Home » Archives for carpenterr » Page 2

Author: carpenterr

Ross’ Ref Q’s – Can I evict a subtenant?

We get a lot of reference questions at the King County Law Library.
The refrain goes that because we aren’t practicing attorneys, we can’t offer legal advice—as librarians, we can only offer resources.
That said, some questions are very interesting & inspire me to do some research of my own, collected here in this column. Don’t construe this as legal advice!

****************************************************************************************************************************************

This is Ross’ Ref Q’s, a monthly column that looks at real law library reference questions with some kind of deeper payoff: Perhaps you’ll learn a novel research strategy or the answer to an unorthodox procedural question. This installment’s lesson can be largely distilled down to the dictum: don’t take anything for granted.

Someone came to the reference desk. They said that they wanted to evict someone and that [an agency] sent them our way, saying that we have a kit. We do have a kit. The short spiel on that goes: the bulk of “forms” for residential evictions aren’t necessarily state-provided, fill-in-the-blank forms, but are instead drafted one-off (usually by attorneys). Many small time landlords can’t afford attorney hourly rates, so KCLL worked with a local attorney to offer a kit that includes the typically necessary forms as well as instructions for the process. It can be bought in-library and on our website too.

There is a distinction in librarianship, and I suppose in customer service overall, where you want to follow the customer’s lead-to a degree. If someone comes in looking for a form packet for divorce, for example, I will clarify if they have kids or if the divorce is contested, as there are additional form sets in either case. But I won’t ask if they want to look at the Legal Separation packet, because while legal separation is similar to divorce and achieves many of the same outcomes, it is discrete enough that I have to assume they would request it specifically.

I will print the eviction kit on demand given the conversation flows as it usually does: Someone will come in and say they’re at wits end, a tenant has been causing trouble, they haven’t been paying rent, and they need them gone. That’s clear enough, that’s an eviction. Or they may even say, in a questioning voice, “I need an…unlawful detainer?” If that part is unclear I’ll ask if they want to evict someone or they are being evicted-of course, the methods vary greatly there. But I don’t ask if they’ve considered a protection order. It can have the same result, but I have to assume the person knows what they’re talking about, to a certain degree.

With COVID-19 changes to eviction law/procedure, we started prefacing eviction kit sales with some questions. “Are you aware of the moratoria?” Then, “Is the property located in Seattle or Burien?” These two had the longest lasting moratoria ie for the longest time, the kit wouldn’t work in these municipalities. But otherwise, I’ve assumed this person was a landlord and wanting to follow standard unlawful detainer actions under Washington Landlord-Tenant Law.

So, anyway… Someone came to the reference desk. They said that they wanted to evict someone and that [an agency] sent them our way, saying that we have a kit. We do have a kit.

With the moratoria finished, I ask the one qualifying question I have left: “Just to be sure, is the person you’re trying to evict on a lease?” They affirmed, I started swerving my cursor around to print the packet.

As I’m doing so, the patron continued railing against the renter, and casually lamented that it would have been great to have a roommate that actually helped with rent, but this person wasn’t paying. That’s a wrinkle.

I pull my cursor away from the “Print” button, and asked for clarification, “I might have misunderstood, are you the owner of the property?”

“No, I rent the place. I’m trying to evict my roommate.”

Ah. I’ve seen this before, and while I am not a lawyer, I feel comfortable saying, “Unfortunately landlord-tenant law, and eviction in general, is meant for … landlords and tenants. You can’t evict a roommate. There are resources out there, such as the Tenants’ Union and…”

So the conversation again diverged but again settled into an existing track. I have given this spiel before, and hope I didn’t speak mechanically. I asked if they have a relationship with their landlord, perhaps the landlord would want to evict him for not paying rent.

Then, interrupting, “But I am kinda his landlord. I’m subletting a room to him.”

Ah. This is a wrinkle I hadn’t seen before. At last, we’ve arrived at our titular ref q:

Can I evict a subtenant?

I brought up the Residential Landlord-Tenant Act on the Legislature’s website, clicked “Complete Chapter” and used Ctrl+F to look for “subl” which is broad enough to capture sublease and sublessor or sublessee, The Act includes “subl” five times, but makes only oblique references to sublessees and sublessors, mostly about drug-related prohibitions. These inclusions tell me that subtenancy seemingly isn’t regulated or prohibited in a unique way—there would probably be a section devoted to it, or at least some mention.

But in so searching, I see the word subtenant, so I search “subt” next. I see some more drug-related talk, the word “subtract,” but then…

RCW 59.18.410 — Forcible entry or detainer or unlawful detainer actions—Notice of default—Writ of restitution—Judgment—Execution.

RCW 59.18.650 — Eviction of tenant, refusal to continue tenancy, end of periodic tenancy—Cause—Notice—Penalties.

These are run-of-the-mill unlawful detainer statutes. “Subtenant” isn’t used in a majorly qualifying way, but in-line with other forms of tenancy.

If someone was asking our question in an academic way, I might give them the annotated code and let them continue research, but since our ref q has the embedded subquestion, “Can we use this eviction packet?” statutes weren’t an end point.

Instead, I grabbed the WSBA Real Property Deskbook. Knowing that some primary law existed in the RCWs gave me confidence that a secondary source like a deskbook would discuss subtenancy, and I wasn’t let down. §17.11(1)(a) discusses the differences between assignments and subleases—It’s a distinction worth noting because evidently a sublease without a reversion (the expectation that full possession of the property will revert to the original leaseholder for at least one day before the end of the balance term) is actually an assignment (which is the transfer of an entire balance of a lease). That subsection goes on to say “Between themselves, the head tenant and the subtenant stand in a true landlord-tenant relationship. The head tenant may bring an unlawful detainer action against its subtenant” and quotes relevant case law. Bingo. But, the subsection also offers this practice tip, “Many intended subleases are actually assignments or partial assignments because the head tenant fails to reserve a reversion. A party who makes an assignment instead of a sublease will not be able to recover possession through unlawful detainer.” Huh.

The patron made it out that they had a verbal sublease and not for the remaining balance, they were only supposed to be there until they got back on their feet. Is this periodic tenancy? Landlord-tenant RCWs swam before my eyes. I did my usual qualifiers (I’m not an attorney, you should probably talk to one, I can’t interpret the law or tell you what your rights are, but) and explained what I read. I said I can’t say for sure, but it appears you have a subtenancy, not an assignment, and it appears subtenant eviction falls under the purview of the Landlord-Tenant Act, which is what our packet is designed to do, and that while our packet costs $60 and could potentially fail for some reason, an attorney would certainly cost more. He ended up buying the packet.

 

 

FROM THE DIRECTOR: June 2022

Fantastic Beasts of Administrative Law and Where to Find Them

Barbara Engstrom, Executive Director, King County Law Library

Unless the focus of one’s practice is a heavily regulated area of law, most attorneys don’t engage with Washington administrative law very often. If the occasion arises where one must enter this murky realm, fear and trepidation can ensue. Not to worry, the following tips will guide you to resources to find and tame the fantastic beasts of Washington administrative law.

Is it Lurking in the Shadows?

Whether or not regulatory law impacts a legal issue can sometimes be difficult to determine. A good rule of thumb at the outset of any research project is to check whether there is a statute that applies. If there is, you’ll want to make sure you are aware of any related regulations. The fastest way to do this is to use an annotated code. Annotated codes are like the Room of Requirements [1] to aid a seeker in need. If your research question involves a controlling statute, an annotated code can quickly give you a bird’s eye view of the statute in context . While most people use annotated codes to find case law discussing a statute, the annotations also include other information like relevant law review articles, Washington treatise sections, legislative history and commentary, and … applicable regulations.

You may be tempted to skip this step, but remember, when passing laws, legislators often draft the language in broad brushstrokes and task administrative agencies with effectuating the details. In essence, legislators create the broad statutory mandate and rely on agency expertise to fill in the gaps.

Do You Have a Map?

The reason that legislatures delegate rulemaking authority to administrative agencies is because the issues are complicated and require professional, subject matter expertise. Similarly, for researchers, delving directly into primary regulatory sources can be a fool’s errand. A better bet is to use the Marauder’s Map [2] of secondary research resources to help you uncover what may otherwise appear hidden to the naked eye. For example, while some Washington administrative regulations stand on their own, others work in tandem with federal regulations. Think securities or environmental regulations. A good secondary source will not only help you analyze the applicable Washington regulations but will also help you understand how federal regulations may fit into the context.

I generally start with the agency website. While the first few layers are usually intended for lay persons, more technical information can be found by delving deeper or using advanced searching. Next, I search the WSBA deskbooks, Washington Practice, and other Washington specific treatises before moving on to general jurisdiction treatises. If you need contemporaneous discussion of regulations from when they  were created, law review articles from UW, SU, and Gonazga law schools and bar bulletin articles from that time period can often prove helpful, as can CLEs.

Do You Understand the Wizarding World?

Just like the Ministry of Magic [3], agencies wield quite a bit of power. They create regulations (a primary source of law), hold judicial proceedings, and can mete out fines and punishments. In order to effectively research administrative law, it’s good to have a baseline understanding of the administrative process. There are many mechanisms to keep agency powers in check, the most important of which is that agencies must have authority handed down to them before they can create rules. Rulemaking can be triggered by 1) a mandate from the state legislature, 2) a federal law or rule, 3) a court decision, or 4) a petition for rulemaking. Washington’s state Administrative Procedure Act ensures that the agencies are acting within the scope of their delegated authority for rulemaking and are fair and impartial in their adjudications.

The Washington Administrative Law Practice Manual is the go-to resource for understanding the intricacies of the rulemaking process and agency adjudications. For example: Can the agency’s proposed rule differ substantially from the final rule? See Chapter 7.06 [L]. Is hearsay allowed in administrative adjudications? See Chapter 9.05[E][1].

From What Swamp Did It Hatch?

Sometimes you’ll want to research the history of a regulation. While a Time Turner [4] would be nice, with a little bit of effort you’ll do just as well on your own. Much of your Washington regulatory history research will be done in the Washington State Register (WSR). Fortunately, most research from the mid-1990s forward can be done on-line. The Washington State Legislature’s website https://leg.wa.gov/ integrates regulatory history into Washington Administrative Code (WAC) entries. Just look for the bright yellow link that says, “Agency filings affecting this section” and you’ll be directed to the WSR entries for the proposed and permanent rules for the WAC you are researching.

A special point to consider. When doing a regulatory history, be sure to look for the Concise Explanatory Statement (CES). The concise explanatory statement is the method by which an agency ensures that it considered all the public comments/arguments as required by the Washington APA. It has been said that the CES is probably the most important document an agency must prepare in the rule-making process. [5] The CES is critical for determining whether agencies acted arbitrarily or capriciously when adopting the rule. Many agencies post their Concise Explanatory Statements on their websites. If you can’t find the CES you are looking for, just contact the agency and request it. If you commented on a rule during the rule-making process, the agency should automatically send you a copy.

Accio Law Library!

If you need more help researching Washington regulations or any other topic, use your summoning spell to contact the law library. Don’t worry, we don’t have a Restricted Section [6] of the dark arts and Madame Pince [7] will not be breathing down your neck when you use our resources. Email us at services@kcll.org and let us help you find and tame the fantastic beasts of Washington administrative law. In the words of Albus Dumbledore: “Help will always be offered to those who ask for it.”

 

1 See Harry Potter Glossary, available at https://www.bloomsbury.com/uk/discover/harry-potter/harry-potter-fun-stuff/harry-potter-glossary/ (Come and Go Room. Also known as the Room of Requirement, it is on the seventh floor of Hogwarts, opposite the Barnabus the Barmy tapestry. The room is sometimes there, sometimes not. It can only be entered by people with a real need, who must walk past the part of wall three times while concentrating on what they need. The room will then appear fully equipped with all their immediate requirements.)

2 Id (Marauder’s Map. A map that shows all the secret passageways and the current whereabouts of everyone in Hogwarts).

3 Id (Ministry of Magic. Government agency that tries to keep witches and wizards secret from non-magical people.)

4 Id (Time Turner. Hourglass that allows the wearer to travel back in time.)

5 See Washington Administrative Law Practice Manual [7.06][M] citing Aviation West Corp. v. Dep’t of Labor and Indus., 138 Wn.2d 413, 980 P.2d 701 (1999)

Ross’ Ref Q’s – Get rid of criminal records

We get a lot of reference questions at the King County Law Library.
The refrain goes that because we aren’t practicing attorneys, we can’t offer legal advice—as librarians, we can only offer resources.
That said, some questions are very interesting & inspire me to do some research of my own, collected here in this column. Don’t construe this as legal advice!

****************************************************************************************************************************************

Welcome back to another exciting edition of Ross’ Ref Q’s. As a reminder, we’re here to interrogate heady reference questions, or otherwise note unique research strategies. In the first round, we  looked at avenues for suing the President — the short answer there is that you really can’t sue the President for damages for official acts, which is what most people want. That question was a little off the wall, but it’s asked somewhat frequently and it allowed for a unique look at how we tackle “getting started” questions. This month’s question, on the other hand, looks at a process found at the tail end of a court process:

How Do I Get Rid of My Criminal Record?

This is a straight forward question, but one that is complicated to answer. It is complicated because people can mean different things when saying “get rid” of their record, complicated because whichever path they have in mind isn’t always possible, and complicated because the “correct” path isn’t obvious via court-provided materials.

What does it mean to get rid of your criminal record?

I chose this general phrasing because for one, this is how the question often arrives, but it also underpins the typical nature of the question: folks have a criminal record and they want it sealed, perhaps, or vacated (often these terms are used interchangeable, but as we’ll see, they are not). Whichever way, they want it gone. Understandable.

The first step is to ask about their criminal record and ascertain what type of conviction they have. Then we’ll talk about what exactly they want done. This can hopefully be hashed out in a few sentences. Important distinctions are whether the conviction was for a felony or a misdemeanor, whether they were a minor at the time of conviction or an adult, and what they want their record to be: totally clear and empty, or to simply restrict access to case information? This last part touches on the important distinction between vacating convictions vs. sealing a record. 

Learning about their criminal record up front is crucial because depending on the conviction, it’s possible that it can’t be sealed, destroyed, vacated, or much else. But before we get too far, what do all these terms mean? The first resource to which I’ll point people is Washington Courts’ guide on “Sealing and Destroying Court Records, Vacating Convictions, and Deleting Criminal History Records.” This has general definitions as well as basic steps to these processes. The downside is that this guide is vague and not actionable for a pro se library user. But, it does speak authoritatively about what’s possible, so it serves as a worthwhile jumping off point.

Let’s talk sealing.

First I’ll offer the primary authority on “Destruction, Sealing, and Redaction of Court Records:” GR 15 / LGR 15.

What we can learn between these rules and the above court guide above is that sealing means preventing access to a court record, and that this cannot be accomplished for adult criminal cases that resulted in a conviction.

So, we are seemingly left sealing records that are either juvenile or civil.

If the user wants to seal juvenile court records, there exist DIY form packets and third party resources, in addition to the Washington Courts’ pattern forms. I’d usually pull these up on my monitor and encourage the user to use our computers or their smart phone to learn more.

Civil sealing comes up frequently at the law library, although this clearly diverges from this reference question prompt. In short, going this route involves first filing a motion and order to seal. There is a King County Clerk-provided Order, but strangely they have not provided a matching motion. Folks have to use the general family law motion and make it work.

But our question here is about criminal cases. Juvenile records have the potential to be sealed, but not adult records? What else can be done with adult convictions?

Let’s talk vacation. 

Vacating means to set aside a conviction—if you successfully vacate a conviction you can truthfully say you were not convicted. Chapter 9.96 of the RCW deals with misdemeanors, RCW 9.94A.640 is for felonies.

What’s possible re: vacation has to do with how the conviction was classified:

If it was a misdemeanor, I point people to the Washington Law Help article.

If it was a non-violent Class B or C Felony, I similarly point them to the Washington Law Help article. Washington Courts provides an overview on this as well, but Washington Law Help displays the information in a more pleasing manner, to my eyes. There’s also the Courts bank of forms, but again, I think WLH provides a more guided experience, plus I don’t like to recommend forms if I don’t have to.

If the conviction resulted from a crime committed as a juvenile, the Washington Law Help packet mentioned in the sealing section is helpful.

Lastly, and though it’s beyond our focus here, WLH also has a Motion to Vacate packet for the civil side as well.

Expunge? And a broader view of the issue.

Whereas sealing and vacation have to do with altering or clearing legal records, expungement is the deletion of criminal records on the law enforcement side. This is handled exclusively by the Washington State Patrol- they have an FAQ and a form. From my understanding though, the only thing they will delete is non-conviction related data… which isn’t usually with what our users are concerned.

But this ties into a larger issue with these yet disjointed actions (sealing, vacating, expunging): you can’t seal records that led to a conviction, and Washington State Patrol will only delete non-conviction data… but vacation hand waves away convictions. So I’m left with the impression that if you vacate first, you can then fully seal and expunge the court and law enforcement records, because they’re not pointing to a conviction, right?

I’m not so sure. In an actual reference interview, the Washington Courts guide and the Washington Law Help articles are more than enough to get folks started, and they provide resources for next steps as well. My goal isn’t necessarily to personally educate people, but instead to provide resources (my having said this lets you mark off the center square in your Law Library bingo card), and these resources serve well.

What do?

If someone is totally lost in the process or has some barrier that is otherwise stalling them (perhaps a Class A Felony), and honestly in many other situations, it’s best to talk to an actual expert. And with this situation, there are several local groups that can guide people through this process:

Why go it alone? I think the combination of (1) The Washington Courts guide, (2) A relevant Washington Law Help article/form packet, and (3) these agencies, most everyone can clear their record, insomuch as that is possible.

 

 

FROM THE DIRECTOR: APRIL 2022

The Lies of Executive Order 9066

Barbara Engstrom, Executive Director, King County Law Library

February 19, 2022 marked the 80th anniversary of FDR’s signing Executive Order 9066, which authorized the forceable removal and incarceration of 120,000 Japanese Americans in concentration camps during World War II. Most of us were likely taught about the internment as part of our history curriculum in middle school or high school and read Korematsu in law school, but the full picture of how the internment came to fruition and the actual story behind how it came to be discredited is not as well known.

In order to help illuminate this history, the King County Law Library, in conjunction with the King County Bar Association, and the Asian Bar Association of Washington will present a free CLE with a screening of Alternative Facts: The Lies of Executive Order 9066 followed by a panel discussion with filmmaker Jon Osaki, King County Superior Court Presiding Judge Patrick Oishi, Professor Lori Bannai of Seattle University School of Law’s Korematsu Center, and moderated by Serin Ngai from Sound Family Solutions.

Filmmaker Jon Osaki’s documentary, Alternative Facts: The Lies of Executive Order 9066, takes an in-depth look at the legal rationale and evidence that undergirded the issuance of E.O. 9066 and Korematsu v. United States,1 the subsequent U.S. Supreme Court Case that upheld its constitutionality. Using historical footage, documents, and interviews, Alternative Facts covers the forces and players that brought E.O. 9066 into being, the work of researchers who uncovered evidence unmasking the manipulated record submitted to the Supreme Court in Korematsu, and the work of the attorneys pursuing coram nobis cases to vacate the convictions of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui.

For me, one of the most eye-opening aspects of the documentary was the role that then California Attorney General, gubernatorial candidate, and subsequent U.S. Supreme Court Chief Justice Earl Warren played in the internment. While, as a state official, he didn’t have direct impact on the decision to establish E.O. 9066, he campaigned on his support of removal of Japanese Americans from California, and as Governor advocated for not allowing interned citizens of California back into the state after their release.

Even after Warren became a civil rights icon for Brown v. Board of Education and other civil liberties cases, he never publicly disavowed his support of the wartime exclusion of Japanese Americans. In his memoirs, published posthumously, Warren did, however, express regret. 2  The most interesting figure of the film, however, is Aiko Herzig-Yoshinaga. An honors student, Aiko was called into her principal’s office in 1942 and told “You don’t deserve to get your high school diploma because your people bombed Pearl Harbor.”3 She quickly married her high school sweetheart to avoid being separated when they were forcibly removed from their homes and imprisoned.

By 1943, Aiko was 18 years old with a newborn baby and living 1,800 miles from her parents, who were imprisoned in Jerome, Arkansas. After the war and her release, she moved to New York and began working with anti-war protests and other activist groups including the Asian Americans for Action. This work and the people she met, including Japanese-American activist Michi Weglyn, spurred her to start thinking more critically about the injustice of her experience in the concentration camps. After remarrying and moving to Washington D.C., Aiko began researching in the National Archives to find out more about her family’s incarceration.

After first finding personal files — school, medical and other records related to her family’s time in camp — she was told of other government records concerning the wartime incarceration. “I started to examine those records, and they grabbed me,” she said in a 1997 interview. Joined by Jack Herzig, by then her husband, she dove into the vast web of documents recording the events leading up to the incarceration, implementing it and then defending it.4

Working independently, Aiko kept meticulous records of her findings, indexing connections between disparate documents. Because of the knowledge acquired during her independent research, when the Congressional Commission on Wartime Relocation and Internment of Civilians was created in 1981, Aiko was hired as a researcher.

A 1943 official War Department report by General John DeWitt provided the justification for the removal and imprisonment of Japanese Americans. During Aiko’s research she came across an unbound version of the DeWitt report with handwritten notes in the margins. Upon examining this report, Aiko soon recognized that this was DeWitt’s original report that countered the official rationale for internment. Another researcher, attorney Peter Irons, had been able to find other documents that showed that the War Department had suppressed evidence and insisted on revisions to DeWitt’s original report to push their justifications for internment, but all copies of the original report had been ordered to be destroyed. Aiko, however, had heard rumors that one copy had gone missing. Because of her meticulous knowledge of the archive, she immediately understood that this was the missing original report and understood its significance as a smoking gun.

Her finding became key evidence in the commission’s report, “Personal Justice Denied,” published in 1982 and ’83. It concluded that the “internment” was based on “race prejudice, war hysteria and a failure of political leadership.” (Herzig Yoshinaga pushed the commission, and later the public, to use the term “concentration camps” to describe the experiences of Japanese-Americans, a majority of them United States citizens, imprisoned without cause or trial, behind barbed wire, surrounded by watchtowers and armed guards.)5

The Personal Justice Denied commission report also had broader impacts. It was instrumental in President Ronald Reagan’s issuing an apology in 1988 which included reparations of $20,000 for each survivor. Aiko’s work also enabled Peter Irons and several co-counsel including Dale Minami and Don Tamaki to bring coram nobis cases to overturn the convictions of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui. The film features interviews with Peter Irons, Dale Minami, Don Tamaki, and several of the other attorneys who worked on the coram nobis cases. Our CLE panelist, Lori Bannai, was also one of the attorneys on the coram nobis team. A recent law school graduate at the time, she had the opportunity to work on the case of a lifetime.

Please join us for the screening of this powerful film and for what I’m sure will be an equally enlightening panel discussion on Friday, April 29 and May 6, 2022. For information about registering visit https://kcll.org/classes[1]at-the-law-library/classes/cles/.

1 323 U.S. 214 (1944).

2 See G. Edward White, The Unacknowledged Lesson: Earl Warren and the Japanese Relocation Controversy, 55 Virginia Quarterly Review (1979).

3 See Maggie Jones, Aiko Herzig Yoshinaga: From Deep in the Archives, She Brought Justice for Japanese Americans, New York Times Magazine (Dec 27, 2018) available at https://www.nytimes.com/interactive/2018/12/27/magazine/lives-they-lived-aiko-herzig[1]yoshinaga.html

4 Id.

5 Id.

FROM THE DIRECTOR: MARCH 2022

Wait! That’s Mine: Getting Stuff Back with Replevin

By Barbara Engstrom and Stephen Seely

For attorneys, replevin is likely not a question that comes across their desks very often. At county law libraries however, “How do I get my stuff back?” is asked with regularity. In order to help our patrons wend their way through this process, our intrepid Outreach Services Attorney, Stephen Seely created a self-help replevin packet. In this column, Stephen and I chat about all things replevin.

BE: Stephen, I know that creating the replevin self-help packet was a very involved process. Could you explain a bit about what replevin is and what it remedies?

SS: Replevin is the process used to get personal property back. If my neighbor has taken my lawnmower and won’t return it, I can sue him to determine who the rightful owner of the lawnmower is and I can use the replevin process to ask the court to give me temporary possession of the lawnmower until the ownership is determined at end of the case. (Or, if certain conditions are met, I can be declared the owner and get permanent possession using an expedited default judgment that is part of the replevin statute.)

BE: Are replevin cases heard in district court or superior court? I know that pro se litigants always want to use the small claims process. Is there any path to replevin via small claims court?

SS: Replevin cases can be heard in either district or superior court. The value of the personal property will decide which court you’ll end up in. (In District Court the value of the demand cannot be more than $100,000. In Superior Court the value of the demand must be at least $300.) Replevin isn’t available in small claims court.

BE: I was curious about the types of property that are the subject of replevin actions. I did a quick skim of the Washington replevin caselaw on Westlaw. There was a surprisingly wide variety of subject matter in the replevin suits including a Ferrari, stock certificates, drilling equipment, furniture suites, and stolen goods held by a pawnbroker. Granted, these are all cases that have made it up to the appeals level and tend to be higher value items. What subject matter do you most commonly see in your day-to-day work?

SS: I don’t see replevin very often, but when I do it’s usually pets. People generally decide that the time, effort, and expense of replevin isn’t worth it to recover their more common belongings. But, people seem to be ready to crawl through broken glass to get their pet back. The typical scenario is a couple who have been dating and living together are splitting up, there’s a dispute about who owns the pet, and the person who doesn’t currently have the pet wants possession of it.

BE: Could you give a quick overview of the replevin process in King County? Looking through the packet, it appears that several bonds are required to move the suit forward. Can you explain how and when the bonds come into play?

SS: Sure. The plaintiff files a lawsuit to determine ownership and recover the property. Then the plaintiff requests a show cause hearing on the issue of replevin and attaches a declaration explaining why the plaintiff should have temporary possession of the property. The Ex Parte Commissioner will decide if a show cause hearing will be held and issue the order to show cause. The show cause hearing will be held before your assigned trial judge.

At the show cause hearing the defendant will have to explain why they should keep temporary possession the property. Then one of three things happens: (1) the defendant keeps temporary possession of the property; (2) the plaintiff gets temporary possession of the property; or (3) the plaintiff gets a default judgment and permanent possession of the property.

With option one, the defendant keeps temporary possession the property and the case carries on like normal.

With option two, the plaintiff gets temporary possession of the property but will need to pay two bonds:

  • The first bond is called the replevin bond (a.k.a., a delivery bond). It’s claimable by the defendant if the plaintiff does not act promptly in concluding the case or the replevin was wrongfully requested. The court can waive this bond under certain circumstances listed in RCW 7.64.035(1).
  • The second bond is the Sheriff indemnity bond. It’s claimable by the Sheriff if the defendant later sues the Sheriff’s Office. The court cannot waive this bond.

The plaintiff then works with the Sheriff’s Office to have them seize the property and return it to the plaintiff. Once the plaintiff has temporary possession of the property, they complete their case to prove they are the true owner and get permanent possession of the property.

With option three, the plaintiff can get a default judgment under certain circumstances listed in RCW 7.64.035(3). This option finds the plaintiff to be the true owner of the property, gives the plaintiff permanent possession, and allows the Sheriff to seize the property and return it to the plaintiff. All in one nice concise source of legal authority.

BE: How does the valuation component of replevin work? Is compensation for the loss of use of the property available?

SS: Valuation can be one of the trickiest parts of a replevin case. It is important because the ballpark value of the bonds can be up to double the value of the property. But it can be very tricky to establish a reasonable value for some items (such as pets or sentimental heirlooms). People might turn to wholesale values, animal breeders, or start digging through their receipts in an effort to set a value.

Yes, damages are available for loss of use. RCW 7.64.035(3) provides for “[the value of the property] if possession cannot be obtained, damages, court costs, reasonable attorneys’ fees, and costs of recovery.”

BE: I know that you did a really deep dive into the replevin process. Were there any cases that you found intriguing?

SS: Intriguing might not be the right word, but I got a good chuckle when a court in Westchester County, New York, determined that when valuing a dog “depreciation is no factor at all; manifestly, a good dog’s value increases rather than falls with age and training.”1 Even if you can’t teach an old dog new tricks, they’re still a fantastic return on investment.

BE: Any last bits of sage wisdom for an attorney embarking on a replevin action?

SS: Yes, watch out for the re-delivery bond. There’s an optional bond called a re-delivery bond. It’s paid by the defendant to offset the plaintiff’s replevin bond and it allows the defendant to keep temporary possession of the property. It’s claimable by the plaintiff if the plaintiff wins the case and the defendant doesn’t give back the property or pay out the damages awarded to the plaintiff. The defendant can post a re-delivery bond up until the time the Sheriff’s Office hands the property off to the plaintiff.

BE: Thanks for that tour of all things replevin Stephen!

If you have questions on replevin or any other legal research issues be sure to contact the law library. You can email us at services@kcll.org. To find out more about the replevin packet or any of the other packets available from the King County Law Library visit our website https://kcll.org/forms-main/.

 

1 Stettner v. Graubard, 82 Misc. 2d 132, 133, 368 N.Y.S.2d 683 (N.Y. Town Ct. 1975).

Ross’ Ref Q’s – How do I sue the President?

We get a lot of reference questions at the King County Law Library.
The refrain goes that because we aren’t practicing attorneys, we can’t offer legal advice—as librarians, we can only offer resources.
That said, some questions are very interesting & inspire me to do some research of my own, collected here in this column. Don’t construe this as legal advice!

****************************************************************************************************************************************

Welcome to the first edition of my column, Ross’ Ref Q’s, wherein interesting KCLL reference questions are interrogated. I’ve only been with the law library for two years (a bulk of which was during our COVID shutdown), and as such I’m still somewhat green with legal reference—my previous library experience was in municipal and community college libraries. I love this job because I’m always learning, and here in this column, perhaps you will learn something too. Or perhaps you will be entertained by my unsophisticated research; I’ll take what I can get!

A goal of this column is to highlight questions that might be pertinent to KCLL users— though to get the ball rolling I’ve chosen a reference question that is slightly off the wall, but is asked often enough to warrant attention:

How do I sue the President?

What I love about this question, which is the most common phrasing, is that it blows right past “CAN I sue the President,” which is a somewhat more interesting and tricky question. As procedural questions go, though, the can does impact the how, as we’ll see.

This is also a question that has received a fair amount of interest recently. These publications are worth a read, however in treating this column like an actual reference interview, in which I tend to prefer treatises over online articles or posts, I’ll simply leave these hyperlinks embedded for your casual perusal.

My first thought was about personal jurisdiction. Presidents have been sued before, but were they being sued as The President, or as private citizens who happened to be the President.

Before digging into this question, I was aware of such concepts as sovereign immunity, so I sought out a treatise on the subject. I found Rotunda and Nowak’s Treatise on Constitutional Law-Substance and Procedure on Westlaw, which as a Thomson publication seemed authoritative enough. §7.3(b) deals with “Absolute Versus Qualified Immunity from Civil Damage Claims.”

“The President should have absolute immunity from damage actions for his official actions so that the threat of personal liability does not affect his official judgment”

§ 7.3(b) Presidential Civil Damages Immunity, 1 Treatise on Const. L. § 7.3(b)

Emphasis theirs. So I see this question splits into two parts: suing the President for official acts, and for unofficial acts.

Suing the President for official acts

To sue the President for his official acts, which if I had to hazard a guess would be the aim for most of our inquiring patrons, is a bit of a dead end. Rotunda & Nowak go on to say that the Court grants “absolute immunity from civil damages because of his official actions.” Evidently injunctions and subpoenas are still on the table, but damages are not.

I had pulled up an American Jurisprudence explainer on the Federal Tort Claims Act, thinking it would dovetail nicely into the “official” side of things, but FTCA §1346(b) specifically requires monetary damages. So that’s out.

With only injunctions and subpoenas on the table, the official side starts to become less interesting. I wanted a L&O-style cross-examination, with The President floundering under Jack McCoy’s dogged questioning!

Federal Rule of Civil Procedure 65 deals with injunctions, and the Federal Judiciary website has pro se injunction paperwork. The Federal Rules of Civil Procedure are bursting at the seams with rules about discovery & subpoena, so if the reference interview was going that way, I would pull out Wright & Miller Federal Practice and Procedure to offer Rules Practice resources.

Suing the President for unofficial acts

This side, which is by nature apolitical, is also less interesting. From here, because we’re suing the President for unofficial acts, it’ll follow standard channels for jurisdiction.

If you’re suing for damages pertaining to federal law and/or you’re asking for at least $75,000 in damages, it’ll land in Federal Court. The reference interview ends with that hyperlinked Pro Se guide for United States District Court, Western District of Washington. It includes links to forms and explains overall procedures.

Alternatively, if thresholds such as Washington’s “long arm” statute are met, the case could land in state court. For that, I recommend using KCLL’s Starting a Civil Lawsuit in Superior Court form packet! Sunglasses emoji!

Lastly

I recommend coming in to either KCLL location to access not only the resources mentioned here, but also the existing case law on suing the president, via Westlaw (did you know that KCLL has three Westlaw terminals in the Seattle location, and two in Kent?). There have been relatively few lawsuits against Presidents, so it is worthwhile to note the channels used previously.

Best of luck!

 

FROM THE DIRECTOR: FEBRUARY 2022

Open the Pod Bay Doors HAL

Barbara Engstrom, Executive Director, King County Law Library

While the public patron computers at the law library weren’t quite as old as HAL from 2001: A Space Odyssey, they were close. The law library’s first public computers were purchased for the grand opening of the Kent branch in the Regional Justice Center in 1997. It took a few years for Seattle to catch up but by 2000 the KCBA had donated a few PCs that were located on the Seattle service desk counter and had access to Westlaw, KCBA Deskbooks and CD-Law. Remember when we used to do case law research using CD-ROMs?

In 2002, the library was awarded a Gates Foundation grant to purchase computer equipment. Astoundingly, this was the last time that the law library was able to purchase new public patron computers.

“The 9000 series is the most reliable computer ever made. No 9000 computer has ever made a mistake or distorted information. We are all, by any practical definition of the words, foolproof and incapable of error.” – HAL 9000.

The grant enabled the law library to set up a technology training room where patrons could learn not only how to research the law on the newfangled Internet, but also learn about using Westlaw and other databases. We have a long-time public patron who often mentions that he has been trained on Westlaw and still has his Westlaw certificate (from a training class in the early aughts) to prove it. With the new computers, the law library moved forward on a bold new path of legal research technology. Without a tear shed, the CD-ROM method of case research soon became obsolete.

“I know I’ve made some very poor decisions recently, but I can give you my complete assurance that my work will be back to normal. I’ve still got the greatest enthusiasm and confidence in the mission. And I want to help you.” – HAL 9000.

The public patron computers most recently in use were installed in 2013 at the ripe old age of 7 after having outlived their useful purpose as law library staff computers. The law library managed to keep them ticking with gum and string for 18!! years but it was clearly only a matter of time before the wheels came off.

HAL 9000: “Hello Frank, can I have a word with you?

Frank Poole: “Yes, HAL, what’s up?”

HAL 9000: “It looks like we have another bad A.O. unit. My FPC shows another impending failure.”

New Computers at KCLL!

I can’t think of too many good things that have come out of the pandemic, but one silver lining was that the law library was awarded a $5000 grant from the American Recue Plan Act (ARPA) allocated for museums and libraries. The ARPA funding allowed the library to embark on a project to replace our

well-loved (realtor-speak for almost dead) public patron computers with brand new computers. As noted above, this is the first time we’ve been able to purchase new public machines since 2002.

While the ARPA grant enabled us to move the ball forward on replacing the public patron computers, it only covered a minor portion of the cost of replacing all the public PCs in both the Seattle and Kent branches. The bulk of the funding came from the generous support of the King County Law Library Foundation. To all of you who have donated to the KCLL Foundation, thank you!

A Very Special Thank You to Eric Long

I would like to make a special acknowledgement of a particular donor without whose generous support this long deferred project would not be possible. Eric Long, is a local CPA who attended several of our self-represented litigant workshops. As Eric has said, navigating the complexities of the legal system brings to mind his work on behalf of his clients with the IRS. He knows the difficulty that even educated people have navigating complex administrative structures and is keenly aware of how insurmountable representing oneself can feel to people who are not familiar with the legal system. Eric considers the staff, services, and workshops at the King County Law Library invaluable tools for shining a light in a dark tunnel of systemic injustice. As Eric notes, many people may assume that a donation to the law library goes to further enriching lawyers, in reality, however, much of the work of the law library that he has experienced revolves around helping the public to understand the legal process. “There is no justice until everyone has an equal playing field. So, I will continue to give to the law library.” We thank Eric for his incredibly generous donations to the library and his on-going support of our mission – Without access to information, there is no justice.

Come Say Hello

If you happen to be in either the Seattle or Kent courthouses and need to do some legal research on Westlaw, look up a jury verdict, use SupportCalc, or run a few quick prints please come by and say hello to our new computers. If you are still working remotely and have a legal research question, be sure to visit our website www.kcll.org or email us at services@kcll.org

While we’re incredibly happy to have our new computers up and running, after 18 years of (almost) uncomplaining service our relegated computers may have different ideas.

Dave Bowman: “Open the pod bay doors HAL”

HAL 9000: “I’m sorry Dave, I’m afraid I can’t do that.”

FROM THE DIRECTOR: JANUARY 2022

Fighting Word(s): Using Microsoft Word More Effectively in Your Law Practice

Barbara Engstrom, Executive Director, King County Law Library

There are certain documents that I find drafting on Microsoft Word unendingly frustrating. From unwanted autocorrections to automated formatting issues, it can often feel like a wrestling match to get a document properly formatted. I’m certain that most of you have similar experiences. In good news, there are techniques that can help you improve the efficiency of drafting legal documents on Word. Ross Zimmerman, our Outreach Services Librarian, teaches a CLE to help attorneys tame the beast that is Word and will share some tips in this column. Look for his upcoming CLE, Microsoft Word for Attorneys.

BE: Except for the brave souls trying to make do with Google Docs, it seems like most attorneys are already using Word for legal drafting. How are they doing it wrong?

RZ: Word is a great product, a very capable product—but many of its very helpful capabilities are hidden behind menus or are otherwise obscured. Technically you could just use Word as a simple word processor, like you might use Notepad or TextEdit. Alternatively, you could use Word as an advanced user, with specialized formatting and user-focused workflows. Is the former group’s usage wrong? Perhaps not, if all you need is text on a page. But most attorneys I work with want their documents to look a certain way but have deadlines and don’t want to futz around with Word for hours. And the important part is that advancing your Word skills isn’t hard, it just takes some time to dig through the menus and set the program up to meet your requirements. It’s an investment. Learning some advanced techniques (which really means understanding which functions are under which menu) now, will save you much more time later.

BE: You cover a lot of ground in the class. Give us a quick run-down of what you discuss.

RZ: It’s a lot to fit in an hour. I start with the Why – why bother? I already touched on that – but let’s just say it’s really about feeling some level of proficiency. Word used to make me feel like an idiot, and that’s not a good feeling. To get past that, my class centers on two aspects of a Word document: the formatting of the text and the formatting of the document itself. For the latter piece, we look at how documents are saved, and how they can be saved in other formats. Many people don’t know that Word can be used to edit PDF documents. So, there’s that technical side, as well as concepts like metadata. Word documents contain information about the amount of time you’ve worked on it, about the author, and other information that you might not want shared. There are ways to remove or edit metadata. The other portion of the class is formatting the text of your document: using the “Styles” functionality to easily template out your work. Styles unlocks instant tables of contents and tables of authorities. This sounds like a lot, I know, but you’ll see that it’s simply a matter of clicking your mouse a few times.

BE: What are the top three techniques that you recommend attorneys immediately start using on Word.

RZ: I already mentioned Styles but that is my #1 technique. Styles makes it very easy to make documents look the way you’d like. I don’t want to think about the dozens of hours of my life I’ll never get back because I was stuck in the weeds formatting Word documents, when I could have been using Styles to streamline my processes. Another technique that I touch on in the class is using key commands to make certain tasks more expedient. Off the top of my head, holding down Ctrl and K lets you insert a hyperlink. Holding down Alt and then typing 21 inserts the section symbol (§). Then there’s also a handy button to make your text ALL CAPS, Sentence casing, or Capitalize Every Word. Lastly, this might be cheating since it’s not really a technique per se, but what’s crucial is having a desire to understand. I spent years wandering in the wasteland of Word complacency, just scraping by, and making documents that were just serviceable. But once I buckled down and spent a few hours understanding why the program functions as it does, I’m all the better for it. You can understand Word!

BE: Are there resources either in print or online that you would recommend for attorneys to learn more about using Word effectively?

RZ: In crafting this CLE webinar, I used a book series called The Lawyer’s Guide To Microsoft Word (available at both KCLL locations) and the very thorough Help & Learning website provided by Microsoft. Truthfully though, in my own life I’ve relied on a lot of YouTube videos. If you’re having a particular issue with Word, or if you want it to do something unique, the Good News/Bad News is that none of us are that unique, someone else out there has already had that problem, and they’ve already made a How To video on YouTube! I’ve also heard of a local law library that offers compelling CLE webinars — that sounds immensely helpful…

BE: Nice one Ross – I’ll take that as a hint to plug your upcoming Microsoft Word for Attorneys CLE which will be offered as a webcast on February 15th. For more information on the class or to register go to https://kcll.org/classes-at-the-law-library/classes/cles/

As always, if you need more information on using Word, CLEs, or any other legal research issue, feel free to contact the King County Law Library at services@kcll.org.

FROM THE DIRECTOR: DECEMBER 2021

What’s that Sound? An eBook Explosion at KCLL!

Barbara Engstrom, Executive Director, King County Law Library

During the past year, the law library has made a big push to transition some of our collection to eBooks available for remote access. Because of the popularity of the first round of eBook acquisitions, we recently doubled the amount of eBook content available. We currently have a couple of different eBook platforms. Our main platform is Lexis Digital which is where you’ll find all your favorite Lexis/ Mathew Bender treatises along with content from the ABA, the WSBA, and the KCBA. In addition to Lexis Digital, we also have eBook content for legal practitioners from Wolters Kluwer and the National Consumer Law Center. Here’s a look at what’s available, starting with Lexis Digital.

Lexis Digital

Primary Law

For federal primary law, we have the United States Code Service (USCS) Lexis’s annotated code. For Washington, we have the Annotated Revised Code of Washington (ARCW) and the Washington Rules of Court Annotated. In addition to substantive law, you’ll find references to related cases, statutes, regulations, law review articles, and other secondary sources. Even if you have Westlaw access for primary law, you may want to take a look at the annotated codes and court rules on Lexis Digital, you’ll be surprised at the lack of overlap between the Lexis and Westlaw results.

WSBA Deskbooks!

A very exciting acquisition is the WSBA Deskbook collection. Lexis and the WSBA recently partnered to offer the deskbooks as true eBooks. While electronic versions of the desk books were available in the past via Casemaker, the Lexis Digital version allows full eBook functionality including highlighting, adding annotations, and downloading customized content. The following titles are currently available

  • Estate Planning, Probate, and Trust Administration in Washington
  • Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws
  • Shareholder Litigation in Washington State
  • The Law of Lawyering in Washington
  • Washington Appellate Practice Deskbook
  • Washington Business Corporation Act (RCW 23B) Sourcebook
  • Washington Civil Procedure Deskbook
  • Washington Community Property Deskbook
  • Washington Construction Law Deskbook
  • Washington Law of Wills and Intestate Succession
  • Washington Legal Ethics Deskbook
  • Washington Partnership and Limited Liability Company Deskbook
  • Washington Real Property Deskbook Series

You may be wondering why the Family Law Deskbook and the Washington Motor Vehicle Deskbook trio (Accidents, Accident Litigation, and Accident Insurance) aren’t included on the list. Lexis is in the process of updating those sets and will have them available early in the new year.

Washington Practitioner Resources

In addition to the WSBA Deskbooks, we have a lot of other great Washington specific resources. We have the full set of the KCBA’s Washington Lawyer’s Practice Manual (WLPM). For greater accessibility, the WLPM is available for download by chapter. We also have the following.

  • Defending DUIs In Washington
  • Employment in Washington
  • The Law of Evidence in Washington
  • New Appleman Washington Insurance Law
  • Washington Business Entities: Law and Forms
  • Washington Civil Discovery
  • Washington Criminal Law
  • Washington Family Law
  • Washington Guardianship Law
  • Washington Insurance Law
  • Washington Marijuana Laws and Regulations
  • Washington Pretrial Civil Procedure
  • Washington Probate and Estate Administration
  • Washington Real Estate Litigation
  • Washington State Environmental Policy Act
  • Washington Torts and Personal Injury
  • Washington Trial and Post-Trial Civil Procedure

Gold Standard Treatise Sets

We also upped our treatise content and have acquired several new gold standard treatise sets. These sets, which cost thousands of dollars to purchase and maintain, are now available to you anytime of the day or night at the convenience of your home or office.

  • Moore’s Federal Practice
  • Weinstein’s Federal Evidence
  • Current Legal Forms
  • Benders Forms of Discovery
  • Corbin on Contracts
  • Powell on Real Property
  • Collier on Bankruptcy
  • New Appleman on Insurance
  • Page on Wills
  • Bender’s Immigration & Nationality
  • Nichols on Eminent Domain
  • Benedict on Admiralty

Subject Matter Areas

We’ve also beefed up our holdings in several different practice areas including (but not limited to):

Criminal Law

  • Constitutional Law
  • Courtroom Criminal Evidence
  • Criminal Law Deskbook
  • Criminal Practice Handbook
  • Federal Habeas Corpus Practice and Procedure
  • Mental Disability Law: Criminal and Civil
  • Police Civil Liability
  • Pretrial Motions in Criminal Prosecutions
  • Prosecutorial Misconduct
  • Search and Seizure
  • Sexual Assault Trials

Litigation

  • Civil Rights Actions
  • Cross-Examination
  • Electronic Discovery & Evidence
  • Fundamentals of Damages in Tort Actions
  • Personal Injury: Actions, Defenses, and Damages
  • Punitive Damages
  • What It’s Worth

Labor & Employment

  • Employee Rights Litigation
  • Employment Libel and Privacy
  • Labor & Employment Law

Real Property

  • Clark on Surveying and Boundaries
  • Condo Law & Practice
  • Practical Guide to Landowner Disputes

How to Access KCLL’s Expanded Lexis Digital eBook Collection

If you are already a subscriber to KCLL, you can find the Lexis Digital Library via our Remote Database page https://kcll.org/remote-databases/ You’ll just sign on using your email address on file with your subscriber account. If you are not a subscriber but would like to start accessing the eBook bounty, learn more about the benefits of our subscriber program and join at https://kcll.org/join-kcll/ The default checkout period for eBooks is 7 days and is for 5 books at a time. Early return of a book will free up an allotted checkout.

Are You A King County Public Defender, Prosecutor or Judge? Get Special Access to Lexis Digital

If you are a judge in King County or work for the King County DPD or PAO and have a kingcounty.gov email address, contact us about complementary access to the Lexis Digital eBook collection. services@kcll.org

Wolters Kluwer/ VitalLaw a/k/a Cheetah

If you’ve followed this column in the past or have looked for remote databases on KCLL’s website you may be wondering where the Cheetah database went. Never fear, it is still available, but under a new name. Wolters Kluwer recently (and without much notice) rebranded Cheetah as VitalLaw. A rose by any name will still smell as sweet and so does the VitalLaw content which includes:

  • Administrative Law Treatise
  • Antitrust Law
  • Bromberg & Ribstein on Partnership
  • Drafting Limited Liability Company Operating Agreements
  • Drafting Prenuptial Agreements
  • Drunk Driving Defense
  • Elder Law Answer Book
  • ElderLaw Forms Manual
  • Employee Dismissal Law & Practice
  • Law of Lawyering
  • Law of Restitution
  • Motions Practice
  • Scott & Ascher on Trusts
  • Special Needs Trust Handbook

National Consumer Law Center

The treatise collection from the National Consumer Law Center is also available in eBook format for remote access. These were some of our most heavily circulated items in the before times. You’ll find the following on the NCLC database:

  • Debtor Rights
  • Fair Debt Collection
  • Consumer Bankruptcy Law and Practice
  • Student Loan Law
  • Repossessions
  • Access to Utility Service

Mortgages & Foreclosures

  • Mortgage Lending
  • Mortgage Servicing and Loan Modifications
  • Home Foreclosures

Credit & Banking

  • Fair Credit Reporting
  • Truth in Lending
  • Consumer Credit Regulation
  • Credit Discrimination
  • Consumer Banking and Payments Law

Deception & Warranties

  • Unfair and Deceptive Acts and Practices
  • Federal Deception Law
  • Automobile Fraud
  • Consumer Warranty Law

Consumer Litigation

  • Collection Actions
  • Consumer Class Actions
  • Consumer Arbitration Agreements
  • Consumer Law Pleadings

How to Access KCLL’s Wolters Kluwer/ VitalLaw and National Consumer Law Center Databases

You do not have to be a subscriber to access either of these databases. For Vital Law you’ll need to sign up for a guest registration and get a library card number. For the National Consumer Law Center database just follow the prompts for the log on information. https://kcll.org/remote-databases/

Wait, I Like Print Books! Does KCLL Still Have Those?

Good question, thanks for asking! Yes, all of the books and treatise sets mentioned in this article are available in both print and eBook format. Print books are available for in-library use for all KCLL patrons. Subscribers are welcome to check out the print volumes for the standard two-week check-out period.

Have Suggestions or Questions? Need Help?

Let us know if there are titles that you’d like to see added to our eBook collection. At this point we are limited to titles from LexisNexis/Matthew Bender, Wolters Kluwer, and the ABA, but we’d love to hear what’s on your wish list. If you have questions about our eBook collections or any of the databases or resources mentioned feel free to contact the law library at services@kcll.org. We’re happy to answer questions about eBooks, print books, or on any other law-related topic.

FROM THE DIRECTOR: NOVEMBER 2021

Ransomware Attacks and Your Practice

Barbara Engstrom, Executive Director, King County Law Library

Ransomware attacks on Colonial Pipeline, JBS (the world’s largest meat processing plant), and various hospitals and schools became major news stories over the last year. Law firms were no strangers to cybersecurity risk either. The first well-publicized law firm attack was on DLA Piper in 2017. In early 2020 five law firms were attacked in short order, with three firms hit in a 24-hour period in February.¹ There were high profile attacks at the New York firm of Grubman, Shire, Meiselas & Sack in May of 2020, the Chicago firm Seyfarth Shaw in October of 2020 and as recently as this July, Campbell Conroy & O’Neil was attacked.² Of course, these are the attacks that received media attention; presumably many more were never reported or went under the media radar.

My assumption has always been that large law firms are the main targets for ransomware attacks. The findings from the Q1 2021 Coveware Quarterly Ransomware Report had some very troubling statistics conveying that is not the case. The Coveware report delivered a grim cybersecurity assessment for the current small and medium law firm model.

The most notable change in industries impacted by ransomware attacks in Q1 was the Professional Services industry, specifically law firms. Small and medium sized law firms continue to succumb to encryption ransomware and data exfiltration extortion attacks. (Emphasis added.) Unfortunately, the economics of many small professional service firms do not encourage or enable adequate cyber security.³

According to the report, in the first quarter of 2021 the average ransom payment was $220,298 (an increase of 43% from Q4 2020), and the median ransom payment was $78,398 (an increase of 59% from Q4 2020). The threat by hackers to release stolen data increased to 77%, a 10% change from Q4 2020. The average downtime was 23 days, also a 10% increase from Q4 2020.

Attack Vectors

For small and medium law firms, vulnerabilities associated with Remote Desktop Protocols (RDP) and phishing emails were by far the largest attack vectors. While the switch to remote work opened law firms up to new paths of exposure, 86% of ransomware attacks still begin with a person clicking on a virus-laden email.⁴ Other attack vectors included passwords that were insufficiently strong, software that was not updated, and insufficient cybersecurity training and audits.

Ethics Considerations

In addition to the business operations and reputational harm that ransomware attacks cause for any business, lawyers are subject to the additional burden of potential ethics violations. In their 2019 report on cybersecurity, the ABA delineated several RPCs implicated in a cybersecurity breach. The report notes that Comment 8 to the competency requirements of Model Rule 1 clearly requires competency in cybersecurity. “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” The report also notes that with much client communication done through email, Model Rule 1.4’s requirement to keep clients reasonably informed would require that the channels of communication are secure. The report also points out the cybersecurity implications of Model Rule 1.6’s requirement to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”⁵

The report also discusses two relevant ethics Opinions. ABA Formal Opinion 477, which discusses special security precautions to protect against the inadvertent or unauthorized disclosure of client information, lists seven factors to consider when determining the appropriate level of cybersecurity: (1) the nature of the threat; (2) how confidential client information is stored and sent; (3) the use of reasonable electronic security measures;(4)how electronic communications should be protected; (5) the need to label client information as privileged and confidential;(6) the need to train lawyers and nonlawyer assistants, and (7) the need to conduct due diligence on vendors who provide technology services.⁶

ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 483, “Lawyers’ Obligations After an Electronic Data Breach or Cyberattack,” (October 17, 2018) states “the potential for an ethical violation occurs when a lawyer does not undertake reasonable efforts to avoid data loss or to detect cyber-intrusion, and that lack of reasonable effort is the cause of the breach.” The opinion further states that “As a matter of preparation and best practices, however, lawyers should consider proactively developing an incident response plan with specific plans and procedures for responding to a data breach.”⁷

Advisability/ Legality of Ransomware Payments

After being forced to shut down its operations, Colonial Pipeline paid a $4.4 million ransom (though they later were able to recover $2.3 million of the Bitcoin payment). JBS paid an $11 million ransom as the domino effects of the attack rattled the meat processing and restaurant industries.

While there may be situations where paying a ransom is the least bad option, many cybersecurity experts take a very dim view of that choice. The Coveware Q1 2021 report had an interesting take:

Over hundreds of cases, we have yet to encounter an example where paying a cyber criminal to suppress stolen data helped the victim mitigate liability or avoid business / brand damage. On the contrary, paying creates a false sense of security, unintended consequences and future liabilities. Coveware’s position remains unchanged and we advise victims of data exfiltration extortion to assume the following:

      • The data will not be credibly destroyed. Victims should assume it will be traded to other threat actors, sold, misplaced, or held for a second/future extortion attempt.
      • Exfiltrated data custody was held by multiple parties and not secured. Even if the threat actor deletes a volume of data following a payment, other parties that had access to it may have made copies so that they can extort the victim in the future.
      • The data may be deliberately or mistakenly published before a victim can even respond to an extortion attempt.
      • Complete records of what was taken may not be delivered by the threat actor, even if they explicitly promise to provide such artifacts after payment.⁸

While laws such as the Computer Fraud and Abuse Act and the Foreign Corrupt Practices Act touch on some of the issues involved in ransomware payments, there is no overarching statute that bans payment of ransom for a cyberattack. There is movement on both the federal and state levels to create legislation to ban ransomware payments. New York (Senate Bill 6806A), North Carolina (House Bill 813), Pennsylvania (Senate Bill 726) and Texas (House Bill 3892) all considered legislation that would prohibit the payment of ransom.⁹ Those who oppose legislation maintain that banning payments may cause unforeseen problems and do more harm than good to the victims. Legislative bans may also incentivize not reporting cyberattacks to law enforcement, potentially leading to further extortion.¹⁰

Cyber Liability Insurance

According to the ABA 2020 Cybersecurity Report survey, the number of firms investing in cyber liability insurance is steadily increasing. 36% of survey respondents reported carrying cyber liability insurance in 2020 which is up 10% from 2017. Interestingly, firms in the 10-49 attorney range reported a higher percentage of coverage (40%) than firms with 100+ attorneys (38%). 36% of firms with 2-9 attorneys and 33% of solo attorney reported coverage.¹¹

As with all insurance, the devil is in the policy details, but ransomware attacks have layers of complexity and may have repercussions that are not immediately discovered or covered. “Cyber liability policies generally require prompt notice. Most also require consent before engaging incident response and security firms as well as other professionals and vendors needed to respond to the attack and restore the company’s network. And many (but not all) cyber liability policies require prior consent to make a ransom payment.” ¹²

Best Practices for Law Firm Cybersecurity

So, what can you do to protect your firm from ransomware attacks? A recent roundtable discussion of the impacts of the Microsoft hack on law firms suggested the following:

Create a security-first mindset – “While top-down mandates from management are an important component, the entire environment should be one that recognizes the preeminent importance of stressing to the entire organization that security of the clients’ data is a key component of a professional, confidential relationship.”

Establish safety protocols for transferring files – “Each transfer is a potential point of vulnerability that requires a secure method to prevent unauthorized access.”

Create and maintain an ongoing security process – “Fundamentally, law firms need to assess the state of their cybersecurity program, create a remediation plan to close any gaps, execute that plan and then repeat this process on at least an annual basis. Cybersecurity is process-oriented, and requires management to make it a priority to keep the firm—and the firm’s clients—as reasonably safe as possible.”

Cover the Model Rule 1.6 basics – “Such reasonable steps include using current virus and malware scanners and firewalls, regularly installing patches and updates, using cryptographically strong passwords, routinely replacing default passwords on networks, avoiding risky software downloads from the Internet, eschewing the use of public cloud providers or file-sharing services for sharing documents, avoiding the use of web-based email services and public Wi-Fi, and training employees to recognize deception (“phishing”) attacks.”¹³

The Law Library is Here to Help

If you’d like to learn more about the legal implications of ransomware attacks on law firms, the law library has databases and resources to help. Feel free to reach out with questions on this or any other topic at services@kcll.org

References

1 See AJ Shankar, Ransomware Attackers Take Aim at Law Firms, Forbes (Mar 12, 2012) available at https://www.forbes.com/sites/forbestechcouncil/2021/03/12/ransomware-attackers-take-aim-at-law-firms/?sh=49af643aa13e

2 See AJ Shankar, Ransomware Attackers Take Aim at Law Firms, Forbes (Mar 12, 2012) available at https://www.forbes.com/sites/forbestechcouncil/2021/03/12/ransomware-attackers-take-aim-at-law-firms/?sh=49af643aa13e See also Brian Fung, Ransomware Hits Law Firm with Dozens of Major Corporate Clients, CNN Business (July 19 2021) available at https://www.cnn.com/2021/07/19/tech/ransomware-law-firm/index.html

3 Coveware Quarterly Ransom Report, Q1 2021, Ransomware Attack Vectors Shift as New Software Vulnerability Exploits Abound. (April 26, 2021) available at https://www.coveware.com/blog/ransomware-attack-vectors-shift-as-new-software-vulnerability-exploits-abound#companies

4 See Jim Ash, Prepare Now to Thwart Ransomware Attacks, Florida Bar Journal (Jun 28, 2021) available at https://www.floridabar.org/the-florida-bar-news/prepare-now-to-thwart-ransomware-attacks/

5 See John G. Loughnane, Techreport 2019: 2019 Cybersecurity (Oct 16, 2019) available at https://www.americanbar.org/groups/law_practice/publications/techreport/abatechreport2019/cybersecurity2019/

6 Id

7 Id

8 Id at 3.

9 See Cynthia Brumfield, Four States Propose Laws to Ban Ransomware Payments, CSO Spotlight (Jun 28, 2021) available at https://www.csoonline.com/article/3622888/four-states-propose-laws-to-ban-ransomware-payments.html

10 See Alvar Maranon & Benjamin Wites, Ransomware Payments and the Law, LawFare (Aug 11, 2021) available at https://www.lawfareblog.com/ransomware-payments-and-law

11 See John G. Loughnane, Techreport 2020: 2020 Cybersecurity (Oct 19, 2020) available at https://www.americanbar.org/groups/law_practice/publications/techreport/2020/cybersecurity/

12 See Ashley Jordan and J. Andrew Moss, Don’t Make the Cure Worse Than the Disease: Tips for Securing Prompt Insurance Recovery of Ransomware Losses, Reuters Legal News Beta (Sep 1, 2021) available at https://www.reuters.com/legal/legalindustry/dont-make-cure-worse-than-disease-tips-securing-prompt-insurance-recovery-2021-09-01/

13 See Nicholas Gaffney, How Microsoft’s Data Breach Impacts Law Firms (and Their Clients), Law Practice Today (Jun 15, 2021) available at https://www.lawpracticetoday.org/article/how-microsofts-data-breach-impacts-law-firms-and-their-clients/