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William G. Fig
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Top Ten Risks For Dual-Licensed Attorneys

June 2015

William G. Fig
503.243.1656

Published in the Oregon State Bar Construction Law Newsletter

With the advent of reciprocity between the Oregon and Washington bars, there is an increased likelihood that a practitioner, particularly one located in the Portland/Vancouver metro area, will be dual-licensed.  While being licensed in both Oregon and Washington enables counsel to serve a broader range of clients, or provide a full range of services to an existing client, it also offers traps for the unwary.  After almost a decade of dancing through the multi-state minefield, the following are my top 10 tips/traps for dual-licensed construction practitioners:

  1. Oregon has a Construction Contractor's Board ("CCB").  Washington does not.  Contractors in Washington are registered with and licensed by the Bureau of Labor and Industries ("BOLI").  Both require contractors to be licensed and to post a bond (or other securities).  In Oregon, you file a lawsuit against the contractor and a separate claim with the CCB.  The CCB processes the claim with the bond surety after the entry of judgment in the lawsuit.  In Washington, you sue the contractor and the surety in the same superior court lawsuit.  BOLI does not process the payment claim; you deal directly with the surety that posted the contractor's bond.  Obviously, both states' claim procedures have rules and processes that must be followed.

  2. In Washington, a material supplier's right to lien a residential project can be extinguished if the homeowner pays the general contractor.  No such rule exists in Oregon.

  3. In Washington, you may not be entitled to file a lien if the party you contract with does not have a valid contractor's license.  No such rule exists in Oregon.

  4. The deadlines and dates relating to construction lien claims in Oregon and Washington are completely different.  Moreover, a Washington lien cannot obtain super-priority over existing encumbrances against the improvement as some Oregon liens can.  In Oregon, the distinction between new construction and alteration/repair work is important in determining the lien's priority.

  5. Washington statutes allow a potential lien claimant to send a stop payment notice to the construction lender.  This notice requires the lender to withhold the amount claimed from a construction loan disbursement or risk being at least partially subordinated to the claimant's lien. 

  6. Oregon statutes allow owners and/or mortgagees to make information demands upon the lien claimant that have fairly short response deadlines.  The failure to timely respond to these demands will likely result in a claimant not being entitled to seek its attorney fees and/or foreclosure costs or a loss in the lien's priority to the mortgagee's encumbrance.

  7. Oregon statutes provide for the posting of a "Completion Notice" on a project.  If this procedure is properly followed, it "starts the clock" regarding the lien recording deadline, regardless of the claimant's last day of work.

  8. The rules for service of process differ in each state.  Oregon's requirement for personal service is stricter.  Washington does not require a plaintiff to file suit before it is served.  The defendant can make demand upon the plaintiff to file the suit.  In Washington, an answer or appearance typically must be filed in 20 days from the date of service.  In Oregon, an appearance is usually due in 30 days.  In Washington, you file a notice of appearance with the court to protect a defendant from a default.  In Oregon, you send an ORCP 69 letter to plaintiff's counsel.

  9. Oregon has Uniform Trial Court rules, which govern most of the "nuts and bolts" of case management, etc. at the trial court level.  Washington relies much more heavily on each county's local rules to cover this area.  In particular, King County, Washington, has voluminous local rules that a practitioner must be very familiar with to practice in that court.  King County has two divisions, with one division located in Seattle and the other in Kent.

  10. Washington court deadlines generally count backward from the end date.  Oregon deadlines generally count forward from the first event.  You must officially "note" a motion in Washington, and orders must be presented in open court or approved and signed by opposing counsel.  Many Washington courts require you to confirm your motion prior to the hearing date.

  11. Bonus – in both Oregon and Washington, the courts do not take kindly to the butchering of local town or county names.  Know how to say Willamette and Puyallup before you enter the courtroom.

http://www.osbarconstruction.com/news2015-06.pdf


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