a:\newslw.96 [4]Alan Lee MitchellStephen De'ak201997-03-21T00:29:00Z2006-07-01T22:23:00Z2006-07-01T22:23:00Z1111763685314747111.8026 FURRER & SCOTT LLCConsider . . .VOL. 6, ISSUE 2 April, 1997Law OfficesFURRER & SCOTT LLC9185 SW BURNHAM ST. POST OFFICE BOX 23414TIGARD, OR 97223 TIGARD, OR 97281(503) 620-4250 -- (800) 334-8986 -- FAX: (503) 620-4315PLUMBER AND ELECTRICIAN LICENSINGIf you are an electrical or plumbing contractor, then you already know -- or you should know -- about the special licensing requirements for your profession. These requirements are in addition to the requirement of registration with the Construction Contractors Board.What you may not know is your responsibility for keeping records of the licenses for all of your workers.In any legal action, you have the burden of pleading and proving your compliance with the applicable licensing requirements at the time the work was performed. What that means is that it is up to you to state in writing that the proper licenses were in force and it means that you must offer sufficient evidence to prove this statement to the judge or jury.Thus, you should keep records of the licenses for all of your workers, including all trainees and apprentices. Keep these records for as long as possible. Why? It is not the current license that will apply in the litigation, but the license at the time the work was done. Saving copies of the cards is usually quicker than waiting for a public records request response from the state and it reminds you to keep your records updated.CONFLICTS OF INTERESTHas this ever happened to you? You are a long-time client of ours and you bring a new matter to us. We then say that we must run this new matter through "conflicts" before we can say for sure that we are able to represent you.Or, we may say that we can represent you but only if you sign a "waiver of conflicts" form.How can we possibly say that we may not be able to represent you when we have been doing your legal work for a long time?If this, or a variation of this, has ever occurred to you, then you may have run into the ethical barrier known as a conflict of interest.The simplest conflict of interest is when a new client comes to us and asks us to sue someone whom we already represent. In this situation, it is perfectly logical that we cannot sue an existing client.More complicated is what is known as a "shrinking fund" conflict. A shrinking fund can occur if two suppliers to a project want to file construction lien claims against the same property. If there isn't enough value in the property to pay both lien claims, then there is a shrinking fund. In other words, one of the suppliers is not going to receive full payment out of the property.In the event we have already filed a construction lien for one client and another client or potential client asks us to file another construction lien on the same property, then both we and the two clients must evaluate whether or not there is an ethical conflict of interest.We may ask you to consider all aspects of the situation and decide whether or not you consent to our representing both clients at the same time. If you are the first client to come to us regarding the property at issue, then you may be able to say that you do not consent and that this office may not represent the other potential client.If we do ask you to consider granting your consent, we will probably tell you that you should consider obtaining legal advice when you make this decision. Even if both clients do make an informed decision to consent to our representing both clients, there may come a time when the situation changes and an unwaivable conflict arises. In that event, we are ethically bound to withdraw from representing both clients in the matter at issue.If you have any questions about these issues, please contact the firm’s managing member, Michael J. Scott.DEBT COLLECTIONYou may have wondered why we sometimes must give debtors a thirty day “waiting” period before we take actions against them. This practice is mandated by a federal law concerning debt collection of consumer debts.Both federal and Oregon law regulate the practice of collecting consumer debts. When they apply, these laws have some very significant impacts.First, both laws only apply to consumer debts, which are defined as debts based on transactions with primarily a personal, family, or household purpose. Also, both laws prohibit abusive or harassing conduct by debt collectors.Each law has a laundry list of prohibited actions. In particular, debt collectors must be extremely careful about disclosing the existing of a consumer debt to any third party such as the debtor's employer.Next, the federal Fair Debt Collection Practices Act (FDCPA) does not, in general, apply to businesses when they are collecting upon their own debts. However, the FDCPA does apply whenever anyone collects debts on behalf of another. This includes attorneys.Because the FDCPA applies to attorneys, it impacts on how we perform our collection activities on behalf of our clients. One of the most obvious impacts is that we must give consumer debtors a thirty (30) day period in which to dispute the debt. Another impact is that we must include a statutory statement in communications with debtors. Also, consumer debtors have a right to request validation of the debt.In contrast to the FDCPA, Oregon's law (the Unlawful Debt Collection Practices Act, or UDCPA), applies to commercial creditors who are attempting to collect their own debts, as well as to third party debt collectors.In conclusion, companies should become familiar with both of these laws. Each law grants specific protections to consumer debtors and provides serious remedies against debt collectors who violate those protections.FDCPA UPDATEThe FDCPA was recently updated. Previously, the FDCPA required debt collectors to disclose in every communication the fact that they were attempting to collect a debt and that any information would be used for that purpose.As of December 31, 1996, the FDCPA no longer requires this disclosure in formal court pleadings. However, all communications from debt collectors must now state “This communication is from a debt collector.”FIRM NEWS:DOUGLAS R. HOOKLAND prepared written materials and made a presentation on January 22, 1997, in Tukwila, Washington to Stusser Electric store managers regarding construction claims in Oregon and Washington, including secured and unsecured claims.MICHAEL J. SCOTT made a presentation before the Eugene-Springfield CFDD chapter on pending 1997 legislation. Mike and Thomas J. Murphy are registered lobbyists for Power Rents, Inc. and the Oregon Equipment Rental Association.GARY E. ENLOE has joined the firm as an attorney. Gary has been a member of the Oregon bar since 1989 and the Washington bar since 1990. He formerly practiced with the law firm of Sussman, Shank, Wapnick, Caplan & Stiles.RANDOM THOUGHTS:“Don’t try to instruct your lawyer. If you do, you’ve got the wrong lawyer.” John T. Nolan.This newsletter is published quarterly by the law firm of Furrer & Scott LLC for the benefit of its clients and friends and is intended to inform them about legal matters of current interest. This information is not intended to be, and should not be considered to be, legal advice. No actions should be undertaken in reliance hereon without professional legal counsel.Alan L. Mitchell, Editor