A Short Primer for Potential Small-Town Lawyers

BY ALLISON R. FOREMAN

It is no secret that many rural communities in Washington do not have enough lawyers. Only three lawyers are licensed in Garfield County.¹ Seven attorneys call Columbia County home.² The numbers jump to double digits in Ferry County (11), Lincoln County (13), and Adams County (15), but per capita figures there remain well below those found in Washington’s urban counties.³ In Adams County, a beautiful stretch of land between Yakima and Spokane blanketed with dryland wheat, irrigated apple orchards, and potato fields, you might have to traverse more than 100 miles to find an attorney.⁴ In King County, a like-sized county brimming with 17,515 lawyers, you would have 828 practitioners to choose from in the same geographic area.⁵

More attorneys should practice in rural areas. Not only is the need great, but so too is the opportunity to build a successful and fulfilling legal practice. Being a big fish—or the only fish—in a small pond allows an attorney to profoundly influence how the community sees the legal system and to play a pivotal role in improving the residents’ access to justice. An attorney practicing in a major metropolitan area might have to work decades to have this kind of impact. Country lawyers also enjoy a degree of independence unfamiliar to those working at big urban law firms. They set their own hours, choose their own clients, hire their own staff, build their own offices, and enjoy a diversity of practice unique to small towns.

Thinking about swapping town for country yet? Before taking the plunge, take a look at the following 10 statutes practitioners find most relevant to rural practice. Some are general statutes; after all, the only lawyer in town needs to know a little bit of everything. But others are uniquely relevant to practicing law in rural areas where farms, ranches, and agriculture—not big tech companies—drive the economy. A good working knowledge of these statutes will go a long way toward preparing a city slicker attorney for life in the countryside.

Five General Statutes

1. Title 10 RCW: Criminal Procedure

A criminal defendant’s right to counsel, enshrined in the Sixth Amendment to the United States Constitution and Section 22 of Article I of the Washington State Constitution,⁶ is one of the most sacred rights in our legal system. Without it, an accused person stands little chance of successful defense in court, even if they are innocent. Yet criminal defense attorneys are in short supply in many rural parts of Washington. According to the member directory of the Washington Association of Criminal Defense Lawyers, only one serves Ferry County. Garfield County likewise has a single criminal defense attorney. That number jumps to two in Skamania County, but even in more populous areas, the rural defendant has limited options for representation. If you feel passionate about improving access to justice in the distant corners of our state, you might want to brush up on Title 10 RCW, the rules governing criminal procedure. A small-town lawyer well-versed in criminal procedure can have a significant impact here, creating a meaningful right to counsel for the local community.

2. Chapter 11.125 RCW: Uniform Power of Attorney Act

Demographically, America is aging. The number of individuals over the age of 65 is projected to nearly double from 52 million in 2018 to 95 million by 2060, or nearly one in four Americans.⁷ Helping this demographic plan for cognitive decline and infirmity is an important job for estate planners nationwide, but it is especially important in rural areas, where the elderly often live far from immediate relatives and informal caregivers. An attorney seeking to build a rural practice should be familiar with Chapter 11.125 RCW, the Uniform Power of Attorney Act, so that they can draft proactive documents for these clients before they lose the capacity to execute them. A basic understanding of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, Chapter 11.130 RCW, is essential as well, coming in handy in those cases where the client was unable to sign a durable power of attorney prior to incapacity.

3. Chapter 26.09 RCW: Dissolution Proceedings—Legal Separation

Few students enter law school planning to be divorce attorneys, but given the reality that almost 50 percent of marriages end in divorce or separation,⁸ this area of law will touch the practice of most attorneys, including rural attorneys. Knowledge of the basic steps of separation and divorce is essential: the mandatory use of approved forms,⁹ factors affecting the disposition of property and liabilities,¹⁰ considerations relevant to spousal maintenance,¹¹ the parenting plan and child custody,¹² child support,¹³ and the standards for relocating a child.¹⁴ The last one is particularly relevant in rural areas, where relocation within the same school district—usually an entitlement—may entail moving the child a significant distance across a large rural district, much farther away from one custodial parent. Even if family law is not your intended specialty, this is a statute worth knowing.

4. Chapter 70A.305: Hazardous Waste Cleanup—Model Toxics Control Act

From the late 1880s to just before 1950, lead arsenate pesticides were commonly used in apple and pear orchards to combat coddling moth, the larvae of which bore into fruit and feed toward the core, rendering the fruit unsuitable for eating.¹⁵ As old orchards in Washington’s rural areas are converted to housing and other civilian uses, the threat of arsenic and lead in the underlying soil may require mitigation by the landowner. A good working knowledge of the Model Toxic Control Act, chapter 70A.305 RCW, will serve an attorney well when assisting clients dealing with this uniquely rural issue. This includes familiarity with reporting requirements (hint: within 90 days of discovery),¹⁶ requirements for cleanup actions,¹⁷ and how to get a “No Further Action” determination to give the client peace of mind going forward. This issue will become even more important as housing shortages in rural Washington lead to further development and more conversions of orchards into residential neighborhoods.

5. Chapter 11.96A RCW: Trust and Estate Dispute Resolution Act

No attorney practicing in a small town can manage without the Trust and Estate Dispute Resolution Act (TEDRA), Chapter 11.96A RCW. This piece of legislation is a masterclass in flexibility, giving the rural judge “full and ample power and authority” to settle “all matters concerning the estates of incapacitated, missing, and deceased persons, including matters involving nonprobate assets and powers of attorney” and “all trusts and trust matters” in a single morning at the courthouse.¹⁸ You can’t ask for much more than that. TEDRA gives rural practitioners the opportunity to solve trust and estate disputes quickly, efficiently, and economically, a godsend to clients whose assets might include working farm operations or agricultural resources that need immediate attention but don’t have much liquidity for attorney fees. The timely application of TEDRA to rural trusts and estates can make the difference between keeping a farm in the family and losing a treasured legacy property after a costly legal battle. It is a statute worth understanding if you plan to practice in a small town.

Five Specific Statutes

1. 11 U.S.C. Chapter 12: Adjustment of Debts of a Family Farmer or Fisherman With Regular Annual Income

Bankruptcy itself is a specialized area of the law, but bankruptcy for farmers, frequently if not exclusively residing in rural areas of Washington, is one area of the bankruptcy code that a general country attorney might wish to learn. Bankruptcy is governed by federal law—no RCWs here. Chapter 12 allows individual agricultural debtors to retain their assets and develop a plan to repay debtors, provided they are engaged in farming operations, their debts are less than $10 million, more than 50 percent of their debts are from farming, and more than 50 percent of their income comes from farming for the taxable year preceding filing or in each of the second and third years preceding filing.¹⁹ Farming corporations, cooperatives, and partnerships have different eligibility criteria designed to enable family operations to continue farming while paying off debts.²⁰ Familiarity with Chapter 12 is a powerful tool for the rural practitioner advising farming clients who find themselves facing hard times.

2. RCW 83.100.046: Deduction—Property Used for Farming—Requirements, Conditions

With the Washington estate tax exemption stuck at $2.193 million, many farms and small businesses in the rural parts of our state find themselves crossing the threshold of the Washington taxable estate with an outwardly modest operation.²¹ Enter RCW 83.100.046. This statute allows a deduction for the value of all property used as a farm for farming purposes that is inherited by a family member if such property comprises more than 50 percent of the adjusted gross estate.²² The bar drops to 25 percent under a limited set of circumstances.²³ There are a few other requirements, of course, but the key takeaway for the country lawyer is a basic awareness of the threshold: be aware of the value of the client’s farm assets compared to their non-agricultural assets. Is it close to 25 percent or 50 percent? Is the estate otherwise set up for a qualified transfer? If the estate is close to one of these thresholds and the client otherwise qualifies for the deduction, you may be able to use this statute to save a farming client a big estate tax bill.

3. RCW 90.14.160: Relinquishment of Right for Abandonment or Failure to Beneficially Use Without Sufficient Cause

Water is a major issue in rural Washington, especially in our agricultural areas. Of course, both surface and groundwater belong to the public and cannot truly be owned by individuals.²⁴ But the Department of Ecology, which manages the state’s water resources, authorizes individuals to use a specified amount of public water for a designated purpose through an intricate water rights system. A detailed knowledge of water rights is best left to water law specialists, but any lawyer hanging out their shingle in a small town should know the basics. The main rule to remember is “use it or lose it”: a water right is deemed to have been relinquished if the owner voluntarily fails, without sufficient cause, to beneficially use all or any part of the right for any period of five successive years.²⁵ This is true even if the owner subsequently starts using the water right again. In order to avoid the irrevocable loss of a water right, the lawyer advising clients with idle rights might recommend planting a cover crop of alfalfa or another green crop until an alternate plan for the water is in place, such as a direct transfer of the water right or water banking.²⁶ Be wary of how a client’s property looks from the air: Aerial photos showing brown land for five consecutive years are sometimes deemed conclusive evidence of lack of beneficial use. Attorneys practicing in rural areas should keep this statute in mind and advise on water rights accordingly.

4. Chapter 20.01 RCW: Agricultural Products—Commission Merchants, Dealers, Brokers, Buyers, Agents

Many agricultural products produced in Washington’s rural areas are sold under the Commission Merchants Act, Chapter 20.01 RCW, which regulates individuals and businesses that receive agricultural products on consignment for the purpose of resale, or that sell such products for commission. The commissions charged by a commission merchant must be posted “in a conspicuous place” on the merchant’s premises and distributed to all consignors; merchants cannot vary those commissions during the license period without the consignor’s written consent.²⁷ In practice, however, extra charges and fees often are added to the consignor’s bill without explanation. The consignor has a short window in which to file a claim for full payment if they believe they have been cheated: recovery drops by 5 percent after 30 days, and 10 percent after 180 days.²⁸ If you plan to open a business practice in Washington’s countryside, you may wish to become familiar with these deadlines, as well as the underlying statute, so you can assist farming clients whose livelihoods depend on proper commission payment under the Act.

5. RCW 7.28.080: Color of Title to Vacant and Unoccupied Land

The adverse possession statute may call to mind little more than first-year property law for most practitioners, but in rural Washington, the occupation and adverse possession of vacant land is a very real part of general practice. Compared to cities and suburbs, the countryside simply has a lot more vacant land that no one appears to be using. A strong memory for the common law rule of adverse possession, codified in RCW 7.28.080, and a good feel for our quiet title statute generally, Chapter 7.28 RCW, are helpful tools in the toolkit of a small-town attorney. The main number to keep in mind is seven—the number of successive years during which the client must pay taxes on vacant and unoccupied land in order to claim title.²⁹ If the record titleholder pays those taxes for any one of those seven years, the adverse possession claim fails.³⁰ If not, a quiet title action under Chapter 7.28 RCW should suffice to vest title to the vacant land in the adverse possessor. Given the sheer extent of vacant and unoccupied land in the rural parts of our state, the country lawyer needs a degree of acquaintance with this statute to effectively advise clients in title disputes over vacant lands.

Bonus Statute

Chapter 84.34 RCW: Open Space, Agricultural, Timberlands—Current Use—Conservation Futures

Just when you thought you were done, a bonus statute! Chapter 84.34 RCW governs the application of current use classification to open-space land, farm and agricultural land, and timberlands.³¹ Much of this land is found in the rural expanses of Washington and an understanding of how to apply for the classification, withdraw from it, change the use, and respond to reclassification is important when advising landowners. The stakes are high: current use classification offers a generous tax break to property owners by valuing their land at its current use rather than its highest and best use for property tax purposes. If the classification is lost, the landowner must pay back taxes, interest, and penalties for the seven years preceding the loss of classification.³² This is a gargantuan liability, and a small-town lawyer should be prepared to advise landowning clients about both continuing the classification and planning for the cost of losing it. If you have your eyes set on a rural practice, awareness of the current use statute is a must.

Conclusion

The number of statutes regularly used by the average lawyer in rural Washington is too plentiful to enumerate in a single article. A different author surely could have chosen other statutes to emphasize, but a close study of those discussed above should provide a broad foundation of practical statutory knowledge for an attorney setting up shop in a small town. Certainly, many rural lawyers choose to specialize in one or two areas of the law, leaving them little or no use for statutes not related to those areas. Criminal procedure, for instance, bears little relevance to the probate and trust practice of a small-town estate planner. However, you never know which clients will walk through your door on a given day, especially in a small town, which makes a general knowledge of the laws governing the legal issues that typically arise in a rural community, like those included in this article, useful.

I therefore hope that the aspiring rural attorney finds this article entertaining and instructive in forming their new practice. And I encourage such hopefuls to contact me with questions about small town practice that may arise as they contemplate leaving the concrete jungle for greener pastures in rural Washington. Washington’s rural communities need your legal skills, and clients in the countryside need the access to justice that your representation can provide. We hope you will join us.

About the author

Allison Foreman is a partner at Foreman, Hotchkiss, Bauscher & Zimmerman, PLLC in Wenatchee, where she practices in the areas of probate, trusts, estate planning, civil and estate litigation, and business advising, with a focus on tax and agricultural issues. She is a graduate of Harvard College (B.A., 2006), Harvard Law School (J.D., 2009), and the University of Washington School of Law (LLM in Tax, 2014). She is president of the Chelan Douglas Bar Association, a member of several committees and sections of the Washington State Bar Association, and a regular volunteer with the Chelan Douglas County Volunteer Attorney Services. She can be reached at:

allison@fhbzlaw.com

NOTES

1. WSBA Member Licensing Counts, May 3, 2021.

2. Id.

3. Id.

4. Id.

5. Id.

6. U.S. Const. amend. VI; Wash. Const. art. I, § 22.

7. U.S. Census Bureau, Population Projections.

8. Center for Disease Control & National Center for Health Statistics, National Vital Statistics System.

9. RCW 26.09.006.

10. RCW 26.09.080.

11. RCW 26.09.090.

12. RCW 26.09.181-.285.

13. RCW 26.09.320-.340.

14. RCW 26.09.405-.560.

15. Washington State Dept. of Ecology.

16. RCW 70A.305.030(2)(d).

17. WAC 173-340-360.

18. RCW 11.96A.020(1), RCW 11.96A.100(8).

19. 11 U.S.C. § 101(18)(A).

20. 11 U.S.C. § 101(18)(B).

21. RCW 83.100.020(15).

22. RCW 83.100.046(1)(a), (10).

23. RCW 83.100.046(10)(f)(i)(B).

24. RCW 90.03.010.

25. RCW 90.14.160, RCW 90.14.170, RCW 90.14.180.

26. See, e.g., RCW 90.03.380, RCW 90.42.100 et seq.

27. RCW 20.010.080.

28. RCW 20.010.480.

29. RCW 7.28.080.

30. Id.

31. RCW 84.34.020(1), (2), (3).

32. RCW 84.34.108(4).