The Law Blawg of Theresa Petrey, PLLC

Theresa Petrey v. Inflammatory Breast Cancer

2011-12-31T05:52:00.000-08:00

Well here it is at last, the blog post where I share a day in the life of a lawyerly lady in a small town attempting to work her way through treatment for a rare and aggressive form of breast cancer. Early on, I made the decision, mostly by default due to my own experience with the highly effective grapevine news system in this community, not to try to keep the diagnosis quiet. I did not know what to do, whether I would be able to work, and, if this was indeed inflammatory breast cancer, whether I should even try to work.

Interpreting the studies and the statistics remains enigmatic. What does it really mean when a study places a five year statistical mean for survival at 40%? Let me tell you, that I REALLY like the study that came up with a five year survival rate of 58%. The overall five year survival rate for breast cancer is close to 90%. I was one of those people who had a delay in getting diagnosed and treated, because the Cancer Medical Industrial Complex in Central Washington, was, in my experience, systemically incapable of timely deployment, so I've repeatedly wondered in the end how much that delay changed the numbers for me.

Ultimately, we wound up at Seattle Cancer Care Alliance (SCCA), seeing a team of Doctors for a second opinion. It took only minutes for us to realize that I should be treated there and that I should have been there six weeks earlier. My husband calls SCCA the mill, but in a loving way. I call it the land of the Baldy Chemos. I was put off by all the hairlessness initially, but have since come to rejoice in being able to go to a place for treatment that my pathetic little baby bird fuzz like hangers on under my wig seem to belong.

I have really resisted engaging in the Cancer Medical Industrial Complex in many ways, preferring to take a pragmatic approach of attempting to keep my practice and life as we know it back here in Ellensburg basically rolling along. I limited Rotary attendance for the year, passed the Kittitas County Bar Association Treasurer books along to the highly capable Paul Sander, delegated, delegated, delegated to the rest of the Kittitas County Democratic Central Committee Board, decided that most Sundays during Chemo treatments, one hour of church meetings is good, and on some Sundays, just staying home and listening to Christmas music on Pandora was also good enough.

Many potential litigation clients were sent away. I even fired a couple of clients. I continue to take new clients who need consults or transactional legal work. The rest are all hanging in with me as I plod through completing my backlog. One family even calls and emails on a regular basis, telling me that I am a "dear one to them." That is very moving.

My colleagues are supportive as well.

I am able to work. Not as much as before, but I can do several hours a day. Currently, I've got a great legal assistant, Candee Cox, who helps tremendously. I've almost got the office situations fully resolved with my relocation. I feel like I can make it through the next rounds of chemo therapy, even though this second phase of Chemo lives up to the bad reputation the process has, surgery and radiation therapy.

I am planning to win.

Moving Time Again

2011-12-12T10:38:00.000-08:00

My new address for meeting clients in Kittitas County will be at 206 West First and the Kittitas Office will close on December 22, 2011. All other contact information will remain the same. Please effect all personal service of documents at 312 E. Manitoba Ave., Ellensburg, Washington. Do not mail documents to either of the above addresses. For mailing please continue to use the Post Office Box address which is PO Box 1341, Ellensburg, Washington, 98926.

The Long Journey Towards Acceptance of Marriage Equality

2011-11-15T21:29:00.000-08:00

Later tonight, I will add my name to a list of members of the Washington State Democratic Party who support granting full marriage rights to persons who choose to marry a partner of the same sex in Washington State.

This has not been an easy road for me to travel to reach the place where I would be comfortable supporting anything other than the so-called "traditional marriage" of the past century in the United States. As an LDS (Mormon) person it has been difficult on a number of fronts, but not for reasons that may be readily understood by a casual observer. As is the case in many families, our family has a number of family members and close friends who are or were sexual minorities of one sort or another and who are in varying degrees of being out or in on the issue of orientations other than pure heterosexuality. This also formed and shaped my journey towards a change of heart and viewpoints. Having come of age as an LDS person with the nearly constant villification of the LDS Church's history of polygamy, the fear that same sex marriage could be the gateway to polygamy and demi-marriages was my primary personal reason for not supporting the extension of marriage rights beyond what was sufficient for the last 100 years or so. Accepting marriage equality has required setting aside that fear and acknowledging that consenting adults are in the best position to make informed decisions as to how and who to love.

My beloved church sought to fight what it apparently perceived as a huge threat to essential doctrines, secular marriages of same sex couples, even though it generally excused itself from becoming involved in politics in the past on other issues. I had a hard time with the timing and the internal conflicts the LDS Church's involvement in Proposition 8 brought forward for me personally. Eventually, I came to a very profound support of the Church's right and even moral duty to make its strong opinion known on the matter and I accepted their right to speak out. However, as an attorney, even then, I would articulate my belief that ultimately and constitutionally speaking, same sex marriage would eventually become the law of all our land.

I support the constitutional first amendment right of my Church and that of others who oppose same sex marriage to continue to do so, to solemnize only opposite sex marriages if they choose to, and, in some cases, to even speak what may be perceived to be hate speak by some. However, I no longer personally wish to deny the rights of other human beings to enjoy the benefits of and embark on the responsibilities of secular marriage in the United States on the basis of what legally amounts to a ban based on traditions without evidence of sufficient weight and credibility that there is a basis for the government to prohibit secular same sex marriage. With six states now allowing same sex marriage, Washington State having already granted all the rights of married couples to parties in registered domestic partnerships, and my firm belief that when the United States Supreme Court considers the Proposition 8 case it will find that banning same sex marriage via the initiative process is unconstitutional, I believe the time has come to extend full marriage equality in Washington State.

Re: Request for action voiding contract, investigation, civil and or criminal prosecution, and subsequent removal of government officials if violations of RCW 43.88 or other unlawful acts are found to have been committed

2011-10-25T08:12:00.000-07:00

Dear Governor Gregoire, Auditor Sonntag and Attorney General McKenna:

I write in my capacity as a very concerned citizen and community stakeholder of Central Washington University and wish to express my concern that at least one prima facie violation of the Washington State Budget and Accounting Act, RCW 43.88, may have occurred in regards to the $500,000 James Gaudino bonus which the Central Washington University Trustees approved on October 7, 2011. Last Friday, October 21, 2011, President Gaudino acknowledged that there is no plan or known source of the funding for his bonus and that the money could come from a variety of future income sources. The act of granting Mr. Gaudino this bonus appears to be a direct attempt to do an end run around the painful and exhaustive attempts of the people of the State of Washington through their elected officials to deal with the current budget crisis.

The Central Washington University Board of Trustees have an ethical duty as stated in their bylaws not to overexpend university funds and the bylaws also advise them that they are subject to the provisions of the Budget And Accounting Act, see CWU 1.5.1 (5) A which reads as follows:

The Budget and Accounting Act contains severe penalties for the intentional or negligent overexpending or overencumbering of any appropriation made by law, for failing to properly account for any expenditure by fund, program or fiscal period, or for expending funds contrary to the terms, limits, or conditions of any appropriation made by law.

There is a tidal wave of public sentiment building against this bonus and the egregious and flagrant breach of the duty of good faith it represents against various stakeholders in the Central Washington University community, especially in light of the fact that no one knows where these funds will come from or if there will be a source of funds in the future for this contractual liability.

The fact that the bonus is unfunded (I presume this to be language for taxation purposes) and unsecured, does not mean that this contract, if otherwise valid, would not be enforceable and payable by the University and ultimately the citizens of the State of Washington. I might add that I am among a growing contingent of community stakeholders who do not see that President Gaudino has actually achieved significant progress in increasing the diversity or numbers of students enrolled on campus (the stated reasons given by the board for the incentive bonus) and believe him to be the beneficiary of both the downturn of the economy and the stellar work performed by the President Emerita, Jerrilyn McIntyre. Moreover, I believe Mr. Gaudino’s ability to lead the university has been seriously compromised by many other acts as well and that serious consideration should be given as to whether or not it is appropriate for him to remain in that role at all even if no violations of RCW 43.88 are found.

I respectfully request that the James Gaudino Incentive Bonus Contract be found null and void under RCW 43.88.130 prohibiting any agency from incurring liabilities in excess of the amounts appropriated for that purpose. I also request that the State Auditor, pursuant to the provisions of RCW 43.88.160 (6) (d), take exception to the James Gaudino Incentive Bonus Contract. I also request that the Attorney General investigate whether or not civil and or criminal acts occurred in this matter pursuant to RCW 43.88.300 or RCW 43.88.270, respectively. Finally, in the event that civil or criminal violations by the Board of Trustees are found to have occurred, I request that the Governor petition for the removal of the Trustees pursuant to RCW 28B.10.500.

Sincerely,

Theresa Petrey

Re: James Gaudino Bonus and general concerns regarding the direction of Central Washington University

2011-10-21T08:43:00.000-07:00

Dear Members of the Board:

I write today in my capacity as a very concerned citizen of Kittitas County, a community member who somewhat to her own surprise has grown deeply to care about what happens on the Central Washington University campus during the past few years, and as a lawyer who from time to time assists persons who are within the potential donor pool for charitable bequests to the University.

Despite carefully evaluating the information available publicly, I find myself increasingly disturbed by what I perceive is a lack of foresight by the board in awarding such a large incentive package to Mr. Gaudino which does not appear to actually be tied to performance benchmarks and reflects what might be described as a thinly veiled opportunism by Mr. Gaudino, who most likely knew his compensation is out of line with his peers in Washington State. Unfortunately for the University, I am not alone in my concerns.

I have heard other normally circumspect business people in the community make comments which I won’t repeat here indicating that they believe the Board of Trustees has made a serious mistake in this matter and that they do not know what is now “going on” at CWU. I have heard from university employees that they are afraid to speak out about waste that they see for fear that they will face retribution. I have read the same. I have read that there are concerns among student leaders that the Board of Trustees may have diverted funds that are to be used for students, or at minimum diverting funds from students that have always been used for students not just at this university, but at the State’s flagship university, the University of Washington. There is also a rumor that the faculty is taking a vote of no confidence in President Gaudino.

In short, I wish to emphasize that I believe you have done significant long term damage to Central Washington University’s reputation in your potential donor community and among other stakeholders here locally due to this ill thought out bonus plan. I would strongly suggest that you seriously consider modifying your contract with Mr. Gaudino and or consider appointing an acting president in his stead, as I suspect his ability to lead in these troubled times will be substantially diminished due to this avoidable controversy despite his considerable public relations skills.

Sincerely,

Theresa Petrey

Occupy Wall Street and Main Street

2011-10-08T06:49:00.000-07:00

A few years ago, I would tell anyone who would listen that I believed that the banking industry bailout and the subprime mortgage meltdown were the biggest wealth transfer of wealth away from the middle class and the poor this country has ever seen. And, that, when the American people finally realized what had happended, there would be protesting in the streets. That day has come and I will be doing my best to add my voice to the protest.

Most of my business colleagues, fellow Rotarians, ward and stake friends know by now that I was diagnosed with stage IIIc inflammatory breast cancer over the Summer. I have done pretty well with not being angry or terribly sad about this situation. I am keeping my office open, working my cases, taking a few select new cases, and in general moving forward with my life in all aspects. But I have to tell you, that loosing one's hair through chemo is a truly maddening process. I feel quite pissed off.

Add to that, the ongoing problems I have had with the relatively new business neighbor in Kittitas, that does very little business and appears to be a lifestyle club for men with little to do durning business hours but play with large trucks. Last week, I had two business meetings interrupted by engine revving. You should know that I have been trying for months to work out the noise, fume and parking issues. Vehicle Repair is not supposed to be taking place there under the 2007 zoning code and the original tenant told me that they were only supposed to do repair work incidental to retail product installations. The old garage was not grandfathered in as far as I know.

I intend to re-occupy my place on Main Street in Kittitas. We will see how it goes. I may have to resort to protest signs if my petition for code enforcement doesn't work. Or go lawyeristic and file a nuisance suit. Or, maybe, simply move back to Ellensburg.

Memories of 9/11

2011-09-10T08:07:00.000-07:00

My remaining little bird in the nest was working on a school project this week and came with interview questions for me regarding my memories of the terrorist attacks on September 11, 2001. I do remember that day.

I was quietly lying in bed, listening to NPR, while my husband shaved and waiting for him to leave the bathroom so I could get started on my day. Because of my experience as a Macy's Christmas season temporary in the Contra Costa Mall when a small plane crashed into it in the 1980's, I knew right away that the planes had purposefully been flown into those buildings. The year of 2001 had been very difficult for our family beginning with the very harsh impact of the Dot Com bust on our small business, the February Nisqually earthquake which left our home with significant latent damage, a family member who was significantly injured in a car accident in March, and on that day my country was under attack.

My daughter bravely left a few days later to take her first job in New York on Long Island as a nanny. I remember thinking that it was probably the safest time in years to be flying. My oldest son was on a mission for two years for our church, and while I worried for him, I was actually glad he was not in America during those weeks and thought he was probably safer in Brazil. Of all the many heroes of 9/11, I was most moved by the brave passengers of Flight 93 who represent the best sacrifices of the ordinary and imperfect American in doing what we think of as right and moral when faced with extraordinary circumstances.

Reflecting back, in some ways, I think the terrorists accomplished what they set out to do by destabilizing our economy which had large institutions building ever larger houses of cards based on what really cannot be described as anything short of fraud. While it is convenient to blame the government and large corporations, individuals who stretched the truth in a variety of ways have a lot to do with the sub prime loan mess that ultimately took the economy down. I do believe without the significant interruption and blast to our social fabric caused by the terrorist attacks of that fateful day, we could have happily continued kicking the can down the road. Much of this fraud would not have taken place but for the climate created by deregulation of the financial industry and the glorification and reward of greed caused by regulators looking the other way as long as the economic boom continued.

It boggles my mind to hear calls for reducing regulation as a way to grow the economy when clearly that is how we got to where we are today because we created a climate where the worst inclinations of some of the people toward greed and corruption could grow unchecked and unfettered. As I attend my church in the morning with a few hundred other people during our regularly scheduled Stake Conference, I expect to hear various speakers mention 9/11. I will silently ponder the loss of so many lives on that day and the loss of so many lives since then. I will mentally pray for all who suffer innocently and those who suffer in their guilt. I will ask myself again what I as an individual should do differently in terms of my own integrity and ethics and I will continue to support thoughtful, prudent regulation and fully funded government enforcement of regulation to protect against those very human foibles of greed and corruption which put us all at risk.

I hope other Americans will also end their personal reflections on the tenth anniversary of the September 11, 2011 terrorist attacks with an increased sense of urgency to do the right thing, even when we have to make a small or large personal financial sacrifice (i.e. pay taxes or comply with a regulation that we think perhaps shouldn't apply to us-and I've got a few I don't like as a small business owner), or whether it is funding our promises to our senior citizens, caring for our disabled poor or simply saying that we will not tolerate the fraudulent business activities that threaten the financial health of our country and people in the same way that we have mobilized to fight terrorism.

Cross posted on my Kittitas County Democratic Party Chair Blog on September 10, 2011.

Little Birds

2011-06-22T08:14:00.000-07:00

I can see the empty nest from here. That is what I tell people when they ask me what it feels like to have three of my adult children out of the house and pursuing independent lives. I am proud of what my children have accomplished thus far. Cameron Petrey is a registered nurse in Tampa, Florida providing post operative care to patients having cardiac surgeries. Buddie Petrey is in culinary school at the Culinary Institute of America and is on externship at Ocean House Restaraunt. My daughter Whitney Rose Minger is in the doldrums between the completion of her coursework for her Masters Degree in Maritime Studies at Eastern Carolina University and the completion of her Master's thesis.

While Buddie may or may not be on his way to celebrity chefdom, and Cameron's work in the lives of his fellow human beings is priceless, I have to admit to a certain fascination in the very interesting things my daughter has done these past few years.

Being raised in working class homes with strong and enduring work ethics ourselves, my husband and I were pleased when she landed a real job working at Cultural Surveys, Inc. in Hawaii while she completed her undergrad degree at the University of Hawaii, Manoa. During these years she worked on construction sites and often assisted with the recovery of the remains of pre-contact Hawaiians. Interestingly, the remains often would be compactly bundled with the knees drawn up at the time burial.

Although we thought she would become something akin to a member of Jacques Cousteau's crew once at ECU, the reality consisted of diving in a swampy river and the distressingly mundane. Eventually, she gravitated towards conservation and a graduate internship at the Country Doctor Museum which she loved. In turn this led to a curation project in conjunction with the Country Doctor Museum involving a collection of dental instruments at ECU's Laupus Library which is a Health Sciences Library. All in all, a very interesting educational journey that hasn't ended yet.

If you are interested, Whitney has her own blog on Archaeoconservation.

WSASC 2011 Conference Presentation on Senior Insolvency

2011-03-26T19:46:00.000-07:00

I will be presenting at the Washington State Association of Senior Centers Conference here in Ellensburg on May 25, 2011. Once again, I'll be discussing some of the strategies that Seniors and their advocates can adopt to sucessfully deal with the sensitive issue of insolvency and debt collection issues.

Huge Kittitas County Vulnerable Adult Civil Decision and Federal Criminal Investigation Underway

2010-12-30T08:13:00.000-08:00

Local CPA, Douglas Butler, successfully petitioned the court on behalf of his father, Norman Butler, who has Alzheimer's, and was awarded over Two Million Dollars. This story has not of yet, for reasons unknown, been picked up by any local media outlets, but you can read the Whidbey Examiner's article here. The defendant in the civil case, Shea Saenger, is alleged to or has a previous murder conviction. The Seattle PI reports that the United States Postal Service is now conducting a criminal investigation on the matter. Rose Winquist, who is the Butler Family Private Investigator, has started a blog, which includes uploaded documents from the court case.

February 16, 2011 update: Doug Butler's blog which shows actual checks can be found here.

Kittitas County Democratic Party Chair

2010-12-09T19:15:00.000-08:00

Earlier this week, I became the new Kittitas County Democratic Party Chair. I am both humbled and honored to have this opportunity to serve my community and to contribute more to our party.

Tenancy by the Entireties Abolished under RCW 11.04.071

2010-11-24T18:37:00.000-08:00

Recently, a local non-lawyer suggested that tenancy by the entireties was a mechanism that could be used to avoid probate through joint ownership. This is not so, as Washington abolished this type of a right of survivorship some time ago under RCW 11.04.071. While it may seem simple enough to transfer property by titling property in joint tenancy or vesting as husband and wife, and there is a statutory presumption that property held in common by spouses is community property, Washington Courts require more than mere deed language to ascertain the actual character of property as separate or community. In a 2009 case (Borghi), the Washington State Supreme Court stated the following, "More Importantly, even when a spouse's name is included on a deed or title at the direction of the property owner spouse, this does not evidence intent to transmute separate property into community property, but merely an intent to put both spouse's names on the deed or title." While some types of transfers, particularly the gift transfer, require additional documentation to qualify for our Real Estate Excise Tax Exemption, most transfers adding a spouse to a deed do not. In the end, you still need to consult with a lawyer to propertly assemble all the documentation to change or prove the character of property and the intent of given vesting language if that question will arise in a probate situation.

Sensationalism or Are we Just in Denial?

2010-10-17T04:31:00.000-07:00

Charges have been made by Chief Ferguson and others that the response to the party in Roslyn by the national media has been sensationalized. Sending nine people to the hospital for alcohol poisoning even without the overlay of "rumors" that the drinks were spiked with date rape drugs is a very, very unusual incident and in all fairness, is deserving of considerable media attention. I could find no incident where so many people in such a high proportion of attendees were hospitalized when I did a google news search using the keywords of "hospitalization after party alcohol." I'm listing links to most of the incidents I did find from the last month or two.

Huge underage party of 500 people in Florida-four hospitalized, parents charged.

Adrian Michigan, teen found unconscious at party, hospitalized.

Vassar-September 18-19, five students needed medical attention (it does not appear these are all from the same party).

Fall from balcony 200 person frat party.

Teen Drunk Driving Crash that sent nine to the hospital.

Dartmouth-clearing the house before calling for aid for woman on couch.

If you read these posts you will note the nearly constant discussion of "social hosting laws" or charges for serving alcohol to minors. The question of how the underage partiers in Roslyn got their liquor or whether there should be liability for the hosts or others for providing the alcohol itself has been curiously not addressed here or in other local media. You can read an interesting article from Dallas on strategies focusing on curbing adult providers of liquor here. Given the two alcohol distribution related initiatives on this year's ballot in the upcoming election, you would think that someone, somewhere (should this have been you Daily Record in your articles on the alcohol related ballot initiatives-I think so)would also address the impact that costcoization of hard liquor might just have on underage drinking. With the exception of the teen drunk driving crash which really is an apples to oranges comparison, there really isn't anything quite like what occurred in Roslyn 9 days ago and it is a stretch to say that the national media has sensationalized the incident.

Hate Crime: The Party in Roslyn Gone Wrong?

2010-10-11T14:14:00.000-07:00

While Central Washington University prepares to enforce its policy on underage drinking by handing out suspensions (including, presumably, the young women who were victimized in the incident), the larger question of whether a hate crime occurred at the Roslyn party is going unaddressed. Underage drinking in Kittitas County and how it should be handled is already a sensitive issue here. It's part of the debate in the County Prosecutor's race. Should every minor in possession charge be prosecuted to the fullest extent under the law?

Last summer I had the opportunity to sit on a jury in Lower County District Court evaluating an underage drinking situation. Many of my fellow jurors expressed serious concern that county resources were being expended on such a trivial matter. Richard Young who is running for County Prosecutor has publicly indicated that he feels too much attention is being paid by the County Prosecutor's office, under County Prosecutor Greg Zempel, on taking minor in possession charges to trial and not settling them before trial.

Whatever the approach is to handling the underage drinking situation accompanying the dreadful and horrifying incident of what appears to be the deliberate and "targeted" drugging of women, I worry over the possibility that this is a hate crime against women that will not be addressed or appropriately reported as such. The Matthew Shepard Act passed in 2009 specifically expanded federal hate crime law to include the reporting of crimes motivated by a victim's perceived or actual gender. Whether the FBI could become involved in investigating this matter is determined by whether the act is a felony and whether the federal government had jurisdiction or one of several other qualifying events occurered such as a failure to act by state and local officials or a request for for federal assistance from local officials.

Let us insist that there will be accountability for the perpetrators of this incident as well as their victims. And, if the evidence continues to indicate this was a targeted attempt to render women as a class vulnerable, let us not forget what happened and hold our state and local officials accountable as well for following through and investigating and reporting this as a potential hate crime.

Update: No date rape drugs just Four Loko.

Central Washington University Party Rape Scheme

2010-10-09T21:53:00.000-07:00

In light of this weekend's high profile story on the party gone wrong in Roslyn, I am linking to one of my blogs from 2008 on the problems of college drinking for women and sexual assault. KOMO news carried a video report on this year's Roslyn incident which appears to be a mass distribution of a date rape drug.

Why I Moved to Kittitas and Signed the Legal Rebels Manifesto

2010-08-27T06:40:00.000-07:00

Last week we moved to our high visibility corner in the very small town of Kittitas from our more elegant office on Dolarway in Ellensburg. We had previously had a satellite office (presence) in Kittitas right next door in Suite B. It's taken a lot of work to convert the former Korner Kuts beauty salon into something more lawyerly and we are still not done. However, it is beginning to feel like home. I really needed my main physical location in my home county to work harder for me in terms of yielding name recognition and advertising.

Our old office on Dolarway was beautiful and was nothing short of heavenly in terms of nature and peace and quiet. Everything was just the way I wanted it. Unfortunately, as a business presence we were lost. About 15 months ago, I started thinking about whether another location might be better. And, that's when I found the first Kittitas office.

I rented the office in July of 2009, put a banner up and nearly immediately people started remarking that I had an office in Kittitas. Or, that I had moved to Kittitas. Three days after that first banner went up in 2009, an incoming client actually went out there for an appointment. Many new clients indicated that part of the reason they called was because of the sign in Kittitas.

I will not say that it was a no-brainer to move to Kittitas, because it wasn't. Kittitas is further from the local courthouse, and, while I do practice statewide and have an office share arrangement in Issaquah, the conventional wisdom is that lawyers should be located close to the courthouse. There is also the thought that you isolate yourself from the main cluster of the business community, but realistically with the local chambers consolidating, that should be less of an issue now as well. Things are primitive in some ways in Kittitas, some aspects of infrastructure are not what they should be, but then again there were no functional sidewalks on Dolarway either.

Needless to say, cost was also a huge factor in the decision to move. I've heard that many larger firms in Seattle are moving and that there are great offers being made on office space. Said offers include lower rates and 3 years of no lease payments on ten year leases. It's not that kind of buyer's market here in Kittitas County, but nevertheless EVERYONE is now looking for ways to cut costs, and we are no exception.

Originally, I had hoped to practice from the front of my Ellensburg home which was built in 1912. I successfully up zoned the property so I could have a visible sign and see clients and have employees at that location. However, the city also imposed a few other requirements which I won't go into in detail about, which made in quite costly to actually have the office at home, so off to Dolarway I went for three and half years. I needed that money for start up and operating costs on the practice. In the course of fitting into the new Kittitas space, I actually set up another office at home, where I will work without meeting clients or having employees present. Hopefully, some day having an office where I can meet clients in the "Historic F_________" house will be an option.

Theoretically, Kittitas and towns like it in Central Washington are underserved. I've also thought about adapting the idea of mobile restaurant kitchens and taco wagons to law practice. This would be the Law Mobile, a recreational vehicle adapted to seeing clients and providing work space. I could do a day in Issaquah, a day in Kittitas, a day in Mattawa, and so on. We joke about that, but I suspect someone is already doing it somewhere. And, with modern technology and mobile Internet service why not?

In our office, we have worked hard to try to stay up to date with technology. I know there are others who are much more aggressively embracing technology than my office, but my general sense is that as a profession we are lumbering Luddites plodding slowly into the technological future. I've also found that I don't like some technological innovations. Not all social media outlets work for me. Others do.

Which brings me to the Legal Rebels Manifesto. The Legal Rebels are/is a creation of the American Bar Association. At first, I saw this as a marketing ploy, but over time, I've softened. Whatever it started as, it does have the possibility of encouraging new ideas as to how law should be practiced. With the drastic downsizing of so called Big Law in the last two years and the economic downturn which I believe has impacted most practices both in Kittitas County and throughout the state, more lawyers need the work that could be derived from alternative models of practice. And, more clients than ever cannot afford legal services. Theoretically, some of the ideas put forth by the Mark Brittain's (Avvo.com), and Nicole Black's of the world, can make a huge difference in remaking the way law is practiced.

With the move to Kittitas, I feel as though I've bucked the status quo a bit. And at least on some fronts, we've been doing that for a while in our office. We were early adapters in social media (see my facebook page here and the law office page here) and have made our avvo profile a key part of our presence. We've worked hard to try to incorporate alternative billing arrangements such as flat fees into our practice. I am also adding employment and tax law to the mix of cases we have as they are underserved here. I don't know how "rebellious" I feel, but we are definitely, in this solo practice, trying to shake off some of the unnecessary perceptual fetters of the status quo of law practice and be part of the future of law practice whatever that looks like five and ten years from now. You can read the Legal Rebels manifesto, which I have now signed, here.

Our move to Kittitas

2010-08-11T23:31:00.000-07:00

Like many businesses this past year, we've been looking for ways to cut costs. A year ago, I tested Kittitas as a potential location by renting the teeny tiny office on the corner of Main street and the Kittitas Valley Highway. Our presence in Kittitas has been beneficial over the past few months. When the opportunity opened up to move next door to the former Korner Kuts salon, I jumped on it. We get quite a bit more square footage at a much lower cost. While I will miss the beautiful Dolarway location where I had everything just the way I liked it, I'm excited about new opportunities in Kittitas now and in the future.

A Brief Guide to Certified Documents for Non-lawyers in Washington State - Avvo.com

2010-06-02T20:01:00.000-07:00

Here's a link to an article that I've been wanting to write for a while on the uses of certified documents and what they are: A Brief Guide to Certified Documents for Non-lawyers in Washington State - Avvo.com Now off to garden for a few minutes.

Easter Egg Potatoes

2010-04-04T14:26:00.000-07:00

Every spring I enjoy picking out different types of potatoes to plant in the garden. Yesterday's Daily Record here in Ellensburg had a great article on Irish Eyes owner Greg Lutovsky. Last year we grew purple fleshed potatoes which we ate mashed as they were quite tasty.

Washington State Bar Association Creed of Professionalism

2010-01-25T20:53:00.000-08:00

Principle #1-

In my dealings with lawyers, parties, witnesses, members of the bench and court staff, I will be civil and courteous and guided by fundamental tenets of integrity and fairness.

Dying Well

2009-11-27T21:27:00.000-08:00

It has truly been my pleasure to assist a few people facing death with grace and dignity in putting their affairs in order. Even more pleasurable are those cherished circumstances where those left behind are able to experience closure if not greater closeness. "A good death regardless of the circumstances, means putting medical care in its proper perspective, and not allowing it to dominate." Unfortunately, many people don't die well and fail to take advantage of help that is available including counseling or pyschotherapy for the dying and their family.

Post Halloween Mortem

2009-11-05T08:26:00.000-08:00

It was a good halloween.

This year we had the most grotesque pumpkins in the neighborhood-seven of them. And, we had eight trick or treaters (including the parental units). This was double last year's numbers. Our house might be a little too scary and we are far, far away from other houses. Remember the economic theory that two hot dog stands on the beach do better next to each other than at the opposite ends of the beach?

This morning I gave up my Twitter account. I could never really get the hang of it. Sorry to those of you who actually tried to follow. I really do like Facebook the best of all the social media outlets.

A surprise for me-I really enjoy drafting testamentary pet trusts and I've got the dog hairs all over my black pants to prove it too!

Saturday Potpourri

2009-07-25T19:25:00.000-07:00

Ok, I'm smitten by this wedding video.

What's not to love, especially the gerberas and sunglasses. I'm even now a Chris Brown fan, in spite of his domestic violence charge. Obviously and coincidentally, he posted a video apology on his website just after the couple posted their video. I'm hoping for a "remix" video with the JK wedding entrance dance and Chris Brown.

Next, my "little" brother-in-law became a financial pundit this week in the Petrey family ancestral burg's paper the Daily Midway Driller. Read his column here. Dan had previously been a broker with one of the big brokerages but broke off to start his own firm with a friend, Mestmaker and Petrey Wealth Advisors. Dan also got some nice press in Bakersfield with a business section article about their "leap of faith."

I was reflecting on last night's picnic and have concluded that in our media and entertainment age, the social grace of relaxing communally in the park with friends, neighbors and family is becoming a lost art. It is about just sitting in that folding chair, watching the kids play, talking to the old folks and meeting a good friend's second cousin twice removed. I resolve to picnic in the park more.

I've been reading the book The Four Hour Workweek, not because I want to work four hours a week (that's patently absurd for any solo attorney with overhead i.e office and staff), but because I want to have four more really effective hours a week. It has helped me to rethink a few things and to focus a little more. And, it's a fun book to read.

There's rarely a dull moment in a small town law practice and my current "diversion of the waters" case is beginning to heat up. I'm learning everything I always wanted to know about hydrology and then some.

Can a law office be a place of healing?

2009-07-12T22:51:00.001-07:00

Today in church Cathy Gibb talked about her experience this year in running the costuming department for Valley Musical Theater's production of The King and I, and that she had discovered that it was a place of refuge for cast and crew. She related how she grew and came to know that it was important for her to respond to others in such a way that the costume room became a place of healing. I found myself wondering whether a law office could be a place of healing?

Certainly, there are times when I know that people have left the office feeling more whole than when they came in. Knowledge is power and even when it's not, just having answers can be very calming. But there are other times when it's clear that the unique style of verbal violence that lawyers wreak on the world is just that, violence. And, there is nothing healing about that to our clients. One of our local judges, Judge Sparks, has often spoke of the primary role of lawyers as conflict managers.

Some of my fellow lawyers would argue that there is no role for "healing" in law, and that even if a law office could be a place of healing it shouldn't. What do you think?

Fried squirrel and other pastoral treats of the past

2009-04-17T08:54:00.000-07:00

I'm not exactly what this says about me, but I have eaten fried squirrel. In fact, watching my uncles skin the squirrels on the kitchen floor and my grandmother getting the hot fat ready to fry them is one of my earliest memories. Pickled pigs feet were also known to be consumed as a special treat. Later, I also had authentic chiltlins, tongue and other unmentionables at the homes of others.

I still love Grandma's oyster giblet recipe for holiday turkey stuffing. Here is a link to the squirrel eating Hank Shaw's blog of Orangevale, California. www.honest-food.net
I, too, briefly resided in Orangevale and so did Grandma. Oh, those were the days.

Hank is the new darling of the foodie media.

Now back to honest law.

Shared Well Agreements

2009-02-26T12:33:00.000-08:00

In general, the following will apply to determining what rules apply to shared wells in Washington State:

The Department of Ecology is involved in this process at a State level but counties and municipalities carry out the bulk of the work and the reporting. County and City rules on shared wells are not uniform throughout the State of Washington. No prohibiition exists in Washington State against selling a property without adequate water access or rights, but building permits generally are not issued without the water availability being resolved.

Even if a particular jurisdiction does not require a shared well agreement, often lenders require it. Similarly, deeds should reflect any easements created by the 100 foot radius requirement. So, some cities or counties have required both a declaration covenant and a restrictive covenant in addition to the shared well agreement. These legal documents, if required, would be in addition to any testing, forms and diagrams required by the jurisdiction. There would also be recording fees as well as possible implications for the entanglement with other land use regulations.

Good shared well agreements, like good fences, make for good neighbors. Important safeguards include provisions for apportioning the liability for vandalism, damage by guests or tenants, limitations or provisions for consent by all parties to accessory or additional dwelling units, emergency repairs and or shut off, and provisions for abandonment, termination and dispute resolution.

It's a Mad, Mad World

2009-02-06T15:48:00.000-08:00

Lately, I've grown to love a couple of sixties road comedies. Ray and Irwin rock. Sylvester where are you? It's probably impossible to ever assemble the type of ensemble cast that appeared in It's a Mad, Mad World ever again. See also The Russians are Coming, The Russians are Coming.

Sure You Can, But It's Gonna' Hurt

2009-01-22T21:43:00.000-08:00

Here's a pearl from one of our family's esteemed medical providers: "He can rub the spot where he had surgery, but it will hurt and become self limiting." In other words, you can tell someone not to do something that has painful consequences, but if they are not willing to listen to you and insist on doing it anyway, they will eventually get the message through physical, mental, emotional, financial or spiritual pain.

A little less in 2009 is a good thing . . .

2009-01-16T21:31:00.000-08:00

Can you have too much water in a place like Ellensburg? Yes, if it is in the wrong place at the wrong time. My office survived a near flood experience in West Ellensburg last week. Today, I had my first flood related call from a potential client.

Looking for new and creative ways to save money? My landlord has decided to cut costs at the office by only cleaning the bathroom every two weeks. I think that's an interesting response to tough economic times. Of course, I ultimately pay for the bathroom cleaning anyway, or do I?

Can you have too much candor towards the tribunal and opposing counsel? Interesting question isn't it? Or is the truth simply more painful or more difficult or weirder than you care to to experience as a lawyer?

Can your family members play around too much with the remote and the special features on DVD's? It would appear entirely possible to watch the film the "The Russians are Coming, the Russians are Coming" in French with Spanish subtitles. I rather prefer the American English with the contrived Russian accents.

Defective Auto Lemon Laws: A Comparison

2008-10-21T15:53:00.000-07:00

Today, we have a guest blogger. Sergei Lemberg is an attorney who specializes in lemon law. He is not licensed to practice in Washington, but his site, Lemon Justice, offers detailed information about lemon laws, as well as an interactive Lemon Meter for consumers who want to see if their vehicle qualifies as a lemon. The Washington State Attorney General's office also has an online lemon law webpage.

Now for Sergei's comments:

With all of the cars, SUVs, trucks, motorcycles, and RVs being manufactured in the U.S. and abroad, it’s reasonable to expect that some will have defects. After all, vehicles are incredibly complex pieces of machinery and a lot of things can go wrong. In the best-case scenario, any defects that weren’t caught by quality assurance are quickly repaired by the dealer. In the worst-case scenario, you have a vehicle with pronounced defects that make it run poorly, that constitute a safety hazard, or that reduce its value – and the dealer or manufacturer refuses to buy back or replace it.

That’s why every state has consumer protections for defective vehicles. However, lemon laws vary greatly from state to state. Here’s a synopsis of which vehicles are covered in Washington, Oregon, Idaho, Montana, Alaska, and California.

Washington: Washington Lemon Law covers new passenger vehicles, SUVs, vans, and trucks under 19,000 pounds that are purchased in Washington. It also covers motorcycles with engine displacements over 750 cc and the motorized portions of RVs, as well as business vehicles under 19,000 pounds – as long as the business registers fewer than ten vehicles in the state.

Oregon: Oregon Lemon Law covers new passenger vehicles, SUVs, vans, trucks, and motorcycles that are owned or leased by Oregon residents. It doesn’t cover RVs or business vehicles (although other state and federal laws offer some protections).

Idaho: Idaho Lemon Law covers new passenger vehicles, SUVs, vans, and trucks under 12,000 pounds, as well as used vehicles that are sold during the new car warranty period with manufacturer’s warranties. Vehicles must be purchased, leased, or licensed in Idaho. It doesn’t cover RVs or motorcycles, but does cover business vehicles.

Montana: Montana Lemon Law covers new passenger vehicles, SUVs, vans, and trucks under 10,000 pounds that are purchased or registered in Montana. It also covers the non-residential portions of RVs. It doesn’t cover motorcycles or leased vehicles, but it does cover vehicles owned by a business.

Alaska: Alaska Lemon Law covers new passenger vehicles, SUVs, vans, trucks, motorcycles and RVs that are purchased in Alaska. It doesn’t cover business vehicles or leased vehicles.

California: California Lemon Law covers new or leased vehicles under 10,000 pounds, including motorcycles, demonstrators, and the motorized portions of RVs. It also covers business vehicles, providing the business has no more than five vehicles registered in the state. The law also provides for used cars that are sold with a new car warranty.

Patience or Why Does Everything Take So Long?

2008-09-13T18:09:00.000-07:00

One of the things I always try to remember as a practicing lawyer from all of my experiences sitting on the other side of the desk, is that a legal matter always seems to take in an inordinate length of time. At a bar association get together last week, one of the senior attorneys here in my little town explained why he only takes criminal law cases. They can be finished in 120 days or less. Sitting to my left was a lawyer who had been on a probate litigation case for over 14 years. In criminal law there is a constitutionally based "Speedy Trial Rule" that helps to keep things moving along.

Even in the best of scenarios when nothing else can go wrong, there is the matter of coordinating schedules. Add in a little miscommunication or unprofessional behavior between counsel and problems tend to unnecessarily multiply. Unfortunately, the nature of the beast is paperwork and process intensive. There really are not that many simple matters in the practice of law. The simple matters are largely being attempted by the public. The only problem is that the public really has a hard time truly distinguishing between a simple matter and a complex matter.

Consequently, that in turn often results in the need for a lawyer at a later date. Twenty years of delay and a couple of thousand dollars of legal fees might have been avoided by a $200 legal consult and drafting project. There is no substitute for the trained legal eye. Of course, seeing a lawyer does add an extra layer of cost and time into any project and it's not a foolproof measure because lawyers also make mistakes.

Any kind of civil litigation by its nature is going to likely involve more time than other methods of settling a dispute. Civil litigation is a paperwork and personnel intensive process that takes time. My advice is to psychologically prepare for the long haul when a party to a lawsuit and previous efforts for non-judicial settlement have failed. Patience is a virtue in life and a necessary characteristic for all parties in a lawsuit. Fortunately, although more lawsuits may be filed, fewer and fewer matters are actually going to trial.

Found in the Daily Record Obituaries

2008-09-06T07:05:00.000-07:00

Here's a great poem by Billy Fulleton who recently passed. I did not know Mr. Fulleton but I truly appreciate his sentiments and they are so true here in Ellensburg and elsewhere as well.

A Rule For Life

The trust of a man is a sacred thing
Only heart aches and misfortune without it can bring
To flirt with it or abuse it is the part of a fool
For a man when a man is not soft hearted or cruel
No treasure is greater than the trust of a friend
To flaunt it or mis-use it brings sorrow in the end
An end to accomplish is normal and sane
So do it with honor, roads may meet again

Billy L. Fulleton

Sexual Assault, Harrassment, Discrimination and Finding your Voice-2008 style

2008-06-29T19:54:00.000-07:00

Despite decades of Women's activism, sexual assault and harrassment and other workplace or educational disorders directed toward women still exist. In fact, in many ways they seem to have increased in acceptance and frequency. And, despite what amounts to monumental efforts to prevent rape and increase awareness, sexual assault continues to be a part of women's lives.

One disturbing indicator of this trend is the report that 25% percent of all recent female college graduates were sexually assaulted during their college years. While date rape and stranger sexual assault are included in these numbers, this been associated in the studies to a fairly large extent with binge and party drinking and all the risk taking behaviors associated with that activity. When you add up the facts which clearly indicate that women simply cannot consume alcohol in the same way as men with the same physiological consequences and the ongoing (increasing ?) willingness of some men on the party scene to exploit women, the statistics need little explanation.

Curiously, there seems to be a tendency to simply accept this as a part of the college experience by some adults and the young women themselves. Being the wasted girl on the couch having sex in a minimally aware state of mind with one or more guys is really not something most young women really feel good about a day, a week, or years after the party . . . and it in no way amounts to sexual liberation. When I hear the older adults make comments such as, " she didn't get pregnant, nobody got hurt and this is just what kids do today, " I don't wonder why I get some of the types of calls I get from young women.

I DO wonder what the cumulative societal effects of sending a whole generation of women (teachers, lawyers, doctors, scientists, etc.) out into the workplace with emotional baggage of sexual assault will be in ten to twenty years, who, as a group will presumably have the highest percentage of survivors of sexual assault in history given the already significant probability that a large percentage of women entering college have already experienced sexual assault before the college years. Add in the extremely high numbers of military women experiencing sexual assault and the numbers AND scope of the institutionalized prevalence of sexual assault in places it shouldn't exist is shocking.

The college sexual assault statistics highlight the fact that young women are more vulnerable than they've ever been due to the acceptance of otherwise intolerable sexual explotiation under the guise of a good time and some of this carries over to the workplace. Because of the unique problems faced by teen and young adult workers, the Equal Employment Opportunity Commission has recently launched a website geared towards teen workers. Teens and young adults are among the most vulnerable workers when it comes to discrimination, sexual harassment and retaliation. While young men have been harassed, it is still a greater problem for young women. As young women become more accepting of the notion that being "objectified" or "harrassed" is actually acceptable and even beneficial in some circumstances, it makes the line for personal space and respect harder to define.

When the incursions into women's personal space reach the realm of critical mass of serious consequences, that's when I receive the call asking questions. This is true across the age spectrum even among women who thought by education, experience and training that they were well equipped to deal with these types of issues. In some cases I can help and in others I cannot. In all cases, it is clear that women, young and old, even in 2008, are still struggling to find their voice and their personal space and my most common advice is to speak up and insist on being heard . . . . young and old.

In Deeds

2008-06-04T07:03:00.000-07:00

A small but steady area of practice for my office revolves around deed preparation. Washington is a state where limited practice officers (LPO's) prepare the vast bulk of deeds, mainly through their employment with title companies. Apparently, there are an ever increasing number of companies even in the mortgage industry that would appear to prefer working with an attorney. Over the course of doing a couple hundred deeds in three or four different contexts, I'd like to offer the following thoughts and warnings:

-You cannot circumvent the State of Washington's land use laws by just going out and filing a deed without doing the appropriate platting and other procedure. Yes, I've seen it tried.

-Your elderly parent or grandparent may or may not be competent to quitclaim you anything, transfers can result in medicaid qualification problems for all parties and charges of undue influence.

-The doctrine of constructive trust may apply if you are holding title for someone else and will most likely legally complicate your affairs rather than simplify them.

-Because a successive deed fails to convey every easement or encumbrance previously granted in the chain of title, this does not necessarily extinguish the provisions of previous deeds.

-In general, transfering multiple parcels of land that are not part of large subdivisions, is probably not worth its savings in deed preparation relative to the time it takes to tease out confusing language. Deed preparation is relatively inexpensive. Spend the time and money up front and it will save you or your successors cash in the long run.

-Remember that a Real Estate Excise Tax affidavit will need to be filed and that you may need to provide documentation to qualify for an exemption.

When Lawyers Are the Heroes

2008-05-24T20:21:00.000-07:00

Having attended Seattle University School of Law during the time that the Wenatchee Child Sex Ring convictions were beginning to be reversed, I watched the FLDS cases proceed with great interest. I'm also a member of the mainstream LDS church, and, surprisingly, only once have had to clarify the difference for a person who actually knew better anyway. The Texas Bar Association, Texas Access to Equal Justice, Texas ACLU, ACLU and Texas Rio Grande Legal Assistance have all, through their members and staff attorneys, made a huge difference in these past few weeks in protecting every American's constitutional freedoms.

I support enforcement of Statutory Rape laws, enforcement of State and Federal Labor laws, and enforcement of the laws pertaining to public assistance fraud. I also do not support expansion of marriage beyond what it is currently constituted as in the forty-eight states that only permit marriage between one man and one woman regardless of who it is that wants an alternative form of marriage. Having made that disclaimer, I've also followed the R Kelly child porn trial simultaneously with the FLDS follies in Texas. R has also had a high profile marriage to a 15 year old. His trial is an interesting counterpart to the FLDS legal follies in Texas.

The other side of the equation-Vendors

2008-03-14T21:14:00.000-07:00

As a solo practitioner, I'm a small business person, too.

I just finished my first year of practice and although my senior lawyer mentors tell me I have all the "right problems," it has been a hair raising first year. Following the advice of mentors and experts, I've tried to select clients carefully, not carry much in accounts receivable and tried to provide great customer service. What I haven't done so well is manage my vendors effectively. And, its clear that some of the expenditures on purchases from vendors aren't producing the expected results.

Now that I know the direction my business will grow in and what expenditures of cash, time and energy are yielding the best return, its time to make some difficult choices. And, some not so difficult choices. I've had three vendors really perform on an outstanding basis on my behalf. One oversold me, but has always kept the big picture of the remainder of my career in mind in helping me to manage that situation.

I know that I can count on that company to do every thing that staff can humanly and humanely do to help my practice grow. It helps that they really understand the business of lawyering. And, their staff from my account representative, to the people answering the phones, to the accounts receivable people really know how to build long term relationships.

I did trim one of my subscriptions with that company back, but picked up a less expensive addition that I use over and over in my practice. While I wish I'd known then what I know today, I can honestly say that the value of the service and information products that I get from my two remaining subscriptions exceeds my expectations and compensates a bit for being in an excess subscription that first year.

A large bank has been seeking my business and working diligently to build a relationship. That has been refreshing. They started with some baggage, there had been some issues that were not so positive in the past. However, they kept doggedly trying to correct course and build a positive relationship. They've also made the effort to do a site visit to my office.

Finally, I have a family owned small business that I trade with that has friendly counter staff that have been there for a couple of years. They manage to turn around special orders of relatively esoteric items in less than three days, and make a good effort to carry comprehensive stock. Additionally, they've sent a small amount of business my way. Not much, but nevertheless appreciated.

Some of the negatives I've experienced with vendors over the past year are: 1) mechanical mistakes and failures, 2) intermittent service outages, 3) unresponsiveness to genuine concerns, 4) overly aggressive collection efforts on past due amounts (yes, I have the same problems the rest of you do), 5) bookkeeping errors, 6) failure to timely make changes requested, 7) delays in performance, 8) failure to return phone calls and e-mails, 9) malfunctioning product upgrades, 10) inability to get to my project at all and the list goes on.

My resolution for my second year of business is to more carefully manage my vendor relationships and expenditures to maximize value and identify those vendors who will be my long term "partners" in building this practice. It's a good goal for any business.

Got summons, get lawyer.

2008-01-08T06:13:00.000-08:00

I am a big fan of several self help law websites here in Washington State, most notably www.washingtonlawhelp.org. But, outside of family law, simple estate and elder law problems, the probability of successful pro se litigation dramatically declines. In general, if you receive a summons and a complaint, you'll do better and SPEND LESS if you see an attorney right off the bat.

Guardianship Rewind

2007-12-06T09:03:00.000-08:00

Last December, I posted a blog reviewing the excellent series by the Seattle Times on the problems with Professional Guardianships. Last week the times ran a two part series on predatory lending to seniors and the depletion of estates by persons not functioning as a family, volunteer or professional guardian under court supervision. Read it here.

Like the situation with Linda David, this woman's case had been reported to Adult Protective Services (APS) without results. Finally, a long term friend went to court as an "interested person." This is an option provided by statute and most people believe mistakenly believe that reporting to APS is the only recourse. If you find a dear friend or loved one in a similar situation, have a look at the Frequently Asked Questions from the Washington Guardianship website.

Steam from the Copper Kettle

2007-10-22T22:16:00.000-07:00

It's a rare occassion when I blog back to back, but I've got a little steam to work off today. The front page of the Daily Record reads "Evicted" and it's the story of another old line Ellensburg small business biting the dust. Read all about it here. Now there are many, many very interesting tidbits of information here ranging from contract issues, to lawyer fees, sales of existing businesses, and, well, retirement planning in the burg.

First, let's introduce the parties, Mr. Kruckenburg (restaurant owner) and Pautzke Bait Company Defined Benefit Plan and Trust (building owner). What's very interesting to me is the building owner. Not so very much that it's the Pautzke's because technically it's not, it's the pension plan. For the uninitiated or those who live outside the walls of this valley, the Pautzke family owns the bait company-yes it is soft and satisfying and mostly brightly colored. Out of this mini empire of fake fish eggs has come an enduring and endearing small business, a real estate agency, and presumably many other holdings that I know little of.

But again, not so interesting. Defined Benefit Plan and Trust, now that's the stuff you can really sink your teeth into. It's the pension plan and as such must manage the assets in the plan in such away as to meet the plan's benefit commitments. Under this type of plan, the trust must pay out a certain dollar amount every month. This unlike defined contribution plans (what more and more of us poor sods rely on at least in part) wherein the promise is only a return on the contributed amount. Note, that in the defined contribution plan the person receivng the pension bears a significant amount of the risk.

Now then, let's say you are a company and you've entered a contract with your loyal employees to provide them x amount of dollars in retirment. In doing so, you've sought to take advantage of tax incentives provided by the federal government and agreed to be in compliance with federal laws most notably ERISA(Employees Retirement Income Security Act) and the Internal Revenue Code. And, let's say you have had a long string of years where, well maybe you as the employer, didn't have to contribute too much money because the stock market was doing pretty well and your real estate investments were doing pretty well too. Some years you might have even moved some money out of the pension funds for other uses, because there was a "surplus."
But, then you notice that your former employees are living longer than expected. Oh, and let's not forget that very soft stock market return, well. relatively speaking after all those exceptional years. Suddenly. you find your pension fund struggling to meet it's expenses, but you have some rental real estate . . . might raising the rents be a way out of an otherwise difficult spot? Especially, when the penalties on defaulting on the federally regulated pension plan can carry some pretty nasty penalties including those troubling criminal charges.

So, while I have no information one way or the other to indicate that any of these issues came into play in our own Copper Kettle story, it's certain;y something to ponder when one is searching for an explanation for the seemingly inexplicable.

Now back to Mr. Kruckenberg. Not knowing him, it would be easy to write him off as a poor manager, right? Not so fast. This was a career employee of what looked to be the previous two owners. And, presumably, the previous owners who sold to him, had confidence in him, because the daily record article states that they still carry the contract on the sale of the restaurant to Mr. Kruckenberg.

Which then leads us to the next interesting tidbit to chew on. They sold the restaurant to Mr. Kruckenberg for $214,000. We know that the previous lease was based on a percentage. 5% to be exact. So, let us work the numbers. In the best months. $2,300 was the lease payment. This means that in the highest grossing months of the year the business might have cleared $46,000 monthly. Unfortunately, many months grossed just $26,000. So for the sake of the argument let's figure 4 months at $46,000 and $26,000 for the remaining 8 months. So roughly a $380,000 gross.

While some businesses warrant a 100 % conversion from gross to purchase and sale price, they are very rare. A general rule of thumb for businesses without customers under contract is a third of the gross, and with businesesses that are very dependent on personal services that number falls even lower. Using the 33% rule, Kruckenberg probably paid twice what he should have for the business. And, that's probably just one reason the previous owner's carried the contract, because it was unlikely that commercial financing was available at that price.

So along with reading all the documents that were part of the sale, a more thorough examination of the underlying financials of the deal might have been in order. So, now not only Mr. Kruckenberg is in a loss position and so are the previous owners who were obviously relying on the sale proceeds to help fund their retirement. Might all parties have been in better shape had the deal been structured in a way(i.e. a more reasonable price) that would have allowed a commercial lender to participate? The underlying lease contract would have been subject to scrutiny by the underwriter and might have been resolved at that time. Of course, this might have necessitated another price reduction.

Copper Kettle is not the only business that has been sold in Kittitas county in the last few years for more than it was worth. One thing these businesses have in common is that they've run their conceptual or aesthetic life. Or, they are on the downside of their lifecycle. And, we are all familiar with the businesses who closed their doors without a sale after asking high prices which did not appear to bear relationship to the existing business.

Many, many of those businesses which sold and didn't sell, had another thing in common with the Copper Kettle Story. The underlying leaseholds were not secure in the long run or were too highly priced to allow for any downturn in revenue or upswing in costs. In a retail or restaurant business where location is a premium asset of the business, having a secure leasehold is a major part of the businesses assets.

One of the least scrutinized aspects of the grueling ordeal of the purchase of the train depot by the city, is the underlying lease of the land of which BNSF would not grant more than a five year term. This with a building needing literally millions of dollars of restoration funds to make habitable again. BNSF is but one downtown property owner that has placed unreasonable burdens on existing and potential tenants.

So as a potential buyer how do you protect yourself?

Under the traditional school of thought, it's been posited that it's often more appropriate to lease your site. However, if you are really interested in building your business as a long term asset AND your business is highly dependant on location, you will want to own your land and your building in this town. Understand also, the underlying cyclical economy in this town, with summer months being the most profitable. Understand the economic culture of the area, wherein most people are relying on the volatile real estate market to provide for their "retirement." Understand that the successful retail businesses and even some service businesses (mine is a prime example) in this town rely on their internet business/marketing to carry them through the slow times and factor that into purchase and finance decision making.

If you must lease, find out who rented your space before you and go and talk to them about the landlord, the foot traffic and the quality of the property management. Do some research on your landlord. Are they a trust that has a duty to maximize current return and not interested in investment for the long run? Have they been in court frequently with tenants? Will the landlord attract customers to your business or drive them away?

Before buying a business with a lease and any supply contracts, audit, audit, audit and audit again with the assistance of attorney and accountant. And, then listen to the recommendations of both. Make sure you know what you are getting into three, five and ten years out. It's far easier to negotiate terms before the contract to purchase is finalized than after.

What if you are business owner looking to sell?

It's as inappropriate to rely on selling a small business for retirement without diversification as it is to rely on holding a block of a single stock. So, the key is to diversify. In my opinion, both spouses should never work exclusively in the same small business. One should have an anchoring job elsewhere as an employee, preferably with solid benefits including health and retirement. The Small business itself should have some sort of retirement plan. Avoid the trap of making decisions on spending solely for deductibility. When feasible, buy the Ford rather than the Mercedes and stash the difference for retirement. Build solid value for your business by actively reviewing underlying contracts such as leases, vendor agreements and customer contracts on an annual basis to make sure your are creating an asset that another party can assume.

Now onto lawyer fees. I've only been in practice in Ellensburg for a year, but I've come to the conclusion that not too much thought is being put into the cost of being in court. I'm not really sure why that is. In this case, there was $16,000 in attorney fees. Roughly the same amount in controversy. And, it's very likely the building is going to sit empty for awhile. Even if Pautzke, er . . . Defined Benefit is awarded fees in the amount of $11,500, will they be able to collect? Doubtful. Stay tuned and let's all watch what becomes of that very interesting corner location.

The jury agreed with Pautzke that they were right on their technicality, but came back with a fairly strong statement by only awarding $1. That speaks volumes.

Local politics

2007-10-20T05:29:00.000-07:00

It's been a long week for me and find myself wondering why I care. Then I wonder why others care. I haven't found a good answer to that. For some it's money, others its power and influence, and many, many others seem to truly desire to make our community better.

A few random thoughts:

You cannot build a thriving economy on real estate development alone.

Retirement planning based on a real estate portfolio without diversification is risky business. I'm sorry if you find yourself in this position. My office can help on a number of fronts from estate planning to corporate reorganization.

Water is a finite resource.

Laws are somewhat fluid and subject to court interpretation.

Judges, with relatively few exceptions, are honest, unbiased individuals who do not prejudge matters regardless of their political affiliations.

Citizens have constitutional protections both at the State and Federal level that permit them to engage their government.

The Washington State constitution provides a greater level of protection and rights for Washingtonians than does the Federal constitution.

Those elevated rights under the State Constitution include the right to recall elected officials.

To quote (paraphrase) the Daily record, " elected officials represent all their constituents, not just the ones they agree with."

There are state statutes that impose penalties for tampering with the voting process. Tampering includes threats and intimidation.

Federal statutes such as RICO, the anti-racketeering law also may come into play.

We should all exercise our right to vote, for we women that right was hard fought and paid for over 50 years of court, legislative, and grass roots effort in this state. No one should take that away from any of us by any means.

Why you need a lawyer (and an accountant)

2007-09-04T08:27:00.000-07:00

This summer I've seen several cases where, if the parties had initially seen a lawyer when they got started in the endeavor that is the genesis of the current problem, they would need less of my help right now or could have avoided seeing a lawyer altogether.

A few thoughts:

1) Using canned software or even document "mills" is a sure way to create problems down the road for many reasons including bad documents, incomplete documents, irrelevant documents and clauses, and, problems due to the failure to follow up.

2) Prosecutors are not your friends, and you should never accept a plea bargain without competent legal evaluation. And, in many cases competent means someone other than assigned counsel.

3) Alford pleas-please no, if you didn't do it, why take the rap? This plea will follow, follow you and you will be forever explaining yourself on the societal presumption of "where there is smoke there is fire."

4) Fear coupled with ignorance is recipe for disaster in self-help legal work. Spend the money for an hour of legal consultation or if you absolutely cannot, go to the excellent website at http://www.washingtonlawhelp.org/ for guidance on most simple legal matters.

5) When you handle money or property for yourself or others, proper tracking of the funds received and expended is essential and not optional. Do not try to cut costs or save time by not properly accounting. Get to know your accounting professional before you need them. It can be difficult to find competent accounting assistance when you are faced with litigation without an existing relationship with a pro.

6) Keeping up on the accounting issues will significantly reduce the chances you'll need a lawyer.

Gaining Access

2007-06-09T16:20:00.000-07:00

A few weeks ago over lunch, a forty-something friend from Seattle confided that she wondered if moving to LA would be the right choice for enhancing her acting career. Remarkably, two of her forty something friends moved to LA in the last couple of years and found immediate and continuing work as actresses. While we like to think of the Northwest as a great cauldron of independent film and music activity, realistically, the opportunities here are limited for paid work. She had moved here from Northern California hoping to be able to work in "socially meaningful" film projects, but to her great disappointment large numbers of those types of films are not being made here either.

In the film community, "socially meaningful" tends to means a production which has the potential to change the mind of the viewer to another position of thought. The classic documentary film from a balanced journalistic perspective, while still with us, now represents only a small fraction of the documentary genre. Now, documentary film with strong viewpoints is accepted, or, in some instances, scorned depending on your point of view. BJ Bullert in her book Public Television: Politics and the Battle over Documentary Film presented case studies from the 1970's and 80's where the then difficult topics such as AIDS could not get airtime, especially where a strong argument was made by the filmmaker on the most controversial side of the subject. Some argue now that the pendulum has swung too far in the other direction.

With the literally thousands of films and other artistic endeavors promoting a perspective, how does a person gain the type of access that lands a major media slot? Arguably, there now may be an opening for a few created by You Tube and other internet sources, but the long and short of gaining access is still going to be getting out and doing. For a filmmaker that means actually making the rounds on the festival circuit, direct marketing to consumers, or the harder work of finding a distibutor. For an actress that will probably mean working in pieces that are not "socially meaningful" works of art. And, so on . . . .

Which brings us to the real question, how many of us do "socially meaningful" work in any profession all the time and on every project? And, do those who do have the opportunity to make a living? While the answer is undoubtedly yes for a few, careful scrutiny of the facts shows that most pros in the entertainment industry had to pay their dues on projects of lesser enlightenment. Many continue to do so even when their star quality is in high demand.

One of the perks of Celebrity is the opportunity for access. Angelina Jolie is but one example of a celebrity using her access for "socially meaningful" work. Bono is another. This also explains why sometimes an industry insider gets wide access for a project of questionable quality and gets to have their voice heard when others would not.

James Cameron's Lost Tomb of Jesus was just such a project. Much hyped, but slow and not scientifically sound (one prominent archaeologist called it Archaeo-Porn), this documentary presented a clearly defined anti-biblical perspective. The same cable network would never present a documentary coming from the opposite viewpoint with such sloppy scientific and production value. But, because James Cameron produced it, he was able to get access. Cameron's most notable directorial roles included all three Terminator movies and Aliens, and while these films arguably contain some social commentary, they hardly could be considered truly socially meaningful.

Artists and others get access to have their voice heard or point of view seen by doing. To do it may be necessary to go to where the opportunity to work exists. Or, alternatively to bring the work to where you are. North by Northwest in Spokane is an example of a local entertainment industry company that has been able to successfully bring meaningful film industry production work to Spokane, Washington. Pete Jackson was able to bring production home to New Zealand on a sizeable scale. But again, he did the hard work of both going where the gatekeepers of the work were located in Southern California and then convinced them to bring the production to where he was.

He did not accomplish this by putting up a You Tube video. Along with great skills in production, simple skills but oft times frightening phone calls, e-mails, and networking are what makes a difference for an artist. Couple that with a substantial portfolio of finished projects and start reaching out to people in your industry whatever that may be and you will be surprised how many established professionals and emerging professionals will respond. Being active and meeting people is one of the best ways to establish access and that can be done over the phone and through e-mail. It's old fashioned hard work, but worth it.

The Most Common Estate Planning Mistake

2007-05-01T18:09:00.000-07:00

I belong to a nationwide listserv of estate planning attorneys and the "most common" estate planning mistake is:

Failure to fund Revocable trusts (Virginia).

Failure to fund Revocable trusts (Illinois).

Not funding your trust (Hawaii).

Unfunded trusts (Michigan).

Clients who forgot to transfer real property into the trust (California).

It may seem like a no-brainer after spending so much time and money, but failure to place assets into a trust is repeated over and over as the biggest estate planning mistake clients make. And, its not just the clients who may or may not be excused by age and forgetfulness, for the worst unfunded trust problem involves children who didn't know the property had not been transferred, and, apparently, didn't take much time to review the trust itself and its supporting documents. No probate was opened and the mistakes were only found later when the kids wanted to sell the farm and discovered it was still in the name of the parents and not the trust with the statutory timelines for filing probate long past.

If you have a trust of any kind, be sure to transfer real estate, re-title non-retirement accounts and change beneficiary designations. Also, check all changes and transfers for correct information.

Evaluating Business Financial Health

2007-04-01T17:53:00.000-07:00

Here are few possible questions to ask when contemplating the purchase of a business, legal action against a business, or simply whether or not your own business is saleable.

1) What is the typical profit ratio in the industry? Is it 30%? Is it 10%? Is it 1%? Are there published financial models that could be applied to determine whether costs are in line with the overall industry?

2) If a business grosses 2 million dollars, and the gross profit is $600,000, and the board reasonably declares a 10% dividend, shareholders receive $200,000, how does that relate to actual profits earned? Similarly, if the business only has a 10 % profit in a given year and the board decides to give 10 % profits out in dividends to keep the shareholders happy, is that a good thing?

3) Has the business run through its lifecycle? Is the concept still current and exciting? Is the physical aesthetic clean and fresh or dated and stale? Is further investment needed just to maintain the status quo?

4) Are there substantial management problems? Has the business been stripped of all saleable assets? What is the debt level? Is the company pre-bankruptcy? Is there a decent set of books? Is the company current with IRS, Department of Labor and Industries, Department of Revenue and other tax and regulatory agencies?

Valuable Vault Contracts

2007-01-30T10:53:00.000-08:00

It's become a rather pedantic refrain that I've uttered over and over in various settings, "Contracts create value." This refers from the fact that without a contract in writing most types of marketable "intangibles" have no valuable. The paper in and of itself didn't have any intrinsic value. Not so anymore. Twentieth Century Fox will auction off contracts from their vaults. Depending on the success of the auction, look for follow up litigation and future contract language limiting the right of one party to profit from the other party's signature on a legal document without sharing the profits. Commercial misappropriation anybody?

Designer Disabled?

2007-01-16T07:53:00.000-08:00

Disabled child in your home difficult to care for? Have her body modified to suit your needs. A couple in Seattle claims to have successfully surgically and hormonally altered their child to keep her size and weight child size. Regardless, of which side of the debate you find your sympathies lying, once again, important issues which should be debated and further examined are ignored.

Disabled children do have differing interests than their parents. And, there are many adult disabled who have uncomfortable and unpleasant memories of the problems they had with parents who wanted them to take a different path. At some point in time, every parent of a disabled child, if they are honest with themselves, must face the reality that their child may (and probably should) live an independent life. Even if a child can never live independently, parents must acknowledge the possibility that they themselves may die or otherwise become unable to care for the child.

There are many things that parents can do to begin the process of planning for the transition into adulthood without resorting to such drastic measures. First, the large majority of disabled children do qualify for educational services or accommodations under various federal and state programs. Second, even parents who otherwise do not qualify for federal and state assistance with medical and care requirements outside the school setting, can begin the process of qualifying the child for Social Security before the child turns eighteen. Third, parents with larger financial resources can shelter assets for a disabled child through the use of a supplemental or special needs trust.

Nevertheless, the difficult issue that cannot be addressed by accessing any of the above programs or legal mechanisms, is the day to day grind of raising a profoundly disabled or medically fragile minor child. The simple facts are that we do ration health care and resources in this country. Many parents of disabled children describe themselves as “have” or “have nots,” depending on whether or not their kids qualify for governmental assistance. The guidelines for qualification for benefits can seem quite arbitrary.

Even with adequate personal financial resources or governmental assistance, finding good help is still a challenge. This extends to all types of resources ranging from adequate home health assistance to finding competent professionals. For example, the ongoing shortage of speech, occupational, and physical therapists takes it toll on the entire system of services to the disabled of all ages. Indeed, the couple in Seattle cited the difficulty of finding good in home assistance as the primary impetus for the body modification of their child.

The larger societal issues that aren’t getting airtime in this debate include the underlying problems with health care and insurance, the inadequate number of health professionals this country’s health education system is producing at all levels of employment, and, a failure to protect and appropriately assist the families of the disabled of all ages. A dirty little secret in this country is that while the Disabled do enjoy some protection under the law in terms of access to employment and legal remedies for discrimination, those associated with disabled persons do not. Many parents of disabled children, particularly women, can tell stories of not getting jobs or advancement opportunities due to their roles of caretaking a disabled person. Realistically, it’s pretty difficult to keep a disabled child under “wraps” and parents of disabled children shouldn’t have to.

I Fell Into a Pit of Striking Vipers: Tales of Crazy Makers, Liars, and Deniers

2006-12-30T08:27:00.000-08:00

Dealing with crazy makers, liars, and deniers is a fact of life for most of us, but most of us really don’t have the understanding or the coping skills to respond accurately when confronted with these negative behaviors. We all want to trust people that we love and work with. Unfortunately, life’s realities have a way of impacting even the most optimistic, positive, and trusting folks.

I once was told that the business of lawyering is really about understanding human nature. I agree. But, I would take it a step further and say that all successful businesses are built on understanding and accepting human nature. The same is true of most enduring relationships.

A working knowledge of common personality disorders, mental illnesses, brain injury issues, addiction problems and how to define personal boundaries is a necessary tool for modern life. These are tools that are useful in identifying and responding to certain rather unpleasant events. While it may help emotionally to have this knowledge and it may serve as a reality check for one or both parties, it still doesn’t help on the legal front. And, what happens when you’ve done your best and you still find yourself in an intractable situation with someone you trusted enough to enter into a relationship with but that relationship has now gone sour?

Arguably, most law is nothing more than a series of default contracts designed to help people deal with relationships gone bad. However, the default provisions of the law may or may not provide protection for one or both parties despite vast bodies of statutes designed to provide some stability for the greater community at large. And, for a large part of the population the statutory defaults are the most effective and low cost option. But, if important issues and high stakes are involved wouldn’t it make sense to protect yourself with a written contract?

In many cases to have any rights of recourse (enforcement of a promise) at all under the law, written contracts are required. These are the classic Statute of Frauds requirements for “writings:” marriage contracts, contracts over one year, some types of commercial contracts over a certain dollar amount, contracts pertaining to the sale of land, and promises to pay on behalf of another. Denial comes into play when we tell ourselves that there is a good reason not to have a formal agreement memorialized in writing. Some of those reasons may include a perceived need for “flexibility,” an idea that not having the agreement in writing will save money or time or a relationship, or, in some cases lack of formal written agreements are a tool used to create openings for pure opportunism.

There is an old saying that all is fair in love and war, and, in modern life, most people have extended this to include finances as well. Thus, the chances of any verbal contract agreement between parties falling apart are high. Put two or more people together who are incapable of acknowledging or accepting accountability for oral contracts and you will have the modern day equivalent of falling into a viper pit. The party with the most power, endurance, or resources usually wins due to attrition, but incurs substantial damage as well. Let the vipers beware. Happily, for the rest of us there are written contracts.

Audit Clauses ARE for the creative.

2006-12-14T09:11:00.000-08:00

In their most simple form, audit clauses allow one or both parties to audit each other's bookkeeping.

In very brief and straightforward clauses, the party requesting the audit is authorized to: 1) request an audit, 2) with adequate notice, 3) at reasonable business hours, and, 4) hire a competent accounting professional to conduct the audit. The requesting party is usually limited in its investigation by: 1) number of times an audit can be requested in any given period of time, 2) scope of the business records to be audited, 3) previous evidence of inappropriate use of audit results, if any, and, 4) the requirement to bear the cost of the audit process.

In the broad spectrum of Intellectual Property which includes all manner of publication (film, music, multimedia, software, games, licensing, written works, etc.), the stakes are higher and the clauses more complex. Power is concentrated in the hands of the distribution company or industry insiders. This requires that artists begin the difficult task of adding a dual competency in business by gaining at least a nominal understanding of various contract clauses and the accounting procedures contemplated in the language.

Here's an interesting article called Model Audit Clause. The writer is a prominent entertainment attorney in Los Angeles. I recommend spending some time in the trial notes portion of this attorney's site. It's eye opening.

This is an example of an ideal audit clause that an artist would like to see in a contract. Note, however, that the artist in order to take full advantages of the rights he or she establishes, must be diligent in tracking expenses on both sides of the equation, that of the other party and their own. And, the artist must track what the other party is doing during the process and raise an objection at that time.

It's pretty hard to know if someone's ripping you off, if you can't keep your own books straight. There is a lot of denial out there in the indie community about: 1) the need to keep good records, 2) the need to follow formalities, and, 3) the realities of dealing with professionals, including the poor sod trying to do your books.

Of Orcs and Audits

2006-12-09T19:21:00.000-08:00

This is the first post in a series I'll be doing on audits. If you haven't heard about Peter Jackson being pulled as the director of The Lord of the Rings prequel The Hobbit have a look at the CNN article. The letter written by Peter Jackson and Fran Walsh appears on The One Ring, a fan site.

Audit provisions are found in all types of contracts, not just film and television contracts.

It just happens that in the entertainment industry the stakes for the little guy are a lot higher and the accounting is much, much more creative. Language in the audit clause and appropriate follow through can make the difference between dying broke and living an independent senior existence for many artists.

The second topic I'll be covering on the broad subject of audits is how to conduct an in house contract audit. It's ten o'clock, do you know where your contracts are? Who is terminated and who isn't? Does contract language comport with current law? And, last but not least, Word for the not so dummies who need to quickly check contract language.

The last topic will be on financial audits. The kind the CPA's do, and what the shortcomings of that process are. It's not as dry as you might think. How not to cook the books 101.

Notice the new, svelte Pete Jackson? I did, particularly since I recently started a diet. If you are interested you can view my nutrisystem members page. You can also view my myspace site which is more specifically geared to all things film.

When the Government Calls . . . Answer

2006-12-05T06:47:00.000-08:00

Woody Allen famously said, “Eighty percent of success is showing up.”

One sure way to insure non-success in legal matters involving the government is to fail to appear. The classic failure to appear occurs in judicial settings. Ignoring traffic citations and parking tickets, phone calls and letters from representatives of taxing entities, failing to file various documents and non-conformance to various formalities imposed by law, all amount to potential future problems and are another form of "failing to appear."

While failure to appear for some types of court and administrative hearings can land a person in jail, other types of failure to appear may not have obvious consequences. Failure to adhere to the legal formalities imposed by statute and case law can have profound financial consequences on the owners of closely held corporations when the protection of the corporate form is taken away. It’s human nature to believe that we will never be in a situation where our own business fails, and, thus, the rules don’t apply to us.

Arguably, it is hard to hear the call of the government amongst the din and clamor of daily life, but for those who don’t answer the consequences can be severe. All lawyer jokes aside, one of the primary roles of attorneys in this society and throughout the world is to assist citizens in answering the call of their government. In navigating the maze of answering the government’s call, help is available, and, it pays to be well advised.

A few more or less random thoughts and notes on estate planning which are not to be regarded as legal advice or endorsement of any particular action:

2006-12-04T06:56:00.000-08:00

The statutory scheme for disposal of assets, ie. dying intestate (without a will), may be an acceptable solution for some folks.
But, if you have minor children wills are necessary if you don't want the court appointing their guardian.
Probate in Washington State is not the bugaboo it is in some other states.
If you own property that you plan on passing by will in another state it will be subject to that state's probate scheme.
Term life insurance has never been more affordable even for senior citizens.
A common misperception is that the proceeds from life insurance policies are not part of the taxable estate at death.
An advantage of passing property by will is that probate imposes a statute of limitations on creditors.
Believe it or not, it is not unusual for otherwise rational people to forget to move property into a trust.
Many types of property, non-probate assets, pass outside of wills by beneficiary designation.
The rules on Medicaid eligibility have recently changed.
There are excludable assets and transfers under Medicaid analysis.
The federal estate tax scheme has never been so uncertain as it is now.

Seattle Times exposes the seamy underside of the guardianship business in Washington State

2006-12-03T18:10:00.000-08:00

Kudos to the Seattle Times for exposing the weaknesses and failures of the court appointed guardianship business. It is a relief to see the problems of professional guardianship brought forward into the light of day. For too long, court commissioners, judges, guardian ad litems, and many lawyers have perpetuated the image of the abusive, neglectful, and, spendthrift family member as the rule rather than the exception. All the while, these members of the legal community have known, but chosen to ignore or minimize the problems of professional guardianship.

As the Times series points out, one of the key problems is the high cost of guardianship services, relative to that of a family member who typically serves for free. One of the barriers to family members serving as guardians is the bonding process. Typically, courts will seek to block funds not needed in the current year. For the funds needed in the current year, the court often requires the guardian to be bonded for that amount. These fidelity bonds are not easy to get and are underwritten by a relatively few companies. For an otherwise highly capable and caring family member, personal financial impacts of disability, bankruptcy and business failure can disqualify the most qualified person for guardianships.

It is debatable whether the track record of this State’s guardianship services as a whole, surpasses the track record of family members. What is clear is that courts are concentrating the care of highly vulnerable individuals and/or their estates in the hands of a small group of people who are tightly connected with the court system. Guardianship services have received highly favorable treatment from the courts and the legal community when cases have been brought to court.

Most chilling is the case of the aged Alzheimer’s patient who jumped to her death from a condo window. Although she was receiving around the clock care from caregivers in the employ of the guardianship service, her body was not found until the next morning. A Washington State Appellate court found that the personal representative of her estate could not bring claims on her behalf against the guardianship agency. Had the patient been in a nursing home, there would have been profound consequences for this failure.

The guardianship agency in question had managed to siphon off several hundred thousand dollars from the estate prior to the patient’s death. One can certainly understand the frustration of the personal representative in this case. Lawyers have tended to dismiss this case as an aberration as the lawyer representing the plaintiffs, Douglas Schaeffer, is a bit of a pariah in his own legal community having been suspended from practice in the Judge Anderson scandal in Pierce County several years ago. It’s useful to note that this scandal involved the guardianship “game” in the area.

The Times lends a much needed voice of credibility to exposing the failures of the system in the name of professionalism to protect some of society’s most vulnerable members. Read the series here.