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Monday, May 8, 2017

Do I Need An Attorney If I Am Buying A Home ?

Do I need an attorney if I am buying a home?

Buying a home can be an exciting experience, but the process can be complicated. While some homebuyers may think hiring an attorney will be too expensive, not having proper legal representation can be even more costly. Although real estate agents typically bring buyers and sellers together, a highly skilled attorney can perform critical due diligence, anticipate problems, and be your advocate at the closing table.

It's often been said that real estate is all about the price and "location, location, location," but there are a number of factors to consider such as purchase and sales contracts, home inspections, title issues as well as arranging for financing. An experienced real estate attorney who knows the local housing market can help a buyer navigate these issues and protect his or her investment.

Once a buyer selects a home, it is crucial to have an attorney review or prepare a contract of sale. In short, a contract must adhere to all state and local laws, address issues about the use of the property, and specify the rights and obligations of each party. In some states, the buyer and seller have a limited time to review the contract before it becomes legally binding.

In addition to price and location, it is essential for the structure of the dwelling and its heating, cooling and electrical systems to be in good condition. An attorney can coordinate a home inspection to ensure that any defects are repaired prior to the closing or arrange to have the seller reimburse the borrower from the proceeds of the sale.

In some cases, an attorney can also perform a title search to verify that property is being sold free of any liens, judgments or other encumbrances. If outstanding items need to be paid before the deal closes, there can be costly delays, especially for buyers who are simultaneously selling an existing home. Lastly, after the closing, the deed must be filed in the county in which the property is located, which can easily be handled by an attorney.

Ultimately an attorney can protect a homebuyer's interests, anticipate and resolve problems and help to avoid conflicts. Because buying a home is the largest financial transaction that many individuals will ever undertake, the role of an attorney cannot be underestimated.


Friday, April 28, 2017

End-of-Life Medical Decisions

Making Decisions About End of Life Medical Treatment

While advances in medicine allow people to live longer, questions are often raised about life-sustaining treatment terminally ill patients may or may not want to receive. Those who fail to formally declare these wishes in writing to family members and medical professionals run the risk of having the courts make these decisions.

For this reason, it is essential to put in place advance medical directives to ensure that an individual's preferences for end of life medical care are respected. There are two documents designed for these purposes, a Do Not Resuscitate Order (DNR) and a Physician Order for Life Sustaining Treatment (POLST).

What is a DNR?

A Do Not Resuscitate Oder alerts doctors, nurses and emergency personnel that cardiopulmonary resuscitation (CPR) should not be used to keep a person alive in case of a medical emergency. A DNR is frequently used along with other advance medical directives by those who are critically ill and prefer not to receive life sustaining treatment.

What is a Physician Order for Life Sustaining Treatment (POLST)?

A Physician Order for Life Sustaining Treatment is similar to a DNR,  however a POLST is prepared by a patient's doctor after discussing end of life treatment options. This is not a legal document prepared by an attorney, but rather a binding doctor's order that is kept with a patient's medical records. A POLST declares a patient's preference for receiving certain life sustaining treatments, as well as treatment options the patient does not want to receive or to be continued.

Examples of these treatments include, but are not limited to, artificial nutrition and hydration, intubation and antibiotic use. These decisions should be made when there is no medical crisis that can affect an individual's decision making, after various treatment options have been discussed with his or her doctor. In short, a POLST ensures that a patient will receive appropriate treatments, but not be subjected to life sustaining measures the patient does not want.

By having these advance medical directives in place, a person can have peace of mind knowing that he or she will receive end of life treatment according to his or her wishes, and loved ones will not be forced to go to court to obtain the right make these decisions.

 


Thursday, April 20, 2017

Own a business with a spouse? What happens after a divorce ?

Own a Business with a Spouse ?  What happens after a divorce ? 

 Given that this situation encompasses various areas of law, you should consult both a matrimonial and a business law attorney. Depending upon the type of business the division between you and your soon-to-be ex-wife may be straightforward. However, more than likely, it may take significant work to be able to divide the business. If you and your wife intend to continue to own and/or operate the business together, you could simply divide the ownership between the two of you.

Otherwise, the two of you have to continue to work together until the business is actually sold or dissolved. If the business is such that it has two distinct areas you could spin off one of those into a separate entity that can be owned by one of you.  If the business owns real estate, perhaps some of the real estate could be transferred into a new entity to be owned by one of you with the other of you retaining the ownership of the original entity. If the business is such that it is almost impossible to divide, then perhaps one of you becomes the sole owner of the business and has to pay the other over some period of time for the value of one half of that business. Instead of paying the other of you perhaps an outside loan from a bank or other lending institution could be obtained to provide the funding for the purchase price.

A final option may be that the business has to be sold to an outside third party and the proceeds would be divided between you and your wife in accordance with any agreement between the two of you that have been approved by the divorce court or pursuant to an order.


Monday, April 10, 2017

Insurance Bad Faith

Insurance Bad Faith

If you or a loved one is injured in an accident you may be entitled to compensation which usually means dealing with an insurance company. Although insurers have an advantage because they have teams of attorneys and experts, the law requires insurance companies to treat claimants and policyholders fairly. While there may be legitimate reasons to deny a claim, an insurer that fails to engage in good faith and fair dealing may be held liable for bad faith.

What is bad faith?

Bad faith is a legal term for an insurer denying a claim without a reasonable basis. In first party insurance situations, bad faith arises when an insurance company denies a claim without a valid reason. In third party insurance situations, bad faith occurs when an insurer fails to defend or indemnify the policyholder without a valid reason.

Proving bad faith varies from state to state. In some states, it is necessary to show that the insurer failed to conduct a thorough investigation. Other states have a higher a higher threshold that requires proving the insurance company missed or ignored obvious facts or information in denying a claim. A stricter standard that some states rely on requires demonstrating an insurer intentionally conducted an inadequate investigation.

Generally, it is not necessary to demonstrate that the insurer denied a claim merely to advance its interest at the expense of the claimant. On the other hand, an insurance company that makes a mistake or error in denying a claim cannot be held liable for bad faith. Lastly, an insurer that is shown to follow a pattern or practice of not adhering to state regulations governing claims investigation can be held liable for bad faith.

What can I do if I have been the victim of bad faith?

If you have been the victim of bad faith on the part of an insurance company you have options. By engaging the services of an experienced insurance law attorney, you may be able to recover damages from the insurance company. These damages include the amount the insurance company should have paid out for the initial claim, as well as additional damages arising from the bad faith denial.


Thursday, March 30, 2017

Employment Contracts in a Nutshell

Employment Contracts in a Nutshell

The contemporary workplace has become increasingly complicated as many businesses are governed by a wide range of state and federal employment laws. Moreover, the relationship between employers and employees has also become more complex, particularly as the work force becomes more diverse. For this reason, business owners should consider utilizing employment contracts to clarify these associations.

While such agreements may not be necessary across the board, they are well suited for executives, sales people, or those who have either a decision making role or an ownership interest in the business. As such, the first element of a comprehensive employment contract is a description of the employee's duties and the duration of employment.

Obviously, an employment contract should specify the salary that is being paid as well as any work-related benefits: bonuses, vacation pay, health insurance, expense accounts, stock options and retirement plans. The contract should also clarify whether the employee is working at will and the grounds for termination. It is important to note that an employee who is fired for reasons not stated in the agreement may have grounds for a wrongful termination lawsuit.

Depending on the nature of the business, it is also necessary to protect sensitive information with confidentiality provisions. In particular, it is crucial to protect trade secrets, such as formulas, designs, practices, client lists or any other information that is generally not known to the public. Moreover, employees should be notified that all work product is owned by the business. Similarly, if the entity has relationships with independent contractors or freelancers, it is important to clarify that anything they produce is on a work-for-hire basis.

In addition to confidentiality provisions, it may also be necessary to include a non-compete clause clarifying that an employee will not accept a similar job with a competitor in the geographical region for a specified period of time.

In the end, there are a number of benefits to utilizing employment contracts. In addition to helping to retain key employees and minimize the costs of training new people, employment contracts give a business control over performance standards. Further, these agreements provide protection against the potential misappropriation of trade secrets and other intellectual property. Ultimately, these agreements help to clarify the rights and obligations of both the employer and the employee. By engaging the services of an experienced employment law attorney, a business can put in place a well designed employment agreement.


Monday, March 27, 2017

Non-Disclosure Agreements

Use of Non-Disclosure Agreements

As a small business owner, it is essential to protect sensitive information that is often referred to as trade secrets. While some well known examples of trade secrets include the formula for Coca-Cola and Google's algorithms, any business information such as practices and techniques, processes and procedures, needs to remain confidential. In some cases, business data such as client and vendor lists may qualify as a trade secret.

Although trade secrets and other confidential business information are protected by state and federal laws, it is crucial to secure this information through the use of a confidentiality or non-disclosure agreement. In sum, this is a legal contract between two or more parties in which the party receiving the sensitive information agrees not to reveal it to any other party without prior permission or authorization.

In situations in which a business engages with vendors or enters into a strategic alliance with a similar business, a separate, stand-alone agreement can be used. Similarly, confidentiality provisions can be incorporated into an employment agreement for employees who are given access to sensitive business information. In either case, common provisions included in these agreements include:

  • A definition of the confidential information (but usually not the protected information itself)

  • An explanation as to why the information is being provided to the receiving party

  • Terms under which the information may be disclosed to appropriate parties (such as on a need-to-know basis)

  • The circumstances in which the information may or not be used

  • The duration of time  the information must be kept confidential

In order for a non-disclosure agreement to be enforceable, it must be deemed fair. A court typically looks to whether an agreement is overly restrictive in making a determination of fairness. If the contract is unduly burdensome to the party receiving the information, a court may find all or part of the agreement invalid. If the information has already been revealed to a third party and the agreement is deemed to be invalid, a business may be barred from recovering damages for its losses. For this reason, it is crucial to consult with an experienced business law attorney who can help to prepare a well designed non-disclosure or confidentiality agreement.

 


Wednesday, March 22, 2017

Pre-Bankruptcy Credit Counseling

What is Pre-Bankruptcy Credit Counseling ?

Today, individuals who are seeking relief under Chapter 7 or Chapter 13 of the Bankruptcy Code are required to complete credit counseling with an agency approved by the U.S. Trustee's office. The purpose of pre-bankruptcy credit counseling is to determine if the debtor qualifies for bankruptcy or whether an informal payment plan is a better option.

In any event, credit counseling is necessary even if a payment plan is not feasible. Moreover, counseling must be completed within the 180-day period before the bankruptcy filing. Also, a certification of completion must be filed with the bankruptcy court within 15 days of the filing date. If the required course is not completed the bankruptcy petition will be dismissed.

The fact that participation in credit counseling is mandatory does that mean the debtor must agree with the counselor's recommendations, which are based on an assessment of the debtor's financial situation. In addition to informal payment plan, a credit counselor can also recommend a formal repayment plan under Chapter 13. This plan must be filed along with the other bankruptcy documents. On the other hand, the counselor may find that a Chapter 7 filing is the only option. Ultimately, the courts are inclined to agree with the agency's recommendations.

It is important to note that this is not the only counseling bankruptcy filers must agree to. If the bankruptcy petition is approved, it is also necessary to complete an approved course on consumer debt, before the debts are discharged. The goal of this course is to educate debtors about finances, including matters such as how to develop a budget, manage money, and use credit responsibly.

In the end, the decision to file for bankruptcy is difficult and one that requires serious consideration. While filing for personal bankruptcy can help a distressed debtor make a fresh start or work out a payment plan, bankruptcy can cause long lasting damage to his or her credit worthiness. Regardless, it is best to speak to an experienced bankruptcy attorney who can help explore all the options.

 


Tuesday, January 31, 2017

What is Defamation ?

Defamation has two basic forms: “libel,” the written form, and “slander,” the spoken form.  To establish either type, certain elements must be present. The false statement must be "published" and the false statement must result in injury. In terms of defamation accusations, “published” does not mean publication in a newspaper, magazine, or book— a statement is considered to be "published" when another party sees or hears it. In this context, speaking loudly enough to be heard by a third party may be considered "publication." False statements can also be made not only through spoken or written words, but by presentation of images or symbols.

There are, however, exceptions that make individuals immune to liability. These include absolute and qualified "privilege" and apply in special situations, such as in communications between spouses, in governmental proceedings, or in statements made in self-defense.

Privilege is not the only defense against accusations of defamation. Truth of the assertion is an “absolute defense” to an accusation of defamation.  A statement is not actionable or defamatory if it is honest. Likewise, a statement of opinion cannot be defamatory. 

Furthermore, one cannot recover damages for defamation if there has not been resulting injury or damage to the reputation of the other party.  Examples of damage include loss of employment, harassment, and loss of business contacts or friends.  It should be noted that public officials are less likely to be shielded from defamatory content.  Beyond proving the above-stated elements, a public official may be required to demonstrate the existence of “actual malice.”  "Actual malice" is generally defined as making a statement with knowledge that it was not truthful, or with “reckless disregard” for the honesty of the declaration. 

The discovery process in defamation cases may be lengthy because the jury must analyze all of the circumstantial evidence surrounding the statement in question.  Factors to be considered may consist of the place where the declaration was made, the relationship of the accuser to the accused, and the reasons or motives behind the assertion. Because of the complexities involved in defamation cases, expert advice from a licensed attorney is essential.


Monday, January 30, 2017

Email at Work: Is there An Expectation of Privacy ?

Email @ Work: Is There Any Expectation of Privacy?

The proliferation of high-speed communication devices have made us more productive and more vulnerable in terms of our privacy. Desk-bound workers may be tempted to use the office email account to engage in personal communications – however, they do so at some risk to their privacy. How much privacy can employees expect for their electronic communications at work? Practically speaking, it is safe to presume everything may be monitored by your employer.

The law generally favors employers’ interests over employees’ privacy. Employers clearly have a legitimate business interest in tracking employee time and productivity. Additionally, employers must ensure their workers are not engaging in any illegal activity or releasing trade secrets. The law permits employers to read employee email messages; if there is a company policy in place that assures employees that email messages will remain private, a worker may be able to argue that there was a reasonable expectation of privacy, but the effectiveness of that argument varies. The courts have generally upheld employers’ rights to monitor and read their employees’ email messages, particularly when there is a compelling, business-related reason for doing so.

There is, however, a law that affords employees some protection of their privacy when accessing personal email accounts, such as Gmail or Hotmail. Should the password to a personal email account fall into the wrong hands, the employer is prohibited from using that information to access the employee’s personal emails without the employee’s permission. Under the Stored Communications Act, such conduct is a crime and also creates a civil cause of action for damages. Keep in mind that accessing these accounts from a work computer can give the employer the right to read messages employees send or receive using company equipment. However, the employer is not permitted to log in and view other personal email communications.
 


Friday, January 27, 2017

How Par Value Affects Start-Up Businesses

How Par Value Affects Start-Up Businesses

Many entrepreneurs are unclear about the “par value” of a stock, and what par value they should establish for their new corporation. Generally, par value (also known as nominal or face value) is the minimum price per share that shares can be issued for, in order to be fully paid. In the old days, the par value of a common stock was equal to the amount invested and represented the initial capital of the company; but today the vast majority of stocks are issued with an extremely low par value, or none at all.

A share of stock cannot be issued, sold or traded for less than the par value. Therefore, incorporators often opt for such a low – or no – par value to reduce the amount of money a company founder must invest in exchange for shares of ownership in a start-up corporation. Regardless of the par value, the company’s board of directors retain the right to sell shares in the company at a higher price.

Some online incorporation services recommend setting par value at zero, however this is not necessarily the best approach and can have unintended consequences. Many corporations want to assign a par value, so that an actual investment (money or services) is necessary in order to acquire ownership in the company. This way, the corporation can generate capital and recoup start-up costs.

Some states restrict the number of shares which may be offered at zero par value, or charge additional taxes or filing fees based on the number of zero par value shares. For example, Delaware corporations can issue up to 1,500 shares at zero par value before additional filing fees kick in.

Zero par value can pose problems at tax time in some jurisdictions. In Delaware, for example, there are two methods of calculating franchise taxes corporations must pay annually. In one example, the same corporation would owe annual tax in excess of $75,000 if the stock had zero par value, as opposed to annual taxes of just $350 with a nominal par value of $.01 per share.

Consider establishing a par value that is above zero and below $.01 per share to minimize the initial investment required from the founders and to protect against potential tax consequences associated with zero par value stock. Some also recommend issuing founder shares at a multiple of whatever par value is, to avoid future complications if the corporation needs to execute a stock split that results in a new share price that is below par value.

Par value has no bearing on the market value of a stock, but is an important decision in the formation of your new enterprise. Consultation with an experienced business or tax lawyer can help you ensure your ultimate decision serves your company well into the future, in terms of raising capital, lowering taxes and retaining control as a shareholder in your corporation.


Wednesday, December 28, 2016

Negligence Claims Against the Government

Negligence Claims Against the Government

When an individual is wronged or injured by a federal agency or government employee, that person may have an actionable negligence claim against the government. It is necessary to seek legal counsel to determine whether or not the government is immune in this particular case or whether a legitimate claim can be brought under the Federal Tort Claims Act (FTCA).

Pursuant to the FTCA, if the incident arose from an act by a federal employee who was “acting in the scope of” his or her employment, an action may be brought.  Claims against the government, however, are often complex, burdened with various restrictions.  It is always advisable to consult with an attorney in such cases, rather than attempting to bring a lawsuit independently.

The FTCA does not extend liability to every individual associated with the government, and claims are only permitted under certain circumstances.  For example, independent contractors employed by the government are only included under the act in exceptional cases.  Most often only a claim of negligence can be brought, rather than a complaint for deliberate wrongdoing.  Furthermore, the claim must be grounded upon, and cannot conflict with, state law.  

There are several steps to be taken in filing a lawsuit against the government. First and foremost, within two years from the date of the incident, an administrative claim must be filed with the agency that allegedly caused harm.  In order for the claim to be considered and investigated, a form has to be filed which includes all relevant facts and requested damages.  The claim for damages is limited; punitive damages are not typically an option. 

If and when the agency discards the claim, in whole or in part, a suit may be filed within six months of the date on the decision letter.  In most cases, all administrative remedies must be fully exhausted before seeking legal action.  If the agency does not respond, however, the complainant may be permitted to proceed with the lawsuit.  An attorney can best advise whether an action can be filed, whether the government has any plausible defense, and whether it is in the client's best interest to settle the case.  


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