming steering him to the waiting area).

* It's when I call my female client, but the phone is always answered by her husband, who wants to be the conduit for all information.

* It is the woman in my conference room telling me, "I'd never let a man hit me." (Really, would you let him push you? Would you let him take your paycheck? Would you let him follow you because he thinks you are cheating? Would you let him threaten you? Would you let him call you a "c***" in front of your children?)

You see, domestic violence doesn't start with a shotgun or a fist. It starts with words. Words that frighten, words that isolate, words that blame, words that belittle. And then, over time, it gets worse.

So please, please, don't wait for a bad relationship to come to blows. There are people who would *love* to help, and there is no shame in asking. Many people have been through this themselves.

Start by getting educated. Here are links to some crucial information:

The Wheel of Power and Control

Clark County / City of Vancouver Domestic Violence Prosecution Center

Clark County YWCA SafeChoice Program

My thoughts go out to the family of Ms. Langford. Let's hope this tragedy is the last.

Where Judges Com From, Part 1

2009-08-19T22:10:00.000-07:00

It is official: Judge Robert Harris will retire on December 31, 2009. The Columbian, "In our View," July 20, 2009.

I don't know Judge Harris' personal feelings about retirement, but I can guess. You see, this is not a voluntary retirement. It is mandatory. In Washington State, Judges must retire by age 70. Washington is not alone - several other states and the UK have mandatory judicial retirement laws.

Compulsory retirement doesn't make sense, especially in this day, when life expectancies are expanding (a baby born in 2007 in the US should expect to see 78). Heck, you might not even start receiving SSA retirement benefits until age 70.

So I suspect that Judge Harris would like to continue to serve, and I believe he'd be more than up to it. And many of us will be sad to see him go. But at the same time, we're looking ahead to who will be Judge Harris' replacement.

Since Judge Harris is retiring mid-term, his replacement will be appointed by Governor Gregoire. This governor has already proven herself to take judicial appointments seriously. She carefully vetted the last appointment here in Clark County (Judge Collier).

Applicants for appointment to the Clark County Bench must have their applications to Governor Gregoire by September 1.

For more information about judicial appointments, see the Governor's website.

Next post: The judicial evaluation process.

Elder Abuse Awareness Day

2009-06-14T22:31:00.000-07:00

We don't have to tolerate elder abuse. June 15 is the annual World Elder Abuse Awareness Day. This is something we all ought to think about, and not just tomorrow.

"Elder abuse" is a general term which includes financial abuse, neglect, sexual abuse, and physical abuse.

As we grow older, we may become more vulnerable due to physical limitations, social isolation, and dementia. Sadly, the usual perpetrators of elder abuse are adult children. According to the National Center on Elder Abuse, more than 30% of reported perpetrators are children, more than spouses and other family members combined. See "Trends in Elder Abuse in Domestic Settings."

Elders may also be vulnerable to dishonest or overwhelmed caregivers as well as plain, old con-artists. So "elder abuse" is a simple term for a complicated problem.

What can you do about Elder Abuse? Glad you asked.

1. Educate Yourself.

Clark County has a Vulnerable Adult Task Force which works to address all aspects of elder abuse from caregiver neglect to embezzlement. Learn about the types of elder abuse and warning signs at their website: www.clarkcoutyvatf.com.

2. Follow the Golden Rule.

I know you have loved ones who are older. And we're all on the path ourselves (my step-father just celebrated a healthy 95th birthday!).

Why don't you give others the care you'll one day need yourself? Pay attention to the needs of your older neighbors and relatives. Is he eating regularly? Can she drive? How is her social life? We all need our basic physical and emotional needs met. Look around you and see how you can help another.

3. Report Abuse.

Washington law can help protect vulnerable persons from abuse. If you suspect abuse, report it. Get more information here.

Finally, I hope you will join members of the Vulnerable Adult Task Force in a ceremony Monday at 10 a.m. at the Luepke Senior Center, 1009 E Mcloughlin Blvd, Vancouver. See "Conference Scheduled to Mark World Elder Abuse Awareness Day," The Columbian, June 13, 2009.

The "Everything But Marriage" Bill

2009-06-03T22:33:00.000-07:00

Here's two things I wouldn't have believed 10 years ago:

1. That six U.S. states would allow same-sex marriage.

2. That one of those states wouldn't be Washington (or Oregon, or even California for Pete's sake)!

Ever the pessimist, I would point out that even married same-sex couples do not enjoy the same rights at the federal level as opposite-sex couples (such as social security benefits, military family health benefits, or federal retirement benefits).

All the same, I'm impressed. And I was glad our State legislature passed the "Domestic Partnership Expansion Bill" of 2009.

Washington created a same-sex domestic partnership registry in 2007. The system was tweaked in 2008, and the 2009 legislation seeks to fill in gaps such as disability insurance and public retirement systems by expanding the Washington Code's definition of "spouse," "husband," "wife," "widow," and so forth to include domestic partners. See Senate Bill 5688 and "Washington Expands Domestic Partnership Law," Gay and Lesbian Times, May 21, 2009.

Expanding the legal definition of "spouse" is an efficient way to expand whatever equal protection as Washington law can give to same-sex registered domestic partners. From an attorney's perspective, it would be even more efficient just to allow same-sex couples to marry, but this fight has never been about efficiency. Never has been, and still isn't.

The new expanded definition is scheduled to take effect on July 26, 2009, and already there is a petition for a ballot measure repealing the 2009 act. See "Referendum 71 filing today to repeal new rights of same-sex partners," The Olympian, May 4, 2009.

This debate is stirring up some ugly reactions in our lovely state. Some supporters of SB 5688 plan to create a searchable database of names and addresses of those who sign the petition for Referendum 71. See "Gay-rights Group Wants to Name Petition Signers," Seattle Times, June 2, 2009.

I support same-sex marriage. I think our two-tiered legal system is unfair, cumbersome and costly. The domestic partnership registry is not the equivalent of marriage, but it is a start. Nevertheless, the tactic of posting names and addresses of gay-rights opponents is untenable. It invites harassment, and it reminds me of the "death list" posted by anti-abortion activists down in Portland a few years ago (Remember that? If you don't, see this 1999 article).

I want to be proud of Washington. I hope people will let the ideas speak for themselves.

As always, this post is not intended to be legal advice.

Superior Courts and Neighbors - How Washington Counties are Handling the Budget Crisis

2009-05-22T18:00:00.000-07:00

With Clark County's unemployment rate now at 13.4%, I worry about the possible effect on our court system. See "Clark County Jobless Rate Adjusted Upward, Hits 13.4%," The Columbian, May 19, 2009.

But we're doing well compared to Cowlitz County.

Hard Times for Cowltiz County Courts

I've been hearing concerns from our neighbors to the north for a few weeks. Cowlitz County's unemployment rate is even higher than Clark's. See "Cowlitz County Unemployment Rate Rises to 14.4%," The Daily News Online, May 19, 2009.

Cowlitz County is already experiencing serious cuts in government services, and I'm talking serious.

Several Cowlitz County offices will be closed to the public every Friday, including the Assessor's Office and the Superior Court Clerk. Family Court will be closed each Thursday, and soon Juvenile Probation will be closed each Monday. See "Friday Closures for County Offices Begin Today," The Daily News Online, May 8, 2009.

In case you don't see the problem with closing the Superior Court Clerk's office, let me quickly explain that the Clerk keeps all the records for the court, opens court files, certifies copies of court orders, and records the date documents are filed with the courts. Many filings are time-sensitive; deadlines are mandated by state law. So, although I expect the Court itself to be open on Fridays, its ability to act will be seriously compromised without the Clerk's office.

I am sure the Cowlitz County Superior Court will arrange to handle emergencies, but I don't know how. How will the Court handle a Guardian ad Litem who needs an emergency order to authorize treatment for client? Will the hospital accept a copy of a court order which has been neither filed nor certified by the Clerk? Isn't the workload for Clerk's office employees just going to increase Monday through Thursday? It is easy for me to imagine big problems with closing the Clerk's office.

Happily, and knock wood, our own Superior Court Clerk's office has not announced such drastic measures. Court filing fees are increasing in July, but not because of the Clerk - the legislature has raised fees, and the additional amount will go directly to the State of Washington.

Interesting Times for King County Courts

On another note, the King County Superior Court Clerk has set up an electronic filing system. This will allow attorneys to file papers over the internet. (Awesome!) We can even open new cases over the internet! In King County, that is. As far as I know, King County is the first Washington county to create such a system, although I know our own Superior Court Clerk, Sherry Parker, has expressed interest.

I don't know if "E-Filing" will save King County any money, but it sure might save a lot of trees. I'll look forward to hearing how it works out.

The upshot - the next time you find yourself dealing with your local Court Clerk's office, remember they are dealing with a lot of responsibilities, and probably with reduced resources. Be patient and polite. Let's support each other through these tough times.

Clark County Real Estate

2009-05-14T20:43:00.000-07:00

With Clark County real estate sales in the 30th straight month of decline (See "Clark County Home Sales Decline in April," The Columbian, May 13, 2009), I thought I would post some useful real estate sites.

With apologies to real estate agents, I don't trust their enthusiasm. Even the article I cited above contains a quote from a real estate broker describing the housing market as "in recovery." And I haven't found what I would consider to be in-depth analysis of our local real estate market; I guess Clark County just isn't big enough to warrant it.

However, I have found some regional real estate sites which hopefully could give readers as starting point:

Portland Housing Blog (this does have a Vancouver section)

Oregon Housing Blog

Seattle Bubble

I've read Portland Housing Blog from time to time and find it informative, but as I've said before, I am not a real estate lawyer and am not endorsing these blogs, especially not as a substitute for legal advice. I live here in Clark County and have a personal interest in the value of real estate.

I credit the idea for this post to a commenter on the Columbian article cited above.

Congratulations New Clark County Attorneys

2009-05-04T18:49:00.000-07:00

The current WSBA Bar Exam Results are out, and we have four new admittees in Clark County. I won't list them in case they don't want to be named, but the entire list is available at on the WSBA website here.

The pass rate is only 64.8%, so to pass the exam is a big achievement, and I am sure it is a big relief!

I encourage new attorneys to join the Clark County Bar Association and the Clark / St. Helens Chapter of Washington Women Lawyers (which is on Facebook as "St Helens Chapter").

A very big congratulations to the new members of the Bar. I hope you will stay here in Clark County to practice!

New Rules for Real Estate Appraisers

2009-05-03T15:43:00.000-07:00

If you have ever bought or refinanced a home, you are somewhat familiar with the real estate appraisal process. In a nutshell, appraisers (who are usually licensed state-by-state), estimate home values based mostly on comparisons ("comps") to similar sales. There are other ways to value rental property or commercial property, but comps are pretty important for residential home appraisals.

Before a buyer gets a mortgage, the home must be appraised. Usually the lender hired the appraiser. Historically, an appraisal was for the lender's protection, not the buyer's, as I will explain below. Recently, however, appraisals did not seem to be helping either the buyer or the lender.

Consider the old days, when you would get a mortgage from your local bank, the bank would be careful not to lend more than the home's realistic value, because the local bank bore the risk if you did not pay. An appraisal told the bank how much it could safely lend on a property. The local bank had a real interest in getting a conservative and accurate appraisal.

Unfortunately, as we all know, these days you are unlikely to get your loan from your local bank. You probably use a mortgage broker, and once your mortgage is funded, it is sold to an investor. So the mortgage broker doesn't have the same incentive to get a conservative and accurate appraisal. In fact, the mortgage broker might be paid a percentage of the sales price, so the mortgage broker, unlike the local bank, might actually be motivated to pressure appraisers to artificially inflate the home's value. See "Home Appraisers Pressured to Fudge the Numbers," Seattle Post-Intelligencer, July 31, 2007.

Some people think that artificially high home appraisals contributed to the housing bubble. New York Attorney General Andrew Cuomo filed suit against mortgage brokers and sought to subpoena proof that brokers hand-picked appraisers to overstate home values. This lawsuit resulted in a new Home Valuation Code of Conduct for real estate appraisers.

These new rules took effect May 1, 2009 (although there isn't really an infrastructure to enforce them yet). The rules apply to loans issued through Fannie Mae and Freddie Mac but do not apply to FHA or VA-insured loans. The rules are controversial and may give buyers a right to sue if they buy based on a bad appraisal. Most importantly, mortgage brokers may not influence appraisers. See "Rules Set to Cut Off Mortgage Originators From Appraisers This Week," Seattle Post-Intelligencer, April 29, 2009.

I'm not a real-estate lawyer but encounter real estate issues from time to time in probate or guardianship cases. But I'm thinking this could be a big change for real estate appraisers and could be a good niche practice area for some lawyers. I'm also thinking that, if I were to buy a house right now, I'd think about hiring my own real estate appraiser.

As always, this is a blog, not legal advice. You should consult an attorney if you have questions about real estate or appraisals.

How to Find Crime Information for Your Neighborhood

2009-05-01T22:31:00.000-07:00

Just a quick post with what I hope is some helpful information for Clark County, Washington.

Search Registered Sex Offenders

This is the Clark County Sheriff's Department site. You may search for registered offenders on your street, in your city, or in your zip code. For example, a search of "Harney" street currently returns one result.

Search Criminal Activity by Neighborhood

This function is available at Clark County maps online. It doesn't always work for me. If the link above isn't working, go to http://gis.clark.wa.gov/applications/gishome/property/. Then on the left hand side, select "GIS MapsOnline." Once you are at Maps Online, select "layers," then "jump to" - "crime statistics."

Now you'll be able to look up the location of reported crimes such as vehicle prowls and burglaries. It is very helpful when it works!

Request Public Records Copies of Police Reports
(Not available online)

You can request law enforcement reports (both Vancouver and Clark County) relating to a specific address in person at the Clark County Sheriff's Department, 707 West 13th Street, Vancouver (otherwise known as the basement of the jail). There may be a charge for copies, and some information is protected by state law, but most law enforcement reports are public record.

You also can request 911 records on a specific address in person at Clark Regional Emergency Services Agency, 710 West 13th Street, Vancouver (otherwise known as across the street from the jail). There is a request form available for download online, but you have to deliver it physically, not by email. Expect to pay for copies. Again, some private information is protected, as is information relating to ongoing investigations, but you can learn a lot from public records.

2009 Sleep Country Pajama Bowl

2009-04-26T16:37:00.000-07:00

We just got back from bowling at the 2009 Sleep Country Pajama Bowl at Big Al's Bowling Alley in Vancouver. This is our third year in a row, and although most of our team lacks real bowling skill (our pattern is strike, gutter, strike, gutter), we had a great time. We bowl under the name "Parents' Representation Program." This year our team members were myself, Dennis Mitchell, Leah Bright, Eric Johnson, Carl Landerholm, Leuticia Landerholm, Darquise Cloutier, Gayle Ihringer, and Sheryl Protrka.

Our team raised around $700 towards "Bridge the Gap" Charity, which provides funds for special programs such as music and camp for kids in foster care. Bridge the Gap is needed more than ever this year, with a state budget deficit of more than nine billion dollars. (On the plus side, as of today we HAVE a state budget. See the Tacoma News Tribune.)

I really enjoy the good people on our team and encourage all the rest of you to see us there next year!

More photos are on Facebook.

Welcome to the Profession - My advice for new lawyers

2009-04-01T23:24:00.000-07:00

Bar Exam results are due in one month, which means the hundreds of law school graduates who took the exam last February are lying awake nights.

It takes me back to my bar exam days. I took both the Oregon and Washington bars over the course of a year and have avoided bar exams ever since!

I got lots and lots of advice in those days, some good, some not so much. But since I've been in practice more than 12 years, I believe it is time for me to start doling out the advice. I'll try to include only the best of what I've heard over the years.

1. BE KIND TO THE COURT STAFF. Those folks who work at the courthouse have the power of life and death over you. If you are the type of person who enjoys a power struggle, get over it. The clerks enforce the rules, you follow the rules, and you will be nice about it. You will never use curse words, and you will never yell. Even if you are right and they are wrong, you will never shame them. This is an important rule, and if you don't follow it, you will quickly learn the consequences!

2. LOOSE LIPS SINK SHIPS. You came out of law school knowing that you have to keep client confidences, so you know you can't bad-mouth your client in public. But what about Judges? You can bad-mouth them, right? Putting ethics issues aside, I know lawyers sometimes get frustrated with Judges. They say, "I just need to vent," and I understand that. But what if your vent-ee rides bikes with that Judge, or maybe their kids play soccer together? The legal community is like a small town. Learn the value of discretion.

3. YOUR JOB IS TO RETURN MY PHONE CALL - AND EVERYONE ELSE'S. My life got a lot less stressful when I realized this simple fact. My job is to answer the phone every minute I can from start of the day Monday until close of business Friday. And my job is to call people back as soon as I can. The biggest complaint clients have about lawyers is not returning phone calls. And lawyers have this complaint about other lawyers. So pick up your phone and give me a call sometime, ok?

4. CARVE OUT QUIET, LAWYERLY TIME FOR YOURSELF. Face it, you are a big nerd. You like to study and write long research papers and to accumulate obscure knowledge. You've just spent three years learning to write briefs. Now you're finding that real lawyers barely have time to type an email. So take some time, whether it is a morning at the law library or a weekend afternoon without phones, and get those big projects done. Take the time to be competent in a new area of law. Geek out! You deserve it, and it will help your practice.

5. MAKE FRIENDS - OH, AND TRY TO HAVE SOME FRIENDS WHO AREN'T LAWYERS. Networking is good for business, but don't get stuck in the lawyer ghetto. Lawyers see the worst in people. Sometimes we need other perspectives to get our heads out of the muck.

6. GET A HOBBY. Don't be one of those lawyers who say, "Oh, I just love my work. It's my hobby." (You know who you are!) Those are the really dedicated lawyers, but they are heading for trouble. You can't be emotionally healthy without a variety of interests. Go ride a bike. Go skiing. Go for a walk. Go build furniture in the garage. Plant a garden. Hike. Get a horse. Whatever you do, find something completely UNLIKE your job. Your mental health will thank you.

7. YOU CATCH MORE FLIES WITH SUGAR.

8. WORK! WORK! WORK! I do encourage hobbies and friends, but never forget, the practice of law is the application of the seat of the pants to the seat of the chair. Do good work, figure it out, become competent. This will be your career's work - to be a good lawyer. You will not get there without hard work.

9. ASK, ASK, ASK. More experienced lawyers are glad to share their knowledge and often their forms with young lawyers. They will mentor you. They will allow you to observe hearings, meetings, and depositions (with client's permission). I have not always been comfortable asking for help, but I have rarely been disappointed.

10. KNOW THE RULES OF PROFESSIONAL CONDUCT, ESPECIALLY THE RULES ON TRUST ACCOUNTS. Many of these rules seem intuitive, but beware. They are frequently updated, and sometimes the rules don't come up until you've already found yourself in the situation. Stay familiar with the RPCs and you'll save yourself a lot of trouble down the road.

11. DON'T BE A DOORMAT. The lawyer jokes are not true. Lawyers are giving people - it is really a caring profession. You will get into trouble when you try to do too much for too many. You must learn to say "no." Attorney Terry Lee recommends keeping your family's photo facing toward you on your desk to remind you that you first owe an obligation to your own family. I myself keep a note facing toward me which reads "don't be a doormat."

12. YOU DON'T HAVE TO TAKE ALL THE ADVICE YOU HEAR. Law school graduates get plenty of advice, but here's the best advice. If you don't think the advice makes sense or is ethical, you don't have to follow it!

Good luck to all those awaiting bar results in May!

O Canada - Please Stop Sending Me Junk Faxes

2009-03-23T20:03:00.000-07:00

Junk advertising - I get it on my cell phone, I get it on my email. And since I opened my law office in 2004, I've been getting on my fax machine.

Of all this spam, the most irritating to me are the junk faxes.

I have received hundreds of junk faxes at my office. When I worked for the City of Vancouver we'd receive them there too, sometimes several a day. In fact, every office I have worked in over the last 10 years has been blasted with junk faxes.

If you work in an office, or if your home phone number has found its way onto the call list of a fax blaster, you share my pain.

Unlike spam email, junk faxes cost MONEY. They cost me 3 1/2 cents per page for paper and toner. That may not seem like much, but multiply that by the hundreds of thousands of fax machines in the U.S. That's a real cost to the economy. Not to mention, a massive waste of trees.

All to advertise "services" which seem to be, without exception, scams.

Junk faxes are illegal. Unsolicited advertising faxes are against the law unless you have a prior business relationship with the advertiser. Junk faxes violate the federal "Junk Fax Prevention Act." 47 U.S.C. 227.

Junk faxes also violate the Washington State Consumer Protection Act, which provides for damages of a minimum of $2,000 per fax plus attorney fees. RCW 80.36.540 and RCW Ch. 19.86.

At this point, you may be wondering why I'm not making an easy living suing those bleepity-bleeping fax-blasters, collecting $2,000 a page. It is because the laws may work a little too well.

You see, these laws have been very effective, but not at protecting U.S. citizens from gazillions of junk faxes. These laws have apparently been effective at chasing the fax-blasters out of the United States and into Canada.

Oh, you can't hide behind those maple leaves. Washington (and all states) has a "long arm" statute which subjects anyone doing business - or violating the law - within our state to our jurisdiction. I am confident our Superior Court would gladly give me a judgment. But collecting, well, that's another thing.

But some days my patience runs a little thin, and one of these days I'm going to find a good Canadian collections lawyer and give it a go.

Meanwhile, here are my tips to end junk faxes:

1. Add your number to the Canadian Marketing Association's "Do Not Call" registry. Whether they honor your request is up to them, but hey, we're all friends here, right?

2. Get rid of your fax machine! I have figured out how to make my incoming faxes go to PDF files on my computer, so I won't have any more scam spam faxes print out without my consent. You could also use online fax services for a monthly fee.

3. Get more information at this website: www.junkfax.org.

O Canada, We Stand on Guard for Thee! Just return the favor, okay?

Pajama Bowl for Kids in Foster Care

2009-03-08T12:50:00.000-07:00

Hey it is time for my favorite charity event, the 2009 Sleep County Pajama Bowl for Kids in Foster Care.

We bowl every year to benefit "Bridge The Gap" Charity here in Vancouver. Foster Care is not ideal for either parent or child, but it is necessary in some cases. Bridge the Gap helps by providing camp, musical instruments, and sports equipment to kids in foster care.

You and your team can win prizes - and not just for your bowling prowess (one of my teammates won a prize for worst bowler last year). You also can win points for money raised. The grand prizes are Beautyrest mattresses.

Best of all, it is a blast! We all wear our pajamas and have a really good time.

Our team includes attorneys, social workers and paralegals who work with the Parents Represenatation Program in dependency cases in Vancouver. We'd be happy to split (hah) our team up so please join us. Contact Leah at Smith-Evansen law office (360-213-0053) if you'd like to be on the "Parents Representation Program" team. Or create your own team and give it a more creative name.

Mark your calenders:

SUNDAY APRIL 26, 11:00 am and 2 pm, at Big Al's Bowling Alley.

For information on the real Parents Representation Program and not just the bowling team, visit the Office of Public Defense website here.

The Law of Good Neighbors: The Future of Adverse Possession

2009-03-02T20:25:00.000-08:00

Pretend you are in the wild, wild West, 150 years ago. Your heart's desire is to be a farmer, but you have no land. The rich land baron down the road has lots of land, so much he doesn't use all of it. And rich guy isn't home too much. So much land, and nobody's looking . . .

So what do you do? You might set up housekeeping on some unused land, build a barn, put up some fences, and plant a crop. And if you managed to use the land for 10 years without rich guy evicting you - well, congratulations. You're a land-owner.

That, in a nutshell, is the law of "adverse possession," as well as an example of why we have the law in the first place.

Adverse possession is an ancient law which promotes active use of land. In an agricultural or forest economy, it doesn't pay to let land lie fallow, so the government rewards this type of open land-grab. Plus, in days of yore it was hard to tell where boundaries really were (some old deeds read like pirate maps), so it made sense to give title of land to the guy who was actually using it.

Okay, fast-forward to today. The law of adverse possession is still on the books. Oh, you don't get many squatters these days (for starters, you'd have to get a building permit for that barn), but you do get boundary disputes. Lots and lots of boundary disputes.

Say you own 20 acres in rural Clark County, and you hope to build a new building or perhaps sub-divide. So you hire a surveyor, and dang it! Looks like your neighbor's old fence is 15 feet into "your" land. Depending on how long that fence has been up (and some other factors I won't go into here), you could lose a strip of your land.

Think that's no big deal? What if the only buildable spot on your land is along that strip? What if you won't have a legal setback without that strip? What if you can't subdivide because your lot is now too small? Add to that the huge emotional attachment people have to land, and you've got trouble. Plenty of lawyers spend plenty of time litigating boundary disputes.

Boundary disputes are especially problematic in an area like Clark County, which has seen a tremendous transition from agriculture to residential uses in the last 20 years. An additional issue is that modern surveys are much, much more accurate (think GPS). The result is lots and lots of boundary disputes, lots and lots of lawsuits based on adverse possession.

But this ancient system may be coming to an end. There is a bill pending in Washington to eliminate adverse possession lawsuits. See HB 1479. And it could make a big difference to some Clark County land owners. See The Columbian, February 8, 2009.

The Columbian article refers to a 2008 Boulder, Colorado, law which did not abolish adverse possession but does make it more difficult to prove. The Boulder law seems to have been passed in response to a (possibly) calculated adverse possession claim made by (of course) two lawyers. See Daily Camera, April 26, 2008.

Other than the Columbian article, there is really no analysis of HB 1479 in the media. But this little bill could forever change the legal tradition of centuries. Keep an eye on it.

As always, this is a blog, not legal advice. Also, I do not practice in the area of boundary disputes, but I would be happy to refer to good attorneys who do.

Will Washington State Break Up DSHS?

2009-02-24T18:37:00.000-08:00

The State Legislature is in session, and I've been following several bills, including one to extend domestic violence protection to domestic animals (hooray!) and one to decriminalize (but not legalize) possession of small amounts of marijuana.

One bill isn't getting a lot of headlines but could be a very big deal. House Bill 2197 would split the State's largest agency into four smaller departments.

The proposed bill recites that Department of Social and Health Services ("DSHS") consumes "34% of [the state's] total operating budget" and that DSHS is so large that it is "difficult to administer" and inefficient. I know reading proposed legislation is not high on most people's lists but you really should check out this one for yourself. Read it here.

Would splitting up DSHS help save Washington from its projected six billion dollar budget shortfall? Would this really help children and vulnerable adults? I honestly have no idea.

I'm not getting much insight from the media either, except to learn that Representative Mike Armstrong (R-Wenatchee) sponsored the bill, Governor Gregoire (D) doesn't like it, but several Democrats have co-sponsored it as well. See The Olympian (2/21/09) and The Seattle Times (2/12/09).

Keep your eye on this bill. It may be flying under the radar, but it has made it out of committee.

I work with DSHS's current subdivisions of Department of Child and Family Services and Adult Protective Services, so I am particularly interested. And I'll keep searching the media for some informed opinions.

"If There Were Anything I Could Say to Make You Stop Using"

2009-02-12T18:33:00.000-08:00

There is nothing you can do to make someone quit using. Nothing.

I've written about clients who use illegal drugs before. Specifically methamphetamine is a huge problem here in Clark County. Speaking with a friend today, a very experienced and patient criminal defense attorney, I asked him how he handled clients who use meth. Here's his answer:

"If there were anything I could say to make you stop using, I would say it. But it is up to you."

You know what? He's right.

Addicts develop their own gravitational pull, encircling everyone around them into a crazy, co-dependent orbit. Parents, grandparents, spouses, children - and yes, attorneys, lay awake worrying about the addict. If only we could just get her to see! If only she would go to a 12 step meeting! If only we could convince her to go to treatment! If only, if only.

Let me repeat. There is NOTHING you can do to make someone quit using.

Parents of drug addicts have a hard time accepting this. For example, I was in court a couple of weeks ago and heard a mother tell the judge how she was paying the rent on an apartment for her son. Her 40 year old son. Who is a meth addict.

There is nothing you can do to make someone quit using. But you can stop supporting their habit. Every dollar you give a meth addict brings him one dollar closer to death.

I recently read a great book called Beautiful Boy by David Sheff. Mr. Sheff documents his son's long-term meth addiction, and his family's response. He describes how his heart was broken, again and again, and all that he learned about addiction. I recommend this book for anyone with a family member with a serious alcohol or drug addiction.

Addiction hurts more than just the addict. If you know someone living with an addict, please encourage them to go to Al-Alon and to protect the rest of the family from the addiction.

Blast from the Past - Vancouver Serial Killers

2009-02-09T22:42:00.001-08:00

A few days ago I attended a ceremony honoring Clark County Judge Robert Harris. Judge Harris has had a fifty year career which includes serving as the Senior Superior Court Judge in the entire State and serving TEN YEARS as Clark County's Presiding Judge. And he's been married for 48 years!

And all of these accomplishments were listed in a program booklet which was handed out to us at the door. The booklet included Judge Harris' bon mots, words of wisdom, and memories.

Ah, the memories of a man who has served on the bench for FOUR decades. You'd think, that man has seen a lot. And you'd be right. For instance, he'd remember the only serial killer he ever sentenced to hang.

Yep, the booklet had an entire page dedicated to Westley Allen Dodd. Remember him? He was the child killer who was caught in the act at a Camas Theatre. He refused to appeal his multiple convictions and was sentenced to hang (his choice) by Judge Harris.

But wait, there's more. There are plenty of serial killers with connections to Clark County, if not to Judge Harris personally, and after reading that booklet some of my friends and I got to talking, so here's our local serial killer list, so far as we can remember, and in no particular order:

Ted Bundy. The original creepy Pacific Northwest killer, he is the suspect in the death of a Vancouver woman.

The Happy Face Killer. So named for the smiley-faces he drew on letters he wrote taunting the police. Started his career in nearby Camas, in eastern Clark County. Ended up in Clark County Jail on his FOURTH murder charge, where he became angry that an Oregon couple had falsely confessed to a FIFTH murder which he claimed. (Yes, people do give false confessions, Miranda notwithstanding). Happy Face got to take the credit and the case against the posers was dismissed. He ended up with eight murders to his credit and was a minor celebrity in local jails for his crude art work, which apparently other inmates would smuggle out and sell.

The I-5 Killer. So named because he committed a spree of crimes from Washington through California. He didn't murder in Vancouver, but this was the place of his first adult arrest (for indecent exposure), a couple of years before his interstate spree. During the spree, I-5 committed two robberies of the same Vancouver store and at least one sexual assault here.

Westley Allen Dodd. Torturer and rapist of children, he had abused scores of young children before he killed three Clark County children and was caught in the act of abducting a fourth.

Warren Forrest. Vancouver native and former parks employee. Convicted of one murder and suspected of six. Up for parole soon. When I googled him, the first hit was "Warren Forrest is on Facebook," which I certainly hope isn't true.

Source: Suspected or Convicted Serial Killers in Washington, Seattle PI, Feb 20, 2003

I'd be interested to hear if anyone else remembers some others, but I'd also be happy just to let this topic go. It seems like we haven't had any serial killers in Vacouver for a long time. Good, we certainly have enough to worry about.

Neither Snow nor Rain nor Heat nor Gloom of Night

2009-02-06T22:19:00.000-08:00

I've been following with some interest the proposal to cut mail delivery days.

Let's just say I'm against it.

Maybe one day we'll all be completely online, but lawyers and courts still rely on the mail. We have rules upon rules which assume the mail is going to run and deliver our citations, motions, and responsive pleadings in time for the other side to read and respond. If the post office reduces delivery days, it follows that all courts - and I mean all federal and all state courts - will have to rewrite service by mail rules.

Just thinking of this bureaucratic quagmire gives me a headache. Don't do it, Congress!

And besides, I need my Netflix!

Playing Favorites: When An Elderly Parent is Exploited by an Adult Child

2009-01-31T16:26:00.000-08:00

I've heard this story a hundred times. What changes is the story teller.

Sometimes it's a doctor, calling me as a last resort for a patient. Sometimes it is a social worker. Sometimes a neighbor. Sometimes, it is a child, long-estranged from a parent.

But the story is mostly the same.

The story is about an elderly parent, usually the mother, and usually widowed, and a drug-addicted child.

Mom has given her all - and sometimes her last penny - to support this kid. She's bailed him out of jail, again and again. She's sold or mortgaged her house. She's taken out credit cards for his use. In childhood, she was his protector and advocate. Now, she's his victim.

There might be siblings, but they don't intervene. Maybe they are resentful of how Mom favors this one imperfect child. Maybe they don't know the full extent of the abuse. Mom may still feel protective of her exploiter, and she may feel ashamed of herself for letting him take advantage. She doesn't want him to get in trouble, and she doesn't want him to go to jail.

Sometimes the other kids are afraid of the favored child. He's a drug addict and a criminal. He angers easily. He moves his mother often. He isolates her. He tells her no one else wants her. He threatens suicide. He knows her emotional landscape. She is his perfect victim.

These families have often been dysfunctional and co-dependent for decades, which is why often it takes an outsider to see the truth and intervene. That's right, I'm looking at you. You - bank teller, postal carrier, landlord, neighbor. You can be the hero in this story.

If you suspect an elderly adult is being abused or exploited, YOU CAN HELP.

REPORT ELDER ABUSE TO ADULT PROTECTIVE SERVICES: 1-866-363-4276.

Adult Protective Services investigates complaints of mental and physical abuse, exploitation, and neglect. You can report anonymously, although I hope you will agree to leave your name.

APS is staffed with dedicated workers who have chosen this field because they want to protect vulnerable people. But sometimes it is hard for them to intervene, especially in cases where Mom is still protective of her beloved but abusive child. It is still important to report. Cases can be built over time. If you are an estranged child as I've described above, I especially encourage you to report and to make sure APS has your contact information, in case the day comes when APS needs to call you.

PETITION THE COURT FOR A VULNERABLE ADULT PROTECTION ORDER

Washington law allows the court to enter a "Vulnerable Adult Protection Order" ("VAPO") to protect persons who are vulnerable to abuse because of their age or other circumstances. Any interested person may file a VAPO. You do not need the vulnerable adult's permission to file a VAPO petition, although the vulnerable adult may ask the court to refuse to enter the order.

So long as a petitioner acts in good faith, is honest, and is not trying to abuse the system, the petitioner will not be required to pay any court costs or filing fees. You do not need to hire a lawyer to file a VAPO petition. Forms are available at your local Superior Court Clerk's Office. Instructions are available online at the Washington Courts Website.

PETITION FOR GUARDIANSHIP

Sometimes Mom in this story suffers from dementia or other medical problems or is so vulnerable to exploitation that she really cannot effectively make decisions for herself. In these cases, the court may appoint a guardian. A guardian need not be a family member - Washington has certified professional guardians which can be especially helpful in these cases where one kid is exploiting her and the other kids either won't or can't intervene. If Mom has lost all of her assets, the state might pay for a professional guardian. More information about guardianship in Washington is available at the Northwest Justice Project website. More information about certified professional guardians is available at the Washington Courts Website.

A HAPPY ENDING?

Real life is complicated and messy. If you decide to be a hero, I can't guarantee a happy ending. Some stories end in tragedy, no matter how hard people try. Those are the stories that make the newspapers. But please don't let these sad endings stop you from getting involved. One thing I can guarantee - if we as a community don't intervene, these stories will never change.

As always, this is a blog, not legal advice. If you have legal questions, please consult an attorney.

Washington Division of Developmental Disabilities

2009-01-23T23:17:00.000-08:00

Do you know about the Division of Developmental Disabilities ("DDD")?

I thought I did. For a long time, I knew that Washington offered services to qualifying mentally disabled residents, but did you also know that DDD services are not limited to those with intellectual disabilities?

DDD is a division of Washington Department of Social and Health Services which provides benefits such as case management, assistance with living arrangements, mental health services, and dental services. DDD also provides caregiver training.

DDD services are ofered to Washington residents who are disabled due to:

Mental Retardation
Cerebral Palsy
Epilepsy
Autism
A similar condition

DDD services are available to those whose disability originated prior to age 18, which is expected to continue indefinitely, and which results in "substantial limitations" to intellectual and / or adaptive functioning.

RCW 71A.10.020

Of course, you must qualify for benefits, and unfortunately funding for DDD services is never guaranteed, and will likely be affected by this year's budget cuts. But if you think you could use DDD services, see if you qualify now. Information about DDD assessment and services is available at the DSHS Website.

Second-Hand Smoke and Methamphetamine

2009-01-17T20:22:00.000-08:00

I'm a worrier - probably not a bad personality trait for a lawyer. I worry about lots of things. One of the things I worry about having personal contact with people who use illicit drugs.

My specific concern has always been about methamphetamine. Clark County is awash in methamphetamine. No one knows that better than lawyers. We encounter meth in all kinds of cases. Here are a few examples, not specific to my clients but common to attorneys I know:

Parent's rights terminated for neglect based on long-term meth use
Elderly person's caregiver using meth
Grandparents take custody of grandchildren because the parent is on meth
Couples divorce because of debt incurred by one spouse using meth
Business partnerships dissolved because of one partner's meth use
Tenant violates lease by dealing or manufacturing meth

Note that this list doesn't even include the criminal cases. The upshot is, it is very, very common for attorneys to come into contact with meth addicts.

Several recovering addicts have told me that meth residue can linger on the skin. One drug treatment professional described how users sometimes inadvertently rub their own eyes after smoking, resulting in serious damage and hospitalization.

I'm kind of freaked out by this.

So, I have my own personal "decon" protocol. The minute I get back from the courthouse (my office is across the street), I wash my hands. After every meeting with every client (whether or not I think you are a user), I wash my hands.

This may seem like overkill, and maybe it is. But I've run across some sources which feed my fear.

First, according to this not very-well sourced New York Times Article, cigarette smoke clings to a smoker's person and home and can be toxic to children hours or days later. If "third hand" cigarette smoke is toxic, wouldn't meth residue be 100 times worse?

So I did a little googling. It turns out Oregon has done research on this issue, and it isn't pretty. According to the Medford Mail Tribune, in 2006, social workers did urinalysis on children removed from suspected drug users. Four children tested positive for meth, and one for cocaine. These UA results were attributed not to exposure to a manufacturing lab but simply to second-hand smoke.

I tried and failed to find the original research cited by the Tribune article. However, I did find a Colorado study in which researchers simulated smoking meth in an abandoned hotel room. Methampetamine Contamination on Environmental Surfaces Caused by Simulated Smoking of Methamphetamine. Here are some highlights:

When meth smokers use a pipe, they inhale most of the smoke (no surprise).
Some smoke gets into the air, and meth residue settles on surfaces in the room. The closer the surface to the smoking area, the more meth residue is deposited.
People could get some meth exposure through contact with the residue.

Perhaps the freakiest fact reported is that there was already some meth residue in the motel room before the researchers started!

Overall, based on the scant information on the Internet, it seems that second-hand meth contamination is possible, but that I am probably not really at risk handling papers given to me by a client. However, children in these environments do seem to be at risk.

On a final note, many addicts, when faced with a positive urine test, tell stories of "accidental" meth ingestion. Some people claim they must be positive because of incidental exposure from a friend or boyfriend. I generally don't believe these explanations; denial is a part of addiction.

But if meth residue can collect on the furniture, and if children can test positive after second-hand exposure, is it possible that some adults are testing positive on second-hand exposure too? Maybe some urine tests really are false positives.

Food for thought.

Personal Finance Blogs: Need Some Help With that New Year's Resolution?

2009-01-12T17:53:00.000-08:00

If you're like me, one of your New Year's resolutions is to save more money (and probably also to lose weight and exercise more).

In this economy, we need to do our best to pay off debt, conserve and save. I like these personal finance blogs:

Blogging Away Debt
This ordinary-appearing woman has paid off $30,000 in credit card debt in under three years! I admire her determination and enjoy her frugal tips.

Get Rich Slowly
This blogger is from Portland. This is the best personal finance blog I have found. This site is full of useful ideas.

Money Rules
Blogger and author Mary Hunt posts more than tips, she also posts commentary about our consumerist culture.

The Consumerist
This is a slick, very professional site and is now owned by the publisher of Consumer Reports. Not really focused on personal finances, it focuses more on customer service.

I am hoping 2009 will be a great year! Let's watch out for each other.

Washington's Domestic Partnership Registry for Same-Sex Partners

2009-01-06T06:43:00.000-08:00

In 2007, Washington State created a domestic partnership registry for unmarried same-sex partners (and persons aged 62 and older, but that is another post). The domestic partnership law was revised a bit in 2008, so it still has that new law smell.

This was pretty big news and potentially can have a huge effect on legal rights of same-sex partners. But, be aware, this law also can have a huge effect on legal responsibilities of same-sex partners.

Here are some of the new rights of registered same-sex domestic partners:

Testimonial Privilege: One partner cannot be forced to give testimony against the other party, in conformance with the marital privilege.
"Omitted Spouse" and "Family Support" Rights: If one partner omits the other in their Will or dies intestate, the other partner still may have a right to a share in the estate.
Community Property Agreement: Domestic partners may use a probate avoidance device called a "community property agreement."
Guardianship: If a third party files a guardianship petition involving one partner, the other partner has automatic legal standing in the case and must be notified of the action and considered for appointment as guardian.
Visitation Rights. Registered domestic partners have the same hospital visitation rights as spouses.

On the flip side, there's really only one new legal responsibility, but it's a big one:

Community Property. Community Property. Community Property. I hope anyone reading this post will forever link the terms "domestic partner" with "community property."

Washington is one of only nine community property states in the United States. In a teeny, tiny nutshell, when two people get married (or now, when they register as domestic partners), they create a third "person" called "the community." From that point forward, the community is the legal owner of all the income of either partner and all property bought with that income (no matter whose name is on the title), and the community is responsible for all the debt. (There are exceptions which I won't go into here). When a marriage ends, property and debt is distributed according to community property rules. As for debt, both partners are usually held fully responsible for all debts of the community, even if one partner didn't even know about the debt.

Community property laws restrict a partner's rights to dispose of or mortgage community real property and restrict a partner's right to give away community property in a Will.

Domestic partnership is not identical to marriage in Washington. You can become domestic partners simply by registering with the Secretary of State. So what happens when you split up? In many cases, domestic partners will find themselves alongside married couples in divorce court. RCW 26.60.055.

Lastly, note that Washington's law has no effect on federal taxes and benefits.

So if you are considering registering as a domestic partnership, consider that many of the rights afforded by this law could be achieved through estate planning (and even married couples need estate plans).

For more information on Washington's Domestic Partnership Law, click here.

This post is intended for your general information and is not intended as legal advice. Additionally, I strongly encourage anyone contemplating a community property agreement to first consult an attorney.

Adoption 101 - Types of Adoption

2009-01-03T11:13:00.000-08:00

Ask lawyers what their ideal practice would be, and chances are you'll hear, "Oh, I'd like to do adoptions." And who wouldn't? It is wonderful working with adoptive parents and a real joy to go to court and watch the judge grant the decree.

There are five basic types of adoption:

1. Adopting a legally free child (no one else has parental rights) from foster care.

2. Adopting through a private agency or private adoption attorney.

3. Uncontested step-parent or partner adoption. "Uncontested" means that, if there is another parent, he or she does not object to the adoption. This type of adoption would also be used if the other parent is deceased or is a donor.

4. Contested adoptions. "Contested" means the other parent does NOT consent to the adoption. Before an adoption can occur, the other parent's rights must be terminated. The petitioner for adoption is usually the custodial parent's spouse or partner, so these are also called "step-parent adoptions."

5. Adult adoption. These are, by definition, uncontested. I'll discuss some of the reasons for adult adoption in a later post.

I provide uncontested adoption services in conjunction with other services such as estate planning or guardianship.

There are attorneys who focus their practice on adoption from foster care, private adoptions, foreign adoptions, and contested adoptions.

If you need an uncontested adoption or an adult adoption, I would be happy to provide those services to you. If you need another type of adoption service, I will be happy to refer you to competent lawyers who can help.

Estate Planning: Are You Still Doing Without?

2008-12-28T19:52:00.000-08:00

According to a 2007 Harris Interactive / Martindale Hubbard Poll, 55% of adult Americans do not have a Will. These numbers go up for African-American and Hispanic families.

I am constantly surprised by the people I speak with who still haven't done basic estate planning. This group includes lawyers and people with small children! A lot of people consider estate planning an unpleasant chore, and it is easy to put off. People worry about the cost, too. And some people just have some wrong assumptions about what happens when they die.

So if you are one of the majority of Americans without an estate plan, I have some questions for you.

1. Are you married? Even if you are married, all of your property may not automatically go to your spouse when you die. If you are not married or in a state-registered domestic partnership, your property probably won't go to your partner.

2. Do you want to avoid or simplify probate? An estate plan could help your survivors avoid probate or make probate easier. Probate in Washington can be cheap and easy compared to some other states, but you need to plan for it.

3. Do you own real estate in more than one state? If so, you could subject your heirs to probate proceedings in more than one state. Proper estate planning can avoid this.

4. Do you have minor children? What will happen to them if both you and the other parent die? Where will your children live? Who will be their custodian? Will you set up a trust to provide for your children? How will you fund it? Your estate plan should address all of these issues.

5. Do you want to leave money to a child or grandchild who is disabled? Does that child receive Social Security Disability Income? If that child directly inherits, this could disqualify them for SSDI or Medicaid. Estate planning can help you fund a Special Needs Trust for this child.

6. What if you become very ill and cannot make decisions for yourself? Who will handle your finances? Who will make health care choices? Who will care for your children? Powers of attorney and health care directives can make your wishes known.

7. Are you worried about the cost of estate planning? It probably isn't as expensive as you think it is. My fees for some estate planning services are posted here. Many lawyers, including myself, will consult with you about estate planning at no cost. There are some prepaid legal plans, such as ARAG Group, which provide coverage for many estate planning services.

I'll be posting more in the coming weeks about the importance of estate planning, especially for parents of minor children or children who receive Social Security Disability Income.

If you haven't done your estate planning, I invite you to make this a New Year's resolution!

In the Future, You Might Get Legal Services From a Nonattorney Technician

2008-12-27T19:11:00.001-08:00

Attention lawyers: The times are a' changing.

Let's face some realities:

Legal fees can be expensive.
There is a segment of society that is too wealthy to qualify for free legal aid, and not wealthy enough to afford traditional attorney fees.
There are companies (such as Legalzoom.com and Stevens-Ness) who seek to serve this market.

The Bar Association believes this is a problem and is proposing to do something about it:

In 2003, the Washington Supreme Court authorized a committee to look into whether this state should permit nonattorney "technicians" to provide legal services in limited areas of elder, family, housing, and immigration law. See Legal Technician Proposed Rule.

In the next few years, nonattorney technicians may be a reality in Washington, and I think that's a good thing. Here's why:

1. Nonattorney technicians authorized by the state will be regulated by the Bar Association.

Technicians will have mandatory training and will be required to carry insurance or show proof of financial responsibility. They will be subject to ethics rules. Bender, Rita, and Bastine, Hon. Paul A. "Legal Technicians: Myths and Facts." Washington State Bar News, July 2008. Technicians practicing in certain areas, such as elder law, may be subject to heightened supervision. Final Report of the Elder Law Subcommittee of the Practice of Law Board.

Currently, nonattorney services such as online forms services get around admission to practice rules by offering "untrained paralegal" and "notario" services. "Consumers [of services like legalzoom.com] are not adequately protected in the event of negligence or abuse." Bender / Bastine Report. It is not clear to me that the Nonattorney Technician rule will require these online services to confirm to Washington law, but at the minimum it would give consumers another option.

2. Some Services Currently Provided by Attorneys Could Just as Well Be Provided by Technicians.

There. I said it. Some of the legal services I provide could just as easily be provided by a nonattorney. One example is an uncontested guardianship. As long as this is truly uncontested, my job is mostly typing.

Other examples are basic estate planning documents. I would be concerned about a nonattorney preparing a Will or community property agreement (although these services would, to some extent, be permitted under the proposed rule). However, I am not at all concerned about a trained technician preparing health care directives or health care powers of attorney.

3. Nonattorney Technicians Will Directly Compete with Attorneys.

Lawyers are business people. We're in this to earn a living, just like the butcher, the baker, and the candlestick maker. But we're also different from most business people. We have a code of ethics that requires us to put our clients' interests above our own.

Which is why, even though part of me hates the idea of a paralegal competing with me, so long as the Bar Association can ensure protection of the consumer, I will embrace change, and even welcome it.

It may be years before nonattorney technicians offer services here in Vancouver. In fact, it may never be economically feasible. But the idea of nonattorney competition should make lawyers reconsider our fee structures.

In its 2007 report, the Elder Law Subcommittee of the Admission to Practice Board listed average charges by Washington lawyers for various services, including:

Living Will (Health Care Directive): $320
Standard Power of Attorney: $340

The committee based this on an average hourly fee of $240/hour, and I would suspect that this hourly fee is weighted heavily toward the Seattle area, because I would be stunned if a Vancouver attorney charged that much for those very basic services.

In fact, I believe that local attorney fees for standard services are already very competitive. Many attorneys charge flat fees - not hourly - for basic estate planning services. My own fees are published here.

Bottom line? Whether lawyers want change or not, it is coming. And it will be a good thing.

For further reading, please see Will Lawyers as We Know Them Exist in 100 Years? via Susan Cartier Liebel.

Holiday Post: Nativity Scenes, Free Speech, Atheists, and Snow

2008-12-23T18:59:00.000-08:00

As the year draws to a close, I can't help but comment on the Washington Statehouse's 15 minutes of fame.

In 2007, our governor, Christine Gregoire (Dem), permitted a Nativity scene to be placed in the capitol building in Olympia. This was a response to a Menorah display in 2006.

Then along came an atheist group, wanting to post a sign which reflected its views: "There are no gods, no devils, no angels, no heaven or hell. There is only our natural world."

And so it came to pass that we had a Crèche just feet away from the atheist sign inside the Statehouse. And so it was that Washington State was criticized by many, most notably Bill O'Reilly: "The governor of Washington State has permitted an attack on religion to be displayed in her office building as part of a Christmas presentation."

Prior to my current position working with estate planning and guardianship, I spent six years as a prosecutor, so I am well aware of how government offices function.

And let me assure you, this has nothing to do with religion and everything to do with the First Amendment: "Congress shall make no law * * * abridging the freedom of speech * * *."

Now, not all speech is constitutionally protected. Obscenity and fraud are prohibited, as is speech which constitutes aiding and abetting a crime. Treason is not protected.

Also, you don't have an unrestricted right to speak wherever you want. You can't just walk into somebody's home or private business and force them to listen to your political ideas. You can't yell "fire" in a crowded theater (unless there actually is a fire).

Speech in a public place is subject to different rules. Some public spaces are traditionally used as centers for debate. These are called "public forums." An example of a public forum may be a park or a sidewalk. Get on your soapbox or hand out your fliers - you and everyone else are free to do so here.

But most public spaces are NOT considered "public forums." These are publicly-owned spaces but are not traditionally used for debate. For example, your firehouse and police station are publicly-owned, but you really wouldn't want just anyone wandering in and out with fliers or a bullhorn. That goes double for public schools and hospitals.

The Washington Statehouse is a functioning office building. However, parts of it are open to the public. As such, it might or might not be seen as a "public forum." Confer Sanders v. City of Seattle, 160 Wn.2d 198, 156 P.3d 874 (WA 2007).

If the Statehouse is a public forum, then the Governor has NO right to approve or deny a display based on content.

Even if the Statehouse is NOT considered a public forum, the moment the first Menorah went up, it became a "quasi-public forum" (that is, its function because like a forum for purposes of the law). And once again, the Governor has no right to censor a display based on content.

If you are going to post your beliefs in a public forum, you should be ready for some debate.

On a personal note, I think the atheist display was somewhat insensitive, but they certainly had the right to post it.

The interesting question will be: will the Governor allow any displays at all in the Statehouse next year?

Finally, I want to memorialize the fantastic snowfall we got here in Vancouver. This is the most we've had in decades (and yes, it is the most I can remember!).

So Merry Christmas, Happy Hanukkah, Io Saturnalia, Happy Kwanzaa, and Happy New Year!
Goodwill and peace, whatever your beliefs,

Rachel

Finding a Lawyer - Is Avvo.com helpful?

2008-12-17T19:45:00.000-08:00

I am an internet shopper. I love amazon.com, and I really do look at product ratings and read the customer reviews. I realize some on-line reviews aren't that helpful. For example, see the 1015 reviews of whole milk.

I question whether it is possible to rate a lawyer like you would rate, for instance, a Bissell 37604 Lift-Off Revolution Pet Bagless Upright Vacuum Cleaner, rating 3.5 out of 49 customer reviews.

To begin with, I doubt most customers rate their amazon purchases, much less their lawyers, and laywers have far fewer "customers." But an attorney rating website is an ambitious idea, and it will be great it if it helps clients select lawyers who really help them.

Avvo's rating system is a mystery to me, though, and I feel I must offer some words of caution:

1. My own rating of "very good" is higher than some excellent Vancouver attorneys who are much more experienced than me. I'm not putting myself down. That is just a fact. On the flip side, I personally have raised an eyebrow at the high ratings of one or two lawyers.

2. Clients should be aware that we attorneys supply a lot of the information on which Avvo bases our ratings. Some attorneys are more aggressive about this and seem to consequently get better ratings. I'm not saying there is anything wrong with that, but consider that some very good attorneys might not be internet-savvy.

3. Avvo ratings also seem to be based in part on an attorney's contributions to the Avvo site. These are mostly answers to legal questions posted by consumers. This system scares me, although I have answered a couple of general questions myself. I can't caution people enough - do not rely on "legal" advice on the internet.

4. Although lawyers cannot "buy" a rating, we can buy advertising on Avvo. Be aware of this.

5. Finally, some attorneys are very critical of Avvo. Here is a post by a New York attorney blogger which sums up these concerns: Simple Justice

See avvo.com for yourself: http://www.avvo.com/

Five Easy (and Free) Ways to Protect Your Family's Future

2008-12-06T08:15:00.000-08:00

1. Sign a Health Care Directive and Health Care Power of Attorney.

Sometimes called a “Living Will”, Washington’s Health Care Directive tells your physicians and family your wishes even if you aren’t able to. The Health Care Power of Attorney authorizes an agent of your choice to act on your wishes. These simple, statutory forms can save your family much difficulty in the event of your acute illness or injury, and may even avoid Court proceedings to determine your final wishes.

There are several resources and websites which provide information and forms for Health Care Directives and Health Care Powers of Attorney. Some attorneys include Health Care Directives and Health Care Powers of Attorney at no additional cost when conducting estate planning.

For further information, see

http://www.seniorservices.org/documents/Advanced%20Directives.pdf

http://www.washingtonlawhelp.org/WA/StateSubTopics.cfm/County/%20/City/%20/demoMode/=%201/Language/1/State/WA/TextOnly/N/ZipCode/%20/LoggedIn/0/iTopicID/864/sTopicImage/g-health.gif/bAllState/0

2. Review Your “Non-Probate” Assets for Consistency.

Many people execute Wills to direct distribution of their estates. However, some assets which pass at death are usually not controlled by the Will. These are known as “non-probate” assets, and may include joint bank accounts, pensions, IRAs, and life insurance. Also, if you are married, certain presumptions about community property will apply.

It is a good practice to periodically review all of your non-probate assets to make sure that they comply with your wishes. For instance, you should review periodically your life insurance policies and “payable on death” accounts, such as retirement accounts, to make sure that the beneficiary is the person you want. Families are constantly changing due to marriage, death, divorce, birth, and adoption. You should periodically review your accounts to make sure they reflect your family’s current needs.

3. Stay Organized.

If you died today, would your family know your wishes? Would they be able to find your Will, your life insurance policy, or the key to your safety-deposit box? If you fell ill, would your family know where to find your Health Care Directive and Health Care Power of Attorney?

Do your loved ones a favor. Buy a file folder. Make copies of all the information your family would need to know in the midst of a tragedy. Make a list of your assets: real estate, bank accounts, CDs, investment funds, vehicles. Include information about debt: mortgages, car payments, credit cards. Put this in your folder.

Everyone owns property that must be registered, recorded, or otherwise listed. Make a list of the locations of deeds, stock certificates, vehicle registrations (don’t forget boats and trailers), firearms, etc. Put these in your folder.

Take the time to think about your assets, your estate plan, your insurance. Think about what your family would need to know, and put that in the folder. Then put the folder in a safe place, and tell someone where it is.

4. Talk to Your Loved Ones.

Have you appointed someone to act on your power of attorney? Talk to them, and make sure they are willing to serve. Are you expecting someone to make hard health care decisions for you? Talk to them. Make sure they want to.

Don’t just talk about the hard stuff. Talk about your goals and dreams. If you are in a committed relationship, set aside time at least once a year to check in with each other, set goals, and discuss plans to accomplish those goals.

5. Use Major Life Changes as Opportunities.

Major events are also great times to reconsider your goals and your estate planning. We go through many big events in our lives: living together, marriage, having kids, separation, divorce, death, as well as graduation, career change, new homes, etc. etc. Use your big event to educate yourself and plan accordingly.

This post is adapted is from a presentation I did with the wonderful attorney Meredith McKell Graff, www.mckellgraff.com.

This post and these links are provided to encourage readers to become better informed and are not legal advice. I do not endorse the forms available on the linked websites.

Guardianship 101

2008-12-01T19:29:00.000-08:00

Do you care for someone with a disability who cannot make decisions for themselves? Who will make necessary decisions about care and finances? Who can consent to medical procedures? Who will apply for benefits?

In some cases, the answer is a guardian.

Guardianships are fairly common, because if we live long enough, we're all going to need assistance. According to the "90 Plus" Study, prevalence of dementia in people in their 90s is 27.6% for men and 45.2% for women. Jeffrey, Susan. Prevalence of Dementia Higher in Women than Men After 90 Years of Age. July 2, 2008. http://www.medscape.com/viewarticle/577003.

A guardianship is a court case in which a Judge determines whether a person is legally incompetent, that is, unable to make decisions for themselves. The court might order a guardianship for medical purposes (called "Guardianship of the Person"), for financial purposes (called "Guardian of the Estate"), or both.

Guardianships are not just for elderly people. A guardian might be appointed for any adult who cannot make appropriate living decisions.

Guardians must file reports with the court and must take steps to protect the incapacitated person's assets.

Guardianship is not the only answer for persons who can't care for themselves. A court will only enter a guardianship if no less restrictive options are available.

If you know someone who may need a guardianship, speak to an attorney. He or she can discuss all your options as well as costs. In many cases, attorney fees are paid either by the county or the incapacitated person's estate, so don't be afraid to consult an attorney.

For some information about guardianships, see this website:

http://www.washingtonlawhelp.org/WA/StateChannelResults.cfm/County/%20/City/%20/demoMode/=%201/Language/1/State/WA/TextOnly/N/ZipCode/%20/LoggedIn/0/iSubTopicID/1/iProblemCodeID/1330000/sTopicImage/Seniors.gif/iTopicID/867/ichannelid/7/bAllState/0
In upcoming articles, I'll post some information about guardianships for people who are in assisted living and other related topics. As always, these posts are intended to share general information. You should not consider this to be legal advice.

Is Vancouver Real Estate Still Overvalued?

2008-11-17T21:05:00.000-08:00

I was listening to NPR's "Talk of the Nation" the other day (Nov 13, 2008), and the topic was falling real estate prices. See http://www.npr.org/

The guest economist said many American markets are still at least 10 to 20% overvalued!

Prices have been falling like crazy here in Vancouver. I have clients who can't sell their homes, and I've seen homes listing for nearly 50% less than 2006 sales.

On the plus side, housing will hopefully get more affordable for average families.

http://portlandhousing.blogspot.com/search/label/Vancouver%20Real%20Estate

I don't think it has hit the bottom.

New Family Court Annex

2008-11-17T19:16:00.000-08:00

Courtrooms are prime real estate - if you don't believe me, stop by the courthouse any morning and see for yourself. Additionally, our courts are perpetually short on space for judicial chambers, not to mention office space for clerks and assistants.

That is why the new Family Court Annex is good news. The Annex opened on November 3, 2008, at the corner of Evergreen and Franklin, one block south of the main courthouse. It is in the same building as the Children's Justice Center. The Annex houses two judges and one court commissioner and several staff.

The Family Court Annex contains three small courtrooms, plus two little conference rooms for attorney-client conferences. It has a larger conference room, which I estimate would hold about 15 people. Best of all, it has a large lobby and a separate children's play area. Money is tight but I believe the Superior Court Judges and Administrator Jeff Amram did a good job with the Annex.

On the down side, the Superior Court Clerk does not have an office at the Annex. This means no court files are stored there, so they have to be brought down for each docket. Also, not all family court cases will fit into the Annex, so some will continue to be heard at the main courthouse and some at the juvenile courthouse.

I practice only a limited amount of family law. I don't usually do divorces or parentage cases. But I do represent parents in dependency (CPS) cases, and I'm really excited that the new Annex will be a lot friendlier to these clients.

How NOT to Find a Lawyer

2008-11-17T00:38:00.001-08:00

A while ago I posted some tips on how to find the right lawyer. Now let me share some observations about how people do it wrong:

1. Call every lawyer in the phone book. Hey, it's your time, go ahead and make 300 phone calls if you want. But this is probably the least effective way to find a lawyer. Try talking to your colleagues and friends instead.

2. Call lawyers who don't offer the services you need. I don't do divorces, I don't do immigration, and I don't advertise on any site suggesting that I do. Still, I routinely get messages from people wanting divorce or immigration services.

3. Don't do your homework. Many lawyers have websites which explain their services and fees. Also, since attorneys must be licensed by the state, you can check with the state bar association to see if a lawyer is in good standing. Here are the links for the Oregon and Washington State Bar Associations:

http://www.wsba.org/
http://www.osbar.org/

4. Be rude to the staff. The receptionist or paralegal is going to tell us if you curse at her. Or if you hang up on her. Attorney staff members have it hard enough. Please treat them with courtesy.

Most of all, remember that your attorney works for you. Make sure you get the right one!

Favorite Film Lawyers

2008-11-17T00:21:00.001-08:00

I am usually not a big fan of TV lawyers (except for the prosecutors on Law and Order and Perry Mason), but there are some movie lawyers who definately have a place in my heart. Here are a few:

Jimmy Stewart as Paul Biegler in Anatomy of a Murder (1952)

Joe Pesci as My Cousin Vinny (And Honorable Mention to Judge Herman Munster) (1992)

George Clooney as Michael Clayton (2007)

And, of course,
Gregory Peck as Atticus Finch in To Kill a Mockingbird (1962)

It is worth pointing out that Atticus Finch, arguably the most revered fictional lawyer, lost the biggest case of his life!

How to Find a Lawyer

2008-11-16T23:54:00.000-08:00

There are many ways to find the right lawyer. Try the yellow pages, try Google, but also check out these other resources:

Washington State Bar Association Attorney Directory
Searchable database. Search by name, location, or practice area. Includes information on professional liability insurance and some disciplinary actions.
http://pro.wsba.org/

Clark County Washington Bar Association
The local bar association runs an attorney referral service. This is a pay services (the attorneys pay to be listed) and includes many local attorneys. I personally do not use this referral services because my practice areas are pretty specialized. However, if you are seeking a referral to a family lawyer or to many other types of lawyers, try (360) 695-0599.

ARAG Group
If you are a member of ARAG Group Legal Services Plan (check your employee benefits if you are not sure), you can find a participating lawyer at their website.
http://www.araggroup.com/

Ask your Friends and Family
The oldest way to find a lawyer is often still the best!

Special Needs Trusts 101

2008-11-16T23:27:00.000-08:00

Do you receive Medicaid or Social Security Disability Income? Do you care for someone who does?

Then you already know that the state and federal governments have strict requirements to qualify for benefits. Both income and assets are restricted, and violation of the rules can lead to disqualifaction for benefits.

So what happens when a Medicaid or SSDI recepient sells a home or receives a settlement or inheritance? A Special Needs Trust can help.

A Special Needs Trust is also known as a "Supplemental Needs Trust" or a "d(4)" Trust - named for the applicable federal tax provision. It can be established by either a beneficiary or a third party. It can be set up through an estate plan. It is used to "supplement" Medicaid and SSDI and generally cannot be used to provide items or services which are provided by these government programs. A Special Needs Trust could be used to provide furniture, clothing, some entertainment and travel, books, cable, and internet.

You can get more information about Medicaid and SSDI at the following websites: http://fortress.wa.gov/dshs/maa/medicaidsp/
http://www.ssa.gov/disability/

Special Needs Trusts can be complicated, and failure to comply with regulations can have serious consequences. If you are considering a Special Needs Trust, you should consult an attorney.

Dependency Court 101 - When CPS Knocks

2008-11-16T22:51:00.000-08:00

First let me say, thank God for social workers. They perform necessary, difficult and sometimes dangerous work to keep our children safe. But no parent is feeling thankful when a CPS social worker shows up on their doorstep.

If you have been contacted by CPS, and even if your children have been removed, there are things you can do right now to help the situation.

1. Read EVERYTHING. Make sure you read and understand every document provided by the social worker, especially if you are asked to sign it. Ask for copies for yourself, and keep everything together in a safe place.

2. Ask for help. This is not the time to be proud. If you have family or close friends who are stable and can help you or your children, reach out.

3. Go to every appointment, meeting, visit, and court date - NO EXCEPTIONS and NO EXCUSES. The one legitimate excuse is work, and only if you really cannot get time off. Otherwise, your kids come first. If you can't make it to a meeting, how can you prove you can take care of your kids?

4. Bite your tongue. You may hate your social worker, and you may have good reason to, but keep that to yourself. Speak respectfully and keep your emotions in check.

5. Face yourself honestly. If you are using illegal drugs, the court will find you have a problem. Yes, even if it isn't every day. Even if it's just marijuana. Why? Because if you use drugs, you might go to jail. You might get your driver's license revoked. You might get drug-tested and lose your job. It's a problem. Get clean and get sober.

6. Remember, the law is on your side. Washington law requires the state to make reasonable efforts to reunify families. This means parents have the right to get services, usually at no costs, from CPS. These include parenting classes, drug treatment, and counseling. If a court case has been filed, you may have a right to a publicly-appointed attorney. Take advantage of these services now, so you can get CPS out of your life forever.

For more information on CPS, Department of Child and Family Services, and Dependency Court, see these websites:

http://www1.dshs.wa.gov/basicneeds/an2cps.html

http://www.washingtonlawhelp.org/WA/StateChannelResults.cfm/County/%20/City/%20/demoMode/=%201/Language/1/State/WA/TextOnly/N/ZipCode/%20/LoggedIn/0/iSubTopicID/1/iProblemCodeID/1390300/sTopicImage/familyjuvenile.gif/iTopicID/862/bAllState/0/ichannelid/7

http://www.opd.wa.gov/PRP-home.htm

Every case is unique. This information is meant to be for general purposes and not legal advice. If you have a legal problem, please consult an attorney.

Most Helpful Washington Legal Sites

2008-11-16T22:24:00.001-08:00

Here are some legal websites which I like and use regularly:

Probate & Guardianship
www.wa-probate.com
http://www.kingcounty.gov/courts/scforms.aspx

Family Law, Landlord / Tenant
www.washingtonlawhelp.org
http://www.courts.wa.gov/forms/index.cfm

Washington Statutes
http://apps.leg.wa.gov/rcw/default.aspx

Remember, these websites are not a substitute for legal advice. If you have a legal question, you should consult an attorney.