Welcome back to Law Tips.  I’m very pleased to continue our “Your Law Practice Online” series with Cynthia Sharp, The Sharper Lawyer.  If you missed last week’s website pointers, you can find them by paging down when you reach the end of this blog. For now, let’s hear what Cynthia has to offer as to your communication skills and her update on the status of social media in the law practice.

Are you communicating professionally?

Many attorneys shy away from Social Media, exclaiming “I don’t have time for Facebook. I didn’t talk to those people when I was in high school anyway.” or “I don’t understand the big deal about Twitter. Why do I need to know what my cousin’s son ate for breakfast? What’s a Tweet anyway?”

Those attorneys are missing a huge opportunity!!! The effectiveness of both client development and retention is dependent upon the mastery of solid networking and communication skills – online and otherwise.

While the use of social media introduces unique opportunities to the legal profession, it simultaneously opens the door to new, unexplored and most likely unexpected ethical issues. After all, ANY online post that an attorney makes may be a form of communication and/or advertising governed by the ethics rules in most jurisdictions.

Several instances of the misuse of social media by attorneys are described in John Schwartz’ article “Legal Battle: Online Attitude vs. Rules of the Bar“, N.Y Times, Sept. 12, 2009. Sean Conway, a Florida attorney received a reprimand and was fined by the Florida Bar after he stated in his blog that a particular judge was an “Evil, Unfair Witch”.

Attorney Steven Belcher – Hired as a “temp” by a law firm with respect to a wrongful death matter. Having been brought in early on, he took pictures of the obese corpse and emailed them to at least one friend with reportedly vulgar commentary. Had he not sent it through the law firm email, he might not have been caught. The law firm monitored employee’s emails and immediately turned him in. Sixty day suspension.

Social Media Use in the Legal Profession:

Each year the ABA Legal Technology Resource Center conducts a survey of ABA attorneys in private practice about the use of technology in their firms. According to survey results released in August of 2010, the percentage of attorneys who maintain a presence in an online community was reported as follows:

• 15% 2008
• 43% 2009
• 56% 2010

That includes 127,500 general counsel. A search of LinkedIn reveals 12,086 law firms with a profile page, including most major U.S. firms. Potential clients use LinkedIn too. There are at least 200 million members on LinkedIn and every second, 2 new members join. 100% of the Fortune 500 companies have executives on LinkedIn. Twitter has entered the mainstream as well, with 500 million users and growing. According to the 2012 Corporate Counsel New Media Engagement Survey conducted by ALM Legal Intelligence, 55% of those responding say a law firm’s blog can influence hiring decisions.

Social media is not only a powerful marketing tool but is gaining widespread use as a litigation research tool for those who wish to leave no stone unturned. It also presents a strong and burgeoning practice building opportunity. Are you going to be among those growing numbers or are you going to continue to stick your head in the sand?

Thank you again to Cynthia Sharp for providing these social media insights. If you are looking for additional training in the challenges of online legal marketing, Cynthia Sharp’s CLE session introduces attendees to the basics of Web 2.0 with the objective of taking the mystery out of Facebook, LinkedIn, Twitter, Blogging and more. For details on Cynthia Sharp’s Presentation:” Click Here.

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About our Law Tips faculty contributor:
Cynthia Sharp, Esquire, The Sharper Lawyer
As a practicing attorney, Cynthia spent close to 30 years building a successful law film. At the pinnacle of her career, she sold her interest in the practice and founded The Sharper Lawyer, an accredited CLE Provider and Business Coaching entity. Through her courses, she shares business acumen, practice building tools and office management techniques that have withstood the test of time. Her upcoming book The Guide to Attaining Financial Security for Lawyers is scheduled to be published by the ABA Solo, Small Firm and General Practice Division in the Fall of 2013.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

We appreciate you reading Law Tips.  If you would like to receive this weekly blog through a feed, click on the RSS link at the top of this page. Also, look for blog updates on Facebook and Twitter.  Your comments are welcome as Nancy continues to sift through the treasure trove of knowledge of our expert faculty to share with you on Law Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

I am excited to have Cynthia Sharp, The Sharper Lawyer, as a contributor for this Law Tips series on legal marketing and social media. She shares her extensive background as a business coach for lawyers. Later, I’ll provide you with a link to the CLE program wherein she provides a comprehensive, interesting look inside the  “Ethics of Legal Marketing & Law Practice in a Social Media Environment.” 

Cynthia’s challenge quoted above is for every legal professional today.  Her expertise affords a wide range of counsel on the current legal marketing atmosphere. Let’s begin our series with her review of the issues that might develop for any law firm’s website.

Law Firm Website Rules:

While most law firms have developed websites, many have not focused on potential ethical issues that may be lurking. Make sure that ALL information is current and comports with the Rules of Professional Conduct (RPC). Many don’t consider that a visitor to the website may believe that an attorney-client relationship has been created through inquiries he or she posts on the site.

Formal Opinion 10-457 (see link below) was issued by the American Bar Association to provide formal guidance on lawyers’ use of websites. The opinion advises that lawyers are prohibited from including misleading information on websites, must be mindful of the expectations created by the website, and are required to carefully manage inquiries invited through the website.

In addition, websites that invite inquiries may create a prospective client-lawyer relationship under Rule 1.18 (protecting the confidentiality of the prospective attorney/client relationship). Lawyers who respond to website-initiated inquiries about legal services should consider the possibility that Rule 1.18 may apply. In addition, any limitations, conditions, or disclaimers of lawyer obligations will be effective only if reasonably understandable, properly placed on the site, and not misleading.

Recent Developments:

Ty Hyderally took on the task of restructuring the website of his 14-attorney law firm in 2005. His cousin who volunteered his website design services included the seal of the New Jersey Board of Attorney Certification on every page of the site. After two years, the emblem came to the attention of the Committee on Attorney Advertising. The unfortunate attorney was charged by the district ethics committee with violating RPC 8.4 (c) relating to conduct involving dishonesty, fraud, deceit or misrepresentation and Court Rule 1:39-6(b), involving the improper use of the emblem for a certified civil trial attorney.

While Hyderally testified before the Disciplinary Review Board that he had not noticed the seal although he had looked at the firm’s website, the ethics committee recommended a reprimand finding that even an unintentional use of the seal violates the RPC and rule because of his failure to review and monitor the content of the website. The ethics complaint was dismissed by the DRB based on the finding of a lack of clear and convincing evidence that Hyderally knowingly committed the ethics violations.

NJ CAA Opinion 31 prohibits the use of a judges picture on a law firm’s website “it is likely to create an unjustified expectation.” RPC 7.1 (a)(2).

On August 5, 2010, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 10-457- Lawyer Websites. It contains an excellent discussion of issues that must be considered by all law firms with websites (which should include all practitioners).

Law firm websites definitely require close monitoring. Have you reviewed and revamped yours lately? I hope these reminders from Ms. Sharp were helpful in avoiding some online law practice issues.

If you need to review the specific opinion and rules referenced above, you will find background at these websites:

Announcement from ABA Now on Formal Opinion 10-457

ABA Professional Responsibility Committee

Are you aware of the possible benefits of using social media? Cynthia Sharp’s relevant advice on where social media is taking the legal profession is enlightening. We will continue our series next week with her insights on the huge opportunities you might be missing in client development and retention.

Meanwhile, if you are looking for a comprehensive continuing legal education update, Ms Sharp’s session, “Ethics of Legal Marketing & Law Practice in a Social Media Environment” is available from ICLEF as a Video Replay near where you work or live by, Clicking Here.

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About our Law Tips Faculty Member:
Judge Martha Blood Wentworth received her law degree awarded cum laude (J.D. 1990) from Indiana University in Bloomington. Thereafter, she began her legal career as judicial law clerk to Judge Fisher at the Indiana Tax Court. Judge Wentworth was appointed by Governor Mitch Daniels to succeed the state’s first Tax Court judge, the Honorable Thomas G. Fisher, upon his retirement in December, 2010. For more than 12 years immediately prior to her appointment, she was a Director at Deloitte Tax LLP where she led Deloitte’s Indiana Multistate Tax Services. Prior to joining Deloitte, she practiced law with the Indianapolis firm Hall, Render, Killian, Heath & Lyman, PC.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

We appreciate you reading Law Tips.  If you would like to receive this weekly blog through a feed, click on the RSS link at the top of this page. Also, look for blog updates on Facebook and Twitter.  Your comments are welcome as Nancy continues to sift through the treasure trove of knowledge of our expert faculty to share with you on Law Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

]]> http://iclef.org/2013/05/law-tips-your-law-practice-online-efficiently-ethically-part-1/feed/ 0 http://iclef.org/2013/04/law-tips-presenting-persuasively/ http://iclef.org/2013/04/law-tips-presenting-persuasively/#comments Tue, 30 Apr 2013 10:14:52 +0000 kevin-vonkamecke http://iclef.org/?p=5356 In the courtroom and in life in general…being persuasive serves us well. And we could all use some brushing up on our methods from time to time.  Fortunately, Judge Martha Wentworth of the Indiana Tax Court has agreed to provide her illuminating perspectives on being persuasive for our Law Tips readers.

Judge Wentworth gets straight to the point by offering two strong tenants for success as an advocate in the courtroom, followed by specific ways to go about accomplishing these goals:

• Give the Judge tools to find in your clients favor.
• Present your case in a persuasive manner.

PROVIDE PERSUASIVE TOOLS

1. Citations to Law  e.g. Tax Court precedent; binding Supreme Court authority; statutes; authority from other jurisdictions with explanation why it applies.

2. Citations to the Record

3. Reasoned Analysis

• Do not say “I believe” or “I think.”
• Do not use hyperbolic adjectives/adverbs.
• Do not be conclusory (fail to link result to reasons).
• Do walk the Court through every element of your analysis. (This should be easy because you should have already done this at the Indiana Board or the Dept of Local Government Finance!)

PRESENT PERSUASIVELY

1.Written & Oral argument should be succinct and organized

• Do use headings to organize.
• Do not write in a James Joycean literary style.
• Do not read from your brief.
• Do not ramble!

2. Own Your Argument

• Know your case better than the Judge & opposing counsel.
• Defuse the weaknesses of your own case before opposing counsel does.
• Address the opposing party’s argument and explain why it fails.

3. Welcome Questions from the Bench

• Do not jump the gun: Let the Judge ask the entire question before answering.
• Do answer the question that is asked.
• Questions reveal whether the Judge follows your reasoning and where the Judge disagrees.
• Answers are the best opportunity to persuade!

4. Demonstrate Civility

• Be polite.
• Show respect for opposing counsel & the Court.
• Express passion w/o inflammatory rhetoric, hyperbole, or extreme adjectives/adverbs.
• Do not launch personal attacks.
• Do not play the “blame game:” Own your own mistakes.

5. Be Genuine

• Present the argument that you have come to believe in.
• A disingenuous argument is transparent.

Are you clipping these judicial pointers to your desktop for reference as you prepare your next persuasive presentation? Couldn’t we use a few of these tips in our family situations as well?

During her “View from the Tax Court” presentation at our 13^th Annual Property Tax Institute, Judge Wentworth expands on her valuable advice for accomplishing these objectives. You may want to take advantage of that instruction, as well as, the comprehensive CLE presented by our additional faculty by attending a Video Replay Seminar near where you work or live or by viewing our Online / On Demand Seminar available anytime anywhere, Click Here.

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About our Law Tips Faculty Member:
Judge Martha Blood Wentworth received her law degree awarded cum laude (J.D. 1990) from Indiana University in Bloomington. Thereafter, she began her legal career as judicial law clerk to Judge Fisher at the Indiana Tax Court. Judge Wentworth was appointed by Governor Mitch Daniels to succeed the state’s first Tax Court judge, the Honorable Thomas G. Fisher, upon his retirement in December, 2010. For more than 12 years immediately prior to her appointment, she was a Director at Deloitte Tax LLP where she led Deloitte’s Indiana Multistate Tax Services. Prior to joining Deloitte, she practiced law with the Indianapolis firm Hall, Render, Killian, Heath & Lyman, PC.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

We appreciate you reading Law Tips.  If you would like to receive this weekly blog through a feed, click on the RSS link at the top of this page. Also, look for blog updates on Facebook and Twitter.  Your comments are welcome as Nancy continues to sift through the treasure trove of knowledge of our expert faculty to share with you on Law Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

In our Law Tips space today, I am happy to share expert advice in this area from William E. Wendling, Jr. of Campbell, Kyle and Proffitt in Carmel, Indiana. During our CLE on “Developing and Representing the Business Entity”  Bill provides these relevant tips for determining whether leasing is the right answer:

Business decisions should never be made on an impulse. When it comes to selecting a location for your business you need to be compulsive. Make a checklist before looking at commercial spaces of all the things that your business needs to succeed and take it with you.

If you have not already written a technical feasibility study, consider doing so. A technical feasibility study can help you think about, plan, and address all the needs of your business that need to be considered when leasing commercial business space.

If you are looking for commercial space that can serve as store-front operations or for walk-in business services, it is especially important to make note of all the following considerations:

Property Maintenance: Is the park maintained well? Run-down parks not only will make your business seem less established, but may also be an indication of an unresponsive landlord.

Visibility to Your Customers: Can the front of the unit be seen from a main road? If not, does the park have a street-visible sign advertising the businesses in the park? If you are considering retail or industrial space, or renting in a business park, does the owner advertise on behalf of tenants to draw in traffic?

Parking: Is there ample parking? Seeing an empty parking lot during after-hours does not tell you anything about parking. The best way to know is to visit the park several times on different days at different times. A parking lot filled to capacity during normal business hours may be a good indication of steady customer traffic, but it may also mean your customers will have trouble parking. Be sure to ask how many spaces you and your customers will be assigned.

Accessibility for the Handicapped: Is the building wheel-chair accessible? Are there reasonable and sufficient parking spaces assigned for handicapped drivers? It is the law in all fifty states that there be designated parking for persons with handicaps, and if there are no such accommodations, ask why not, and if they are planned.

If a landlord has to make updates to the building or other facilities to comply with public access laws, your landlord may be able to pass some of these renovation costs along to you!

Safety and Insurance Issues: In almost all commercial leasing situations, you will not be permitted to move in without general commercial liability insurance. If you sign a lease, and find you cannot get insurance, you may still be stuck paying for the lease.

Some of the safety and insurance-related considerations include: Is the area safe and secure, with ample nighttime lighting? Are lighting fixtures broken or in need of repairs? Is there an alarm service or on-site guard? Are police and fire departments nearby? Where is the nearest fire hydrant? Are their sprinklers and smoke/fire alarms in the building?

These concerns not only affect you and your customer’s personal safety, but can also affect your ability to get insurance, the amount of coverage you can get, and your insurance rates.

Advertising Restrictions: Are there any restrictions on signs such as size, color, lighting, or do you have to use a landlord’s vendor?

Restrictions on Business Use: Are there restrictions on the type of retail business you can operate, or how many customers you can have daily, or your hours/days of business operation?

Hopefully, these pointers for being thorough in leasing decisions provided you with helpful reminders or, perhaps, a red flag that saves you from a detrimental situation. There are, of course, the issues to be weighed on the buying side of this equation (which will have to be another day’s blog).

That brings us to Mr. Wendling’s overall advice on covering your bases: “The answer to lease or buy office space is not clear-cut. Your decision will hinge on financial, tax, and personal issues. Do not make this decision sparingly. Bring in your accountant and financial planner to guide you with the best advice.”

Welcome back to our Law Tips discussion on Ethics in Business Representation. Last week our Advanced Business Law ethics panel, Arend Abel, Geoff Grodner, Chuck Kidd and Pat Olmstead,  presented a situation where a lawyer could “…step on a legal land mine the lawyer placed years before.” That scenario involved Walter and Jennifer’s initial business setup. (Click here to review that discussion.) Now, let’s look at an additional scenario that addresses ethics and professional responsibility situations that a business lawyer may face in everyday practice. 

Scenario:

Walter and Jennifer have a falling-out. Walter has used his voting control to have the company pay him a large salary as President, and to pay Jennifer a much smaller salary. Together, the salaries eat up enough of the company’s revenue that there is little left for distributions to owners. The situation has become sufficiently acrimonious that Walter now wants Jennifer out of the company and he comes to you for help in accomplishing that goal. What issues must you consider, and can you help him push Jennifer out?

Issues to Consider:

Rule 1.13 again comes into play. (Noted in last week’s blog.) At a minimum, the clarification obligation under comment 10 arises, and you must make clear to Jennifer that you do not and cannot represent her.

In addition, your activities to help one officer against another officer may raise conflict of interest issues. See, e.g., Matter of Strutz, 652 N.E.2d 41 (Ind. 1995) (entering into business transactions with clients without making full disclosure, preparing complaint for president of corporate client to file against the client, and entering appearance for plaintiff in derivative action against client after being terminated from his position as general counsel to corporate client warranted 2-year suspension).

Also relevant is Matter of Shirley, 930 N.E.2d 1135 (Ind. 2010). In Shirley, an attorney received a 30-day suspension for his representation of a family-owned company and one of its officers. The lawyer helped the officer to wrest sole control of the corporation from the officer’s mother and six siblings. The lawyer then charged the company to defend it against subsequent suits by the siblings who were fired. The attorney belatedly agreed that his fees were unreasonable because he (1) did not obtain the consent of the necessary principals, and (2) the corporation paid for legal work that inured solely to his individual client’s benefit. The court found that a mitigating factor was Shirley’s repayment of fees to the corporation when the corporation sued Shirley.

Under the Rules of Professional Responsibility, another issue the lawyer faces is whether Walter’s desire to force Jennifer out has created a situation where Walter’s interest is adverse to the entity’s (assuming that the lawyer took appropriate steps to avoid the formation of a client or prospective client relationship with Jennifer). However, given the potential for claims for breach of fiduciary duty or corporate waste created by Walter’s salary decisions, the better course is probably for the lawyer to recommend that Walter retain his own counsel.

We are appreciative of the generous input by Mr. Abel, Mr. Grodner, Mr. Kidd and Mr. Olmstead. To gain further insights from their Ethics in Business Representation CLE presentation, along with the array of topics discussed in ICLEF’s Advanced Business Law On-Demand seminar, Click Here. This CLE is available online at your convenience.

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Thank you to our Law Tips Faculty Contributors:

• Charles M. Kidd, Deputy Executive Secretary, Indiana Supreme Court Disciplinary Commission, Indianapolis
• Geoffrey M. Grodner, Mallor Grodner LLP, Bloomington
• Arend J. Abel, Cohen & Malad, LLP, Indianapolis
• Patrick J. Olmstead, Jr., Center Grove Law Office, Greenwood

“Lawyers concerned about the ethics of business enterprise representations often think that, despite their best planning, there is some ethical or malpractice monster waiting in the future to trap them without warning. Although occasionally true, the more common situation is one where the lawyer (figuratively) steps on a legal land mine the lawyer placed years before.”

In the above synopsis our Advanced Business Law ethics panel, Geoffrey Grodner, Arend Abel, Charles Kidd, and Patrick Olmstead, Jr., set the stage for delving into ethics and professional responsibility situations that a business lawyer may face in everyday practice. Here on Law Tips they present you with a scenario and the possible issues. Make your own evaluation. What are the relevant professional responsibility considerations?  And how would you avoid potential pitfalls?

Scenario:
You represented Walter, an entrepreneur, about six months ago when he leased office space for a new business. At the time, he told you he was planning to develop a computer “role playing game.”  He shared with you that his plan was to come up with the concepts for the look, feel and user experience for the game, including characters, skills and abilities, levels, hazards and adversaries, and then to hire a programmer to write the code needed to implement those concepts. You listened politely, even encouragingly, but all you were hired to do at that time was negotiate a lease, and your engagement letter expressly stated as much.

Walter has now settled into his space and hired Jennifer to do computer programming. They have agreed that Walter will not pay her a salary, but that she will own a portion of the company, which they both believe will be highly profitable. Walter will retain voting control.  Walter asks you to form the company and set up the ownership as near to 50-50 as you can.

What ethical issues should you consider in this situation?
Examining this scenario, our panel presents the following issues to consider:
The key step that the attorney should take is to clarify who, specifically, the attorney does and does not represent. Absent some clarification, the attorney may be held to represent the entity under Ind. R. Prof. Con d. 1.13. See Jesse by Reinecke v. Danforth, 485 N.W.2d 63, 169 Wis.2d 229 (1992). In Jesse, the Wisconsin Supreme Court adopted a rule that a lawyer would be deemed to represent the entity “where (1) a person retains a lawyer for the purpose of organizing an entity and (2) the lawyer’s involvement with that person is directly related to that incorporation and (3) such entity is eventually incorporated, the entity rule applies retroactively such that the lawyer’s pre-incorporation involvement with the person is deemed to be representation of the entity, not the person.”  While Jesse did not address whether its “guideline” could be varied by the terms of the lawyer’s engagement, there is no apparent reason that it could not be. An attorney-client relationship is a consensual one, Douglas v. Monroe, 743 N.E.2d 1181, 1186 (Ind. Ct. App. 2001).

Due to the inevitable conflict among prospective constituents of an entity, when two or more persons come to a lawyer wanting to form a company, it may be advisable for the lawyer to individually represent one of them, and specifically advise the others that they may wish to seek independent counsel.

In fact, Comment 10 to Rule 1.13 provides that, where the lawyer does represent the entity, and conflicts among constituents arise “the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation.” Again, given the inherent legal conflict between co-owners, at the very least a clarification should be made and the co-owners should be given the opportunity to seek separate counsel.

Counsel should clarify who counsel represents at the earliest possible point, ideally before meeting with the two of them. Otherwise, the rule governing duties to prospective clients could become problematic. Rule 1.18(b) provides that a lawyer “shall not use or reveal information learned in the consultation” with a prospective client. In addition, Rule 1.18(b) provides that a lawyer who has learned information in a consultation with a prospective client “shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter” absent an informed consent. A person can become a prospective client simply by “discuss[ing] with a lawyer the possibility of forming a client- lawyer relationship with respect to a matter.”

Thus, the lawyer should clarify who he represents before “learning” information from both constituents, at least if the lawyer wants to avoid the default rule of representing the entity.

Are there other ethical concerns in this scenario? How have you effectively handled these issues? Do you have questions? Feel free to leave comments at the bottom of this post.

You might want to take advantage of the thorough discussion of Ethical Concerns in Business Representation with attorneys from around the state through ICLEF’s On-Demand CLE programming. The recent Advanced Business Law seminar, covering several topics in this arena, is available at your convenience. You schedule the time and place, Click Here.

John offers 5 Tips to Discourage Probate Litigation 

1. Get A Geriatric Assessment.

If your client has diminished capacity or is elderly, has large and complex assets, and wants to set up a high risk, controversial estate plan, get a clinical geriatric assessment with specific instruction to the clinician, preferably a neurologist, as to the legal standard for the capacity in question.

2. Select Witnesses Who Are Acquainted With The Testator/Settlor.

If the lawyer brings in witnesses who are not acquainted with the testator, or otherwise fails to establish capacity in the presence of the witnesses, a self proving clause will not hold up if the witnesses cannot lay a factual foundation for their opinions on soundness.

3. Gifting As A Means To Impeach The Plaintiff.

Under certain circumstances, it may be advisable to make gifts by check to potential contestors proximate to the Will/Trust execution. The negotiation of the check is a form of acknowledgment that the donor had capacity to make the gift.

4. Build A Will/Trust Wall.

The will contest statute contemplates a challenge to only the probated will or a will offered for probate.   A series of wills over time presents a significant barrier to successful litigation.

5. Always Probate The Will.

Even if no administration is required and particularly under the circumstances of a fully funded revocable trust, spreading the Will of record starts the will contest limitation period, even without notice.  Incorporation of the trust terms by reference in the Will can seal the deal for the defense.

I hope these pointers were helpful toward navigating successfully as you advise your probate clients.  Thanks again to John Cremer for generously sharing his expertise on Law Tips.

If you are interested “120 Hot Tips in Estate and Trust Practice” it is available as a Video Replay and as on Online / On Demand Seminar, Click Here.

]]> http://iclef.org/2013/04/law-tips-5-tips-to-discourage-probate-litigation/feed/ 0 http://iclef.org/2013/03/law-tips-whats-new-in-medicaid-for-the-disabled-law/ http://iclef.org/2013/03/law-tips-whats-new-in-medicaid-for-the-disabled-law/#comments Fri, 22 Mar 2013 10:02:25 +0000 kevin-vonkamecke http://iclef.org/?p=5053 “Most Medicaid disability applicants are very ill, frustrated, and overwhelmed by the application process. The assistance of an attorney who is knowledgeable in this area can be an invaluable resource for an applicant.”  This expert viewpoint of Jane Langdon Null, Indianapolis Elder Law attorney,  is expressed as a part of her ICLEF presentation on the Indiana Medicaid for the Disabled Law. Following is a portion of her instruction aimed at assisting practitioners in maintaining reliability in this area:

Recent Changes in the Indiana Medicaid for the Disabled Law

Until recently, Indiana made its own disability determinations and would not accept determination of disability from the Social Security Administration; however, Indiana procedures were recently changed so that an individual currently receiving disability benefits through the Social Security Administration will automatically meet the disability definition for Indiana Medicaid and will not need to submit medical documentation to the Medicaid Medical Review Team (MMRT).

Upon applying for Medicaid Disability, the Eligibility Specialist will verify through the State Data exchange with the Social Security Administration whether the applicant is currently receiving Supplemental Security Income (SSI) or Social Security Disability (SSDI). If the applicant alleges to be  receiving Social Security benefits on the basis of disability, but it is not verifiable through the data exchanges, the applicant can obtain proof of disability status from the Social Security Administration.  This verification must be directly issued by the SSA, must be current within 30 days, and must specify receipt of benefits on the basis of the individual’s disability. See ICES 2412.30.00.

An individual who has been determined by the SSA to not be disabled, will not meet the Medicaid definition of disability unless the condition has worsened since the SSA denial or the individual has had onset of a new condition not considered by the SSA. In this situation, medical information must be submitted to the MMRT for a decision.

This is a significant change in the Indiana Medicaid Disability arena. This new procedure will eliminate the need to gather additional medical records and physician’s statements when an individual has already gone through the arduous Social Security Disability process. However, I have concerns about how a Social Security Disability denial will negatively impact a potential Indiana Medicaid Disability recipient.

The Social Security Administration denies many disability applicants and the appeals process can be overwhelming. Presumably, many individuals shy away from going forward with the lengthy Social Security Disability appeals process even though they have a good chance of winning on appeal. With a recent Social Security denial on record they will be unable to apply for Medicaid Disability in Indiana unless they can show that since the previous denial from Social Security disability their condition has worsened or they have experienced the onset of a new medical condition.

I appreciate Ms. Null’s overview of the current status of Indiana Medicaid Disability law and hope you were able to glean a few pointers from this material.  She offered this concluding viewpoint that sums up the challenge faced by practitioners as you strive to be that invaluable resource for your clients. “The Indiana Medicaid program is very complex and constantly changing. To practice in this area requires a thorough knowledge of the rules and ICES provisions, as well as an understanding of the case processing system.”

If you wish to obtain CLE in this arena, including the full presentation by Ms. Null and other experts in the field, “Medicaid, SSI and VA Benefits” is currently available as a Video Replay or as an Online / On Demand Seminar, Click Here.

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Our Law Tips Faculty Member:
Ms. Jane Langdon Null currently has her own law practice on the north side of Indianapolis. In addition, she is “Of Counsel” with Fechtman Law Office. Her practice focuses on elder law issues, including guardianship, advance directives, Medicaid planning and application, wills and trusts, probate estate administration and nursing home residents’ rights. In addition to traditional elder law issues, she provides assistance with determining and locating the most appropriate type of care for her clients, ensuring quality care, and coordinating service providers.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers.  She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs.  When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

We appreciate you reading Law Tips.  If you would like to receive this weekly blog through a feed, click on the RSS link at the top of this page. Also, look for blog updates on Facebook  and Twitter.  Your comments are welcome as Nancy continues to sift through the treasure trove of knowledge of our expert faculty to share with you on Law Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Welcome back to Law Tips. We are in the midst of preparing an individual business owner for bankruptcy thanks to Samuel Hodson and Wendy Brewer, partners with Benesch, Friedlander, Coplan & Aronoff LLP, Indianapolis,

Later, I’ll share a link for the prior Hodson and Brewer commentary on topics such as the importance of being certain that business clients are not treated as consumer debtors in their personal bankruptcies and means testing updates. At the stopping point last week, Sam and Wendy pointed out that: “Returning or selling luxury consumer goods to reduce the consumer side of the ledger prior to filing may save business owners from means testing purgatory.”

Let’s continue this timely discussion of consumer versus business cases. 

The equation can also be massaged on the business side of the ledger. If a business client is a co-maker on a secured business loan, it may be in his interest to file a personal bankruptcy before the property is liquidated and the balance reduced. A debtor with a million dollar home mortgage and a million dollar business loan secured by business real estate could be a business debtor on the morning of the sheriffs sale of the business real estate and a consumer debtor immediately after the sale.

A debtor on the fence between consumer and business status may also benefit from allowing the business loan to incur some default interest, fees and charges before filing his personal bankruptcy. Most business lines of credit have harsh default interest rates. A few months of 18% interest on a million dollar line may make the difference in a debtor’s classification. Since the analysis focuses only on debt and ignores the existence of corresponding assets, the timing of the filing in relation to the purchasing and selling cycle of the business may be important.

For instance, filing just after a regularly scheduled delivery of inventory by a vendor whose obligations are guaranteed by the owner would cause the owner’s business debt to spike while having no impact on his or the company’s balance sheet.

One of the many criticisms of the Bankruptcy Abuse Prevention and Consumer Protection Act  (BAPCPA) is that it creates an incentive for business owners to increase their obligations prior to filing to avoid means testing. Although incurring new business debt to avoid consumer debtor classification benefits a debtor’s 11 U.S.C. § 707(b) analysis, other provisions of the Bankruptcy Code related to bad faith dismissal, denial of discharge and exemption of debt from discharge may be in play if a debtor is too aggressive in his planning.

These expert tips for fulfilling responsibilities to a business owner in bankruptcy are greatly appreciated. Many thanks to our Law Tips contributors for their participation in these two blogs. Should you wish to examine the consumer versus business case issues outlined in last week’s Law Tips, Click Here.

For Video Replays or the Online / On Demand seminar of ICLEF’s popular Annual Bankruptcy Institute that provides a complete examination of this area of law, Click Here.

Samuel D. Hodson, is a partner in Benesch Friedlander Coplan & Aronoff LLP, Indianapolis, Business Reorganization Practice Group. Mr. Hodson represents debtors, creditors, trustees, committees and receivers in proceedings under Chapters 7, 11, 12, and 13 of Bankruptcy Code, state and federal court commercial litigation, out-of-court workouts, and administrative collection matters with state and federal taxing authorities. Mr. Hodson also counsels business owners in wealth protection planning.

Following is a sampling of their expert insights on “Consumer Versus Business Cases:” 

Congress has recognized the critical importance of the bankruptcy safety net for those who form new businesses. One local bankruptcy judge has often commented that personal bankruptcy for owners of failed businesses makes capitalism possible.  Without the bankruptcy safety net, fewer small businesses would be attempted and fewer jobs would be created. Congress recognized the social good of the fresh start for business owners when it exempted business debtors from the harsh means testing provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act  (BAPCPA) and the bad faith requirements of 11 U.S.C. § 707(b ).

Debtors whose debts are primarily for business may obtain a Chapter 7 discharge even if their incomes are substantially higher than the expenses allowed under the means test in 11 U.S.C.

§ 707(b ). It is important to be certain that business clients are not treated as consumer debtors when planning their personal bankruptcies.

A debtor’s status as a business debtor is determined by whether his business debt exceeds his consumer debt. For differing approaches on how courts determine whether consumer debts exceed business debts, see In re Hlavin, 394 B.R. 441 (Banlu. S.D. O.H. 2008) (outlining the various approaches); In re Stewart, 175 F.3d 796, 808 (lOth Cir. 1999) (illustrating the majority approach focusing on the aggregate value of each type of debt); In re Bell, 65 B.R. 575, 577-78 (Bankr. B.D. Mich. 1986) (noting that where the relative dollar amounts of consumer versus non-consumer debts are close to equal, it will also consider the relative number of each kind of debt); In re Vianese, 192 B.R. 61, 68 (Banlu. N.D. N.Y. 1996) (looking at whether the amount of the consumer debt actually being discharged and not reaffirmed exceeds fifty percent of the debtor’s total liabilities).

Consumer debt is defined as debt incurred for personal, family or household purposes. 11 U.S.C. 101(8); see also In re Thongta, 401 B.R. 363, 366 (Bankr. E.D. Wis. 2009) (explaining difference between personal, consumer and business debts); In re Millikan, 2007 WL 6260855 (Banlu. S.D. Ind. Sept. 4, 2008) (explaining history of definition and use of “profit motive” test to determine nature of debt).

Given the popularity of McMansions by entrepreneurs over the last decade, home mortgages are likely to be a major concern for small business owners. The amount of the obligation, not the probable deficiency controls. A home with a $1,000,000 mortgage and $1,100,000 market value counts as $1,000,000 in the consumer column despite the equity. If its owner had $900,000 of debt from personal guarantees of business obligations, he would be considered a consumer debtor and would be subject to means testing under 11 U.S.C. § 707(b ).

In re Stewart, 175 F.3d at 808. This result can be avoided by sale of the home, deed in lieu of foreclosure, or payments to reduce the mortgage balance. For example, if the debtor owned a Porsche and a boat worth more than $100,000, the problem could be corrected by selling these assets and applying the proceeds to the mortgage balance. If the home is in foreclosure, it may be prudent to allow the sale to complete prior to filing so that the balance is reduced by the credit bid of the lender.

While homes are generally the most common problem on the consumer side of the ledger, business owners often have personal property encumbered to secure consumer loans which can create problems. The ratio can easily be skewed towards consumer by a few German cars. Returning or selling luxury consumer goods to reduce the consumer side of the ledger prior to filing may save business owners from means testing purgatory.

We’ll continue this Consumer versus Business Case analysis by our Law Tips contributors next week with their advice on how to look at this equation from the business side of the ledger.  Join us again!

For a thorough update in this area, take advantage of ICLEF’s Annual Bankruptcy Institute CLE seminar by clicking here.

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Thank you to Our Law Tips faculty contributors: 
Wendy Brewer, is a partner with Benesch Friedlander Coplan & Aronoff LLP, Indianapolis, where she is vice-chair of the firm’s Business Reorganization Practice Group. She primarily focuses her practice on the representation of creditors, debtors, trustees, and committees in bankruptcy cases and adversary proceedings and the representation of corporate and bank clients in commercial litigation.

Samuel Hodson, is a partner in Benesch Friedlander Coplan & Aronoff LLP, Indianapolis, Business Reorganization Practice Group. Mr. Hodson represents debtors, creditors, trustees, committees and receivers in proceedings under Chapters 7, 11, 12, and 13 of Bankruptcy Code, state and federal court commercial litigation, out-of-court workouts, and administrative collection matters with state and federal taxing authorities. Mr. Hodson also counsels business owners in wealth protection planning.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers.  She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs.  When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

We appreciate you reading Law Tips.  If you would like to receive this weekly blog through a feed, click on the RSS link at the top of this page. Also, look for blog updates on Facebook  and Twitter.  Your comments are welcome as Nancy continues to sift through the treasure trove of knowledge of our expert faculty to share with you on Law Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN