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The Lawyer Thread Where We Stop Ruining Other Threads (4 Viewers)
- Thread starter Henry Ford
- Start date
T Bell
Footballguy
I'm working with my former law partner on what amounts to a legal malpractice complaint that we're filing tomorrow against an attorney who basically stole his Spanish-speaking clients' rental property from them. They went for legal advice and left with an "option contract" that's so one-sided it's laughable.Henry Ford said:
This will be one of those rare cases in which the plaintiff will file an early motion for summary adjudication, and it will be based primarily upon recission. If we win this, every other one of the 14 other causes of action will be a slam dunk.
krista4
Footballguy
Otis
Footballguy
Still pretty young to be talking about enjoying life so much and not having to work, no? What a life. Travels the world and lives in lots of cool places and working what sounds like the sweetest law gig I think I've ever heard. I need one day to get into one of these virtual firms.46 :(
Federal, yes definitely. State court, only if you want to practice in that jurisdiction for an extended period of time. Take a look at lateral associate job postings at big law firms - tons of them have stuff like "federal clerkship experience preferred." That badge definitely helps get your resume noticed in the hiring process.
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Otis
Footballguy
I agree with this. Clerking can be the best job you've ever had or the worst depending on the judge. I consider my judge a personal friend and so it was fantastic. I've heard horror stories though. Outside of personality fits, the type of experience you get will also depend on the judge and the court. I clerked at the district court level and was given lots of opinion writing responsibility. Associates at big firms generally don't get to write SJ briefs and what not until they hit mid level status, but that experience writing SJ opinions convinced my partners that I could step in and do that at the firm almost immediately. But, I had a friend who clerked for a senior judge who just surfed the internet all day. There are also law firm partners who will not care about what you did as a clerk and do not place any value on the experience. YMMV. You can try to get a feeling for what the judge will have you be doing when you interview with the judge's current clerks, if you phrase your questions carefully (ie "describe what your day to day responsibilities are like" rather than "will I actually get to draft the opinions?").
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GroveDiesel
Footballguy
Not to muck up lawyer talk with tax talk, but had to clarify one thing in my previous post for YF23:
Even if a distribution is an allowable hardship distribution, the taxes and 10% penalty are still required. (Not sure if that was the whole fine or not).
If the IRS determined it was not an allowable hardship, then they could assess more penalties which may be the case here.
Either way, it sounds like you may not have much leg to stand on and pleading mercy may be the best course of action.
Or, in the case of bad advice from an accountant or other financial professional, aiming your legal sword at the individual who gave bad advice.
Even if a distribution is an allowable hardship distribution, the taxes and 10% penalty are still required. (Not sure if that was the whole fine or not).
If the IRS determined it was not an allowable hardship, then they could assess more penalties which may be the case here.
Either way, it sounds like you may not have much leg to stand on and pleading mercy may be the best course of action.
Or, in the case of bad advice from an accountant or other financial professional, aiming your legal sword at the individual who gave bad advice.
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Yankee23Fan
Fair Tax!
I appreciate it GD.... I'll give a little more insight because I think this particular case is different and worth a fight for my client.
Client © was in one state at the time and dad (D) and evil sibling (E) were in another. C traveled back and forth as much as possible to see D and knew that E was caring for him. E never had any money to speak of and D only had a house with no mortgage while C was very well off at the time so C would just tell them to give him bills so he could pay them. He never really questioned any of the bills because he was paying for D. D starts to enter final months of life and the bills get higher and higher. E informed C one day that D was having an emergency (which was true) and needed to be taken to a hospital (true). C was not able to make back to see any of this though. A few days later E informs C that D needs a whole host of different care things and the cost was massive and that if they couldn't pay for it somehow D would lose his house (which in a MediCaid sense could be true). In the span of less than 36 hours, C let E talk him inot liquidating his investment account and sending the money to E so that D could get the immediate care needed.
That was all a hoax. D did fine in the hospital and was returned home. E just stole the money. The taxable event for C though is the withdrawal. But the withdrawal does not happen without the criminal fraud. And the criminal fraud was just that. After weeks/months go by and C can finally make it back he realized what happened saw that bills he thought he was paying were stacked up and that D needed more care and E was gone in the wind for the monst part. The county prosecutor was notified and a rather quick investigation led to the arrest and indictment of E for what happened. But the money was already gone.
Now a lot of stuff happened to my guy in the interveneing years that is kinda relevant but way too long to get into. But he basically dropped off the grid and lost everything and it took me a year and a half to fix everything for him and actually rebuild his life from scratch. But the end result was that he didn't need to file any returns for a long period of time because there was nothing there to file. Flash forward to after I fix everything and he starts his life again, he files this year and boom - you owe the IRS their blood money.
I've dealt on the edges of cases where an accountant stole money from people and the IRS takes the position that the taxes are due anyway and the fines are due anyway and I get that - and yes I know I can work with them and I am going to try. But this isn't the case where he had this reportable income (the withdrawal) anyway. If not for an actual crime that was prosecuted, he would not have created a taxable event. I think that separates it from the examples you gave above. Maybe I'm wrong. I am going to try to work with the IRS and if he can pay them pennies on the dollar or they can agree that the money is noncollectable great, but there is enough at stake to fight them so I have to prep myself for trial work or I'm not doing my job.
Client © was in one state at the time and dad (D) and evil sibling (E) were in another. C traveled back and forth as much as possible to see D and knew that E was caring for him. E never had any money to speak of and D only had a house with no mortgage while C was very well off at the time so C would just tell them to give him bills so he could pay them. He never really questioned any of the bills because he was paying for D. D starts to enter final months of life and the bills get higher and higher. E informed C one day that D was having an emergency (which was true) and needed to be taken to a hospital (true). C was not able to make back to see any of this though. A few days later E informs C that D needs a whole host of different care things and the cost was massive and that if they couldn't pay for it somehow D would lose his house (which in a MediCaid sense could be true). In the span of less than 36 hours, C let E talk him inot liquidating his investment account and sending the money to E so that D could get the immediate care needed.
That was all a hoax. D did fine in the hospital and was returned home. E just stole the money. The taxable event for C though is the withdrawal. But the withdrawal does not happen without the criminal fraud. And the criminal fraud was just that. After weeks/months go by and C can finally make it back he realized what happened saw that bills he thought he was paying were stacked up and that D needed more care and E was gone in the wind for the monst part. The county prosecutor was notified and a rather quick investigation led to the arrest and indictment of E for what happened. But the money was already gone.
Now a lot of stuff happened to my guy in the interveneing years that is kinda relevant but way too long to get into. But he basically dropped off the grid and lost everything and it took me a year and a half to fix everything for him and actually rebuild his life from scratch. But the end result was that he didn't need to file any returns for a long period of time because there was nothing there to file. Flash forward to after I fix everything and he starts his life again, he files this year and boom - you owe the IRS their blood money.
I've dealt on the edges of cases where an accountant stole money from people and the IRS takes the position that the taxes are due anyway and the fines are due anyway and I get that - and yes I know I can work with them and I am going to try. But this isn't the case where he had this reportable income (the withdrawal) anyway. If not for an actual crime that was prosecuted, he would not have created a taxable event. I think that separates it from the examples you gave above. Maybe I'm wrong. I am going to try to work with the IRS and if he can pay them pennies on the dollar or they can agree that the money is noncollectable great, but there is enough at stake to fight them so I have to prep myself for trial work or I'm not doing my job.
GroveDiesel
Footballguy
I wish you luck. Sounds like this guy could really use it. I still think your best chance will be to find some compassionate person at the IRS. I'm afraid that if it goes to trial that it will be determined that the fraud simply means your client needs to try to sue his dirt bag sibling for the damages to him (which I'm guessing would be fruitless), but that the government is still owed their pound of flesh for an improper distribution.
I still don't understand how any plan administrator allowed that distribution to happen. If that had come across my desk, I would have felt horrible in declining it, but no way would I have processed a medical hardship distribution for a parent. Frankly, there could be liability on the part of the administrator for allowing that to happen.
I still don't understand how any plan administrator allowed that distribution to happen. If that had come across my desk, I would have felt horrible in declining it, but no way would I have processed a medical hardship distribution for a parent. Frankly, there could be liability on the part of the administrator for allowing that to happen.
Yankee23Fan
Fair Tax!
I agree I would go this route.Henry Ford said:
Yankee23Fan
Fair Tax!
I've been in that position. It's amazing what well crafted pleadings can do. I'm a big fan of making someone admit one thing by denying another. I have a case going on right now where I'm trying to box the plaintiff into something like that. If my guy is controlled by statute A he has no liability because of X but if he is controlled by common law B then he has no liability because of Y - and arguing against one proves the other. It's a fun exercise... you know, minues the million dollars my client is looking at if we lise the case.... but still.Henry Ford said:
Henry Ford
Footballguy
I may have poorly worded this. There was absolutely no reason whatsoever for them to admit to anything in their MSJ. They're also asking to be dismissed with prejudice. It really looks like the attorney forgot all of the causes of action except one.
It's akin to "Your honor, there's no way my client could be guilty of murder, because he was sexually assaulting the woman down the street at the time. We ask that all charges be dismissed."
And then not even discussing the concurrently-filed sexual assault charges in the brief.
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Yankee23Fan
Fair Tax!
Yankee23Fan
Fair Tax!
Nah I'm in a good mood right now. I've opened 12 files since yesterday. I can't see the surface of my desk at the moment, which sucks. And I had to speed through my bracket with the groups of lawyers and firms that I do one with (which is worth the entertainment alone of seeing website posts for litigators who are awesome in court not able to type about sports in an adult manner) so that sucked. But all in all, I'm counting the hours until I can get to the gym and punish myself for the chinese food I had last night (always, always better to ask forgiveness than permission. Always).
NCCommish
Footballguy
NCCommish
Footballguy
Henry Ford
Footballguy
Zow
Footballguy
Yeah that's what I'd do. Just sounds like a terrible decision to actually take the case on many levels.T Bell said:
Plus, to the extent that she hasn't burned that bridge, she'd be incinerating it by rep'ing that client against her old firm. I'd find a close friend who won't steal the client and refer her.
Zow
Footballguy
NCCommish
Footballguy
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Wilfredo Ledezma
Footballguy
Henry Ford
Footballguy
Yes, I bet I would. But the individuals who are entitled to money in the kinds of cases I take generally don't.
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Wilfredo Ledezma
Footballguy
Henry Ford
Footballguy
Zow
Footballguy
I know a good defense attorney that'll keep me out of jail. Also, criminal contempt in AZ is jury trial eligible.
Henry Ford
Footballguy
That's fair, and I appreciate the thought.
I generally try to analogize everything to something else instead of airing details, but I certainly can see where it can be too much to even do that. Excellent advice I generally give, and it's good to get it from someone else.
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Zow
Footballguy
Arizona actually has an ethics opinion on this that I read a few years ago (because I'm a member of a criminal defense association here which has a brainstorming-type message board). IIRC the key is to keep the details vague enough that the average reader could not easily identify the actual case if he went looking for it. I think the issue for something like this board though is that we're crossing jurisdictional lines and it may be unethical to take "advice" on an actual case from someone not licensed in your jurisdiction.
Yankee23Fan
Fair Tax!
Trust me, I will not be using the argument, "because Zow" said so in any pleading or letter.
But this is true and why it is hard to ask questions in our profession. The answers end up being so damn fact specific that you need every detail. And you can't give every detail. It is what it is.
Zow
Footballguy
I'd certainly hope not, but I think Otis's point rings true here because there is the unlikely but not impossible scenario where someone connects you to this message board (admittedly unlikely) and decides to scan it after a particular case of yours (more unlikely) and discovers that the argument you used to win a particular motion or whatever was actually crafted brilliantly by some guy named Zow (even more incredibly unlikely). That could get hairy.
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Ramsay Hunt Experience
Footballguy
Why?
There are all kinds of practice-specific newsgroups and message boards out there. As long as everyone is careful not to disclose privileged information and not to create the appearance of representation, I see no bar against asking other lawyers how they would handle certain questions. I mean, if some appellate advocate actually crafted a winning argument after reading a blog post at the Volokh Conspiracy, nobody would assume any impropriety.
Henry Ford
Footballguy
Agreed. People get sample pleadings and massive amounts of advice and information through a listserv all the time.
Ramsay Hunt Experience
Footballguy
This brings up my pet peeve with firms that: a) want you to help establish a "blogging presence"; and then b) don't want you to write anything interesting.
At my last firm, we probably had a meeting every two months or so about starting up a blog, but it always came down to, "why don't you just summarize new cases out of the area." And my answer was always because I don't read those types of blogs and I don't think anyone else does either. I can read cases myself. The only legal blogs I read are more substantive (like Patently Obvious, SCOTUSBlog, or Volokh).
At my last firm, we probably had a meeting every two months or so about starting up a blog, but it always came down to, "why don't you just summarize new cases out of the area." And my answer was always because I don't read those types of blogs and I don't think anyone else does either. I can read cases myself. The only legal blogs I read are more substantive (like Patently Obvious, SCOTUSBlog, or Volokh).
Chaos Commish
Footballguy
Thank you. I put myself in FFA client shoes and felt uncomfortable more than once reading this thread.
Chaos Commish
Footballguy
I guess it depends on the type of practice but a stolid social presence online can bring in business. Why blog if it isn't about business?
Ramsay Hunt Experience
Footballguy
Recapping cases isn't about business. I can't imagine one client who would choose a firm based upon a blog post about how the Fourth Circuit is now treating the Rule 9 requirement to plead fraud with particularity. Any firm can just summarize that decision. What value does it add?
Ignoramus
Footballguy
Seems like as good a place as any to ask this.
In Texas, my FIL recently passed away and is survived by his wife. Evidently he had one bank account that did not have both of their names on it, just his. The bank is not wanting to release anything to his wife, even account information, unless she provides Letters of Testementary. This seems silly to me. Lawyer says that filing all of this will run about two racks.
Does this sound reasonable? What happens when someone doesn't have the money for that, does the bank just get to keep the money?
In Texas, my FIL recently passed away and is survived by his wife. Evidently he had one bank account that did not have both of their names on it, just his. The bank is not wanting to release anything to his wife, even account information, unless she provides Letters of Testementary. This seems silly to me. Lawyer says that filing all of this will run about two racks.
Does this sound reasonable? What happens when someone doesn't have the money for that, does the bank just get to keep the money?
Yankee23Fan
Fair Tax!
Every state is so different........... and it depends on so many factors....
But no the bank doesn't keep the money. She may have to get the will probtaed for the sole purpose of getting that account. We have insolvent estate rules here for estate of a small value. If everything was in a joint name except this one account and there isn't a ton in it perhaps TX has a similar set of rules that basically makes the probate process even quicker? I really have no idea. If you were in NJ I'd tell you you could get done what you have to get done for $150.00 and a few hours of your time.
Ignoramus
Footballguy
Thanks. It sounds like there's $15-20k in there so I guess it's worth it to spend the $2k but it just seems to me like it should not require that. Of course, I'm just a layman (huh-huh) and fortunately have never had to deal with this kind of stuff before.
timschochet
Footballguy
Eminence needs a lawyer to sue the FFA.
Do I get a finders fee for this?
Do I get a finders fee for this?
fantasycurse42
Footballguy Jr.
Got this hot case with an anonymous internet poster wanting to sue bc he feels his internet persona is being bullied by other anonymous internet personas...
Not going to name names, but please PM with your finders fee and I'll be happy to make the introduction.
Not going to name names, but please PM with your finders fee and I'll be happy to make the introduction.
Henry Ford
Footballguy
fantasycurse42
Footballguy Jr.
####### timschochet - never give the info until you've struck a deal 
Ramsay Hunt Experience
Footballguy
It's tough to give you a full answer without a little more information (and I'm not a T&E) guy. But if your FIL dies and has an account on which his wife is not a co-owner (i.e. its not a joint tenancy account), then that account becomes a part of his estate. Which means the account would go through probate and be devised according to his will or by the state probate laws if he died intestate.
It might seem silly, but some spouses deliberately keep separate accounts and might want those assets to pass down different ways. I'd want to know if the 2K is to handle the entire probate proceeding, or if it's just to send something to the bank.
timschochet
Footballguy
krista4
Footballguy
The one I'm working with strongly prefers in-house experience, though they have hired a very small percentage of people without it. Go in-house and keep making theStill pretty young to be talking about enjoying life so much and not having to work, no? What a life. Travels the world and lives in lots of cool places and working what sounds like the sweetest law gig I think I've ever heard. I need one day to get into one of these virtual firms.
for a while first. 
With conflict waivers, I'm proposing to represent both sides on the Eminence matter.
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