Wednesday, October 31, 2012

Hurricane Sandy can strike you twice!

A natural disaster can victimize you two times. Hurricane Sandy has already ripped through your life, tearing at your home and business. But the next steps of rebuilding your life and property can be just as difficult. You must  now negotiate the swirling storm that is your insurance claim process, and the repair and re-construction of your property.  All you want is what was lost.  But will you get it?

The construction industry has been re-energized by the devasation of the storm, and the prospect of billions of dollars in repairs. Will your insurance cover all necessary repairs? Will the contractor demand payments beyond what your insurance will pay? Or maybe you see a chance to upgrade your property but don't know how to expand the contract?

And is your contractor properly licensed by the Maryland Home Improvement Comission? Or, is your contractor often in court, defending against claims of faulty work? The good ones will be very busy, and difficult to schedule. The worst will be ready to take your deposit and then disappear quicker than a sudden change in the weather.

Let experienced counsel guide you through this second storm, and review your insurance policies, your repair contracts, and the performance of your contractors.We've been doing this work for over 25 years, for homeowners and contractors. Getting your lawyer involved, early, can save you the pain of this second storm.

Friday, October 26, 2012

Van Noteriety

Susan Elizabeth Van Note was admitted to the Missouri Bar Association in 1993, and the Kansas Bar Association the year after. She was an experienced estate planner whose website advocated the importance of estate planning. Ms. Van Note implored prospective clients that
[n]ow is the time to make the meaningful plans that will empower you to make a difference in the lives of your loved ones.
Ms. Van Note is currently being charged with the murder of her father, William Van Note, having used a forged power of attorney in order to pull the plug after he survived being shot---by Ms. Van Note. She is charged with murder by legal form.

A fairly succinct summary of the alleged crime is found here.

It’s not hard to see why this all is so interesting, though I’d make the argument this isn’t an ironic case. Irony, in its strict definition, requires not merely a discrepancy between the overt and the covert, but in fact a contradiction. Liz Van Note was an estate planner. It isn’t ironic that she used a forged estate planning document as a murder weapon anymore than it would be ironic for a dentist to use uncomfortable orthodontic equipment to keep their kids quiet at night. It is a perverse and a gross misuse of her legal position, a violation of her responsibilities, yes, but also strangely appropriate. She, like the hypothetical dentist, used the tools at hand.
Liz Van Note isn’t guilty of wholly contradicting the principle theme of her profession, but rather taking those principles to a horrifying extreme. When Liz Van Note plans her estates, she plans the hell out of them.


Wednesday, October 24, 2012

A false deed will not go unpunished.

Recording an altered deed will send you to the slammer. On August 20, 2012, the Maryland Court of Appeals reinstated the Circuit Court criminal conviction of Mr. Neger, who had altered the identity of the grantee in a deed. Click here to read Judge Barbera's decision.

Maryland law says it just isn't kosher to counterfeit any aspect of a deed "with intent to defraud another." Judge Gale Rasin, of the Circuit Court for Baltimore City convicted Mr. Neger under the statute, finding that his alteration of a deed to substitute himself as the grantee (the person receiving title) was "a fraud on the system of recording deeds."

Mr. Neger argued his good faith belief that he was the true owner of the property negated the crime. He took his argument to the Maryland Court of Special Appeals, where the conviction was reversed. The intermediate appellate court held that generally throwing a false deed into the land records was not a fraud on any particular person, and thus did not satisfy the statute's admonition against defrauding "another."  The Specials held that "another" necessarily referenced a specific person, and not the greater mass of folks that rely on the accuracy of the land records system, such as you and me.

The highest appellate court, Maryland's Court of Appeals, granted special permission for an additional appeal of the Specials' decision (given the fancy name "writ of certiorari"). The conviction was reinstated.

Judge Barbera wrote that the "intent to defraud another" exists where it is directed at any persons who rely on the recording system.  It is not limited to a particular person in a particular transaction. In this case, Mr. Neger's good faith belief that he owned the entire interest in the real property did not negate the intent to defraud. He knew others would rely on the recorded item as a true statement of ownership, and that his name appeared as the grantee only because of his alteration.

So, what's the penalty?  Well, aside from the weight of having a conviction for fraud follow you around, the on-line court docket shows that Mr. Neger received a two year sentence, with all but one day suspended, and two years probation.

Wednesday, October 17, 2012

Facebook needs a "probable cause" button.

Your Facebook privacy settings don't block access by the U.S. Government. Any one of your Facebook "friends" can be pressured into exposing your messages, wall posts and photos. Once you give "friends" permission, they are free to give anyone else permission to gaze into your life through their account. Look what's happening to Mr. Meregildo, in New York.

Uncle Sam could not get direct access to Mr. Meregildo's Facebook account, and it lacked the probable cause to obtain a search warrant.  So, the Government made a real "friend" of one of Mr. Meregildo's Facebook "friends. Uncle Sam's new buddy gave access to Defendant's page. This allowed the government to circumvent privacy settings of the Defendant.The U.S. Government then applied for a search warrant seeking direct access to Mr. Meregildo's Facebook account.

Mr. Meregildo's lawyer attacked the Government's method of developing probable cause, and moved to supress.Judge William H. Pauley, III, a President Clinton appointee, gave the Defendant's rights a good 'ole Tanya Harding whack across the knees in his August 10, 2012 opinion, captioned as United States v. Meregildo.

Sharing with "friends" gave the Government access needed to see "...posted messages regarding prior acts of violence, threatened new violence to rival gang members..."  It was access to the Defendant's Facebook page that "formed the core of the Government's evidence of probable cause supporting it's application for a search warrant."

Judge Pauley held that when privacy settings restrict postings and photos to "friends, " the Government may access your profile through access of any cooperating witness that is on your "friends" list.  This does not violate the Fourth Amendment to the U.S. Constitution. It's like a phone call, where one of the parties agrees to let the Government record the call. So think of all your Facebook "friends" as if they are wearing a wire!

According to this judge, we have no reasonable expectation that our restricted profile information will be kept private, in turn, by our "friends."  Our "friends" are free to cooperate with the Government, and to disclose information necessary to convict us of crimes.

Instead of a "poke" button, perhaps Facebook could add a "probable cause" button for our "friends" to push when cooperating with the authorities to send you to prison.

Friday, October 12, 2012

Do-it-yourself law means do-it-again.

Consumer Reports confirms that lawyers do it better. There is a place for do-it-yourself document drafting for the most basic transactions, like the sale of your motorcycle or a  simple power of attorney.  And just about any document you buy on-line will "look" official enough. But will it do what you intend?

When you hire counsel, it's not the document you are buying- it's the advice and experience. Whether a document is complete, serves your personal or business goals, and contains important provisions tailored to your situation, is the lawyer's particular talent.

Like a trained carpenter, your lawer can hit the nail on the head in fewer strokes, with less effort, and he will drive it deeper.

Over the last six months, I have interviewed several potential clients seeking advice on how to fix mistakes created in their DIY documents. And in every instance, the cost of the fix far exceeds the cost they would have incurred, if they had only visited me first!

Call and let us schedule your visit.


Thursday, October 11, 2012

Linkedin lockout loss for employee.

Your boss can sever your Linkedin connections, and make them his own. Are you reading this at work?  Perhaps you just checked your Linkedin account for messages, invitations and business opportunities? And surely you keep in touch with social friends, some family and old school buds on Linkedin, too? Well, quit your job or get fired, and you may just lose access to that account.

Linda Eagle lost access to her account for over 20 weeks, and she was angry enough to sue her employer for the lost opportunities to "connect," and network. She figured it was worth at least $100,000 in damages.

The judge did not agree.

On October 4, 2012, Judge Ronald Buckwalter, of the U.S. District Court for the Eastern District of Pennsylvania, issued a memorandum opinion granting summary judgment against Ms. Eagle. The court found her damage claim to be speculative.  After all, how do we quantify the value of our vast Linkedin networks? 

Personally, it's mostly been worth a few Orioles game tickets and pleasant lunches.  How much time did Ms. Eagle spend on the site, I wonder, to make it worth $100,000? And with whom did she connect, Mr. Trump?

But it's not the tenuous nature of her lawsuit that captured my attention--and it is pretty close to frivolous, to me--it's the statement by the court about the employer's practices.  Buried in the opinion is the rather bland recitation that it was corporate policy to encourage individual employees to create on-line accounts, but to then take over the account upon the employee's separation.

So, as you check in on Linkedin and other websites from your office chair, ask your self whether it is truly your account, or your employers? Is it in your policy manual? Has your employer required disclosure of your passwords?  Who owns the content of your profile, anyway?

Food for thought.

You can find my Linkedin profile, here. Let's do lunch.

Tuesday, October 2, 2012

Facebook tagging leads police to suspects in home invasion party.

A Florida family on vacation had no clue their home was invaded by friends of their teen children, and used for a party while they were away. A Charlotte news outlet reports that only after Dad saw Facebook videos did he understand that his home had been converted to Party Central in his absence. The intruders had cleaned up, and left no evidence of the intrusion--except for photos posted to Facebook.

But this is more than another Facebook related story about "teens-have-no-judgment-and-do-dumb-things."  The most important part of the story is that "[o]fficers have a list of suspects, thanks to photo tagging..."
Facebook use is not anonymous.  When you log on and post, you must imagine that you are standing in the park, at noon, wearing an embarrasingly tight bathing suit as everyone in your hometown walks past, including the Chief of Police.  It is a source of information about you, your life, your contacts, where you've been, and what you've done---to others, and with others---and possibly in violation of the law.
Your content is all subject to use in the criminal courts, in Maryland and abroad. You can even be served through your Facebook account!

But there is another facet of this story that is only suggested by the text: Dad had access to the kids' Facebook pages. The story suggests that he saw the video posted on someone's page, other than his own kid's, and that alerted him to the crime. Good for him! Frankly, if your kids are using social media, then you must know enough to monitor your kids on social media.

And there is a darker aspect of Facebook posting.  The Dallas Morning News reported that a woman upset about the court testimony of an undercover police officer against her buddy, "outed" the officer through his Facebook posting on his (the cop's) relative's Facebook page. Her friend then printed up fliers, to be posted around town, identifying the officer. The article points out that even police departments are having a tough time articulating Facebook and social media policies, even for their undercover folk.