Bar Bulletin

Bar Bulletin

What Comes Next?

March 2022 Bar Bulletin

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.”1 Although these words were said in the context of criminal proceedings, they apply with equal force to civil proceedings, and I sincerely hope that in the not-too-distant future civil Gideon will become a reality. 

Although we do not have civil Gideon, courts — both federal and state — have recognized the right to counsel in certain civil proceedings and last April Washington became the first state in the nation to create right to counsel for indigent defendants in eviction cases.2 In addition to providing for legal representation for indigent defendants in eviction cases, Senate Bill 5160 includes other protections for tenants; for example, if a tenant has unpaid rent accrued between March 1, 2020, and April 30, 2022, the landlord must offer tenants a reasonable schedule for repayment of the unpaid rent that does not exceed monthly payments equal to one-third of the monthly rental charges owed.3 Similarly, for rent accrued during that period the landlord cannot report nonpayment of rent or any associated eviction to a tenant’s future landlord and prospective landlords cannot take negative actions against prospective tenants based on nonpayment of rent during that period.

Senate Bill 5160 is one in a long series of bills at the state legislature that reflect the ceaseless efforts of the Housing Justice Project on behalf of tenants not just in King County, but also throughout the state. Previous efforts led to other changes in the Residential Landlord Tenant Act (RTLA) including providing for a uniform 14-day notice to pay rent or vacate, modifying the tenancy reinstatement process, and establishing how and when judges can exercise judicial discretion to stay a writ of restitution in cases involving nonpayment of rent. The HJP’s involvement from beginning to end in the drafting and passage of these laws, and its work in enforcing and educating the lay public and the bench about them, has been invaluable in addressing inequity and the housing crisis that is currently plaguing our State. 

Not only has HJP played an important role in legislative efforts to address the housing crisis, but it also played — and continues to play — a critical role in judicial efforts to address the crisis, which has only been exacerbated by the COVID-19 pandemic. On September 9, 2020, the Washington Supreme Court authorized establishment of Eviction Resolution Programs (“ERP”) in superior courts. King County is one of the six counties that are participating in the ERP pilot program.4 Prior to the expiration of any state or local eviction moratoria, the pilot ERP program encourages landlords to notify their tenants of the opportunity to work with the Dispute Resolution Center of King County or HJP to resolve rent nonpayment issues. After the moratoria expire, the pilot ERP program requires landlords to comply with both “Tier 1 and Tier 2 notification and engagement processes, prior to serving or filing a summons and complaint for eviction for non-payment of rent.”5 As the order notes, “[t]he Administrative Office of Courts (“AOC”) has engaged the DRC and the HJP to work with the King County Superior Court, and those agencies are integral components of this Court’s pilot ERP.”6

In this past January’s President’s Page, I discussed the work that has already begun on KCBA’s strategic plan and discussed two “crown jewels in KCBA’s pro bono programs” including the HJP.7 In that article, I provided a short summary of the HJP’s growth over the last 24 years from a program staffed by the Pro Bono Services manager that relied almost entirely on the efforts of volunteers — both attorney and non-attorney — to the significantly larger and more complex organization it has evolved into over the years. I am revisiting HJP in this month’s column because of an issue that KCBA leadership has brought to the Board that may have far-reaching consequences for all aspects of KCBA. 

As is evident from the right to legal representation under SB 5160, and the HJP’s central role in the pilot ERP program in King County, much of the work that the HJP is now doing cannot be performed solely by volunteer attorneys and non-attorneys, and KCBA leadership (including the leadership of the HJP) have decided that both KCBA and HJP may be best served by exploring whether HJP should become its own separate organization. Needless to say, this exploration must be undertaken with great care and attention to detail — not just to ensure that HJP and KCBA can meet all of their fiduciary duties to our clients but also to ensure that volunteers, staff, and KCBA members are kept aware of the changes being contemplated and if or how they will affect both KCBA and HJP as we move forward. 

This is not the first time that KCBA has gone through such a process. In 1937, KCBA established the Legal Aid Bureau.8 In 1958, the Legal Aid Bureau was incorporated as a separate entity, and all collected funds were turned over to that organization. I am sure that separation was bittersweet for many KCBA members back then, just like this potential separation of HJP will be bittersweet for many of us. 

Any spinoff of HJP will have ripple effects throughout KCBA. It will mean a significant reduction in the size of KCBA staff, with the concomitant reduction in expenses. At the same time, it will also mean a reduction in revenues that are tied to grants and funding that are directed to HJP’s activities. On a more individual level, it will also mean that many KCBA staff members will no longer be working with friends and colleagues with whom they have worked closely for many years (and with whom they have tackled the challenges and travails of the pandemic). This analysis is going to be the most important task KCBA leadership and the Board will address over the next few months and I am excited and grateful that Theresa Wang, our Treasurer, Paul Crisalli, our Secretary, and trustee Neal Black have very generously agreed to work with Dua Abudiab, Judy Lin, Edmund Witter, and other KCBA staff to ensure that this analysis is as seamless, efficient, and nondisruptive to our clients and our volunteers as possible.

Before I went to law school, and then embarked on what has been an incredibly fulfilling and challenging career as an attorney, I was a college professor. One of the most satisfying things about being a teacher — and many of you have experienced this with your children or those you have mentored — is the moment when one of your students shows that she or he “gets it” and is ready to spread their wings and fly. Over the last 24 years, KCBA has nurtured HJP and allowed it to flourish and grow and that is something in which KCBA and its members should take great pride. HJP and KCBA have benefited from the leadership of folks like Merf Ehman and Rory O’Sullivan — who preceded Edmund Witter as the managing attorneys for HJP — and the current HJP managers, attorneys, and staff. Should the decision be made for HJP to go off on its own, their contributions to the KCBA community will not be forgotten. And although this is a poignant moment for me given my long association with the HJP, unlike Mad King George, I have no doubt that if HJP spreads its wings and heads off for new horizons, it would not come crawling back to KCBA.9 

Kaustuv M. Das is the President of the King County Bar Association and an attorney with Intellectual Ventures. He can be reached at KCBABoardPresident@kcba.org or at (425) 247-2431. 

1 Gideon v. Wainwright, 372 U.S. 335, 345 (1963) (quoting Powell v. Alabama, 287 U.S. 45, 68 (1932)). 

2 https://nwsidebar.wsba.org/2021/05/11/what-
renters-should-know-about-tenant-right-to-
counsel-and-eviction-law-in-washington/ (last visited February 8, 2022).

3 See generally https://lawfilesext.leg.wa.gov/
biennium/2021-22/Pdf/Bill%20Reports/Senate/
5160-S2.E%20SBR%20FBR%2021.pdf?q=2021
0510094529 for a summary of SB5160 (last visited February 9, 2022).

4 King County Superior Court Emergency Order 21 (dated November 20, 2020) available at https://kingcounty.gov/~/media/courts/superior-court/docs/COVID-19/FILED-Emergency-Order21-
KCSC-200120505.ashx?la=en (last visited February 9, 2022). 

5 Id. ¶ 15.

6 Id. ¶ 16.

7 https://www.kcba.org/For-Lawyers/Bar-
Bulletin/PostId/1614/you-tell-me-that-its-evolution (last visited February 8, 2022). 

8 http://www.kcba.org/About-KCBA/Mission-
History (last visited February 9, 2022). I have not been able to find a lot of information about the Legal Aid Bureau or its spin off in my “bible” of the KCBA—Marc Lampson’s brilliant From Profanity Hill: King County Bar Association’s History (Documentary Book Publishers Corp. 1993). If you have more insight into those events, I would love to hear from you.

9 https://genius.com/Jonathan-groff-what-comes-next-lyrics (last visited February 9, 2022).

King County Bar
Association

1200 5th Ave, Suite 700
Seattle, WA 98101

Main (206) 267-7100

 Contact Us