Practice of Law

Aug

2013

What is a Stipulation of Dismissal?

A recent comment on this blog suggested the following post for information purposes.

For those (maybe my mentees) who don’t practice routinely in the Maryland or federal civil courts, a stipulation of dismissal is a tool by which a plaintiff may dismiss any unserved defendant, any defendant who has not yet filed a responsive pleading or motion or any defendant who consents in writing to the dismissal. In practice, it is the tool by which claims settled after litigation has commenced get off of the court’s docket, either due to settlement in full or in collection cases for payment agreements that allow a case to be revived in the event of a payment default.

In state court, Rules 2-506 and 3-506 govern the stip dismissals; Rule 3-506 in particular applies in many collection settlement cases. In federal court, Rule 41(a)(1)(ii) provides for a stipulated dismissal and subsection (i) of that rule governs notices of dismissal in cases where a defendant has filed no answer or motion for summary judgment.

Dismissals under these rules are everyday settlement “hardware” and do facilitate both efficient practice and efficient court administration.

Jul

2013

How to Call a Law Office

This guide is to help those who call a law office to get what they want: legal help.

1) Your name. We attorneys want to know it if you call us. If you are calling for someone else, we want to know your name and the name of the person for whom you are calling.

In most circumstances, if you are calling for someone other than yourself, we will have to run a conflict check on both you (out of caution) and that person (the potential client). To do this, we need names.

Your name is your full legal name. If you say “I don’t want to tell you my last name,” attorneys will not be able to run a competent conflict check. A “conflict check” is a simple or extended review to make sure that we do not represent a client against another client or, in some cases, a former client or other interested party to whom we owe an ethical duty. Conflict rules are complex but the beginning of a conflict check is knowing who the clients and non-clients in the fact pattern are. The first person whose identity we must know is the client or potential client. Accordingly, if you call a law office but refuse to allow the law office to conduct a conflict check, there’s not much we can do for you.

2) The name of the other party. For the same reasons as given above, if you call a law office about your situation and you refuse to tell us who the other driver, the witness, the employer or supervisor, the creditor, etc. is, we cannot give ethical and competent advice. It is frustrating to get calls from prospective clients who will not tell me the name of the company for which they worked, but may want me to press a claim in federal court. I rapidly lose interest in those callers, and sometimes hang up on them without social courtesies as they are stealing my time and are not serious about letting me do my job properly.

3) When lawyers ask you a question, answer it. We lawyers ask questions for the same reason that doctors’ offices have stethoscopes and blood pressure cuffs: we need information to form professional opinions, give a diagnosis/analysis and give a professional course of medical treatment/legal advice. The persistent refusal of clients to answer important questions remains one of the great time wasters in the practice of law. Sometimes we get a “no” answer, then find out that the real answer is a big YES.

Typical: Did you have anything to drink that night? No.

Were you drunk? No.

What did you drink? Tequila.

How many shots? Probably 4-5.

So you were drinking, right? Yes.

So when I asked you whether you had had anything to drink and you answered no, that was [expletive], right? Uh, well, maybe.

Working lawyers (i.e. lawyers with clients, not law professors with tenure) can give you many such examples.

4) Keep appointments. If hiring a lawyer doesn’t matter to you, then calling us is a waste of your time. If hiring a lawyer matters to you, then randomly no-showing to initial consultation appointments with an attorney in your community is also a waste of your time; that lawyer will usually lose interest and you are back to square one in finding an attorney for your case. If you have lots of lawyers from which to choose, it may be no big deal for you but you are still wasting your own time.

Generally, when clients no-show, we attorneys get irritated but then we remember that that unreliable goofball is now some other lawyer’s goofball problem, and we have a good laugh.

5) We want to talk with the client. It’s nice if you want to take the initiative to get your husband, boyfriend or adult grandson an attorney. If you want to assist in his defense costs, that’s generous of you. But we lawyers want to talk with the client/prospective client unless the client is under a legal disability, and usually even then. What Grandma or Concerned Girlfriend or Uncle Joe says to a potential attorney on behalf of Chuck Client is almost never privileged if the client is above 18 years of age in most states. It may (or may not) be confidential or constitute a “secret” under ethics rules, (meaning that the attorney cannot divulge it willingly) but will usually be subject to subpoena, discovery, etc., up to its relevance or likelihood to lead to relevant evidence. Either the attorney or the family member/friend may have to reveal the content of the communication at least in theory in some cases. Similarly, once the representation has commenced, what clients tell us is privileged and we usually have to kick (ok, politely escort) family members out of the conference room.

Complicating this scenario is the fact that family members or friends may already be fact witnesses to some aspect of the case, depending on the case. We cannot easily advise a family member of a client, for example, whether or not that person should talk with the police. Rule 3.4(f) of the Maryland Rules of Professional Conduct, for example, prohibits attorneys from advising non-clients not to talk to opposing parties (police, prosecutors, etc. as State agents) except with some limits for “relatives” (undefined) if we attorneys believe reasonably that that person’s interests won’t be harmed by such communications. Does this sound clear? It’s hardly clear, but is a mandatory ethics rule in Maryland and in similar form in most states. The more we talk with relatives, rather than the clients, the greater the risk that we may start crossing many ethical lines.

The short version is that we need to talk with our clients, we need our clients to talk with us and that talking with family or friends is ethically very complicated, particularly in high-stakes cases like criminal cases and major civil cases.

To sum up:

a) We lawyers need to know the names of our potential clients, anyone calling for a potential client and the names of other parties to the case early, and we need not to get the run-around when we ask.

b) We lawyers need clients to answer our questions, preferably honestly the first time we ask the question.

c) We lawyers need clients not to be deadbeat flakes about showing up (and potential clients just waste their time if they make law office appointments for no purpose and then no-show.)

d) We lawyers need our clients to be the ones with whom we direct the bulk of our serious professional communications, not their family members or friends, due to serious ethical and professional reasons.

Please note that I haven’t discussed money. Money doesn’t matter for any of the foregoing; it certainly matters if the client is going to hire an attorney, but it doesn’t matter for the basics of identifying who the client is, with whom we are communicating, who the opponents are, getting answers to questions and showing up to appointments like a grownup.

Adult clients who refuse to cooperate with the foregoing aren’t serious, and lawyers should work hard for serious clients, not flakes. If this sounds harsh, good.

Jul

2013

Can you waive your right to unemployment benefits in Maryland?

A question that comes up often in my practice is whether one can – intentionally or by accident – waive one’s right to apply for unemployment benefits in Maryland. The following is a discussion of law and is not legal advice; I am not your lawyer and if you want legal advice, you should print this article, take it to your attorney (which I am not) and ask her or him to point out its flaws and errors and explain to you what your situation really is. I am not your lawyer. You should not make a decision based on the content of this article, other than to print it out and give it to your attorney for comment, corrections and advice. Your lawyer didn’t write this piece; go get her opinion and have her tell you why I am wrong generally and especially wrong for your case.

Many employment settlement agreements contain language to the effect that a worker settling a wage and hour claim, wage payment and collection claim, discrimination claim or other claim gives up “all employment claims” or “all claims.” In some states, I am informed, a worker may also waive a claim for unemployment benefits by a similar agreement. There are thus two legal issues presented for the Maryland worker in this situation: is an unemployment claim an “employment claim,” and if so is it possible under public policy in this state to waive it?

The second issue – public policy – will in most cases and perhaps all cases “strong arm” the first issue. Under Md. Code Ann., LE §§ 8-1303 and 8-1305, it is in fact a misdemeanor punishable by up to a year in jail for an employer, including an agent of an employer, to accept or require from an employee a waiver of a right to which the employee is entitled under Title 8 of the Labor and Employment Article of the Code (the Unemployment Insurance title.) Presumably an “agent of an employer” would include any management-side attorney in negotiations with a worker’s attorney. Accordingly, no attorney representing an employer would wish to incriminate herself and her client, one would figure, by accepting (or likely drafting!) such a criminal waiver within a settlement agreement and treating it as a waiver of unemployment benefits.

The questions don’t end there, however. While one presumably cannot “waive” unemployment benefits, workers still on payroll who resign or are pressured to quit as an condition of settlement may in practice face tricky challenges in getting unemployment. Settlement may affect eligibility in theory and practice in some cases, even without a void and illegal “waiver.” A worker who is owed back wages or who has suffered discrimination and leaves the company as a condition of settlement may be in a gray zone on the issue of “voluntary quit.” If management owes the worker back pay, for example, and the worker quits the job in order to get lawful back pay, it’s arguably either good cause to quit voluntarily or, in the alternative, a non-voluntary quit under management duress withholding a lawful benefit which Maryland treats as a discharge. On the other hand, one can imagine management providing resistance in the hearing room in some cases, claiming that the worker chose voluntarily to accept a disputed claim. I have not found case law in Maryland holding specifically that quitting in order to get a disputed employment claim finally settled and paid constitutes “good cause” to quit or is otherwise less than voluntary. Of course for workers who have long left the company voluntarily or otherwise, this issue is likely moot.

A practice tip for Maryland attorneys, both management and worker-side, might be to make any appeal letter to the Unemployment Board of Appeals as sparse as possible to avoid any avoidable disclosure of confidential settlement terms. Once witnesses are under oath, they presumably must testify truthfully notwithstanding any agreement to the contrary, but the confidentiality of any agreement should be respected as much as possible except when witnesses are providing testimony under oath.

Feb

2013

Cultural Competence and Advising Law Clients

If you practice anywhere in the U.S., but especially in a multi-ethnic, multi-cultural region such as most of Maryland, it’s important to stay ahead on cultural issues – both to be aware of common cultural patterns AND not to indulge mere stereotypes regarding cultural patterns. The key word are “awareness” and “attention.”

Sometimes little things can matter practically in law practice. A client with a non-English, especially non-European name may get her name mis-indexed in court records. Chinese names are by custom surname first, and while many Chinese-American women take their husband’s surname that is not the custom in most of China. Many native Spanish-speakers have multiple last names, but the first of the last names is the most important; the others reflect additional family relations but are not the names by which the surname is index. E.g. Mr. Arturo Lopez Hernandez is probably Mr. Lopez and not Mr. Hernandez, but may well be mis-indexed in a court document or other critical official paperwork in the U.S. Naming conventions differ even within Europe; Hungary, Iceland and Russia all have different orders of names and/or patronymics. Getting this RIGHT will facilitate both competent, efficient practice and client relations.

In many languages including almost all European languages other than English, many distinctions between formal language and modest of address and less formal modes may exist that have no direct analogs in Anglophone U.S. culture. A German-speaker with two doctorates will expect in many instances to be addressed as “Frau/Herr Doktor Doktor ____________”; this sounds strange to American ears where professors are more likely to use their first names and less likely to insist on being addressed by academic title in all contexts. The Korean and Japanese languages have exceptionally refined modes for expressing hierarchy and formality; the cultural expectations reflected in the “operating software” of those languages may in some cases have an effect on practical client relations. In many cultures, the use of the first name can be a greater affront than in U.S. culture, although the opposite may be true in Australia where it’s even more common than in the U.S. to use first names in many business contexts.

The experience of clients with law and lawyers in other cultures may have a strong influence on the expectations of clients outside of Anglophone U.S. culture. In many countries with weak civil institutions, the very concept of a lawsuit may be terrifying or a source of immense shame or dishonor; a Chinese-American attorney whom I respect has informed me that this is the case in much of China. The U.S. has a rather uneven civil rights history to say the least, but the sorts of legal arguments made by civil rights organizations and civil liberties advocates in the U.S. to courts and to legislatures are often inconceivable elsewhere in the world. Some people believe that they have a legal duty to self-incriminate (the exact opposite is true in the United States) based on their experiences in their home country; most regrettably, even theoretically educated American citizens with jobs as journalists get that wrong too. In other countries, attorneys may routinely do things that, while accepted or tolerated there, would be mostly inconceivable here (e.g. ex parte communications with a tribunal, gifts that an American would call a bribe, etc.)

Different cultures have different senses of physical space. In addition, religious values or morals may have a profound impact on the lawyer-client interaction. I made a strong positive impact on an observant Muslimah (the female equivalent of “Muslim” in Arabic) client when I welcomed her warmly but did not extend my hand to shake hands; while her beliefs did not forbid a business handshake, she made a specific point of thanking me at the end of the consult when she extended her hand, telling me that she was happy that her attorney was both aware and respectful of her religious culture. Some clients cannot accept business calls on their Sabbath or holy days. Even with most religious Christians who are not forbidden strictly by conscience from answering the phone on Sunday or a fasting day, it is respectful to be aware of times when a non-emergency call might be more jarring. A good question on a client questionnaire: “Please tell us if there are times when we should ABSOLUTELY NOT call you regarding your case.”

There are many other cultural issues that may play into both rapport with clients and technical competence in service delivery to client. Conversely, it’s entirely possible to overstate the importance of culture; people, despite cultural tendencies, remain individuals. An awareness of cultural issues may, in some cases, facilitate both good practice and good client relations.

Practice of Law

What is a Stipulation of Dismissal?

How to Call a Law Office

Can you waive your right to unemployment benefits in Maryland?

Cultural Competence and Advising Law Clients

Get Godfrey On the Phone!

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