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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!

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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/

FROM THE DIRECTOR: OCTOBER 2021

Keeping Up with the Law Librarians

Barbara Engstrom, Executive Director, King County Law Library

Yes, Keeping up with the Kardashians has been cancelled, but never fear, the law library has you covered for the newest trends (at least in law library land.) As we transition into fall, it’s a good time to update you on the latest happenings at the King County Law Library.

The Law Library Foundation Board is Expanding – We are Recruiting Board Members – Join Us!

One of the principal missions of the law library is to facilitate innovative ways to engage with the community. Our SRL Workshop partnerships with SPL and KCLS have taught us that many of those with legal needs have an initial point of contact at public libraries and then are referred to the Law Library. The new Foundation-provided laptops will allow staff to do outreach more effectively in the public libraries and throughout the community as things begin to reopen. We are hoping to create a program where KCLL librarians “ride the circuit” of public libraries in King County to offer legal research assistance at regularly scheduled times.

Another area of interest is spearheading a county-wide legal kiosk project similar to the Minnesota Legal Kiosk project. https://www.legalkiosk.org/about The Foundation envisions legal-help kiosks being placed around King County at community locations hosted by sponsor organizations. Currently, we are projecting two primary applications for the kiosks. The first application will facilitate retrieval of forms and self-help resources at community access points that are easily accessible. The second will create private, virtual connection points for contact with legal aid attorneys, courts, and other legal services providers to eliminate barriers for those without reliable access to transportation or technology.

The KCLLF Board of Directors is expanding and transitioning to a working board. We are looking for new board members excited about advocacy, equity, diversity, building community engagement and fundraising. The Board of Directors currently meets quarterly over Zoom, though we anticipate returning to in-person meetings in the future. Prior board service is not required to apply. Applications will be accepted on a rolling basis.

If you are interested in serving, please forward a current resume and a brief statement of interest to KCLLF Executive Director Kristie Thompson thompsonk@kcllfoundation.org.

Remote Access to WSBA Deskbooks on Lexis Digital — Subscribers

Our e-Book selection on Lexis Digital continues to expand. The WSBA recently partnered with Lexis Digital to offer the suite of WSBA Deskbooks and that collection is now available to subscribers via https://lexisdl.com/library/kcll/ In addition to the Deskbooks, we’ve also expanded our Lexis eBook treatise collection. If there are any Lexis, ABA, or other titles that you would like the library to add to our collection, let us know and we will check on availability.

To find out about becoming a subscriber visit https://kcll.org/services/subscribe/

All Lexis Digital content is available for in-house use at the law library for all KCLL patrons in eBook or print format.

Remote Access to Legal Treatises on Cheetah/ Wolters Kluwer – Free to All KCLL Patrons

While remote access to the Lexis Digital collection is limited to subscribers, our Wolter’s Kluwer treatises are available for free to all KCLL patrons. You will find some of our most heavily borrowed titles including Scott and Asher on Trusts, the Law of Lawyering, the Administrative Law Treatise, and Areda & Hovenkamp’s Antitrust Law.

Our Wolter’s Kluwer treatise collection can be accessed via our Cheetah database. When you register with the law library as a Guest, you will receive at library card number that will allow you to access Cheetah. For more information on registering as a Guest visit https://kcll.org/join-kcll/

Researchers at Your Service — Let Us Do Your Research

For those in the know, the law library’s Let Us Do Your Research service is one of the best deals in town. For solo and small firm attorneys, it’s like having an on-demand, low-cost research assistant who comes armed with tens of thousands of dollars of legal research resources.

Subscribers submit research projects to us through our website. The first fifteen minutes of research is free as our staff reviews the request and determines: 1) if the question(s) fall within the scope of our expertise and our information resources; and 2) if we can meet the request deadline. Once we determine that the question meets these parameters, the subscriber decides if it makes sense to use the service and how much time she would like us to spend. The current rate for approved Let Us Do Your Research projects is $100 per hour, charged in 15-minute increments. Our researchers will limit the amount of time spent on the question to the predetermined amount. If the question takes less time than projected, we only charge for the time spent on the project. Subscribers receive a detailed research memo that includes references to the resources used, summaries of relevant caselaw as well as the full text of cases relied on in the research memo. This service is available only to subscribers.

Here’s what some of our Let Us Do Your Research service users have said:

I presented a fairly complicated question and didn’t want to spend my time down the rabbit hole. I wanted a pro to help me avoid the hours I would have taken to get to first base. I got a call a day after I sent the question from a gentleman who asked perfect questions and engaged in a fruitful and interesting back and forth on the issue. Three days later I got a clearly written road map memo that got me where I needed and then some. Overall great experience. Thank you, money well spent.

Very helpful! The problem with being an older attorney sometimes is I forget about other potential legal avenues I might pursue. In this case your research reminded me of Restatement of Judgments 2nd which gave me an excellent argument to hopefully defeat collateral estoppel

This is great and exactly what I was hoping for. As a solo practitioner who has zero staff, this type of assistance is invaluable. Thank you, again!

Making it Easier to Get What You Need Remotely — 5 Free Document Deliveries Per Month

We know that coming to the courthouse can be stressful in the best of times and is even more so in the middle of this pandemic. To make it easier to use the law library remotely we offer subscribers 5 free document deliveries per month. This can be a case, a section of a treatise, a law review article, or any

other document we have in our collection. We’ll shoot you a copy of the requested material over email. For non-subscribers, document deliveries cost $25 per document.

A Room of One’s Own — Conference Room Reservations

Many of you appreciate having a private, quiet place to use as a base of operations during trial or to strategize over the lunch break. Now that trials are starting to pick up our rooms our starting to book out into the next few months. Be sure to plan well in advance if you would like to reserve a conference room.

Law library subscribers get discounted rates on the use of the law library’s conference rooms. The rate for subscribers is $20/hr and for non-subscribers is $35/hr. Reservations are generally for the lunch period which runs from 11 a.m. – 1:30 p.m. or all day which runs from 8 a.m. – 4:30 p.m. Visit https://kcll.org/services/reserve-a-conference-room/ to find out more

What’s New with You?

Have a suggestion for a book/topic area you’d like to see in our collection? Would you like to teach a CLE or a workshop for pro se litigants? Do you have an idea for a new service that the law library could provide? Let us know. Reach out the to law library at services@kcll.org.

From the Director: August 2021

Climate Change and Your Law Practice

Barbara Engstrom, Executive Director, King County Law Library

In the past, a climate change practice might have been primarily limited to environmental laws dealing with technical, regulatory aspects of carbon emissions. The collapse of the Surfside condominium tower, the “heat dome” that brought Las Vegas-level temperatures to Seattle, and the shroud of wildfire smoke that increasingly envelopes the Puget Sound each summer are all stark reminders that the effects of climate change are pervasive and are already impacting virtually every practice area.

It was less than a decade ago that the ABA began the push for rules requiring a duty of technological competency for attorneys. Who would have imagined that in 9 short years that we would be at the point where attorneys working from home and remote court operations would become the norm? To illustrate how quickly regulation can fall behind practice norms, there are 11 states that still do not have a requirement for attorney technology competence, with California only recently approving their rule in February 2021.1

With the increasing speed and compounding effects of climate change, a duty of climate competency for attorneys may be the next attorney competency on the horizon. The ABA has already begun to lay the groundwork with Resolution 111 passed in 2019 which concluded with the exhortation to attorneys to “advise their clients of the risks and opportunities that climate change provides.”2

Within law schools there is an emerging recognition of the need for integration of climate-related instruction beyond niche environmental law seminars and into the core curricula. 3 This goes hand-in-hand with the understanding that attorneys already in practice will increasingly be called upon to provide climate-competent representation regardless of their practice area.4 The following practice areas offer a sampling of what climate change will have in store for attorneys. In good news, there are tools and resources currently being developed that will help attorneys transition to climate-competent representation.

Rising Seas & Coastal Law

Almost every article discussing the Surfside condominium collapse poses the question whether climate change played a role. Regardless of the cause of the collapse in that instance, saltwater intrusion from rising sea levels and severe and frequent storms surges are certainly taking a toll on coastal properties both around the world and closer to home in Washington State. Accretion and subsidence of beach profiles will affect not only the associated property lines but will also impact intertidal aquaculture and coastal freshwater aquifers.5 Part of an attorney’s due diligence for these types of issues will likely involve tracking sea level rise projections for affected properties or industries. Resources like the Washington Coastal Hazards Resilience Network will help attorneys understand sea level rise projections along with risk reduction strategies. https://wacoastalnetwork.com/

Corporate and Securities Law

Corporate

For years corporate involvement in climate-related issues was often relegated to lip-service proclamations that did little other than greenwash a business-as-usual approach. With the acceleration of climate-related litigation however, corporate attorneys are having to reassess exposure as more litigants are choosing to sue corporations for climate impacts rather than focusing primarily on governments.

The key areas of concern for corporate lawyers have been in legal risks from clients, shareholders, consumers and, increasingly, developing government legislation.

But lawyers are increasingly embroiled in avoiding or dealing with the results of transitional risks, notably that of stranded assets, where poor investment decisions on long-lived assets can lead to liability during their lifetime. These transitional risks arise, for example, when greenhouse gas emission limits are tightened in line with climate science, leading to costly upgrade or closure, when a given carbon-intensive or renewable energy technology becomes obsolete and when coastal developments become uninsurable as they are ill-equipped to withstand rising sea levels, storms and flooding. Investors are asking more questions, becoming more activist, and there is growing pressure to divest from carbon-intensive assets. 6

Securities

As financial regulators continue to study the issue and determine how to address impacts of climate change, companies are forging ahead with their own risk/opportunity analysis and disclosure protocols at the behest of investors who want more and better information regarding the effects of climate change on financial assets. These voluntary measures are impacting the course of regulation. Harvard’s Energy and Environment Law Program has a Financial Regulator Climate Action Tracker that monitors developments at various regulatory agencies to update the emerging regulatory landscape. They also have a continually updated Timeline of Investor and Bank Use of Climate Information to give a bird’s eye view of the impact of climate information at financial entities over the last few years.7

Columbia Law School’s Sabine Center for Climate Change Law also has several interesting resources for adapting to climate change for businesses and investors, including Legal Tools for Climate Adaptation Advocacy: Securities Law. 8 The Congressional Research Service Report, Climate Change Risk Disclosures and the Securities and Exchange Commission (April 20, 2021) is also worth a read. https://crsreports.congress.gov/product/pdf/R/R46766

Contract Law

A major component of climate-competent representation involves contract drafting. Climate-conscious contracting helps attorneys manage foreseeable risks, remain in compliance with climate regulations, and respond to consumer demands for climate action. The Climate Contract Playbook, a fantastic, free resource makes this drafting much easier. The Playbook is product of the Chancery Lane Project, https://chancerylaneproject.org/ a world-wide, collaborative effort of attorneys to develop contract language to address climate change issues. The Playbook includes model contract clauses organized by industry and glossary entries to assist in drafting climate-aligned contracts. The industries covered include corporate, insurance, real estate, construction, employment, and litigation & arbitration among others.9

Insurance Law

As climate change-related wildfires, hurricanes, and other natural disasters continue to increase in frequency and intensity, the impacts are felt not only in the immediate environs but have collateral impacts that affect supply chains, energy markets, and local economies. As more of these events occur, insurance rates will rise, and as insurance rates become less affordable, rates of private insurance will go down, potentially leaving states and local governments left holding the bag.

The impact of wildfires on the insurance market seems to be a bellwether for the industry. Generally, homeowner’s insurance covers wildfire loss. However, in many wildfire prone areas, insurers are cancelling existing policies or refusing to insure in the first place, which can impact mortgages. Taking mitigation measures can sometimes help get insurance reinstated but the issue is also causing many to question whether municipalities need to start declaring highly prone wildfire areas off limits to new development.10

Current, standardized insurance models will soon be outstripped by climate-related events and their corollary impacts. The book Climate Change and Insurance11 is available for checkout at KCLL and will help attorneys understand the intersection of climate change and insurance, especially with regard to general commercial liability, directors & officers liability, professional liability and renewable energy-related policies along with other potential liability and exposure drivers.

Conclusion

The aforementioned represent the tip of the (melting) iceberg of practice areas impacted by climate change. For more information on how you can prepare for climate-competent representation, check out the multitude of resources at the King County Law Library. Be sure to use our remote resources from the comfort of your home or office. www.kcll.org. As always, if you need assistance on the or any other topic, please feel free to contact us at services@kcll.org.

 

1 See Bob Ambrogi, California Becomes the 39th State to Adopt Duty of Technology Competence, (March 24, 2021) https://www.lawsitesblog.com/2021/03/california-becomes-39th-state-to-adopt-duty-of-technology-competence.html

2 American Bar Association House of Delegates, Resolution 111’August 12-13, 2019) https://www.americanbar.org/content/dam/aba/directories/policy/annual-2019/111-annual-2019.pdf

3 See Warren G. Lavey, Toolkit for Integrating Climate Change into Ten High-Enrollment Law School Courses, 49 Envtl. L. 513, 516 (2019)

4 See Warren G. Lavey, Training All Law Students and Lawyers for Climate-Competent Representation, (April 23, 2020) https://www.iucn.org/sites/dev/files/content/documents/2020/training_all_law_students_and_lawyers_for_climate-competent_representations.pdf

5 See D.D.Huppert, A. Moore, & K. Dyson, The Washington Climate Change Impacts Assessment: Evaluating Washington’s Future in a Changing Climate, Chapter 8 (Climate Impacts Group University of Washington 2009). doi:10.7915/CIG0MS3K2

6 See Paul Hatchwell, Corporate Lawyers in a Climate of Change (International Bar Association) https://www.ibanet.org/article/82bd7fb4-c46c-4819-a56f-be9d7f683fa6

7 https://eelp.law.harvard.edu/climate-related-disclosure-and-financial-risk-management/

8 See Securities and Climate Finance, https://climate.law.columbia.edu/content/securities-and-climate-finance

9 DLA Piper has a nice overview of the Climate Contract Playbook https://www.dlapiper.com/pl/poland/insights/publications/2020/11/contracting-for-the-climate-the-climate-contract-playbook-is-a-trove-of-climate-clauses/

10 Sophie Quinton, As Wildfire Risk Increases, Home Insurance is Harder to Find (Jan 3, 2019) https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/01/03/as-wildfire-risk-increases-home-insurance-is-harder-to-find

11 Christina Carroll, Climate Change and Insurance Law, (ABA 2012) https://kcll.bywatersolutions.com/cgi-bin/koha/opac-detail.pl?biblionumber=3966 (FYI – this is the most recent edition of this book)

What is an Answer?

The Answer addresses the allegations contained in the Complaint, paragraph-by-paragraph and either denies them or agrees to them. 

(1) The pleading containing the formal response to a complaint, admitting or denying the alleged claims. (2) A response to the Complaint in which the Defendant either admits or denies the allegations made by the Plaintiff. (3) A reply by the party being sued to the allegations made in the Complaint. 

File and Serve the Answer within 20 Days of Service of the Summons and Complaint: 

  • Under CR 12(a), an Answer must be served within twenty (20) days after service of the Summons and Complaint. 
  • If the Summons was served outside the state of Washington, the time is extended to sixty (60) days after service of the Summons and Complaint. 
  • If the service was made by publication, the time limit is sixty (60) days from the date of the first publication. 

Failure to File and Serve a timely Answer risks the entry of a Default Judgment. Default Judgments occur without notice to the Defendant and they award the Plaintiff everything they asked for in the Complaint. 

State Your Defenses: 

  • CR 8(b) provides that a Defendant’s Answer to a Plaintiff’s Complaint shall state any defenses to each claim. 
  • The defenses must be set forth in short and plain terms. 
  • CR 12(b) provides that certain defenses may be asserted either in the Answer or by motion prior to serving an Answer. 

If Allegations are Not Specifically Denied Then They are Deemed Admitted: 

  • CR 8(b) and CR 8(d) contemplate that the denial of an allegation in a pleading (such as an Answer) shall be made based on the knowledge of the Defendant, and that the allegations will be deemed admitted unless they are denied. 
  • The Defendant may specifically deny a designated allegation. For example: Defendant denies the allegations set out in paragraph no. 1 of the complaint. 
  • The Defendant may also generally deny all of the allegations, except those allegations as (s)he expressly admits. For example: Defendant___________________[name] answers the plaintiff _____________________[name]’s complaint as follows: Defendant____________________[name] denies the allegations in plaintiff’s complaint in their entirety. 

Deny Allegations That You Do Not Have Enough Information to Admit: 

  • It is recognized that a Defendant, at least at the time (s)he is required to Answer, may not know whether a particular allegation is true or not. 
  • CR 8(b), therefore, permits the Defendant to state that they have no information or beliefs sufficient to Answer, and on that basis deny the allegation. 
  • For example: Defendant denies for lack of sufficient information, knowledge and belief the allegations set out in paragraph no. 3 of the complaint.