Sunday, July 27, 2014

Common Question - My spouse and I are divorcing amicable ... can we come in and see you?

Image courtesy of Stuart Miles /
My firm is all about helping people divorce in an amicable fashion. We will work with one of the parties to draft agreements they both want. When we first start cases like this, many times, the person calling will ask us to meet with both parties. When we tell them we cannot meet with both parties, people are confused and get upset.

It is an ethical issue and places the firm in a bad position. When you talk to an attorney and have a question, you have an absolute right to know what is in your best interest and it is our obligation to give you an honest answer. What you do with the information is up to you but, again, we must give it to you. If your spouse has a question, he or she has the same right and his or her attorney has the same obligation. To do anything less would be a violation of an attorney's ethical responsibility. I have no problem when a client wants to take less or is getting more than they are entitled to for whatever reason. And if a spouse decides not to see an attorney, I cannot require it. But we cannot represent both parties and can only really talk to the person who consults with us.

I understand how people are confused. There are a couple methods that I know about to take the court battles out of the mix. But that does not necessarily remove the attorneys. There is the collaborative law process. That is where the parties sign an agreement to openly and honestly negotiate a settlement and agree to keep the case out of court. The parties and their attorneys meet to discuss the issues and develop solutions together.

Another method of proceeding through a divorce is mediation. The parties meet with a mediator to negotiate a resolution. Again, they agree to be open and work together. Once the parties come up with an agreement, the mediator reduces it to writing and gives them copies to discuss with their attorneys.

At least this is what I know about these two method. I feel it important to say I'm not trained or certified in either of these methods and I've explained the extent of my knowledge. The bottom-line is, as I understand it, parties still have separate legal counsel if they want representation even in the most cooperative processes.

We welcome people who want to work things out without the need of a court battle. For ethical reasons, we cannot represent or even appear to represent both parties to a divorce. It is a good thing if you are looking for an attorney to work with you, your spouse, and spouse's attorney in an open and respectful way.

Wednesday, July 23, 2014

Pennsylvania Real Estate - murder/suicide does not constitute an actionable material defect

This week in Milliken v. Jacono, The Pennsylvania Supreme Court decided the issue of whether the sellers were required to disclose that a murder/suicide had occurred at the residence sometime before the sale. The court determined that "purely psychological" stigmas are not material and do not require disclosure.

Part of the court's reasoning:

Image courtesy of Salvatore Vuono

"... Regardless of the potential impact a psychological stigma may have on the value of property, we are not ready to accept that such constitutes a material defect. The implications of holding that non disclosure of psychological stigma can form the basis of a common law claim for fraud or negligent misrepresentation, or a violation of the UTPCPL’s catch-all, even under the objective standard posited by appellant,6 palpable, and the varieties of traumatizing events that could occur on a property are endless. Efforts to define those that would warrant mandatory disclosure would be a Sisyphean task. One cannot quantify the psychological impact of different genres of murder, or suicide — does a bloodless death by poisoning or overdose create a less significant “defect” than a bloody one from a stabbing or shooting? How would one treat other violent crimes such as rape, assault, home invasion, or child abuse? What if the killings were elsewhere, but the sadistic serial killer lived there? What if satanic rituals were performed in the house?

It is safe to assume all of the above are events a majority of the population would find disturbing, and a certain percentage of the population may not want to live in a house where any such event has occurred. However, this does not make the events defects in the structure itself. The occurrence of a tragic event inside a house does not affect the quality of the real estate, which is what seller disclosure duties are intended to address. We are not prepared to set a standard under which the visceral impact an event has on the populace serves to gauge whether its occurrence constitutes a material defect in property. Such a standard would be impossible to apply with consistency and would place an unmanageable burden on sellers, resulting in disclosures of tangential issues
that threaten to bury the pertinent information that disclosures are intended to convey..."

The court also talks about time and renovations that could remove or even enhance the stature of the property. But it is clear that a seller is not required to proactively disclose such events or character assigned to the property.

That doesn't mean you cannot ask. Also, the court notes the murder/suicide in this matter was well publicized and easily discoverable by the buyers. This case shows why potential buyers need to prepare when they are looking for a home. They need to know what they want and, moreover, what will be a deal breaker. They should create a list of the
se desires and show stoppers so they don't get caught up in the emotion of a particular property and overlook a deal stopper.

My wife taught me that. She grew up in a home that had water problems in the basement. She never wants to deal with that again. So when we were looking for both of our homes, one of her first stops was in the basement. She would also look around the yard to look for signs of standing water. It didn't matter how beautiful the property, If she saw a wet sump area or saw signs of puddles around the home, it was off the list... period! Do you know how many homes that rules out in southeastern PA?

The bottom-line is, you are responsible to do some of your own research on the properties you are considering.

For a summary of this decision and a copy of the opinion, you can go here:

Monday, July 21, 2014

Unpaid internships may cost more than you expect...

Several times over the last year students and new graduates have contacted me asking if they could work with us and that they would do it for free. They wanted an unpaid internship. They were hoping to build experience and maybe earn a full time position. As I have told them, a business cannot use unpaid interns to make money for the business. For me, I believe I could only have an unpaid intern working on pro bono cases. Below is a link to an article that explains the issues in much more detail:

"When it Comes to Volunteers and Unpaid Interns There is No Such Thing As a Free Lunch"

The article also gives tips on how a company might be able to use free interns on a limited basis. The article talks about offering tasks to be completed on the intern's own time at home. As an attorney, I would be concerned with privacy and confidentiality issues. Other industries and businesses will have similar concerns.

While I agree aspiring professionals could learn a great deal from working with a company; even for free, I can also see the potential for a company to exploit and abuse the use of free interns. So if you are a business person that thinks you can appropriately use an unpaid intern and before you agree to take on an unpaid intern, make sure you discuss it with your corporate counsel or attorney.

Saturday, July 19, 2014

Estate Planning; planning for the unexpected as well as the inevitable ...

When I talk to clients about their Wills and related documents, they almost always approach it as if they have decades to live and they will have plenty of notice before they go off peacefully in their sleep. Let's face it, we all want to go that way and I believe that is a healthy belief. But we all know life doesn't always work that way and I need to get them to think about other possibilities.

This point was driven home for me personally this month through the tragic and violent death of my wife's cousins. In an instant, a truck crossed the center line and collided head on with their car as they were traveling to the shore for the weekend. In that moment, an elderly father lost his only two children, middle age-men lost their wives, and two young adults lost their mother.

When a generation of heirs are removed at one time, poorly planned estate documents can fail to fulfill your intentions. I'm not saying that is the case here because I don't know anything about the planning. I'm just commenting generally. This type of catastrophic event must be considered  when making these plans and this is the type of legal counsel we give when helping our clients.

But as we mourned with the family, I realized we may be missing an important part of planning by only discussing the legal aspect of this. When I started this post, all the possibilities for failure of an estate plan were swirling around my head. I planned to talk about that in more detail.  But as I have been going through this with my wife and her family I decided I want to jump to another area. The more personal side. There are things I mention in passing when I meet with people. But sometimes I feel could be intruding. I tell people, usually when talking about living wills and powers-of-attorney, the purpose of these documents are to make it easier for their family during times of crisis and emotional distress. But that counsel fails to capture the full gravity of unexpected end of life events.

To say our family was under a great deal of emotional stress would be an understatement. But this is not first time I've had a family member pass. All my grandparents have passed and I helped my Grandpa, Uncle and Dad plan my Grandma's funeral and memorial, and my Uncle and Dad with my Grandpa's, and finally my Dad's with my Sister and my Dad's significant other.

This time it seemed different. First of all, it was the matriarchs of two different families. They were the "doers" and "organizers" for the family. They maintained the rhythm of daily family life. The survivors were the Father, Husband/Son-in-Law, and a Grandchild/Child for each family.

Because of their ages, I suspect they never discussed what type of arrangement they would like for their memorials and I'm pretty sure there was little pre-planning as to funeral homes and such. The resulting memorials were something the family should be proud of and I'm sure the women would have been honored by the thought and effort the family expended to honor them.

But my point is watching them trying to put this together to honor their daughters/wives/mothers was like looking at a piece of torn fabric ... frayed ... damaged ... weakened ... so desperately trying to keep it together through their grief while trying to bring family and friends together. I could  not help thinking times like this could be just a little bit easier if people discuss funeral and memorial plans with their families.

That sounds relatively simple, right? While reminiscing with my wife about her cousins and in the spirit of my thoughts to discuss the end, I said to my wife, "At this time of my life, if I was to die suddenly, I would like to be buried in my [Air Force] uniform." I thought, good start and simple enough to follow and it was just one little aspect that I just took care of. Her response was, "Which one and where is it?" I know I want to be buried in my service dress uniform. She saw me in woodland camouflage, desert camouflage, and various blues uniforms. She has no reason to know which uniform let alone have any clue where all the items for my service dress are. So my "simple" request created several new questions for her. Maybe not so simple?

As a result, I have a new perspective on planning on the unexpected. I think planning on the inevitable is pretty standard. After this experience, my goal is to spend a little more time on the unexpected. It may not be a legal issue but I hope my clients benefit from the discussion.

(I apologize if this is a little disjointed and lengthy. I am trying to discuss a sensitive topic through a personal experience in a respectful and helpful manner)

Saturday, July 12, 2014

Bankruptcy and your security clearance

If  you have checked out my profile here or on my website, you'll see I spent over 30 years in the military and in federal civil service in some way or another over my life. During my federal career, I've held a security clearance as high as a Top Secret and never any level less than secret. So I have had some practical experience with the entire clearance process.

While I don't know if I ever assisted anyone through bankruptcy with a clearance, I have always held the opinion that bankruptcy will not impact your clearance. When your finances are such that you have a need to file for bankruptcy protection, you will not be able to hide your financial difficulties during your security investigation. Also, if you are ignoring the problem, you will not be able to hide that fact either. By filing for bankruptcy, you show you are serious about the problem and working to get your finances squared away. So while I don't know if I ever file bankruptcy for someone with a clearance, I have been asked and this has been my counsel.

So why do I bring this topic up if I don't know for sure? Well I found this article that reinforces and/or verifies my thought.

"Will I Lose My Security Clearance if I File Bankruptcy?"

The author of this article, Brett Weiss, Esq., states:

"... I have represented people who work at DOD, DIA, CIA, NSA and the White House, as well as every branch of the military. I have represented people with every possible security clearance, from Confidential to Top Secret (and the other clearances that have only letters and numbers describing them). NOT ONE has told me that a bankruptcy filing had any impact whatsoever on their security clearance, their job, or their advancement. I have even had clients tell me that their security officer told them that they needed to file for bankruptcy or they would lose (or not get) their clearance! The only requirement is that you tell your security officer before you file so that they know you are not trying to hide anything. They already know that you’re in financial difficulty–bankruptcy shows that you’re addressing the problem and fixing it..."

The bottom-line is you cannot hide your problem. Fixing it, even through bankruptcy, may help on many levels including your clearance.

#bankruptcy #Chapter_7 #Chapter_13 #Montgomery_County #law_firm #Bucks_County #Pennsylvania

Sunday, July 6, 2014

DIY Lawyerin' - will you really save money?

"Do-it-Yourself" Lawyerin' can be a dangerous thing if not done right. I know many people think of attorneys as affluent but I am simply a small business owner and a new one at that. I understand clients are strapped and want to save money. But I could never recommend a person go it alone. I don't mind counseling clients in a way to help them do some of the work themselves but there is definitely a risk. Furthermore, some cases should not be done without the direct assistance of counsel.

One of the most common things I find clients can do and can do well is dividing the property during a divorce. When parties are open about their finances and can negotiate with each other, they usually can do it rather well. What I consider the right way to do this is for the couple to discuss the property split. Once they think they know what they want, one of them should contact an attorney to get help drafting the agreement.

After the document is written, the drafting party passes it to the other spouse. KEY: The second spouse needs to read it carefully and then take it to their attorney to ensure it says what they think and want it to say. Also, the attorney may find issues not address at all.

This process places both parties on equal footing. At this point, adults are free to give up or hold out for what they want. This is a way to cut legal fees while protecting yourself. I've had at least one client who filed the divorce himself, used me to draft the agreement, and finished all the other filings on his own. He saved a great deal of money on all the work he completed himself.

Unfortunately, I've had several people come into my office over the last year who allowed the other party draft the property agreement and never sought an attorney review. They ended up giving up assets they didn't mean to or address issues that caused them grief months after the divorce was finalized. They swapped a few hundred dollars for an attorney review for several thousands of dollars of litigation with a questionable probability of success. What is that saying? "A penny wise and pound foolish."

I have a client that wanted to participate in the administration of her mother estate to save money on fees. We worked out a plan and she was able to do some work to cut costs and I'm earning a decent fee. It wasn't the most time efficient method but it seems the client is happy.

I've also had clients come in with of documents (forms) that some just needed a little tweaking while others needed to start from scratch.  In these cases, savings obviously varied.

Other ways you can help conserve money when dealing with an attorney are by preparing your questions and building a list of questions to ask at one time either over the telephone or during the next meeting; listen to the answers before going on to your next question; answer your attorneys' questions openly (remember we are not judging you, we are analyzing your case), and by being prepared to hear an unbiased opinion and evaluation of your case. These things can help you use your time with your attorney more efficiently resulting in lower attorneys' fees.

Of course there are cases people should have legal assistance handling such as serious criminal charges, actively contested and litigation cases, and anything people don't completely understand. Because the stakes are so high in cases like this, people really need to consider hiring a lawyer.

While there are things you can do on your own and ways to decrease costs, I would never suggest doing so without any legal counsel on any matters. Without legal counsel, you run a greater risk of missing issues; losing rights and creating a situation that will cost even more in legal fees. And clearly there are some matters a party should not do themselves at all.

Tuesday, July 1, 2014

Even in Chapter 7 Bankruptcy, returning your house to the bank isn't like taking a sweater back to the store

So, you filed for bankruptcy protection under Chapter 7 and you announce you are surrendering your home, what next? Well, the bankruptcy is just a pause. What you have told the bank is it can have the property once the bankruptcy is completed and discharge is granted. Your work with the bank may not be complete yet.

The bank still needs to take control of the home. The bank can do this a couple ways. The bank can commence or continue foreclosure or accept a deed in lieu of foreclosure.  Another option is a short sale where the bank allows the property to be sold for less than the debt. The best option will depend on what you want or need. If you want or need to remain in the home for some time, foreclosure might be the way to go. The drawback is the foreclosure will end up on your credit report once it is commenced. If a quick out is what you are looking for, the deed in lieu of foreclosure.

The real problem is you don't get to chose the method you divest yourself of the home. It is up to the bank on the method and on the bank's time schedule. What's worse is liabilities incurred as a result of the property may become your debt. If you have a home owners' association fees or assessments for poor care of your property, you could be on the hook.

So the surrender of a home needs to be thought out and discussed as part of the bankruptcy planning. Without planning or flexibility, you may give up some of the benefits of filing bankruptcy.