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Mistake for Me; Jail for Thee

By Allen R. Thompson, Esq.

The Supreme Court of the United States continued to tighten the scope and meaning of the Fourth Amendment on Monday. In Heien v. North Carolina, the Court almost unanimously held that a “reasonable” mistake of law could provide the basis for reasonable suspicion and, therefore, any evidence obtained thereafter could be admissible in court.

To state the facts briefly, Nicholas Heien and Maynor Vasquez were driving on the highway, when Sergeant Matt Darisse noticed that the driver (Vasquez) appeared suspicious. He followed Vasquez and noticed that one brake light was out. He then pulled Vasquez over, thought that he and Heien appeared nervous, and eventually obtained consent to search the vehicle. During the search, Sgt. Darisse found a bag of cocaine in a duffel bag. Heien and Vasquez were arrested and Heien eventually moved to suppress the cocaine as the fruit of an invalid search. The trial court declined, but the appeals court reversed, holding that because North Carolina law only requires one brake light, there was no violation, making the search “objectively unreasonable.” The North Carolina Supreme Court reversed the appeals court, finding that the mistake of law was reasonable and, therefore, did not violate the Constitution. The Supreme Court then took the case on appeal.

Justice Roberts wrote the opinion in which 7 other Justices joined (only Justice Sotomayor dissented). Finding that the 4th Amendment protects individuals only from unreasonable searches and seizures, and agreeing with the North Carolina Supreme Court that Sgt. Darisse’s interpretation of the law was reasonable, he found that no violation occurred.

Heien argued, however, that it was inherently unfair to hold police officers to a lower standard of legal knowledge than an average citizen. In essence, if ignorance of the law is no excuse for an average citizen, it cannot be fair that a police officer – ostensibly trained in the law – may be ignorant of the law. In response, Justice Roberts correctly stated that “the government cannot impose criminal liability based on a mistaken understanding of the law.” (Slip op. at 12). For example, “if the law required only one [working rear lamp], Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two.” (Id.)

Justice Roberts does not complete the logic equation, however. If the state cannot impose criminal liability based on a misunderstanding of the law, then the evidence gathered during a search premised on an incorrect reading of the law cannot be the basis for a criminal conviction, as it was here. The logical conclusion to Justice Roberts’ rationale is to immunize Sgt. Darisse from civil liability; instead, Justice Roberts and the majority of the Court seem to imply that a reasonable mistake of the law should only excuse the individual who made the mistake, leaving the consequences of the mistake to rest upon the victim of the misunderstanding.

Justice Roberts’ decision turns the “ignorance of the law” maxim on its head. Based on Heien, ignorance of the law (if “reasonable”) may both shield an officer from liability and be used to obtain evidence to convict. This is quite the win-win for the state. Instead of allowing for “reasonable” mistakes as to the law, the maxim should be repealed in its entirety. No one – neither police officers nor average citizens – should be held personally accountable for honestly misinterpreting a poorly drafted law. Perhaps in an era when the law was not quite as ubiquitous and voluminous, “ignorance of the law is no excuse” was an appropriate adage. Today, however, as can be seen with the detail in which the legislature regulated tail and brake lights, state codes encompass sometimes over a hundred volumes of thin-paged, small-font pages. Thus, it is impossible to know every single law and the “ignorance of the law” adage should be considered obsolete, rather than controlling. Holding Sgt. Darisse personally accountable for misinterpreting the North Carolina legislature’s unclear statute would not forward that goal and would, in fact, only serve to affirm the principle; but neither should Mr. Heien be forced to suffer the consequences of Sgt. Darisse’s mistake.

This suit was not a civil rights action seeking damages under 42 U.S.C.A. s. 1983. Rather, it was a criminal appeal. So while Sgt. Darisse may not be civilly liable for the violation of Mr. Heien’s rights, it is all the more unfair that his misinterpretation directly caused Mr. Heien to be criminally liable.

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Hunters, Landowners and Permission to Hunt

There are two kinds of property to hunt on, those which are public and those which are not. Private property offers a number of advantages over public, mainly that the landowner controls who can and cannot hunt on it.

So how does one obtain permission to hunt private property in Pennsylvania? It’s simple actually, you just need to ask the landowner. While the permission doesn’t have to be written, conventional wisdom dictates getting it in writing is best for you. It gives you something to point to if at a later time the landowner claims you did not have permission to hunt on their property.

I have created an agreement which a hunter, trapper or fisherman can bring to the landowner and have them sign in order to enjoy the use of their land for a period of time that the two parties agree to. Are you not the person looking to gain permission but give it? The document creates protections for both parties. Landowners are increasingly becoming more concerned with liability of others on their land and this kind of agreement might be the deciding factor which allows you to start or continue hunting on their property.

If you are interested in obtaining a permission to hunt agreement, contact me today at 610-845-3803!

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C&R Licensee applications, FFL Licensee applications and Responsible Persons Questionnaire

ATF recently posted two notices in the Federal Register. One stated that they would be combining ATF Form 7 (5310.12) and ATF Form 7CR (5310.16), the applications for an FFL and Curios and Relics license, respectively. The other notice is for the creation of a Responsible Persons Questionnaire (RPQ) for use with the new proposed form. I’ve included both proposed forms at the bottom of this blog post.

A poster on AR15.com stated that if the proposed changes go through “C&R applicants will not only still need to get CLEO signoff, but they will also need to submit fingerprints and photographs.” In the post, he includes a quote from an e-mail he received from ATF about the proposed changes.

18 U.S.C. §923(a) which deals with individuals engaged in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, specifically proscribes that an individual applying must submit fingerprints and photographs. §923(b) which addresses individuals obtaining a license as a collector omits that requirement. While the law does not have any specific requirement, it is not outside the realm of possible that ATF could enter rulemaking to require that. That is not the case currently.

Looking at the proposed changes, there is no indication that ATF intends for C&R applicants to submit fingerprints and photographs, which is contrary to the post on AR15.com. Nevertheless, on December 10th, I e-mailed Tracey Robertson from ATF to inquire as to whether ATF intended for a C&R applicant to submit fingerprints and photographs with their application. She responded later that day stating “Photo and fingerprint card are not required for C&R licenses. This will not change with the proposed new forms.” She went on to say that the changes are to combine the forms in order to make the processing more efficient and eliminate common mistakes made by individuals.

After obtaining a copy of the proposed forms, it is evident there is no requirement for C&R applicants to include photographs or fingerprints. The proposed RPQ does indeed have a place for an individual’s photograph. The box to the right does include the instructions that all RPQs, fingerprint cards, photographs and application fees should be mailed to the address below. While at first glance it might seem that it is required for all license applications, the form includes, in rather conspicuous bold font, that Type 03 license applications (those for C&Rs) are NOT required to submit a fingerprint or photograph. The proposed form for the replacement of the current Form 7 and Form 7CR also states in Instruction 6 “A fingerprint card and photograph are not required if applying for a Type 03 license only.”

Nevertheless, there is a problem with ATF’s proposed changes. As the Firearms Industry Consulting Group (FICG)® is often on the forefront of industry happenings (such as the blog post which created a number of applications for Form 1 machine guns that has now gained national attention, ATF 41P commentary, etc.), it came to our attention that ATF’s proposed regulation is in contradiction with 18 U.S.C. §926(b) which requires 90 days notice before proscribing a rule or regulation. These proposed changes have only given individuals 60 days notice to comment.

Proposed Form 7

Proposed RPQ

 

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Landlord-Tenant: Brief Overview

A residential lease is where the landlord and tenant enter into a contract to lease premises, real property, for the sole purpose of living. The real property is used as a home.

The classic example of a lease is for an apartment. The lease can also be for a house or mobile home.

The lease is a contact between the landlord and tenant for the tenant or tenants to live in a home, apartment, or mobile home.

Almost everything that is created, memorialized, between parties—legally created—is bound by contractual law and equitable remedies and a lease is not excluded. The lease terms should follow the Landlord Tenant Act and its progeny. Depending on the facts one would also be liable with a Tort action. See Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979); Staley v. Bovril, 553 Pa. 112, 718 A.2d 283 (1998); “The Landlord and Tenant Act of 1951.” 68 Pa. Stat. Ann. § 250.101

All residential leases include the implied warranty of habitability and the covenant of quiet enjoyment, simply meaning a tenant, or tenants have a right to live in a healthy, habitable, and safe environment, and to enjoy, possess, the leases premises without disturbances.

Usually, a lease is made for a term of one year. At the end of the year, the tenant is given the option to renew. If, there is no renewal, or nothing done by the landlord before the renewal, or all parties (Landlord and Tenant) remain silent and the tenant stays, the lease becomes a Month-to-Month lease, and it is the custom that the previous terms of the lease are followed.

On the other hand, once the lease term is up, whatever the term is for, the landlord does not have to renew the lease and the tenant would have to vacate, hopefully peacefully—there is no self-help eviction in Pennsylvania.

Both the landlord and tenant or tenants have rights and duties. The leased premises must be kept in good condition, the condition it was at the time of the lease, at minimum.

Any problems, repairs needs, bug problems, etc., with the lease premises should be conveyed to the landlord in writing. The landlord will have a reasonable amount of time to cure, fix the problems. However, if after a reasonable amount of time has passed, a reasonable amount of time would depend on the problem, and the landlord has not cured the problem, depending on how the problem effected the leased premises, either all or part of the premises, the tenant would be evicted or constructive evicted from parts of the leased premises, and could withhold rent by paying rent when it is due each month to the prothonotary located at the main courthouse where you live. The rent would be held in escrow. The tenant would then have to file a complaint with the Magisterial District Justice in order to prove that the Landlord violated the lease by not curing, fulfilling his or her duty to keep the leases premises in good repair, a habitable, safe, and sanitary—no bug infestations, heat in the winter, no black mold, etc.

With a residential lease, in order for the landlord to evict the tenant written notice to vacate, quit, eviction, must be either posted on the leased premises or hand delivered to the tenant. The notice must include the reason for eviction. For a lease of lease than one year a notice to quit must be served upon the tenant and from time of service has fifteen (15) days

A landlord must file a notice to quit to regain possession of real property excluding mobile homes … “(1) Upon the termination of a term of the tenant, (2) or upon forfeiture of the lease for breach of its conditions, (3) or upon the failure of the tenant, upon demand, to satisfy any rent reserved and due.” . . . “in case of the expiration of a term or of a forfeiture for breach of the conditions of the lease where the lease is for any term of one year or less or for an indeterminate time, the notice shall specify that the tenant shall remove within fifteen days from the date of service thereof, and when the lease is for more than one year, then within thirty days from the date of service thereof. In case of failure of the tenant, upon demand, to satisfy any rent reserved and due, the notice shall specify that the tenant shall remove within ten days from the date of the service thereof.” 68 Pa. Stat. Ann. § 250.501.

“In case of the expiration of a term or of a forfeiture for breach of the conditions of the lease involving a tenant of a mobile home park as defined in the ‘Mobile Home Park Rights Act,’ where the lease is for any term of less than one year or for an indeterminate time, the notice shall specify that the tenant shall remove within thirty days from the date of service thereof, and when the lease is for one year or more, then within three months from the date of service thereof. In case of failure of the tenant, upon demand, to satisfy any rent reserved and due, the notice, if given on or after April first and before September first, shall specify that the tenant shall remove within fifteen days from the date of the service thereof, and if given on or after September first and before April first, then within thirty days from the date of the service thereof.” 68 Pa. Stat. Ann. § 250.501

Remember, this is a brief and general overview of Landlord-Tenant Law. It is very simple to start the process by filing a complaint with MDJ where you live, whether one is a landlord or tenant, but it is always better to have an attorney on you side, especially if there is an appeal since that is when it really gets complicated.

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Mutual Consent Divorce

A brief overview of a Mutual Consent Divorce.

The fastest and cheapest way to get divorced is with a no fault divorce. There are several ways to get divorced. One can get divorced on no fault grounds, or fault grounds, or on both no fault and fault grounds.

If, you and you soon to be ex-spouse are in mutual agreement that you both want a divorce, as long as you are in agreement about everything, than a Mutual Consent divorce is the way to go.

It is no secret that attorneys get paid for their work. But, remember, in the realm of Family Law, the more one fights, the more it costs.

Courts do not like to grant divorces, when property issues are not settled—Equitable Distribution, a blog for another day.

For a Mutual Consent divorce, with no other issues, one must first file a complaint seeking a no fault divorce on the ground of Mutual Consent, and usually always adding the ground of irretrievable breakdown and serve it by sending the complaint certified mail and regular mail, or have your soon to be ex-spouse sign an affidavit of service accepting service then file the form, a certificate of service, with the prothonotary. No answer is needed, since all averments, in the Family Law arena are deemed denied.

Both parties must wait ninety (90) days after the complaint was filed and served then file their Affidavit of Consent for Mutual Consent divorces. Usually a Notice of intention to request entry of divorce decree, which must be served on the other party, or file a Waiver of Notice of intention to request entry of divorce decree, is filed along with the Affidavit of Consent.

If, both parties chooses to file the Waiver of Notice of intention to request entry of divorce decree, no service is necessary and the one who initially filed the complaint, would then transmit the record along with an Order for a Decree of divorce and once the Judge signs off, you are divorced.

Depending on what county you live, there may be additional steps to take under the local rules before a Mutual Consent divorce is granted.

Besides Mutual Consent there are several grounds or divorce. There are six grounds for a fault divorce, and one can also state more than one ground for divorce if necessary.

The fault divorce grounds are

“(a) Fault.–The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has:

(1) Committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.

(2) Committed adultery.

(3) By cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse.

(4) Knowingly entered into a bigamous marriage while a former marriage is still subsisting.

(5) Been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime.

(6) Offered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome.” See 23 Pa.C.S.A. § 3301 (a) Fault.

The no fault grounds for divorces are:

“(b) Institutionalization.–The court may grant a divorce from a spouse upon the ground that insanity or serious mental disorder has resulted in confinement in a mental institution for at least 18 months immediately before the commencement of an action under this part and where there is no reasonable prospect that the spouse will be discharged from inpatient care during the 18 months subsequent to the commencement of the action. A presumption that no prospect of discharge exists shall be established by a certificate of the superintendent of the institution to that effect and which includes a supporting statement of a treating physician.

(c) Mutual consent.–The court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.

(d) Irretrievable breakdown.–

(1) The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken and the defendant either:

(i) Does not deny the allegations set forth in the affidavit.

(ii) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken.

(2) If a hearing has been held pursuant to paragraph (1)(ii) and the court determines that there is a reasonable prospect of reconciliation, then the court shall continue the matter for a period not less than 90 days nor more than 120 days unless the parties agree to a period in excess of 120 days. During this period, the court shall require counseling as provided in section 3302 (relating to counseling). If the parties have not reconciled at the expiration of the time period and one party states under oath that the marriage is irretrievably broken, the court shall determine whether the marriage is irretrievably broken. If the court determines that the marriage is irretrievably broken, the court shall grant the divorce. Otherwise, the court shall deny the divorce.” See 23 Pa.C.S.A. § 3301 (b)(c)(d).

Once grounds for divorce under a Mutual Consent, or Irretrievable breakdown is established, no hearing is required and the divorce will be granted. See 23 Pa.C.S.A. § 3301 (e)

As stated previously, the fastest cheapest divorce is a Mutual Consent divorce with no other issues or with all issues settled. The more you fight, the more it costs.

It is your choice to do it yourself, but it is always better to get an attorney…

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Perry County Auditors Feel Harassed, Provide Misinformation and Appear to Be Funded

I just received some new Right to Know Law (RTKL) documents in relation to the Perry County Auditors’ lawsuit against Perry County Sheriff Nace, which result in far more questions than answers.

In a letter dated “June [sic] (July) 21, 2014,” Attorney Craig Staudenmaier informs Perry County Commissioners Benner and Rudy that his clients “continue to be dismayed and disappointed in [their] continued harassment of them,” relating to the Commissioners’ request that the Auditors withdraw their frivolous lawsuit against Sheriff Nace. Interestingly, Attorney Staudenmaier then claims that the Auditors could have brought a contempt petition against Sheriff Nace for his failure to comply with the subpoena. While I have not reviewed the subpoena, I understand from the Sheriff’s Solicitor that the subpoena was not properly executed and therefore was ignored. But, I guess we’ll ignore that legal issue, much like the Auditors like to ignore 18 Pa.C.S. § 6111(g)(3.1).

The letter also goes on to claim that, “It is not my clients’ litigation that is ‘frivolous’ as you state, but the arguments and forces aligned against them which have totally misconstrued and misinformed the public as to what the true issue is here and the reasons for the declaratory judgment action…They have been and continue to be subjected to vicious attacks by you and by members of the community for absolutely no reason.” Now, before anyone goes reaching for a tissue box, I assure you, as is shown below, it appears the Auditors have some support, from somewhere, even if it is miniscule, and there is significant reason, such as the likely criminality of the Auditors’ action, for the outrage.

Let’s talk about lies and misinformation. Auditor McMullen previously told Reporter Sauro that “concealed firearms information was available to the public under the right-to-know law…However, last year, rules were established to exclude this information from public view.” However, when I submitted a RTKL Request for that information, the Perry County RTKL Officer responded back that the Auditors’ Solicitor responded, “the auditors do not have in their possession any records which would be responsive to Mr. Prince’s RTKL request.” Prior to my representation of Sheriff Nace and in relation to the same RTKL request, Sheriff Nace also issued a response stating, “NO ONE outside of the Sheriff’s Office has had or will have access to License to Carry Firearms Application or to any information regarding Licenses to Carry Permits.” Moreover, Perry County RTKL Officer responded back, “As of May 21, 2014, no RTK requests have been made to the Office of Open Records of the County, as well as no inter-office department or other disclosures of any nature.” Hmm, just who is providing the community with misinformation?

Maybe we should talk about the misinformation being sworn to, subject to the penalties of perjury, by the Auditors that they have been provided unredacted LTCF information in the past. Sheriff Nace has steadfastly denied this allegation. Of course, maybe it is just one of those statements like Auditor McMullen’s statement to Reporter Sauro….a little misinformation never hurt anyone, right?

We won’t even touch on the misinformation that has been given by the Auditors in relation to 6111(g)(3.1). For those unaware, Section 6111(g)(3.1) (which is dealt with in extreme detail in our Brief in Support of our Preliminary Objections) provides:

Any person, licensed dealer, licensed manufacturer or licensed importer who knowingly and intentionally obtains or furnishes information collected or maintained pursuant to section 6109 for any purpose other than compliance with this chapter or who knowingly or intentionally disseminates, publishes or otherwise makes available such information to any person other than the subject of the information commits a felony of the third degree. (emphasis added)

It would seem that by the Auditors bringing this action against Sheriff Nace, they are likely in violation of the criminal law prohibiting solicitation and conspiracy. 18 Pa.C.S. § 902, Solicitation, provides:

(a) A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.

18 Pa.C.S. § 903, Conspiracy, provides:

A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

I wonder if the Perry County District Attorney is aware of the filings in this matter. It would seem based on the pleadings and the Auditors’ own admissions that this would be a pretty simple prosecution.

But, let’s not overlook a very interesting issue – the issue of funding. The Perry County Commissioners only originally authorized a $2000 expenditure for research into this matter, which was authorized long before the litigation was instituted. (The Commissioners have consistently stated that this litigation in frivolous). The first billing from Nauman Law Firm was April 14, 2014, in the total amount of $1,435.00. Provided the authorized expenditure, it was paid. On June 2, 2014, a new invoice was submitted in the total amount of $2,456.75 for April billings. This resulted in Perry County Commissioners’ Solicitor Blunt’s June 16, 2014, letter advising that the County would not be paying any amounts over the agreed upon $2000.00. Accordingly, the County paid the difference of $565.00 for a total expenditure of $2000.00 and leaving an amount putatively owed of $1891.75. On June 16, 2014, a new invoice was issued from Nauman Law Firm in the amount of $1803.00, which does not appear to relate to any of the previous billings of the June 2, 2014 invoice, as these billings were all related to May. However, the back owed amount of $1891.75 is not listed. On August 14, 2014, a new invoice would be received from Nauman Law Firm, this time in the amount of $2,237.32 for services rendered in July. Once again, the past owed amounts of $1,891.75 and $1,803.00 (for a total of $3,694.75) are not reflected. So, who is paying the Auditors’ bills? The County has stated that it has not issued a payment since reaching the maximum provided for by the fee agreement. As the RTKL, Section 506(d)(3) requires 3rd parties to produce “public records” for which financial records, including receipts and disbursements, are part pursuant to Section 102, it should be interesting to see just who is funding this litigation….

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What Many People Don’t Understand About Attorney Billings and Consult Fees

Often times, a prospective client will call a law firm to speak with an attorney and become upset when the staff informs the prospective client that there is a fee for the consult. The client will typically respond that he just has “a question” for the attorney and that he shouldn’t be charged to simply ask a question. What the prospective client has failed to recognize is that attorneys, unlike many other professions/businesses, only have three things to sell: 1. their time; 2. their experience; and 3. their reputation.

An Attorney’s Time: When boiled down to the simplest form, an attorney only has his time to sell as a product. While some believe that only the pleadings and documents (complaints, motions, briefs, demand letters…etc) are an attorney’s product, the position fails to recognize that such is only a part of what an attorney does and provides to the client. Other aspects of representation include client meetings, research, drafting, and legal opinions/advice to prevent litigation, charging or issues with administrative agencies, just to name a few. When broken down into the simplest form, all of these are the result of the attorney’s time.

As stated by Abraham Lincoln, “A lawyer’s time and advice are his stock in trade.” Like many of other workers, they’re paid for the time they invest in a matter. Similarly, they expect to be paid for the time they devote to the client’s affairs. That time can’t be broken down into some free units and some that are charged for. You wouldn’t think of going into a supermarket with the idea that the first pound of cherries you can eat while shopping are free and you only have to pay for what you take home with you. Sure, you may pick one out of the bunch to see if they’re to your liking, and no one will complain, but you can’t sit there eating cherry after cherry.

Further, unlike most hourly employees, in addition to possibly being fired or having their license revoked for providing substandard work, attorneys, generally, have to maintain malpractice insurance, in case of providing a client with inadequate representation. Malpractice insurance, like all insurance anymore, is not cheap and the attorney risks being found negligent for malpractice anytime he/she answers just “a question,” in relation to the law. Further, like any other business, there are overhead costs for buildings, staff, healthcare…and the list goes on.

Due to the costs and an attorney only having his time to sell, consult fees become necessary for an attorney and the firm.

An Attorney’s Experience: Many clients are unaware of the difference in representation by an attorney that is experienced in a particular area of the law versus a general practitioner or an attorney whose hourly rate is less because of his/her lack of experience in that area of law. That experience, which generally results in a higher hourly fee, also generally results in fewer hours being spent on the matter, as the attorney is familiar with the process, procedures and individuals/entities involved. The outcome is a net gain for the client, as although he/she is generally paying the attorney at a higher rate, the attorney’s work product and results are generally obtained in much less time. The attorney’s experience also permits the attorney to provide the client with a more realistic opinion on the likely outcome and potential issues that could arise.

An Attorney’s Reputation: One of the most overlooked aspects of hiring an attorney is the attorney’s reputation. The old adage that “it’s who you knows, and how you knows’ em” could not be more appropriately applied to any other profession or occupation (except for politics). While the attorney’s reputation in the legal community alone can be a great benefit to the client, when the attorney’s experience and reputation in a particular field are combined, the net benefit to the client can be exponential.

As an example, an attorney who is well known for handling particular a type of matter before a particular administrative agency is much more likely to be able to resolve the matter absent a hearing or litigation, because the opposing party is well aware of the attorney’s capabilities. Further, the attorney’s experience and reputation can additionally benefit the client by opening doors that are otherwise not available because the attorney knows whom to contact to obtain the necessary documents or resolve the issue. This is not to suggest bribes or other such unlawful or immoral exchanges, but rather, to explain that having a command of the legal issue(s) and knowing the right person to contact in relation to the issue(s), as well as that person’s knowledge of the capabilities of the inquiring attorney, can result in the issue being resolved, without need for drawn out litigation or appeals.

In considering an attorney’s reputation, you should consider:

  • Does the attorney settle every case or is he willing to appeal inappropriate decisions and fight for your rights? Opposing counsel will handle their negotiations differently if their opponent’s reputation indicates that settlement offers are quickly accepted versus a reputation of insisting on full payment, even if it means taking the case up the appellate chain.
  • A judge, experienced with the attorney’s representation, will take the reputation into consideration in every decision made. Has the attorney always been honest and truthful with the court? If so, and that attorney requests a continuance for x reason, the judge is more likely to accept x as fact and grant the continuance. If another attorney has excuses every week, trying to avoid progressing with litigation will likely be denied the requested continuance.
  • Does the opposing counsel have respect for the attorney’s reputation? If so, they are far less likely to push meaningless issues or obstacles to moving forward. They know they must be reasonable in offers as the attorney is not afraid to litigate the case, and has done so many times in the past.       Essentially, is this the fight they want to pick.

But What About Free Consults?: Many attorneys still offer free consults, but it is important to understand the history of free consults and what is actually being offered.

The offering of free consults began, in part, as the law started to evolve into specialized areas, while attorneys were still general practitioners. The law began to evolve at such a fast pace through new statutes and case law that the general practitioner was unable to keep up with the changes and provide competent representation to his/her client. Attorneys didn’t want to be labeled as shysters for collecting a fee, just to tell a potential client that he/she couldn’t handle the legal issue of the client. And so, the offering of free consults came to fruition.

The free consult was an opportunity for the attorney to understand the legal needs of the client and advise the client as to whether he/she could competently represent the client. If he/she couldn’t, the client didn’t pay simply to be told that the attorney couldn’t handle his/her needs. On the other hand, if the attorney could competently handle the matter, the attorney would discuss fees for handling the legal issues.

What the attorney did not do is provide legal advice for free. If the client arrived with forms and questions as to how to fill them out, the attorney would not explain to client how to fill them out as part of the free consult. Rather, the attorney only advised the client as to whether there were valid issues and if so, estimated the time that would likely be involved in protecting the client’s interests. It also provided the client with the opportunity to meet the attorney, determine if the attorney understands the issues and possesses the required skills. This is no different today.

It’s Still Just A Question: For some, the above is meaningless, as we move further into an entitlement society. Unfortunately, at the end of the day, we all still have to put food on the table for our families, gas in our cars, and pay taxes to the Government. Contrary to popular belief, attorneys, much like doctors, are not making excessive salaries. A majority of lawyers are making between $40-$50k, while putting in 80-100hr workweeks. Moreover, the debt incurred to become an attorney, again much like doctors, is astronomical. And this is all before the overhead costs.

Just remember that next time you ask, while it may be “just a question,” an attorney has nothing more than his time, experience and reputation to sell and he/she, just like you, deserves to be paid for his/her time.

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