Beyond the Seminars

Tennessee Lawful Employment Act: What It Means

Thu, 23 Feb 2012 15:36:00 GMT

By Bruce Buchanan

The Tennessee Lawful Employment Act became effective on January 1, 2012 for employers with 500 or more employees and governmental entities. Under the new laws, employers may enroll and use E-Verify for newly-hired employees, or it may accept, copy and maintain a state-issued driver’s license or identification, unexpired U.S. passport, permanent resident card, work authorization, birth certificate, certificate of naturalization, or a few other forms of identification from newly-hired employees.

You will note the documents above are redundant of documentation needed for I-9 verification. The only real difference is the requirement to maintain a copy of the identification document. Under the Immigration Reform and Control Act (IRCA), an employer is not required to maintain a copy of the presented documents from List A or Lists B and C.

A second provision in the law involves a “non-employee” providing labor or services to an employer. A “non-employee” is defined as “any individual, other than an employee, paid directly by the employer in exchange for the individual’s services.” If an employer contracts with an individual/non-employee, it must request and maintain a copy of one of the specified documents, such as state-issued driver’s license or identification. However, a subcontractor, who is not an individual, is not covered by this provision under the definition of non-employee.

An employer violates the law by failing to receive E-Verify confirmation or to request and maintain a copy of one of the specified identification documents. An employer has a “safe harbor” and cannot be found to have violated the law by employing an employee without work authorization if the employer utilized E-Verify and received a confirmation or the employee appealed the tentative non-confirmation and the appeal has not been resolved. This “safe harbor” is not available for employers who copy and maintain an employee’s driver’s license or identification if the employee is found to be working without employment authorization.

The Tennessee Lawful Employment Act is being phased in:

Employers with 200 to 499 employees must comply by July 1, 2012.
Employers with six to 199 employees by January 1, 2013.
Employers with five or fewer employees are exempt from the law.

Any lawful resident of Tennessee or a federal agency employee may file a complaint with the Tennessee Department of Labor and Workforce Development, which will investigate such complaints. This provision is an extension of the current law which only allows state or local officials to file a complaint alleging an employer’s employment of an unauthorized worker.

The penalties for the new law are:

First offense - $500 penalty + $500 per employee or non-employee not verified or copy of documentation maintained;
Second offense - $1,000 penalty + $1,000 per employee or non-employee not verified or copy of documentation maintained; and
Third offense - $2,500 penalty + $2,500 per employee or non-employee not verified or copy of documentation maintained.

One unanswered question is how is the number of employees employed by a company determined – all employees employed in Tennessee or all employees nationwide, if a company has employees in other states. The statute is silent on this matter, which implies the number of employees is based on overall employees, not just Tennessee employees.

- If so, then does the Tennessee statute require the company in non-Tennessee locations to maintain a copy of an I-9 document in order to be consistent companywide?

- If so, does this create a federal preemption issue with IRCA?

After the law passed in 2011, it appeared its proponents would attempt to amend the statute in 2012 to make E-Verify mandatory. However, it appears the 2012 legislature has decided to not concentrate on making E-Verify mandatory; rather, it is focusing on a limited number of immigration bills.

About the Author: Bruce Buchanan, with King & Ballow, represents employers in many areas of labor, employment, and immigration law as well as individuals in immigration law. Mr. Buchanan has presented at many professional education programs on the NLRA, FMLA, FLSA, and immigration law. He will be speaking at Sterling's Labor and Employment Law 2012 in Nashville March 2012.

Before joining King & Ballow, he worked for 20 years as senior trial specialist for the NLRB. Mr. Buchanan has also served as adjunct professor at William H. Bowen University of Arkansas – Little Rock School of Law, where he taught courses in labor law, employment law and sports law. Mr. Buchanan is editor of King & Ballow’s Employment Law Comment newsletter, and the Tennessee Bar Association’s Labor and Employment Law and Immigration Section Newsletters. Mr. Buchanan earned his B.S., magna cum laude, at Florida State University and his J.D. at Vanderbilt University School of Law. Read more.

Reprinted with permission from King & Ballow's Employment Law Comment newsletter.

http://www.sterlingeducation.com/the-sterling-blog/bid/78863/Tennessee-Lawful-Employment-Act-What-It-Means

10 Easy Steps to Lull an Audience to Sleep

Fri, 17 Feb 2012 12:00:00 GMT

You have been asked to speak for a live continuing education seminar. Let's face it, you are an intelligent, resourceful professional and your reputation precedes you, but you are not perfect (we are just as shocked as you are, trust us) and maybe, just maybe you are not as polished a speaker as you would like to be. If only someone could provide you with a list of sure fire ways to avoid putting your audience into a speaker induced coma so you could become the next Tony Robbins.

Well, we’re sorry but we don't have that list handy. (I think the dog ate our homework.) We do however have this free handy list of things NOT to do, which is probably more fun anyway.

If you’ve always dreamed of being a human sleep aid (pun intended) here are 10 easy things ways to make your dream a reality:

1. Talk entirely too quickly or incredibly too slowly

If you can keep your audience either exceptionally frustrated or exceedingly frazzled they will eventually just punch out and catch some zzzzzzzzs.

2. Be sure to read from your notes

You’ve been taught to memorize them, but you’re going to need to re-train yourself to have any hope of earning that Guinness World Record for the most people spontaneously napping. If you can make it through your whole presentation without looking up even once to make eye contact, you are on the right track. This is a great way to get the audience sawing logs. See also #10.

3. Tell bad jokes

Nothing will make your listeners want to enter a self-induced coma more than a really bad joke. Don't just make a predictable lawyer joke; be sure to offend or underwhelm as many people in the audience as you can manage. We recommend jokes with at least three people walking into a bar as sure fire snooze fests.

4. Say "um" as much as possible

At first glance this may seem to be a retread of rule #1 but there is a fine distinction. If you merely give your presentation slowly there is an outside chance that someone will care enough to pay attention while simultaneously pulling their hair out. To ensure the sand man makes his visit, put fillers between your pauses so that your content is hopelessly disjointed. "Um," "uh," "so," "like," and "you know" are ideal for this type of stalling and repetition. We recommend you avoid using “like” if your presentation location is anywhere near a valley in California. The attendees won’t even notice.

5. Ignore questions or don't answer them directly

You prepared your speech well and probably already answered their question, but as their neighbor was snoring mightily, they didn't catch it. Ignore them completely and they will surely give up and zone out. If you feel tempted to address them, remember your goal and vow not to give in. Nothing creates an immediate REM cycle better than zero interaction.

6. Don't do any research

Your past speeches have always been precise and interesting, because you have done a lot of research. This is a clear no-no. In order to really put the ooze in snooze, use case examples from at least 20 years ago and whatever you do, don't update your last set of presentation notes. New information has been definitively linked to alertness.

7. Walk constantly and use excessive hand gestures

Now this may seem counter-intuitive but bear with us. Have you ever seen a child’s mobile? This is the same principle in action. Constant and repetitive motion will lull even the most interested attendee into a head bobbing stupor. You have to really sell it though as unlike infants your audience can drink coffee. Walk from end to end, swaying whenever you pause, and gesture like a dancer from Lion King. Constant, consistent motion is key.

8. Rely on PowerPoint as much as possible

You definitely don't want to actually explain the information to your listeners because no matter how sonorous your voice may be, rapidly flashing pictures are always more stupefying than speech. Make sure to put at least 100 words on each slide and flip through them rapidly without discussing them. If anyone asks you to repeat a point or review a slide, simply ignore them (see Rule #5).

9. Use lots of jargon and acronyms

You are speaking to a diverse yet specialized group of professionals, some of whom may be new to their field, so be sure to keep your audience confused. Even use abbreviations as if you are texting your audience; what better way to get the audience to mentally check out than by speaking as if you are texting a buddy.

10. Above all, make your speech as boring as possible

No further instruction needed here. After all, this is a continuing education seminar; who really wants to stay awake for it, right?

Okay, this should get you well on your way to zzzz ... HUH? Wa? ...... sorry about that … becoming the hopeless bore presenter you’ve always dreamed you could be.

Sorry we couldn’t help you become the next Tony Robbins, but if you follow our simple tricks you can excel at failure and that’s at least something, right?

Got any great tips to bore an interested audience?

We'd love to hear them!

(Looking for a seminar that won't put you to sleep? We can help with that too.)

http://www.sterlingeducation.com/the-sterling-blog/bid/70545/10-Easy-Steps-to-Lull-an-Audience-to-Sleep

LLCs Face Double Taxation

Wed, 15 Feb 2012 17:00:00 GMT

By Leonard Glass

Many US businesses are carried through limited liability corporations (LLCs). LLCs provide a shield to its members from the liabilities of the business but can be fiscally transparent for U.S. tax purposes.

Canada’s tax system does not have entity classification rules. An LLC is a corporation for commercial purpose and so it is treated as a corporation for Canadian tax purposes. The differing treatments of LLCs by the two tax systems means that LLCs often results in both Canada and the U.S. taxing the same income also called double taxation.

There is a tax treaty between Canada and the U.S. One of the purposes of the Treaty is to alleviate double taxation. The problem of double taxation of LLCs carrying on business in Canada or even holding stock of an entity carrying on business in Canada has been well known for years. The governments suggested some time ago that they would fix the problem in the course of negotiating amendments to the Treaty. However, when those amendments came out, not only did they not fix the double taxation problem, but they made the double taxation problem worse in some areas.

This presentation will:

Explain why using LLCs to expand a US business in Canada results in double taxation.
Suggest ways in which the LLC double taxation issue can be ameliorated.
Describe what happens when an S-Corp or a C-Corp expands into Canada.
Provide a brief introduction into the Canadian tax system.

Audience participation will be encouraged!

About the Author: Leonard Glass is a partner with Lawson Lundell LLP in Vancouver, where his practice encompasses both tax planning and dispute resolution and focuses on implementation of transactions in a tax effective manner. Mr. Glass advises clients in all areas of taxation, including the recently introduced Harmonized Sales Tax (HST). He has extensive experience in both inbound and outbound business expansions and acquisitions as well as in business succession, including shareholder agreements and estate plans.

Mr. Glass has appeared as counsel in the Tax Court of Canada and he is a frequent speaker on tax issues at CLE conferences and seminars. Mr. Glass earned his B.A. at the University of Manitoba and his LL.B. at the University of Toronto.

http://www.sterlingeducation.com/the-sterling-blog/bid/78234/LLCs-Face-Double-Taxation

Who's Responsible for Smoke Detectors: Landlord or Tenant?

Fri, 10 Feb 2012 20:14:00 GMT

by Sean J. Coletti

Failure to install approved smoke detectors* in each dwelling unit, to include mobile homes, under the landlord’s control is a base for an action (Idaho Code § 6-320).

Landlords' and Tenants' Duties

Landlords must verify that that the smoke detectors are installed and in good working order at the commencement of the rental agreement.

The tenant must maintain the smoke detectors in good working order during the rental period.

The landlord must use an approved smoke detector as defined by statute.

If the landlord fails to provide adequate smoke detectors, the tenant may notify the landlord by certified mail, return receipt requested that, if working smoke detectors are not installed within 72 hours of receipt of the letter, the tenant may install smoke detectors and deduct the cost from the tenant’s next month’s rent.

The landlord cannot remove smoke detectors installed by the tenant.

*An approved smoke detector is a battery-operated device that is capable of detecting visible or invisible particles of combustion and that bears a label or other identification issued by an approved testing agency having a service for inspection of materials and workmanship at the factory during fabrication and assembly.

Full List of State-by-State Residential Smoke Alarm Requirements Available Here

About the Author: Sean J. Coletti, with Hopkins Roden Crockett Hansen & Hoopes, PLLC in Idaho Falls, focuses his general practice on the areas of real property and commercial litigation, business law, insurance defense, banking and foreclosure law, and planning and zoning law. Mr. Coletti served as law clerk to the Honorable John C. Hohnhorst, Fifth Judicial District Court of the State of Idaho, Twin Falls County and as law clerk to the High Court of American Samoa.

Mr. Coletti received his B.A. from Brigham Young University and his J.D. from the University of Connecticut School of Law, where he served as executive editor of the Connecticut Law Review. Mr. Coletti recently spoke at Sterling's Residential Landlord Tenant Law seminar in Pocatello.

http://www.sterlingeducation.com/the-sterling-blog/bid/76922/Who-s-Responsible-for-Smoke-Detectors-Landlord-or-Tenant

Taking Your Law Practice Social

Fri, 27 Jan 2012 20:01:00 GMT

by Elizabeth Kramer

If you’re an attorney out on your own or working in a small firm, you might be wondering if there’s any possible way to compete with some of the “megafirms” out there that can pump massive amounts of money into advertising and marketing. Luckily, thanks to social networking, the playing field has been made a little bit more level. Sure, the big firms will still be able to flood the market with their message, but the good news is that if your message is unique enough and properly presented, your legal practice can attract widespread attention.

Regardless of where s/he achieved his/her legal education, an attorney today has the opportunity to have an impact on literally thousands of lives. This means that while today’s lawyer might not be working with a seven-figure salary, using sites such as Twitter and Facebook can gain recognition and increased awareness.

Social Networks

While it's easy to get overwhelmed with the available options, there are 5 different social networking areas I would recommend attorneys focus the majority of their marketing time and attention upon. In no particular order of importance, they are:

While some simple set up an account and never go back, to have success socially it is important to use these sites the correct way. Sure, you might have gotten your education in legal affairs by attending Harvard Law School, but that won’t count for much if your messages posted on Facebook, Twitter or Google+ are seen as nothing more than spam. In fact, all of the social networking sites reserve the right to remove any accounts that are seen as being spam sites. (For a good example of what might be construed as spam, here is how Facebook explains its “Spam Prevention Systems”)

In order to make sure that your marketing intentions are not seen as just shameless self-promotion, you need to learn and participate in the dialogue style of each site. In other words, listen more than you talk. An attorney doesn’t need to always talk about what services their law firm provides; there can be times when whatever is posted simply discusses everyday matters — even matters that have nothing to do with the law. After all, an attorney who only posts legal issues on Twitter will have far less engaged followers than someone who occasionally posts a review about a new movie or even a family recipe that others might be interested in trying. The whole key to the social networking system is to be social.

Blogging

Writing a blog can be a great way of marketing legal services, but the blogs need to be informative to a wide range of people. If the blog only features press releases discussing how wonderful your law firm is and how much money you’ve received from various settlements, the likelihood of having consistent readers is pretty slim. You’ll be seen as simply putting out infomercials, which will result in you not being taken seriously.

Instead, write from your knowledge base about issues the your potential clients may frequently encounter. Make a list of the top 5 questions prospects ask, and then write a post answering each of them. Not only will this help people seeking such advice find you, but it will also save you time answering the same questions. Sharing information and legal updates from your area of practice will not only help your page rank higher in search engines, but it will demonstrate to the readers your expertise, experience, and ongoing interest in the issue.

Legal Advice

Naturally, specific legal advice should never be posted online. In broad terms, you might want to post about whatever current laws are being discussed, but include a disclaimer on your blog and other sites that protects you against charges that you provided inaccurate or incorrect information. By the same token, you should also make sure that nothing you post about any other attorneys or law firms can be seen as being libelous. Take the time to research the ethical guidelines for your state before starting your endeavor into social media.

Forums

There are a great number of legal forums online that you can join, engaging both other attorneys and clients in discussions. Again, the emphasis should be on creating a dialogue with a potential new client or contact, rather than only ever promoting your services. The more engaging you are, the greater the likelihood is that others will see you in a positive light.

http://www.sterlingeducation.com/the-sterling-blog/bid/77984/Taking-Your-Law-Practice-Social

7 Dos and Don'ts of Dealing With Unrepresented Tenants

Tue, 10 Jan 2012 17:19:00 GMT

by William Burns

The Rule

R.P.C. 4.3. Dealing with Unrepresented Persons

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to the unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

7 Dos and Don'ts When Negotiating With A Pro-Se Tenant In Court

Remember, parties who have been given limited representation by another lawyer are consider pro-se and Rule 4.3 applies to them.
Landlord’s attorney should right away tell the pro-se tenant that he represents the landlord and where necessary that his interests are different and that the tenant may want to seek his own counsel.
Landlord’s attorney cannot give legal advice to a pro-se tenant, but he can negotiate with him and in the process, he can give his opinion about what he thinks will be a likely outcome if a settlement is not reached and can talk about the pros and cons of a settlement offer.
Always be courteous and respectful with the pro-se tenant. A good way to deal with an angry aggressive tenant is to not react in the same manner, but try to “kill them with kindness”.
Listen carefully to what the tenant is saying, he may give you information that helps your case or that shows that he is right and there are major flaws in the landlord’s case and you are happy that you found that out.
Make sure that the pro-se tenant clearly understand the terms of any agreement that you make with them; if there is a misunderstanding or if they think they have been misled, they will probably go back later to the Judge and try to undo the agreement.
Consider offering concessions to pro-se tenants that make them happy. It is often better to give in some and settle for less, than having to go through the time and expense of a trial and the trouble of trying to collect on the full amount.

About the Author: William F. Burns, Attorney at Law in Lakewood, CO, has nearly 25 years of experience representing landlords and tenants. Mr. Burns practices primarily in the areas of residential landlord-tenant law, evictions, and bankruptcy. For over 18 years, he has been a frequent volunteer on the Channel 9tv Law Line 9 program and the Metro Volunteer Lawyer program. He is a member of the American, Colorado, and Denver Bar Associations. Mr. Burns received his B.S. from the University of Northern Colorado, his Masters Degree from Gonzaga University, and his J.D. from Gonzaga Law School.

http://www.sterlingeducation.com/the-sterling-blog/bid/76916/7-Dos-and-Don-ts-of-Dealing-With-Unrepresented-Tenants

Workplace Bullying Breeds Controversy

Thu, 29 Dec 2011 16:34:00 GMT

by Calvin House

Workplace bullying got some national attention recently when a committee of the Maryland legislature held a hearing on Senate Bill 600, a version of the Healthy Workplace Bill, authored by Prof. David Yamada of Suffolk University Law School. According to the bill's website, it has been introduced in 20 states, and is actively under consideration in 13. Yamada maintains the Minding the Workplace blog and heads the New Workplace Institute. Another resource for opponents of bullying is the Workplace Bullying Institute, founded by Gary and Ruth Namie. The Los Angeles Times reported on the Maryland hearing in "Laws on workplace bullies debated."

Not everyone believes that employees and their lawyers should be provided with yet another theory on which to sue employers for damages and attorney's fees. For example, Victoria Pynchon, a California lawyer, mediator and writer, has explained why an anti-bullying bill is a bad idea in a piece posted to the Forbes blog.

Opponents of anti-bullying legislation explain that victims of serious misconduct already have remedies. For example, the Minnesota Supreme Court recognized the viability of an intentional infliction claim in Hubbard v. United Press International, 30 N.W.2d 428 (Minn. 1983), although it found the elements unproven in that case. Assault claims are another possible approach. See, for example, Raess v. Doescher, 883 N.E.2d 790 (Ind. 2008). In California an employee's workers compensation remedy preempts many common law claims. But, intentional infliction claims based on conduct that exceeds the normal risks of the employment relationship are not preempted. Livitsanos v. Superior Court, 2 Cal.4th 744, 828 P.2d 1195 (1992).

Mr. House will be speaking on this and other topics at Sterling’s Labor and Employment Law 2012 seminar in Pasadena, California, on February 22, 2012.

About the author: Calvin House, a partner in Gutierrez, Preciado & House, LLP in Pasadena, concentrates his practice on labor and employment law, government, and appellate practice. Mr. House has been a civil litigator for over 30 years and has substantial trial experience with an emphasis on appellate matters. He has served as the deputy commissioner for the NYC Department of Consumer Affairs and as an assistant professor at Western State University College of Law.

Mr. House also maintains a weekly employment law blog at http://gphlawyers.blogspot.com.

http://www.sterlingeducation.com/the-sterling-blog/bid/76286/Workplace-Bullying-Breeds-Controversy

Unique Provisions in Divorce Agreements

Fri, 16 Dec 2011 17:25:00 GMT

by Mark Chinn

Over the last 33 years, I have observed and noted problems which has arisen with the way agreements are drafted:

There are the clients who don’t understand the process and get mad when a divorce is not entered exactly 60 days after filing.

There are the nagging disputes between divorced spouses over care of the children, such as whether they are being properly seat belted.

There are also issues regarding the details of how to handle payment of medical bills or college expenses.

We have developed unique provisions to address such issues.

For example, all attorneys know there are “rules of construction” in the interpretation of contracts and agreements. These rules call for the Court to first see if the language is clear without further testimony. If the language is not clear, the Court might hear testimony as to the intent of the parties. If the intent is still not clear, the Court will interpret the agreement against the drafter of the Agreement.

In divorce cases, one attorney is usually charged with the actual typing of the agreement. But interpreting the agreement against the attorney typing the agreement is often not fair, because the mere typer of the agreement doesn’t have total control over the language. Instead, the language is the product of compromise. Our firm utilizes the following language to protect ourselves when we assume the responsibility for the actual typing of the agreement:

Future Interpretation. Both parties agree that should any future dispute arise as to the interpretation of this agreement or any part thereof, the agreement shall be construed as having been equally drafted by both parties as if each party drafted each and every word and, therefore, should not be construed against a party because that party actually prepared the agreement.

Meet Mr. Chinn at the Family Law Update seminar in Jackson in January 2012 and learn from his expertise. This program is designed to provide attendees with some of the unique provisions he has developed over the years.

About the Author: Mark Chinn, of Chinn & Associates, PLLC in Jackson, practices in family law. Mr. Chinn authored several books; many published by the ABA. He is a frequent speaker and contributor on the subjects of client relations, service, and law practice management in periodicals such as American Journal of Family Law; Family Advocate; Small Firm Profit Report; and Fair Share. Mr. Chinn has received distinction from the following: Top 50 Lawyers in Mississippi 2010; Mississippi Business Journal; Mid-South Super Lawyers®; and Best Lawyers® in America. He is a member of the Mississippi and American Bar Associations.

http://www.sterlingeducation.com/the-sterling-blog/bid/75925/Unique-Provisions-in-Divorce-Agreements

The Key to Success in Legal Marketing

Thu, 01 Dec 2011 21:50:00 GMT

by Susan Avsec

It's not about you; it's about them.

Over the last decade, law firms have had to evolve from being legal service providers to becoming value providers due in large part to the demands of its customers – in-house counsel. In response, law firms’ marketing efforts have transitioned.

Proactive efforts to gain new clients, as well as maintain a firm’s established client base, have brought firms to realize the value of client relationship management. More and more firms are conducting client satisfactions surveys and establishing internal client-relationship management protocol. Worldwide, firms have successfully utilized client satisfaction surveys to progress and enhance their service offerings by

(a) understanding, responding and managing expectations of in-house counsel,

(b) improving internal firm operations, and

Even with technological advances in communication, lawyers have learned that leaving their offices to conduct more face-to-face meetings not only shows clients that they are valued, but the information learned from clients contributes to the firm’s growth and development.

Feedback has become an important part of the legal profession. Law firms and their marketing departments find themselves busy managing and leveraging the various forms of feedback, from client surveys to testimonials to peer reviews. This feedback is used by marketing departments to market and differentiate the firm, by recruiting departments to lure candidates, and by lawyer-rating organizations such as Martindale-Hubbell, Best Lawyers®, and Super Lawyers®.

As value-providers, law firms, lawyers and their marketing departments have taken a proactive approach to assisting clients in their day-to-day operations. Electronic newsletters, alerts, webinars, and videos (to name a few) make it easy for firms to keep clients informed of developments in their industries and the law. Most of these forms of communications have replaced hard-copy mailings.

To add value, lawyers need to be genuine in their marketing and client-relationship efforts.

Give clients straight answers so they can evaluate their options and make decisions leading to better results.

Listen first to understand the client’s objectives, then deliver solutions that focus on optimal results for the client.

Provide effective legal advice and services.

Maintaining these principles in your practice and marketing efforts will define a firm’s premier value offering, client satisfaction, and a client’s bottom-line difference. This same philosophy guides the actions of each attorney at Buckley King and is a distinction that makes all the difference for our clients.

About the Author: Susan Avsec is the Director of Marketing for the law firm of Buckley King LPA headquartered in Cleveland, Ohio. She is responsible for the entire operation of the firm’s online and offline marketing programs. She develops and implements strategies for achieving marketing and business objectives, oversees corporate communications, and supports individual attorneys and practice teams to enhance marketing and business development efforts firm-wide across seven offices in four states. Prior to joining the firm, she was part of the national marketing team for CBIZ, Inc.

http://www.sterlingeducation.com/the-sterling-blog/bid/75158/The-Key-to-Success-in-Legal-Marketing

The Secret to Skipping Law School

Wed, 16 Nov 2011 08:07:00 GMT

by Elizabeth Kramer

You looked into becoming a lawyer; you believe in justice, you want to make a difference, you enjoy a challenge and you have never shied away from hard work. Then you looked at law school tuition and the rate of unemployed (or involuntarily self-employed) lawyers nationwide and changed your mind.

What if, instead of a traditional law school degree and six-figure debt, you could take the bar exam and achieve your goal through hands-on legal experience?

Really, it can happen; just ask any of the 60+ lawyers who have done exactly that.

Aspiring attorneys have a lot of concerns to juggle. A firm understanding of the law, the bar exam, and finding placement are all major stressors to anyone looking to become a lawyer. The concerns of attending a prestigious law school expound upon this, from those of the LSATs and applying to tuition, financial aid, and maintaining a stellar GPA. There is, however, an alternative to the law school track. Legal apprenticeship, or “reading the law” is a viable, little used option for aspiring lawyers for whom law school is not feasible or seems unwise. (Tweet this!)

"Reading the Law"

In terms of legal education, six states currently allow interested students to work as a legal apprentice in the years leading up to the bar exam.(Tweet this!) In California, for example, a student must work under a lawyer or judge in the content area of his or her focus for four years after registering with the state’s apprenticeship program. The cooperating lawyer or judge will test the apprentice on a monthly basis to assess his or her aptitude and progress in the study of law. In addition to registering, students must also pass the Bar First Year Law Students Exam within a reasonable amount of attempts. This hands-on approach provides the law student with a comprehensive, firsthand understanding of legal processes, as well as allows the apprentice to attempt to network and build meaningful relationships with other professionals in his or her desired field of law.

Participating States

While the California State Bar's Law Office Study Program boasts the most overall participants, similar programs are also available in 5 other states. Like California, the programs in Vermont, Washington, and Virginia don't require any courses to be completed at a law school, whereas New York and Maine require a combination of study.

Vermont - 4 Year Law Office Study

Washington - APR 6 Law Clerk Program

Virginia - Law Reader Program

New York - Study of Law in Law Office

Requires 1 year of full time or equilvalent law school study, followed by 3 years of law office study

Maine - Rule 10(c)(5)

Requires participants to meet 2/3 of the graduation requirements from an ABA accredited law school followed by at least 1 year of full time study under an active licensed attorney in Maine.

(Wyoming offered a similar program in the past which has now been discontinued.)

Pros and Cons

While providing an alternate to traditional law school, a law office study program is certainly not an easy way out. As with any decision, there are pros and cons to each approach. While a legal apprenticeship allows the student to have a mentor who understands them and aids them in a one to one context, the student loses the ability of networking with other aspiring lawyers and legal professionals. The mentor will be able to share a wealth of knowledge with the apprentice, but only can provide one point of view; in a law school, many professors can give the students different views of the world. Finally, the Bar, while allowing legal apprenticeships, may look down at legal apprenticeships in terms of validity and legitimacy; it could be difficult to prove a legal apprenticeship as a valid alternative to traditional law school degree training. However, many participants launch their legal careers in the very same office where they complete their apprenticeship, giving them a clear inside track to their first jobs.

In an economy where many law school graduates are struggling to find work and pay off debt, will legal apprenticeship become increasingly popular for the next generation of lawyers?

Resources

Great article with interviews from participants and sponsors: California Lawyer "The Path Rarely Taken"
The self-made lawyer
How to Become a Lawyer With No Law School - Be a Lawyer With No Law School - No College

http://www.sterlingeducation.com/the-sterling-blog/bid/66974/The-Secret-to-Skipping-Law-School

HR Professionals: Salary & Certification [Infographics]

Wed, 09 Nov 2011 17:37:00 GMT

If you are contemplating entering the world of human resources, currently working in HR and weighing the benefits of certification, or looking to hire the right HR person for your business, we've designed this quick guide just for you.

In light of the current job market, standing out from other applicants is more important than ever before. While HR professionals are usually the ones doing the hiring, they too must brave the other side of the interviewers' desk. With an average starting offer of $45,170/yr. for bachelor's degree candidates majoring in human resources (Survey July 2009), there seems to be no shortage of applicants.

View full size image

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As in other hypercompetitive job markets, HR professionals are seeking to differentiate themselves from the crowd, and many are choosing certification.

Is certification the gold ticket to a great HR job? Maybe; 96% of employers indicated that applicants who are certified have an advantage over those who are not.

Share the data!

As of January 2011 HRCI has certified 119,327 HR professionals - Tweet this!
Almost 1 in 4 certified HR professionals live in Florida, California, or Texas - Tweet this!
Employment of HR Training & Labor Relations Managers & Specialists projected to grow by 22% from 2008-2018 - Tweet this!
Bachelor's degree candidates majoring in human resources received an average starting offer of $45,170/yr. - Tweet this!
60% of U.S. employers agree HR certification positively affects an organization - Tweet this!

http://www.sterlingeducation.com/the-sterling-blog/bid/71196/HR-Professionals-Salary-Certification-Infographics

Risks and Realities of Smoking and Real Property Tenants

Wed, 02 Nov 2011 15:09:00 GMT

by Jacque Petterson

It is not only legal, but advisable, to ban smoking in apartment buildings

Tobacco smoke cannot be contained within the bounds of one apartment. It travels through walls, cracks, around windows, doors, plumbing and electrical fixtures. There are no repairs or air filtration systems that can eliminate the chemicals in the smoke that cause physical harm. The secondhand smoke fills neighboring apartments causing and exacerbating illnesses such as asthma, COPD, emphysema, cancer and heart conditions.

Landlords across the United States are receiving complaints from residents who are going to emergency rooms and taking heavy prescription drugs because their breathing and health has been compromised by a neighbor’s smoke – arguably a breach of the warranty of habitability. Landlords can no longer ignore the need to ban smoking in at least some buildings. Attorneys must prepare to advise their landlord and tenant clients that smoking can be prohibited in common areas, buildings, grounds and inside apartments.

Most landlords, apartment community management companies, and even many attorneys believe it is illegal and/or discriminatory to ban smoking inside apartment homes. There is no law that prevents a property owner from banning smoking anywhere and everywhere on their property. Discrimination, according to the Federal Fair Housing Act, is based on race, color, religion, sex, family status, national origin, or disability. Smoking renters are not a protected class. Smoking is not a fundamental right.

Violation of the Fair Housing Act

According to the Joint Statement of the Department of Housing and Urban Development and the Department of Justice, anyone with a previously diagnosed health problem that involves breathing is to be given a reasonable accommodation. Because the smoke cannot be stopped from entering their apartment when a neighbor smokes, and the smoke restricts breathing, the only reasonable accommodation for these renters is to live in a 100% smoke-free building. Recently in Florida charges were filed by HUD after a landlord refused to accommodate a resident in low income housing when she requested to be moved away from a smoking neighbor.

In 2009 HUD sent a notice to all housing authorities in the U.S. encouraging them to implement smoke-free housing policies.

Liability, Litigation

Potential causes of action for lawsuits against landlords include, but are not limited to, breach of the warranty of habitability, personal injury, breach of contract and constructive eviction, nuisance and violation of the Federal Fair Housing Act. Litigation has forced landlords to provide a smoke-free building for their residents.

All leases contain language similar to: “PROHIBITED CONDUCT. You and your occupants or guests may not engage in the following activities: … disturbing or threatening the rights, comfort, health, safety, or convenience of others…bringing hazardous materials into the apartment community;…” Landlords should be advised that secondhand smoke is a safety threat and nuisance for other renters.

If a child with asthma moves in to a previously smoked-in unit that was not properly refurbished or over or next to a smoking resident the family may be forced to move, claiming constructive eviction.

Fire danger is another reason to advise a landlord to ban smoking in their apartment buildings. According to the U.S. Fire Administration “The leading four items first ignited (upholstered furniture, trash, mattresses, pillows, and bedding) accounted for nearly half (49%) of residential smoking fires.” When elderly residents on oxygen continue to smoke landlords should require 24 hour supervision to avoid the potential loss of life and property.

Another area of concern is the effect on employees who enter a smoked-in apartment. It is well documented in the Surgeon General’s Report of 2007 that first and secondhand smoke causes cancer, asthma, heart disease and other health problems.

Turnover and the Bottom Line

Property management companies have complained that asking them to ban smoking in some buildings is a hardship. In truth it simply amounts to creating a few No Smoking signs, a letter explaining why smoking will be banned and requiring the residents’ signatures on a No Smoking Addendum. Enforcement will be through complaints. Just as with a pet policy, eviction may be necessary if a renter chooses to ignore the policy. Landlords that have transitioned some buildings to smoke-free say they have few problems overall.

The cost of properly renovating a smoked-in apartment, depending on how long the smoking resident lived there, has been estimated as high as $15,000. This may include replacing carpet, cleaning or replacing cabinetry and appliances. Even sheetrock may need to be replaced if the smoke is heavily embedded in the walls.

The cost to landlords in turnover when ignoring a non-smoking renter’s health problems and choosing to retain the smoking renter, doesn’t make sense for their bottom line. The smoking renter continues to damage the property and run off good renters that take care of their apartments.

Do your properties have a smoking ban?

Have you faced issues with tenants who smoke or who live adjacent to those who do?

About the author: Jacque Petterson is the office manager with the Petterson Law Office in Helotes. While working for Property Company of America, Ms. Petterson managed one of the largest apartment complexes in San Antonio. She developed adult-onset asthma after working and living adjacent to people who smoked, which led her to begin working with the Smokefree Apartment House Registry in Los Angeles.

Ms. Petterson continues to immerse herself in research and education and consult with renters, condo owners, property management companies, and property owners all over the United States. She has meet with and educated associations from California to South Carolina and elected officials from city councils to U.S. Senators. Ms. Petterson will be presenting "Smoking in Multi-Family Housing and the Law" in San Antonio, TX on November 30, 2011.

http://www.sterlingeducation.com/the-sterling-blog/bid/71036/Risks-and-Realities-of-Smoking-and-Real-Property-Tenants

New Immigration Law in Alabama

Fri, 14 Oct 2011 12:26:00 GMT

by Amy Myers

On June 9, 2011 Governor Bentley signed into law the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (earlier HB 56). After legal challenges from three groups portions of the law went into effect on September 28, 2011 when the Honorable Sharon Lovelace Blackburn, U.S. Senior District Judge granted an injunction as to only a few provisions.

The U.S Department of Justice and others have brought an appeal to the US Court of Appeals for the 11^th Circuit. At present the parties are submitting briefs in this action.

Amy Myers and Ben Slaughter of Haskell Slaughter have co-authored Alabama's Immigration Law – A Summary and Status Update. The the law and recent court rulings will affect both business and law enforcement throughout Alabama.

Excerpt from Alabama's Immigration Law – A Summary and Status Update

CONSEQUENCES OF THE LAW’S ENACTMENT

Schools, law enforcement and many employers are scrambling to react to the requirements of this law. The law may have many intended consequences, but more unintended ones. Many undocumented individuals and their families (some of whom may be documented) are leaving the State. Hundreds of employees failed to show up for work on September 29th, the day after Judge Blackburn issued her order. This effect was presumably intended. However, some individuals have been unable to get water service, and others must wait in Courthouse lines that snake around the building to renew tags or drivers’ licenses in an already burdened Jefferson County. Public schools are struggling to determine what they must do and how they should approach the gathering of sensitive data. Police officers already stretched with tight budgets are being forced to add additional duties to their workload without any added support.

HOW DOES ALABAMA’S LAW COMPARE WITH THAT OF OTHER STATES’ LAWS?

Arizona, Georgia and Utah have passed strict immigration laws. Thus far, only the portion of Arizona’s law dealing with e-Verify has been reviewed by courts. The U.S. Supreme Court has upheld the mandatory use of e-Verify for employers under Arizona law. The “show me your papers provision” of Utah’s immigration law is also under attack by the U.S. Department of Justice with a hearing in federal court in november. While Arizona’s law has garnered more attention from the national media, Alabama’s law goes even further and is described by noted constitutional scholar Jonathon Turley as “Arizona’s law on steroids.” [Tweet this!] Just as is the case in Arizona, Alabama law enforcement officers are allowed to detain any individual suspected of being in the country illegally. However, Alabama’s law goes further by imposing new duties upon educators and landlords...

Download the full article

About the Author: Amy K. Myers, of counsel with Haskell Slaughter Young & Rediker, LLC, practices in employment immigration, immigration and naturalization, business immigration, labor and employment, and litigation. She provides advice on issues including applications for temporary and permanent work visas and I-9 workplace compliance under federal law. Ms. Myers has filed non-immigrant visas for several workers who were coming to the U.S. to design prototype automobiles, and she has filed permanent labor certifications for companies needing professional workers with unique skills. Ms. Myers is a frequent speaker on immigration issues, employment law, and workers’ compensation.

Ms. Myers will also be addressing Immigration Law Update at Sterling's upcoming Employment Law Best Practices seminar in Birmingham. As Ms. Myers shared,

This seminar will provide you with the latest information on this controversial law including the following;

update as to the litigation;

comparison of immigration laws in Alabama and Arizona;

discussion of potential unanticipated repercussions for employers. agencies and business in general;

advice for compliance in light of federal and state law;

consideration of potential back-lash and rise of discrimination claims;

procedures for I-9 audits;

review of E-Verify system;

importance of I-9 compliance plan for employers.

http://www.sterlingeducation.com/the-sterling-blog/bid/69332/New-Immigration-Law-in-Alabama

Communication is Crucial: Injured Workers and ADAAA Compliance

Tue, 04 Oct 2011 18:01:00 GMT

by Jonathan V. Rehm

Under the Americans with Disabilities Act Amendments Act of 2009 an employee is considered disabled if they have a condition that substantially limits them from doing a type of work. A majority of workers' compensation claimants will fall into this category. Once disability is established employers have a duty to engage in an interactive process to see if a reasonable accommodation can be made to keep the worker employed.

Employers often put employees in light and restricted duty jobs as a way to reduce workers' compensation costs. Often times employers, doctors and insurers through nurse case managers work together to determine if an employee can go back to work. The problem with this arrangement is that employees are often kept out of that discussion.

Some employers/insurers believe that an employee’s description of their disability is not relevant. This misconception can lead to legal problems under the Nebraska Workers Compensation Act and under the ADAAA.

Under the Nebraska Workers Compensation Act an employee is free to testify to the extent of their own disability once causation of the injury is established. Luehring v. Tibbs, 235Neb. 883, 457 N.W. 2d 815 (1990). The practical effect of this rule is that the court will disregard doctor-given restrictions, even those attained by an FCE, if they find the claimant’s description of their disability to be credible.

Credibility is crucial not just for client’s but for medical providers as well. Insurers and employers might save money through the aggressive use of nurse case managers and occupational medical clinics on the front end of the claim. But employers/insurers may face push back from the court if they believe the injured worker was treated unfairly by their medical providers and employer.

Permanent disability also raises ADAAA compliance issues.

Under Nebraska law, disability for workers' compensation purposes “(The) Probably dependability in which claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck or, the superhuman efforts of the claimant to rise above crippling handicaps.” Money v. Tyrell Flowers, 275 Neb. 602, 748 N.W. 2d 49 (2008).

ADAAA reasonable accommodation is limited to a single employer, so it could follow that an employee who is permanently and totally disabled for workers' compensation purposes can still have a disability discrimination claim if the employer does not attempt to make an accommodation. That is exactly what happened in. Cuiellette v. City of Los Angeles __ Cal.Rptr.3d __, 194 Cal.App.4th 757 (2011) In Cuiellette a Los Angeles police officer who had been accommodated in a desk job was let go after he was found to be permanently and totally disabled. Despite the fact that Cuiellette was able to do the desk job, he was terminated on the advice of the city’s workers' compensation carrier, who stated that since plaintiff was permanently and totally disabled that he was unable to work. Cuiellette was awarded $1.5 million by a California jury.

Nebraska juries are normally less generous to plaintiff’s, but even here failure by workers compensation insurers to take the ADAAA into account could be costly.

Reprinted with permission from Nebraska Workplace Lawyer.

About the Author: Jonathan V. Rehm, of Rehm Bennett & Moore, PC, LLO, practices in the areas of employment law, workers’ compensation, and personal injury. Before earning his law degree, he was a political aide and worked as a stockbroker/trader at Ameritrade in Omaha. Mr. Rehm represents employees in workers' compensation and wrongful termination cases and accident victims in disputes with insurance companies.

Mr. Rehm will be presenting on Settlements and Return to Work Issues at Sterling's "Workers' Compensation Law and Practice" seminar in Omaha.

http://www.sterlingeducation.com/the-sterling-blog/bid/68611/Communication-is-Crucial-Injured-Workers-and-ADAAA-Compliance

Employer Reporting of Health Care Costs on Form W-2

Wed, 21 Sep 2011 14:18:00 GMT

by Rachel B. Arnedt

The Patient Protection and Affordable Care Act, enacted in March of 2010, requires most employers to report the total cost of employer-sponsored group health insurance coverage on Form W-2. It is important to note that this reporting requirement is for informational purposes only – it does not affect the taxability of the benefit.

The following summary is intended to help employers become familiar with this new reporting requirement.

Who Must Report?

All employers, including tax-exempt entities, federal, state and local governmental employers, as well as churches and other religious organizations (but excluding federally recognized Indian tribes), are required to report the cost of employer-sponsored group health coverage.

When Must Reporting Begin?

For most employers, reporting must begin with the 2012 W-2s, due in January, 2013. Reporting is voluntary for 2011; employers may choose, however, to report costs for 2011 in order to test their payroll systems and may rely on the guidance issued in IRS Notice 2011-28 to do so.

Small employers who are required to file fewer than 250 W-2s for the prior year will have the option of reporting for the 2012 year, but reporting will not be required until the 2013 tax year (for W-2s furnished in January, 2014).

Despite what may seem like a long lead time, employers should begin working now to make any necessary changes to their payroll systems and procedures in preparation for compliance with the new reporting requirement, as data collection may need to begin as early as January 1, 2012.

What Coverage and Costs Get Reported?

Employers must report the total cost of coverage under all "applicable employer-sponsored coverage." This includes the entire cost of employee, spouse and dependent coverage under a group health plan, regardless of the extent to which the cost is paid for by the employee, whether the coverage is insured or self-insured or whether the employee is taxed on some portion of the coverage. The reporting requirement applies to both grandfathered and non-grandfathered plans.

Certain coverage is not considered part of the applicable employer-sponsored coverage that must be reported. Contributions to or for the following are excluded:

health savings accounts (HSAs);
health reimbursement arrangements (HRAs);
Archer Medical Savings Accounts (MSAs);
salary reduction contributions to a health flexible spending account (FSA) - but note that employer contributions to the FSA (including employer flex credits an employee chooses to allocate to the FSA) are reportable;
stand-alone dental or vision coverage that is not integrated into a group health plan;
coverage for specific diseases;
long-term care plans;
disability or accident plans;
workers’ compensation;
liability insurance; and
multiemployer health plans.

Most other coverage, including benefits such as on-site medical clinics, executive physicals and prescription drug coverage is included in the definition of applicable employer-sponsored coverage.

How to Determine the Reportable Cost?

IRS Notice 2011-28 provides employers some flexibility in determining the amount to be reported on the employee's Form W-2. The default method of calculating cost is to use the applicable COBRA premium (without the 2% COBRA administrative fee). In the alternative, insured plans can use the total premium charged. Other methods are permitted if the employer determines the cost of coverage based on the prior year's cost, or charges a composite premium (for example, the same cost for self-only and family coverage).

The cost must be determined on a calendar year basis, even if the plan's coverage period is something other than a calendar year, and must take into account any changes in the cost of coverage that occur during the calendar year.

For employees who terminate employment during the calendar year, the employer can limit the total cost of coverage reported on the W-2 to coverage received while the employee was actively employed. At their option, employers may also include the cost of COBRA continuation coverage, as long as the employer chooses one method and applies it consistently. Employers are not required to report the cost of employer-sponsored coverage for any former employee (or surviving spouse or other beneficiary) with respect to whom the employer is not otherwise obligated to issue a Form W-2 for the year.

How to Report Applicable Costs?

The total cost of applicable employer-sponsored coverage should be reported in Box 12 of Form W-2, using code DD. The cost of coverage is not reported on Form W-3.

About the author: Rachel B. Arnedt, with Wiggin and Dana LLP’s Employee Benefits Practice Group in New Haven, practices in qualified and non-qualified deferred compensation, executive compensation, health, welfare, and flexible benefits plans. Her clients include both taxable and tax-exempt employers. Ms. Arnedt rejoined Wiggin and Dana after nearly five years as in-house ERISA counsel for a Fortune 50 company. Read more.

Ms. Arnedt is a frequent presenter on numerous issues in her practice areas, including health care reform and retirement plans. She will be presenting the Health Care Legislative Update at the November employment law seminar in Bridgeport.

http://www.sterlingeducation.com/the-sterling-blog/bid/67415/Employer-Reporting-of-Health-Care-Costs-on-Form-W-2

Regarding Mediation: Legal Technique or Psychology?

Thu, 18 Aug 2011 17:13:00 GMT

by Philip J. Glick

Suppose a litigation.

The parties want it and are willing to pay for it. They may win or may lose, but generally there is some emotional component that demands justice at all costs. Of course, the cost may get really high in comparison to the value of the case, but “I’ll show the other side a thing or two”.

One problem with my scenario is the parties think that justice must prevail, but in fact, they may be sadly disappointed. The judge or jury may see the case very differently, the witnesses may or may not tell the story that is expected, and if all goes well, the values and emotions of our trier of fact and the judge may produce a very different outcome, or the expected outcome, but with shockingly small or large damages.

Often, the cost of litigation can really sting. Maybe not surprisingly, there are cases where litigation expenses equal or even exceed the amount of the case.

Thus the opportunity for a qualified mediator to take a shot at resolving the case.

Here’s how it typically works. The mediator has some brief discussion with counsel to make sure that there are no conflicts and that the case involves matters within the mediator’s experience. Next, the mediator reviews the case file and mediation statements sent by counsel (I only invite mediation statements if counsel want to send them-often the file is enough). Then the mediator might conduct phone discussions with the parties and counsel, or just agree on a date when all are available to meet.

Next, they all meet to mediate the case. The mediator has everyone sign an agreement that primarily establishes his or her fee and everyone agrees to confidentiality. He or she asks the parties to tell their story and he or she listens very closely.

This listening element is very important for several reasons:

Information
Emotional content
Gain credibility

Only by gaining credibility can the mediator hope to settle the case. In my view, whatever else the mediator does, this is the most important element.

The mediator will also know that decisions are mostly emotion based (although few would admit to that), not fact based. So how does the mediator penetrate the emotion and get to the stage where he or she can turn the meeting from competitive to cooperative? By being empathic. The mediator will not only listen to the outrage, but empathize with it (note, I didn’t say agree with it). How do we empathize? By expressing caring, concern and consideration for the discomfort the party is expressing.

When that element is fully vetted, the mediator can begin the process of examining the case with the party. He or she can walk the party through the discovery and trial phases, discussing the pitfalls and unknowns along the way (and there may be many). They may discuss evidence, reliability of witnesses, the cost of litigation, trier of fact unknowns, ambiguous law, damages, collection, etc., all this versus certainty and economy if we get it done today.

In most cases, much of the discussion will have occurred in private caucuses so the confidentiality aspect remains intact.

If not, and the case is not settled, the mediator will not have revealed any party’s weakness to the other side, and the case will proceed to trial as if there had not been a mediation. Personally, I have resolved over 90% of my cases, but I never assume a case will settle. I always believe it will, but never take it for granted.

A case may not settle in one day, and the mediator should phone a few days later to see if the parties are willing to reconsider hard positions. Usually, they are prepared to see the benefit of settlement.

I have settled some cases where no money changed hands, but the parties agreed to joint efforts to further their mutual business goals and dismiss the case. Other cases are purely about money, but with future expense and uncertainty gone, there is probably more willingness to be flexible.

About the Author: Philip J. Glick, Attorney at Law in Northfield, Illinois, practices in mediation and arbitration of contract claims, lease disputes, foreclosure, tort claims, business disputes, securities matters, and family matters. Mr. Glick has been mediating disputes since 2008, settling ninety percent of his cases.

He has lectured for DePaul University College of Law, the Chicago Bar Association, Sterling's Landlord Tenant Law seminar, and others.

For more information, please visit Mr. Glick's website at www.PJGmediate.com, or call 847-433-4452.

http://www.sterlingeducation.com/the-sterling-blog/bid/64232/Regarding-Mediation-Legal-Technique-or-Psychology

Real Estate Loan Workouts and Present Value Analysis

Mon, 15 Aug 2011 15:03:00 GMT

by Denise Evans

Any attorney who negotiates loan workouts or short sales needs to understand the Net Present Value (NPV) analysis used by virtually all lenders.

Simply put, the lender calculates the value of a foreclosure and compares it to the value of a workout or short sale. Because a foreclosure and a loan modification will yield future cash, the lender must discount them to today’s cash equivalent in order to compare them to the nearly-immediate cash obtained from a short sale. This is called calculating the present value (PV) of each scenario. The PVs are then “netted” against each other to see which is most valuable.

Discounting is a fairly simple concept. Suppose a foreclosed property (ORE, REO or OREO, all used interchangeably) could be sold for $100,000 in 24 months. Subtracting holding costs, disposition costs and sales commissions might yield only $89,000. If the discount rate were 12%, then what amount of money invested today at 12% interest would grow to $89,000 in two years? The answer is $70,093. Using a discount rate of 12%, the present value of the foreclosure option is $70,093. You can calculate it in Excel by clicking on “Formulas” and “Insert Function” and then typing PV, clicking GO, and following the instructions.

Sometimes, two alternatives will have substantially the same PV. In that case, the alternative with the fewest risky assumptions will win. Usually, a foreclosure has the largest number of risky assumptions because the lender must assume:

Value of property now and in the future;
Holding period until sale;
Holding costs until sale;
Risk of litigation or bankruptcy and
Legal fees if there is litigation or bankruptcy.

If you want a lender to approve a short sale or loan modification, you must make sure it has accurate information regarding all risks and expenses of the alternatives. To determine the future value of the collateral, the lender will start with an appraisal, which might be supported by information regarding three or four comparable sales. You might want to obtain your own appraisal, supported by six to ten comparable sales, and offer it to the lender for consideration in addition to the one ordered by it. Bear in mind that traditional appraisals exclude foreclosure credit bid prices and ORE sales after foreclosure as duress sales not relevant to determining Fair Market Value. But, if that is the future your lender faces if it does not accept a short sale or workout, then those are exactly the comparables that should be used. When you obtain your own appraisal, you should request the footnote inclusion of lender foreclosure credit bids, and post-foreclosure sales prices. A lender’s credit bid is usually its assessment of the discounted present value of the collateral, and is strongly persuasive to another lender evaluating a loan workout secured by comparable real estate.

Property problems that could result in rapid loss of value—such as roof leaks—should be disclosed, along with a third party estimate of cost to repair. Anticipated HOA increases, assessments, and real estate tax increases should be revealed. For residential properties, it is sometimes necessary to point out that real estate taxes will double after a foreclosure because of the different assessment rate when a property is not owner-occupied. Finally, if you anticipate bankruptcy or litigation, make that fact known to the lender, along with your estimate of time to resolution and anticipated lender legal fees.

This purely analytical process breaks down if you encounter hidden agendas. One type is the community bank that sometimes takes an emotional stance regarding a defaulting borrower, and the desire to punish that borrower.The other type involves a desire by the lender to inflate its asset values. In the typical short sale, the lender receives cash in an amount less than the mortgage note balance, it releases the collateral, and it forgives the deficiency balance. The cash has a clearly defined value. With foreclosure, however, lenders can sometimes book the real estate at a value greater than its current fair market value.The first step for any workout or short sale attorney is to discover the presence of hidden agendas and plan accordingly.

Assuming the absence of hidden agendas, all negotiations and information exchanges should be conducted with the NPV in mind. When you do that, you will see dramatic improvement in your success rate.

About the Author: Denise Evans is a former banking litigation attorney from Texas. She currently resides in Alabama, where she is a commercial real estate broker and a distressed real estate consultant. She is the author of nine books and is much in demand as a seminar speaker.

Ms. Evans will be speaking at Landlord-Tenant Law seminars in Mobile, Alabama; Biloxi, Mississippi; and Montgomery, AL (March 2012).

http://www.sterlingeducation.com/the-sterling-blog/bid/63464/Real-Estate-Loan-Workouts-and-Present-Value-Analysis

Top 10 Things You Need to Know About Health Care Reform Law

Fri, 12 Aug 2011 18:00:00 GMT

by Russell S. Buhite

On March 30, 2010, President Obama signed into law the "Patient Protection and Affordable Care Act" ("PPACA") which marks a significant change in the health insurance framework for both individuals and employer-sponsors. Over the next couple of years, HR and benefits professionals must confer with their financial planners, accountants, and CEO's to make some important decisions relating to health plans and must ensure that they comply with the law. The following are among the most important requirements and considerations in this regard.

(1) Adult children coverage until age 26

Under the new law, effective for plan years beginning on or after Sept. 23, 2010, plans are required to continue coverage for dependent children up to age 26. The value of the coverage need not be included as income to the dependent or the participant. Interestingly, the dependent need not to be living with the participant nor will he be required to establish financial dependency. Even if the dependent is living outside of the parents' home and is married, it does not matter as long as they are under 26. [Tweet this!] For plan years beginning before 2014, a grandfathered plan is only required to provide coverage to an adult dependent if he or she is not eligible for coverage through his or her employer's health plan.

(2) No Pre-Existing Condition Exclusion for Those Under 19

Beginning with plan years on or after Sept. 23, 2010, plans may not impose pre-existing condition exclusions for children under age 19 but for plan years beginning in 2014, they are prohibited from imposing pre-existing conditions on any plan participant.

(3) No Rescissions Except for Fraud

Effective for the same plan dates, plans may not void coverage except if coverage was procured by fraud or intentional misrepresentation of fact.

(4) 1099 Reporting of Vendor Transactions Repealed

A provision of the Health Care Reform Law that required a business of any size to file a Form 1099 for every vendor with whom the business had more than $600 in transactions in a given tax year was eliminated recently.

(5) Certain Voucher Provisions Repealed

Two programs enacted by the 2010 PPACA were repealed and defunded. Recently, lawmakers agreed on a Continuing Resolution (CR) to fund the federal government through September 30, 2011, the end of fiscal year. This CR authorizes $38 billion in funding cuts from existing and planned federal programs, including the Cooperative Health Insurance Programs (CO-OPs) Program and the Free Choice Vouchers Program. Further, Section 10108 of PPACA authorized a voucher system that would allow employers to offer “minimum essential coverage” to employees. The program, supported through new state-based public exchanges, would help subsidize health insurance for qualified employees. Starting in 2014, this provision would have allowed certain employees to withdraw from their employer-sponsored health plan and use an employer contribution to purchase other coverage from a state exchange. However, Section 1858 of the recent Continuing Resolution repealed the “Free Choice Vouchers” Program as well.

(6) Grandfathered Plans and Those Who Give it up

Employers likely have already completed the cost-benefit analysis of retaining grandfather status of an existing plan versus the costs and benefits gained by plan changes. For some employers, the flexibility options might outweigh the benefits of maintaining grandfather status.

Plans that were grandfathered, that is were in existence and enrolled an individual as of March 23, 2010, do not have to comply with a number of PPACA's provisions. Grandfathered plans are required to comply with the following provisions:

Adult dependent coverage;
Pre-existing condition exclusion prohibition for children under 19;
Rescission prohibition;
Restriction on annual benefit limits;
Prohibition against lifetime dollar limit;
Prohibition against unreasonable waiting periods (2014);
Uniform explanation of coverage (2012)

Group health plans will lose their grandfathered status if they make significant changes to the plan that reduces benefits or increases costs to participants. [Tweet this!]

Those who give it up must comply with the following:

Must cover preventative care;
Must cover emergency treatment;
Cannot require authorizations/referrals for OB/GYN services;
Must establish a new appeal process with internal and external review;
May designate participating primary physicians;
Beginning in 2012 they must report regarding plan benefits and reimbursement structures.
Effective 2014, plans may not establish annual cost-sharing limits exceeding certain thresholds.
Effective 2014, insurers in the individual and small-group market must provide policies with "essential health benefits."
Effective 2014, limits will be imposed on small group plan deductibles;
Effective 2014, plans must provide coverage for clinical trials for life-threatening diseases; and
Effective 2014, plans may not discriminate based on health status.

(7) Tax Considerations

Form W-2 reporting for the cost of health care to employees has been delayed to 2012. As for other tax-related issues to discuss with accountants, the health care reform legislation limits distributions for qualified medicine under health savings accounts (HSAs), medical savings accounts (MSAs), health flexible spending arrangements, and health reimbursement arrangements to prescription drugs and insulin. Additionally, the legislation increases the additional tax on distributions from HSAs and MSAs that aren’t used for qualified medical expenses to 20 percent of the disbursed amount. It also provides certain eligible small employers with a new safe harbor from the nondiscrimination rules for cafeteria plans. To be eligible for the safe harbor, you will have to meet certain requirements. It is also important to point out that the health care reform legislation expands the income tax exclusion for employer-provided health coverage to include employees’ children who are under age 27. The legislation did this by extending the definition of “dependent” to include children who will not turn 27 at any time during the applicable tax year.

(8) Contraception and Other Women's Health Procedures Required to be Covered

Starting with plan years beginning after July 31, 2011, most health plans must cover contraception and certain other preventative services for women at no cost in order to comply with federal rules requiring coverage of preventative care for members at no cost under the Health Care Reform law. Plans sponsored by religious groups may be exempt.

(9) Benefits Managers Should Review Plan Wellness and Disease Management Provisions of their Plans for Compliance

Benefit managers should review wellness and disease management provisions to ensure compliance with the Health Care Reform law, the ADA, HIPAA, and the Genetic Information and Non-Discrimination Act ("GINA").

(10) Supreme Court Review of Constitutionality of Individual Mandate

It is anticipated that the Supreme Court will review within the next year the constitutionality of the individual mandate of purchase of health coverage. One Circuit Court of Appeal has upheld the law and the split in the district courts is nearly 50-50. Stay tuned as this will be an important Commerce Clause decision and the pundits really don't know yet how it will turn out.

About the Author: Russell S. Buhite is a shareholder with Marshall, Dennehey, Warner, Coleman & Goggin's Professional Liability Department in Tampa. With over twenty years of experience, he focuses on the defense of life, health and disability litigation claims. In addition to his experience in health care and health insurance litigation, Mr. Buhite has worked with insurance carriers to provide coverage defense in life, health, and disability litigation as well as myriad ERISA matters.

Mr. Buhite will be presenting the Health Care Legislative Update section at the upcoming Employment Law Update seminar in Tampa.

http://www.sterlingeducation.com/the-sterling-blog/bid/63509/Top-10-Things-You-Need-to-Know-About-Health-Care-Reform-Law

Texas Lockouts: Do Them Right and Avoid a Tenant Tangle

Thu, 11 Aug 2011 18:40:00 GMT

By Karen L. Hart

Texas landlords have a unique statutory right to lockout their commercial tenants who are delinquent in paying rent. Other jurisdictions, such as California, do not allow landlords this legal luxury, and often require formal eviction proceedings in court. Texas landlords, however, need to be sure they are posting the required lockout notices to avoid tangling with their tenants in court. In Texas, failing to post the required statutory lockout notice can result in:

Procedural maneuvering and increased attorneys’ fees;
Termination of the lease and the loss of future rent; and/or
A claim for damages, attorneys' fees, and court costs asserted against the landlord.

Notice Requirements:

Pursuant to the Texas property code, when a commercial tenant is in default for failing to pay rent, a landlord in Texas can change the locks at the leased premises and lockout the tenant. Tex. Prop. Code § 93.002(c)(3). However, written notice must be posted on the tenant's front door stating the name and address or telephone number of the individual or company from which a new key may be obtained. Tex. Prop. Code § 93.002(f). A new key is only required to be provided during the tenant's regular business hours and only if the tenant pays. Id.

Before taking steps to lockout a tenant, always read the written lease for any additional or different contractual requirements or conditions.

Tenant Rights:

Under Texas law, if a landlord fails to post the statutorily required notice and wrongfully locks a commercial tenant out of the leased premises, a tenant may:

Recover possession of the premises through an ex parte reentry proceeding; or
Terminate the lease; and
Recover damages and attorneys’ fees against the landlord.

Tex. Prop. Code §§ 93.002(G); 93.003.

Lockout Compliance:

Failing to provide the required statutory notice can result in procedural wrangling and increased costs for a landlord. With an ex parte writ of reentry proceeding, a tenant can force their way back into a space without prior notice. To have the tenant removed from the premises will then typically require a final hearing on the tenant’s reentry claims, which means more headaches and fees. If a tenant terminates a lease in the face of a wrongful lockout, the tenant may escape liability for potentially significant future rent due under the lease, reducing the landlord’s ultimate damages claim against the tenant. Further, a tenant, at the very least, will have a colorable offset to the landlord’s rent claim with their own claim for damages, such as lost profits, resulting from the alleged wrongful lockout, in addition to the tenant's attorneys' fees and court costs.

Locking out commercial tenants is a powerful procedure for Texas landlords.

They just need to be sure to do it right.

About the Author: Karen L. Hart is a partner at Bell Nunnally & Martin LLP. Karen provides counseling to her clients in areas of commercial litigation, landlord-tenant and real estate issues, and creditors' rights.

Karen has nearly a decade of experience in litigating complex commercial disputes, lease disputes, commercial evictions, specific performance claims, business tort cases, general business contract, and payment disputes. She has been featured in Texas Monthly Super Lawyers® as a Rising Star® in 2006, 2007, and 2011.

Karen will be presenting "The Eviction and Judicial Process" and "Overview and Effective Use of Mediation/Dispute Resolution" at the upcoming Commercial Landlord Tenant Law & Lease Negotiations Seminar in Dallas.

http://www.sterlingeducation.com/the-sterling-blog/bid/63466/Texas-Lockouts-Do-Them-Right-and-Avoid-a-Tenant-Tangle

Sterling's New Commercial Litigation & Business Torts Seminar

Thu, 11 Aug 2011 17:38:00 GMT

by Anthony Horky

Today's tough economic climate has forced many businesses to take a hard look at their bottom line, while attempting to cut costs and recoup loses. Often, this results in litigation.

Commercial litigation can involve complex fact patterns and legal issues, multiple parties, expert witnesses, a variety of potential causes of action, and high financial stakes. Sterling's new seminar, Commercial Litigation and Business Torts, will provide the practitioner with a solid foundation for handling contract and fraud claims, deceptive and unfair trade practices, breaches of fiduciary duty and intentional interference with contractual and business relationships.

This course offers something for every commercial litigator, from the seasoned practitioner looking to update his knowledge and resources to the attorney looking to expand his practice to include commercial litigation. Attendees will be introduced to the basics including jurisdiction, venue, discovery and evidence issues, protecting trade marks, privileges and class actions. Next, the presenters will provide valuable and practical information for evaluating, prosecuting and defending a variety of commercial cases.

The presenters are accomplished and insightful speakers, who have prepared written materials for the audience, can answer questions and provide you with helpful practice tips.

Whether you are considering starting a commercial litigation practice or simply want to reinforce or update your skills, you will benefit from this seminar.

About the Author: Anthony J. Horky concentrates his practice on commercial litigation and business torts, landlord and tenant disputes, construction claims, employment law and commercial real estate litigation. Mr. Horky routinely represents lenders, investors, brokers, contractors, vendors, commercial landlords and title insurers. Mr. Horky is a regular speaker at seminars and presentations in south Florida.

Mr. Horky will be joined by Oscar A. Sanchez, with Akerman Senterfitt; Leonard K. Samuels with Berger Singerman; Kevin Markow with Becker & Poliakoff, P.A.; and Sidney C. Calloway Shutts & Bowen LLP to present the Commercial Litigation and Business Torts seminar in Fort Lauderdale on September 13, 2011.

http://www.sterlingeducation.com/the-sterling-blog/bid/61573/Sterling-s-New-Commercial-Litigation-Business-Torts-Seminar

Modern Employment Law [Part 1]

Wed, 27 Jul 2011 14:24:00 GMT

by Greg R. Mansell

Advancements in Technology Expose Employers and Employees to Increased Risk

The twenty-first century has seen a continual and unprecedented growth of technology from advancements in medicine to the creation of social networking sites that seamlessly link individuals around the globe. The benefits of this continued growth are limitless: early detection of health risks through genetic DNA examination, inexpensive yet drastically global advertising through social media and networking sites, instant access to information through the click of a button on your computer, iPad or smart phone. Indeed, these benefits are well known to most individuals because they are widely promoted and publicized. Unfortunately, there is rarely good without some bad. Advancements in technology create several risks to employers and employees that go unnoticed by the majority of the population. Employers and employees should be educated and aware the underlying risks and liabilities that accompany these increases in technology. Continuous and assertive preventative policies and education on these topics will allow employers and employees to avoid the endless possibility of risks. This effort must be constant and assertive to keep up with the rapidly growing technological era. Genetic testing, unauthorized employees and social networking sites are among the most prominent topics affecting employment law today.

Genetic Information Nondiscrimination Act (GINA)

Genetic testing, through the examination of DNA molecules, allows medical personnel to detect diseases and conditions significantly sooner and more accurately than when normal symptoms would trigger diagnosis or examination of the patient’s health.¹ The benefits of genetic testing are obvious and substantial: earlier awareness of the condition allowing for earlier treatment; clarification of diagnosis allowing for more appropriate treatment and identification of those with a higher risk to establish preventative measures to avoid those health conditions.² Although the benefits are many, the availability of genetic information opens the door to potential employer discrimination against employees or potential employees based on this information.⁴ In an effort to circumvent these unfair practices, the federal government passed the Genetic Information Nondiscrimination Act (GINA).³ GINA is a Federal law prohibiting discrimination in health insurance and employment based on genetic information.⁵ As of yet, most claims with the EEOC concern the acquisition of genetic information, rather than assertions of an actual adverse employment action based on that information.⁶However, cases of the latter are starting to present themselves. Thus, employers must consider ways to not only avoid employment decisions based on an employee’s genetic information, but more broadly, employers need to develop a comprehensive policy and educate staff to avoid obtaining this information on behalf of the employer.

Unauthorized and Illegal Employees: E-Verify

As the world becomes more globalized, issues of illegal immigration and unauthorized employees become more problematic. In 1952, the government enacted the Immigration and Nationality Act (INA).⁷ In 1986, the INA was amended to prohibit the hiring or continued employment of aliens when employers know that the aliens are unauthorized to work in the United States.⁸ With this amendment, a document-based system was created to verify potential employees are authorized to work in the United States.⁹ With growing technology, the Department of Homeland Security with the Social Security Administration, introduced the E-Verify system on the Internet, which instantly allows employers to electronically verify authorization of potential employees. More than 238,000 employers now use E-Verify.¹⁰ Over 1,400 companies enroll in the program each week.¹¹ In 2011, the Supreme Court confirmed that states may mandate the use of E-Verify.¹² Ohio, through House Bill 286, is attempting to follow in Arizona’s footsteps. However instant and beneficial the technology, the program is not without risk and some disadvantages. Employers must consider the liability risks involved with E-Verify, which includes signing a Memorandum of Understanding.¹³ Additionally, E-Verify presents disadvantages to both employers and potential employees, including the potential of inaccurate results delaying employment and adjustments for Human Resources departments.

Continue to Part 2: Social Media and Networking

http://www.sterlingeducation.com/the-sterling-blog/bid/61702/Modern-Employment-Law-Part-1

Modern Employment Law [Part 2]

Wed, 27 Jul 2011 14:24:00 GMT

by Greg R. Mansell

Continued from Part 1: Technology, GINA & E-Verify

Social Media and Networking

Perhaps the largest issue facing employment law today is the affect of social media and networking sites on employers and employees. The boom of social media from MySpace, to Twitter and Facebook, to more professionally focused sites like LinkedIn, creates many opportunities and access to information for employers and employees; however, these sites also create risk and liability. These sites can be used or misused in the hiring process, while employed and even after employment. In the hiring process, employers may become privy to otherwise protected information such as age, sex, religion, disability, genetic information, race, national origin and/or pregnancy.¹⁴ In addition to the potential of disparate treatment claims, an employer must consider the possibility that access and use of these sites in hiring may result in disparate impact claims. Further, employers’ use of these sites in firing decisions creates liabilities including the potential of infringing upon employee rights under the National Labor Relations Act¹⁵, Fair Credit Reporting Act, Stored Communications Act¹⁶, and privacy¹⁷, whistleblower and retaliation laws. Additionally, employees’ comments on these sites are available and open to the public in many situations and may expose the employer to additional liabilities. Employees also face risks by posting information not protected by any of the abovementioned laws about their employer online that may result in adverse employment action.¹⁸Again, although the benefits of these sites are widespread; employees must be aware of the risks and employers must develop compliance policies to circumvent the many potential risks and liabilities associated with this technology.

Take Away

The lesson is for employers and employees to embrace and appropriately utilize the growing advancements in technology and social media. However, the caution is to assertively address these advancements with comprehensive prevention-focused policies and constant education concerning the risks and liabilities that both employers and employees face when using these resources. The resources may and should be used to assist employers and employees, yet these resources must be monitored and regulated by assertive, preventative policies to avoid the serious risks and disadvantages of using them. Advancements will continue, so must policies and education on use of these resources. Continuous, comprehensive understanding and assertive policies are the foundation steps in avoiding risks.

References

Written by Greg R. Mansell, Attorney at Law, BeggsCaudill, LLC with assistance from Margaret Prunte, Student at The Ohio State University, Moritz College of Law.

About the Author: Greg R. Mansell focuses his practices in employment law, primarily on the plaintiff's side. In addition, he advises businesses on policies contained in employee handbooks and provides guidance to human resource departments. Mr. Mansell has contributed and authored several articles on employee rights in the workplace and upon termination. Read more.

http://www.sterlingeducation.com/the-sterling-blog/bid/61703/Modern-Employment-Law-Part-2

Modern Employment Law [References]

Wed, 27 Jul 2011 13:51:00 GMT

by Greg R. Mansell

Part 1:

Part 2:

[1] Information gathered from the Human Genome Project, Genomic Science Program. http://www.ornl.gov/sci/techresources/Human_Genome/medicine/genetest.shtml Last visited: 7/25/2011.

[2] See id.

[3] P.L 110-223, 122 Stat. 881.

[4] See id.

[5] 90 claims filed with EEOC so far concerning GINA issues, most of these concern the acquisition of information.

[6] Connecticut Law Tribune, “Genetic Tests Spark New Type of Litigation” (May 3, 2010). Pamela Fink underwent genetic testing to see if she had a predisposition for breast cancer after her sister was found to have breast cancer. Her other sister shortly after was diagnosed with breast cancer. Pamela decided to pursue preventative mastectomy surgery. After always having outstanding reviews upon her return, her company downsized her responsibilities. She was demoted and later terminated. Pamela filed complaints against her employer with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission.

[7] McCarran-Walter Bill, (Pub. L. 82-414).

[8] Immigration Reform and Control Act of 1986 (Pub. L. 99-603).

[9] This was the I-9 form system which required employers to keep on file verification of authorization available for federal officials to inspect should they choose.

[10] Information obtained through the U.S. Citizenship and Immigration Services. http://uscis.gov Last accessed: 7/25/2011.

[11] See id.

[12] See Chamber of Commerce of the United States of America, et al. v. Whiting, et al., 131 S. Ct. 624 (2011).

[13] 73 Fed. Reg. 33,374 Article II.C.15 (June 12, 2008).

[14] Title VII, ADA, GINA, and ADEA.

[15] There are about 24 pending lawsuits in the US on firings over things posted on a social network forum, most of which are brought by the National Labor Relations Board. Two settlements, no legal precedent: (1) Employee fired because of complaints about her work on her Facebook. Employer revised policies regarding online communications, but the employer was not rehired; (2) claim for retaliation for Facebook comments about possible labor violations. Settlement included offer of rehire, which was declined, but reimbursement for lost wages accepted.

[16] See Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 2009).

[17] See generally, 270 F.R.D. 430, 110 Fair Empl. Prac. Cas. (BNA) 49 (S.D. Ind. May 11, 2010).

[18] For example, workplace harassment can extend to off-site online communications, or online communications could be circumstantial evidence of workplace harassment. See Blakey v. Conti’l Airlines, 164 N.J. 38 (N.J. 2000).

http://www.sterlingeducation.com/the-sterling-blog/bid/61704/Modern-Employment-Law-References

Transfers to a Completed-Gift Asset Protection Trust

Mon, 25 Jul 2011 16:24:00 GMT

by Edward D. Brown

The “Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010” (“TRA 2010”) was enacted on December 17, 2010. TRA 2010 allows gifts of up to $5 million without incurring any gift tax. If one is married, the $5 million can be doubled to $10 million if the couple gift-splits. Unfortunately, the provisions of TRA 2010 sunset at the end of 2012. So, without further Congressional action, on January 1, 2013, the lifetime gift tax exemption reverts to $1 million ($2 million for couples). There are planning strategies that should be considered during this possibly small window of opportunity. One of those strategies is the use of a completed-gift asset protection trust.

Very few “asset protection trusts” that exist today were designed to remove assets from the settlor's (i.e., creator‘s) taxable estate. This opportunity has huge beneficial ramifications. Such a trust not only allows the trust assets to be removed from the settlor’s estate without paying a gift tax (a “completed-gift” trust), but also protects the assets of up to $10 or possible $15 (see below) million from the client’s future unexpected creditors.

One can now transfer up to $5 million (or $10 million for couples that gift-split) to a completed-gift trust without incurring a gift tax. The ability to transfer even a higher amount, such as $15 million, to the completed-gift trust can be accomplished if the transfers involve assets held in a family limited partnership or family limited liability company, which benefit from valuation discounts (at least until Congress succeeds in its continuing efforts to pass legislation to take away this discounting ability).

If the tax law reverts at the end of 2012 to only a $1 million lifetime tax exemption, anyone who had made the transfers of $5 million or $10 million (or more with discounting) in 2011 or 2012 may have already successfully removed these amounts (plus appreciation) from their estates during the allowable small window of opportunity.

Furthermore, if the estate tax is repealed (and if the settlor no longer has a desire to keep the asset protection in place), the trustee of the completed-gift trust could return all the trust assets to the settlor, provided that the trustee decides to do so in its own independent initiative as opposed to being due to any influence asserted by the settlor.

Considering the above, the settlor can not “lose” either way, whether the estate tax law stays as is, whether the estate tax law returns to its harsher prior status, or even if the federal estate tax is ultimately repealed.

If any details are desired regarding this planning strategy, please feel free to contact its author, Edward D. Brown, Esq., Engel & Reiman pc, by telephone at 303-741-1111, Ext 110 or by e-mail at e.brown@engelreiman.com.

About the Author: Edward D. Brown specializes in estate planning, taxation, and business transactions and planning. Mr. Brown is also a Certified Public Accountant. He will be speaking at the Estate Planning Update Seminar in Cheyenne, Wyoming. Read more.

http://www.sterlingeducation.com/the-sterling-blog/bid/61568/Transfers-to-a-Completed-Gift-Asset-Protection-Trust

4 Reasons Every Attorney Should Present Live CLE Seminars

Mon, 25 Jul 2011 16:20:00 GMT

by Abigail Cella

I enjoyed presenting at the 6^th Annual Sterling Education Services Landlord-Tenant Law seminar held on July 13, 2011 in Indianapolis, IN. I decided to join the faculty for this seminar in order to

Share my seven years of knowledge and experience in the area of real estate litigation,

Gain additional knowledge in the area,

Network with other lawyers and individuals involved in landlord-tenant matters and

Obtain continuing legal education credits.

Prior to the seminar, Sterling Education Services provided helpful reminders and tips for preparing written materials and tips for presenting at the seminar. The seminar was well organized and attended by lawyers that practice in the area as well as residential landlords interested in learning more about landlord-tenant law in Indiana.

The seminar provided great networking opportunities, the chance to learn more about my area of practice and continuing legal education credits. The atmosphere allowed for comfortable discussion of various topics between the presenters and the attendees.

I look forward to the opportunity to present in the future.

About the Author: Abigail Cella is an associate with the Indianapolis office of Ice Miller LLP. She concentrates her practice in land use and business litigation. Ms. Cella practices in both state and federal court and represents clients in administrative agency and quasi-judicial hearings. Her trial experience includes representing businesses in litigation involving landlord-tenant, eminent domain, land use, zoning, insurance, contract, riparian rights, mineral rights, collection, and tax sale issues. Read more.

If you are interested in being contacted regarding speaking opportunities with Sterling, please submit a request or contact Marilyn Davis at ses3@sterlingeducation.com.

http://www.sterlingeducation.com/the-sterling-blog/bid/61566/4-Reasons-Every-Attorney-Should-Present-Live-CLE-Seminars

Beyond the Seminars

Tennessee Lawful Employment Act: What It Means

The Tennessee Lawful Employment Act is being phased in:

10 Easy Steps to Lull an Audience to Sleep

If you’ve always dreamed of being a human sleep aid (pun intended) here are 10 easy things ways to make your dream a reality:

1. Talk entirely too quickly or incredibly too slowly

2. Be sure to read from your notes

3. Tell bad jokes

4. Say "um" as much as possible

5. Ignore questions or don't answer them directly

6. Don't do any research

7. Walk constantly and use excessive hand gestures

8. Rely on PowerPoint as much as possible

9. Use lots of jargon and acronyms

10. Above all, make your speech as boring as possible

LLCs Face Double Taxation

This presentation will:

Who's Responsible for Smoke Detectors: Landlord or Tenant?

Landlords' and Tenants' Duties

Taking Your Law Practice Social

Social Networks

Blogging

Legal Advice

Forums

7 Dos and Don'ts of Dealing With Unrepresented Tenants

The Rule

7 Dos and Don'ts When Negotiating With A Pro-Se Tenant In Court

Workplace Bullying Breeds Controversy

Unique Provisions in Divorce Agreements

Over the last 33 years, I have observed and noted problems which has arisen with the way agreements are drafted:

We have developed unique provisions to address such issues.

The Key to Success in Legal Marketing

It's not about you; it's about them.

To add value, lawyers need to be genuine in their marketing and client-relationship efforts.

The Secret to Skipping Law School

"Reading the Law"

Participating States

Pros and Cons

Resources

HR Professionals: Salary & Certification [Infographics]

Share the data!

Risks and Realities of Smoking and Real Property Tenants

It is not only legal, but advisable, to ban smoking in apartment buildings

Violation of the Fair Housing Act

Liability, Litigation

Turnover and the Bottom Line

New Immigration Law in Alabama

Excerpt from Alabama's Immigration Law – A Summary and Status Update

CONSEQUENCES OF THE LAW’S ENACTMENT

HOW DOES ALABAMA’S LAW COMPARE WITH THAT OF OTHER STATES’ LAWS?

Communication is Crucial: Injured Workers and ADAAA Compliance

Employer Reporting of Health Care Costs on Form W-2

Who Must Report?

When Must Reporting Begin?

What Coverage and Costs Get Reported?

How to Determine the Reportable Cost?

How to Report Applicable Costs?

Regarding Mediation: Legal Technique or Psychology?

Real Estate Loan Workouts and Present Value Analysis

Top 10 Things You Need to Know About Health Care Reform Law

(1) Adult children coverage until age 26

(2) No Pre-Existing Condition Exclusion for Those Under 19

(3) No Rescissions Except for Fraud

(4) 1099 Reporting of Vendor Transactions Repealed

(5) Certain Voucher Provisions Repealed

(6) Grandfathered Plans and Those Who Give it up

(7) Tax Considerations

(8) Contraception and Other Women's Health Procedures Required to be Covered

(9) Benefits Managers Should Review Plan Wellness and Disease Management Provisions of their Plans for Compliance

(10) Supreme Court Review of Constitutionality of Individual Mandate

Texas Lockouts: Do Them Right and Avoid a Tenant Tangle

Notice Requirements:

Tenant Rights:

Lockout Compliance:

Locking out commercial tenants is a powerful procedure for Texas landlords.

They just need to be sure to do it right.

Sterling's New Commercial Litigation & Business Torts Seminar

Modern Employment Law [Part 1]

Advancements in Technology Expose Employers and Employees to Increased Risk

Genetic Information Nondiscrimination Act (GINA)