Arkansas Attorney Blog

Expungement and Sealing Criminal Records - The Arkansas Lawyer

David Horn — Wed, 23 May 2012 14:17:00 GMT

Getting your criminal record expunged or sealed can improve your chances in getting a job interview, however, there is a large public misconceptions as to what expungment actually means or how it works. The following are frequently asked questions concerning expungment.

Q. What does it mean to have a criminal record expunged?

A. When a criminal record is expunged, it does not mean the record is physically destroyed; it means that the record will be taken from the file and sequestered from the general public.

Q. If my record is expunged can it still be accessed?

A. Yes, but only by certain agencies who have special access to records such as the police, the government, and certain employers who have a duty to the public regarding their employees. The general public cannot access the records at all.

Q. Do I still need to get my record expunged if my case was dismissed, Nolle Prossed, or if I was found not guilty at trial?

A. Yes if you don’t want the general public to view those records. Just because your case was dismissed, nolle prossed, or even if you were acquitted doesn’t mean that the record will not be there. It will still be there and will be able to be accessed by anyone who wants to see it.

Q. How long do I have to wait to have my record expunged?

A. It varies on a case by case basis and how your case was ultimately disposed of. If you were acquitted or found not guilty you should be able to file for expungment as soon as the disposition of the case is complete which takes 2 to 6 weeks. If your case was nolle prossed or if you pleaded guilty or were found guilty you will have to wait for the probation period to run and will have to satisfy the terms of your probation. If your case was nolle prossed you usually have to wait one year.

Q. Can I expunge a felony?

A. Yes but the requirements are somewhat different and there are other rules that apply; not all felonies can be expunged. Generally if someone is a first offender and they plead under ACT 346 or Act 531 they can have the record sealed. These acts are very different and require the assistance of an attorney.

Q. How long does the process take?

A. This varies somewhat from one jurisdiction to the next but generally, once the proper documents are filed it should not take longer than 30 days.

Q. Is it expensive to have your record expunged?

A. The cost is minimal but may vary by case but generally speaking with few exceptions the fees should be between $300.00 to $500.00. It is far more costly in the long run to not take the step of having your record sealed. Its fairly easy and cheap overall and there is no reason why anyone with a criminal record shouldn’t do it.

Do I have to pay all I owe on my Manufactured Home in Bankruptcy?

Brad Nye — Thu, 12 Apr 2012 13:31:00 GMT

I often get asked this very question by clients when they first come into my office for a consultation about filing Bankruptcy in Arkansas. It doesn’t seem logical to most people to keep and continue paying for a manufactured home that they still owe $50,000 on but is now only work $20,000 under the best of circumstances. Leaks occur in the bathrooms, flooring begins to buckle or rot, the ceiling needs work and the value of the home itself is depreciating faster than repairs can be made. So, if you are in this situation, what are you to do?

The answer to this question depends widely on which chapter of Bankruptcy you are filing, how long you have been in your home, and how the financing was set up from the loan’s inception. In a Chapter 7 liquidation bankruptcy, your options are somewhat limited: You can reaffirm the debt on your manufactured home and keep making the payments; you can walk away from the home and surrender it to the creditor (there may be some implications here); or you can “redeem” the property by paying the creditor in full. Under Chapter 13 Bankruptcy, however, you have another option. Chapter 13 bankruptcy allows you to “cram down” the debt you owe on your manufactured home in some circumstances.

Under a Chapter 13 filing, if you have lived in your manufactured home for more than 910-days (roughly 2.5 years) and your mobile home is not cross-collateralized (you didn’t put your land up as security for repayment of the loan when you bought the house) then the law allows us to pay back the value of the house despite what you may still owe on it. So, from our quick example from above, you would receive the title to your home after you pay back the current value of $20,000 to the creditor. The rest of the $50,000 you owed ($30,000) now becomes an unsecured obligation (we call this “bifurcating” or “splitting” a claim) that can potentially be discharged along with your other unsecured obligations such as credit cards or medical bills. Obviously, it is easy to see what a huge potential savings of money a family could see using this technique.

Financial Matters in Divorce | Arkansas Family Lawyer

Anthony Johnson — Fri, 06 Apr 2012 13:14:00 GMT

By: David R. Horn

Q. What should I do to protect myself financially during a divorce?

A. Gather all of the financial information you are aware of so you can share that information with your attorney. Most of this information will be part of the discovery process. You will need to determine what property you own, when you acquired it, it’s value, and how it is titled. You should also know the physical whereabouts of all of your assets. If property is missing or you suspect that your spouse may have acquired property without your knowledge, be sure to share this information with your attorney.

Q. Should I close bank accounts?

A. This is a perfectly legitimate measure to protect yourself during a divorce, however, you must be prepared to account for the money withdrawn. If you cannot prove how the money was used it may delay settlement of your case and provoke your spouse to do the same.

Q. What should I do about property or money in a safe deposit box?

A. If the account is joint, conduct an inventory with a witness and document the contents. If you need to keep the contents safe until a restraining order can be obtained you can put the contents in another safe deposit box or another safe place. Again, you will need to conduct an inventory with a neutral third party witness and document the contents. A bank employee would serve this purpose better than someone you know.

Q. What will the Court do if I hide assets?

A. If either party takes an affirmative step to hide assets or knowingly fails to disclose assets you are committing fraud and could be held in contempt of court, even if it is discovered after the divorce is final.

Q. What is dissipation of assets?

A. Expenditure of assets for activities and items that do not favor common marital interests during the period of marital breakdown is presumed to be dissipation and subject to reimbursement by the spouse that dissipated the assets. If it is discovered that a spouse has dissipated assets the remedy is to pay all of that back into the estate and the non-offending spouse is awarded all of the amount, not just half.

Q. Should I close all my joint credit card accounts?

A. This depends on how much you trust your spouse and whether they have a history of financial irresponsibility. If you are afraid your spouse my run up the debt and cause you to get half of it you should closed the account; if not you can leave them in place and agree to pay for debt that you acquired on the card after the separation or otherwise equitably divide the debt.

Q. How can I find hidden assets?

A. This is a very meticulous process. You should check financial statements issued by your spouse, income tax returns, corporate returns, partnership returns, cancelled checks and check registers from all of the above, savings account passbook, securities and stock accounts, deferred bonuses or commissions, safe deposit box activity, cash transactions, children’s bank accounts, any other retirement of savings plans that you know about or suspect your spouse may have. It may be necessary to hire a professional for this service. It may be expensive, but it could pay you many times over in the end. Your lawyer should be able to provide you with a list to give you a head start on this.

Financial matters are extremely important during a divorce and should be carefully scrutinized to endure a fair and equitable settlement.

New iPad 3 & How Clients Can Benefit | Arkansas Attorney

Anthony Johnson — Thu, 05 Apr 2012 04:02:00 GMT

When searching for legal counsel in Arkansas, clients want to connect with a law firm that's up-to-date with cutting edge information technology. Speed, accuracy and accessibility make Apple's new iPad attorney-friendly like no other tablet on the market. The iPad 3 sports higher quality audio and image processing, a faster Internet connection and support for the latest apps that shrink an entire law office down to one, portable device.

Familiar Surface, Supercharged Under the Hood

The iPad 3 has many new performance-enhancing elements in the internal hardware but those familiar with previous generation tablets won't have any trouble jumping right into the interface. The more powerful hardware isn't any more demanding on battery life and also doesn't come with extra weight. The iPad 3 is only a fraction of an inch thicker than second-generation devices; so new iPads will fit perfectly in existing carrying cases.

Updated Specs

The top-of-the-line iPad 3 comes with a full package of improvements over the iPad 2 and out-performs every other tablet on the market.

· Multiple differentiators help the hardware deliver crisper, cleaner audio and visual content for crystal-clear calls, sharp video and perfect recording.
· Resolution at 2048x1536, higher than any mobile device and even beyond many HD TVs and monitors.
· 4G LTE support for super-fast Internet and network connections, even outside of Wi-Fi hotspots. The same connectivity whether you're in the heart of Little Rock, the parks of Bryant or a cafe in Benton.
· The A5X optimized dual-core processing chip that closes the gap between portable information technology and the most powerful desktop computers.
· 5 megapixel camera that shoots 1080p video with automatic image stabilization.

Working with Apps

There is a growing suite of exciting applications for today's new iPad attorney. The device runs software that makes jury selection more thorough without sacrificing efficiency. The iPad 3 is the first tablet to come with a built-in voice recording system and the improved recording clarity filtered by the differentiators ensures the most accurate digital dictation possible.

The e-reader technology in the iPad 3 provides access to an entire library of legal resources on the go, complete with bookmarking, highlighting and quick search features to guarantee fast, knowledgeable service to every client.

Creating and implementing presentations is easier than ever with high-definition graphics and all trial prep materials available in a simple electronic filing system.

Simple and Sustainable

The new iPad attorney applications and on-board features make paperless workflow a reality. This cuts operational costs over time, saves space and presents a clean, modern image to current and prospective clients. Electronic information is easier to share, easier to preserve and remarkably reduces research and fact-checking time, preserving more of every day for client service overall.

Integrating the iPad 3 into the daily operations of a legal practice can elevate a firm to among the most efficient in Arkansas. The initial cost is quickly offset by savings in time and materials while the hardware upgrades translate to a clear upgrade in a firm's service and reliability."

Grounds for Divorce In Arkansas | Little Rock Divorce Attorneys

Anthony Johnson — Thu, 15 Mar 2012 02:46:00 GMT

Finding a divorce attorney in Arkansas is a relatively easy task. Family law is a popular and heavily practiced faction of our legal system. As with any life-changing journey, it is often considered wise to do a little research and ask questions so you know exactly where you stand in the process. Before you pick your divorce attorney in Arkansas, educate yourself with some of the requirements and grounds for filing for divorce in the state. The better you understand the laws and procedures that govern filing for divorce in Arkansas the fewer surprises you will encounter. If you want to go straight to a free consultation, click the button below. If not, keep reading.

Residency Requirement:

When filing for divorce independently or through a divorce attorney in Arkansas, there are residency requirements that must be met. The case will ultimately be dismissed if the court discovers it does not have jurisdiction over the case.

You must be a resident of the state of Arkansas for at least 60 days before filing for the divorce. After the initial filing, there is a 30-day waiting period before the divorce can be finalized. Regardless of the expertise of your divorce attorney in Arkansas, these requirements are applicable and must be adhered to.

The actual divorce proceedings will take place in the complainant’s county of residence. If the complainant resides in a state other than Arkansas and the defendant is a resident of Arkansas, the court proceeding shall be held in the defendant’s county of residence. Ark. Code Ann. § 9-12-301 and § 9-12-303.

Grounds for Filing Divorce:

When filing, your divorce attorney in Arkansas must declare the appropriate grounds on which the divorce is being sought. The lawful grounds for divorce can be determined by consulting an arkansas divorce attorney. But, even if your attorney files under a cause that can be substantiate, the opposing party may (and typically does) dispute the claim. Through the introduction of proper evidence, pleadings, and testimony, the court will decide if the grounds on which the divorce is being sought are sufficiently proven. The circuit court shall have the power to dissolve and set aside a marriage contract, not only from bed and board, but also from the bonds of matrimony, for the following causes:

"No-Fault" Divorce in Arkansas:

Technically, Arkansas doesn't have a "No-Fault" divorce; however, many Arkansas divorce attorneys refer to the following cause of action as our state's version of a no-fault divorce:
(1) When husband and wife have lived separate and apart from each other for eighteen (18) continuous months without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether the separation was the voluntary act of one (1) party or by the mutual consent of both parties or due to the fault of either party or both parties;

Fault Divorce in Arkansas:

(1) When either party, at the time of the contract, was and still is impotent;
(2) When either party shall be convicted of a felony or other infamous crime;
(3) Be addicted to habitual drunkenness for one (1) year;
(4) Be guilty of such cruel and barbarous treatment as to endanger the life of the other; or
(5) Offer such indignities to the person of the other as shall render his or her condition intolerable;
(6) When either party shall have committed adultery subsequent to the marriage. Ark. Code Ann. § 9-12-301.

It is always good to have some insight into what the court proceedings hold and to know your rights and responsibilities. Your Arkansas divorce attorney can help you to understand these rights and responsibilities plus offer the expertise and knowledge of the filing process. Consulting with a divorce attorney in Arkansas will put you on the right track and help you from start to finish in making such an important, life changing decision.

Why does a monthly budget matter in a bankruptcy?

Anthony Johnson — Tue, 28 Feb 2012 07:58:00 GMT

One of the first things I make a client do in preparation of filing a bankruptcy petition is a monthly budget showing his average household income as well as his average household expenses. The reason I do this is twofold: first, it is very eye opening for the client to sit down, put pen to paper and actually see where his money is going on a monthly basis; and, second, the Bankruptcy Code requires that I prepare a budget.

It is surprising how many more times than not a client will come into the office and not actually know where all of his money is being spent. Very often, reprioritizing line-items in a household budget will free up enough income to allow a client to keep a second vehicle, or even his home, in a bankruptcy case that would otherwise appear unaffordable to the bankruptcy Court and Trustees. Additionally, this “reprioritizing” of monthly expenses often helps a husband and wife team discuss any differences of opinion they may have as to what is truly important and worth saving through bankruptcy.

Second, believe it or not, the Bankruptcy Code actually requires that I put together a household budget for all bankruptcy clients. Essentially, the Code views it as unfair to allow someone to have their debts discharged (forgiven) if there is a good probability that they can afford to pay back some of that debt. So, in the context of a Chapter 7 or a Chapter 13, a client’s budget needs to show that they can only afford to maintain a very standard level of living according to what is reasonably necessary for the health and welfare of the debtor and their dependents or what is necessary for the production of income.

Determining what is reasonable and necessary is where a good bankruptcy attorney comes in. Clients are often times afraid that they make too much money or spend too much money in certain areas of their budget and are discouraged from meeting with a bankruptcy attorney for fear they won’t “qualify” for bankruptcy. If this situation sounds familiar, maybe it is time you called us today.

Fathers’ Rights & Child Custody in Arkansas

Anthony Johnson — Thu, 23 Feb 2012 14:02:00 GMT

Q. When a child is born out of wedlock, which parent has legal custody of the child?

A. In Arkansas, custody of a child born out of wedlock is in the mother; the father has no rights until he files for relief with a Court and is declared the biological father; only then can the father assert his rights as a parent. If you had a child born out of wedlock and child custody has become an issue, consult an Arkansas custody attorney to help you overcome all of the procedural hurdles that stand in front of a father and his rights' to the child.

Q. Can the father assert his rights based on an acknowledgement of paternity or birth certificate identifying him as the father?

A. No. These documents are only useful to the father in Court as presumptive evidence that he is the biological father of the child. The mother would have to overcome the legal presumption if she was contesting paternity.

Q. What must a father do to obtain his rights as a father?

A. First he must petition the Court setting out the facts that show he is the father. If he has an acknowledgement of paternity or birth certificate he can attach those to the petition as exhibits. He must serve the petition upon the child’s mother and set a hearing on the matter. At the hearing, the mother may choose to admit he is the father; if so the father can agree to pay child support and ask for standard visitation. If there is a dispute as to paternity, the Court will order a paternity test to determine if the petitioner is in fact the father.

Q. After a father establishes in Court that he is the father of the child, can he then ask for custody?

A. Yes. If the father believes that the child’s mother has an issue that affects her ability to care for the child or that she is otherwise unable to provide for and care for the child, he can challenge custody. Custody is decided in the best interest of the child, not the wishes of the parties.

Chapter 13 Bankruptcy: Will I lose my car?

Anthony Johnson — Thu, 16 Feb 2012 12:32:00 GMT

In a previous article, we discussed the “Hanging Paragraph” of Section 506 which provided a wonderful tool for debtor’s attorney whereby they could “cram down” a debtor’s vehicle in a chapter 13 to its current market value, regardless of what is owed, so long as the vehicle was purchased more than 910 days before the filing of the case. Another question that comes up more frequently than you would think is what about the situation whereby a debtor has owned a vehicle for more than 910 days, but has refinanced that vehicle much more recently?

Section 506 applies in situations where the secured claim is based on what is called a “purchase money security interest.” The full legal details of what this entails is beyond the scope of this article, but, essentially, it is understood that a new vehicle purchase is classified as a “PMSI” for Section 506 purposes. So, why is this important? Several court cases have established that a vehicle “refinance” is not a “PMSI” under the strictest of definitions. The reason under the law is fairly straightforward: when you refinance a piece of property you are not putting up any new collateral. Why is this important for a debtor in bankruptcy? If you purchased a vehicle more than 910 days before the filing of your petition, but refinanced said vehicle more recently to lower payments, lower interests, or to remove a former spouse you can still take advantage of the Section 506 “cramdown” to the vehicle’s current value because we trace the purchase of the vehicle back to the date of the creation of the “PMSI.”

Call Bradford Nye, an Arkansas Bankruptcy Attorney, for more information and a FREE consultation.

Modifying your Chapter 13 bankruptcy plan to reduce your payments

Brad Nye — Wed, 15 Feb 2012 18:01:00 GMT

Traditionally, given the fact that chapter 13 bankruptcy can last three to six years, the Bankruptcy Code has allowed much flexibility and given the debtor’s attorney ample opportunity to modify confirmed chapter 13 plans to adapt to an individual debtor’s changing circumstances. One of these key flexibilities was the ability to modify the plan to lower the plan payments when a debtor has a corresponding reduction in income. The debtor’s attorney would simply file the modification and file an amended budget showing that the reduction was warranted. This was a wonderfully useful tool to get around any requirement to pay back the unsecured creditors in an “above-the-median” situation. However, a recent Court decision has thrown this technique on its head. This recent decision now says that in one of these modification situations where the debtor has had a reduction in income the debtor’s attorney may only lower the plan payment by the corresponding reduction in the debtor’s income. In other words, the Court has effectively closed a “loophole” that debtor’s attorneys have enjoyed since the passage of BAPCPA.

Let our local Arkansas chapter 13 bankruptcy attorney help today! Fill out our contact form or call now.

Every Successful Business Has a Business Lawyer

Anthony Johnson — Tue, 14 Feb 2012 01:24:29 GMT

Due to the wide range of legal requirements, both clear and obscure, in today’s financial climate, hiring a business lawyer is more of an imperative now than at any other time in the past. In fact, it is an instrumental facet of managing a company; because as any successful business owner knows, you can't effectively run the manufacturing, production, or service your business provides if you’re also tasked with ensuring the proper legal documents are drafted and filed. A business lawyer, among other things, makes sure the all-important peripherals of your business are being taken care of, from tax requirements, to obtaining the proper licenses and permits. For example; something as simple as not being aware of zoning laws, which vary widely from state to state (in fact, they can change locally too; the zoning laws in Little Rock, AR might differ from those in the North Little Rock metropolitan area).

With all of these considerations, investing the money to retain a business lawyer should always have a high ROI (return on investment). Allocating disparate resources to keep track of all the things required of a business by federal, state and local laws would easily cost more, as well as be less effective and under the protection of the law. The only concern of any successful business should be turning out quality products, maintaining their top-notch personnel, and customer service; the legal aspect is an entirely different field that should act in an entirely supportive role.

Your Arkansas business lawyer can even aid you with the legal details in the selection of employees; such as the constitution of liabilities and severance packages, the composition of work agreements, and present regulations governing the particulars of everyday work-life. ID stats for the filing of income tax should be drafted by a lawyer for purposes of accuracy and comprehensiveness. Laying down the legal foundation before you structure your company will save you headache and money in the long run, make your company more profitable, and ensure that you are never experience problems with the IRS. Ultimately, the possibility of avoiding these things means that a business lawyer pays for him or herself many-fold over the lifetime of your company’s operation.

4 Reasons to Hire a Personal Injury Lawyer After an Automobile ...

Anthony Johnson — Tue, 14 Feb 2012 01:24:25 GMT

Automobile accidents are a fact of daily life. With so many vehicles on the road, crashes inevitably occur. When the worst does happen, the resulting loss of time, property and potential medical costs can be considerable. Due to these factors, if another driver's actions caused the crash they should be made to pay. The legal processes involved in litigating cases of automobile accidents are complicated and should not be attempted without professional guidance.

Clear up the Confusion
One of the main reasons that hiring a personal injury lawyer is important after a car accident is the help they can provide in clearing up what actually happened. Through research and interviews, a lawyer can determine all aspects of the accident and where the blame may likely rest. Also, from this compilation of facts the lawyer can assess the best course of action to fight for compensation.

Negotiating with Big Insurance Companies
Even the smartest of people will be left floundering if they try to take on an insurance company alone. The lawyers employed by insurance companies know their business and have experience fighting claims, so the only option is to fight fire with fire. Many personal injury lawyers have just as much experience and know the same rules and regulations as the insurance companies representatives, which levels the playing field.

Maximizing Your Settlement
The average accident victim usually will not know all the possible claims they can make to help them fully recover from the incident. Costs and repercussions from a car accident can be greater and more complex than most people would imagine, and getting everything you are due is important. A personal injury lawyer knows all the routes for making claims and can achieve higher compensation for his client.

Guiding you to a Win
Hiring a personal injury lawyer helps greatly when and if a case actually goes to court. Facing the fight alone can lead to mistakes being made and wrong things being said, which could ultimately hurt the compensation claim. A lawyer can keep their client focused and guide them through the process, helping to make sure they present themselves well and clearly. Being prepared for an attack to come from the insurance lawyers is important because they are always looking to trip up claimants.

An Overview on Tenant Eviction Laws by an AR Property Attorney

Anthony Johnson — Fri, 10 Feb 2012 06:01:00 GMT

Arkansas, in plain terms, is a “landlord friendly” state. As it turns out, Arkansas has a long standing tradition of adhering to the common law doctrine of "caveat lessee" (let the tenant beware).

When you rent a house or apartment, you usually agree to take it "as is". This means that the landlord does not have to provide additional maintenance to the dwelling. Typically, landlords only have to make sure that the dwelling complies with city building codes.

The best way to understand the obligations between the landlord and the tenant is to enter into a written lease. A lease is a contract and is binding on both parties. In Arkansas, a landlord has no obligation to renew a lease, and in certain situations may terminate the lease and evict the tenant. Failure to pay rent or to pay rent on time, for any reason, is grounds for eviction.

There are two types of eviction procedures a landlord can use to get you to move: "unlawful detainer" (a civil eviction) and "failure to vacate" (a criminal eviction).

If a landlord uses the "unlawful detainer" method of eviction, he must give the tenant three (3) days written notice to vacate. If the tenant doesn’t vacate the premises, the landlord has grounds to file a lawsuit against the tenant. After the tenant receives a summons and notice of unlawful detainer, he has five (5) days excluding weekends and holidays to object in writing to the eviction. If the tenant does not file an objection, he can be removed from the dwelling by the Sheriff. If the tenant does object, a hearing will be scheduled to determine whether the tenant has any right to possession of the property. This method may seem more expensive because the landlord will incur legal fees and costs, however the process achieves its goal much quicker than the “failure to vacate” thereby actually saving the landlord money. A good Arkansas attorney can sometimes get a tenant ejected within weeks!

If a landlord uses the "failure to vacate" method of eviction, he must give the tenant ten (10) days written notice. This method of eviction applies only to non-payment of rent. If the tenant does not leave the premises within ten (10) days, he can be charged with a misdemeanor. The tenant would then be required to appear in court where he could be fined up to $25.00 for each day the tenant remained in the dwelling after being served with the ten (10) day notice to vacate. This method is typically not preferred by landlords, because the process can take several months during which the landlord continues to lose rental income. The other huge problem with this method is that the criminal penalty for not vacating is a fine NOT eviction.

A landlord is not permitted to exercise “self-help” methods to evict a tenant. The landlord may not change the locks on the tenant’s doors, move the tenant’s furniture out, turn off the tenant’s utilities or use any other form of harassment to persuade the tenant to move out.

Additionally, Arkansas landlord/tenant law states that upon the voluntary or involuntary termination of any lease agreement, all property left in the dwelling by the tenant will be considered abandoned, and may be disposed of by the landlord as the landlord sees fit and without recourse by the tenant. All property left on the premises by the tenant is subjected to a lien in favor of the landlord for the payment of all sums agreed to be paid by the tenant.

How can I stay informed about Arkansas legal issues?

Anthony Johnson — Wed, 08 Feb 2012 23:32:00 GMT

Although we are a consumer law firm, we have dedicated lawyers who can assist you with almost every legal situation you may face. Please check back with our website often to review the latest articles and blog posts.

Chapter 7 Bankruptcy Means Test - Arkansas

Anthony Johnson — Wed, 19 Oct 2011 15:35:00 GMT

If I pass the chapter 7 “Means Test” do I automatically qualify for chapter 7 bankruptcy?

The question often comes up at a first meeting with a new client as to whether they will be able to file a chapter 7 bankruptcy so long as they can pass the so called “means test” of bankruptcy. Generally, if you do not make too much money (this depends on your family size and county of filing) you will be considered “below the median” and should not have too much issue in getting Chapter 7 relief so if you are in that situation, this article does not pertain to you; however, what about the case of a “above the median” debtor who is still able to pass the means test, do they automatically qualify?

The Courts have consistently held that passing the Means test is just one of the qualifiers for Chapter 7 eligibility. The Code also allows the Trustee’s and other parties in interest to examine the debtors schedules to determine whether allowing that debtor to file chapter 7 would constitute “substantial abuse” of the law. Essentially, the Trustee’s will look at an individual debtor’s budget as well as external circumstances: Is the debtor going to start a new job making a lot more money in one month? Does the debtor stand to inherit money? If it looks like the debtor is spending too much on a home or expensive cars, then the Trustee may also take that into consideration as to whether the debtor filing chapter 7 is abusive.

If the Court finds that the debtor’s filing is abusive, the debtor’s case could be dismissed or the debtor could be asked to convert his case to a chapter 13 and pay back some of his creditors with monthly payment.

The Personal Injury Attorney’s Approach to the Contingency Fee

Anthony Johnson — Wed, 19 Oct 2011 14:40:00 GMT

After working with many local Arkansas personal injury/contingency fee attorneys, I have begun to see many small, yet significant, differences in the legal styles and ethical boundaries of experienced attorneys. One in particular is the infamous “Engagement Letter,” aka “Fee Agreement.” Now, I have seen these agreements span in length anywhere from one page with room to spare to six page novels covering every possible scenario. Many feel that, with good “lawyering” only a short one-page agreement is necessary. However, the opposite school of thought seems to believe that full disclosure is necessary to protect both parties. Which is correct? Perhaps both…

The ethical issue comes to light when you consider those few attorneys (and by few I mean most of them) that consider the signing of this agreement as the closing of a sale, hence locking in the client for a windfall of riches. Many attorneys, I have seen, approach the signing of these contracts like a sales pitch. They attempt to speak vaguely and brush over potentially enormous legal issues in order to get the client signed up. I believe that this behavior must stem from a fear of losing the client or from the possibility that another attorney may swoop down and steal the client right out from under them. However, I do no believe that this should be the mentality of our legal profession.

As you can likely already tell, I am not the type of attorney that fears disclosure may cause clients to scare off. Rather, I believe that, if you are a great attorney, the client will not go anywhere. Firstly, most of the terms and language in fee agreements are similar and boilerplate. Most of the fee schedules are relatively close when you compare the attorneys within a locale. So, there is nothing to hide and your client will appreciate the explanation and extra time you spent making them understand.

So, my humble command that I cast upon the legal community is this: ”Man Up.” Disclose and explain to your client the terms of your relationship. It will save you in the longrun, make you a better person and better attorney, and will get you more clients while building bonds of trust with current ones. If a client ever feels pressured to sign an engagement letter, then their attorney is probably not the person that they should be going with and should think twice before signing.

Arkansas Searches and Seizures Law (A very brief overview)

Anthony Johnson — Tue, 26 Apr 2011 15:43:00 GMT

The United States and Arkansas Constitutions protect persons from unreasonable searches and seizures. The Fourth Amendment to the U.S. Constitution guarantees the right of citizens to be free from unreasonable governmental searches and states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Subject only to a few specifically established and well-delineated exceptions, a search is presumed to be unreasonable under the Fourth Amendment if it is not supported by probable cause and conducted pursuant to a valid search warrant. The Arkansas Constitution also protects citizens against unreasonable searches and seizures. Article 2 § 15 of the Arkansas Constitution provides for the right to privacy and states:

The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Both provisions make it explicitly clear that before a warrant can be obtained by authorities, they must have probable cause. Remember my standard disclaimer: This is not legal advice and I am not your lawyer, yet! I am providing this discussion for informative purposes only. Every situation is different and for legal advice on your specific situation, please consult a licensed attorney. Now with that out of the way, back to the discussion: All searches conducted without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. The burden is on the State to establish an exception to the warrant requirement. Further, the burden is on the State to prove that the warrantless activity was reasonable. But there are exceptions to the warrant requirement Such exceptions include (but are definitely not limited to) voluntary waiver of the warrant requirement, consent to the search or seizure, exigent circumstances, or an investigatory stop. Firstly, you can voluntarily consent to a search of your person or possessions. As an example, the following conversation could take place and a waiver of the warrant requirement is obtained by the state:

Officer: “I’m just going to look in your trunk. Okay?”
You: “Sure.”

Exigent circumstances can include a number of situations but generally fall into one of several broad categories: (1) response to an emergency, (2) hot pursuit, (3) probability of destruction of evidence, (4) the possibility of violence, (5) knowledge that a suspect is fleeing or attempting to flee, and (6) a substantial risk of harm to the persons involved or to the law enforcement process if police must wait for a warrant.

Police generally may not search a home or seize evidence without a warrant supported by probable cause. Because the invasion of the home is the chief evil to be prevented by the Fourth Amendment, searches and seizures inside a home without a warrant are presumptively unreasonable. Therefore, warrantless entries of the home are per se unlawful absent exigent circumstances or other clear necessity.

One final exception that I would like to generally explain is the investigatory stop or “Terry stop.” In performing their duties, police must question citizens regarding events which the police are investigating. Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or another public place. Further, officers may question citizens without implicating Fourth Amendment protections so long as the officers do not convey a message that compliance with their requests is required. An encounter is not consensual, however, if “in light of all the circumstances, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’” A Terry Stop, as set forth in Terry v. Ohio, 392 U.S. 1 (1968), is a bit different from a consensual encounter. Sometimes called a “stop and frisk,” the Terry Stop is set forth in the holding in Terry which says that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and searches him or her without probable cause to arrest. However, the Fourth Amendment is not violated if, and only if, the police officer has reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Now what constitutes reasonable suspicion is the subject of many law review articles and caselaw which varies widely from state to state, but let it suffice that it is not a very high threshold. This reasonable suspicion must be based on “specific and articulable facts” and not merely upon an officer’s hunch. Once this threshold is met, police may for their own protection perform a quick surface search (or frisk) of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. The rationale behind the Supreme Court decision is “the exclusionary rule has its limitations.” The exclusionary rule is to protect persons from unreasonable searches and seizures aimed at gathering evidence, not searches and seizures for other purposes (like prevention of crime or personal protection of police officers). SCOTUS extended Terry in Michigan v. Long, 463 U.S. 1032 (1983) which held that car compartments could be constitutionally searched if an officer had reasonable suspicion. Reasonable suspicion is satisfied when the officer stops the vehicle on a pretext, since by definition, a “crime” has occurred even though the “crime” may be speeding, illegal lane change, license plate obscured, etc. You get the picture.... Now your rights during a public stop (on foot with no violation of law) where the officer demands identification depends upon what state you are in at the time. Depending upon the state law, SCOTUS held in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), that a state law requiring the suspect to identify himself during a Terry stop does not violate the 4th Amendment or the 5th Amendment privilege against self-incrimination (unless of course giving your name in and of itself incriminates you, which brings up an entirely different discussion! Just like an onion, the more layers you peel, the more layers you uncover and simply want to cry!). So it depends on whether your state has a law which conforms to the narrow Hiibel requirements which pretty much fall along the lines set forth in Terry in that police may detain any person “under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime” as to whether you have to produce identification. Here is a Wikipedia link to states that currently (as of 2010 according to the wiki page) have stop-and-identify statutes on the books. As with all things wiki, you must verify the information. Wikipedia is a great starting point, but anyone (even crazy defense lawyers) can edit the information, so you must verify the information. For instance, the page shows Arkansas (where I am licensed) has a stop-and-identify statute. However, looking to the actual text of the statute, it involves the crime of “loitering” and thus it automatically involves “reasonable suspicion that a crime is taking place.” Here is the relevant portion of the statute:

§ 5-71-213. Loitering (a) A person commits the offense of loitering if he or she: (1) Lingers, remains, or prowls in a public place or the premises of another without apparent reason and under circumstances that warrant alarm or concern for the safety of persons or property in the vicinity and, upon inquiry by a law enforcement officer, refuses to identify himself or herself and give a reasonably credible account of his or her presence and purpose….

The statute also sets forth a number of other situations which is considered loitering (such as lingering around a school building without permission, lingering to beg, lingering to drink an alcoholic beverage, lingering to … well, you get the picture.) For a complete list, please consult the law itself. So you can see that the officer is not simply walking up and asking “papers please.” The officer has to have reasonable suspicion that a crime is afoot. Otherwise it is simply a request that any private citizen may ask, and you are free to either comply or refuse and ask “Am I free to go?” Of course your refusal may make the officer suspicious (Catch-22 anyone?) and the officer may “investigate” further to gain reasonable suspicion. There are many different facets to search and seizure law that are entirely too numerous to go into in this article. Suffice it to say this merely scratches the surface. If you are involved in a situation involving a search and seizure, please consult a licensed attorney to discuss your situation. EVERY SITUATION IS UNIQUE!!! We are not your lawyers (yet) so please remember this is a general disussion, and is NOT to be construed as legal advice. Please visit our site disclaimer for a full explanation of our disclaimer. However, if you wish to consult an attorney at Butler, Horn, Nye & Johnson, please contact us immediately for a consultation.