Category: From the Director

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)

From the Director: March 2021

Let the Law Library be Your Alexa

Barbara Engstrom, Executive Director, King County Law Library

Imagine having a remote assistant like Alexa but focused squarely on helping you with your legal practice. As a subscriber to the King County Law Library, you essentially have your very own virtual legal assistant at the touch of your phone or computer. Need a case from Westlaw, a section from a WSBA Deskbook or an annotated code section? We can quickly provide what you need. What about jury verdicts or Keyciting? We’ve got you covered. Do you have a thorny legal issue and would like to try out some searches on Westlaw? With our video reference, we can screen share databases like Westlaw or the WSBA Deskbooks and work interactively with you to run customized searches and share links in real time.

The law library can even go Alexa one better. If you are short on time or legal research resources and need someone to do your research for you, we can make that happen too. With our Let Us Do Your Research service you can hand off your search query and leave the heavy lifting to our experienced research staff. As you might guess, having what amounts to an on-demand, low-cost research assistant who comes armed with tens of thousands of dollars of legal research resources has been very popular. We have many very happy repeat customers for this service.

If it’s been a few years since you’ve been a part of the subscriber program, you should take a look at all the new services and benefits we added for subscribers in the past few years. Our goal is to make it as easy and convenient for you to use the law library services as possible, even if you prefer not to come to one of our physical locations. Here’s a quick overview of $100 per year gets you as a subscriber.

Remote Access to Lexis Digital eBook Collection

With our newest member benefit, subscribers get remote access to our eBook collection. The digital library includes all the Matthew Bender and Lexis treatises from our print collection including gold standard, multi-volume treatises such as Corbin on Contracts and Powell on Real Property.

Within the larger collection we’ve carved out a special Washington Practitioner Collection which includes all our Washington specific content in once convenient place. Included in the collection are: Employment in Washington: A Guide to Employment Laws, Regulations and Practice; Washington Business Entities: Laws and Forms; Washington Guardianship Law: Administration and Litigation; Washington Insurance Law; and Washington Law of Evidence among others. The LexisNexis Practice Guides, including: Washington Pretrial Civil Procedure, Washington Trial and Post-Trial Civil Procedure, and Washington Criminal Law, are also available. In addition to the practice sets, we also have the Annotated Revised Code of Washington and the Washington Court Rules Annotated available for remote checkout.

For those of you who, like me, are big fans of the KCBA Washington Lawyer’s Practice Manual, it is available for remote checkout by chapter for your convenience. Lexis Digital has recently acquired the WSBA Deskbooks and those will be available for remote checkout shortly too.

As one of our subscribers recently said:

I cannot tell you how incredibly helpful the Lexis Digital Library access has been over the past month. I have had to do a significant amount of research and I found everything that I needed as well as forms. Research and writing has always been the best part of my job as an attorney and this makes it so much easier for me to do both efficiently.

Let Us Do Your Research

For those times when you are running out of bandwidth and could use a helping hand, subscribers can take advantage of our Let Us Do Your Research service. As I noted earlier, 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!

5 Free Document Deliveries Per Month

Subscribers get 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.

Discounted Conference Room Reservations

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. 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. 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. Conference rooms tend to book up quickly and once trials resume more fully, we expect this to be the case. Be sure to plan well in advance if you would like to reserve a conference room.

“Curbside” Book Checkout

Subscribers who prefer to research with print materials can take advantage of our “curbside” book checkout. You’ll notice the scare quotes around the word curbside. Our curbside pick-up and drop-off will occur, not on Third Avenue, but on the 6th floor in the rotunda space just outside the law library entrance in Seattle. Subscribers wishing to drop off or pick up materials can schedule an appointment in advance to arrange a time. Appointments will be staggered to create a minimum amount of time spent in proximity to others.

All returned items will be quarantined for 36 hours before they are allowed to return to active inventory. The catalog will be updated to indicate which items are in quarantine and when they will become available to check out.

Your Law Library Alexa Awaits

Become a subscriber to take full advantage of all that the law library has to offer. Your virtual legal assistant is standing by waiting to help you make the most of your time spent on legal research. To find out more about any of these subscriber services go to https://kcll.org/services/subscribe/ As always, please feel free to reach out with any questions to services@kcll.org

From the Director: February 2021

Skip Tracing: What It Is and How to Do It Ethically

Barbara Engstrom, Executive Director King County Law Library with Stephen Seely, Outreach Services Attorney King County Law Library

One of the most popular CLEs that we offer at the King County Law Library is on the topic of skip tracing. In this column, we’ll discuss the burning questions regarding all things skip tracing with Stephen Seely, our Outreach Services Attorney.

BE: Stephen, I’ve always found skip tracing to be a very arcane term but for some reason it seems to be commonly used by attorneys or at least in CLE titles. What does skip tracing actually mean, and where does the term come from?

SS: Skip tracing is an old term of art from the private investigation industry, but understanding it is very straightforward. Historically, skip tracing was the process of tracking down someone who had neglected to pay a debt and had ran off. Most people are familiar with the related phrase “to skip town.” The term can be understood by breaking it down into two parts. First, there’s the “skip” which references the scofflaw you’re looking for. Second, there’s the tracking down of the skip, referred to as the “trace.” In modern use, skip tracing has much broader meaning than just finding people who owe debts. The term now means finding people, property, and assets.

BE: Good to know, so skip tracing is essentially the process of finding people and assets. What are the most common scenarios where attorneys would need to do people or asset finding?

SS: Well, there are many reasons why an attorney might need to do some skip tracing, but I would divide them into three general categories. The first category would be finding people. As with the traditional meaning of skip tracing, tracking down someone who owes a debt or is subject to a court judgment or garnishment is still very common. Tracking people who are involved in litigation is also very common. This could include finding parties in order to serve process, finding potential witness, or finding reluctant witnesses. The second category would be tracking down personal assets or information about real property for due diligence purposes. The third category would be tracking down valuations of real property and assessing personal assets.

BE: Much of my knowledge of private detective work comes from watching TV in the 1970s which included a steady diet of Colombo reruns. In my mind, skip tracing is rooting around in dumpsters in a ratty tan trench coat, tracking down marks at the horse track, and absentmindedly saying “oh and one last thing…” before neatly tying the case up. Presumably, things are much different now. What are your top resources for people finding?

SS: I’m happy to report that dumpster diving and trips to the track are no longer required. Skip tracing can largely be done online now, which makes it well suited to the realities of working during a pandemic. In my skip tracing CLE I go through dozens of websites for tracking down particular types of information. We don’t have the time or space to go over all of those now, but I do have recommendations for three sites that provide good jumping-off points. One of the trickiest things at the outset of this type of research is confirming that you have found the correct person. It can be very frustrating to spend a significant amount of time tracing a lead only to subsequently discover he wasn’t the correct “skip” after all. I’ve found that https://www.fastpeoplesearch.com and https://www.spokeo.com are both excellent places to start a free search. They cast a fairly broad net but offer enough information to help you decide if the profile you’re looking at is actually the person you’re looking for. Because social media has taken on an outsized role in the way that people connect with each other, if you have a person’s social media handle, using https://www.social-searcher.com can also be an excellent starting point for combing through social media platforms.

BE: We’ve all heard the horror stories of the ethical pitfalls of social media and litigation. What ethical considerations should attorneys be aware of when doing skip tracing research?

SS: Yes, this brings up a good point. I’m currently developing a CLE on the ethical issues that arise for attorneys when doing internet and social media research. This is a developing area of the law but all of the same basic ethical principles and proscriptions that would apply to real world interactions and tangible research also apply in the world of electronic research. As a general rule: if you wouldn’t do it in person, don’t do it online. Washington does not yet have any on-point ethics opinions about using the Internet to skip trace. However, the American Bar Association does have a formal ethics opinion regarding the more specific use of social media as a tool to investigate jurors. The gist of the opinion is that a lawyer may passively review a juror’s public presence on the Internet but may not communicate with a juror. The opinion also explains that requesting access to a private area on a juror’s social media (i.e., “friending” or “following”) is considered communication.

When in doubt, it’s advisable to err on the side of caution and limit yourself to publicly available information that you can obtain passively, without eliciting it from the skip themselves. And, as with any situation where you find yourself in an ethical grey area, it’s best to contact the WSBA’s ethics hotline for guidance regarding your situation at (206) 727-8284.

BE: This is great information Stephen, thanks for sharing. If people have questions, where can they go to find more information?

SS: My pleasure. For more information I recommend attending the King County Law Library’s Skip Tracing CLE. You can find the next scheduled class on the Law Library’s website by going to our website, www.kcll.org, and clicking on the “CLEs/Classes” option in the menu at the top of the page. As I noted earlier, I’m developing a CLE on the ethics of internet and social media research for attorneys. You can subscribe to KCLL’s newsletter to be alerted when that class becomes available.

BE: Thanks again, Stephen. For questions about skip tracing or any other research needs, remember that you can always contact the King County Law Library at services@kcll.org.

From the Director: January 2021

Contact Tracing: Tracking Legislation in Washington State in a Pandemic Session

Barbara Engstrom, Executive Director King County Law Library

While the vaccine is producing some light at the end of the dreadful tunnel that was 2020, the effects of the pandemic are still going to be felt for the foreseeable future and the new legislative session is no exception. The current plan is to conduct the session almost entirely remotely in the House and a hybrid of remote and in-person in the Senate. Understanding the deviations from the standard script unique to this session will be helpful when tracking legislation both now and in the future.

Introducing Legislation – Urgent, Targeted & Fiscally Aware

One of the biggest changes for the pandemic legislative session will concern what types of bills will be advanced. It is expected that floor action will take longer leaving committees less time to do their work. To streamline the process, the House Democrats have been given guidance on what bills will be given priority in this legislative session. According to their 2021 Legislative Session Bill Advancement Guidelines1: “First and foremost, bills should only be introduced if they are urgently needed and important to pass DURING the 2021 session. If that is not the case, please wait to introduce your bill until next year.” Democratic House members are also restricted to introducing no more than 7 bills and committee chairs are expected to move fewer bills out of committee.

The guidance outlines the four major subject areas that will be considered:

  • Advancing racial equity
  • Responding to the COVID-19 pandemic
  • Advancing economic recovery
  • Addressing the global climate crisis.

Bill are also expected to be fiscally aware in that they either save money or increase the efficacy of the appropriation, increase access to federal funding, or increase fiscal efficacy on multiple government levels in responding to the pandemic or economic recovery.

In addition, bill sponsors are also expected to do pre-introduction legwork to thoroughly vet the bill with stakeholders, discuss the cost viability with the Appropriations chair, determine whether there is a companion bill in the Senate and the likelihood of its moving forward, and determine whether is it likely to generate substantial opposition in committee or on the floor.

What this means for tracking legislation is that generally one will only find legislation on very limited topics, companion bills will not be the norm, and fiscal impact will be a touchstone for all legislation moving forward. Currently there is no bill advancement guidance from the House Republicans, but for bill tracking purposes it is safe to assume that the Republicans will also similarly prioritize bills to facilitate advancement of their legislative priorities with the limited time and resources available this session.

Committee Hearings in the Time of Zoom (and Zoom-bombing)

How committee hearings will be conducted will also impact legislative tracking. Rather than in-person hearings, most committee members will attend remotely and the public will be allowed to testify from remote locations. The expectation is that without the burden of traveling to Olympia, public participation in committee hearings will increase significantly. To facilitate remote testimony, the legislature has created an online platform allowing witness registration within as little as an hour before a scheduled hearing begins. https://app.leg.wa.gov/csiremote/joint Those unable to testify remotely, will find expanded opportunities to testify via a written document or email this session. For tracking legislation, the primary impact will be felt in the bill reports coming out committee where the additional public testimony will be summarized and the affiliation of the persons testifying noted.

Some of you, like me, may be thinking, how are they going to control remote testimony from going off the rails? As noted on the remote testimony webpage, the ground rules are the same as in-person testimony. “People observing or testifying from a remote location are subject to the same rules of decorum as people at the Capitol. You must be recognized by the Chair before speaking, and you may be required to limit your comments. There is no guarantee that those who sign in will be allowed to speak or be able to speak at specific times. Please see How to Testify in Committee for more details.” In an interview with Crosscut, House Speaker Laurie Jinkins, D-Tacoma said that based on her experience with remote hearings and testimony from the previous session, she’s not too worried about Zoom-bombing. She noted that it was generally brief, sometimes amusing and almost always involved someone’s butt. “The most important thing, Jinkins said, is to make sure legislative staffers can quickly kick people out of online committee meetings if they are causing issues. She said legislative technology experts are preparing for all of that.”2

Live from Olympia It’s …. TVW

The final thing to note is that TVW will likely play an outsized role in legislative tracking this session. TVW started as an open government initiative way back 1993 and went on air in 1995. This C-SPAN of Washington State covers government, politics, and public policy. In this session expect to see more emphasis placed on the TVW livestreams and recordings. If you are following legislation in real time, you can go directly to TVW, and search the daily schedule. https://www.tvw.org/ If you are tracking legislation at a later date, links to TVW are often included in the Bill Information webpage for current (and past) legislation. Look for the Available Videos section. https://apps.leg.wa.gov/billinfo/

A Note About Transparency

I’ve done quite a bit of legislative research in other states and in foreign jurisdictions. When I’m researching legislation in Washington, I often find myself catching new things that have been added to the online research tools to make the legislative process more transparent and the documents more

easily accessible. This is not the case in most other jurisdictions. I’m very grateful to the Washington State legislature for not only saying that they value transparency but actually making it happen.

Need Help?

Please visit the King County Law Library at https://kcll.org/ for help tracking current legislation or reviewing legislative history for older legislation. If you have any questions, would like help accessing materials, or need assistance with your research please contact us at services@kcll.org.

1 See 2021 Legislative Session Bill Advancement Guidelines. https://beta.documentcloud.org/documents/20418501-bill-advancement-guidelines-for-2021-session-11-24 

2 Melissa Santos, How the Washington State Legislature Plans to Go Remote During COVID-19, available at https://crosscut.com/politics/2020/11/how-wa-legislature-plans-go-remote-during-covid-19