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Thursday
Jul212011

Casey Anthony Trial – Lessons in Courtroom Civility & Ethics

by Stephan Mihalovits


The Casey Anthony trial has drawn public interest on an international scale. A horrible tragedy resulted in a young life lost. The defendant mother is widely perceived as guilty. But despite global public interest and the seriousness of Caylee Anthony’s death, the trial and verdict in Florida provide more proof that attorneys oftentimes act unprofessionally to opposing counsel and against ethical guidelines, even when stakes are highest. 

As trial commenced, Florida Chief Judge Belvin Perry Jr. astutely ordered both sides to refrain from disparaging remarks throughout the contentious proceedings. But despite the order and public scrutiny, the lawyers abandoned their professional duty.

During the defense’s closing statements, attorney Jose Baez delivered his final remarks to the jury before they decided his client’s fate. As Baez spoke, prosecutor Jeff Ashton was seen smiling and laughing. Mr. Baez lashed back at “this laughing guy over here,” Mr. Ashton objected, and Judge Perry eventually reprimanded both sides.

It was just one more delay in the Casey Anthony trial happening just days after Judge Perry sentenced one spectator to jail time, fines and court costs for “flipping a bird” at an attorney.

Encouraging & Enforcing Legal Ethics & Civility 


The California State Bar set ethical standards in writing in 2007 with California Attorney Guidelines of Civility and Professionalism. Though guidelines are not laws and are non-binding, attorneys who act in violation of the guidelines may find themselves subject to liability:

Leko v. Cornerstone Bldg. Inspection Service (2001): Attorneys who fail to confer with opposing counsel to resolve discovery issues may be fined, as was one of the attorneys in this case.

When opposing counsel failed to calendar a deposition and then tried twice to reschedule, the fined attorney responded with an insulting letter and then moved to compel depositions. The court fined this attorney for disregarding an obligation to informally resolve the matter; though it cited the insulting letter as relevant to the Court’s decision.

In the Matter of an Anonymous Member of the South Carolina Bar (2011): The U.S. Supreme Court got involved here, though only with a letter of caution. The Hearing Panel decided an attorney could be disciplined for activities that “pollute the administration of justice” or “bring the legal profession into disrepute.”

Perhaps the lines in this e-mail from the respondent, sent to opposing counsel in a family law matter, triggered the decision:

“I have a client who is a drug dealer on . . . Street down town [sic]. He informed me that your daughter, [redacted] was detained for buying cocaine and heroine [sic]. She is, or was, a teenager, right? This happened at night in a known high crime/drug area, where alos [sic] many shootings take place. Lucky for her and the two other teens, they weren’t charged. Does this make you and [redacted] bad parents? This incident is far worse than the allegations your client is making. I just thought it was ironic….”

Respondent tried to explain, pointing to “daily obnoxious, condescending, and harassing e-mails, faxes and hand-delivered letters” from opposing counsel.

The Lessons From Uncivil Discourse


So what have we learned from the Casey Anthony trial, Leko, and Anonymous? Whether handling matters in public or in private, attorneys who fail to act professionally risk facing real consequences.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Thursday
Jul142011

Carmageddon To Do List: Trust and Estate Planning

 

by Robert A. Hull

 

Of all the things your Carmageddon To Do list should include, trust and estate planning should be ranking right after:

#1. Avoid driving in Los Angeles unnecessarily this weekend like the city’s infested with bubonic plague (though, I vaguely remember that getting around town during the 1984 Olympics wasn’t so bad – here’s to hoping).

Plague or not, many businesses along the 405 corridor are encouraging visitors by offering discounts and other incentives to lure foolish drivers to their doors. Don’t take the bait. Instead, stay home, relax with your family, and plan for the future. When was the last time you did that?

I know, trust and estate planning is a chore, like dead-heading the geraniums or re-caulking the bathtub. But if you’re not going to plan for your future and that of your loved ones this weekend, when WILL you take the time for it?

That being said, here are some estate planning points to ponder while you’re doing other things around the house:

 

Is it better to have a will, a trust, or both?

 

Best to view a will and a trust as a unified whole. With a will, you can decide how to distribute all of your property upon your death and name an executor to do so. However, without a funded trust, your estate will be “probated” – i.e., subject to Court-supervised administration (which can be, to the uninitiated – like re-caulking geraniums and dead-heading bathtubs – all while paying for the privilege in time and money).

With a trust, you have even more flexibility to distribute your property. However, if enough of your assets are not transferred into your trust, you can end up, again, in probate.

A trust can be set up with your spouse or partner, and like a will, you get to name someone to administer the trust (the “Trustee”), who will very likely be your spouse or partner.

Again, you must fund your trust before your demise, so that your loved ones can avoid -- da, da, dum -- probate.

 

Make it Easy for Your Executor or Trustee

 

Don’t hide your assets unless you’re committing an act of revenge.

If you actually like your Executor or Trustee and want to make it easier for him or her, make a list of all of the assets you’re distributing and make sure s/he has a copy, along with your accountant or attorney (or at least one of the above).

Upon your death, your trustee or executor must maintain records regarding any transactions related to your estate, i.e. payments from the estate for your funeral expenses, interests and gains on your accounts, fund transfers between accounts and more. S/he has a fiduciary duty to the beneficiaries of your estate to administer the assets according to the terms of the operative will/trust, and may be liable to beneficiaries for failing to do so.

The executors and/or trustees will have to give notice to your beneficiaries and heirs . . . in some cases, along with regular accounting statements. And courts may enforce notice and reporting, even for trusts outside of the court’s supervision, or not in probate.

 

Taxing Questions

 

Currently, California does not have an inheritance tax like some other states, and generally speaking, there is no federal estate tax due upon the death of the first spouse. Currently, there are no federal estate taxes for assets worth under $5 million dollars (and, a surviving spouse may use the deceased spouse’s unused portion of his or her $5 million exemption).

You may gift up to $5 million dollars, tax free. So, if you’re thinking about gifting property or funds to a particular someone…this may be the very time to do it because the law is set to reduce the estate/gift tax exemptions to $1 million dollars in 2013, absent further legislative action. Remember, though, that gifting now will reduce your estate tax exemption to the extent that you use your gift tax exemption…

 

Trust and Estate Planning Accountability

If you’d like more information, read my colleague’s, Michael Hackman’s blog, California Trust Attorney – Three Things You Should Know About a Trust.” 

Stay safe this Carmageddon weekend, steer-clear of driving and start a little estate planning for the family… 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Thursday
Jun302011

California Employment Law Tips: Prepping for a Labor Audit

Lawyer for EmployersEmployment Defense Attorney Los Angeles

 

 

 

by Sue M. Bendavid
818.907.3220

Employer Lawyer Los Angeles Google+

 

 

When it comes to California employment law, I always tell my clients: The best employer defense is prevention.

That means that as an employer, you should be prepared for everything – including a potential visit from the U.S. Department of Labor, or the California Labor Commissioner. (Read my previous blog, California Labor Laws – Ready for a Labor Commissioner Visit? for more information regarding what usually happens when you do get such a visit.)

But if, as a California employer, you want to stay one step ahead of the Commissioner and potential employee claims, there are some things you can do to prevent penalties or litigation.

Best Employer Defense –10 Tips from a Los Angeles Employment Lawyer

 

Prevention begins with good employee policies. Though a wage and hour audit can cover a whole host of topics, the typical situation focuses on overtime, exempt/non-exempt, meal and rest period rules and accurate recordkeeping and documents. See if you can answer “yes” to all of these questions, to see if you will pass a wage and hour audit:

1. Overtime
Are you paying the correct overtime premiums for hours worked by non exempt employees in excess of eight in the day, and 40 in the workweek?

2. Exempt & Non-Exempt Employees
Have you correctly characterized employees as “exempt” (not entitled to overtime pay) rather than “non-exempt” (entitled to overtime)?

3. Independent Contractors
Have you correctly identified which workers are company employees and which are independent contractors?

4. Meal Periods
Do your employees clock in and out and take a minimum of 30 minutes of duty-free meal periods after no more than five hours of work?

5. Rest Periods
Do you provide your employees with a 10 minute rest break in the middle of each four hour work period?

6. Off the Clock Work
Do you prohibit your employees from working “off the clock”?

7. Correct Wage Statements
Do you provide itemized wage statements with all required data, and do they correctly reflect pay rates and hours worked?

8. Rounding Policies
If you round off an employee’s time worked, do you comply with the law and pay the employee accurately?

9. Time Clock Corrections
When you make changes to time records, do you ask employees to verify the information is accurate and to initial the corrections?

10. Child Labor
Do you have the appropriate permits needed to employ minor workers?

If you answered “no” to any of the above California employment law questions, you should re-evaluate your company’s wage and hour policies and procedures. Correcting mistakes now will save you stress and expense in the long run. In fact, you can be held liable for violations going back for several years – it’s best to make sure you have everything in order now.

As a Los Angeles employment lawyer, I know most employers get into trouble because they simply make administrative mistakes, or don’t have good wage and hour employee policies and practices in effect. As I said, the best employer defense is not offense, but prevention.

Employment Defense Attorney Sue M. Bendavid is Chair of the California Employment Law Practice Group, who provides counsel and litigation services for business owners and supervisors throughout the state. Contact her via e-mail: sbendavid@lewitthackman.com

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Thursday
Jun232011

California Trust Attorney – Three Things You Should Know About a Trust

Tax Law Certified SpecialistState Bar Certified Specialist in Tax Law

 

by Michael Hackman
818.907.3279

 

 

 

 

What is a trust and how does it differ from a will? Before planning your California trust you should know three important things:  

1. A Trust Defined

 

A trust provides for the allocation of assets when you and/or you and your partner or spouse passes away. (Your California trust can be yours alone, or set up for both you and your significant other.)

By creating, and placing one’s assets in the trust (“funding” a trust), you ensure your assets are collected, managed and transferred according to your terms, without the hassle and expense of a probate process.

2. A Trust Administered

 

If you pass away with a California trust, you named a successor trustee to manage your assets upon your death. If you were married when you passed, your surviving spouse is generally the successor trustee.

If you create a trust with a spouse or partner, allocations are often made of certain assets into separate “sub-trusts,” which are managed or administered separately. Even if the survivor is the lifetime beneficiary, separate management of each sub-trust is required, as each sub-trust has its own rules for management and distribution. The subtrusts are often created for tax reasons.

Upon the first to die, title should be changed on assets to reflect the decedent’s death. A good trust attorney can best help you figure out which assets should be assigned to which sub-trusts.

3. Probate Avoided

 

For California trust assets to avoid probate, you should ensure your assets were actually transferred to the trust before you pass away. However, merely creating a trust won’t accomplish your goals and may saddle your family with years of expense during a probate process.

To avoid this, you should execute documents assigning your assets to the trust or re-title certain assets (e.g., transferring real property to the trust by deed). Have your trust attorney review your title to assets and the assignment document(s), to help you determine which assets to hold in trust.

Even if you have a valid trust, some assets may still be probated if not transferred to the California trust during your lifetime. But in California, a successor trustee may use a simple non-probate process to transfer some assets to the trust after the decedent’s death if the aggregate gross value of such otherwise probatable assets is under $100,000.

The state also permits courts to order that assets be added to trusts after death under certain circumstances. See your California trust attorney for more information.

California Trust, Will and Probate

Trust administration can be a lengthy process, depending on the terms of the trust. Many plans provide periodic distributions to your children or other beneficiaries until your beneficiaries reach certain ages (wills, of course, can also establish similar trusts for beneficiaries).

For more information about wills and probate, please see my colleague, Robert Hull’s blog “Will and Probate Explained – Why You Should be Prepared”.

Michael Hackman is a California trust attorney and a Certified Tax Specialist as specified by the State Bar of California’s Board of Legal Specializations program. Mr. Hackman Chairs our Tax and Estate Planning Practice Group and can be reached at 818.990.2120.

 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Jun102011

Will and Probate Explained – Why You Should be Prepared

 

by Robert A. Hull

Sound estate planning, the realm of the trust, will and probate generally keep property in the family, make sure debts are settled and don’t become burdens on your loved ones, and ensure your wishes for the distribution of your property – assuming such wishes are legal – are implemented according to your instructions.

Let’s start with wills.

If you pass away with a will, your property will be distributed according to its terms. Your will can leave your assets to a trust you created during your lifetime. In such a case, your will is called a “pour over” will because it “pours” assets not already in your trust, into your trust. Your will can also include a trust created in the will itself.

Your will also names an executor to administrate your “probate estate” (more on that in a minute). This executor organizes and distributes your assets per the terms you outlined in your will, and arranges payments of debts and taxes.

And, if you have minor children, your will should name a trusted guardian for them.

 

What is Probate?

 

Probate is the process by which the Court supervises and validates your executor’s management and distribution of assets, as well as payment of your debts. Probate generally takes a long time, sometimes several years.

If there are assets which are subject to the probate process, the executor must file papers to “open a probate” with the Court. The will and probate process is highly specialized and very time-sensitive (i.e., there are many hard and fast deadlines based on your date of death, the date certain documents were filed with the Court, etc.). Thus, we don’t recommend that your executor handle this process without the assistance of a knowledgeable trust and estate attorney.

Generally, state law sets the fees that an attorney assisting with a will and probate may charge (a certain percentage of the gross value of the assets probated). However, such fees, and the time and inconvenience of managing a probate, will inevitably be significantly greater than the fees necessary to draft a complete estate plan which can avoid the need for probate.

However, probate is necessary to lawfully settle your debts and assets only if you die with “probate assets”.

 

Your Assets – What Should be Covered in Your Will and Probate Planning?

 

Only certain assets do not require a probate process – they are called, logically, “non-probate assets”. Some examples include:

▪ Assets in Joint-Tenancy
▪ Assets held by Trusts
▪ IRAs
Life Insurance Proceeds
▪ Other assets with named beneficiaries

The administration of these assets are not governed by your will, but rather by the terms of the specific instrument. So even if you wrote a will, the executor may not need to open a probate, provided all of your assets are “non-probate” assets (or if you have less than $100,000 in probate assets). That’s good news for you and your beneficiaries.

 

No Will – What Happens Then?

 

If you pass away without a valid will, you die “intestate”. That is, the Probate Court will dispose of your property according to the California intestate beneficiary succession laws in place at the time of your death. If you are married, there are different schemes for community property and separate property.

If you don’t have a will, you don’t have an executor, so the Court will appoint a person nominated according to the statutory scheme (probably someone from your family) to act as your estate administrator. There is no authority to make transfers of your probate assets without the transferor being appointed executor, and an executor, with exceptions, cannot act without court approval.

Without a will, you can only hope that the people that you would have as beneficiaries and the amounts they would receive are consistent with the distributions provided for under the intestate succession laws.

A simple will and probate plan is a good first step toward the efficient management of your assets following your death. However, there is a much more powerful tool which, when used in conjunction with a will, can also have numerous tax benefits and help your estate avoid probate entirely.

Robert A. Hull is a Los Angeles trust and estate planning attorney at the Firm, and his practice includes business and corporate law. Contact Mr. Hull at 818.990.2120, or by e-mail: rhull@lewitthackman.com

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120