Don’t Dig Yourself Into A Hole

Don’t Dig Yourself Into A Hole

This is a pop quiz on when it is advantageous to hire a lawyer:

  1. At the beginning of a significant matter in your life which could have a financial and/or emotional impact on your future.
  2. After you have – already signed legal documents that could encumber you, or after you have been sued, or after your deadline to pursue a matter have passed.
  3. After a judgment has been entered against you in a lawsuit you did not defend; years after you did not monitor what was happening with a relative’s estate of which you are a beneficiary; after you settled on a piece of property and begin having major problems.

I would hope that most of my readers would have selected A. Yet in my experience, most people do not hire a lawyer until they have experienced problems in B or C. It is definitely easier to dig oneself out of a hole before one is too deep into the hole to do so.

I surmise it is human nature to wait to take action until a situation has reached crisis proportions. I will provide some examples of problems that clients could have avoided if they would have hired a lawyer at the beginning of their matter. Some of the facts of the matters have been changed, and the names are fictitious.

Example One

John Jones decided to place an offer on a house. The agreement of sale was drafted by a real estate agent who was a friend of John’s family. John decided to have us review the agreement of sale after he and the seller had already signed the agreement. Many people do not realize that a written document takes precedence over a verbal agreement, and even if the parties agree to change the agreement of sale, that agreement is often not valid until it is reduced to writing in a specific form. An exchange of e mails is not the necessary specific form.

We pointed out problems with the agreement because there was no limit on the amount of repairs John would have to pay for after he received his inspector’s report, it would have been John’s sole responsibility to pay for any citations the city would have issued prior to the sale, and the seller asked John to waive any disclosures he would otherwise been legally required to make.

Also, John owned 3 cats. John did not see the documents governing the homeowner’s association until after he signed the agreement, and those documents limited him to 2 cats. Although John was told he could move in with his 3 cats, restrictions were placed on him on whether the cats could remain if problems arose, and John was required to pay a deposit that had not been mentioned before. John has decided to cancel the deal and is waiting to see if there will be a problem with receiving a return of his deposit. If there is such a problem he may have to engage in an expensive mediation process.

Lesson: Always hire a lawyer at the beginning of a legal transaction.

Example Two

Debby Doe contacted us because she was told that she had 21 days (this is a federally mandated time period for employees over 40) in which to review a severance package after she was terminated from her employment. There were two parts to the agreement. Debby was told by her manager that if she signed the agreement the day she received it she would be considered for another position. However, Debby was not offered another position. Debby also suffered from some medical problems, of which her employer was aware, and became confused, upset and anxious when she learned she was being terminated. Debby retained us to secure a better severance package than the minimal package she was offered despite years of being a good employee, and because Debby was confused and intimidated and misled, she did not realize that she had signed both of the agreements, instead of one of them. We are now pursuing a discrimination action on behalf of Debby for lack of accommodation by her employer due to her medical condition, as well as not complying with giving Debby 21 days in which to consider the severance package.

Lesson: Do not let your employer bully or intimidate you into signing a severance package. Give yourself the legally allotted time to review the agreement, and have a lawyer review the agreement and either make suggestions to you as to whether changes are suggested, or try and negotiate a better package for you. Remember, that non-monetary changes are often just as important as monetary changes when considering these agreements.

Example Three

Bill Smith’s mother passed away in 2014.  She did not leave a will, but Bill agreed that his brother Jim could be named to administer their mother’s estate. Bill trusted Jim, and asked him every few months how things were progressing. Jim said things were fine, but there were many things that had to be done under the law, and that he would distribute Bill’s share of the assets as soon as their mother’s house was sold. In 2017 Bill became suspicious and checked some records at the courthouse. He learned that Jim had sold their mother’s house for $1 to Jim’s son, who in turn sold it to a third party for $100,000. Jim also confessed to Bill that he had spent $50,000 in their mother’s bank account on gambling, and had declared bankruptcy. Bill retained us, but by then very little could be done without extensive and expensive litigation which most likely would not have been fruitful.

Lesson: The law books are full of estate cases in which family members have taken advantage of each other. Greed unfortunately trumps kinship. It is wise to hire a lawyer at the earliest opportunity in estate cases and have that lawyer monitor what is happening and what should be happening. The law gives the administrator/executor of an estate broad discretion to act, and often spend the estate’s funds to defend themselves if they are accused of improprieties. It is preferable to hire a lawyer to monitor the situation, than spend many times that amount to sue an administrator whose fees are covered by estate resources.

 

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A BITTER WORLD

In the aftermath of every seminar I present at, I receive an evaluation of my presentation. Although most of the comments are favorable, there are sometimes one or two comments that are not. Some comments just contain information, as does the following one which is the subject matter of this blog. One of the comments for a seminar I presented last November was “Faye comes across as bitter. I wish her happiness.” I was the last speaker of that two-day seminar, and my topic was ethics in employment law. As this topic had been touched upon by several of the earlier presenters, I decided to focus on the real world of employment law cases, and the ethics, and sometimes the lack of ethics, of lawyers in these types of cases. Apparently my presentation revealed my unhappiness with some of the ethical issues I have encountered in my practice.

 

Do I consider myself to be bitter? No. The adversarial process is typically disappointing for both employees and employers, who have different perspectives about employment relationships, discipline, and terminations. Often, this causes employees and employers to become bitter during litigation.  However, I feel that I am often more disappointed than bitter, because I see the negative side of human nature.  In the field of employment law, there is never one totally correct and one totally incorrect side. Lawyers, for both employees and employers, don’t always receive the complete story from their clients, who frequently skew the facts in their favor, so that a lawyer will accept their case. Unfortunately, the true facts of a case may appear late in the process of representation, which is frustrating and disappointing to a lawyer who has advocated his/her client’s case without receiving a complete version of the facts.

 

The legal process itself is fraught with strife. Even U.S. Supreme Court nominee Neil Gorsuch, said in a talk he gave to a group in 2010 that “not long ago, we used to have trials without discovery. Now we have discovery without trials.” He was referring to the discovery process in litigation, which absorbs most of the efforts of a legal matter, and creates most of the expense. The discovery process, which was intended to facilitate the exchange of information between counsel and to promote early settlement, has become a Frankenstein living a life of its own. Because of the time and cost associated with discovery, this process has led to many parties being priced out of court. Often, those with the most available resources can prevail by extending the discovery process to the point where the average person cannot afford to continue to participate.

 

Bitterness and disappointment are not limited to the legal process. Certainly our current political climate, and the most recent Presidential election, has brought out the worst in human nature, with friends and family taking opposing political stances.  In my opinion, with the exception of the people who live in Norway, considered the happiest nation in the world, most of us are unhappy about something. This year, America dropped one place on the list of happiest nations, and is now the 14th happiest nation in the world.  So in America, this land of freedom and opportunity, something is obviously making us unhappy.

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THE NEW ATTORNEY-CLIENT RELATIONSHIP, PART II

In my previous blog post (see here) I wrote about an article in the November 1, 2016 Ethics Forum column in the Pennsylvania Law Weekly written by Samuel C. Stretton, a local lawyer, which discusses how the attorney-client relationship has lost the loyalty and trust that existed about 40-50 years ago. I will continue with Mr. Stretton’s comments, and my responses thereto.

 

Comment: “One has to practice defensive law. One’s file has to be documented and there has to be perhaps more communication just to protect the lawyers from future claims. Rare is the lawyer who receives a note of appreciation from a former client.”

 

Response:  I agree that lawyers have to practice defensive law.  In the course of one’s case a lawyer must deal with their client, with opposing counsel, with judges, with local bar associations, and with licensing and disciplinary entities. Mr. Stretton feels that clients now expect perfection from their lawyers, and have unreasonable time expectations of when their work will be performed.  Further, clients who do not understand that lawyers often serve at the vagaries, schedules and mercies of the court system, feel that their lawyers should respond to them on short notice, each time they call, write, e-mail or text, and that these responses should occur not only during the typical work day, but during evenings, weekends, holidays and vacations.

 

As a result, clients often make unreasonable demands and maintain expectations that lawyers must deal with, which in addition to the nature of law the way it is currently practiced, can take their tolls on lawyers, and can create physical ailments, emotional distress, and psychological problems.  The legal profession consistently has the highest numbers professionals who have alcohol, depression, and addiction issues, and their numbers are increasing yearly.

 

Comments: “It’s expensive to retain an attorney nowadays. It’s a hard concept for a client to understand…The need to charge realistic fees, which are difficult for many people to pay, obviously creates a further tension in the relationship”.

 

Response:  I agree. Years ago there were generally two types of fee arrangements by which a private lawyer could get paid. The first was via an hourly rate, and the second was via a contingency or percentage fee basis. However, over the years the lines have sometimes become blurred between the two forms of payment, certain laws have been passed which permit a lawyer to request payment if they prevail in certain types of cases from the opposing party, many people receive discounts on legal services through the workplace, many people purchase legal service plans, and other people can receive some services for free or a reduced rate due to their financial situation. This broadening of the legal payment landscape has led to a large amount of confusion on behalf of potential clients who do not understand which types of cases are normally billed hourly and which are not, what the nature of their discounted services entitle them to, etc.

 

Balancing the changing payment landscape with the drastically increased costs of maintaining a law office is often difficult. Rent, utilities, communications, technology, advertising, marketing and other costs have created large overhead for law offices. These increases and expansion of required services, in turn, has created the need to increase fees, and lawyers expect that a client will pay those fees, and not stop paying over time, after they have asked the lawyer to provide services. Lawyers want to devote their time to representing clients, and not arguing with their clients as to when they will receive payment. Clients also need to understand that sometimes they will need a lawyer, and ignoring the legal process because they don’t want to pay a lawyer, is a very poor and expensive decision for the client in the long-run.

 

The upside of the changing relationship between lawyers and clients will most likely reflect the manner in which law is practiced in the future. Law school entrants are dropping, when life is becoming more complex, and more situations arise when people will need a lawyer. College graduates these days seek a profession where they can make a difference, earn a good living, enhance society, and be appreciated and respected. If they do not view law as providing them with those opportunities, they will seek alternate professions, and although some people think that there are too many lawyers, one really cannot do without them in our complex world.

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The New Attorney-Client Relationship, Part I

In the November 1, 2016 Ethics Forum column in the Pennsylvania Law Weekly written by Samuel C. Stretton, a local lawyer, he laments about how the relationship between attorneys and clients has changed, deteriorated, and become adversarial, over the last 40 to 50 years. I found the article to be fascinating, and I am devoting two blogs to the issues he has raised. This is the first blog.

 

One could argue that life in general has changed, relationships have changed among friends and co-workers, and that our society has become a more difficult place in which to exist and function.  That change has also impacted the law, and the manner in which participants in the legal system interact with each other.

 

Some of the comments Mr. Stretton makes follow, and I will provide my thoughts on these comments based on my experiences:

 

Comment: “The loyalty and trust that used to be between an attorney and client has disappeared”.

 

Response: I don’t necessarily agree. I think it depends on the individual participants. My Firm has many, many clients who have been loyal to us through the years, and continue to trust us with their business. We strive to maintain a good relationship with our clients and communicate with them through a winter holiday card we send each year listing our practice areas. This has always resulted in a flurry of calls at the beginning of the new year from former clients who have read our card reminding them of our existence (more on this comment below) or reminding them of all of the areas of the law we practice. We also send out a Constant Contact Newsletter quarterly via e mail in which we add news about seminars we have taught, articles we have written, etc. Firms larger than us have an ongoing marketing agenda and sometimes professionals who do nothing but handle their marketing needs.

 

Comment:  “Most clients are willing to turn against the lawyer at the drop of a hat and to blame the lawyer for everything”; “even clients who express their satisfaction for the lawyer will turn against the lawyer if the decision or the verdict is adverse”; ”most clients accept no responsibility for their conduct and if things don’t go their way, their first defense is to blame the attorney”.

 

Response:  I don’t agree that most clients do these things. However, I believe that there are clients who blame others for their problems, who do not accept any blame for the situation they may find themselves involved in, and who are quick to blame their attorney or “the legal system” if they are not pleased with the result, even if the result favors them. I think some of this occurs because we live on the East Coast, where people feel free to offer their unsolicited opinions, and we live in an area which is one of the most litigious in our country. This is borne out by statistics on the types and numbers of cases that are brought in our local courts. I think some of these attitudes are byproducts of so many things being posted on the Internet, some of the story lines of movies and television series, and the inability of many people to grow up and accept the responsibility of their actions and the vagaries of what life brings their way.

 

Unfortunately, an unhappy former client who seeks to make him/herself vocal, even without a basis in fact or law, now has an avenue through the Internet, to damage the reputation of an attorney. I believe that although the process has been slow, the time will come, when the law, or society’s standards, will come to place limitations on what people can legitimately say or do to damage the reputations of others, much like those limitations currently exist for other forms of media.

 

Comment:  “There is no loyalty to return to the same lawyer. One does a good job for a client and then finds out that the client had a case that would have produced a good fee, but went elsewhere”.

 

Response:  I don’t necessarily agree that clients are not loyal to one lawyer. However, I do agree that clients often do not return to one lawyer, as in years past, when one lawyer or law firm often represented many family members for generations, and was referred to as “the family retainer.” I have written about this situation in a previous blog, not from the standpoint of disloyal clients, but from the standpoint that clients are bombarded with unsolicited information from advertisements in all forms of media, making it appear that all lawyers are super-specialized, and they assume that a lawyer they used for a case may not necessarily practice in the new area of the law they require. As I stated previously, a client may sometimes be represented by 4 or 5 different lawyers for one related matter, and most of those lawyers do not know of each other’s existence, and sometimes work at cross-purposes. An example of this is someone who was injured in a parking lot leaving their workplace; subsequently filed a worker’s compensation claim; was not accommodated by their employer while they sought medical treatment; was terminated for bringing the worker’s compensation claim; and then filed a claim for Social Security disability. In that situation they require one or more lawyers familiar with workers’ compensation law, personal injury law, discrimination/civil rights law, and Social Security law. It is unlikely that one lawyer will practice in all of these areas.

 

As a result, former clients will either succumb to the constant advertisements of lawyers in the media, oftentimes without remembering, considering, or consulting with their previous lawyer, or they will be referred by one of the lawyers they have consulted to other lawyers known by that lawyer. Once the above happens, it is frustrating to the lawyer who the client should have consulted initially, and who did a good job for them before. Every lawyer or law firm has their own network of attorneys which have been established over the years to whom they can refer clients if they do not or cannot handle a client’s new case.  Many of these referral lawyers have been tried and tested by these lawyers and firms. Even if they don’t have anyone in their network they can refer clients to, they can direct the client to a good referral source. Just because a lawyer or firm advertises relentlessly in the media does not mean they are necessarily competent lawyers in the view of other lawyers.

 

 

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The American Way

Ben Steverman recently published an article with Bloomberg News which concluded that Americans are addicted to their jobs. Steverman stated that compared to workers elsewhere in the world, Americans work more hours,, retire later , and take fewer vacation days. A comparison with European workers finds that the average worker in Europe works 19% less than their American counterpart. That translates to about 258 hours a year and about an hour less each weekday. In sum, American workers work about 25% more than Europeans. Also, more people over age 65 are working than at any other time in the last 50 years.

 

Of course, these statistics vary by country, with Swiss work habits being similar to those of Americans, whereas Italians work 29% fewer hours a year than Americans do. Theories for these differences include 1) that American workers feel that their efforts will pay off in the form of promotions and income; 2)that comparatively high European taxes reduce the incentive of Europeans to work harder; 3) that Europe’s stronger labor unions control the number of hours that employees are permitted to work, or their ability to move forward in their jobs; and 4) that generous pensions decrease the incentive for older employees to work as hard or as long.

 

As early as the 1970’s there was no difference in the hours worked between Americans and Europeans, so the change in circumstances is interesting, and I feel has much to do with American culture, self-esteem of workers, and the need to keep up with the Joneses.

 

Having traveled to Europe many times, at least from my experience, workers seem more relaxed. In Rome I have noticed that co-workers often leave their buildings a couple of times a day for coffee and snack breaks. I rarely have disagreements with people in Europe because people are not giving me attitude. Back home I often have many disagreements each day because the law is an adversarial process, and people in this area have attitude.

 

Although the European economy is slowing, and even faltering, there are lessons to be learned about the quality of life as lived in Europe compared America. We all know that America is a great country, yet with freedom comes responsibility. One of those responsibilities is to treat each other in a civil fashion. That lesson seems to have gotten lost in America. This lack of civility carries through into our personal and business lives. This lack of civility has carried through into this Presidential election year. Watching the debates makes one feel as if we are being slimed. It is hard to believe that vicious things are being said by so many people involved in the election process, and that courtesy between the sexes has disappeared. This lack of civility by our governing officials is shocking and embarrassing, and has seeped through to citizens in general. Our children have lost their role models, and what can one say to them when the people who boast of their superiority and believe themselves capable of leading our great country seem to wallow in the mud.

 

So, I think we should all vow to be a little more civil to each other, to not get caught up in the general election hysteria, to not give the media the attention it craves, to decide that we need to enjoy our lives a little more, and to not worship at the alters of ego and money. Good luck to us all, as we will need it to be stalwart in the days that lie ahead after the election.

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KNOWING THE LAW

More than once, after I tell someone who calls me inquiring about their situation, that they do not have a case under the law, or their case would be very expensive to process and their chances of prevailing are slim, they have angrily said “I’m going to find a lawyer who knows the law!” I believe, after nearly 43 years of practicing the law, that I pretty much know the law, and if I don’t know it, I know how to research it.

The majority of people search for a lawyer by surfing the Internet, using the yellow pages, or seeing paid advertising; using a referral service; receiving a referral as part of a workplace benefit; or receiving a referral from relatives, friends, co-workers or neighbors.

Often the process of locating a lawyer who practices in the relevant area, or even finding a lawyer who will take the time to consult with a person, is time-consuming. One would assume that after going through the effort and time involvement of finding or speaking to a lawyer, that people would respect the time a lawyer spends consulting with them, time for which the caller is often not charged, and believe the information received from that lawyer, who has training and experience in the law.

Yet people often have unrealistic expectations of what the law says, of how the law is actually interpreted by the courts, of how the legal system really operates, and the amount of time, effort and funds necessary to produce the type of result they want to achieve.

One area in which people think they have greater rights than they actually have is in the civil rights and employment law areas.  A soup to nuts civil rights case is very difficult and expensive to pursue. There are many plateaus which must be reached before a matter is even permitted to proceed to a court.  There is a high cost of engaging in the discovery process to root out information which people often just have a hunch about.  Convincing a judge or a jury that one has proved their case is the final obstacle.  These are just some of the obstacles which must be reached and overcome in proving one’s case.

Yet, every so often, after I have taken my time to patiently explain the intricacies of the law to a caller, and despite my many years of experience for which I believe I deserve some credit and respect, someone who does not want to accept the realities of the law will say they don’t believe me or they don’t agree with me.  What these people really mean is that they are not seeking a lawyer who knows the law, because most experienced lawyers know the law. What they really mean is they are looking for a lawyer who agrees with their version of what the law is or should be. And what they really should be doing is being grateful and respectful of a lawyer who has taken the time out of their busy day to speak with them and give them realistic advice about their situation.

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FEAR AND LOATHING IN THE WORKPLACE

What is happening in the workplace? Although the employment rate appears to be increasing, in my experience, employees are getting fired from their jobs at an alarming rate.  Many of the employees getting fired are long-term employees. Others are short-term employees, whose performance appears to be golden one minute, and the next minute they are being fired for some allegedly reprehensible, and often false, reason. My Office is always dealing with a myriad of issues involving employment and civil rights matters as they pertain to employment. We represent employees and employers at any given time. Since the recession is over, employers don’t seem particularly concerned about retaining their employees and employees don’t seem to care about leaving one job to take another.

 

On the employee side we  are assisting clients by trying to maintain their jobs, helping them make accommodation requests under the Americans With Disability Act, arranging leaves under the Family Medical Leave Act, assisting them with short-term and/or long-term disability claims, defending them against sexual harassment charges, making certain they are receiving the progressive discipline and appeal rights their handbook or company policies entitle them to receive, assisting their unions, requesting their unions to better assist them as the employees are not pleased with the representation their unions are providing, representing employees at unemployment compensation hearings, and/or negotiating severance packages offered by either the employer who wants the employee to leave for one reason or another, or by the employee who wants to leave for one reason or another.

 

On the employer side we are discussing with employers how to best discipline employees, how to lay off employees, how to terminate employees, what types of severance packages to offer employees, if any, and what language should be included in a written release of rights, representing employers at unemployment compensation hearings, defending employers before government agencies who investigate discrimination cases and licensing agencies, and negotiating settlement agreements with these same agencies.

 

The practice of law involving employment and civil rights, is very difficult.  That is because most states, including Pennsylvania, are at-will states, which means that employers don’t really need a significant reason to discharge an employee, and employees don’t need a valid reason to leave their employment. However, in general, we have been able to achieve some wonderful, and even remarkable, results for our clients. Of course, every case result depends on the facts, the people involved, and the opposing lawyer involved. However, if reasonable minds prevail, difficult situations can be for the most part negotiated and resolved, lessons can be learned, and life goes on.

To employees I have some advice:

  • Consult with an attorney even if you think you have no legal rights.
  • Consult with an attorney even if your employer threatens you that they will withhold some benefit or severance if you do so.
  • Keep your head about you at all times, especially when you are at combination social and business gatherings, because what you say and do, even not on the job, especially when you have had a little too much to drink, can definitely come back to haunt you.
  • Be reserved on social media. Everyone does not have to know what you are always doing, what you are always thinking, or what you think of them or others. People say and do things on social media they would never think of doing at the workplace, and their actions can get them terminated from their jobs.

 

To employers I have some advice:

  • Make certain you are following your written policies and procedures, and in some cases, your standard patterns and practices when dealing with employees.
  • Make certain that your actions are not violating the law before you take those actions.
  • If it is your policy to conduct investigations of workplace problems, then conduct a broad and fair investigation. There are always two sides to every story, and be careful that the side you are listening to is not being influenced supervisors who have their own agenda.
  • Do not volunteer information or provide documents to government agencies without consulting a lawyer first.

 

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