Tag Archive | "Professional"

How to Be Seriously Ethical and an Effective Lawyer – LIVE SEMINAR TOMORROW!

“This seminar greatly exceeded my expectations. It was presented in a thought-provoking way, with details on how to apply it in the future. This is probably the best seminar I have ever attended.”

“He did a great job. Made my once every three years exposure to ethics far more interesting than in the past.”

“Thanks. A great opportunity to focus my energies in the direction I want to go in.”

These are just a few comments made by prior attendees of Professor Gross Schaefer’s ethics and practice management seminar.

For this reason, we are proud to welcome back to ICLEF on June 19th Professor Arthur Gross Schaefer for another installment of his 6 CLE / 6 Ethics seminar How to be a Seriously Ethical & Effective Lawyer.

This seminar is designed to give you a refreshing look at ethics, your firm and yourself.  It will also give you four immediately useable tools for creating a renewed and ethical firm and self:

  • Better organize your practice and your life in an integrated and purposeful manner (whether in a law firm or corporate setting)
  • Develop common goals, greater consensus and cooperation in your  organization
  • Resolve complex conflicts and thorny issues quickly
  • Improve firm wellness

Our program can be attended live in-person or can be enjoyed via group or individual webcast.  So, take that first step toward enhancing you practice and yourself by joining us in June.

HOW TO BE A SERIOUSLY ETHICAL & AN EFFECTIVE LAWYER:
Finding Renewed Meaning in the Practice of Law

6 CLE / 6 ENational Speaker Series Featuring Prof. Author Gross Schaefer
Thursday, June 19, 2014   9:00 A.M. – 4:30 P.M.

LIVE IN-PERSON SEMINAR
ICLEF Conference Facility, Indianapolis

LIVE GROUP WEBCAST SEMINAR
Ice Miller LLP, Indianapolis

LIVE INDIVIDUAL WEBCAST
From your office or home computer or tablet

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Tips on Representing Attorneys In Fact

An increased reliance upon Durable Power of Attorney appointments as analternative to a guardianship has placed more people in a position to assist others as attorneys-in-fact. Such relationships can be of tremendous benefit to the principal, can help to maintain the principal’s independence, and can help and ease the transitional changes in an elderly person’s lifestyle.

Our Law Tips faculty participant, Nathan S. J. Williams, Shambaugh, Kast, Beck & Williams, LLP, Fort Wayne, provides CLE training on Representing Attorneys-In-Fact during the popular 120 Hot Tips in Probate, Guardianships,Trusts and Tax seminar. I am appreciative that Nathan is passing along to our readers some of his timely guidance:

1. Pay Attention to Ethical Issues.

Specifically, identify who your client is. This is a fundamental issue, and the lines can become blurry in certain circumstances. For instance, assume that you represented a client with respect to his or her estate planning, and have prepared a Durable Power of Attorney for him or her. If the agent appointed in that document comes to you for counsel, are they your client or is the principal?  It is not necessarily and not likely a conflict of interest to represent both the principal and agent. However, there are situations in which the issue may become relevant:

A. Attorney-client privilege. If a dispute develops between the agent and the principal- or, more likely, between the agent and the principal’s children or heirs – then it will be of benefit to the agent to be able to clearly identify that the attorney represents him or her.

B. Claim for the expense of defense. If an accounting is demanded of an attorney-in-fact, he or she has a claim under Indiana Code §30-5-6-4.5 to recover the cost of his or her legal counsel in defending the accounting. That claim is much easier to assert and process if the agent can clearly identify his or her attorney.

2. Document Everything

Record-keeping is one thing, and is addressed separately, below. This has more to do with documenting instructions and conversations than it does with documenting transactions.  One of the primary duties of an attorney-in-fact is to carry out the wishes and instructions of the principal. Those instructions are often informal and verbal, rather than in writing. Proof of those instructions in the event of a later demanded accounting or an action seeking to hold the attorney-in-fact liable for breaches of fiduciary duty may be difficult if not impossible (by operation, among other things, of the dead-man’s statute).

As such, it can be imperative for an attorney-in-fact to verify instructions by having them reduced to writing by the principal or by having an independent witness to the instructions. Such actions may seem awkward, but may be lifesavers later on.

One element of documentation that is an absolute must: any arrangements between the principal and agent that allow/direct the agent to be compensated for his or her actions as attorney-in-fact. Undocumented statements that “Mom wanted me to be paid for the work which I did” are not worth the paper they are not written on.

3. Avoid Commingling

This is a practical recommendation, but any transaction done on behalf of the principal should be conducted as a separate transaction. If the agent wants to buy the principal some groceries or a dinner, that’s fine. If the agent wants to be reimbursed by the principal for anything purchased for him or her, then the agent should have a separate transaction, with a separate, dated receipt that shows what was purchased for the principal.

4. Keep Good Records

Some people are compulsive record keepers. Others are not. For the client who is a bit more relaxed on record-keeping, strong recommendation should be made to work hard at maintaining clear and accurate records.  And organized records are much better than the proverbial shoe box (while the shoe box is better than nothing at all).

Some practical suggestions:

A. Conduct transactions on behalf of the principal by check. Cash transactions are too difficult to tie back together. Debit cards are also, and can provide too great a temptation.

B. Keep copies of bank statements. And the best bank statements are those which provide copies of the checks with them. If that is an additional charge for the account, it is likely well worth it.

5. Be an Open Book

Indiana Code §30-5-6-4 specifies who can request an accounting by the attorney-in-fact.  An argument can be made that the only people who can request an accounting from the attorney-in-fact during the principal’s lifetime are the principal and a guardian appointed for the principal.

A recommendation: don’t make that argument. If a child of the principal, or some legitimately interested party makes a request for information about transactions done on behalf of the principal, there is not much to be gained by the attorney-in-fact to decline to provide that information. Accountability is a hallmark of fiduciary relationships. Reluctance or refusal to account only engenders distrust and fosters disputes.

A well-drafted Durable Power of Attorney document can and should include specifics on the duty of an attorney-in-fact to account, and the means by which the agent can satisfy that duty. In the absence of such specifics, and particularly in situations which seem to be ripe for dispute, an attorney should counsel an attorney-in-fact client to be affirmative and proactive in rendering regular, complete and accurate information on the administration of matters for the principal.

In summary, Nathan Williams offers this counsel:  The attorney-in-fact acts as a fiduciary. As such, while the role is one that allows for the agent to provide great benefit to the principal, it is also fraught with liability.  Good counsel, at the outset, throughout, and at the conclusion of the attorney-in-fact’s role can be critical to optimizing the relationship and providing the greatest good for the greatest number.

The opportunity to attend the 120 Hot Tips in Probate, Guardianships, Trusts and Tax is coming up in the next few months in several locations around Indiana.  Click Here for more info.

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About our Law Tips faculty participant:
Nathan S.J. Williams practices law in Fort Wayne, Indiana, at Shambaugh, Kast, Beck & Williams, LLP. His areas of practice include estate and personal planning, estate and trust administration, guardianships, probate litigation, charities, business organizations, general litigation, and taxation.  He explains: “I came to work in these particular areas because I truly enjoy the role of attorney as a counselor, helping clients meet their goals and personal objectives. I often work with individuals or families where there is a special need or disability, putting to use my education and expenence.”

About our Law Tips blogger:
Nancy Hurley 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 are utilizing 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 and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Reviewing Google Scholar

What is Google Scholar? 1

Google Scholar is a free search engine of scholarly literature that allows you to search for articles, theses, books, abstracts and court opinions.

There has been much discussion, within the Indiana Legal Community, regarding the usefulness of Google Scholar as a legal research tool.  Below you will find a review from the University Of Texas School Of Law regarding the Strengths and Weaknesses of Google Scholar for Legal Research.  Whatever you end up thinking of Google Scholar as a Legal Research tool, please keep in mind, it’s FREE!  So, give it a try and see how it compares to what you are using now.  Click Here to start a search of Indiana Case Law and the United States 7th Circuit Court of Appeals using Google Scholar.

 

When to use Google Scholar:

Once one has reached the stage in the legal research process of searching for law reviews or if one is looking for a specific law review article, Google Scholar is probably the best place to start because it is free, fast, and easy to use. However, access to the full text of any given article depends on the licensing of the institution from which you are researching.

While there may be a cost to access these scholarly articles, case cite searching is free and seem to be very comprehensive to all 50 states Appellate and Supreme Courts plus all US Federal Courts including, US Supreme Court, US District Courts, US Bankruptcy Courts, Court of Claims, Court of Customs and Patent Appeals, Court of International Trade, Tax Court and Board of Tax Appeals.  You may select from one court or select all state & federal courts for your search.

 

General Searches

To start a general search click here (Google Scholar), select “Legal Documents”, select the “Courts to Search”, select your jurisdictions of interest, click “Done” and then type in your search terms. After your search is complete you may further refine your search by clicking on the “down arrow” at the top right of the screen and select “Advanced Search”. If you set up a free Gmail account you may also create automatic alert notifications as new cases are decided that include your search terms.

 

Advanced Searching

If you click the drop down arrow on the right side of the search box, you will see the advanced search options:

  • Author search to find a specific article or a body of articles written by one author
  • Publication search to find articles published in a particular law journal
  • Date search to return articles published within a particular date range
  • Additionally, the “cited by” feature that appears under an individual article results retrieves articles (found within Google Scholar) that have cited that particular article. This is another way to build upon your research, akin to KeyCiting or Shepardizing.

 

Strengths of Google Scholar:

  • Allows you to search for law review articles and case cites for free (unlike using subscription databases such as Lexis, Westlaw, or online indexes).
  • Does not require you to create a login and password to use the search engine
  • Many effective ways to tailor your search results, as discussed above—one of the most useful being the “Cited by” feature
  • Updated very frequently—for example, as of February 2011, it returns search results that include law review articles that were printed in December 2010, whereas those articles are not yet available on HeinOnline
  • Ability to set up e-mail alerts for searches that you run, which can be a great way to stay   updated on new developments in a field that you are researching

 

Weaknesses of Google Scholar:

  • May not give you free access to the full text of articles that appear in your search results, however case law search results are free.
  • If you study or work at an institution with a library that participates in Google’s Library Links program, you should be able to access the full text of articles in databases to which that library has licensed access. To check that your computer is configured correctly, go to the Google Scholar Settings page, and then click Library links. For example at Indiana University, if you do not already see “Indiana University” in the Library Links section, you should do a “Find Library” search for it.
  • Without being linked to a library however, Google Scholar only displays the first page of articles that are indexed from databases like Lexis or HeinOnline, and you are required to log into these other databases or find them elsewhere if you want to read the full-text.
  • Indiana Code is not included in the Google Scholar search results.  Free access to Indiana Code and United States Code searches may be found in online databases such as FindLaw.com or from Indiana Code searches only, through the In.gov website.
  • Case Cites found Google Scholar may lag as much as 3 to 6 weeks behind the pay services in currency.  However, for your initial legal research, you cannot beat the price. It is FREE!
  • Exact scope of Google Scholar’s database is undefined and exact means of indexing are unknown
  • There is no way of knowing whether the Google Scholar database has omitted important articles that would otherwise appear in your search results.
  • Google Scholar’s algorithm will work differently than the databases from which it is pulling content. Thus it is a good idea to search within individual databases directly to make sure you are getting all of the potentially relevant results. (This means, for example, searching HeinOnline after searching Google Scholar, even though Google Scholar has indexed HeinOnline’s holdings.)

 

While Google Scholar may not be the answer to all of your legal research needs, it is a great place to start your research.  ICLEF recommends that you take a moment to try it.  It’s FREE!

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1 Much of this narrative was taken from a University of Texas School of Law review of Google ScholarClick Here to read their review in its entirety.  The above UT article was modified to reflect Indiana specific issues.

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Additional Reviews of Google Scholar

 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN 

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Reputation is Worth Much More Than Money

Notes on Negotiation
Written by Marty LatzLatz Negotiation Institute

“I agreed to his requested discounts and his changes to the lease terms but he hasn’t signed yet. Then I got a call from another possible tenant – and I am pretty sure this one will pay our full rate without any discounts. What should I do from a negotiation standpoint?”

My answer? It sounds like you made a commitment to the first tenant and – while you should give him a short deadline to confirm – I would not recommend re-engaging with him even though your leverage has strengthened (your alternative tenant strengthens your leverage as he’s a better Plan B than you had before). Absent your commitment, I told him, you might have tried to get a bidding war going.

Why not re-engage?

1. Reputation

Your reputation is too important to risk. A commitment is a commitment. My Dad told me years ago – and I’m sure many of us have heard this repeatedly, “your word is your bond.” It’s true.

If you lose credibility, then nothing you say in this negotiation or in future negotiations with this party and everyone he knows and everyone they know (the power of social media) will be negatively impacted.

“Wait,” you might say, “there does not appear to be a legally binding agreement yet, nothing has been signed, and a significant amount of money may still be on the table. Don’t be naïve. No hard-nosed successful businessman would walk away from a better offer.”

Actually, I know a lot of hard-nosed successful businessmen who would sign up the first tenant and feel good about it. Short- and long-term, it’s the right thing to do.

Keep in mind this is different than a sophisticated transaction with teams of lawyers where everyone knows that no deal is done until everything is signed and significant unresolved issues remain after the price is agreed upon. Examples abound where public companies for sale have a bidding war, sign a letter of intent with the winning bidder, and the losing bidder comes back later with a sweetened bid that eventually wins the day.

2. Future relationship value

This also makes sense from a practical perspective. There is a significant value to your future relationship with your tenant, who presumably will be sending you a monthly rent check and likely will have many other interactions with you over the course of that lease – and/or renewals.

A little equity in the relationship here may go a long way toward helping you in your future negotiations with them.

Finally, it is true that many will simply go for more cash. In fact, a New York Times article recently detailed numerous instances in its residential real estate market recently where home sellers had deals, got a better offer, and started the bidding again. Did they make more money? Many did.

But at what cost? I wouldn’t want my name in that article as an example of a seller who went back on their word.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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