Law Offices of John P. Martin

The worst thing about having blog-based web site is also the best thing about having a blog-based web site. On the one hand, the blog format is easy to maintain and keep updated with fresh content. On the other hand, a blog is unmerciless. It continuely reminds the blog owner and all visitors when the last post was made. With no exception made for busy lawyers.

As such, one is forced to post, otherwise it looks like you have died, or gone out of business. Thankfully, neither has happened to me, I have been busy, which is a good thing.

This week I have been vacationing in Oregon with family. Here are two photos from Beverly Beach. We camped there for two nights.

In the first one I was trying to capture the morning mist. It was more beautiful the day before, but I forgot to bring my camera.

Here is a bug we saw on the same morning.

A while back, I posted a note discussing the Washington State Residential Landlord Tenant Act’s (RLTA) requirement that a landlord has 14 days to return a tenant’s deposit, or provide a written statement as to why any deposit money was held back. A reader asked a good question. He asked, “How are the fourteen days counted?” Here is my understanding. (Disclaimer: This is general information - not legal advice. Please consult a lawyer to see how your specific case will be handled.)

The statute we are concerned with is RCW 59.18.280. So we will look to it first for answers.

The first part of the reader’s question is related to the starting point of the countdown (paraphrasing): When does the clock start running on the fourteen days? Does it start at the end of lease, or when the tenant returns the keys to the residence?

The statute says:

Within fourteen days after the termination of the rental agreement and vacation of the premises or, if the tenant abandons the premises as defined in RCW 59.18.310, within fourteen days after the landlord learns of the abandonment, the landlord shall give a full and specific statement of the basis for retaining any of the deposit together with the payment of any refund due the tenant under the terms and conditions of the rental agreement.

The statute says that the fourteen days starts adding up when the lease, or rental agreement is terminated, AND the residence is vacated. In other words, the fourteen day countdown will not start until you give up possession of the residence. Additionally, the countdown begins as soon as the landlord notices that the rental has been abandoned by the tenant. Of course, whether the landlord has noticed, or should have noticed the abandonment, depends on the circumstances.

Now that we have a good idea of when the countdown starts, there are more details to analyze. Whenever the law defines a time period it is always important to clarify how the days are counted. For example, are weekends and holidays included or excluded? Does the last day count? Does the first day count? What if the last day falls on a weekend or holiday?, etc.

Luckily for us, there are specific laws written to answer these kinds of questions. Sometimes an “act,” like the RLTA will contain a specific provision defining how time is calculated. Unfortunately, there is no such statute in Washington’s RLTA so we have to look outside the Act.

RCW 1.12.040 Computation of Time to the rescue. This statute will answer our time counting questions by providing the general rules applicable for counting time. The statute reads:

The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last, unless the last day is a holiday, Saturday, or Sunday, and then it is also excluded.

This statute clears up any uncertainty regarding counting the 14 days. The first day does not count. This means that the day you turn-in your keys and vacate the premises, does not count towards the 14 day deadline. However, weekends, and holidays are included in the count, unless the fourteenth day falls on a weekend or holiday. If the last day falls on a Saturday, Sunday, or Holiday, the final day to deliver the deposit notice will be the next, non-weekend, or non-holiday, or non-weekend day that follows the 14th day.

Generally, a landlord will meet the time requirements of RCW 59.18.280, if he or she has the deposit or notice envelope postmarked by US Mail, on the 14th day, as calculated according to RCW 1.12.040.

I hope this post sheds some light on counting to fourteen under the RLTA.

When a lawyer has committed legal malpractice in the course of representing a client in criminal matter, it is sometimes called “criminal malpractice.”

Legal malpractice like any professional malpractice, is a tort, where a victim can file a civil lawsuit to recover damages resulting from the malpractice. Just as one can sue their accountant, or doctor, when they commit malpractice, clients who suffer malpractice from their lawyers can sue to recover damages as well.

In Washington, to prevail in a “non-criminal” legal malpractice claim the victim, or plaintiff, must prove the following elements:

1. The existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client;
2. an act or omission by the attorney in breach of the duty of care;
3. damage to the client; and
4. proximate causation between the attorney’s breach of the duty and the damage incurred.

Ang v. Martin, 154 Wn.2d 477, 114 P.3d 637 (2005).

The plaintiff is required to prove the above elements by a preponderance of the evidence. (Less stringent than proving beyond a reasonable doubt.) Granted, the elements are legalese, but for the most part they mean what they say.

Unfortunately for victims of criminal malpractice, courts have added two additional elements that must be proved. To be precise, they are sub-elements of the proximate cause element in criminal malpractice cases. They are as follows:

1. Plaintiff must have obtained post-conviction relief of the underlying criminal conviction; and
2. the plaintiff must prove ACTUAL innocence of the crime that resulted in the underlying criminal court action.

Therefore, in order to avoid a dismissal of a malpractice claim, a victim of legal malpractice that occurred during a criminal proceeding, must convince a court, or appeals court, to overturn, or reject, the criminal charges/conviction against him or her. This can be difficult because often a court will recognize that malpractice occurred, but then it will determine that the malpractice was “harmless error” meaning that the jury could have convicted the defendant even if the error did not occur.

However, it is the second requirement, proving actual innocence, that is the must difficult. Even if an appeals court overturns the conviction because of legal malpractice, the law in Washington only presumes that the plaintiff/defendant has established legal innocence, and not actual innocence. This means that the plaintiff in a criminal malpractice suit must re-argue the criminal case and prove to the judge, or jury that he or she was completely innocent.

Requiring this high standard to prove criminal malpractice is wrong. Lawyers can do terrible harm to criminal defendants by committing malpractice, even though the defendant has committed the crime. An example is when a defense attorney lies to his or her client about the consequences of accepting a plea agreement. Or, the defense attorney recommends a plea agreement, when further investigation would show that the government can not prove their case. You can imagine many more examples.

Malpractice in criminal cases can cause the most harm - loss of liberty, lifelong stigma of criminal conviction, loss of right to employment in certain careers, and large fines and penalties. Such malpractice, when it occurs, will often fall upon the most vulnerable persons in our society, those who need good legal representation more than anyone.

The dissenting justices in Ang v. Martin say it best:

I dissent because the malpractice standard for criminal cases should be the same as civil. There is no reason to invite malpractice in criminal cases by heightening the plaintiff’s burden to prove postconviction relief and actual innocence. In every situation a client should rightfully expect competent legal representation. Justice Sanders

I concur in Justice Sanders’ dissent but write separately to express my indignation that this court, based upon the policy of protecting lawyers, would carve out a special protection for criminal defense attorneys whose acts of professional negligence are harmful to their clients. Under this logic, it is not enough for the injured client to prove actual harm from the attorney’s failure to meet professional standards; the injured client must also prove that her hands were always clean. Under this logic, why not give immunity to accountants for professional negligence unless the accountant’s client can prove he or she never understated income or requested an unavailable deduction, even when the accountants’ bad acts
caused actual harm to their clients or society? Surely tax dodgers should not profit from their misdeeds. Under this logic, why not give immunity to health care providers who harm their patients unless the patient can prove perfect good health but for the negligence of the provider? Surely the unhealthy should not profit from their illness. Justice Chambers.