Grab your lunch, and join the WSBA president and Executive Director for an online conversation on Tuesday, May 28!

What: Online discussion with WSBA’s President and Executive Director

When: Tuesday, May 28 – NOON

Topic:  Proposed changes to MCLE Credits and any other topics you’d like to discuss

It’s been a busy year with a lot of conversation on where the legal profession is headed. One area under discussion in Washington centers around our Mandatory Continuing Legal Education (MCLE) credits.

Before the Supreme Court now are proposed changes to MCLE credits. If approved, MCLE credits would be broadened to include:

• Practice Development
• Work life balance and stress reduction
• Leadership Development

In addition, at the April Board of Governors meeting the board approved a charter for a new Task Force that will be looking at our mandatory CLE requirements. The Task Force will review MCLE rules and regulations and determine whether they reflect current approaches to learning and teaching and are meeting the needs of today’s lawyers. The Board of Governors will soon be making appointments to that group.

I encourage you to join me and Paula Littlewood, WSBA’s Executive Director, on Tuesday, May 28. We’re interested in your questions and feedback on the proposed changes to MCLE credits and whether you think they should be broadened. We’ll be funneling your input to the Supreme Court. But, that’s not all we’ll talk about. We’re ready to field any questions you’d like to ask.

Again, please join us a noon on Tuesday, May 28 for an online discussion.

In response to a recent string of fatal crashes caused by DUI drivers, the state Legislature has set its sights on strengthening DUI penalties in Washington. While tragedies like this are senseless and gut wrenching, it is important to remember that these results are not typical. An overhaul of DUI law must actively target the underlying cause of recidivism (alcoholism), while acknowledging that for many, a DUI is an isolated incident; a stupid mistake in an otherwise law-abiding life.

DUI penalties are already significant. Mandatory minimum penalties start at 24 consecutive hours in jail (convertible to 15 days of electronic home monitoring); $941 fine/court assessment; a 90-day license suspension; court-ordered alcohol evaluation, treatment, and victim impact panel; a one-year ignition interlock device (IID) requirement; five years of probation; and mandatory 12- hour impoundment of the vehicle immediately following arrest. The mandatory minimum penalties get stiffer with subsequent convictions within seven years or higher BAC levels. A person convicted of DUI may never vacate that conviction. It remains on their criminal history forever, even after the 10-year look-back period for sentencing and felony enhancements ends. This ensures a lifetime of shame and stigma even for those who never reoffend, and puts DUI offenders into the same category as violent felons and sex offenders.

The Legislature has amended RCW 46.61.5055, the statute prescribing DUI penalties, 11 times in the past 10 years; three times in 2012 alone and twice in 2011. DUI is not a subject area ignored by lawmakers where the crime’s impact on society has significantly outpaced stiffer sentencing. Now legislatures are looking at different alternatives to once again, “get really aggressive about drunk driving.”

Current Proposals to Change DUI Laws

Proposals include making the third DUI a felony (currently, the fifth DUI in 10 years is a felony); requiring impounded vehicles be outfitted with IIDs before releasing the vehicle; random sobriety checkpoints; increasing jail sentences for repeat offenders;  a 10- year prohibition on the consumption or purchase of alcohol following the third DUI conviction; faster filing of charges; and mandatory jail booking following arrest.

Requiring installation of IID devices on impounded vehicles is likely to run into various constitutional challenges, and may cause more harm than good especially where the DUI offender has borrowed the vehicle from a family member or friend. The Washington Supreme Court has already ruled random sobriety checkpoints unconstitutional in City of Seattle v. Mesiani. Mandatory jail booking following arrest will cause a massive need for more jail space and money to pay for it.

Most recently, the Legislature has largely overcome its initial emotional reaction to the recent deaths, and is now letting cooler heads prevail. The feasibility of the proposed changes is being hotly disputed, even by law enforcement and prosecutors. Stiffening DUI penalties to deter repeat offenders or even first-time offenders is a worthwhile goal for the Legislature and for society. Even one life lost is one too many. However, extra care must be taken by our lawmakers to craft laws and policies that strikes at the root of the problem while keeping in mind that everyone is entitled to one mistake.

Your take? What do you think of the proposed changes to DUI law? Will it do anything to deter first time or repeat offenders?

The district elections for the Board of Governors are now over, says she-who-managed-the-process with a sigh of relief. Rest assured that every ballot was counted, and no chads were hung. Here’s a little information about our three new governors, plus a reminder about WSBA’s next president, and a heads-up about some key leadership decisions that will be made at the May BOG meeting.

1. James Andrus | District 9

James Andrus, our new District 9 governor, is a corporate lawyer with K&L Gates and lives in Newcastle. He graduated from West Point and the University of Texas School of Law. James has been actively involved in KCBA, WSBA, and the Loren Miller Bar Association, serves as a mentor to lawyers and youth, and is a board member of Pioneer Human Services. In his ballot statement, he remarked, “We enjoy a profession that many of us dreamed about as children. How we address the critical issues facing WSBA will have a lasting impact on our ability to live our dreams.”

2. Phil Brady | District 10

Phil Brady, who persevered through both a regular and run-off election in District 10, has held several positions at the Washington Dept. of Financial Institutions, where he is currently regulatory projects coordinator. He previously served as staff counsel for the Washington State Senate. He noted in his candidate statement that young lawyers and public attorneys, of which he is both, are underrepresented on the BOG. He is a graduate of the University of Oregon, with a J.D. and an M.S. in Conflict and Dispute Resolution, and lives in Tumwater.

3. Brad Furlong | District 2

Brad Furlong, of Mount Vernon, will soon represent the 2nd district on the BOG. Brad is a general practitioner, concentrating on municipal and healthcare law, real estate, and business transactions. He is a member of the Washington Supreme Court Ethics Advisory Committee, the Skagit County Bar Association, and many other groups. In an email to voters, Brad pledged to “help the WSBA be lean and efficient, responsive to lawyers’ challenges and needs, while striving for diversity and access to justice.”

4. Patrick A. Palace | 2013-2014 President

Patrick Palace, of Tacoma, our current president-elect, will be sworn in as WSBA’s president at the Annual Dinner on Sept. 26, 2013. Patrick owns Palace Law Offices, a firm that emphasizes workers’ compensation, civil rights, and personal injury matters. His WSBA involvement includes serving on the WSBA Board of Governors for the Sixth District from 2008–2011, serving as president of the WSBA Young Lawyers Division in 1999, as well as extensive committee and task force work. Patrick received his bachelor’s degree from the University of Washington in International Business and his law degree from Loyola University of Chicago School of Law.

5. TBD | At-Large Governor and President-elect

At its May 31 meeting, the BOG will choose a president-elect for 2013–14 and fill one of the at-large governor positions on the board.

President-elect. Anthony Gipe, of Seattle, is the only candidate for president-elect. A former at-large BOG member, Anthony was also a founding member of the Washington Leadership Institute Advisory Board and QLaw. He served in the U.S. Navy, received his J.D. from the University of Washington, and is currently of counsel to the Olympic Law Group, PLLC. In his application for president-elect, Anthony states that his “one defining characteristic … is that I try in all things to be a person dedicated to service.”

At-large Governor. The two candidates for the at-large governor position are Jenny Cochrane, of Bellevue, and Karen Denise Wilson, of Mount Vernon.

• Jenny Cochrane, a graduate of the University of Montana School of Law and a member of WSBA’s Judicial Recommendation Committee, writes in her application letter that she hopes to “continue my pursuit of equal justice for all through representation of my bar members on the Board of Governors through my unique perspective as a solo firm practitioner as well as a zealous advocate for those with special needs.”
• Karen Denise Wilson is a public defender, a graduate of the Washington Leadership Institute, and the recipient of a J.D. from Tulane University. In her application letter, she says that “the at-large member position aligns with my purpose and my commitment to service in a way that promotes equality and engenders diversity in the legal community.”

Read more from the Demystifying Depositions Series: Admonitions | The Funnel Technique

If you daydream about depositions, it’s probably about that crucial moment where the witness makes that fatal admission that undermines his whole case: “So you ADMIT that this is your signature on the key document?” “YES!” (witness dissolves into sobbing, thoroughly cowed by your impressive lawyering).

But those moments are rare. Real litigation rarely resembles our wildest dreams; it actually takes significant skill to craft a line of questioning that gets you to that fateful admission. How do you do it?

This is where cross-examination and closed-ended, or leading, questions come in. Some lawyers love them, some lawyers hate them. Leading questions can be used to obtain party or expert admissions. They can be used to test your theories of the case. They are also a great way to test lines of questioning for trial. Maybe the witness will not say what you want, but it’s better to know now during discovery than to learn this at trial!

Craft a Case Theory

The process of getting great admissions or testing your theories begins during preparation, or what I call, “Dep Prep” The first step is to craft a case theory. Before you can ask questions designed to elicit a statement that is key to your case, you have to understand your theory of the case. You must also take the time to evaluate, to the extent you can, your opponent’s case theories. What theories does he or she appear to be making in correspondence, in oral argument, or in briefing?

Next, identify what key facts are necessary for your theory and the opposing party’s theories. Finally, identify what statements the particular witness might make that are relevant to both theories.

Ask Leading Questions to Obtain Admissions

As a practical matter, you will arrive at these admissions or statements through a series of leading questions, which elicit a “yes” or “no” answer, and do not call for explanation. The goal of leading questions is to assert control over the witness and force the witness to give the desired answer. It takes time and practice to learn to deftly wield the leading question. Questions should be short so the party statements do not get obscured. In its Deposition Skills class and texts, the National Institute for Trial Advocacy recommends the “one-fact” leading question.

By asking a series of questions that ask only about one fact, the questions build upon each other to the desired answer. By only asking about one fact, it is harder for the witness to hedge or equivocate. If you encounter a roadblock, revert to open-ended questioning until you can resume your closed-ended questions.

Leading Question Techniques: Looping and Boxing In

To get the great statement or admission you want, there are a couple of different techniques you can use. The first is called “looping.” Using looping, you incorporate a witness’s favorable answer into your next question. The witness will feel compelled to give the desired answer or look foolish. Another effective technique — boxing the witness in — is moving from facts the witness must admit to facts you would like the witness to admit. You will likely need to plan this line of questioning in advance to carefully move the witness to where you want to go. Think of ways the witness could potentially escape from the admission you are trying to commit him to, and close off that option by asking a question that forces him to commit. You want the witness to have to choose between being truthful and looking foolish by contradicting a prior answer.

More Tips for Leading Questions

A deposition is also the time to test your theory to the end, to see how far you can get the witness to go, and to ask “one question too many.” While we are frequently cautioned not to “ask one question too many,” or to ask “a question you don’t know the answer to,” the time for these questions is during the deposition. If the witness has an explanation for her answer, you want to hear that explanation before trial. Plus, the explanation may come out during the opposing attorney’s questioning of the witness, or direct examination at trial.

Also remember that it generally does not matter at what point in the deposition the admissions are sought. If a witness is evasive and doesn’t want to answer, ask the question at another point during the deposition, but just as effectively use the testimony down the road. Remember to conceal your objective as long as possible, lest the witness figure out what party admission you are trying to get, and foil your attempts.

Using leading questions takes practice. Crafting intelligent and effective lines of cross-examination takes practice, too. But this is an area where preparation is key. What you lack in experience you can make up for in preparation – by taking the time to learn about these techniques and to know your own case. You just might get that Hollywood deposition moment.

How is “Parent” defined under the law?

This is the question before SCOTUS in Adoptive Couple v. Baby Girl. At issue is a conflict between state adoption law and federal law under the Indian Child Welfare Act (“ICWA”). 25 U.S.C. § 1901. ICWA was passed by Congress in 1978 to counteract negative adoption practices that failed to address the unique sociopolitical status of Native American children. See, Adoptive Couple v. Baby Girl, 731 S.E.2d 550 (2012) (South Carolina Chief Justice Toal discusses the history and purpose of ICWA.)

Adoptive Couple v. Baby Girl — Facts

This case a “hot topic” for Washington attorneys because it could have easily come from Washington, given that we have 29 federally recognized tribes in our state. Baby Veronica was born after her American Indian father and a mixed-race mother broke off their engagement and cut off communications. Her father was deployed to Iraq while the mother began adoption proceedings. Her father was not informed of the birth or of the adoption proceedings, but had essentially given up his parental rights to the mother. See, e.g., here, here, or here . The Court has been asked to determine if the father can invoke ICWA to block the adoption, and if so, does he meet the definition of a parent under ICWA which does not include a putative father that has lapsed on his parental rights.  

Ruling? SCOTUS should uphold the rights of the Father

Yes, a non-custodial parent should be allowed to block the adoption under ICWA. But the holding here should be very narrow. First, a ruling in favor of the adoptive couple could cause an upheaval of over 30 years of tribal adoption practice under ICWA. Also, in my opinion, it could set dangerous precedent on federal pre-emption grounds. Lastly, cases involving children are normally determined under a “best interests of the child standard.” Generally, this always includes a strong preference of placement of the child with their biological parents. Here, the father has had custody of the child for nearly two years – a best interest analysis in favor of the adoptive couple is unpersuasive at this point. Transcript of Oral Argument at 25 (Justice Ginsburg questions validity of best interest analysis). The Court must be careful not to disrupt the balance of interests between tribal adoptions, state agencies, and biological parental rights.

On the other side of the argument, upholding ICWA in this case could deter potential families from adopting Indian children with absentee fathers. Mrs. Blatt, the attorney for the adoptive parents, argued during oral arguments,

If you rule in favor of the father…you’re basically banning the interracial adoption of abandoned Indian children. There’s not a single adoptive parent in their right mind who is going to … go through these Kafkaesque hoops” and  “you’re basically relegating the child … to a piece of property with a sign that says ‘Indian, keep off, do not disturb.’

To counteract this, the Supremes should make this case factually distinguishable based on the military status of the father. A “good cause” type exception would allow this case to leave the corpus of ICWA case law undisturbed while still allowing a means of judicial review to cut off parental rights in scenarios such as this one.

Finding that ICWA applies, can the father avail himself of its protections? ICWA defines parent as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established. 25 U.S.C. § 1903(9). The nuanced facts here make this case distinguishable because paternity was acknowledged and established. The father decided to give up his rights to the mother– but he did not contemplate relinquishing all his rights to allow adoption. Compare Matter of Adoption of a Child of Indian Heritage, 543 A.2d 925, 937 (N.J.,1988) (Father took none of the steps to establish paternity, and court found his actions untimely under ICWA). The legal sufficiency of relinquishing parental rights via text message is a topic for another post but, in the interest of brevity, I assume that it isn’t enough. Therefore, under both inquiries the father’s parental rights should be affirmed by the Supreme Court.

Either way, Baby Veronica is luckier than most children because she has two families that love and want her. A formal decision is expected in June.

How do you think SCOTUS should rule in the Baby Veronica case? Tell us in the comments.

A computer has 2 competing purposes: a mind organizer and a mind eraser. The tool we use to refine our thoughts in precision crafted legalese is married to the ultimate implement of distraction – the internet. There are few things as mindless in life as surfing the internet. It’s a semi-passive act. While we do the clicking, the choices are fairly narrow with highlighted keywords, pictures, or video serving as our options. It’s a dissociative experience where most people report “losing track of time” along the way.

I’ve worked in treatment with lawyers who have frittered away hours following the stock market, reading up on gossip, watching videos, or chatting on Facebook as opposed to doing their work. No one’s talking about how much fun it is.

There are no perfect solutions to this inconvenient pairing. Getting your work done requires being able to write briefs on Microsoft Word or to use Outlook to check your schedule and email. At the same time, the internet has become how we learn about things, buy plane tickets, pay our bills, make plans with friends, get directions, etc.

4 Tips to Avoid Procrastination

• Use an egg timer! This way you are being held accountable for the time spent on online distractions.
• Make a list of the things you need to research online and only go to those sites.
• Wait until you get home before you forage in the world of internet mindlessness.
• Print out web pages you want to read, rather than spend more time than necessary behind a computer.

It’s natural for all of us to need breaks from hard work. The trick with procrastination is to feel rejuvenated by the time we spend away from our work, as opposed to feeling avoidant of our responsibilities. Try to recognize if taking a walk around the block, meeting a friend for lunch, or taking a few minutes out to meditate in a local park will serve you better then the latest updates on the Huffington Post or playing Solitaire. 

When it’s time to hang up your — uh, well, whatever it is lawyers hang up upon retiring — you won’t want to have missed out on any of the opportunities our profession offers. Regardless of what type of practice you craft for yourself, there are a few fundamental lawyerly skills worth exercising, even if it’s just once. Below are 5 career accomplishments every lawyer should consider putting on his or her bucket list. Although new lawyers may have more time and flexibility to achieve these goals, even we older practitioners can weave these into our careers with a little resourcefulness.

1. Try a case

Remember that epic movie scene of the lawyer staring at court opinions on a computer screen? Or the hit TV series about the daily adventures of the world’s greatest patent attorney? Of course not. When non-lawyers think of lawyers they think of one thing: trials. Never mind that in reality only a small percentage of legal work involves going to trial, and even litigators settle the vast majority of their cases long before they’re in sight of the courthouse.

Besides being perhaps the most fundamental role of our profession in general, trying a case can be (and I use the term loosely) fun. Not many real-life adult jobs involve an actual head-to-head competition with a winner declared at the end. Summoning all your powers of organization and persuasion to fight for your client’s cause can be fulfilling, even if it’s not something you would want to do regularly.

Although taking on a trial alone isn’t realistic for non-litigators, you can always volunteer to second-seat a colleague, perhaps in a bench trial or at the district or municipal court level. Whether you end up experiencing the thrill of victory or the agony of defeat, you’ll definitely feel like a lawyer.

2. Appeal

OK, so you took the advice above and lost. Well, that gives you the perfect opportunity to try bucket list item number two. In 22 years of practice I’ve never done an appeal, so this one is on my own list. Having your name as counsel on an appellate case can literally put you in the books, making your work immortal. I’m sure plenty of lawyers in your community who are handling appeals pro bono projects, or simply overworked, would be glad to have your help.

3. Switch up

If you do criminal work only, get involved in a civil case — or vice versa. I’ve been a civil litigator my whole career, and the closest I’ve come to a criminal trial was being called for jury duty and then dismissed during voir dire (lawyers don’t usually like other lawyers being on the jury). I realize that the opportunities for this kind of switch-hitting are limited, especially if you’re already engrained in your career. But if you have some flexibility, consider things like serving as a part-time prosecutor or public defender for a municipal or tribal court (if you otherwise practice on the civil side) or get involved in a pro bono civil case (if you’re usually employed as a prosecutor or criminal defender – assuming this doesn’t violate the terms of your employment, of course).

4. Serve as a judge or neutral

I’m not talking about becoming a permanent judge or full-time ADR neutral, which is a whole new career. I’m talking about things like serving as a judge or commissioner pro tem, or serving as an arbitrator in the Mandatory Arbitration system, or as a mediator for a pro bono or “low bono” program. I’ve done ADR for the past eight years, and some of the most fulfilling cases I’ve handled were pro bono mediations involving lawyer-client disputes. Go figure. Doing ADR teaches you things about how the “other side” thinks that you don’t get as an advocate. It also teaches you a great deal about human nature.

5. Teach

All we really have to work with in this profession is knowledge, so passing along knowledge is fundamental. There are plenty of opportunities for lawyers to teach: chair a CLE; teach a class at a university, college or law school; do a “People’s Law School” or similar project to help educate the public about law; or coach a high school, college or law school mock trial or moot court team.

Your career will fly by faster than you can imagine, so get all the lawyerly thrills out of it that you can.

What’s on your lawyerly bucket list? Share your bucket list in the comments!

It’s well known to health lawyers — or should be — that HIPAA does not include or create a private cause of action for breach of its requirements. This wasn’t changed with HITECH and the recently issued HITECH Megarule.

It appears, however, that state laws allow individuals to make an end-run around this barrier. The U.S. Supreme Court recently denied certiorari in a West Virginia Supreme Court case which held that “common-law tort claims based upon the wrongful disclosure of medical or personal health information are not preempted by” HIPAA. St. Mary’s Medical Center v. R. K., 735 S.E.2d 715, 723 (2012) cert. den. __ U.S. __ (April 1, 2013). The West Virginia Supreme Court had reversed a state appellate court ruling fact that the state common law claims were preempted because they would provide “remedies under state law that are not permitted by… and are rejected by HIPAA.” Id. at 719.

The West Virginia court cited and acknowledged caselaw holding that HIPAA does not create a private cause of action, but distinguished that line of cases from others holding that HIPAA does not preempt state law actions for disclosure of health or medical information, and cases holding that a HIPAA violation could be the basis for a claim of negligence per se, or that HIPAA sets the standard of care for other types of tort. Id. at 719, 721–24. This case raises an interesting question: does Washington law allow for such a claim?

Negligence Cause of Action for Breach of HIPAA in Washington

Washington’s principal health information protection law, the Health Care Information Act (HCIA), allows an individual to recover “actual damages” only, against a healthcare provider which fails to comply with the Act. RCW 70.02.050. Washington law also allows a patient to pursue a claim against a physician for breach of physician-patient confidentiality under RCW 7.70.030. See Berger v. Sonneland, 26 P.3d 257 (2001). HIPAA must at least be considered as setting a “floor” standard of care for both types of claim, since they would otherwise be preempted.

The St. Mary’s analysis suggests, however, that negligence claims may also be available for breach of HIPAA. Washington law does not make a regulatory violation negligence per se, but RCW 5.40.050 provides that a “breach of duty imposed by statute… or administrative rule… may be considered by the trier of fact as evidence of negligence[.]” In determining whether a statute or regulation establishes a standard of care for such purposes, the courts consider whether regulation protects the class of persons which includes the plaintiff, and the interest which was invaded, against the hazard which occurred and the harm caused by that hazard. See Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992).

There is no published Washington case applying HIPAA as the standard of care for a disclosure of information, and I am not aware of any unpublished opinion on the issue. However, a casual analysis of the issue suggests the following:

• HIPAA is clearly intended to protect the interests of all individuals whose protected health information is in the possession of, used, or disclosed by a healthcare provider or health plan (covered entities), as well as any entity acting on their behalf (business associates).
• The protected interest under the Privacy Rule is against any use or disclosure which doesn’t meet the criteria of the Privacy Rule. There is also a protected interest in the protection of electronic information under the Security Rule, and in notification of individuals of breaches under the Breach Notification Rule.

This analysis suggests that in the event of an event constituting a breach of one of these duties — a “hazard” — the only remaining question would be whether the plaintiff had been harmed.

The short answer is that Washington law does allow a cause of action for failure to comply with HIPAA, if that failure causes harm. This cause of action applies to a much broader class of potential defendants than the HCIA and Berger, including not only physicians and other healthcare providers but insurers, benefit plans, administrative and IT services companies, consultants, even law firms acting as business associates. It also includes duties of much broader scope, including not only improper disclosures of information but also its improper use, failure to adequately protect it, and failure to notify individuals if it is breached.

Maria (The Sound of Music) was not the problem.

The problem was that Maria did not fit within the narrow confines of the box she was put in.

This is true of international clients. Typically, they have obtained some basic estate planning and tax advice at some stage of their lives. They may also have a very general idea of family law in their own state/country. However, what do they know about the laws in the country to which they relocate? Not much.

Global employees may obtain some limited help, but often a global corporate transplant will only obtain cultural information about the new home. Human Resources  may obtain immigration assistance on behalf of the employee. There is no one venue to go to, to find out what questions one should ask, let alone find answers. This leaves expatriates exposed to unacceptable risks and leaves them with a sense of being lost in the new environment.

It is in everyone’s best interests for the foreign employee and the employee’s family to feel welcome and empowered by information. The benefit to the employee is clear. There is also benefit to the corporation; a happy employee and family may result in greater productivity by the employee and less failed expensive efforts to relocate valuable personnel. Society benefits too. Each country expects certain minimum required behaviors from those who enter its boundaries. These range from taxing requirements to the avoidance of unsocial or at worst criminal behaviors.

Better access to information about social and legal expectations in Norway may have prevented the following incident. In Norway in 2012 an Indian couple’s children were placed in foster care due to, what the couple argue, were cultural differences. The children slept with the parents and were fed by hand. This has become an international incident, now involving negotiations between the Indian foreign minister and Norwegian officials. The father, Anurup Bhattacharya, has been working as a geo-physicist for Halliburton. The couple’s visas to stay in Norway are running out. (Bhattacharya case timeline).

Questions International Persons Should Ask

Not all issues faced by transplants will have such extreme repercussions as the Bhattacharya case. However, they can be serious. Some questions international persons should be asking are: Are they subject to U.S. taxation? What about foreign taxing authorities; Do they have power to tax? Is tax deferred income, which is earned in another country, considered to be deferred as far as the U.S. IRS is concerned? What are the reporting requirements in the U.S. for foreign accounts? If their marriages break down in another country will they be subject to foreign divorce laws? If they wish to stay in the U.S. or bring relatives here, what visas should they apply for? What happens if they die in the foreign location?

This is an under-served and yet large segment of our population. They include people who travel from and to the United States.

I wish I could say that help is on the way. It will only be on the way if we, who serve the international community (which is most of us nowadays), take the time to learn enough about international laws to spot issues. If an attorney does not feel able to deal with any given international matter, he should refer it to someone who can.

I am the Chair of the KCBA International Law section and would be happy to invite speakers to our meetings. So a shout out to all you attorneys and others who have information to impart — estate planning attorneys, business attorneys, tax advisors, family lawyers, immigration attorneys, human resources, wealth management professionals and the list goes on — please join us! We look forward to hearing what you have to say.

Representing the Globe-trotting Client CLE — May 9

If you’re interested in learning the solutions to the challenges globe-trotting clients face, join Marguerite Smith and other distinguished faculty for Representing the Globe-trotting Client on May 9. 6.5 general CLE credits available. Register now for Representing the Globe-trotting Client!

It’s generally agreed that lawyers can accept credit card payments for their fees. A recent ABA article lists some of the potential pitfalls that lawyers should consider before incorporating this into their practices. First, will you be passing on the costs of the transaction to your client? If so, make sure that the charge is reasonable and agreed to in advance. RPC 1.5(b) requires that the rate or basis of expense for which the client will be responsible shall be communicated to the client, preferably in writing before or within a reasonable time after commencing the representation. Comment 1 to this rule allows a lawyer to seek reimbursement of expenses by charging a reasonable amount, agreed to in advance by the client, or by charging an amount that reasonably reflects the cost incurred by the lawyer. A recent WSBA Advisory Opinion affirms that such expenses include credit card transaction fees. However, as the WSBA Advisory Opinion points out, you should check to see whether credit card companies prohibit passing such charges on to the client. Although Visa and Mastercard have forbidden this in the past, a recent settlement may change this practice. Even if the credit card prohibits a surcharge, it cannot prohibit you from offering your clients a cash discount.

Chargebacks

Another caution is chargebacks. A chargeback is the return of funds to a consumer, forcibly initiated by the credit card issuer at the customer’s request. A chargeback could be disastrous if it is against your trust account, particularly if you have already earned and removed the funds. This means the chargeback has taken another client’s money, or has left insufficient funds to cover other outstanding checks. You are required to notify the Bar if you receive notice of insufficient funds in your trust account.

If you take credit card payments directly into your trust account, make sure that the company cannot take chargebacks out of the trust account. An Oregon Ethics Opinion suggests that an alternative is to set up a direct transfer from your business account to your trust account to cover the chargeback. But problems could ensue if you don’t have enough money in your business account to cover the chargeback. A lawyer should exercise caution here.

Deposits and Earned Fees

Finally, if you are going to accept credit card payments for both advance fee deposits and earned fees, you are required to have two merchant accounts— one tied to the trust account and one tied to the business account. Earned fees and flat fees that meet the requirements of RPC 1.5(f)(2) and are paid by credit card need to be deposited into the business account. Advanced fees paid by credit card need to be deposited into the trust account. RPC 1.15A. Lawyers cannot deposit credit card receipts into their trust account then transfer the earned fees to their business account, nor can they deposit advanced fees into the business account and then transfer them into the trust account. RPC 1.15A, Comment 8.