CLARK COUNTY BAR ASSOCIATION

Transcription

1 ccbawashington.org JANUARY 2013 OFFICIAL NEWSLETTER OF THE CLARK COUNTY BAR ASSOCIATION John Wulle s Farewell Reception page 14 page 5

2 THIS MONTH S ISSUE President s Message...3 CCBA General Meeting & Lunch...4 Farewell, but not goodbye...5 Rock the Ball!...7 Barrister s Ball Call for Nominations Nuts & Bolts, FLS & CLE Calendar...10 Litigating Criminal & Civil Cases in District Court CLE...11 The Ende to Pillow Talk?...13 CCBA Monthly Board Meeting...14 Barrister s Ball Silent Auction Donation Form...17 Clark County Superior Court Meeting Minutes...18 Family Law Section...19 ABA 2013 Midyear Meeting...20 Part Two of Healthcare: The ACA...21 Hearsay Profile: Chris Rounds...23 New SGAL Program Developed by CCBA...24 Clark County Law Library Spotlight on Employment law...26 Double Hearsay...27 Clark County Volunteer Lawyers Program...24 News You Can Use...29 Law Library News...29 Clerk s Report...29 Attorney Bookkeeping Tips...25 Inns of Court...29 Legally Drawn...29 SW Washington Lawyer Referral Service...30 Events Calendar...30 HEARSAY is published 12 times per year and is design edited by: JEFF GOUGH, Creative Director GOUGH CREATIVE GROUP GCG director@goughcreative.com An annual "green" subscription is included with annual membership dues. Members may purchase a hardcopy subscription for $ Letters, news items, upcoming events and announcements are welcome. Articles by members are accepted. Submissions should be presented in Microsoft Word and may be edited for length, clarity and style. Submissions by members are published at the editor s discretion and space available. Views expressed in articles represent the authors opinions, not necessarily the CCBA s. The publication does not purport to offer legal advice. RICHARD G. SPIER MEDIATOR CCBA OFFICE HOURS: Monday through Friday, 12:00 p.m. to 4:00 p.m. Highly experienced full-time neutral since 1992 Business & commercial; personal injury; employment; real estate & construction Listed for Mediation in The Best Lawyers in America Member, Oregon and Washington Bars Fax rspier@spier-mediate.com N.E. 28th Avenue Portland, Oregon No charge for travel time or travel expense in Oregon and Washington

3 PRESIDENT S MESSAGE SUZAN CLARK CCBA President I am writing this New Year s message before Christmas because I am indulging in a personal tradition of spending New Year s Eve somewhere far from home and preferably warmer than home. This year I am traveling in Sri Lanka over the New Year. If you were to look for the point half way around the globe, you would find it close to Colombo, Sri Lanka. When planning a trip to Sri Lanka, you must decide to head either east towards Europe and on to Sri Lanka or west across Asia to reach Sri Lanka. Either way, it is a long way from home! The New Year will be over and the annual Barrister s Ball will be here before you know it. When I started work for the Union County District Attorney s Office in 1987, my boss took me to a local bar association meeting the day after I arrived in town. At the time, there were two female attorneys in the county and we both worked in the same office. Discussion turned to plans for the big annual social event the Union County Bar Association Chukar Hunt. For those of you not raised in a family of hunters, a Chukar is a type of partridge. The male attorneys jokingly invited the female membership to participate in this social occasion. Everyone seemed a little bit surprised when I accepted the invite, particularly my fellow deputy district attorney. I recall her exact words being, What the hell is a Chukar? Being from the South Side of Chicago, she had already made a bit of a name for herself regarding her difficulties with wildlife identification. In prosecuting a local for shooting an elk out of season, she referred to the elk as a buck several times in closing argument. After the third reference to the buck elk being brutally gunned down out of season, the judge (trying to be helpful) whispered bull. Thinking the judge was making a disparaging remark, she abruptly turned to face the judge and demanded What s the matter with my argument? Apparently not many bull elk wander the streets of Chicago. So the two of us met our fellow bar members in the parking lot of the Union County Courthouse at the crack of dawn and set off to hunt Chukar along the Snake River. We hiked many miles over rough terrain in search of Chukars, which are not the brightest birds on the planet. Chukars run up hill and fly out. One of the male attorneys graciously offered to clean any bird I shot. After cleaning six Chukar for me, he made the comment that I was on my own on the next year s hunt. We stopped off for beer and burgers on the way home at a cowboy bar in Baker City. I have never experienced another bar social event quite so unique. The CCBA Board is looking for new and creative suggestions for social events to add to our social calendar. The annual CCBA Barrister s Ball will be held on February 23, 2013 at the Pearson Air Museum. I enjoy the Barrister s Ball because it provides an opportunity to catch up with folks from the legal community who I don t get the opportunity to see very often. Many of our retired members and judges attend the event. This year we will be giving folks more choice as to seating. Attendees will have the option of open seating. For those who prefer, there will be the option to put together a group and reserve a table for eight people. Let me address two big fears voiced consistently by attorneys who have not attended the ball: tuxedos and dancing. In past years, we have had a band and we noticed few people danced. Last year a DJ provided dance music and again few people danced. Whether you suffer from wallflower anxiety, have two left feet or just don t care to dance; never fear, you are in the very good company of most of your fellow bar members. I have yet to see anyone drug onto the dance floor against their will. Most people view the evening as a fun time to get together and socialize. On a rare occasion, men wear tuxedos. Generally, people dress up to about the same level as a person would if they were attending a colleague s wedding. Having written that sentence, I remind myself that I long ago stopped telling criminal clients to dress for court like they were going to church or a funeral. When a client showed up for court in her I Dream of Jeannie Halloween costume, I realized I was totally out of touch with appropriate church/funeral attire. I look forward to seeing all of you at the Barrister s Ball and I promise not to bore you with stories of my travels. HEARSAY - JANUARY

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5 Farewell, but not goodbye HEARSAY STAFF Judge John Wulle received much commendation from his fellow judges, attorneys, courthouse staff and friends at his going away party on January 4, 2013 in the Clark County Courthouse Jury Room. This is farewell from a job he has held since his election to Superior Court in 2000, but not a goodbye to the practice of law, as he intends to continue his legal career as a mediator and arbitrator. Superior Court Commissioner Carin Schienberg was the master of ceremonies for Judge Wulle s party. All of the presenters commented on Judge Wulle s dedication to public service, and willingness to take the extra assignment, or cover the extra docket without question. Both Carin Schienberg and presenter Judge Greg Gonzales met Judge Wulle in the mid-80 s and he had a positive impact on them throughout their practice. Ken Weber would tell Greg Gonzales as a new attorney to call John Wulle with questions because he will know the answer. Throughout his career, Judge Wulle has always been willing to share his knowledge and time with others. Judge Wulle received commendation from Pat Escamilla, Clark County Juvenile Court Administrator, and a very moving tribute from retired/reinstated Judge Roger Bennett. Presiding Judge Barbara Johnson didn t get the no plaque memo until after the tribute plaque was ordered, so presented Judge Wulle with his remembrance from the State of Washington for his service. The Judges, through Judge Gonzales, also presented Judge Wulle with a personal gift, including a little red airplane. Judge Wulle receives commendation from Pat Escamilla from Juvenile Court. Judge Wulle also spoke at the event, appreciating the support, and telling everyone that from his last day on the job going forward he is just John to the rest of us. On his last day of work, Friday, January 11, 2013, Judge Wulle received tribute from courthouse staff, and over 60 law enforcement officers lined the back steps of the courthouse to say farewell. Judge Wulle reportedly shook every hand, and basked in the thought that he will be missed. As many of your know, prior to his retirement Judge Bennett was the official keeper of the biographies of each and every Superior Court Judge. Following is the one written for Judge John Wulle to honor his position in Department 2 of the Superior Court Bench: JOHN P. WULLE ( ) Judge John Wulle was born in New York City on October 20, 1950, the son of Walter O. Wulle, Sr. and Gertrude Feeney Wulle. John grew up on Long Island. Walter worked in the aviation industry, which exposed John to airplanes from an early age. From all sides of the Bar, and the courthouse, well-wishers gathered to say farewell. In college, Judge Wulle began a lengthy career in public service. He came to Washington State in 1970 as a VISTA Volunteer, planning to stay in the Northwest for only a year or so, however after meeting his future wife he fell in love with this part of the country and decided to stay. VISTA was the domestic Peace Corps paid for by the federal government. He worked in poor neighborhoods as part of the anti-poverty program. He was HEARSAY - JANUARY

6 taught how to be a community organizer and worked to develop food bank, political organizations that gave voice to ethnic and impoverished neighborhoods, and a host of other projects, including legal aid to the poor. Judge Wulle attended and received a Bachelor of Arts degree in political science from Western Washington University in After graduation, he moved south to attend and graduate from Northwest School of Law in Portland, Oregon. While attending law school, he worked as a rule 9 intern in the Clark County Prosecuting Attorney s office, trying district court cases. He also gained experience as a public defender, defending the types of cases he had previously prosecuted. Upon passing the bar exam and being sworn in as a lawyer, John was hired by the Washington Attorney General's Office, and served as an assistant attorney general for 14 years. During this period of his legal career, John was the head of the child support enforcement branch of the Vancouver office, and gained great expertise and recognition in this specialty area of the law. In 1997, an open seat on the district court bench became available, and following a spirited campaign, the Board of County Commissioners selected John to fill the position until the next election. Subsequently, in 1998, Judge Wulle was elected to the position, and served therein for three years. Twice during that period, he was selected by his fellow judges to be the Presiding Judge of the district court. In 2000, Judge James Ladley retired from the superior court bench, prior to the November general election. Judge Wulle, and several others campaigned for the position, and ultimately, Judge Wulle won the election by a healthy margin over his opponent. He joined the superior court bench on January 11, Judge Wulle is a published legal author, and has donated his time and services as an educator in local classrooms and at continuing legal education courses. He is a recipient of the distinguished Angelo Petruss Award, given annually to an outstanding Washington State attorney in public service. He has also been awarded the Evergreen Award from the City of Vancouver. Judge Wulle grew up in the aviation community, following in his father s footsteps, and has always been active in this avocation. He has built and flown experimental aircraft, and has restored antique aircraft. He has also, throughout the years of his residency in Clark County, actively engaged in public service and A toy airplane is a fitting gift. volunteer work for the benefit of the community. He is the founder of Pearson Air Museum and was instrumental in the creation of the Vancouver National Historic Reserve. He was one of the leaders in the creation of the Clark County Veterans War Memorial and the Law Enforcement/Fire Fighters Memorial. One of Judge Wulle s goals in his professional life has been to provide a respectful, knowledgeable, and unbiased courtroom setting in which the public can get a fair hearing. In his career as judge, he has accomplished one of his most important life goals. Judge Wulle is married to Susan Wolff and they have a son, Devin, who shares his father's love of motorcycles. They spend many hours and days in the summer on the roads of Clark County. Following the judge s unfortunate spill in 2006, however, Susan is not so hot about motorcycles. Judge Wulle ran unopposed in 2004, and was opposed in 2008 by an attorney who mounted a despicably vicious campaign, marked by questionable tactics. The local bar association poll preferred the incumbent by a margin of 90% to 10%, while the voters were a little kinder to the challenger. Judge Wulle won the election by 89% to the opponent s 11% of the vote. MOCK TRIAL The Clark County District Mock Trial Tournament will be held at the courthouse on Wednesday and Thursday, February 27th and 28th. 6 CLARK COUNTY BAR ASSOCIATION

7 Rock the Ball! JEAN McCOY Hearsay Special Correspondent It is January; a time when we all have our Happy Lights on most of the day and dream about a long weekend in Palm Springs or Scottsdale. So, let s put something on our calendar we can look forward to! This February 23, 2013 CCBA will be holding the umpteenth Annual Barrister s Ball. Because of the success of the venue, for the second year the Ball will be held at the Pearson Air Museum. It will again be catered by Beaches Restaurant, but will be a buffet meal, and no set table arrangements!! As usual, there will be a silent auction so get your submissions ready for donation (form below for your use). We love to see your handmade creations; your classy White Elephants (that you purchased at a different auction but can t use), products donated from your clients; or just things you purchase that you know will be the hot item and garner more in donations than you spent. Get creative! The Charity to benefit from the donations this year will be the Clark County Volunteer Lawyer Program. Last year the Ball raised over $3,500 to benefit YWCA SafeChoice Program. Let s make it an even bigger year. We will begin the evening by honoring our 50-year members this year Judge James Ladley (ret.)! We will also bestow the Donald Simpson award for Professionalism, the Ken Weber award for Community Service, and the Volunteer Lawyers will give their Volunteer of the Year award. We may even have the Alan Harvey Blooper Award make a return the award was not given for 2011, so you have a little over a month to get into the running for this years award! Be sure to get your votes in for the above CCBA awards by ing your nominations to ccbamanager@ccbawashington.org. See you at 5:30 pm on February 23rd! MEDICAL MALPRACTICE WRONGFUL DEATH PERSONAL INJURY Law office of: JANE E. CLARK ATTORNEY AT L AW 1014 Franklin Street Franklin Suites, Suite 108 Vancouver, WA Available for Referral or Association Vancouver Portland Jane@janeclarklegal.com We are an award winning forensic accounting firm based in Vancouver, Washington. Do you need a Forensic Accounting Expert? Fraud Examination Asset Tracing Contract Disputes Business Interruption Claims Expert Witness Onsite CLE Programs I have worked with Tiffany on numerous cases where her advice and expertise have proven invaluable and led to superb results for our clients. -Steven Ungar, Esq, Lane Powell Tiffany R. Couch, CPA/CFF, CFE HEARSAY - JANUARY

8 8 CLARK COUNTY BAR ASSOCIATION CHUCK CORRIGAN

9 2013 BARRISTER S BALL CALL FOR NOMINATIONS NOMINATE YOUR FAVORITE ATTORNEY. Every year at the Barrister s Ball, The Donald Simpson Award for Legal Professionalism, the Ken Weber Award for Service to the Community, and the CCBA Courtroom Blooper Award, are given to acclaimed and deserving local attorneys. Who will receive these awards this year? What acts of service, of consummate professionalism, of courtroom acrobatics deserve the ultimate recognition? Inquiring minds want to know. You can nominate one attorney for each award, or potentially even one attorney for all awards (which would really be something). Please nominate your candidates by contacting Lisa at ccbamanager@ccbawashington.org. The Donald Simpson Award for Legal Professionalism Donald Simpson, a long-time Vancouver attorney, was once described by a Superior Court judge as the epitome of what a lawyer should be. He was beyond reproach and his legal ability was outstanding. He was what you would aspire to be. That commentary is no surprise. Donald was known for his legal expertise, his sterling reputation, and his candid, courteous, and accountable manner. He had a reputation for being a favorite among courthouse clerks, and his clients often became his friends. He had great abilities but didn t flaunt them, one friend remembers. This award honors a man who was truly a leader of and proponent for excellence in the practice of law. Nominees for this award should reflect Donald Simpson s unparalleled example of professionalism in jurisprudence. Name of nominee: Nominated by: (you may choose to remain anonymous) Please describe why this nominee makes an outstanding candidate for this award: The Ken Weber Award for Service to the Community and the Profession Ken Weber s influence on the practice of family law in Washington State is difficult to underestimate. He was instrumental in crafting Washington s family law statutes and wrote a 3 volume treatise on family law for West Publishing. He provided countless hours of assistance to the profession, serving on multiple boards and committees at both the state and local level, lecturing at CLE events, and engaging in pro bono service. Ken mentored many junior attorneys who went on to become some of the most influential attorneys in the area. He was also highly involved in the community-- coaching little league teams, providing radio communication support in emergencies, and even performing on his dobro at local taverns on the weekend. Nominees for this award should reflect Ken Weber s remarkable life of giving by demonstrating selfless dedication to serving the community and the profession. Name of nominee: Nominated by: (you may choose to remain anonymous) Please describe why this nominee makes an outstanding candidate for this award: HEARSAY - JANUARY

10 2013 Nuts & Bolts, FLS & CLE Calendar Call to register For firms with new associates, this series is a great way to support your local bar association and provide new associates with an introduction to the community and a broad set of useful legal skills and information. 10 CLARK COUNTY BAR ASSOCIATION

11 The Clark County Bar Association is pleased to announce its Twenty-sixth Nuts and Bolts Lecture: Litigating Criminal & Civil Cases in District Court Presented by Hon. Vernon Schreiber and Attorneys William Baumgartner & Andrew Wheeler Wednesday, February 13, 2013, 3:00 5:00 PM, at the Red Lion at the Quay HEARSAY - JANUARY

12 HEARSAY ADVERTISERS WANTED! CCBA is looking for reliable Attorney Support Services who want affordable, targeted advertising in upcoming issues of Hearsay. If you have reliable and trustworthy service providers that can benefit our audience, please refer them to Lisa Darco for pricing and availability today! EXPERT WITNESS & CONSULTANTS BAIL BONDS COURT DISPLAYS PARALEGAL MARKETING FINANCIAL SERVICES, ETC. 12 CLARK COUNTY BAR ASSOCIATION

13 The Ende to Pillow Talk? ARIN DUNN CCBA Secretary A controversy has developed around a basic issue we confront daily. Will you be prosecuted for violating the RPCs if you tell your spouse or friends about your daily activities? The Pillow Talk article in the November, 2012 Washington Bar News asserts that even basic discussion is an ethics violation. To help ensure that attorneys are sufficiently terrified, WSBA Chief Disciplinary Counsel Douglas Ende is extensively quoted in a litany of fact scenarios under the rule to drill the point home. The applicable ethics rule is extremely broad. RPC 1.6 states that lawyers "shall not reveal information relating to the representation of a client" without the client's written consent. Thus, Pillow Talk takes a literal interpretation to the rule, claiming that everything that happens at work is "related" to a client's representation. Therefore, RPC 1.6 is supposedly violated if an attorney repeats any shred of information about one's clients to your spouse, family, and friends. Even references to non-sensitive, publicly available information such as a jury verdict, are asserted to be an ethics violation. Naturally, this article spurred a spirited debate among us at the recent CCBA's Ethics CLE on December 10th. We all agreed that RPC 1.6 should not be applied so literally. Likewise, the WSBA was peppered with concern. Attorneys wondered if the article was a true statement of the WSBA's disciplinary policies. The drama is over. The WSBA now quotes Mr. Ende as saying precisely the opposite. NWLawyer, Dec Ende states, "The author's ideas [in Pillow Talk]... are not... supported by evidence that the WSBA prosecutes, seeks to prosecute, or is eager to prosecute minor, innocuous lawyer disclosures." Mr. Ende explains that his statements were taken out of context in an apparent effort by the author of Pillow Talk to spur criticism of the ABA Model Rule 1.6. Mr. Ende reassures us that such disclosures are rarely reported and would "not likely merit the deployment of scarce disciplinary resources or public disciplinary action". To get past the confusion, Ende recommends a cautious approach to client information, suggesting that attorneys always balance the costs and benefits of disclosure before spilling the beans at a cocktail party. I interpret his comments to mean that discussions should conservatively seek to protect a client's interests and be respectful of a client's subjective concerns about what may be embarrassing, confidential, or privileged. While the point of Pillow Talk may be that the limits of RPC 1.6 are defined by a prosecutor's shifting discretion, Pillow Talk turned out to be "shock journalism" gone wild. It turns out that minor, innocuous pillow discussions are just fine, at present. So, dear readers, continue using your best judgment in protecting your clients and be comforted that while RPC 1.6 is very important, it is applied with restraint. Advertise with us! For 30 years we ve helped bring peace of mind to over 20,000 clients during one of life s toughest times. Expertise Reach 500 Attorneys and Legal Professionals throughout Clark County! Call Lisa Darco for pricing & space availability: OREGON S.W. WASHINGTON GevurtzMenashe.com Divorce Children Support HEARSAY - JANUARY

14 CCBA Board Meeting Minutes ARIN DUNN CCBA Secretary December 5, 2012 Board members in attendance: S. Clark (presiding); A. Dunn (preparing minutes); J. Fairgrieve; R. Mc Leod, J. Nellor, L. Mancuso. Staff in attendance: L. Darco. 1. S.Clark called the meeting to order at 12:00 PM. 2. Approval of minutes from November 14, On motion duly made and seconded, and passed, minutes are APPROVED. 3. Treasurer s Report. J Nellor presented the report, commenting that we have money. There is $123,000 in bank; this is an increase of $40,000 over last year. Expenses are lower than last year. Also, this increase reflects our annual dues which we need for operating expenses for the rest of the fiscal year. We need about $63,000 to meet costs for the rest of the year. Therefore, Nellor believes we have $30,000 - $40,000 extra that the CCBA may be able to use to further develop CCBA benefits and services or some other purpose. Nellor is thinking about his recommendation regarding this money and will likely recommend saving a portion of it in a rainy day fund. 4. Old Business. a. Mentorship Program: Fairgrieve is working on locations and plans to do a Saturday training. b. SGAL: Dunn has been fielding lots of questions from local attorneys. There seems to be lots of misunderstandings about the CCBA intends to do on this project. Dunn has answered that the CCBA goal for the SGAL list is to create a resource list of available SGALs, particularly for out of town attorneys that are not aware of local resources. Dunn has been approached by many lawyers that are not currently SGAL, but would really like to do so and would like SGAL referrals to be handled on a random assignment basis. Judges originally wanted a simple list that would help them if there was an out of county request for an SGAL. These attorneys believe random assignments would be appropriate because it would be a fair distribution of work and the assignments would be random, just like judge assignments on new cases. They say a party should not be allowed to choose a SGAL, as the entire point of SGALs is to provide an independent perspective. Dunn has also been approached by existing SGALs who don t want any changes to the system. These SGALs believe plaintiffs should be able to choose their own SGAL and a list is more appropriate. They explain that SGALs make case evaluations and this is complex work. They also express concern that insurance companies seek an SGAL to rubber stamp settlement agreements that may not be fair to minors. Board members expressed that the CCBA proposal is optional and does not involve the concerns raised. S. Clark asked Dunn to prepare a proposal reflecting these concerns. Dunn agreed. Dunn mentioned an inquiry from an experienced SGAL requesting an exception be provided for experienced SGALs to allow them to waive the CCBA s training. Board members discussed the issue and feel the program would be more effective if experienced SGALs participated. i. S. Clark- motion that mandatory CLE requirement could be met by either being a speaker or attending the CLE. Seconded and upon motion, approved. ii. S. Clark motion to make SGAL list a member benefit, but $25/year for non-members to be on the list. Seconded and upon motion, approved. c. Barrister s Ball. Darco obtained alcohol license. No host bar. Catering and rents will be about $5,000. Darco proposes we drop the DJ to keep costs even lower. Mancuso proposes electronic Evite to further cut costs. Dunn agrees. Darco and S.Clark state concerns of keeping track of who paid. S.Clark believes change from plated dinner to buffet is a big enough change. Darco believes we should also not do assigned seating. Dunn- we should not be afraid of change and proposes all changes we think should be done. SClark and other board members agree that there should be no required seating. Dunn asked how much do invitations costs vs. a free Evite. Discussion of cost of Barrister s Ball. How can we involve young lawyers lower cost for the event. Last year, we had only 45 members present and 90 total attending. Concern, if we subsidize event, will 80% of other members feel this is unfair instead of reducing member costs? Fairgrieve believes we are inviting everyone and everyone has the opportunity to go. Darco- opinion is that Barrister s Ball is set up like their dad s party, not like a cool party that younger people would want to attend so the party is not viewed as an option for all members. Mc Leod asks if we should rebrand event to sound cool and agreement on concept. Darco asks if anyone wants to sponsor event. Darco also explained that she fielded complaints that majority of auction was alcohol related. Raffle was alcohol based. Darco suggested gift cards. Dunn suggested having a gift tower from Harry & David, Costco. S.Clark suggested having gift card and alcohol- first winner gets first choice. 14 CLARK COUNTY BAR ASSOCIATION

15 i. S.Clark moves for $35 members and $50 non-members. Upon motion and seconded, the motion is approved. 5. New Business. a. Awards: Fairgrieve and Darco prepared written summaries of awards that they want to send out to generate interest. b. Judge s Award. Award for Poyfair and Zimmerman for 20 years of service. Question is what forum would be appropriate to give the award. Some proposed giving award at Barrister s Ball. Others commented that program is too long at Barrister s Ball. No clear decision was reached. c. Hearsay: SClark- we need to locate a new editor for Hearsay. SClark proposes an editorial board and further changes. i. SClark/Fairgrieve- motion to convert the Hearsay membership committee to an editorial board, with Darco as publisher. Motion is seconded and approved. d. Quickbooks training: Darco will report next month. e. Website Development. Committee will report next month. Darco and Dunn, Nellor, and McLeod reviewed Scorpion free website offer. Website committee requested via that discussion focus on specific feedback for proposed design of new CCBA website. There being no more business before the board, on motion duly made, seconded, and passed, the board meeting is ADJOURNED, 1:28 PM. HENDERSON LAW FIRM, PLLC Phender745@gmail.com We are creative about protecting intellectual property MEDICAL NEGLIGENCE PERSONAL INJURY WRONGFUL DEATH Representative Jury Verdicts and Settlements: Failure to diagnose brain tumor $4.5 million Obstetrics malpractice $3.5 million Obstetrics malpractice $1.6 million Trampoline accident $1 million Electrocution at work -- $900,000 Motorcycle collision -- $500,000 Rear end MVC. Soft tissue injury -- $230,000 Available for referral or association on serious injury, wrongful death and medical negligence cases. Patents Trademarks Copyrights 406 West 12th Street Vancouver, WA (360) Trade Secrets Unfair Competition Litigation Licensing Counseling Due Diligence RYLANDER & ASSOCIATES PC Trial & Patent Attorneys Do you have a memorable photo from a CCBA event - Barrister's Ball, Golf Tournament, Softball game? We are searching for pictures of CCBA events for a very special presentation at this year's Barrister's Ball! Send us the good, the bad and especially the fabulous so we can feature them in our presentation! Send all submissions to the CCBA office! HEARSAY - JANUARY

16 CCBA Member Benefits 16 CLARK COUNTY BAR ASSOCIATION

17 Now Accepting Donations for the 2013 Clark County Bar Association BARRISTERS BALL & SILENT AUCTION WHEN: February 23, :30p.m. to 11:00p.m Where: Pearson Air Museum PLEASE DONATE AN ITEM FOR THE SILENT AUCTION All Auction Proceeds Benefit Clark County Volunteer Lawyer Program DONATION IDEAS: Gift Certificates, Event Tickets, Art Work, a Weekend at Your Summer Home, Cooking Class Taught by You, Baked Goods, Craft Supplies, Hunting/Fishing Trip, Legal Books, Themed Baskets (movie night, relaxation, office must-haves, college team, etc), Electronics, your imagination is the limit! 500 West 8th Street, Suite 65, Vancouver, WA CLARK COUNTY BAR ASSOCIATION Donation Form Name of Person/Organization Making Donation: Name of Item: Brief Description of Item: Estimated Value: $ Suggested Opening Bid $ Can the item be placed on display? Yes No If not, do you have a brochure or picture of/about the item? Yes No Contact Name: Contact Phone Number: Contact Address: All donated items must be received by February 13, Donated items become the property of the CCBA. Donors will receive recognition in the event materials. In order to receive recognition in the event materials, please complete and mail or fax this form to (360) by February 13, You will receive a donation receipt directly from the VLP. Please Direct Questions and Comments to: Auction Committee Chair: Josephine Townsend JCTownsend@aol.com 211 E. 11 th Street Suite 104 Vancouver WA HEARSAY - JANUARY

18 CLARK COUNTY SUPERIOR COURT BENCH/BAR MEETING MINUTES December 11, 2012 JOHN FAIRGRIEVE Hearsay Special Correspondent The meeting began shortly after noon. Persons present were Judge Robert Lewis, Judge John Nichols, Ann Christian, Jolene Sell, Todd George, Curtis Welch and John Fairgrieve. OLD BUSINESS: 1. Settlement Guardian Ad Litems (SGALs): John Fairgrieve told the committee that at its last meeting the Clark County Bar Association (CCBA) Board of Trustees decide to develop a SGAL list in The general plan is to conduct training for potential SGALs in early 2013 and to create a list of SGALs from the graduates and instructors from that training. The list would be held by the CCBA and made available to anyone who requested it. CCBA trustee Arin Dunn is coordinating the effort. 2. Indigent defense contracts: Ann Christian reported that indigent defense contracts for will be before the county commissioners on Tuesday, December 18 for approval. 3. Prosecuting Attorney s office response to Initiative 502: John Fairgrieve announced that the PA s office will be dismissing all pending misdemeanor possession of marijuana cases that meet the criteria of the initiative (defendant is over 21 years old and possessed one ounce or less of marijuana) in the coming weeks. He also told the committee that the US Attorney s Office for the Western District of Washington has announced that it is not changing its approach to marijuana prosecutions and that possession of marijuana remains illegal under federal law. 4. Mock Trial: The 2013 Mock Trial district tournament will take place in the Clark County Courthouse on February 27 and 28, The registration deadline for teams is Friday, December 14, If you are interested in supporting the Mock Trial program please contact Judge Lewis or attorneys Jill Sasser or Jennifer Snider. NEW BUSINESS: 1. Superior Court Commissioner Position: Judge Lewis told the committee that the judges have been informed that the commissioner s position that was left unfilled as a result of budget cuts in 2009 will be left unfilled for the time being. However, the county commissioners have agreed to review the request to fill the position during the supplemental budgeting process in April Readiness Docket: Judge Lewis told the committee that the readiness dockets remain large and that this Thursday s docket will have to be split into two dockets. He stated that the same situation occurred last Thursday. He also told the committee that readiness dockets for January currently have cases on them. The committee also discussed problems with change of plea dockets being full and attorneys having to wait for a week or more to get a matter on a docket for a change of plea. 3. Judge Woolard on Medical Leave: Judge Lewis reported that Judge Woolard is currently on medical leave and was expected to return after the first week of January. 4. Late offers and amendments: Suzan Clark told the committee that late offers in criminal cases were still occasionally a problem. Ann Christian also mentioned that she was concerned about late amendments to informations, and that recently a case was amended to increase the charge to attempted murder at a readiness hearing. John Fairgrieve told the committee that he would look into the matter. 5. Request for Articles for the Hearsay: Suzan Clark, current president of the CCBA, told the committee that the Hearsay, the bar association s monthly magazine, was in need of articles relating to the local legal community or the legal profession in general. Anyone who is interested in writing for the Hearsay should contact Lisa Darco, the bar association s office manager, at ccbamanager@ccbawashington.org. 5. Next Bench Bar committee meeting: The committee will meet next on Tuesday, January 8, 2013 at noon in Judge Nichols jury room. Respectfully submitted, John Fairgrieve 18 CLARK COUNTY BAR ASSOCIATION

19 Family Law Section TERRY LEE PROVIDES NEW CASE UPDATES AND JON McMULLIN GIVES POINTERS ON HOW TO NAVIGATE A DOMESTIC VIOLENCE PROTECTION ORDER MATTER WHEN IT INTERSECTS WITH FAMILY LAW MEREDITH McKELL GRAFF FLS Secretary Kicking off the new year, the Family Law Section began meeting on the second Thursday of the month at Tommy O s, and will continue to do so for the remainder of Terry Lee volunteered late in 2012 to provide monthly case law updates. He started this month with two Division One Court of Appeals cases. Kudret Oytan, Appellant v. Margaret Mary David-Oytan, Respondent was filed on November 5, 2012 and Donna M. Kellar, Appellant/Cross Respondent v. The Estate of Kenneth L. Kellar, Respondent/Cross Appellant was filed on December 31, The first case, Oytan, addressed obtaining personal jurisdiction using the Washington long arm statute and what is means to be living in a marital relationship in Washington. The court reiterated what we all learned in law school or studying for the Washington bar, that the state s long arm statute is very broad. The court instructed that domicile for the dissolution statutes is not anyway like the requirements for a person wishing to run for office as a state resident. The latter is very circumscribed, where the former is very broad and loosely defined. The second case, Kellar, dealt with the death of a spouse and the significance of a missing steps in the creation and presentation of a prenuptial contract prior to a marriage, and whether contesting the prenuptial agreement constituted breach of the no contest paragraph of the deceased s will. This case is relevant for family law practitioners who prepare and/or review prenuptial agreements, or who litigate these in dissolution actions. Jon McMullin provided some valuable insights as a victim s attorney in domestic violence matters. Tanya Rulli, former prosecutor, and newly in practice for herself, contributed her knowledge from the prosecutor s perspective. Clay Spence and Chris Sundstrom also participated in the discussion as they regularly represent parties in protection order hearings. Some of the tips gleaned from the discussion: 1. Jail telephone calls are recorded and the prosecutors office regularly listens to the recorded calls. 2. The prosecutors office reviews court files in other matters involving the same parties to look for declarations and admissions that can be used in the DV matter. 3. Family law is rife with declarations admitting to bad behavior, accusing the other of bad behavior, reciting marital history, including incidents of abuse and violence. This is a fertile hunting ground for the prosecutors office when clients or their opposing parties are involved in DV. Be very careful what you write on your clients behalf! 4. More often than not, the police will take the male of the household to jail following a 911 call regarding a family dispute. While is it not always the male who is at fault, the police tend to view the male as the perpetrator. 5. The prosecutors office tends to treat a party s wish to recant an allegation of DV as victim behavior and do not consider that perhaps the claim of DV was overblown or false. 6. When there are children and a dissolution is likely to be started, it is wise to ask the court in the protection order hearing to make the contact between the children and the restrained party the same, or a mirror of the temporary parenting plan in the dissolution case, to avoid conflicting orders. While Family Law bar practitioners may think that the Superior Court temporary parenting plan overrules or supercedes a District Court protection order, the police are more likely to follow the terms of the protection order (which has been entered into the criminal database) than the temporary parenting plan. It was a very enlightening discussion and we appreciate Jon taking the time to present his knowledge and experience to our section members! Commissioner Schienberg and Commissioner Liebman requested that we clarify where documents should be delivered for their dockets at the Court Administration Office on the 4th Floor of the main courthouse. They want everyone to be aware that documents should never be delivered to the Juvenile Court or the Family Law Annex even late documents. HEARSAY - JANUARY

20 The February meeting will be held on February 14, 2013 at Tommy O s, beginning at 11:30 a.m. and going until just before 1:00 p.m. Please respond to your Evite invitation to the lunch. Check your spam folder if you didn t think you got it several attorneys reported that their Evite invitation went to their spam folders. If you are a new member of the Family Law Section or have changed your address, send an to Crystal Lambert Schroeder, President, at crystal@lambertlawpllc to get your in the Evite list. Lunch is available for those who respond to their Evite invitation or who RSVP to Nathan Peterson, Treasurer at least three days before the lunch meeting. CLE credits are available with or without the lunch, for members and non-members. The February topic will be Spousal Maintenance, presented by Judge James Rulli and Scott Horenstein. We hope to see you all there for a Happy Valentines Day lunch meeting! ABA 2013 Midyear Meeting JOHN FAIRGRIEVE WSBA representative in the ABA House of Delegates The 2013 midyear meeting of the American Bar Association will occur this year from February 6-12 in Dallas, Texas. The midyear meeting will include meetings of the Board of Governors, meetings of various sections and committees of the bar association, and the offering of a wide range of CLE classes. Additionally, on Monday, February 12 the ABA House of Delegates will meet to consider and vote on a series of resolutions. The House of Delegates is the policy making body of the ABA and is vested by the ABA Constitution and Bylaws with the control and administration of the ABA. The House of Delegates adopts policy on both legislative and national issues. This year the House of Delegates will consider approximately twenty resolutions ranging in subject matter from health care to intellectual property. A substantial portion of the resolutions address issues involving criminal law with a particular emphasis on indigent defense issues. Copies of the resolutions can be found at dallasmidyearmeeting.html. Click on Executive Summaries to read the resolutions and summaries of the issues they address. As of now the WSBA Board of Governors has not given the WSBA HOD delegation any direction on how it wants us to vote on any particular issues. Consequently the delegates are at liberty to vote as they choose. Please contact me if you have any questions, have strong feelings about any of the resolutions, or would like to discuss any of them. I can be reached at jpfairgrieve@msn.com or (503) Available for Consults Washington & Oregon Licensed Linda E. Frischmeyer ATTORNEY Over 25 Years Assisting to Achieve Employment Goals Respectful. Clear. Helpful. Wage payment Independent contractors Confidentiality Nonprofits Non-compete Performance Challenging behaviors Leave laws Disability accommodation Drug testing linda.frischmeyer@landerholm.com 805 Broadway, Ste Vancouver, WA OFFICE SHARE/SPACE FOR RENT 514 West 9th. Nice large office with bay windows recently remodeled. Receptionist, use of conference room, copy machine, kitchen and parking spot included. Block from courthouse. Utilities included. $650/mo. Adjoining smaller office available for asst? Charming landlord. Call Visit us online at: ccbawashington.org 20 CLARK COUNTY BAR ASSOCIATION

21 Part Two of Healthcare The ACA MARK SAMPATH Hearsay Special Correspondent In December of 2012, we discussed and gave an abridged overview of my family s experience of obtaining healthcare insurance individually, as opposed to through an employer. The goal was to provide attorneys some information regarding how the Affordable Care Act has made obtaining healthcare insurance more affordable. In part two of the series, as promised, I will provide a brief overview of the Affordable Care Act, the timeline for its implementation, and the effect it may have on small businesses, in this case, solo practioners and small law firms. It might be helpful to first provide a brief overview of the ACA which was passed in 2010 and which was recently substantially affirmed in the session of the U.S. Supreme Court. Main provisions of the ACA as it relates to insured s are intended to expand access to insurance, increase protections for consumers such as attorneys, and to emphasize prevention and wellness. The goal is to ensure that a number of individuals who are currently without insurance become insured. While the goals are commendable, overall support for the ACA among individuals has been more mixed. As we mentioned in last month s article, the ACA creates several advantages for insured s. First, as mentioned, it covers a great number of preventive care and maintenance procedures. These services will be covered without requiring a co-pay from the individual insured. The goal is to emphasize prevention and to deal with healthcare issues at an early stage in order to curb the overall cost of healthcare. Importantly, this has the indirect effect of making health insurance itself much more affordable for the average individual. Additionally, individuals, including attorneys, will no longer be unable to obtain insurance due to pre-existing conditions. As the Clark County attorney population is not composed of a bunch of spring chickens, this is fairly significant. Further, a substantial amount of funding will go toward research and coordinated efforts to address long term ways to increase both the overall health of our population and the efficiency in which healthcare is delivered and paid for. But the ACA also mandates certain obligations on the part of employers in terms of obtaining and paying for health insurance for its employees. Failure to do so will result in financial penalties in the form of increased taxes for employers. That said, it is important to remember that these obligations largely do not apply to smaller employers, which covers solo attorneys or small law firms. In terms of the timeline for implementing the ACA, keep in mind that certain provisions went into effect starting in January of Other parts of the ACA will go into effect between now and A timeline for the implementation of key provisions of the ACA that might specifically affect small businesses and or its attorneys is as follows. A few new tax increases specifically go into effect starting this month. 2010: insurers are required to implement an appeals process for coverage determination and claims on all new plans. 2010: insurers can no longer charge higher cost sharing for out-of-network emergency room care on new plans. 2010: insurance companies can no longer deny coverage to children under 19 with pre-existing medical conditions. 2010: Adult children can stay on their parents insurance plan until their 26th birthday. 2010: Free preventative services including blood pressure screening for adults, cancer screenings, hearing and vision screenings for children and newborns, certain immunizations, colonoscopies and annual mammograms. 2010: insurance companies can no longer cancel your coverage when you get sick. Insurance policies can only be canceled if the company proves you purposefully attempted to commit fraud when you enrolled. 2010: A temporary high risk insurance pool was created and designed to provide coverage to people with pre-existing health conditions who have been uninsured for at least six (6) months. 2010: Tax credits to help small businesses with employee premium costs. These credits are available for two (2) years to businesses with twenty-five (25) or fewer employees and an average wage of $50,000. This creates a maximum tax credit of up to 35% of employer contribution to employee insurance. 2011: Employers must disclose the value of the benefits they provided beginning in 2011 for each employee s health insurance coverage on the employee s annual form W : Flexible spending accounts, healthcare reimbursement arrangements and health savings accounts cannot be used to pay for over the counter drugs, purchased without a prescription, except for insulin. 2013: Effective January 1, self-employment and wages of individuals above $200,000 annually (or of families above $250,000 annually) will be subject to an additional tax of.5% 2013: A new.9% Medicare payroll tax on individuals who are self-employed and employees earning more than $200,000 HEARSAY - JANUARY

22 (or $250,000 for joint filers). Currently the Medicare payroll tax is 2.9% of all earned wages with workers and employers each paying 1.45%. 2013: a new 3.8% contribution to income generated from interest, dividends, capital gains, annuities, royalties and rents for individuals earning more than $200,000 annually (or of families above $250,000 annually). The tax does not apply to retirement plan distributions. 2013: a new $2,500 spending cap will be imposed on Flexible Spending Arrangements. This has been up until now unlimited. The cap will be indexed for inflation. 2013: an increase from 7.5% to 10% on the floor on itemized deductions for medical expenses. 2013: Open enrollment for health insurance exchanges begins on October 1, : Insurers are prohibited from discriminating against, rejecting, or charging higher rates for any individuals based on pre-existing medical conditions. 2014: establish health insurance exchanges, and subsidization of insurance premiums for individuals with income up to 400% of the poverty line, as well as single adults. 2014: Two years of tax credits will be offered to qualified small businesses. In order to receive the full benefit of a 50% premium subsidy, the small business must have an average payroll per full time equivalent employee, excluding the business owner, of less than $25,000, and have less than 11 full-time equivalent employees. The subsidy is reduced by 6.7% per additional employee and by 4% per additional $1,000 of average compensation. 2014: Set a maximum of $2,000 annual deductible for a plan covering a single individual or $4,000 annual deductible for any other plan. 2014: employed individuals who pay more than 9.5% of their income on health insurance premiums will be permitted to purchase insurance policies from a state-controlled health insurance option. 2014: Impose an annual penalty of $95, or up to 1% of income, whichever is greater, on individuals who do not obtain health insurance. This amount will rise to $695 or 2.5% of income, whichever is greater, by This is an individual limit with a limit on families of $2,085. Exemptions to this fine exist for religious beliefs or financial hardship. 2014: The qualifying medical expenses deduction for Schedule A tax filing increases from 7.5% to 10% of earned income. 2018: all existing health insurance plans must cover approved preventive care and check-ups without a co-payment. I hope all of the lawyers reading this memorize this information; there will be a test. So let s talk about the impact that the ACA will have on small businesses such as solo attorneys or small law firms. First of all and most importantly with regard to the ACA s employer mandate penalty and coverage provisions, if you have less than fifty (50) full-time employees or functional equivalents in terms of part-time employees, your business is exempt from them. This does not mean that you are denied access to some of the ACA benefits such as free preventive care; it just means that the penalty provisions do not apply to your business. Opting out of these requirements do not relieve you of paying the taxes that are imposed. There is no opt-out on the taxes unless it is based on your income. One of the main taxes that lawyers may incur starting 50\with the new year is the additional Medicare tax of.9%. That said, it only applies to wages over $200,000. Importantly for law firms, this tax is incurred by the attorney, not the firm, other than any administrative costs created as a result. Starting in 2014, individual attorneys will be required to have healthcare insurance, regardless of whether their law firm provides it. Given the mandatory rules for employers contain an exemption for law firms with less than 50 employees, it is likely that many small law firms in Vancouver will not provide health care insurance. If an individual attorney does not obtain insurance, they will face financial penalties, starting at 1% of income in 2014 and escalating to 2.5% in That said, in 2014, health care exchanges will be created which will allow individuals to pool with other individuals in order to obtain more cost effective insurance. On top of that, individuals will be entitled to subsidies on those premiums if they make up to 400% of the poverty level of income. In Washington State, the U.S. government set the poverty level for 2012 at $11,170 for a single person, $15,130 for a couple, and $23,050 for a family of four. The amount goes up by $3,960 for every family member. Based on this, a family of four could make up to $92,200 annually and could still qualify for subsidies towards the attorney s healthcare insurance costs based on the 400% of poverty threshold. So while there is a mandate that requires all individuals obtain healthcare insurance, many solo practioners or small law firm attorney without insurance will likely have the cost of health insurance at least partially subsidized. One negative for small law firms that decide to provide healthcare insurance for their attorneys and other support staff is that it will likely not qualify for the full 50% premium subsidy that start in 2014 and which replaces the 35% tax credit that went into effect in While there is such a credit for small businesses paying their employees insurance premiums, it starts to decline if the average employee makes $25,000 or more. Given the salary levels for most Clark County attorneys, it is likely that the tax credit will either not apply or will be significantly reduced. As you can see, the ACA is complicated and will take years to be completely phased in. There is something for everyone, both on the plus and minus side. But ultimately, it should make the cost of care for small law firms and solo attorneys more affordable and should result in an increasingly healthy population. Visit us online at: ccbawashington.org 22 CLARK COUNTY BAR ASSOCIATION