On Wednesday, Mr. Wilbur Lee was introduced to Kelso LeTip as R. Thomas Lee, PLLC’s newest associate.

Wilbur is the furriest addition to the Longview/Kelso legal community!

To help boost several colleagues’ online profiles, I recently surrendered to another aspect of digital marketing and “claimed” my Avvo account:

<a href="http://<a rel="me" target="_blank" href="https://www.avvo.com/attorneys/r-lee-4968976.html"><img alt="Avvo – Rate your Lawyer. Get Free Legal Advice." id="avvo_badge" src="//images.avvo.com/avvo/cms/images/amos_assets/microbadge.png" />http://<a rel=”me” target=”_blank” href=”https://www.avvo.com/attorneys/r-lee-4968976.html”><img alt=”Avvo – Rate your Lawyer. Get Free Legal Advice.” id=”avvo_badge” src=”//images.avvo.com/avvo/cms/images/amos_assets/microbadge.png” /></a>

Awkward – the link is unnecessarily duplicated. I cannot seem to remove it.

Fortunately, my practice does not depend on digital leads: rather, my practice depends on word-of-mouth referrals. However, I constructed an Avvo account to help endorse my colleagues whose practices depend far more on online reviews. An Avvo account also helps reinforce my digital presence as a “legit” attorney.

I also claimed my Avvo profile because I would rather not have a disgruntled peer beat me to the punch.

On another note, I am pleased to join Cowlitz-Wahkiakum Legal Aid’s “Short Term Staff Attorney Program” as a leading advocate for landlord-tenant work.

Yes, I generally play ball for the landlords – however, I can also go to bat for the underdogs.

This month, I am pleased to be in featured in NWSidebar regarding the future of evictions in Washington State.

https://www.linkedin.com/feed/update/urn:li:activity:6689724997570834432/

On a lighter note, my wife Joanna and I are thrilled to have our wedding featured in this month’s Columbia River Reader.

At some point in our lives, most of us have the misfortune of being really sick. During such unfortunate times we sometimes recall an outstanding medical professional who helped get us back to health. While undoubtedly grateful for their service, most people would have preferred not to have been seriously ill in the first place. Preventative medicine is vastly preferred to a serious bout of illness.

This analogy holds true when it comes to a lawyer’s role in providing “advice and counsel.” Advice and counsel is the legal realm’s equivalent preventative medicine.

This is a hard truth to convey to clients, but a cruel truth nonetheless: litigation itself inherently limits the outcomes available.

Much like preventative medicine, advice and counsel is a cost-effective preventative measure that often reduces the emotional and financial drain of litigation. Like an illness that strikes without symptoms, it is a rare occurrence to be sued without any prior warning. As a general rule, people do not usually initiate lawsuits without a narrative of grievances behind their complaint.

By the time litigation occurs a good attorney will acknowledge that, as a general rule, they do not have control of the outcome. This is a hard truth to convey to clients, but a cruel truth nonetheless: litigation itself inherently limits the outcomes available. Courts are concerned about what the law says and what relief the law permits, not what you think is a just punishment for your suffering. (Criminal and family law are different beasts yet this advice holds true, albeit in different contexts).

However, preemptive advice and counsel often alleviates future suffering. A client’s options are almost invariably better when a lawsuit is not occurring. When clients come to me with a problem that is brewing, I can usually do a lot more before litigation is commenced. Just as litigation limits your options to judicial relief, the reverse holds true when a lawsuit is not pending: usually, clients have more options – more effective options – to get the outcomes they actually want.

I cannot stress enough that advice and counsel is so much cheaper compared to litigation. Just as preventative medicine is vastly preferred to illness, effective diagnosis of a legal problem helps alleviate the malaise of litigation – and its sticker shock on your wallet.

If you, the savvy legal consumer, have read this far – thank you. In thanks, I will share an uncomfortable truth for my profession: lawyers have never been more affordable – if you shop around.

Why should you underwrite a law firm’s summer associate, when the firm should “no charge” you that associate’s research time to learn about adverse possession?

Our traditional business models are hurting – in no small part due to the COVID-19 crisis. Larger and mid-sized firms, with formerly rock-solid clients, are seeing surprisingly affluent clients requesting payment plans, or not paying their bills at all.

Many “prestigious” or self-important law firms overextended themselves over the last 10 years. Why should you underwrite a law firm’s summer associate, when the firm should “no charge” you that associate’s research time to learn about adverse possession? Small business owners and regular folks with IRAs and mortgages should get the same commitment to affordable, quality legal services that large firms’ institutional clients get.

The savvy legal consumer is about to realize the enormous bargaining power they possess – if they just shop around. Whether you choose myself or a worthwhile colleague for your legal needs, I hope that you will not accept the status quo.

If you have any questions concerning this article, COVID-19, or inquires about obtaining my legal services, feel free to contact me at rtl@rtleelaw.attorney. Please remember the above-article does not constitute legal advice, nor does it create an attorney-client relationship.

Update: On July 23, 2020, Governor Inslee extended the residential eviction moratorium until October 15, 2020.

On June 2, 2020, Governor Inslee extended the residential eviction moratorium until August 1, 2020. The City of Seattle has extended its eviction moratorium until December 4, 2020.

Notwithstanding additional local protections (cue Seattle), *non-emergency evictions* are not practical until late Fall 2020, at the earliest, due to notice requirements of the unlawful detainer act. Furthermore, it is a grey area as to what arrears, if any, incurred during the period of COVID-19 could be basis of an unlawful detainer down the road. Such arrears would need to have been first offered in a payment plan, as discussed below.

On *October 15, 2020, Governor Inslee’s statewide moratorium on residential evictions will expire. 

While the proclamation remains in effect, it prohibits “landlords, property owners, and property managers … from treating any unpaid rent or other charges related to a dwelling or parcel of land occupied as a dwelling as an enforceable debt or obligation that is owing or collectable, where such non-payment was as a result of the COVID-19 outbreak and occurred on or after February 29, 2020, the date when a State of Emergency was proclaimed in all counties in Washington State.”

The emergency proclamation suspends most evictions and debt collection for arrears throughout the proclamation’s duration, from February 29, 2020 through *October 15, 2020.  A notable exception, however:  

*This prohibition does not apply to a landlord, property owner, or a property manager who demonstrates by a preponderance of the evidence to a court that the resident was offered, and refused or failed to comply with, a repayment plan that was reasonable based on the individual financial health and other circumstances of that resident.

PROCLAMATION BY THE GOVERNOR AMENDING PROCLAMATIONS 20-05 AND 20-19, 20-19.1 Evictions

There is growing debate in stakeholder circles (tenant’s rights advocates, legal aid, property management, and landlord attorneys) about the implications of payment plans when the eviction moratorium is lifted on *October 15, 2020. Keep in mind the moratorium is not equivalent to rent forgiveness: rather, until later in summer, the moratorium stays the legal consequences for nonpayment of rent.

When *October 15, 2020 arrives, the general consensus of stakeholders is that payment plans should be offered to tenants in arrears who were impacted by COVID-19 before initiating eviction proceedings. In theory this sounds reasonable; however, with regards to practically implementing payment plans in lieu of eviction, key questions remain unanswered, such as:

What does a “reasonable” payment plan look like?

What if a tenant refuses to negotiate a payment plan in good-faith and/or refuses to cooperate with a landlord?

How is a “reasonable” payment plan proven in court, if the tenant fails to comply with the payment plan?

A reasonable payment plan provides clear, specific terms identifying the amount of arrears; the time period the arrears were incurred; and when the arrears are to be repaid, at identified times through identified means. A payment plan is signed and dated by both the tenant and landlord (or the landlord’s agent, such as a property manager).

But what if a tenant is cagey, illusive, or cannot be pinned down to finalize a payment plan? My recommendation to numerous clients still stands: document, document, document.

But what if a tenant is cagey, illusive, or cannot be pinned down to finalize a payment plan? My recommendation to numerous clients still stands: document, document, document. Document your efforts to contact your tenants; document your efforts to propose payment plans; document your tenant’s cagey behavior, non-answers, or downright refusals. Consult your attorney to draft affidavits, in case you need to initiate an unlawful detainer (eviction).

Nonetheless: How is a “reasonable” payment plan proven in court, if the tenant fails to comply with the payment pan? With regards to payment plans stemming from COVID-19 arrears, the short answer is: we are unsure. 

Eventually the courts will see a rush of unlawful detainers, most out of necessity. At this juncture, landlords should brace for prolonged litigation. The days of expedited unlawful detainers are long gone. 2019 legislative reforms, gubernatorial proclamations and urban, populist sentiments put landlords in a tight spot: enforcing their longstanding property rights against politically convenient opposition. 

Do not try the DIY approach: the courts tolerate pro se landlords less and less. Consult your experienced landlord attorney to guide you.

The author is an authority in landlord-tenant law. Tom played both sides of the field, beginning as a Rule 9 with Housing Justice Project and later a landlord attorney with Cutting Law Office, PC. Tom has conducted presentations and CLEs on landlord-tenant law.

If you have any questions concerning this article, COVID-19, or inquires about obtaining my legal services, feel free to contact me at rtl@rtleelaw.attorney. Please remember the above-article does not constitute legal advice, nor does it create an attorney-client relationship.

Admittedly I did not anticipate Victoria’s Secret as the catalyst for another discussion on force majeure and COVID-19; yet again is the old adage proven apt, that truth is stranger than fiction:

As wryly observed by the New York Times, the attempt to scuttle the merger “faces unusually daunting odds, thanks to clever drafting by L Brands’ lawyers at Davis Polk & Wardwell. In the acquisition agreement, the lawyers carved out specific exceptions to those acts of God, including a pandemic. That meant that even if a pandemic struck, Sycamore would be legally obligated to complete the deal.”

What the article highlights is a well-drafted force majeure clause by Victoria’s Secret’s lawyers, specifically that Victoria’s Secret thought to include pandemics. This addresses the issue of foreseeability; whether the virus was a foreseeable risk that the parties should have appropriately allocated in negotiations.

“Corporate lawyers said references to pandemics had started creeping into merger agreements and other contracts around the time of the L Brands-Sycamore deal. By then, it was not hard to imagine that the novel coronavirus that had surfaced in China at the end of last year could cause economic upheaval. The city of Wuhan had already been shut down, and the first case of Covid-19 had been diagnosed in the United States. The virus was clearly spreading globally, with cases already reported in South Korea, the Philippines, Japan and Italy.”

While the suit is pending before the courts, it is certainly noteworthy that Sycamore “concedes that it can’t invoke the ‘material adverse event’ clause to justify terminating the contract, given the language that specifically excludes a pandemic. Nor does the lawsuit fault L Brands for closing its stores, which it did under government orders.” Instead, Sycamore argues that the Victoria’s Secret breached their contract by not following industry practices in respond to COVID-19’s impact, including a failure to pay rent and furloughing employees.

The Victoria’s Secret dispute highlights an unfolding, as-yet-unknown legal grounds vis-à-vis COVID-19: frustration of purpose. As a renowned contracts professor recently explained to me, “frustration of purpose is a doctrine that applies without any clause to that effect; it is designed, in other words, to cover situations where the parties did not specifically and expressly allocate risk. Force majeure clauses are express, and thus may not need to be nearly so limited as frustration of purpose.”

Frustration of purpose is a doctrine that applies without any clause to that effect; it is designed, in other words, to cover situations where the parties did not specifically and expressly allocate risk.

A timely piece from the Wisconsin State Bar elaborates on this. “Even if a contracting party does not have a force majeure provision that it may invoke, there are other potential legal avenues (although often requiring difficult proof) to suspend or limit performance. These related doctrines and force majeure overlap considerably. …To excuse its performance, a party first must show the principal purpose of the contract and then establish that through no fault of its own, that purpose has been substantially frustrated because of an event that the parties did not assume or foresee.”

“Again, this calls for a legal analysis that carefully evaluates the nature of the agreement and the effect of the event in question (here, COVID-19) on the contract.”

https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=93&Issue=5&ArticleID=27708

For this article’s purposes I am not diving into doctrinal differences between frustration of purpose and impossibility (although I strongly suggest the reader examine the Wisconsin Bar article above, which touches on the close relationship between impossibility and frustration of purpose).

In Chemical Bank v. Washington Public Power Supply System, the Washington State Supreme Court summarized the commercial doctrine of frustration of purpose as:

Where the assumed possibility of a desired object or effect to be attained by either party to a contract forms the basis on which both parties enter into it, and this object or effect is or surely will be frustrated, a promisor who is without fault in causing the frustration, and who is harmed thereby, is discharged from the duty of performing his promise unless a contrary intention appears.

Chemical Bank v. Washington Public Power Supply System, 102 Wn.2d 874, 691 P.2d 524, (1984) citing Restatement of Contracts § 288, at 426-27 (1932); see also 18 S. Williston, Contracts § 1954 (3d ed. 1978); 6 A. Corbin, Contracts §§ 1355, 1356 (1962).

Although we need not examine the case at issue (botched nuclear power plants, billions in bond payments for unusable power plants taxpayers would otherwise foot), guiding case law still suggests an uphill battle for businesses claiming frustration of purpose vis-à-vis COVID-19. Yes, the mediators are busy with commercial lease disputes and default payments for April; however, breach of contract is an entirely different beast – especially as dollar amounts keep rising.

Like a great of things in these uncertain times, we shall see. COVID-19 is likely to produce a body of fascinating case law.

If you have any questions concerning this article, COVID-19, or inquires about obtaining my legal services, feel free to contact me at rtl@rtleelaw.attorney. Please remember the above-article does not constitute legal advice, nor does it create an attorney-client relationship.

Sunday, May 18, 1980, was supposed to be another ordinary weekend for my mom and her parents. They were staying at the family cabin on Hayden Lake, just over the Idaho border from Spokane.

Morning was passing when, approaching from the southeast, my mother and grandparents’ espied what one family member later described as “the meanest looking thunderstorm in all of mankind.” The radio confirmed what my amateur-geologist parent already suspected: that Mt. St. Helens had erupted. 

Grabbing the dog, everyone jumped into the family’s ricky red Toyota and fled for Spokane. The little Toyota careened around tight curves and blind corners, my grandfather hellbent on making it to their Spokane house before the ash cloud hit. 

They reached Interstate 90 with light ash falling onto the highway. Before them loomed a darkness as black as the oncoming wall of night. My mother recalls being within a couple miles of the South Hill when “it appeared all life had been snuffed out.” The air became dense as ash rained down and darkness fell. For the next hour the little Toyota creaked along, its headlight beams failing to pierce the impenetrable ashen darkness. 

After what seemed an eternity they arrived at the house. The days that followed felt apocalyptic. (In a rather ironic parallel to present times, it was essential to wear masks if one went outside. The effects of silicon ash hitting the lungs were more immediate than COVID-19). 

My parents retained an abiding fascination and respect for Mt. St. Helens. The year before they moved to Longview they drove up the Toutle Valley on Hwy 504 until they reached a floodplain. There, the old highway promptly disappeared and small Forest Service trailer marked the furthest extent of the debris field of the lahar, which filled the valley of the north fork of the Toutle River after the lateral blast. Looking east up the floodplain, the dusty crater of Mt. St. Helens loomed over all. 

Fast forward a decade to my childhood, in Longview. The bottle of Mt. St. Helens’ ash my parents kept in the basement fascinated me. The lid was partially corroded from sulfuric nature of its contents. The ash had a fine, silky texture that exuded a slight sulfur odor when the bottle was shaken. 

The “mountain” was a constant presence in childhood. We first summited St. Helens as a family in 1999. So began a family tradition of annually ascending the mountain through 2005, when volcanic activity interrupted that tradition. It was during the mountain’s 2004 awakening that I experienced my fleeting 15 seconds of fame on local television. 

After a swarm of earthquake activity under the mountain the previous day, on October 2, 2004, my parents and I went to Johnston Ridge to hopefully catch a glimpse of the action. There I experienced one the greatest thrills of my nerdy teen years: witnessing the mountain erupt. It was only a minor steam eruption; however, it was still thrilling to watch a volcanic eruption in real time – in my own backyard. 

Perhaps sensing their tort liability as much as any actual danger to the public, the authorities immediately evacuated Johnston Ridge. During the subsequent evacuation, I managed to push my way forward behind a geologist speaking at a live press conference. Grinning like an idiot, with my bouffant teenage hair bobbing up and down, I managed to make an uninvited guest appearance on local television. It did not go unnoticed by classmates, parents, and exasperated teachers. 

I basked in my glorious 15 seconds of fame. In retrospect though, the deserving local celebrity should have been guy cruising down Spirit Lake Highway in an RV blasting Jimmy Buffett’s “Volcano” from a boombox. 

Mt. St. Helens is like an extended family member to us. We fought snow banks and nasty blackberries to make it to the Arch on Coldwater Peak. We traversed the Blast Zone to Loowit Falls in scorching summer heat.

Nothing was more miserable, however, than the arduous hike between Ape Canyon, the Plains of Abraham, and Windy Ridge. Subsequently named “the Bataan Death March” by the children who endured that multi-family day expedition, that infamous hike only reinforced the mountain’s constant presence throughout childhood. At least Burgerville milkshakes sort-of compensated for that character building exercise. 

The years continue; we summit every couple years’, in light of fierce competition to obtain a climbing permit. For all the loss and devastation the mountain inflicted, we are truly blessed to have it as our neighbor.  

Happy 40th eruption, Mt. St. Helens. 

COVID-19 has interrupted commerce on a scale unprecedented in modern times. A great deal of talk centers on whether the COVID-19 pandemic is an “act of God” excusing contractual performance: specifically, whether force majeure excuses a party’s performance due to COVID-19.

Applying force majeure is a grey area of law. Although many contracts contain force majeure clauses, such clauses have generally been afterthought, included as standard legal language. Force majeure has not been litigated much in our postwar economy. Attorneys are dusting off 19^th century case law to gain a better understanding of applying precedent to our novel COVID-19 pandemic.

A common definition of force majeure is “a superior or irresistible disrupting force in business and insurance law”; wherein, when business is disrupted due to a factor beyond the contracting parties’ control. Black’s Law Dictionary Online, 2^nd Ed.

Before you add force majeure to your Zoom happy hour repertoire or tell your landlord this fancy Latin phrase excuses you from paying rent, let’s examine what exactly force majeure entails.  

Force majeure is a legal theory from contracts law. Under Washington contract law, a force majeure clause “provides a complete defense to liability if one party is unable to perform its obligation under the contract because of circumstances outside its control.” A force majeure clause “provides a defense to liability when a party is required to perform, fails to do so, and that failure is caused by a strike or other event within its* scope” [*within the scope of the force majeure clause]. Hearst Communications, Inc. v. Seattle Times Co., 154 Wn.2d 493, 507, 115 P.3d 262 (2005) (emphasis added).

You cannot “declare” force majeure like you can “declare” bankruptcy (cue the Michael Scott reference); unlike bankruptcy, you cannot file for force majeure.  Many contracts, however, have a force majeure clause. Often it is a small paragraph several sentences long near to the end of the contract, by paragraphs that say “severability” and “governing law.”

It is essential to understand that force majeure cannot be used to excuse contractual performance simply because you experience economic hardship. A contract’s force majeure clause contemplates excusing performance due to an unforeseeable event that makes the contract impossible or impracticable to perform. A body of contract case law makes clear that a business downturn alone does not excuse a party’s breach of contact. An economic downturn is always foreseeable; economic hardship is a risk contracting parties should have factored in.

In contrast, COVID-19 was arguably an unforeseeable event contracting parties did not take into account. In this context, the event that makes a contract impossible or impracticable to perform is called a triggering event. Here, COVID-19 would be considered the triggering event that made a contract impossible or impracticable to perform.

Consequently, force majeure’s application depends on whether COVID-19’s unforeseeability made a contract impossible or impracticable to perform. Just because your performance became more difficult due to COVID-19 does not cut it: your performance must have become impracticable or impossible. You must show specifically how COVID-19 prevented you from fulfilling your contractual obligations.

If your business was deemed non-essential and forced to close per a gubernatorial “stay at home” order, you may have a stronger argument for exercising force majeure if that government order directly impacted and/or prevented the operation of your business.

In the neat and tidy world of legal theory, this is the point where you would review your contract’s force majeure clause, provide the other party notice that you are exercising force majeure and, if a dispute arose, everyone would trot off to court and have a judge resolve the matter.

Obviously, we do not operate in that world. Courts are barely open and prioritizing domestic and criminal matters; businesses are hemorrhaging cash; people want help – and answers. In that vein:

Review your contract’s force majeure and notice clauses. If you are going to breach your contract, then provide the appropriate notice. Courts take notice provisions very seriously. Providing proper notice may help in subsequent court proceedings. Obtaining an attorney’s advice and counsel would be prudent, especially to preserve contract rights and minimize legal fallout.

Try to mitigate damage with alternative solutions. The commercial landlord-tenant relationship is a prime example. Notwithstanding gubernatorial and municipal (temporary) moratoriums on evictions, commercial landlord-tenant law is unlikely to be fundamentally altered by COVID-19: landlords possess property rights and are still entitled to rent payments.

Communicate with your landlord. An alternative solution may be more appropriate, such as an interim payment plan, rent forgiveness, or a combination of both. Commercial tenants – especially long-term tenants – may become more of a commodity if economic conditions continue to worsen.

Create a paper trail. Document your damages since the COVID-19 economic downturn; put “handshake agreements” in writing, even if it is an email after-the-fact; communicate with insurance providers, landlords, creditors, and government agencies. While some documentation could be discoverable, the benefits of knowing your business’s financial picture outweigh the risks. Also, your CPA will thank you.

Finally, get quality legal advice. Not Creed’s.

https://www.youtube.com/watch?v=C-m3RtoguAQ

If you have any questions concerning this article, COVID-19, or inquires about obtaining my legal services concerning your contractual rights and obligations, please feel free to contact me at rtl@rtleelaw.attorney. Please remember the above-article does not constitute legal advice, nor does it create an attorney-client relationship.