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Just Enough to Be Dangerous: The Intersection of Family Law and

the Legal System November 9, 2016 | WSBA Activity ID #1016051

4.5 Law and Legal and 1.0 Ethics CLE Credits

Agenda

8:30-9 a.m. Registration and Coffee Service

9-10 a.m. Session 1 - Choosing the Correct Path When Multiple Petitions, Objections to

Relocation and the UCCJEA Intersect

Speaker: Hon. Lori-Kay Smith, Chief Unified Family Court Judge, King County

Superior Court

10-11 a.m. Session 2: Business Assets

Issues around businesses assets and divorce; how to protect interests before

and during divorce ; do’s and don’ts of Property Settlement Agreements

governing division of business assets; the risks of restraining orders on business

assets; what happens to a business when an owner is restrained from disposing

of any of those assets while a divorce is in progress.

Speaker: Marguerite Smith, Flexx Law P.S

11-11:15 a.m. Break

11:15-12:15 p.m. Session 3: The Other Court - Where Divorce Meets Bankruptcy

Speakers: Gloria Nagler, Nagler Law Group P.S. and Michael Sperry, Nagler

Law Group P.S.

12:15-1:15 p.m. Lunch (on your own)

1:15-2:15 p.m. Session 4: Criminal Law

Issues such as when a family law client has a criminal case pending as well,

communication between attorneys representing that client for different matters

Speakers: Anne Carey and Linda Lillevik

2:15-2:30 p.m. Break

2:30-3:30 p.m. Session 5: Speed bumps on your Professional Path: Avoiding Ethical Collisions

Recent updates on ethical issues in family law and an exploration of

hypotheticals for family law practitioners.

Speaker: Anne Siedel , Law Office of Anne I. Seidel

3:30-4 p.m. Session 6 - Q & A with panel of speakers – Tips and Tricks of the Trade

Moderator: Rosemarie LeMoine

Faculty Biographies

Chairperson Rosemarie LeMoine Rosemarie graduated from St. Louis University School of Law in 1979, and came west to this wonderful city. She is a family law attorney, and has served as chair of the King County Bar’s Family Law Section, a member of the King County Bar Association’s Board of Trustees, and on other committees through the years. A favorite passion is enlisting other attorneys to help low income litigants with family law issues—thank you to everyone who has said yes, time and time again, to her pleas for help on the status conference or the 1 hour free program. In 1998, the King County Bar recognized her as the Pro Bono Attorney of the Year, and in 2000, the Washington State Bar gave her the Pro Bono Attorney award. Every June, she organizes the lawyers to march in PRIDE-a joyful celebration in our quest for equality for all. While I may have spoken up or asked, nothing I have done has been alone. Thank you to the lawyers—together, we have accomplished much!

Presenters Ann M. Carey Ann Carey has devoted her career to advocating for youth and families in the juvenile justice system. She is known as a talented litigator and defender for the accused: both adult and juvenile. Ann has litigated hundreds of felony, misdemeanor, and dependency cases in King County and the State of Washington. In addition to her work in juvenile justice, Ann represents youth and families in school district cases. She is committed to the needs and interests of youth. Ann currently, serves as president of the Board of Directors for TeamChild, a nonprofit organization that provides civil legal services to court-involved youth. Linda Lillevik Linda Lillevik is highly regarded for her representation of children, parents, and foster parents in proceedings that involve dependency, at-risk youth, truancy, and child-in-need of services. She is respected for fighting successfully against inappropriate and overzealous state intervention in the lives of her clients and their families. In addition to her work in dependency and child welfare cases, she practices in all areas of family law, including divorce, parenting plans, child support, domestic partnership, adoption, and appeals. Linda has more than 20 years of courtroom experience in King County; she has earned her reputation as a passionate and effective attorney. Gloria Z. Nagler Gloria Z. Nagler is the managing shareholder in the law firm of Nagler Law Group P.S., where she practices with the able and amiable Michael Sperry. She has finished serving as Past Chair of the Creditor-Debtor Section’s Executive Committee. Gloria was elected by her peers to be a Fellow in the American College of Bankruptcy, and was awarded the Sidney Volinn Award of Merit by her fellow bankruptcy lawyers in 2013. Her creditor-debtor practice includes Chapter 11 business reorganizations, Chapter 13 and Chapter 7 work, and individual creditor representation in bankruptcy matters. Her practice especially emphasizes clients with tax issues, small businesses in distress, and clients caught in complex divorce situations. Gloria served for five years as the Plan Trustee in the Spokane Catholic Diocese bankruptcy case and

found that work novel and interesting. During the Recession, NPR’s “Morning Edition” featured parts of an interview with Gloria on bankruptcy in the current economy. Gloria clerked in the mid-1980's for the now retired Honorable Robert W. Skidmore, U.S. Bankruptcy Judge for the Western District of Washington at Tacoma. She received her B.A. with distinction from the University of California at Berkeley and her J.D. from the University of Washington. Anne I. Seidel Anne I. Seidel represents lawyers on legal ethics issues, bar grievances and disciplinary proceedings. Anne previously worked at the Office of Disciplinary Counsel of the Washington State Bar Association, eventually becoming Chief Disciplinary Counsel. She was a member of the WSBA’s Special Committee for the Evaluation of the Rules of Professional Conduct that developed the revised RPCs adopted in 2006. She also served on the WSBA’s Rules of Professional Conduct Committee from 2010-2012 and is currently a member of the WSBA’s Committee on Professional Ethics. Anne is the author of the confidentiality chapter of the Washington Legal Ethics Deskbook. She graduated magna cum laude from Harvard Law School where she was an editor of the law review. Judge Lori-Kay Smith Judge Smith was appointed to the King County Superior Court bench on January 24, 2012, by Governor Christine Gregoire. She assumed the position previously occupied by Steven Gonzalez, who was appointed to the Washington State Supreme Court on January 1st of that year. Judge Smith started her legal career with the King County Prosecuting Attorney’s Office in its Family Support Division, which establishes paternity and establishes, modifies and enforces obligations to pay child support. She became a senior deputy prosecuting attorney and later was made the Managing Attorney of the Kent Family Support Division office responsible for these support enforcement cases. She also handled occasional civil commitment, welfare fraud, and felony drug trials during her more than 20 years with the PAO. In 2006, Judge Smith was named a King County Superior Court Commissioner, where she presided over domestic violence protection order hearings; family-law motions; and support modification, non- parental custody matters, dependency cases and civil commitment trials. She also served as a judge pro tem in family law trials. Judge Smith earned her bachelor’s degree in criminal justice from Eastern Washington University before graduating from the University of Washington School of Law. She has been active in her community, volunteering as a YWCA Leaders in Progress Mentor, providing free legal help at the Angeline’s Women’s Shelter Legal Clinic, serving on the Washington Association of Prosecuting Attorney’s Support Enforcement Project Best Practices committee and helping to develop the King County Bar Association Kinship Care Program. As a judicial officer she has presented at many CLE’s and at the Washington State Guardian ad Litem training, as well as serving on various court committees including the King County Superior Court Executive Committee. She is now the Chief Unified Family Court Judge. Marguerite (Maggie) Smith, Marguerite (Maggie) Smith, LLB Hons; JD, is the President of the Seattle law firm Flexx Law, PS. She is a member of the Bars of Washington State, Minnesota, District of Columbia, England and Wales. She has practiced family law for over 20 years. She is a frequent speaker both locally and internationally. Among the many topics she has covered are asset protection, including closely held business interests in divorce. She authored The New Standard, Marriage/Divorce, Protecting the Closely Held Business (Lulu

Press) in addition to the USA-Washington State section of the Family Law, Jurisdictional Comparisons, European Lawyer Reference Series published by Thompson Reuters and has co-authored the International Law Chapter of the Washington State Bar Association Family Law Desk Book. Michael M. Sperry Michael M. Sperry graduated from Willamette University College of Law as a member of the Order of the Barrister. Mr. Sperry’s practice focuses on Creditor-Debtor work including representation of debtors in out of court settlements, chapter 7 filings, chapter 13 filings, representing creditors in cases under various chapters of the Bankruptcy Code, and representing creditors’ committees. Mr. Sperry has presented at several CLE programs for both the Washington State Bar Association and King County Bar Association on topics relating to Creditor-Debtor law, and was recently elected as an officer of the King County Bar Association’s Bankruptcy Law Section. Mr. Sperry is licensed in Washington State Court as well as the Federal Courts for the Western and Eastern Districts of Washington.

The Intersection of Family & the Rest of the Legal System – 11/9/2016 Session 2 – Business Assets

Page 1 - Smith

VALUATION

FACT PATTERN #1

The client has an equipment leasing company. He is a 100% shareholder. He is in

his mid- fifties and until recently had no plan to sell. However, over the years

inquiries have been made by several companies. With his marriage in shambles

he is toying with the idea of a sale and has entertained some negotiations in a

half- hearted fashion with one interested company. He says he might sell for the

“right price”.

With the help of a CPA he has depreciated his equipment to the full extent

permitted by law. He started his business with some community capital and some

money from the sale of his pre marriage business. He has been in this line of work

all of his working life. His spouse has had no involvement in the business and

wants to have no involvement after their divorce. There is ample evidence that

the company could go on without him. However, it seems likely that any buyer

would want him to work a year or two under a transition employment contract.

In the negotiations with a prospective buyer he has been disappointed in a

proposed sale price. The prospective purchaser has made it clear that when the

purchaser buys the stock the new company will take on the liability for

depreciation recapture when the assets are sold in the future. This has severely

affected the proposed sale price. The deal would include him working for the

company for two years with a non -compete for another three years.

Discuss the issues raised in this fact pattern with your client.

FACT PATTERN # 2

Two dentists decide to divorce. They married immediately before commencing

their practices. One (your client) works for his own practice in which he has 100%

ownership. His spouse works for a dental practice as an employee. She has no


Page 2 - Smith

financial stake in the practice where she is employed other than the anticipated

continuance of her job as an employee.

Opposing counsel has suggested a valuation of your client’s practice. Your client

hits the roof. How, he says, can opposing counsel suggest that his practice be

valued and not hers? He is looking to you for answers.

Respond to his question.

REDEMPTION FROM EVERYONE’S POINT OF VIEW:

FACT PATTERN #3

Your client is a minority shareholder (owning less than 2% of the stock) of a large

closely held commercial architecture firm. The facts take place just before a

dramatic downturn in the real estate market in 2008. Your client has suspected

that a downturn may come and is worried. Her fears seem to be supported by

some negative industry reports in the press. A well- known competitor just went

under. she has been working her way up the corporate ladder but does not yet

have in her opinion the stock to show for it. She anticipates a greater interest in

the near future if all continues well with the company.

The shareholder agreement provides two formulas for corporate redemption of

employee stock: one formula lists ‘acceptable’ reasons for redemption such as

retirement; this formula produces a higher value for redemption. The second list

includes ‘unacceptable’ reasons for redemption such as attempted ‘sale or

assignment’ to non- approved recipients (ie. those not to the company or

approved transactions with its shareholders). The ‘unacceptable’ category

includes a forced redemption by the company at a much lower valuation.

The shareholder spouse takes issue with both values believing them both to be

too high to use in her divorce. They are tied to an annual audit by a prestigious

accounting firm upon what your client believes is too optimistic an economic

outlook for the industry.


Page 3 - Smith

The couple have little liquidity. The stock is the major community asset apart from

their home. Your client’s spouse has been a homemaker for the last five years

after losing his job due to a downturn in the market. His prospects of employment

in his field seem bleak for the near future.

All the shares and other assets are community property.

Advise your client, the shareholder spouse.

How would you advise the non -shareholder spouse if he were your client?

Fact Pattern #4

Change the above facts a little: What if the shareholder spouse owned a

significant minority interest and was a highly valued employee? How would you

advise the corporation if you were the corporate lawyer? How would this affect

your advice to the shareholder spouse or alternatively the homemaker spouse if

you were either of their attorneys?

Fact Pattern #5

Change the facts from Fact Pattern #4 a little further: What if the downturn

occurs (or the corporation fears that it will occur) during the divorce and the

corporation becomes cash strapped (or thinks that it may soon be cash

strapped). How does that affect advice from all the attorneys to their clients?

GOOD FAITH AND FAIR DEALING:

Fact Pattern #6

A 100% business owner comes into your office and says that she has hidden

business assets from her husband. What discussion do you have with her?

Fact Pattern #7

A 100% business owner comes to you and says that after separation from her

spouse she formed a new company with a fellow shareholder/ employee from the


Page 4 - Smith

community business to do specialized work that can be sold to the community

business and others. She got the idea after a prospective purchaser requested

some work be done by the community business which it was not equipped to do.

She then rented the necessary equipment under the name of the new enterprise

and is pulling in orders.

Advise.

CHARACTERIZATION

Fact Pattern # 8

A 100% business owner marries. He has a prenuptial agreement stating that the

business is his separate property.

As the years go by the non -business spouse starts to work in the business for no

pay. She shows a talent for the line of work and eventually becomes the CEO and

has a position on the board. Many of the employees now go to her rather than

the husband for direction in the day to day running of the business. The business

owner has always taken a salary commensurate with others in the industry of a

like skill. The company has paid out several dividends to the husband, however on

occasions the husband has taken bonuses.

At the start of the marriage most of the dividends were placed by him into an

account in his name which was identified in the prenuptial as his separate

account. However, over the years many have become comingled in numerous

community accounts and assets.

The husband has been approached by a prospective purchaser to buy the

company from him. The wife has been left entirely out of the negotiations to

date.

The wife comes to you for advice concerning a divorce. She would rather that

the divorce be amicable and without litigation. Advise her.


Page 5 - Smith

RESTRAINING ORDERS AND LITIGATION ISSUES.

Fact Pattern #9

There are several shareholders in the business. There is no majority shareholder.

The husband, who is the shareholder spouse has had an affair and the wife

recently found out. She is angry and now no longer trusts him in any matter

including his business dealings which had not been the case before this discovery.

They separate. She wants a divorce.

There have been negotiations to merge the business with another and sell the

bundle to another large company. The board is in favor of the transaction and it

will go to the shareholders for a vote. All are in favor except for one large minority

shareholder Ms. Minority who appears to hold some bizarre ideas about the deal.

(This shareholder had obtained her stock in a divorce before the shareholder

agreement was changed to introduce a more restrictive corporate redemption

clause. She was the cause of the change. Now the clause mandates corporate

redemption of stock if a shareholder tries to sell or assign any stock to prospective

purchasers who are not the corporation or approved shareholder transactions.)

Ms. Minority intends to vote against the deal but will not be able to stop it by

herself due to her percentage share of the stock. She needs an ally and goes to

the wife of the shareholder spouse. She manages to convince the shareholder’s

spouse that the deal is bad; that she should stop it; that she should go to the

divorce court and at least get a restraining order restraining her husband from

voting and hence increasing Ms. Minority’s percentage vote to one that could

defeat the sale. The shareholder spouse thinks this is probably a good idea and

mentions that her husband has been drinking heavily on occasions since their

separation.

The complexity of the extent of community and separate business interests will

undoubtedly become a highly litigated issue if this matter goes to court.

She obtains an emergency restraining order pending a full hearing on the motions

calendar.

The shareholder spouse now comes to you to discuss the impact of the

restraining order and next steps.


Page 6 - Smith

His wife has just told him that her attorney wants a list of all the customers of the

business and will demand them in discovery. The wife says that the attorney

wants to discuss the potential merger and sale with the customers to see if it is a

good idea for his client. The shareholder spouse has warned his company and

everyone there is panicking. The company’s position is that the list is confidential

and word of the merger and sale must not get out as it could spook the customers

and employees of the company.

Discuss what you might advise if you were alternatively the shareholder

spouse’s attorney; the corporate attorney; the wife’s attorney. Include in the

analysis ways to defuse the situation; possible early mediation; how to

safeguard the interests of all.

The Intersection of Family Law and the Rest of the Legal System

Session 3 - The Other Court - Where Divorce Meets Bankruptcy

1

THE OTHER COURT

Where Divorce Meets Bankruptcy

November 2016Gloria Z. Nagler

Michael M. SperryNagler Law Group, P.S.

TYPES OF BANKRUPTCY

Chapter 9: Bankruptcy of Municipality

Chapter 12: Bankruptcy for Family Farmers



2

Chapter 7

Straight Liquidation Bankruptcy

Over 90% no asset in Western District

Panel Trustee appointed in each case

Discharge for individuals, not corporations



3

Chapter 13

Reorganization for individuals

Must have regular income

Debt limits:Secured: $1,184,200Unsecured: $394,725

Plan goes 36 to 60 months



4

Only individuals can file

Trustee is Standing Trustee(not panel of trustees)

Chapter 11

Can be reorganization or liquidation

Individuals, corporations, partnerships can file



5

FILING FOR MARRIED COUPLES

Bankruptcy can be single or joint filing

For joint filing, debtors must be married; can be separated, but not divorced



6

Can file single case even if married

Both spouses in joint filing must be eligible for joint discharge:

8-year bar for Chapter 7s4-year bar for Chapter 13s 6-month bar for some dismissals



7

Cannot force spouse to file jointly

Can sometimes file other spouse into involuntary bankruptcy, e.g., to stop assets from disappearing

Bifurcation of joint cases possible where couple separates or can no longer cooperate in existing joint case



8

ADVANTAGES TO JOINT FILING

Cheaper: only one filing fee

No race to courthouse

Discharge for both

Eliminates assignment of debts and hold-harmless enforcement.



9

DISADVANTAGES TO JOINT FILING

Less control over exemptions

Defaults to federal exemptions if spouses cannot agree

Effect on separate property: May be used to pay community debts under distribution statute



10

Brings into case other spouse’s discharge issues (e.g., fraud,conversion, etc.)

Sometimes better to file“bad actor” into her ownbankruptcy.



11

In Chapter 13, must make joint decisions

Post-filing separation could present non-waivable conflict

MEETING OF CREDITORS (§341)

In joint cases, both spouses must attend

In rare case, may do by interrogatories



12

PROPERTY OF BANKRUPTCY ESTATE (§ 541)

All CP, and Debtor’s SP comes into estate when case filed

First spouse to file brings all CP and debtor’s SP into estate and determines exemptions: § 541(a)(2)



13

This is one of those timesyou race to the courthouseif both spouses will inevitably file while married.

If spouses can wait tofile bankruptcy untildivorce is final, onlydebtor’s property is effected.



14

Property awarded under divorce decree or inherited within 180 days of filing also becomes property of the estate, even if case has closed.

In rare cases property settlements can be attacked as fraudulent transfers



15

Usually requires collusion between parties.

Exception to CP coming in: § 541(a)(2)

If managing spouse notdebtor, community business assets do not come into estate unless debtor has incurred liability for business debts



16

COMMUNITY PROPERTY TRANSFERRED PREPETITION

Trustee can recover certain transferred property:

Unperfected transfers that are subordinate to lien creditors or bfps (§ 544)

e.g., unrecorded Deed of Trust or unrecorded Quit Claim Deed awarded in dissolution; unrecorded car title transfer



17

Preferential Transfers (§ 547):

Payment of maintenance and child support exempt from recovery by bankruptcy Trustee

90-day look back for non-insiders

1-year look back for insiders



18

Ex-spouse not necessarily “insider” for statute of limitations purposes.

In re Schuman, 81 B.R. 583 (9th Cir. BAP 1987) appealed from C.D.Cal.

Attorneys’ fees paid prepetition will not be recoverable by Trustee if fees were paid “in the ordinary course” , e.g., if paid within billing cycle.



19

Advance fee deposit heldin IOLTA at time of client’sbankruptcy filing, though,will come into the bankruptcyestate.

In certain situations perhapsflat fee could be paid pre-petition for post-petitionservices.



20

Fraudulent Transfers (§ 548)

e.g., disproportionate award in dissolution

Elements include:

No reasonably equivalent value given and

Debtor insolvent on transfer date or



21

Debtor about to engage or engaged in undercapitalized business or

Debtor intended to incur debts beyond ability to pay

Recovered prepetition transfers can be applied in the bankruptcy estate to separate debts of debtor-spouse even if transferred property was CP

§ 541(a)(3)



22

EFFECTS OF DISSOLUTION DURING BANKRUPTCY

CP remains CP where dissolution occurs postpetition

State court’s division of CP will be ineffective except as to exempted property



23

Best practice is to get property abandoned from estate

Inheritance comes in within first 180 days, so have clients’ parents consider spendthrift trust provisions in wills



24

EXEMPTIONS Objections

Deadline to object is 30 days after First Meeting of Creditors or

30 days after amendment is filed

Even baseless exemptions allowed if no timely objection



25

If only one spouse files:

If no exemptions filed, debtor’s dependent may elect exemptions to protect CP: § 522(l)

First spouse to file will determine exemptions of CP



26

If spouses file jointly:

Cannot “stack” federal & stateIf cannot agree, defaults to federal

Most exemption amounts double in joint cases (not state homestead)



27

AUTOMATIC STAY (§ 362)

Stays all judicial proceedings, actions against debtor

Actions in violation of stay are void (not just voidable) in Ninth CircuitIn re Schwartz, 954 F.2d 569 (9th Cir. 1992)



28

Need relief from stay order to proceed with division of assets which are within jurisdiction of bankruptcy court

Can request assets be abandoned as part of motion for relief



29

Automatic stay would not apply to money ordered withheld for payment of support obligations, even those assigned to gov’t entities§ 362(b)(2)(C)

Automatic stay does not apply to lawful interception of tax refunds for purpose of collecting support obligations, § 362(b)(2)(F)



30

Family Law-related Exceptions to Stay: § 362(b)(2)

Do not need relief from stay for exceptions:

Collection of support from property not in estate

In Chapter 13 cases post-petition income remains property of the estate.



31

Establishment of paternity

Establishment or modification of maintenance or child support



32

Establishment or modification of child custody or visitation

Dissolution of marriage



33

Actions regarding domestic violence

What is “property of the estate”?

Chapter 11 or 13: Better practice to seek relief from stay if you want access to income or assets



34

Postpetition wages in Chapters 7 notproperty of estate

However, do not execute on income until after stay protecting debtor has dissolved.



35

DURATION OF STAY:§ 362(c)

As to property of the estate:

When property no longer property of estate Exempt, abandoned, sold

Or when case closes.



36

As to acts against the debtor:

Earliest of: When case is closed Case is dismissed or Discharge is granted or denied

CHAPTER 7 DISTRIBUTION

Community claim (§ 101(7)) Prenuptial claim against debtor-spouse may be community claim if debt reduced to judgment within 3 years of marriage. RCW 26.16.200



37

Separate tort judgment against debtor-spouse may be community claim even though under state law only debtor’s half of CP is liable

Debtor’s SP can be used to pay community claims pro rata with debtor’s separate claims § 726



38

EFFECT OF DISCHARGE (§ 524)

Who gets benefit of discharge:

Joint filing: Both spouses

Single filing: Only debtor

Discharge enjoins collection of prepetition community liability from CP exempted or acquired after case is filed

§ 524(a)(3)



39

Thus, community creditors are enjoined from collecting on claims against the couple’s after-acquired community property.

Without her own discharge, the non- debtor spouse’s protection depends on the status of the property.



40

Death or divorce will render the community property separate, thus liable for non-debtor’s debts (because no protection under §524(a)(3)).

Nondischargeable Debts:

Community debts:Can be collected from CP or SP if it's a nondischargeable community debte.g., certain taxes



41

EXCEPT:

1. As against non-debtor’s separate property, because separate property was not property of the estate.

Spouse’s discharge enjoins collection

State law determines whether the separate property of a non-debtor spouse is liable for community claims



42

Collection not barred where debtor’s spouse filed bankruptcy within six years of the date of the filing of debtor’s case AND spouse did not get discharge.

§ 524(b)(1)

Collection not barred where grounds exist for nondischargeability against non-debtor spouse.§ 524(b)(2)



43

Creditor must bring § 523(a)adversary proceeding withindeadlines established indebtor’s bankruptcy case

AND

Must name both spouses.

DISCHARGEABILITY OF SUPPORT OBLIGATIONS

§ 523(a) enumerates exceptions to discharge:

Child support (§ 523(a)(5)) Maintenance (§ 523(a)(5))

Neither dischargeable in any bankruptcy chapter



44

What is “maintenance”? Courts look beyond decree’s language: Shaver v. Shaver, 736 F.2d 1314 (9th Cir. 1984)

In determining whether or not a debt qualifies as maintenance courts look to: Need for support Presence of minor children Imbalance in income of parties



45

Obligation terminates on death or remarriage of recipient spouse

Payments direct to recipient spouse

DISCHARGEABILITY OF NON-SUPPORT OBLIGATIONS

§ 523(a)(15) enacted in 1994:

Applies to debts incurred in dissolution or separation



46

Most common would behold harmless debts

Still dischargeable in Chapter 13 (but watch for conversion to Chapter 7)



47

Since October 2005, such debts are automatically nondischargeable in Chapters 7 and 11.

Nondischargeable as betweenspouses. E.g., Visa can nolonger sue on the debt.



48

Still dischargeable in Chapter 13

Best to file bankruptcybefore any debts arisein the divorce or separation



49

CHALLENGING DISCHARGEABILITY

§ 523(a)(5) “true support” debts:

B.R. 4007(a): May file action at any time and may even reopen case to do so

STATE COURT REMEDY AFTER DISCHARGE

Marriage of Myers, 54 Wash. App. 233, 773 P.2d 118 (1989)

State courts can consider financial impact of ex-spouse’s bankruptcy on nondebtor spouse in modifying maintenance



50

EFFECT OF BANKRUPTCY ON PROFESSIONALS’ FEES

Fees owed to guardian ad litem from child custody proceeding is in nature of support and nondischargeable even though fees owed to third party (guardian). In re Chang, 163 F.3d 1138 (9th Cir. 1998).

Ninth Circuit held identity of payee not as important as nature of debt



51

In re Gionis, 170 B.R. 675 (9th

Cir. BAP 1994) from C.D.Cal.

Fees of $185,000 awarded to ex-wife held nondischargeable, even though trial court had awarded no support ,because Shaver factors present

Today, under §523(a)(15),such debt would be non-dischargeable because owed to spouse and incurred during divorce or separation.



52

In re Messinger, 241 B.R. 697 (Bankr.D.Id 1999)

Fees nondischargeable under § 523(a)(5) must be paid as priority claim in Chapter 13

In re Dollager, 260 B.R. 493 (9th

Cir. BAP 2001) from N.D.CalAttorney lacked standing to sue under § 523(a)(15) for fees (non-support)because must be owed to spouse, former spouse or dependent of debtor



53

REPORTING SUPPORT OBLIGATIONS

At time of discharge Trustee must notify holders of support claims of last known address of debtor, address of debtor’s employer, all nondischargeable debts and reaffirmed debts

Support obligations are first priority. Claims not assigned to gov’t entity are given priority over assigned claims.§507(a)(1)



54

Chapter 13 Plan will not be confirmed unless debtor has made all post-petition support payments

Chapter 13 debtor will not receive discharge unless all support obligations are fully paid



55

Sale of Community Property

§ 363(h), trustee can sell co-owned Property because ALL CP comes into bankruptcy estate even with onlyone spouse filing.

Non-debtor spouse still has rightof first refusal to buy at saleprice under § 363(i), althoughtrustee need not bring adversaryproceeding as is required under§ 363(h) (where non-spouse is co-owner).



56

Homestead and Timing:

In re Wilson, 341 B.R. 21 (9th Cir BAP 2006) from W.D.Wash Debtor divested of ownership in home by divorce decree (and ex-wife was ordered to sell home) before Bankruptcy filed.

Need not be “owner” in Washington to claim homestead, but must have at least an equitable interest.

Here, divorce decree left debtor with neither legal nor equitable interest,so homestead exemption denied.

Best Case BankruptcySchedule C: Statute Summary Page 1

AUG 24,201612:48PM

Sperry, Michael M

Statute Limit Claimed Available8/24/2016 #

Alimony or child support11 U.S.C. § 522(d)(10)(D)

0.00

Crime victims' compensation11 U.S.C. § 522(d)(11)(A)

0.00

Disability, sickness, or unemployment benefits11 U.S.C. § 522(d)(10)(C)

0.00

Health aids11 U.S.C. § 522(d)(9)

0.00

Household goods and furnishings, wearing apparel, appliances, books, animals, crops, or mu11 U.S.C. § 522(d)(3)

12,625.00 0.00 12,625.00

Jewelry11 U.S.C. § 522(d)(4)

1,600.00 0.00 1,600.00

Life insurance payments needed for support11 U.S.C. § 522(d)(11)(C)

0.00

Life insurance policy with loan value or accrued dividend or interest11 U.S.C. § 522(d)(8)

12,625.00 0.00 12,625.00

Lost earnings compensation payments11 U.S.C. § 522(d)(11)(E)

0.00

Motor vehicle11 U.S.C. § 522(d)(2)

3,775.00 0.00 3,775.00

Personal injury compensation payments11 U.S.C. § 522(d)(11)(D)

23,675.00 0.00 23,675.00

Real property or personal property used as residence11 U.S.C. § 522(d)(1)

23,675.00 0.00 23,675.00

Retirement accounts exempt from taxation under Internal Revenue Code11 U.S.C. § 522(d)(12)

0.00

Social security benefits, unemployment compensation, or local welfare benefits11 U.S.C. § 522(d)(10)(A)

0.00

Stock bonus, pension, profit sharing, annuity, and similar plans11 U.S.C. § 522(d)(10)(E)

0.00

Tenancy by the entirety (may not be allowed in some jurisdictions)11 U.S.C. § 522(b)(3)(B)

0.00

Tools or implements of trade, professional books11 U.S.C. § 522(d)(6)

2,375.00 0.00 2,375.00

Unmatured life insurance policy (other than credit life)11 U.S.C. § 522(d)(7)

0.00

Veterans' benefits11 U.S.C. § 522(d)(10)(B)

0.00

Wildcard (aggregate interest in any property, not to exceed $1,250 plus up to $11,850 of u11 U.S.C. § 522(d)(5)

13,100.00* 0.00 13,100.00

Wrongful death payments11 U.S.C. § 522(d)(11)(B)

0.00


AUG 24,201612:49PM

Sperry, Michael M


AnnuitiesWash. Rev. Code § 6.15.020(1)

0.00

Annuity contract benefits: $3,000/monthWash. Rev. Code § 48.18.430

0.00

Building materials used to improve property subject to lien from 60.04 RCWWash. Rev. Code § 60.04.150

0.00

Burial grounds sold by nonprofit cemetery assns.Wash. Rev. Code §§ 68.20.120, 68.24.220

0.00

Child SupportWash. Rev. Code § 6.15.010(1)(c)(iv)

0.00

Crime victim's compensationWash. Rev. Code §§ 7.68.070(10), 51.32.040

0.00

Disability benefitsWash. Rev. Code § 48.18.400

0.00

Earnings from work releaseWash. Rev. Code § 72.65.060

0.00

Farmer: farm stock, trucks, tools, seeds and suppliesWash. Rev. Code § 6.15.010(1)(d)(i)

10,000.00 0.00 10,000.00

Federal pension benefits-exempt except child supportWash. Rev. Code § 6.15.020(2)

0.00

Fire insurance proceeds from exempt propertyWash. Rev. Code § 6.15.030

0.00

Fraternal Benefit Society benefitsWash. Rev. Code § 48.36A.180

0.00

Funds of children placed with child welfare servicesWash. Rev. Code § 74.13.070

0.00

Homestead (lesser of net value of lands, manufactured homes, mobile home, improvements & pWash. Rev. Code §§ 6.13.010, 6.13.020, 6.13.030

125,000.00 0.00 125,000.00

Household goods, furnishings, provisions, up to $750 per itemWash. Rev. Code § 6.15.010(1)(c)(i)

6,500.00 0.00 6,500.00

Income or proceeds from trustWash. Rev. Code § 6.32.250

0.00

Life insurance proceedsWash. Rev. Code § 48.18.410

0.00

Life insurance proceeds - GroupWash. Rev. Code § 48.18.420

0.00

Motor vehicleWash. Rev. Code § 6.15.010(1)(c)(iii)

3,250.00 0.00 3,250.00

Not farmer or professional: tools of tradeWash. Rev. Code § 6.15.010(1)(d)(iii)

10,000.00 0.00 10,000.00

Other personal property (except earnings); up to $1,500 in cash; up to $500 in bank accouWash. Rev. Code § 6.15.010(1)(c)(ii)

3,000.00 0.00 3,000.00

Personal bodily injury payments - not to exceed $20,000; or payment for loss of future earWash. Rev. Code § 6.15.010(1)(c)(vi)

0.00

Private library, including electronic media, up to $3,500 per individual; family picturesWash. Rev. Code § 6.15.010(1)(b)

0.00


AUG 24,201612:49PM

Sperry, Michael M


Proceeds of sale of homestead or insurance covering damage-to amount homestead is exemptWash. Rev. Code § 6.13.070

0.00

Professional: library, furnishings, tools, supplies of professionalWash. Rev. Code § 6.15.010(1)(d)(ii)

10,000.00 0.00 10,000.00

Professionally prescribed health aidsWash. Rev. Code § 6.15.010(1)(c)(v)

0.00

Property of incompetent held by guardianWash. Rev. Code § 11.92.060

0.00

Public assistanceWash. Rev. Code §§ 74.04.280, 74.08.210

0.00

Retirement - police and fireWash. Rev. Code §§ 41.26.053, 41.20.180, 41.24.240, 43.43.310

0.00

retirement account exemptionRCW 6.15.020

0.00

Retirement benefits - teachersWash. Rev. Code §§ 41.32.590, 41.32.052, 41.32.055

0.00

Retirement benefits - state employeesWash. Rev. Code §§ 41.40.380, 41.40.052

0.00

Retirement benefits - city employeesWash. Rev. Code §§ 41.44.240, 41.28.200

0.00

Retirement benefits - JudgesWash. Rev. Code §§ 2.10.180, 2.12.090

0.00

Retirement, disability benefits-exempt except alimony, child supportWash. Rev. Code § 6.15.020(3)

0.00

Separate property of spouse-certain circumstancesWash. Rev. Code §§ 6.15.040 and 26.16.200

0.00

Specific partnership propertyWash. Rev. Code § 25.04.250

0.00

Tuition units under chapter 28B.95 RCW, purchased more than 2 yrs prior to filing, or contWash. Rev. Code § 6.15.010(1)(e)

0.00

Unemployment compensationWash. Rev. Code § 50.40.020

0.00

Uniforms, firearmsWash. Rev. Code § 38.40.150

0.00

Wages, salary, or other compensation for personal servicesWash. Rev. Code § 6.27.150

0.00

Wearing apparel-not to exceed $3,500 in furs, jewelry, personal ornaments per individualWash. Rev. Code § 6.15.010(1)(a)

0.00

Worker's compensation under industrial insurance lawWash. Rev. Code § 51.32.040

0.00


Session 3 - The Other Court - What You Can Keep in a Bankruptcy - Nagler-Sperry

1

November 2016

Gloria Z. NaglerMichael Sperry

Nagler Law Group, P.S.720 Olive Way, Suite 1000

Seattle, WA 98101206 224 3462

www.naglerlaw.com

Two Sets of Exemptions: Federal (§ 522(d)) and State RCWs

Opting Out of the Federal Scheme: Congress allowed states to “opt out” of

federal exemption scheme and majority of states have done so.



2

Washington has not opted out and so, pursuant to §522(b)(1), debtors can choose either federal or state exemptions.

Under § 522(c), exempt property revests in the debtor, free from dischargeable prepetition debts, except, for example: nondischargeable taxes (e.g.,

payroll taxes, sales tax, last 3 years of income tax)



3

support obligations, including maintenance and child support

unavoided liens attaching to the exempt property



4

Section 522(e) makes waivers of exemptions unenforceable.

Federal exemptions increase automatically every 3 years by a small percentage.

Last change was April 2016.



5

Washington state exemptions increase only when state legislature so decrees.

Personal property exemptions increased last year for cases filed on or after July 22, 2011.



6

If spouses file separately, the first spouse to file determines exemptions.

That’s because, pursuant to §541(a)(2), all community property comes in the estate.

So that the first to file brings it into her estate.



7

If filing spouse fails to exempt anything then nondebtor spouse can amend to exempt assets under § 522(l).

Non-debtor can not otherwise affect debtor’s exemptions.



8

In joint case, which can be only married couple, exemptions double under federal scheme (§522(m)) and for some state personal property exemptions.

Under § 522(b), in joint case, spouses must choose same scheme – cannot mix federal and state exemptions. If they cannot agree, they are deemed to have elected the federal scheme.



9

If a debtor fraudulently transfers property, e.g., her home, before the filing of the bankruptcy, the debtor loses her homestead exemption should the Trustee unwind the transfer. § 522(g),(h)

If debtor unwinds the transfer before the bankruptcy and before anyone discovers the transfer, the debtor may be able to retain the exemption.



10

Under the federal exemptions, a single debtor is entitled to a homestead exemption of $23,675.00. The exemption doubles if the filing is joint.

Under the state exemptions, the homestead exemption is $125,000 for either single or joint debtor(s).



11

The homestead exemption is automatic if the debtor lives in the residence.

If the debtor lives elsewhere, then the debtor should file a declaration of homestead beforefiling a bankruptcy.



12

Under Washington state law, a married couple is entitled to just one homestead exemption, even if each spouse lives in a different house.

Under federal exemptions, the homestead applies if the debtor resides or a dependent of the debtor resides in the home. §522(d)(1).



13

Under state exemption personal property can qualify as homestead. Probably under

federal, too.

Under state exemption, there is $15,000 exemption for personal property used as a residence, e.g., boat or car if debtor lives there. RCW 6.13.010.



14

Federal: Under section 522(d)(5), the debtor may use up to $11,850 of any unused homestead exemption, plus $1,250 as a wildcard, i.e., for any property selected by the debtor.

In a joint case, the federal wildcard exemption amounts double.



15

State: wildcard exemption is far stingier -- $3,000, with only $1,500 of that amount eligible to exempt cash. This exemption does not double in a joint case.

Federal: $3,775 for single debtor, double for joint.

State: $3,250 for single debtor, double for joint.



16

ERISA qualified pensions may not be property of estate. Patterson v. Shumate, 504 U.S. 753 (1992). They are, however, exempt under §522(d)(12) .

Under Washington state exemptions, IRAs are exempt. RCW 6.15.020(3).



17

Under federal exemptions, IRAs and other retirement savings vehicles, are exempt only to the extent reasonably necessary for support of debtor and dependents. §522(d)(10)(E)

Spendthrift trusts, under § 541(c), do not come into the bankruptcy estate if such trusts are valid under applicable state law.



18

Under Washington law, spendthrift trusts are valid. RCW 6.32.250.

If it’s possible for client to inherit in the 6 months following the filing of a bankruptcy, the benefactor should change her will to create a spendthrift trust for the prospective debtor.



19

State law exempts 100% of life insurance “proceeds and avails” where the beneficiary is other than the debtor. RCW 48.18.410.

Federal law: § 522(d)(7) exempts unmatured life insurance contract owned by the debtor. § 522(d)(8) limits the exemption of the aggregate interest to $12,625.



20

If the policy was purchased on the eve of bankruptcy, however, the trustee will likely challenge the transfer or bring motion for denial of discharge of the debtor.

Federal: Maintenance and child support is exempt to the extent reasonably necessary for support.

§ 522(d)(10)(D).



21

State: Child support is exempt. R.C.W. 6.15.010(3)(d). The exemption is not based on reasonableness but the monies must be capable of being traced.

Federal: Under § 522(d)(11)(D) up to $23,675 is exempt for “payments on account of personal bodily injury”. This does not include compensation for pain and suffering or actual pecuniary loss.



22

State: Until recently, no exemption for personal injury existed. Now, under RCW 6.15.010, up to $20,000 is exempt on the same conditions as in the federal statute.

So beware of how damages are categorized!

Since personal injury proceeds are separate property, this exemption does not double in a joint case.



23

State:

R.C.W. 6.15.010(1)(c)(vi), future earnings exempt to the extent reasonably necessary.

Federal:

§ 522(d)(11)(E), future earnings exempt to the extent reasonably necessary.



24

State:

Under R.C.W. 6.15.010(1))(d)(iii), $10,000 is available to each qualified debtor.

Federal:

Under § 522(d)(6), only $2,375 is available to qualified debtors.



25

State:

$6,500 (double if joint) under R.C.W. 6.15.010(1)(c)(i), no item to exceed $750.00.

Federal:

$12,625 (double if joint) under § 522(d)(3), no item to exceed $600.00.

The Intersection between Family Law and the Rest of the Legal System

Session 4: Criminal Law ‐ Dependency & CPS Issues in Family Law ‐ Lillevik

1

DEPENDENCY AND CPS ISSUES INFAMILY LAW CASES

Linda LillevikCarey & Lillevik, PLLC

Criminal

Dependency

Administrative



2

1. GENERAL ADVICEIf you have the accused:

GET THEM ATTORNEYS

1) CPS2) CRIMINAL

If you are accused, you are

assumed guilty by CPS. Do

NOT trust

the system.



3

If you have the accused:

KEEP THEIR

MOUTH SHUT

If you have the innocent spouse:

1) Get proof - Doctor- Therapist- Other mandated reporter- Take pictures of injury

2) Don’t use as a sword. - Abusive use of conflict – see In re Marriage of Burrill.



4

2. INVESTIGATION A. Joint Interview

B. FTDM (Family Team Decision Meeting)

C. Innocent Spouse Can Lose Child

D.Placement with Family can be prevented - RCW 13.34.065(5)(f)

3. ANATOMY OF A

DEPENDENCY CASE



5

A. DEFINITION OF A DEPENDENCY

1. Abandonment

2. Abuse or Neglect – RCW 26.44.020

3. No parent, guardian or custodian capable of providing adequate care

4. Receiving extended foster care services under RCW 74.13.031



6

B. Shelter Care Status-Temporary physical care

C. Dependency Finding

C. Staying the Process- Civil action can, and often should, be stayed pending the outcome of the criminal proceedings.

4. HOW THE FAMILY

LAW ATTORNEY CAN

USE THE DEPENDENCY

PROCESS



7

A. Discovery-Get the police report(s) before a charge is filed

B. Interview of the child

C. Immunity for Evaluations-RCW 26.44.053

5. CHILDHOOD MALTREATMENT MAY AFFECT BRAIN DEVELOPMENT

A. The effect on memory

B. Separation from parent to whom attached



8

6. WENATCHEE CASES

FOR THE YOUNG

7. ADMINISTRATIVE CASES

A. As bad or worse for a parent, nurse or teacher, etc.

B. Tell the client to “appeal, appeal, appeal.”

C. Costanich v. DSHS



9

D. Caseworker’s Facebook- “Profession: Baby snatcher”- “I need to make money so I’m going to pick up some meth babies.”

RPC REVISIONS EFFECTIVE SEPTEMBER 1, 2016

By Anne I. Seidel

Attached are changes to the Rules of Professional Conduct effective September 1, 2016. The

most important are the following:

RPC 1.1 (competence)

Comment [8] now states that to maintain competence, a lawyer must, inter alia, keep abreast of

“the benefits and risks associated with relevant technology.” Newly added comments [6], [7]

and [9] address lawyers delegating work to other lawyers who are not part of their law firm.

RPC 1.6 (confidentiality)

RPC 1.6(b)(7) permits revelation of client information to check for conflicts when lawyers

change firms, when firms merge, or when a law practice is purchased.

RPC 1.6(c) requires lawyers to take reasonable steps to prevent inadvertent or unauthorized

disclosure of, or access to, client information.

RPC 5.3 (nonlawyer assistants)

New comment [3] addresses use of nonlawyers who are not employed by the law firm, such as

investigators, document management services, and cloud storage companies.

RPC 5.5 (multi-jurisdictional practice of law)

RPC 5.5(d) has been broadened to include lawyers only admitted in foreign jurisdictions; it

permits, with some restrictions, lawyers not admitted in Washington to provide legal services

here that are either temporary services to an employer or permitted by federal or other law.

RPC 7.2 (advertising)

Comment [5] to RPC 7.2 now explicitly states that a lawyer cannot pay anyone for

recommending the lawyer and also addresses use of lead generators. If you are using any third-

party websites for marketing, you should review this comment.

RPC 7.3 (direct solicitation)

Washington did not adopt verbatim the ABA’s proposed revisions to RPC 7.3, which would have

broadened the prohibition against direct solicitation to include intermediaries who themselves are

not potential clients. See comment [14] to RPC 7.3. Comment [1] now defines “solicitation.”

RPC 7.3(a)(3) permits direct contact with a potential client who requested a referral from a not-

for-profit referral service, such as a county bar.

RPC 8.5 (choice of law)

Comment [5] allows a lawyer to agree with a client about which jurisdiction’s rules will apply,

but only for conflict of interest purposes and such an agreement is not necessarily determinative.

rtLI:D

~220~ THE SUPREME COURT OF w ASHIN~TMb~ . IN THE MATTER OF THE PROPOSED ) AMENDMENTS TO RULES OF PROFESSIONAL ) CONDUCT (RPC) l.OA- TERMINOLOGY, 1.1 - ) COMPETENCE, 1.2 - SCOPE OF ) REPRESENTATION AND ALLOCATION, 1.4- ) COMMUNICATION, 1.5- FEES, 1.6- ) CONFIDENTIALITY OF INFORMATION, 1.10- ) IMPUTATION OF CONFLICTS OF INTEREST: ) GENERAL RULE, 1.14- CLIENT WITH ) DIMINISHED CAP A CITY, 1.17- SALE OF LAW ) PRACTICE, 1.18 -DUTIES TO PROSPECTIVE ) CLIENT, 4.4 -RESPECT FOR RIGHTS OF THIRD ) PERSON, 5.3- RESPONSIBILITIES ) REGARDING NONLAWYER ASSISTANTS, 5.5- ) UNAUTHORIZED PRACTICE OF LAW; ) MULTIJURISDICTIONAL PRACTICE OF LAW, ) 6.5 -NONPROFIT AND COURT-ANNEXED ) LIMITED LEGAL SERVICE PROGRAMS, 7.1- ) COMMUNICATIONS CONCERNING A ) LAWYERS SERVICES, 7.2-ADVERTISING, 7.3 ) -DIRECT CONTACT WITH PROSPECTIVE ) CLIENTS, AND 8.5- DISCIPLINARY ) AUTHORITY; CHOICE OF LAW )

) )

ORDER

NO. 25700-A- ,, L/ {p

The.Washington State Bar Association, having recommended the adoption of the

proposed amendments to Rules of Professional Conduct (RPC) 1.0A- Terminology, 1.1-

Competence, 1.2- Scope ofRepresentation and Allocation, 1.4- Communication, 1.5-

Fees, 1.6 - Confidentiality of Information, 1.10 - Imputation of Conflicts of Interest: General

Rule, 1.14- Client with Diminished Capacity, 1.17- Sale of Law Practice, 1.18- Duties to

Prospective Client, 4.4- Respect for Rights of Third Person, 5.3- Responsibilities Regarding

Nonlawyer Assistants, 5.5- Unauthorized Practice of Law; Multijurisdictional Practice of Law,

6.5 -Nonprofit and Court-Annexed Limited Legal Service Programs, 7.1- Communications

Concerning a Lawyers

ORDER IN THE MATTER OF THE PROPOSED AMENDMENTS TO RULES OF PROFESSIONAL CONDUCT (RPC) l.OA- TERMINOLOGY, et al.

Services, 7.2- Advertising, 7.3- Direct Contact with Prospective Clients, and 8.5-

Disciplinary Authority; Choice of Law, and the Court having considered the amendments and

comments submitted thereto, and having dete1111ined that the proposed amendments will aid in

the prompt and orderly administration of justice;

Now, therefore, it is hereby

ORDERED:

(a) That the new rules as attached hereto are adopted.

(b) That the new rules will be published in the Washi!lgton Reports and will become

effective September 1, 2016. ,J, . DATED at Olympia, Washington this {).. /"' day of June, 2016.

~~~ c:.rz HI~(}

RULES OF PROFESSIONAL CONDUCT RULES: l.OA, 1.1, 1.2, 1.4, 1.5, 1.6, 1.10, 1.14, 1.17, 1.18, 4.4, 5.3, 5.5, 6.5,

7.1, 7.2, 7.3, 8.5

(a)- (m) [Unchanged.]

RULE l.OA

TERMINOLOGY

(n) "Writing" or "written" denotes a tangible or electronic record of a communication or

representation, including handwriting, typewriting, printing, photostating, photography,

audio or videorecording and e-mail electronic communications. A "signed" writing includes

an electronic sound, symbol or process attached to or logically associated with a writing and

executed or adopted by a person with the intent to sign the writing.

Comment

Screened

******** [9] [Washington revision] The purpose of screening is to assure the affected parties that

confidential information known by the personally disqualified lawyer or LLLT remains

protected. The personally disqualified lawyer or LLLT should acknowledge the obligation

not to communicate with any of the other lawyers or LLLTs in the firm with respect to the

matter. Similarly, other lawyers or LLLTs in the firm who are working on the matter should

be informed that the screening is in place and that they may not communicate with the

personally disqualified lawyer or LLLT with respect to the matter. Additional screening

measures that are appropriate for the particular matter will depend on the circumstances. To

implement, reinforce and remind all affected lawyers or LLLTs of the presence of the

screening, it may be appropriate for the ±inn to undertake such procedures as a written

undertaking by the screened lawyer or LLL T to avoid any communication with other firm

personnel and any contact with any firm files or other materials information, including

information in electronic form~ relating to the matter, written notice and instructions to all

other firm personnel forbidding any communication with the screened lawyer or LLLT

relating to the matter, denial of access by the screened lawyer or LLLT to firm files or other

materials information, including information in electronic form, relating to the matter and

periodic reminders of the screen to the screened lawyer or LLL T and all other firm personnel.

RULE 1.1

COMPETENCE

A lawyer shall provide competent representation to a client. Competent representation

requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for

the representation.

Comment

********

Retaining or Contracting With Other Lawyers

[ 6] Before a lawyer retains or contracts with other lawyers outside the lawyer's own firm

to provide or assist in the provision of legal services to a client, the lawyer should ordinarily

.obtain informed consent from the client and must reasonably believe that the other lawyers' .

. services will contribute to the competent and ethical representation of the client. See also .

. Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6.

(confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the

decision to retain or contract with other lawyers outside the lawyer's own firm will depend

upon the circumstances, including the education, experience and reputation of the nonfirm

lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections,,

professional conduct rules, and ethical environments of the jurisdictions in which the services,

will be performed, particularly relating to confidential information.

[7] [Washington revision] When lawyers or LLLTs from more than one law firm are

providing legal services to the client on a particular matter, the lawyers and/or LLLTs

ordinarily should consult with each other and the client about the scope of their respective

representations and the allocation of responsibility among them. See Rule 1.2. When making

allocations of responsibility in a matter pending before a tribunal, lawyers, LLLTs, and

parties may have additional obligations that are a matter of law beyond the scope of these

Rules.

Maintaining Competence

[e~] 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, engage in continuing study and education and comply with all continuing legal

education requirements to which the lawyer is subject.

Additional Washington Comment§...(1 9-1 0)

[9] This rule applies to lawyers only when they are providing legal services. Where a

lawyer is providing nonlawyer services ("supporting lawyer") in support of a lawyer who is

providing legal services ("supported lawyer"),, the supported lawyer should treat the

supporting lawyer as a nonlawyer assistant for purposes of this rule and Rule 5.3

(Responsibilities Regarding Nonlawyer Assistants).

f7 1 0 ] In some circumstances, a lawyer can also provide adequate representation by

enlisting the assistance of an LLL T of established competence, within the scope of the

LLLT's license and consistent with the provisions of the LLLT RPC. However, a lawyer

may not enter into an arrangement for the division of the fee with an LLL T who is not in the

same firm as the lawyer. See Comment [7] to Rule 1.5(e); LLLT RPC 1.5(e). Therefore, a

lawyer may enlist the assistance of an LLLT who is not in the same firm only (1) after

consultation with the client in accordance with Rules 1.2 and 1.4, and (2) by referring the

client directly to the LLLT.

RULE 1.2

SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY

BETWEEN LAWYER AND CLIENT

(a)- (f) [Unchanged.]

Comment

Allocation of Authority between Client and Lawyer

[1] [Washington revision] Paragraph (a) confers upon the client the ultimate authority to

determine the purposes to be served by legal representation, within the limits imposed by law

and the lawyer's professional obligations. The decisions specified in paragraph (a), such as

whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the

lawyer's duty to communicate with the client about such decisions. With respect to the

means by which the client's objectives are to be pursued, the lawyer shall consult with the

client as required by Rule 1.4( a)(2) and may take such action as is impliedly authorized to

carry out the representation. See also Rule 1.1, comments [ 6] and [ 1 OJ as to decisions to

associate other lawyers or LLL Ts.

(a)- (b) [Unchanged.]

Comment

******** Communicating with Client

RULE 1.4

COMMUNICATION

[2] [Washington revision] If these Rules require that a particular decision about the

representation be made by the client, paragraph (a)(1) requires that the lawyer promptly

consult with and secure the client's consent prior to taking action unless prior discussions

with the client have resolved what action the client wants the lawyer to take. For example, a

lawyer who receives from an opposing lawyer an offer of settlement in a civil controversy or

a proffered plea bargain in a criminal case must promptly inform the client of its substance

unless the client has previously indicated that the proposal will be acceptable or unacceptable

or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a). See also Rule

1.1, comments [ 6] and [ 1 OJ as to decisions to associate other lawyers or LLLTs.

********

[4] A lawyer's regular communication with clients will minimize the occasions on which

a client will need to request information concerning the representation. When a client makes

a reasonable request for infonnation, however, paragraph (a)(4) requires prompt compliance

with the request, or if a prompt response is not feasible, that the lawyer, or a member of the

lawyer's staff, acknowledge receipt of the request and advise the client when a response may

be expected. Client telephone calls should be promptly returned or acknovlledged. A

lawyer should promptly respond to or acknowledge client communications.


Comment

******** Division of Fee

RULE 1.5

FEES

[7] [Washington revision] A division of fee is a single billing to a client covering the fee

of two or more lawyers who are not in the same finn. A division of fee facilitates association

of more than one lawyer in a matter in which neither alone could serve the client as well, and

most often is used when the fee is contingent and the division is between a referring lawyer

and a trial specialist. Paragraph (e) permits the lawyers to divide a fee either on the basis of

the proportion of services they render or if each lawyer assumes responsibility for the

representation as a whole. In addition, the client must agree to the arrangement, including the

share that each lawyer is to receive, and the agreement must be confirmed in writing.

Contingent fee agreements must be in a writing signed by the client and must otherwise

comply with paragraph (c) of this Rule. Joint responsibility for the representation entails

financial and ethical responsibility for the representation as if the lawyers were associated in

a partnership. A lawyer should only refer a matter ·to a lawyer whom the referring lawyer

reasonably believes is competent to handle the matter. See Rule 1.1. See also Rule 1.1,

comments [6] and [10] as to decisions to associate other lawyers or LLLTs. See also

Washington Comment [18].

RULE 1.6

CONFIDENTIALITY OF INFORMATION

(a) [Unchanged.]

(b) A lawyer to the extent the lawyer reasonably believes necessary:

( 1)- (6) [Unchanged.]

(7} may reveal information relating to the renresentation to detect and resolve

con flicts of interest arising from the lawyer's change of emnloyment or from changes in

the comnosition or owriershi]2 of a finn, but only if the revealed information would not

nromise the attorney-client ]2rivilege or otherwise nrejudice the client; com

(f~) may reveal information relating to the representation of a client to inform a

trib unal about any breach of fiduciary responsibility when the client is serving as a court-

app ointed fiduciary such as a guardian, personal representative, or receiver.

(c}

disclos

A lawyer shall make reasonable efforts to nrevent the inadvertent or unauthorized

ure of, or unauthorized access to, information relating to the renresentation of a client.

Comm ent

****** ** Detectz ·on of Conflicts o(Jnterest

[13 ] [Washington revision] Paragranh (b}(7} recognizes that lawyers in different firms

may n

in teres

eed to disclose limited information to each other to detect and resolve conflicts of

t, such as when a lawyer is considering an association with another finn, two or more

firms a re considering a merger, or a lawyer is considering the nurchase of a law nractice. See

.17, Comment [7]. Under these circumstances, lawyers and law finns are nermitted to Rule 1

disclos

relation

e limited information, but only once substantive discussions regarding the new

shin have occurred. Any such disclosure should ordinarily include no more than the

identity of the nersons and entities involved in a matter, a brief summary of the general issues

i

i

nvolved, and information about whether the matter has terminated. Even this limited

nformation, however, should be disclosed only to the extent reasonably necessary to detect

and resolve conflicts of interest that might arise from the possible new relationship.

Moreover, the disclosure of any infonnation is prohibited if it would compromise the

attorney-client privilege or otherwise prejudice the client (e.g., the fact that a corporate client

i s seeking advice on a corporate takeover that has not been publicly announced; that a person

has consulted a lawyer about the possibility of divorce before the person's intentions are

known to the person's spouse; or that a person has consulted a lawyer about a criminal

1 nvestigation that has not led to a public charge). Under those circumstances, paragraph (a)

prohibits disclosure unless the client or former client gives informed consent. A lawyer's

fiduciary duty to the lawyer's firm may also govern a lawyer's conduct when exploring an

association with another finn and is beyond the scope of these Rules. See also Rule 1.1,

comment [6], [7], and [10] as to decisions to associate other lawyers or LLLTs.

[ 14] Any information disclosed pursuant to paragraph (b )(7) may be used or further

disclosed only to the extent necessary to detect and resolve conflicts of interest. Paragraph

(b )(7) does not restrict the use of information acquired by means independent of any

disclosure pursuant to paragraph (b)(7). Paragraph (b)(7) also does not affect the disclosure.

of information within a law firm when the disclosure is otherwise authorized, see Comment

[5], such as when a lawyer in a firm discloses i~fonnation to another lawyer in the same firm

to detect and resolve conflicts of interest that could arise in connection with undertaking a

new representation.

Acting Competently to Preserve Confidentiality

[~-1-6] Paragraph (c) requires a A lawyer ffil:lSt to act competently to safeguard information

relating to the representation of a client against unauthorized access by third parties and

against inadvertent or unauthorized disclosure by the lawyer or other persons who are

participating in the representation of the client or who are subject to the lawyer's supervision.

See Rules 1.1, 5.1 and 5. 3. The unauthorized access to, or the inadvertent or unauthorized

disclosure of, information relating to the representation of a client does not constitute a

violation of paragraph (c) if the lawyer has made reasonable efforts to pre_vent the access or

disclosure. Factors to be considered in determining the reasonableness of the lawyer's efforts

mclude, but are not limited to, the sensitivity of the information, the likelihood of disclosure

if additional safeguards are not employed, the cost of employing additional safeguards, the

difficulty of implementing the safeguards, and the extent to which the safeguards adversely

affect the lawyer's ability to represent clients (e.g., by making a device or important piece of

software excessively difficult to use). A client may require the lawyer to implement special

security measures not required by this Rule or may give informed consent to forgo security

measures that would otherwise be required by this Rule. Whether a lawyer may be required

to take additional steps to safeguard a client's information in order to comply with other law,

,such as state and federal laws that govern data privacy or that impose notification

requirements upon the loss of, or unauthorized access to, electronic information, is beyond

the scope of these Rules. For a lawyer's duties when sharing information with nonlawyers

outside the lawyer's own firm, see Rule 5.3, Comments [3]-[4].

[ 19-l-1] When transmitting a communication that includes information . relating to the

representation of a client, the lawyer must take reasonable precautions to prevent the

information from coming into the hands of unintended recipients. This duty, however, does

not require that the lawyer use special security measures if the method of communication

affords a reasonable expectation of privacy. Special circumstances, however, may warrant

special precautions. Factors to be considered in detennining the reasonableness of the

lawyer's expectation of confidentiality include the sensitivity of the infonnation and the

extent to which the privacy of the communication is protected by law or by a confidentiality

agreement. A client may require the lawyer to implement special security measures not

required by this Rule or may give informed consent to the use of a means of communication

that would otherwise be prohibited by this Rule. Whether a lawyer may be required to take

additional steps in order to comply with other law, such as state and federal laws that govern

data privacy, is beyond the scope of these Rules.

Former Client

[20-l-&]

Additional Washington Comments(~ 21-28)

[21-l-9]

[22~]

[23U]

[24~]

[25:6J]

[2624]

[27U]

[28U]

RPC 1.10 IMPUTATION OF CONFLICTS OF INTEREST:

GENERAL RULE


Comment

******** Additional Washington Comments (9 :_ 14)

Principles of Imputed Disqualification

********

[11] Under Rule 5.3, this Rule also applies to nonlawyer assistants and lawyers who

previously worked as nonlawyers at a law firm. See Daines v. Alcatel, 194 F.R.D. 678 (E.D.

Wash. 2000); Richard§ v. Jain, 168 F. Supp. 2d 1195 (W.D. Wash. 2001). For the definition

of nonlawyer for the purposes of Rule 5.3, see Washington Comment [J ~]to Rule 5.3.

RPC 1.14 CLIENT WITH DIMINISHED CAPACITY

(a)- (c) [Unchanged.]

Comment

******* [4] [Washington revision] If a legal representative has already been appointed for the

client, the lawyer should ordinarily look to the representative for decisions on behalf of the

client. In matters involving a minor, whether the lawyer should look to the parents as natural

guardians may depend on the type of proceeding or matter in which the lawyer is

representing the minor. If the lawyer represents the guardian as distinct from the ward, and is

aware that the guardian is acting adversely to the ward's interest, the lawyer may have an

obligation to prevent or rectify the guardian's misconduct. See Rules 1.2( d) and 1.6(b )f7~).

RULE 1.17 SALE OF LAW PRACTICE

A lawyer or a law firm may sell or purchase a law practice, or an area of law practice,

including good will, if the following conditions are satisfied:

(a)- (d) [Unchanged.]

Comment

Client Confidences, Consent and Notice

[7] [Washington revision] Negotiations between seller and prospective purchaser prior

to disclosure of information relating to a specific representation of an identifiable client no

more violate the confidentiality provisions of Rule 1.6 than do preliminary discussions

concerning the possible association of another lawyer or mergers between firms, with respect

to which client consent is not required. Providing the purchaser access to detailed client

specific information relating to the representation, such as the client's file, and to the file,

however, requires client consent. But see Rule 1.6(b)(7) (permitting disclosure of information

relating to the representation in limited circumstances to detect and resolve potential conflicts

of interest). The Rule provides that before such infonnation can be disclosed by the seller to

the purchaser the client must be given actual written notice of the contemplated sale,

including the identity of the purchaser, and must be told that the decision to consent or make

other arrangements must be made within 90 days. If nothing is heard from the client within

that time, 9onsent to the sale is presumed.

RULE 1.18 DUTIES TO PROSPECTIVE CLIENT

(a) A person who consults discusses with a lawyer about the possibility of forming a

client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no · client-lawyer relationship ensues, a lawyer who has learned

information from had discussions vlith a prospective client shall not use or reveal that

information learned in the consultation, except as Rule 1.9 would permit with respect to

information of a former client or except as provided in paragraph (e).

(c)- (d) [Unchanged.]

(e) A lawyer may condition conversations a consultation with a prospective client on the

person's informed consent that no information disclosed during the consultation will prohibit

the lawyer from representing a different client in the matter. The prospective client may also

expressly consent to the lawyer's subsequent use of information received from the

prospective client.

Comment

[1] Prospective clients, like clients, may disclose information to a lawyer, place

documeq.ts or other property in the lawyer's custody, or rely on the lawyer's advice. A

lawyer's consultations discussions with a prospective client usually are limited in time and

depth and leave both the prospective client and the lawyer free (and sometimes required) to

proceed no further. Hence, prospective clients should receive some but not all of the

protection afforded clients.

[2] [Washington revision] Not all persons 'vvho communicate information to a lawyer are

entitled to protection under this R11le. A person becomes a prospective client by consulting

with a lawyer about the possibility of forming a client-lawyer relationship with respect to a

matter. Whether communications, including written, oral, or electronic communications,

constitute a consultation depends on the circumstances. For example, a consultation is likely

to have occurred if a lawyer, either in person or through the lawyer's communications in any

medium, specifically requests or invites the submission of information: about a potential

representation without clear and reasonably understandable warnings and cautionary

statements that limit the lawyer's obligations, and a person provides information in response.

,See also Comment [ 4]. In contrast, a consultation does not occur if a person provides

mformation to a lawyer in response to a communication that merely describes the lawyer's

education, experience, areas of practice, and contact information, or provides legal

information of general interest. Such a person A person vmo communicates information

unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to

discuss the possibility of. forming a client-lawyer relationship, and is thus not a "prospective

client./' 'Within the meaning of paragraph (a). Moreover, a person who communicates with a

_lawyer for the purpose of disqualifying the lawyer is not a "prospective client." See also

Washington Comment [10].

********

[ 4] In order to avoid acquiring disqualifying information from a prospective client, a

lawyer considering whether or not to undertake a new matter should limit the initial

consultation interview to only such information as reasonably appears necessary for that

purpose. Where the infonnation indicates that a conflict of interest or other reason for non

representation exists, the lawyer should so inform the prospective client or decline the

representation. If the prospective client wishes to retain the lawyer, and if consent is possible

under Rule 1.7, then consent from all affected present or former clients must be obtained

before accepting the representation.

RULE4.4

RESPECT FOR RIGHTS OF THIRD PERSONS

(a) [Unchanged.]

(b) A lawyer who receives a document or electronically stored information relating to the

r epresentation of the lawyer's client and knows or reasonably should know that the document

0 r electronically stored information was inadvertently sent shall promptly notify the sender.

c omment

********

[2] Paragraph (b) recognizes that lawyers sometimes receive ~ documents or

e lectronically stored information that was were mistakenly sent or produced by opposing

p arties or their lawyers. A document or electronically stored information is inadvertently sent

w hen it is accidentally transmitted, such as when an email or letter is misaddressed or a

document or electronically stored information is accidentally included with information that

w as intentionally transmitted. If a lawyer knows or reasonably should know that such a

document or electronically stored information was sent inadvertently, then this Rule requires

the lawyer to promptly notify the sender in order to permit that person to take protective

measures. Whether the lawyer is required to take additional steps, such as returning the

original document or electronically stored information, is a matter of law beyond the scope of

these Rules, as is the question of whether the privileged status of a document or

electronically stored infonnation has been waived~ Similarly, this Rule does not address the

legal duties of a lawyer who receives a document or electronically stored information that the

lawyer knows or reasonably should know may have been v;rongfully inappropriately

obtained by the sending person. For purposes of this Rule, "document or electronically stored

information" includes in addition to paper documents, email and other forms of electronically

stored infonnation, including embedded data (commonly referred to as "metadata"}, that is e-

mail or other electronic modes of transmission subject to being read or put into readable

fonn. Metadata in electronic documents creates an obligation under this Rule only if the

receiving lawyer knows or reasonably should know that the metadata was inadvertently sent

to the receiving lawyer.

[3] Some lawyers may choose to return a document or delete electronically stored

information unrea d, for exam le when the law er learns before rec ivin it the do Cl:lffient p ' y e g-

that it was inadvertently sent to the '.Vrong address. Where a lawyer is not required by

applicable law to do so, the decision to voluntarily return such a document or delete

electronically stored information is a matter of professional judgment ordinarily reserved to

the lawyer. See Rules 1.2 and 1.4.

RULE5.3

RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS

With respect to a nonlawyer employed or retained by or associated with a lawyer:


Comment

[1~] Paragraph (a) requires lawyers with managerial authority within a law firm to make

reasonable efforts to ensure that the firm has in effect measures giving__to establish internal·

policies and proeed-:..wes designed to provide reasonable assurance that nonlawyers in the firm

.and nonlawyers outside the firm who work on finn matters will act in a way compatible with

the professional obligations of the lawyer R11les of Professional Cond-:..!et. See Comment [6] .

. to Rule 1.1 (retaining lawyers outside the firm) and Comment [1] to Rule 5.1 (responsibilities

.with respect to lawyers within a firm). Paragraph (b) applies to lawyers who have

supervisory authority over such nonlawyers within or outside the firm. the work of a

nonlawyer. Paragraph (c) specifies the circumstances in which a lawyer is responsible for the

conduct of such nonlawyers within or outside the finn a nonlawyer that would be a violation

of the Rules of Professional Conduct if engaged in by a lawyer.

Nonlawvers Within the Firm

[2.+] Lawyers generally employ assistants in their practice, including secretaries,

investigators, law student interns, and paraprofessionals. Such assistants, whether employees

or independent contractors, act for the lawyer in rendition of the lawyer's professional

services. A lawyer must give such assistants appropriate instruction and supervision

concerning the ethical aspects of their employment, particularly regarding the obligation not

to disclose information relating to representation of the client, and should be responsible for

their work product. The measures employed in supervising nonlawyers should take account

of the fact that they do not have legal training and are not subject to professional discipline.

Nonlawyers Outside the Firm

[3] [Washington revision] A lawyer may use nonlawyers outside the firm to assist the

lawyer in rendering legal services to the client. Examples include the retention of an

mvestigative or paraprofessional service, hiring a document management company to create

and maintain a database for complex litigation, sending client documents to a third party for

printing or scanning, and using an Internet-based service to store client information. When

using such services outside the firm, a lawyer must make reasonable efforts to ensure that the

,services are provided in a manner that is compatible with the lawyer's professional

obligations. The extent of this obligation will depend upon the circumstances, including the

.education, experience and reputation of the nonlawyer; the nature of the services involved;

the terms of any arrangements concerning the protection of client information; and the legal

.and ethical environments of the jurisdictions in which the services will be perfonned, ·

_particularly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of

.authority), 1.4 (communication with client), 1.6 (confidentiality), 5.4(a) (professional

independence of the lawyer), and 5.5(a) (unauthorized practice oflaw). When retaining or

directing a nonlawyer outside the finn, a lawyer should communicate directions appropriate

under the circumstances to give reasonable assurance that the nonlawyer's conduct is

compatible with the professional obligations of the lawyer. Where an outside lawyer is

retained to provide nonlegal services, the lawyer should be treated like a nonlawyer assistant.

See also comment [9] to Rule 1.1.

[ 4] Where the client directs the selection of a particular nonlawyer service provider

outside the firm, the lawyer ordinarily should agree with the client concerning the allocation

of responsibility for monitoring as between the client and the lawyer. See Rule 1.2. When

making such an allocation in a matter pending before a tribunal, lawyers and parties may

have additional obligations that are a matter oflaw beyond the scope of these Rules.

Additional Washington Comment (~ J)

W fJtA nonlawyer for purpose of this Rule denotes an individual other than a lawyer or

an LLLT acting as such. For responsibilities regarding an LLLT associated with a lawyer,

see Rule 5.1 0. If a lawyer or an LLLT in a firm is providing services that do not require use

of the lawyer's or the LLLT's license, then lawyers at the firm should treat such a lawyer or

LLL T as a nonlawyer assistant under this Rule rather than as a subordinate lawyer under

Rule 5.1 or as an LLLT under Rule 5.10. See also Additional Washington Comment [9] to

Rule 1.1.

RULE5.5

UNAUTHORIZED PRACTICE OF LAW;

MULTIJURISDICTIONAL PRACTICE OF LAW


(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction,

and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof,

may provide legal services in this jurisdiction that:

(1)are provided to the lawyer's employer or its organizational affiliates and are (i)

provided on a temporary basis and (ii) not services for which the forum requires pro hac vice

admission; and, when performed by a foreign lawyer and requires advice on the law of this or

another jurisdiction or of the United States, such advice shall be based upon the advice of a

lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or

(2) are services that the lawyer is authorized to provide by federal law or other law or

rule to provide in ef this jurisdiction.

·(e) For purposes of paragraph (d), the foreign lawyer must be a member in good standing

of a recognized legal profession in a foreign jurisdiction, the members of which are admitted

to practice as lawyers or counselors at law or the equivalent, and are subject to effective

regulation and discipline by a duly constituted professional body or a public authority.

Comment

[1] A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to

practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may

be authorized by court mle or order or by law to practice for a limited purpose or on a

restricted basis. Paragraph (a) applies to unauthorized practice of law by a lawyer, whether

through the lawyer's direct action or by the lawyer assisting another person. For example, a

lawyer may not assist a person in practicing law in violation of the mles governing

professional conduct in that person's jurisdiction.

*******

[5] There are occasions in which a lawyer admitted to practice in another United States

jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide

legal services on a temporary basis in this jurisdiction under circumstances that do not create

an unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c)

identifies four such circumstances. The fact that conduct is not so identified does not imply

that the conduct is or is not authorized. With the exception of paragraphs (d)(l) and (d)(2),

this Rule does not authorize a U.S. or foreign lawyer to establish an office or other systematic

and continuous presence in this jurisdiction without being admitted to practice generally or as

house counsel under APR 8(f) here.

*******

[7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any

United States jurisdiction, which includes the District of Columbia and any state, territory or

commonwealth of the United States. Paragraph (d) also applies to lawyers admitted in a

foreign jurisdiction. The word "admitted" in paragraphs (c), (d) and (e) contemplates that the

lawyer is authorized to practice in the jurisdiction in which the lawyer is admitted and

excludes a lawyer who while technically admitted is not authorized to practice, because, for

example, the lawyer is on inactive status.

[8] [Washington revision] Paragraph (c)(l) recognizes that the interests of clients and

the public are protected if a lawyer admitted only in another jurisdiction associates with a

lawyer licensed to practice in this jurisdiction. For this paragraph to apply, however, the

lawyer admitted to practice in this jurisdiction must actively participate in and share

responsibility for the representation of the client. See also Rule 1.1, comment [ 6].

*******

[15] [Washington revision] Paragraph (d)ill identifies ooe another circumstance in

which a lawyer who is admitted to practice in another United States or a foreign jurisdiction,

and is not disbarred or suspended from practice in any jurisdiction, or the equivalent thereof,

may provide legal services on a temporary basis i.e. as "in-house counsel" for an employer.

Paragraph (d)(2) identifies a circumstance in which such a lawyer may establish an office or

other systematic and continuous presence in this jurisdiction for the practice of law. as well

as provide legal services on a temporary basis. Except as provided in paragraph ( d)(2), a

lawyer who is admitted to practice law in another United States or foreign jurisdiction and

who establishes an office or other systematic or continuous presence in this jurisdiction must

become admitted to practice law generally in this jurisdiction or as house counsel under APR

8(f). The Washington version of this comment has been amended to take account of the,

requirement that in-house counsel wishing to engage in non-temporary practice in.

Washington must either be generally admitted to practice under Admission and Practice Rule

3 or obtain a limited license to practice law as in-house counsel under Admission and

Practice Rule 8(f).

[16] Paragraph (d)(1) applies to a U.S. or foreign lawyer who is employed by a client to

provide legal services to the client or its organizational affiliates, i.e., entities that control, are

controlled by, or are under common control with the employer. This paragraph does not

authorize the provision of personal legal services to the employer's officers or employees.

The paragraph applies to in-house corporate lawyers, government lawyers and others who are

employed to render legal services to the employer. The lawyer's ability to represent the

employer outside the jurisdiction in which the lawyer is licensed generally serves the

interests of the employer and does not create an unreasonable risk to the client and others

because the employer is well situated to assess the lawyer's qualifications and the quality of

the lawyer's work. To· further decrease any risk to the client, when advising on the domestic

law of a United States jurisdiction or on the law of the United States, the foreign lawyer

authorized to practice under paragraph (d)(1) of this Rule needs to base that advice on the

advice of a lawyer licensed and authorized by the jurisdiction to provide it.

[17] [Washington revision] In Washington, paragraph (d)(1) applies to lawyers who are

providing the services on a temporary basis only. If an employed lawyer establishes an

office or other systematic presence in this jurisdiction for the purpose of tendering legal

services to the employer, the lawyer must seek general admission under APR 3 or house ·

counsel admission under APR 8(£).

[18] Paragraph (d)(2) recognizes that a U.S. or foreign lawyer may provide legal services

in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal or

other law, which includes statute, court rule, executive regulation or judicial precedent.

Comment

RPC 6.5 NONPROFIT AND COURT -ANNEXED

LIMITED LEGAL SERVICE PROGRAMS

Additional Washington Comments ( 6 - 7)

******* [7] Paragraph (a)(3) was taken from former Washington RPC 6.5(a)(3) as enacted in

2002. The replacement of "confidences and secrets" in paragraph (a)(3) with "information

relating to the representation" was necessary to conform the language of the Rule to a

terminology change in Rule 1.6. No substantive change is intended. See Comment [+921] to

Rule 1.6.

RULE 7.1

COMMUNICATIONS CONCERNING A LAWYER'S SERVICES

A lawyer shall not make a false or misleading communication about the lawyer or the

lawyer's services. A communication is false or misleading if it contains a material

nisrepresentation of fact or law, or omits a fact necessary to make the statement considered as

a whole not materially misleading.

Comment

******* [3] An advertisement that truthfully reports a lawyer's achievements on behalf of clients

or former clients may be misleading if presented so as to lead a reasonable person to form an

unjustified expectation that the same results could be obtained for other clients in similar

matters without reference to the specific factual and legal circumstances of each client's case.

Similarly, an unsubstantiated comparison ofthe lawyer's services or fees with the services or

fees of other lawyers may be misleading if presented with such specificity as would lead a

reasonable person to conclude that the comparison can be substantiated. The inclusion of an

appropriate disclaimer or qualifying language may preclude a finding that a statement is

likely to create unjustified expectations or otherwise mislead the public a prospective client.


Comment

RULE7.2

ADVERTISING

[1] To assist the public in learning about and obtaining legal services, lawyers should be

allowed to make known their services not only through reputation but also through organized

information campaigns in the form of advertising. Advertising involves an active quest for

clients, contrary to the tradition that a lawyer should not seek clientele. However, the public's

need to know about legal services can be fulfilled in part through advertising. This need is

particularly acute in the case of persons of moderate means who have not made extensive use

of legal services. The interest in expanding public information about legal services ought to

prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk

of practices that are misleading or overreaching.

[2] This Rule pennits public dissemination of information concerning a lawyer's name or

firm name, address, email address, website, and telephone number; the kinds of services the

lawyer will undertake; the basis on which the lawyer's fees are determined, including prices

for specific services and payment and credit arrangements; a lawyer's foreign language

ability; names of references and, with their consent, names of clients regularly represented;

and other information that might invite the attention of those seeking legal assistance.

[3] Questions of effectiveness and taste in advertising are matters of speculation and

subjective judgment. Some jurisdictions have had extensive prohibitions against television

and other forms of advertising, against advertising going beyond specified facts about a

lawyer, or against "undignified" advertising. Television, the Internet, and other forms of

electronic communication are is now among one of the most powerful media for getting

information to the public, particularly persons of low and moderate income; prohibiting

television, Internet, and other forms of electronic advertising, therefore,' would impede the

flow of information about legal services to many sectors of the public. Limiting the

information that may be advertised has a similar effect and assumes that the bar can

accurately forecast the kind of information that the public would regard as relevant.

Similarly, electronic media, such as the Internet, can be an important source of information

about legal services, and lmvful communication by electronic mail is pennitted by this R11le.,

But see Rule 7.3(a) for the prohibition against the £1: solicitation of a prospective possible

client through a real-time electronic exchange initiated by the lawyer that is not initiated by

the prospective client.

[4] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as

notice to members of a class in class action litigation.

Paying Others to Recommend a Lawyer

[ 5] [Washington revision] Except as permitted under paragraphs (b)( 1 )-(b)( 4 ), lbawyers

are not permitted to pay others for recommending the lawyer's services or for channeling

professional work in a manner that violates Rule 7.3. A communication contains a

recommendation if it endorses or vouches for a lawyer's credentials, abilities, competence,

character, or other professional qualities. Paragraph (b )(1 ), however, allows a lawyer to pay

for advertising and communications permitted by this Rule, including the costs of print

directory listings, on-line directory listings, newspaper ads, television and radio airtime,

domain-name registrations, sponsorship fees, banner ads, Internet-based advertisements, and

group advertising. A lawyer may compensate employees, agents and vendors who are

engaged to provide marketing or client-development services, such as publicists, public

relations personnel, business-development staff and website designers. Moreover, a lawyer

may pay others for generating client leads, such as Internet-based client leads, as long as the

lead generator does not recommend the lawyer, any payment to the lead generator is

.consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the

.lawyer), and the lead generator's communications are consistent with Rule 7.1

.(communications concerning a lawyer's services). To comply with Rule 7.1, a lawyer must

.not pay a lead generator that states, implies, or creates a reasonable impression that it is

_recommending the lawyer, is making the referral without payment from the lawyer, or has

analyzed a person's legal problems when determining which lawyer should receive the

referral. See also Rule 5.3 for the {duties of lawyers and law firms with respect to the

conduct ofnonlawyers who prepare marketing materials for them); Rule 8.4(a) (duty to avoid

violating the Rules through the acts of another). For the definition of nonlawyer for the

purposes of Rule 5.3, see Washington Comment~ ill to Rule 5.3.

[ 6] [Washington revision] A lawyer may pay the usual charges of a legal service plan or

a not-for-profit lawyer referral service. A legal service plan is a prepaid or group legal

service plan or a similar delivery system that assists people who seek prospective clients to

secure legal representation. A lawyer referral service, on the other hand, is any organization

that holds itself out to the public as a lawyer referral service. Such referral services are

understood by the public laypersons to be consumer-oriented organizations that provide

unbiased referrals to lawyers with appropriate experience in the subject matter of the

representation and afford other client protections, such as complaint procedures or

malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the

usual charges of a not-for-profit lawyer referral service.

[7] A lawyer who accepts assignments or referrals from a legal service plan or referrals

from a lawyer referral service must act reasonably to assure that the activities of the plan or

service are compatible with the lawyer's professional obligations. See Rule 5.3. Legal service

plans and lawyer referral services may communicate with the public prospective clients, but

such communication must be in conformity with these Rules. Thus, advertising must not be

false or misleading, as would be the case if the communications of a group advertising

program or a group legal services plan would mislead the public prospective clients to think

that it was a lawyer referral service sponsored by a state agency or bar association. Nor could

the lawyer allow in-person, telephonic, or real-time contacts that would violate Rule 7.3.

RULE7.3

SOLICITATION OF DIRECT CONTACT WITH PROSPECTIVE CLIENTS

(a) A lawyer shall not, directly or through a third person, by in-person, live telephoneor

real-time electronic contact solicit professional employment from a prospective possible

client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain,

unless the person contacted:

( 1) is a lawyer; or an LLL T or

(2) has a family, close personal, or prior professional relationship with the

lawyer-;; or

(3) has consented to the contact by requesting a referral from a not-for-profit lawyer

referral service.

(b) A lawyer shall not solicit professional employment from a prospective client by

written, recorded or electronic communication or by in-person, telephone or real-time

electronic contact even when not otherwise prohibited by paragraph (a), if:

(1) the target of the solicitation prospective client has made known to the lawyer a

desire not to be solicited by the lawyer; or

(2) the solicitation involves coercion, duress or harassment.

(c)- (d) [Unchanged.]

Comment

[ 1] A solicitation is a targeted communication initiated by the lawyer that is directed to a

specific person and that offers to provide, or can reasonably be understood as offering to

provide, legal services. In contrast, a lawyer's communication typically does not constitute a

solicitation if it is directed to the general public, such as through a billboard, an Internet

banner advertisement, a website or a television commercial, or if it is in response to a request

for information or is automatically generated in response to Internet searches.

[2:-l-] There is a potential for abuse when a solicitation involves inherent in direct in

person, live telephone or real-time electronic contact by a lawyer with someone a prospective

client known to need legal services. These forms of contact bet<vveen a lav,ryer and a

prospective client subject a person the layperson to the private importuning of the trained

advocate in a direct interpersonal encounter. The person prospective client, who may already

feel overwhelmed by the circumstances giving rise to the need for legal services, may find it

difficult fully to evaluate all available alternatives with reasoned judgment and appropriate

self-interest in the face of the lawyer's presence and insistence upon being retained

immediately. The situation is fraught with the possibility of undue influence, intimidation,

and over-reaching.

[J.~] This potential for abuse inherent in direct in-person, live telephone or real-time

electronic solicitation of prospective clients justifies its prohibition, particularly since

lawyer§. have advertising and written and recorded commt:nlieation permitted under Rule 7.2

effer alternative means of conveying necessary information to those who may be in need of

legal services. In particular, ,A ... dvertising and written and recorded communications can :whish

may be mailed or atttodialed or transmitted by email or other electronic means that do not

involve real-time contact and do not violate other laws governing solicitations. These forms

of communications and solicitations make it possible for the public a prospective client to be

infonned about the need for legal services, and about the qualifications of available lawyers

and law firms, without subjecting the public prospective client to direct in-person, telephone

or real-time electronic persuasion that may overwhelm a person's the client's judgment.

[.1J] The use of general advertising and written, recorded or electronic communications to

transmit information from lawyer to the public prospective client, rather than direct in

person, live telephone or real-time electronic contact, will help to assure that the infonnation

flows cleanly as well as freely. The contents of advertisements and communications

permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and

may be shared with others who know the lawyer. This potential for informal review is itself

likely to help guard against statements and claims that might constitute false and misleading

communications, in violation of Rule 7 .1. The contents of direct in-person, live telephone or

real-time electronic contact conversations between a la:,;vyer and a prospective client can be

disputed and may not be subject to third-party scrutiny. Consequently, they are much more

likely to approach (and occasionally cross) the dividing line between accurate representations

and those that are false and misleading.

[~4] [Washington revision] There is far less likelihood that a lawyer would engage in

abusive practices against an individual 'vVho is a former client, or a person with whom the

lawyer has close personal or family relationship, or in situations in which the lawyer is

motiv~ted by considerations other than the lawyer's pecuniary gain. Nor is there a serious

potential for abuse when the person contacted is a lawyer or an LLLT. Consequently, the

general prohibition in Rule 7.3(a) is not applicable in those situations. Also, paragraph (a) is

not intended to prohibit a lawyer from participating in constitutionally protected activities of

public or charitable legal-service organizations or bona fide political, social, civic, fraternal,

employee or trade organizations whose purposes include providing or recommending legal

services to its members or beneficiaries.

[2.~] But even pennitted forms of solicitation can be abused. Thus, any solicitation which

contains information which is false or misleading within the meaning of Rule 7.1, which

involves coercion, duress or harassment within the meaning of Rule 7.3(b )(2), or which

involves contact with someone a prospective client who has made known to the lawyer a

desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(l) is prohibited.

Moreover, if after sending a letter or other communication to a client as permitted by Rule

7.2 the lawyer receives no response, any further effort to communicate with the recipient of

the communication prospective client may violate the provisions of Rule 7.3(b).

[16] This Rule is not intended to prohibit a lawyer from contacting represent~tives of

organizations or groups that may be interested in establishing a group or prepaid legal plan

for their members, insureds, beneficiaries or other third parties for the purpose of informing

such entities of the availability of and details concerning the plan or arrangement which the

lawyer or lawyer's firm is willing to offer. This form of communication is not directed to

people who are seeking legal services for themselves. a prospective client. Rather, it is

usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal

services for others who may, ifthey choose, become prospective clients of the lawyer. Under

these circumstances, the activity which ~he lawyer undertakes .in communicating with such

representatives and the type of information transmitted to the individual are functionally

similar to and serve the same purpose as advertising permitted under Rule 7.2.

[~;£]

[.2&]

Additional Washington Comments (910- -1-2-14)

[1Q_9}

illJ-Gf LllJ-l-}

ill__~

[14] The phrase "prospective client" in Rule 7.3(a) has been replaced with the phrase

"possible client" because the phrase "prospective client" has become a defined phrase under

Rule 1.18 with a different meaning. This is a departure from the ABA Model Rule which has

dispensed altogether with the phrase "from a prospective client" in this rule. The mle is not

intended to preclude lawyers from in-person conversations with friends, relatives or other

professionals (i.e. intermediaries) about other friends, relatives, clients or patients who may

need or benefit from the lawyer's services, so long as the lawyer is not asking or expecting

the intermediary to engage in improper solicitation. See RPC 8.4(a) which prohibits improper

solicitation "through the acts of another". Absent limitation of prohibited in-person

communications to "possible clients" there is a danger that lawyers might mistakenly infer

that the kind of benign conversations with non-client intermediaries described above are

precluded by this rule.

RULE8.5

DISCIPLINARY AUTHORITY; CHOICE OF LAW


Comment

Choice of Law

******* [5] When a lawyer's conduct involves significant contacts with more than one

jurisdiction, it may not be clear whether the predominant effect of the lawyer's conduct will

occur in a jurisdiction other than the one in which the conduct occurred. So long as the

lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably

believes the predominant effect will occur, the lawyer shall not be subject to discipline under

this Rule. With respect to conflicts of interest, in determining a lawyer's reasonable belief

under paragraph (b)(2), a written agreement between the lawyer and client that reasonably

specifies a particular jurisdiction as within the scope of that paragraph may be considered if

the agreement was obtained with the client's infonned consent confinned in the agreement.

The Intersection of Family & the Rest of the Legal System – 11/9/2016 Session 6 – Tips & Tricks of the Trade

Tips-Rosemarie Warren LeMoine 11/2016 Page 1

Subpoenas & Other Tips…

1. Trial/hearings: client’s behavior, dress, posture, how to stand, where to look

a. Declarations: Organize; Opening paragraph summarizing relief sought; headings,

statutory requirements met for relief sought?

2. Presenting default orders: always bring a copy of the proof of service for the

judge/commissioner.

3. Adobe Acrobat:

a. Advance/Document processing- Bates numbering—excellent for long exhibits, financial

records; very helpful at trial

b. Advance/Redact/Search & Redact: very helpful to redact the same phrase that appears

numerous times in a document. Type in account number to redact, Adobe searches &

finds it. Then mark “check all”. Next, mark “check all marked results for redactions”.

Close box; go back to Redact, and mark “apply redactions”.

4. Subpoenas: Don’t forget to read the rules!

a. CR 30- 5 days notice

b. Method of service

c. CR45 (b) A subpoena requesting documents or inspection of premises, or command to

appear for deposition or trial, shall be served per 5(b). Must be served on each party 5

days before service on deponent.

d. Be sure to provide deponent with Records Custodian declaration form to complete.(See

example, Attachment 1)

e. Don’t forget to include the warning language required by CR45 in your subpoena duces

tecum.(See CR45, Attachment 2)

f. CR 34: 30 days notice allows for inspection of premises-can be used to enter with expert

to appraise vehicles, property.

g. Interrogatories often say that the requests are continuing in nature, and you have a duty

to supplement. OBJECT! CR 26(e) “Supplementation of Responses” states:

(e) Supplementation of Responses. A party who has responded to a request for

discovery with a response that was complete when made is under no duty to

supplement the response to include information thereafter acquired, except as

follows:

(1) A party is under a duty seasonably to supplement a response with respect to any

question directly addressed to: (A) the identity and location of persons having

knowledge of discoverable matters; and (B) the identity of each person expected to

be called as an expert witness at trial, the subject matter on which the expert witness

is expected to testify, and the substance of the expert witness's testimony.



(2) A party is under a duty seasonably to amend a prior response if the party

obtains information upon the basis of which: (A) the party knows that the response

was incorrect when made; or (B) the party knows that the response though correct

when made is no longer true and the circumstances are such that a failure to amend

the response is in substance a knowing concealment.

(3) A duty to supplement responses may be imposed by order of the court,

agreement of the parties, or at any time prior to trial through new requests for

supplementation of prior responses.

(4) Failure to seasonably supplement in accordance with this rule will subject the

party to such terms and conditions as the trial court may deem appropriate.

5. Clients: don’t forget to file notice of withdrawal- your malpractice carrier will appreciate it!

Immigration issues for family law attorneys: CONSULT AN IMMIGRATION ATTORNEY!

(Thank you to immigration attorney Karen Gilbert who helped me prepare this list of issues and

questions)

1. Is your client and or his/her child a non-US citizen?

2. Is there abuse or a restraining order in the picture? Note: the definition of abuse used in immigration

is different than the definition of abuse used in Washington State.

3. Did your client sponsor a spouse for immigration? Get advice-they have potential liability.

4. Did your client sign an affidavit of support for foreign national or a spouse?

When you come to this country as an employment-based immigrant, the spouse should

not have needed an affidavit of support.

I-864 form: affidavit of support, required in immigration. A federal requirement,

mandating responsibility to support immigrant for 10 years. Should this be enforced in

state court? Immigration is exclusively a federal issue

5. Is your client represented by the company’s lawyer or an independent attorney in their quest for

immigration status?

If employment-based, normally, it’s the company attorney handling the immigration

case. Your client may want to hire his/her own attorney to answer questions regarding

the interplay of divorce and immigration.

6. Is your client in the United States on a visa, visa waiver or on an expired visa or visa waiver? What is

their status?



7. Is your client’s immigration status dependent on the partner’s status or visa?

8. Are there any cases pending with immigration?

9. Even the timing of the divorce can be critical. For example, someone who is a dependent to an

immigrant can be jeopardized by a divorce. Waiting periods are different depending on the person’s

status-whether dependent of people seeking citizenship or married. After obtaining asylum, a person

can apply for permanent residency but that can take years to obtain. It’s expensive, $1,070 just for the

application.

10. Don’t use immigrant status to shift the power dynamic-ethics considerations/warnings.

NB: Immigration status has nothing to do with your right to be in court.

WASHINGTON »G

COURTSForms Court Directory Opinions Rules Courts Programs &

Courts Home > Court Rules

RULE 45.

SUBPOENA

(a) Form; Issuance.

(1) Every subpoena shall:

(A) state the name of the court from which it is issued;

(B) state the title of the action, the name of the court in which it is

pending, and its case number;

(C) command each person to whom it is directed to attend and give

testimony or to produce and permit inspection and copying of designated

books, documents or tangible things in the possession, custody or control of

that person, or to permit inspection of premises, at a time and place

therein specified; and

(D) set forth the text of subsections (c) and (d) of this rule.

(2) A subpoena for attendance at a deposition shall state the method for

recording the testimony.

(3) A command to a person to produce evidence or to permit inspection may be

joined with a command to appear at trial or hearing or at deposition, or may be

issued separately. A party may be compelled to produce evidence at a

deposition or permit inspection only in accordance with rule 26.

(4) A subpoena may be issued by the court in which the action is pending in

the name of the State of Washington or by the clerk in response to a praecipe.

An attorney of record of a party or other person authorized by statute may

issue and sign a subpoena, subject to RCW 5.56.010.

(b) Service.

(1) A subpoena may be served by any suitable person over 18 years of age by

giving the person named therein a copy thereof, or by leaving a copy at such

person's dwelling house or usual place of abode with some person of suitable

age and discretion then residing therein. When service is made by any person

other than an officer authorized to serve process, proof of service shall be

made by affidavit.

(2) A subpoena commanding production of documents and things, or inspection

of premises, without a command to appear for deposition, hearing or trial,

shall be served on each party in the manner prescribed by rule 5(b). Such

service shall be made no fewer than five days prior to service of the subpoena

on the person named therein, unless the parties otherwise agree or the court

otherwise orders for good cause shown. A motion for such an order may be made ex F

(c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the issuance and service of a

subpoena shall take reasonable steps to avoid imposing undue burden or expense

on a person subject to that subpoena. The court shall enforce this duty and

impose upon the party or attorney in breach of this duty an appropriate

sanction, which may include, but is not limited to, lost earnings and a

reasonable attorney's fee.

(2)(A) A person commanded to produce and permit inspection and copying of

designated books, papers, documents or tangible things, or inspection of

premises need not appear in person at the place of production or inspection

unless commanded to appear for deposition, hearing or trial.

(B) Subject to subsection (d)(2) of this rule, a person commanded to

produce and permit inspection and copying may, within 14 days after service of

the subpoena or before the time specified for compliance if such time is less

than 14 days after service, serve upon the party or attorney designated in the

subpoena written objection to inspection or copying of any or all of the

designated materials or of the premises. If objection is made, the party

serving the subpoena shall not be entitled to inspect and copy the materials or

inspect the premises except pursuant to an order of the court by which the

subpoena was issued. If objection has been made, the party serving the

subpoena may, upon notice to the person commanded to produce and all other

parties, move at any time for an order to compel the production. Such an order

to compel production shall protect any person who is not a party or an officer

of a party from significant expense resulting from the inspection and copying

commanded.

(3) (A) On timely motion, the court by which a subpoena was issued shall

quash or modify the subpoena if it:

(i) fails to allow reasonable time for compliance;

(ii) fails to comply with RCW 5.56.010 or subsection (e)(2) of this rule;

(iii) requires disclosure of privileged or other protected matter and

no exception or waiver applies; or

(iv) subjects a person to undue burden, provided that the court may

condition denial of the motion upon a requirement that the subpoenaing

party advance the reasonable cost of producing the books, papers,

documents, or tangible things.

(B) If a subpoena

(i) requires disclosure of a trade secret or other confidential

research, development, or commercial information, or

(ii) requires disclosure of an unretained expert's opinion or

information not describing specific events or occurrences in dispute

and resulting from the expert's study made not at the request of any

party, the court may, to protect a person subject to or affected by the

subpoena, quash or modify the subpoena or, if the party in whose behalf

the subpoena is issued shows a substantial need for the testimony or

material that cannot be otherwise met without undue hardship and

assures that the person to whom the subpoena is addressed will be

reasonably compensated, the court may order appearance or production

only upon specified conditions.

(d) Duties in Responding to Subpoena.

(1) A person responding to a subpoena to produce documents shall produce

them as they are kept in the usual course of business or shall organize and

label them to correspond with the categories in the demand.

(2)(A) When information subject to a subpoena is withheld on a claim that

it is privileged or subject to protection as trial preparation materials,

the claim shall be made expressly and shall be supported by a description of

the nature of the documents, communications, or things not produced that is

sufficient to enable the demanding party to contest the claim.

(B) If information produced in response to a subpoena is subject to a

claim of privilege or of protection as trial-preparation material, the

person making the claim may notify any party that received the information

of the claim and the basis for it. After being notified, a party must

promptly return, sequester, or destroy the specified information and any

copies it has; must not use or disclose the information until the claim is

resolved; must take reasonable steps to retrieve the information if the

party disclosed it before being notified; and may promptly present the

information in camera to the court for a determination of the claim. The

person responding to the subpoena must preserve the information until the

claim is resolved.

(e) Subpoena for Taking Deposition, Producing Documents, or Permitting Inspection.

(1) Witness Fees and Mileage. [Reserved. See RCW 2.40.020.]

(2) Place of Examination. A resident of the state may be required to

attend an examination, produce documents, or permit inspection only in the

county where the person resides or is employed or transacts business in

person, or at such other convenient place as is fixed by an order of the

court. A nonresident of the state may be required to attend an examination,

produce documents, or permit inspection only in the county where the person

is served with a subpoena, or within 40 miles from the place of service, or

at such other convenient place as is fixed by an order of the court.

(3) Foreign Proceedings for Local Actions. When the place of examination,

production, or inspection is in another state, territory, or country, the

party desiring to take the deposition, obtain production, or conduct

inspection may secure the issuance of a subpoena or equivalent process in

accordance with the laws of such state, territory, or country.

(4) Local Depositions for Foreign Actions. When any officer or person is

authorized to take depositions in this state by the law of another state,

territory, or country, with or without a commission, a subpoena to require

attendance before such officer or person may be issued by any court of this

state for attendance at any place within its jurisdiction.

(f) Subpoena For Hearing or Trial.

(1) When Witnesses Must Attend-Fees and Allowances. [Reserved. See RCW 5.56.01

(2) When Excused. A witness subpoenaed to attend in a civil case is

dismissed and excused from further attendance as soon as the witness has

given testimony in chief and has been cross-examined thereon, unless either

party moves in open court that the witness remain in attendance and the

court so orders. Witness fees will not be allowed any witness after the day

on which the witness1 testimony is given, except when the witness has in

open court been required to remain in further attendance, and when so

required the clerk shall note that fact.

(g) Contempt.

Failure by any person without adequate excuse to obey a subpoena served upon

that person may be deemed a contempt of the court from which the subpoena

issued. An adequate cause for failure to obey exists when a subpoena purports

to require a non-party to attend a deposition, produce documents, or permit

inspection at a place not within the limits provided by subsection (e)(2).

(h) Form. A subpoena should be substantially in the form below.

Issued by the

[NAME OF COURT]

SUBPOENA IN A CIVIL CASE

CAUSE NUMBER:

TO:

[ ] YOU ARE COMMANDED to appear in the above captioned court at the place, date,

and time specified below to testify in the above case.

PLACE OF TESTIMONY COURTROOM

DATE AND TIME

[ ] YOU ARE COMMANDED to appear at the place, date, and time specified below to

testify at the taking of a deposition in the above case.

Any organization not a party to this suit that is subpoenaed for the taking of

a deposition shall designate one or more officers, directors, or managing

agents, or other persons who consent to testify on its behalf, and may set

forth, for each person designated, the matters on which the person will

testify. CRLJ 26.

PLACE OF DEPOSITION DATE AND TIME

[ ] YOU ARE COMMANDED to produce and permit inspection and copying of the

following documents or tangible things at the place, date, and time specified

below (list documents or objects):

PLACE DATE AND TIME

[ ] YOU ARE COMMANDED to permit inspection of the following premises at the date

and time specified below.

PREMISES DATE AND TIME

ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER

PROOF OF SERVICE

DATE PLACE

SERVED

SERVED ON (PRINT NAME) MANNER OF SERVICE

SERVED BY (PRINT NAME) TITLE

DECLARATION OF SERVER

I declare under penalty of perjury under the laws of the State of

Washington that the foregoing information contained in the Proof of Service is

true and correct.

Executed on

DATE/PLACE SIGNATURE OF SERVER

ADDRESS OF SERVER

CRLJ 45, Sections (c) & (d):

(c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the issuance and service of a

subpoena shall take reasonable steps to avoid imposing undue burden or expense

on a person subject to that subpoena. The court shall enforce this duty and

impose upon the party or attorney in breach of this duty an appropriate

sanction, which may include, but is not limited to, lost earnings and a

reasonable attorney's fee.

(2)(A) A person commanded to produce and permit inspection and copying of

designated books, papers, documents or tangible things, or inspection of

premises need not appear in person at the place of production or inspection

unless commanded to appear for deposition, hearing or trial.

(B) Subject to subsection (d)(2) of this rule, a person commanded to

produce and permit inspection and copying may, within 14 days after service

of the subpoena or before the time specified for compliance if such time

is less than 14 days after service, serve upon the party or attorney

designated in the subpoena written objection to inspection or copying of any

or all of the designated materials or of the premises. If objection is made,

the party serving the subpoena shall not be entitled to inspect and copy the

materials or inspect the premises except pursuant to an order of the court by

which the subpoena was issued. If objection has been made, the party

serving the subpoena may, upon notice to the person commanded to produce and

all other parties, move at any time for an order to compel the production.

Such an order to compel production shall protect any person who is not a party

or an officer of a party from significant expense resulting from the inspection

and copying commanded.

(3)(A) On timely motion, the court by which a subpoena was issued shall

quash or modify the subpoena if it:

(i) fails to allow reasonable time for compliance;

(ii) fails to comply with RCW 5.56.010 or subsection (e)(2) of this rule;

(iii) requires disclosure of privileged or other protected matter and no

exception or waiver applies; or

(iv) subjects a person to undue burden, provided that the court may

condition denial of the motion upon a requirement that the

subpoenaing party advance the reasonable cost of producing the books,

papers, documents, or tangible things.

(B) If a subpoena

(i) requires disclosure of a trade secret or other confidential research,

development, or commercial information, or

(ii) requires disclosure of an unretained expert's opinion or information

not describing specific events or occurrences in dispute and resulting

from the expert's study made not at the request of any party, the cour

may, to protect a person subject to or affected by the subpoena, quash

or modify the subpoena or, if the party in whose behalf the subpoena i

issued shows a substantial need for the testimony or material that car

be otherwise met without undue hardship and assures that the person tc

whom the subpoena is addressed will be reasonably compensated, the cou

may order appearance or production only upon specified conditions.

(d) Duties in Responding to Subpoena.

(1) A person responding to a subpoena to produce documents shall produce them as

are kept in the usual course of business or shall organize and label them to corres

with the categories in the demand.

(2)(A) When information subject to a subpoena is withheld on a claim that it is

privileged or subject to protection as trial preparation materials, the claim shall

be made expressly and shall be supported by a description of the nature of the

documents, communications, or things not produced that is sufficient to enable the

demanding party to contest the claim.

(B) If information produced in response to a subpoena is subject to a claim of

privilege or of protection as trial- preparation material, the person making the

claim may notify any party that received the information of the claim and the

basis for it. After being notified, a party must promptly return, sequester, or

destroy the specified information and any copies it has; must not use or disclose

the information until the claim is resolved; must take reasonable steps to retrieve

the information if the party disclosed it before being notified/ and may promptly

present the information in camera to the court for a determination of the claim.

The person responding to the subpoena must preserve the information until

the claim is resolved.

[Amended September 1, 2009]

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Superior Court of Washington

County of King

In re the Marriage of:

P1

Petitioner,

and

r1

Respondent.

NO. xxx

Declaration Authenticating

Records of

xxxx

1. [Name] _______________________________________________ makes the following

statement under penalty of perjury under the laws of the State of Washington, and states that the facts given below are true and correct.

2. My job title is __________________________________. 3. I am the records custodian of the ______________, and I am qualified to give the following

testimony. I have the authority to make this declaration and to authenticate the attached documents.

4. The ______________records, copies of which are attached hereto, were made in the usual course of business .The copies submitted are true and authentic copies of the ________________records of xxx. These submitted records are as follows (attach sheet if necessary to list all documents): __________________________________________________________________________________________________________________________________________________________

_____________________________________________________________________________ _____________________________________________________________________________ 5. My contact information is: Address: _________________________________________________________________

Telephone: _______________________________________________________________ Signed on October ____, 2016, at Seattle, Washington: ________________________________________ Signature _________________________________________ Print Name ____________________________