Tax Law for Dummies the Non-Tax Lawyer

Presented by:

Brad K. Cunningham

Litigation Manager | Tulsa, OK

“Nothing can said to be certain, but

death and taxes” - Benjamin Franklin

Taxes and Accounts can play a big role in any family law dispute

LOUIS

Why is this important?

Separation of Property and

Finances

May have tax consequences or

considerations

Counsel, judges and parties may

not be aware

Caveat Emptor

• Federal only

• I am not a CPA/expert

• Consult a CPA/expert

• Confirm above in writing to client

• Hyperlinks for referenced material

Presentation Overview

• Understanding the personal tax return

• Explanation of filing status options

• Liability issues

• Dependency Exemptions

• Child Support and Alimony Issues

• Property Division Tax Issues

Part 1: Understanding the Personal Return

Become a Tax Detective

W2

1040

1040 Schedules

Call for back up

• Complex returns

• Business interests

• Capital gain/loss

• Carryovers

Part 2: Filing Status Explained

5 Filing Statuses

Single Head of

Household Married filing

separately

Married filing jointly

Qualified Widow(er) with dependent child

When am I single again?

•Determined as of December 31st

•Example:

– Tax payer is divorced on December 30th

– Not married for the entire year

– He/she has to file as single or HOH for that tax year

•Order of separate maintenance impact

Marginal Tax Rate

•Tax paid on the next dollar of income

•Increases as you go (lowest to highest)

–MFJ

–HOH

–Single

–MFS

Head of Household

•Unmarried •Cannot be a nonresident alien •Furnished over ½ of the cost of maintaining a household for more than ½ of the tax year for a child

Married HOH

•During separation may be able to file •Strict requirements must be met

Using HOH Effectively

•When there are two or more children with equal placement, parties may be able to each claim HOH

They think of everything

• Taxpayer may still be eligible to file HOH even if the qualifying child has been kidnapped

Marital Status

Tax payers are considered married if they:

•Are married and living together

•Living together in common-law marriage recognized in the state where they reside or where the marriage began

•Married and living apart but are not legally separated under a decree of divorce or separate maintenance

– Still married if voluntarily separated

•Separated under an interlocutory decree of divorce

Married persons have options

• File joint or separate

• Yearly election

• Separate means same deductions (itemized/standard)

Same sex married tax payers

Federal Married

State

State by state

Mock federal returns

Common filing problems

• So a client walks in to my office….

“Spouse said they would sign joint return but now won’t”

•Joint return can only be filed if –both agree; and

–both parties sign the return*

•A court will not (should not) order an unwilling spouse to file jointly, unless it was part of a settlement

“Filing MFS returns; who gets house related deductions?”

• Mortgage interest and property taxes

• Only owners can claim • If the home if jointly owned:

– Spouse that actually pays those expenses can claim if paid out of separate funds

• If paid from joint funds each spouse can claim one-half

• Otherwise by agreement

Filing MFJ during divorce

• Pros: – Lowest marginal tax rate

– Highest deductions

• Cons: – Cannot deduct alimony

– Jointly and severally liable

– Division of tax refund/deficiency

Part 3: Liability Concerns

Annulment

• As though marriage never existed

• File amended returns for married years

• SOL (3 years)

Married tax payer liability

Jointly and severally liable.

Relief options:

•Innocent Spouse relief

•Separation of liability

•Equitable relief

•IRS Publication 971 & IRS Form 8857

Basic question to ask client

• Did you know or have reason to know?

– Standard: Reasonable, prudent tax payer

• Then call a tax attorney

Liability Flow Charts

From Pub. 971

Part 4: Dependency Exemptions: Fighting over the kids again

Dependency exemption

•Before we make a scene:

– Is there something to fight over?

– Is it worth fighting over?

•Qualifying dependent

•Deal breaker/mediation killer

Qualifying Child

• Relationship

• Residence

• Age

• Support

Is this worth fighting about?

Per child:

•2011: $3700

•2012: $3800

•2013: $3900

•2014: $3950

•Can be a lot of money depending on children ages

•Can be emotional issue for the parties

IRS Default Rules • If a divorce decree

is silent regarding the dependency exemption, it remains with the custodial parent (IRC 152(e))

• “Custodial Parent” – parent who has the physical placement of the child for the greater portion of the calendar year (it only takes one day)

Equal time rules

•Highest AGI claims child(ren)

•Parties can agree otherwise

– IRS Form 8332

•Never actually equal (365 days)

– Tip: client should keep record of days if no agreement

Other impacts of dependency exemption

•Dependent Care Credit

•Child Tax Credit ($1,000)

•Hope and Lifetime Learning Credits

• Side note: What is a credit?

Possible solutions

1. Exemption follows the children (IRS Rule) 2. Alternate years – With option to sell/trade to other spouse

3. Most advantageous filer claims children – Divide savings with other spouse as child support

4. Contingent on compliance with other provisions of the decree (i.e. child support)

– Possible issues

Part 5: Child Support and Alimony

Taxation of child support

• Not taxable to recipient

• Not tax deductible to payor

Definition of child support

If any one of the following: •Designated as child support; •Reductions tied to a child’s pivotal birthday; •Reduction tied to pivotal child event (employed, death, graduation); or •Reduction clearly associated with a child-related event

Identified as child support

• Call it child support

• Even after child is an adult

• Must be a fixed payment

– But does not require a fixed number

Good intentions, but child support

• Payments terminating on contingency related to child are child support

• I.e. Alimony that terminates on a child’s 18th birthday

• Other:

– Marries, dies, employment, school, college

Payments associated with a contingency

A presumption exists that payments are “clearly associated” with a child-related contingency, and are child support, if:

• Payments reduce within 6 months of child reaching majority age; or

• Alimony step down on 2 or more occasions that occur within 1 year of the children reaching any age between18 to 24.

–This certain age must be the same for each child, but need not be whole number years.

Allocation of lump payments

If the divorce document describes one lump payment each month and does not explicitly apportion an amount as child support, the entire payment will be treated as income to the recipient and deductible to the payor.

•Comm’r v. Lester

Taxation of alimony

• Alimony is deducted from the payor’s income and taxable to the recipient

Definition of alimony (IRC §71)

• Payment in cash • Received by (or on behalf of) a spouse under a divorce or separation instrument, • Which does not designate such payment as a payment which is not includible in gross income under this section, • The payee spouse and the payor spouse are not members of the same household at the time such payment is made, and • Payment terminates on the death of the payee. *This is independent of the State’s definition *Must meet all requirements; parties’ intent is not a factor

Unconventional alimony

So long as alimony requirements are satisfied, payments of rent, taxes, health insurance, life insurance, etc. of the payee spouse under the terms of a separation or divorce document will qualify as alimony.

•MUST be in a written separation or divorce instrument

•Payments made to maintain joint property or property owned by the payor do not satisfy the requirements

Alimony recapture rule

–When the amount paid in the third year plus $15,000 is less than the amount paid in the second year, and

–When payments in the second and third years are averaged and this average plus $15,000 is less than the payments in the first year

–Does not included payments made under a temporary order, only under a final document or payments made on a percentage of income over 3 calendar years

Recapture Example

IRS Example: Your client pays their former spouse $50,000 alimony the first year, $39,000 the second year, and $28,000 the third year. Is there any recapture?

Use Worksheet 1 to find out:

1 Alimony paid in 2nd year 1 $39,000

2 Alimony paid in 3rd year 2 28,000

3 Floor 3 15,000

4 Add lines 2 and 3 4 $43,000

5 Subtract line 4 from line 1 5 -0-

6 Alimony paid in 1st year 6 $50,000

7

Adjusted alimony paid in 2nd year (line 1

minus line 5) 7 39,000

8 Alimony paid in 3rd year 8

28,000

9 Add lines 7 and 8 9 67,000

10 Divide line 9 by 2 10 33,500

11 Floor 11

15,000

12 Add lines 10 and 11 12 48,500

13 Subtract line 12 from line 6 13 1,500

14 Recaptured alimony. Add lines 5 and 13 *14. 1,500

7 Alimony Tips

1. Dollars. 2. Documents. 3. Designation. 4. Distance. 5. Death. 6. Dependents. 7. Declining.

Part 6: Property Division Tax Consequences

General Rule

• Property transfers between spouses “incident to a divorce” are not a taxable event

Retirement Accounts

• Qualified accounts use QDRO

– Recipient may withdraw without penalty Properly complete IRS Form 5329

• Non-qualified plans get same treatment if rules are followed

Marital Residence

•Cost basis – sales price = gain/loss

•Capital gain exclusion rule

Special rules for divorced seller

• Get married term of ownership

• Qualifies as principal residence

*Important because if fail to meet principal residence requirement then part or all of exclusion may be forfeited

– Be aware of amount of gain when deciding who should keep residence

Exception to general non-tax rule

•Non-qualified stock options and deferred compensation are considered “income” and not property so there transfer is not tax-free

•Taxes will be withheld at the time of payment

•Rev. Rul. 2004-60

Useful IRS Links • IRS Publications • 501 – Exemptions, Standard Deduction and Filing • 544 – Sales and Other Disposition of Assets • 590 – Individual Retirement Accounts • 972 – Innocent Spouse Relief • IRS Forms • 8332 – Child Dependency Exemption Release • 8379 – Injured Spouse Allocation • 8857 – Request for Innocent Spouse Relief

Conclusion

• Taxes are complicated. Know when to employ an expert.

The Art of Litigating a Family Law Case on a

Budget Presented By:

Kelly Burris

Team Leader | Austin, TX

What Kind of Case is this??

What Kind of Budget Are We Talking?

The Lesser of the Evils

4 Bad Approaches 1. Flat fee that the client can afford;

2. Lowered hourly rate;

3. Same hourly rate, but expect the client will owe you after the case;

4. Do as little work as possible so you don’t bill the client as much.

In Summary, THINK very carefully before taking the case!!

Essentials to a Budget Case from Beginning to End!

Organization

Efficiency

Communication

During the Interview Process, Determine: • How complicated are the issues?

• What are the client’s expectations?

• Can the case be completed with minimal costs even if you pinch all of your pennies?

• Don’t get in the case if you know you’ll have to withdraw before the end.

• Is the client high maintenance?

• What is the source of funding?

• Family? Client? Opposing party?

What Exactly Do You Want From Me? • Get a grip on your client’s goals!

• Ask the client to rank his or her goals in order of importance

• Tailor the interview to the goals the client has listed

• Determine the client’s pace and how the client envisions the case

• Remind the client about settlement options throughout

• Remind the client that he/she makes the decisions

What Am I Getting Myself Into?

• Get the whole story, even if it doesn’t seem important!

• Make the client do a history

• Make the client give you a list of potential witnesses Prepare disclosure responses

• Keep a watchful eye on funding and remind the client to do the same

• Have the client prepare a financial information statement at the first meeting.

• Prepare the client for what to expect from the process.

• Be aware of the client’s stress and try to be sensitive to their needs.

• Know guidelines and standards in the law.

• The sooner you start, the better your odds.

What are the Odds?

• Don’t ever estimate the cost of the case, no matter how much they want you to.

• Be cautious of the time you bill and your client’s budget.

• Get financial information from your client in the first week (FIS, Pay Stubs, Tax Returns).

• Consider Interim Attorney’s Fees

If You’ve Got the Money, Honey, I’ve Got the Time!

• Make sure your client knows the financial limitations of their case and know they will pay for contact with you.

• Have the client call staff first.

• Get the most out of client meetings and try to keep them short.

• How much can be done over phone and e-mail?

• Get as much accomplished as possible in your first meeting.

• Prepare for the meeting with a bullet-point list.

Using Your Client to Your (And Their) Advantage:

• Use your client as staff.

• Discovery, Spreadsheets, Organization.

• Can your client be a semi-expert? Experience in a child related field? Financial field? Business?

Using Your Client to Your (And Their) Advantage:

Unexpected Results Are NEVER a Good Thing!

• Prepare from the very beginning.

• Narrow down your discovery requests.

• Request admissions and stipulations to narrow down issues.

• Pre-trial hearings and conferences can be extremely helpful for discovery!

• Think twice about using a cheap mediator or custody expert and be choosy where to spend your money.

Avoid Problems with Preparation

• Have your client gather as much information as possible and use your client’s contacts.

• School Records and Doctor’s Records.

• Business and Financial Records

• Recent Appraisals

• Have your client take a business records affidavit when gathering documents.

Discovering Without Discovery

• Use pre-trial hearings for discovery-

• Take detailed notes on direct and cross.

• Get an agreement from the court and oc to copy all exhibits.

• A transcript is cheaper than a lengthy deposition.

• Bring your authorizations or other issues you need to address with oc to the hearing.

• Agree to some informal discovery with oc to narrow requests for production - You both have stuff the other person wants.

Discovering Without Discovery

• Have your client maintain a custody calendar before and throughout the case (great, cheap exhibit)

• Have your client keep a journal and send frequent updates

• Start discovering long before you’re served with discovery

• Interview potential witnesses and experts and keep notes

• Who needs to be listed and deposed

Momma Ain’t Always Right: Finding Out The REAL Story

• Request records early and often

• Have the client fill out release forms

• Subpoena documents

• Get business records affidavits or written depositions

• Keep in mind how long it might take to obtain financial docs

• Answer discovery timely and keep it updated (Watch out for experts!)

• Video or audio depositions

Momma Ain’t Always Right: Finding Out The REAL Story

• You have to know when to hold em’ and know when to fold em’!

• Be candid with your client and don’t waste money on fights you cannot win.

• Can the parents work together without fighting, drinking or drugging?

• If “yes,” then joint legal custody.

• When joint legal custody is not appropriate:

• The parents CANNOT work together

• Family violence

• One bad parent (not involved, drugs, drinking, etc.)

Picking Your Battles

• Child support: Should we REALLY be arguing about this?

• The rights and duties the client cares about:

• Right to make educational decisions

• Right to make medical decisions

• Right to make psychological decisions

• Right to consult

• Cost/Benefit of the Assets

• Pots and Pans

• Let her have it if she thinks it’s worth that!

Picking Your Battles

What kind of experts do you need, what kind do you already have, and which ones do you want to avoid?

• Can your client afford an expert? • Do you REALLY need one? Will talk to the same people as the judge.

• Who do you need? • Counselors (for the parties or the kids), psychiatrists,

psychologists, addictionologist, bonding expert? • Accountant, Appraiser? • Avoid “Dual Role” Experts • Testifying v. Consulting Experts • Beware of the “Hired Gun”

Expecting Experts?

• Do you already have experts?

• Who is already involved in your case?

• Teachers, doctors, counselors, CPA’s, appraiser, psychologists, your client?

• Appraisal or Market Analysis completed for some other purpose?

Expecting Experts?

• Uses:

• Custody Evaluations

• Psychological/ Psychiatric Evaluations

• Therapeutic

• Custody Evaluations/ Social Studies

• Cruelty or Abuse Allegations

• Addiction or Drug/Alcohol Abuse

Psychologists, Psychiatrists and LPC’S

• Standards:

• American Psychological Assoc. Guidelines for Child Custody Evaluations www.apa.org

• Practice Guidelines for the American Psychiatric Assoc.. www.psych.org

• Practice Parameters for the American Academy of Child and Adolescent Psychiatry www.aacap.org

• Missouri State Committee for Professional Counselors-http://pr.mo.gov/counselors.asp

• Model Standards of Practice for Child Custody Evaluation- Assoc. of Family and Conciliation Courts

Psychologists, Psychiatrists and LPC’S

• Therapeutic expert v. forensic expert

• A dual role expert is a therapeutic expert used in a forensic capacity

• Why it’s tempting:

• It’s SOOOO much cheaper!!

• The therapist usually knows the history;

• One expert for everything!

Dual Role Experts . . . or Not

• Why it’s a bad idea:

• Ruins the therapeutic relationship and can be damaging to children in therapy

• Therapeutic experts need a signed release

• Tasks and goals are different for therapist and forensic expert

• In a budget case, use them. Just watch what you ask-

• Limit questioning therapeutic expert to:

• Diagnosis

• Treatment

• NO RECOMMENDATIONS

Dual Role Experts . . . or Not

C.P.A. • TYPES & USES:

• In-House Accountants

• Not Forensically Savvy

• Requires Additional Preparation

• Attorney Must Personally Go Over Relevant Documents

• Tracing/ Characterization Experts

• Business Valuations

• Proving Economic Contribution / REIMBURSEMENT

• STANDARDS:

• Missouri State Board of Accountancy- http://pr.mo.gov/accountancy.asp

• GAAP- Generally Accepted Accounting Principles

• AICPA- Code of Professional Conduct- www. AICPA.org

REAL ESTATE APPRAISERS • TYPES:

• Residential Appraiser

• Commercial Property Appraiser

• STANDARDS:

• USPAP- Uniform Standards of Professional Appraisal Practice

• www.appraisalfoundation.org

• Many states require appraiser to pass test to become a certified or licensed appraiser

• MAI- Highest Recognized Certification

• Missouri Real Estate Appraiser Commission

• http://pr.mo.gov/appraisers.asp

• Court Appointed:

• Unpredictable Outcome: Could hurt as much as help.

• Unpredictable Quality of Expert: Court unlikely to appoint the best expert available.

• Court is likely to rely heavily on expert’s opinion.

• More difficult to impeach, especially if judge uses expert on many cases.

• Will have access to all parties and cooperation from all sides.

• Court will often split expense.

Court Appointed v. Hired Gun

• Hired Gun:

• Can hire the most qualified expert available.

• Will likely only have access to one side, so cannot do complete evaluation of all sides.

• Easily impeachable due to bias for hiring party, so court is less likely to rely on expert’s opinion.

• Most often used to impeach opposing side or court appointed expert.

• The hiring party foots the bill!!

Court Appointed v. Hired Gun

• If you’re going to spend the money, make it worth while.

• Explain the purpose of the evaluation and that the expert acts as the eyes and ears for the court.

• This is NOT confidential.

• The expert is NOT your therapist.

Preparing Your Client for an Evaluation

• Make sure the client does not vent personal issues to the evaluator. Express concerns for the children, but be cautious of appearing to alienate.

• In order of importance, client should discuss:

1. Love for children and will do what is in their best interest;

2. Efforts to co-parent and importance of co-parenting;

3. Why requested access is in best interest (e.g. “I can provide a better environment because . . .”)

4. Concerns about the children;

5. Concerns about the other parent.

Preparing Your Client for an Evaluation

• You are NOT a therapist-

• Make your client sees a therapist, psychologist, psychiatrist, or someone who is more cost effective at dealing with your client’s mental and emotional problems.

• Figure out if your client, and you, can survive a social study, drug testing or an amicus.

• Don’t volunteer your client for things which will hurt your case.

• If you can’t trust your client, think twice about it.

Clients with “Issues”

• Use the Empathic Sandwich.

• Always give your client two choices-

• You can abide by the court order and X will happen or you can violate the court order and Y will happen.

• Always remember that, in most cases, ducks marry ducks.

• PAPER YOUR FILE!!! A mentally ill or drug addicted client is extremely unpredictable.

Clients with “Issues”

• Review the statute or case law and give the client a copy.

• Mediate your case and spend some money to do it!

• Cheap or free mediations are usually a waste of money

• Most cases will settle and if they don’t, you find out a lot about the case.

• Paper your file.

Making Pigs Fly and Dealing with Other Unreasonable Expectations Without Losing Your Cool

• Cost/benefit analysis every step of the way.

• Explore alternate agreements.

• Breakdown a Standard Schedule

• Rearrange Rights and Duties

• 50/50 Schedules

• Extra Overnights

• Phone and Computer Access

• Renting the house from the other spouse

• Contractual Support to equalize estate

Making Pigs Fly and Dealing with Other Unreasonable Expectations Without Losing Your Cool

• Free witnesses- teachers, friends, neighbors, former spouses, minister

• Narrow down the witnesses

• Have your client list each witness with a paragraph about why this person is important, then have the client rank them.

• Call each witness prior to trial and cut the “not so great” ones.

• Inexpensive demonstrative exhibits-

• Summaries and Calendars

• Videos and Photos

Preparing and Presenting a Budget Trial

• Preparing or “wood shedding” your client is time and money well spent. Outline what you intend to address and give them literature to review regarding testimony

• Draft bullet-points for direct and cross instead of full questions.

• Narrow down the exhibits to what you really want the judge to see.

• If testimony will do, you don’t need a bolstering exhibit.

• Too many exhibits is a waste of money and the judge will not look at them all.

• Use some to refresh or impeach without entering the exhibit.

Preparing and Presenting a Budget Trial

• Brush up on Evidentiary Rules- You can get many exhibits entered without spending time and money to find tricky ways around it. (i.e. not offering for truth of the matter asserted).

• If you can’t afford a trial brief, bring highlighted copies of case law.

• Appeal:

• If your client has money to appeal, then you shouldn’t have been so cost effective at trial.

• Wage your battle here and now, but keep an eye open to preserving your record just in case.

Preparing and Presenting a Budget Trial

“Happy families are all alike; every unhappy family is

unhappy in its own way.”

-Leo Tolstoy (1828 - 1910), Anna Karenina,

Chapter 1, first line

10-Minute Break

Military Issues in Divorce

Presented by:

Jason A. Bowman

Senior Attorney | Louisville, KY

Brief History 2 interesting facts

• World War II

– Approximately 16.1 million Americans deployed

• Majority were men

• Average deployment 16 months

• Distance and Numbers posed numerous challenges

V-Mail

• Invented by Britain adopted by Department of Defense

• Mail took up to much room on supply ships, all mail was transferred onto microfiche, shipped across ocean and recreated before being delivered.

Divorce In the Military • With an average deployment of 16 months an many

marriages occurring prior to deployment, only communication back home was through the mail.

• Majority would be begin with “Darling” or My Dearest Johnnie, or Dear Johnnie.

• In 1945, a reporter for the Democrat and Chronicle, a newspaper out of Rochester, New York noted that after long deployments the letters changed and started with “Dear John, I have found someone else..” the invention of the Dear John letter.

Jurisdiction Issue Where do you file your action?

In the military there are big differences between your “home of record”, where you are stationed, temporary duty assignments and domicile.

Need to find the Court with the best jurisdiction for all issues.

Home State (“Home of Record”) Technical term that Department of Defense uses to specify the state or territory which is the home of a person upon entry on active duty or reenlistment.

Administrative entry, not intended to specify the domicile of military member at any time

However, several states have statutes that relate back to this designation for purposes of filing for divorce

Stationed or temporary duty assignment

• Several states have statutes that will allow, service members to file for dissolution if they are stationed in the state for a prescribed period of time.

• Temporary duty assignments could result in a solider resided in a state for the prescribed

period of time, but the solider will leave after filing.

The key for divorce is domicile

Dissolution of a marriage can be granted in any state where a party meets statutory requirements, but that Court may not have jurisdiction over other issues.

Jurisdiction over the marriage is “in rem”

• Williams v. North Carolina, 317 U.S. 287 (1942) – Divorce decrees are more than in personam

judgments

– Each state, by virtue of its command over its domiciliaries and its large interest in the institution of marriage can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent.

Other jurisdiction issues to consider

• Just because a court can grant a divorce does not mean that it can address all issues

• Custody issues: UCCJEA or UCCJA (depending on state) will apply for custody

UCCJEA • Home state is given priority • A Court has jurisdiction to make initial custody

determination ONLY if: – The home states of the child upon commencement of

the proceeding or was the home state with 6 months before commencement and the child is absent from the state, but the parent continues to reside in that state. • Court can decline to exercise jurisdiction

UIFSA

• Same home state requirement as in UCCJEA

• Courts however, cannot decline jurisdiction

Jurisdiction Trap • Uniform Service Former Spouses’ Protection Act

(USFSPA). • In order to enforce orders to divide retired pay

the state court must have jurisdiction over the service member by: 1. Residence in the jurisdiction (other than because of assignment); 2. domicile in the jurisdiction; 3. service member's consent to jurisdiction

Now that we dealt with Jurisdiction… What’s Next

Compensation/ Child Support

Retirement Domestic Violence Other Special

Issues

Compensation What is an LES?

• Leaving and earnings statement (LES) • LES are not like regular pay stubs • Lots of information

– All pay and allowances – Current rank, years of service – Date they entered the service, estimated date they will

leave – State of record for income tax purposes – Accrued leave

Base Pay + BAS + BAH

= Total Entitlements

Discretionary Allotments

Can have up to six. What are they for?

Grade O-4 Years of Service = 20

Pay Date is date they entered service April 1, 1979

ETS = expiration term of service

State of Residence for Tax Purposes

West Virginia

Used and unused LEAVE

Child Support Calculations

• Most states will use not only a soldier's base pay, but will also include their:

– Basic allowance for housing (BAH) and

– Basic allowance for substance (BAS)

Military Regulations Require Support

• Military default rate in child support cases is ½ that of the civilian world

• Each branch of the military has regulations for support absent a court order

Air Force Regulations

• Hands off approach, encourages use of civilian courts

• Advises members that they are expected to provide adequate financial support to family members

Marine Regulations

• “The Marine Corps will not serve as a haven for personnel who fail to provide adequate and continuous support to their family members.” U.S. Marine Corps, Order P5800.16a

• Marine shall pay either a fixed amount from the financial support standards or a share of the BAH received by Marine, whichever is greater

• Also this regulation is punitive and punishable under the UCMJ.

Navy Regulations

• Unit Commander has the authority to direct payments to spouse using Navy Guidelines – Spouse only = 1/3 gross pay

– Spouse and one minor child = ½ gross pay

– Spouse and two or more minor children = 3/5 of gross pay

– One minor child (no spousal support) = 1/6 gross pay

– Two minor children (no spousal support) = ¼ gross pay

– Three minor children (no spousal support) = 1/3 gross pay

Army Regulations

• As the largest branch of the military, it has the most complex non-support regulations • Google AR 608-99 to see regulation • Requires a soldier to provide a portion of his BAH with

dependents • Purpose of regulation is to provide family member with

some support until an agreement or court order can be obtained.

• Punitive Regulation and subject to punishment under UCMJ

Retirement Issues • Remember jurisdiction requirements to divide

retirement

GOOD NEWS WHEN DIVIDING MILITARY RETIREMENT

QDRO

The 10-Year Rule

• The service will directly pay a division of military retired pay If the parties were married for at least ten years during which the member performed at least ten years of creditable military service

– 10 U.S.C. Section 1408 (d)(2)

“Disposable” Retired Pay

• The only subject of division of military retired pay is the “disposable retired pay” of the service member. – Disposable retired pay is defined as the total monthly retired pay to which a member is entitled less certain deductions.

– Be careful in drafting agreements that state “gross” “net” or “net disposable” military retired pay, as this does not reflect the term section 1408(4) and can be ambiguous.

• Cannot give more than 50% of disposable retired pay

“Disposable” Retired Pay • Main deduction from retired pay is usually was is received

from VA disability compensation. – This allows a service member to waive a portion of retirement

to receive an equal amount of tax free disability payment from VA

– This is not divisible and that is a substantive limitation and not just one of enforcement. Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023 (1989).

– The effect of this waiver is that every dollar that moves from military retired pay to the VA is not divided; the service member's share goes up, his spouse’s goes down.

Survivor Benefit Plan or

Single Biggest Problem • This is a joint & survivor annuity payable at

service member death. • Pays 55% of service members retired base pay

amount • Court can order SBP coverage • Without it, pension ends at service members

death

Survivor Benefit Plan • Premiums –

– come from retiree’s paycheck

– come “off the top” before DRP, taxes

• No “health qualification” of H or W

• Income for life of spouse, tax-free

• Inflation-proof

• Can only be selected once per life per service member

Domestic Violence • “If I can’t have a weapon then I am no use to the

Military.” – This is a misconception

– 18 U.S.C. 922 (g)(8) does bar a military member from possessing or attempting to possess a firearm or firearm ammunition during the pendency of the DVO. • There is an exception for military members in the course of

military service and law enforcement officers in the courts of law enforcement duties to possess firearms and ammunition as long as they are government issued and controlled.

Domestic Violence • The underlying cause of action and gravity of the vent or

soldier’s action could culminate in separation of service, but it is not an automatic separation of service event.

• Laughtenberg Amendment 18 USC 922 (g)(9) – Bars possession or attempting to possess for life if

convicted of a misdemeanor conviction of domestic violence

• No military or law enforcement exception

Domestic Violence • A misdemeanor conviction normally results in

the service member being separated from service

• United States v. Hayes, 129 S. Ct. 1079 (2009), ruled that amendment from fourth degree assault, domestic violence to plain forth degree assault still kicks in the gun restriction.

Special Issues In Military Divorce

• 20 – 20 – 20 Rule

• Service Member Civil Relief Act

20-20-20 • 20 years of marriage, plus

• 20 years of creditable service, plus

• 20 years of overlap equals – Free Military Medical Coverage

– PX and Commissary Privileges

Most military seem to care more about the PX and Commissary Privileges

S.C.R.A

“Protect those who have been

obliged to drop their own affairs

to take up the burdens of

the nation”

Boone v. Lightner 319 U.S. 561, 575 (1943)

S.C.R.A Liberal Construction

“The Act should be read "with an eye friendly to those who dropped their affairs to answer their country's call.”

Le Maistre v. Leffers, 333 U.S. 1, 6 (1948).

Who is covered by S.C.R.A.

Active duty service member

Mobilized Guard

National Guard

Sometimes dependents are covered

Stay in proceedings Default Judgments

• Court SHALL grant a stay for a minimum period 90 days – Upon application of counsel; or – Court’s own motion

• If, the court determines • There may be a defense to the action and a defense cannot be

presented without the presence of the defendant; or • After due diligence, counsel has been unable to contact the

defendant

Stay of Proceedings – 50 USC App 522

• Temporary delay of suit until service member can appear;

– This section applies if service member has notice

– Can apply at any stage of the litigation

– For at least 90 days

Stay of Proceedings

• How to apply

– Statement that military affects ability of service member ; and

– When the service member can apply

– Statement from Commanding Officer

• Duty prevents service member appearance

• No leave allowed

Stay of Proceedings

• If you don’t make a motion or request you do not get a stay, it is not automatic

• Stay is not automatic – court can deny a motion for stay if the Court determines that the military duty does not materially affect service member's ability to appear.

Stay of Proceedings

• An application for stay is not an appearance for jurisdictional purposes.

• Stay is just that a “Stay” it is a delay in the process, not a toll of the process

– Support could still be related back if the jurisdiction allows for retroactive application

How to handle stay request

• Ask if the service member’s presence is required

• Can we use the telephone?

• Can we use skpe?

• Video teleconference

• Military Leave

How long can a stay be in place

For a period that is just

For the rest of term of service

For the duration of the material affect

Managing Clients with Challenging Personalities

Presented By:

Erica Gittings | Litigation Manager | Madison

and

Heather Biagi | Assistant Team Leader | St. Louis

DISCLAIMER

*Matt-can you add photos of the following celebrities here: Charlie Sheen, Kanye West, Hannibal Lecter and Lindsay Lohan

What is a Personality Disorder?

An enduring pattern[s] of behavior and subjective experience that affect[s] a person’s thinking, feeling, relationships, and impulsiveness.

Often the affected person sees these patterns as perfectly reasonable and appropriate despite the dramatic, negative impact on his/her daily life and the lives of those around him/her.

Borderline Personality Disorder

VIDEO

Tips for Working with the Borderline Client

• Do not assume your professional relationship is over when the client becomes extremely angry and avoid over-reacting to their swift and intense emotions.

• Set realistic expectations and boundaries early in the relationship and be modest and matter of fact about your role and function.

• Be on the lookout for calls regarding feelings of anxiety and abandonment and try and represent practical stability in their chaotic functioning.

• Utilize customer service skills when faced with extreme anger. These relationships can often be maintained.

Narcissistic Personality Disorder

VIDEO

Tips for working with Narcissists

• Ask them to use their “good intelligence” and skills to work with you to bring about a satisfactory resolution.

• Recognize and express regard for their strengths and accomplishments and avoid direct criticism.

• Share decision-making with them and explain the benefits (to their agenda) of following your advice.

• Do not abruptly terminate the relationship.

Antisocial Personality Disorder

VIDEO

Tips for Working with Antisocials • Maintain healthy skepticism and obtain corroborating

information. • Establish an anchor of ethics and rules regarding

business practices and avoid doing favors. • Emphasize that it is in their best interest to work with

you and explain consequences of future misconduct. • Set a clear outline of client’s responsibilities and

monitor closely. If they are not fulfilling financial obligations be prepared to withdraw.

Histrionic Personality Disorder

VIDEO

Tips for Working with a Histrionic

• Listen respectfully and try to focus on tasks.

• Give clear and repeated instructions on what documents to get, how to organize them and why they are important.

• Maintain healthy skepticism and ask for verifiable data and check veracity of their reports.

• Provide structure and focus.

Other Personality Disorders to be mindful of

Obsessive-Compulsive

Dependent

Paranoid

Avoidant

Schizoid

Passive-Aggressive

One-Hour Lunch Break

167

Evidence for the Family Law Attorney: A Winning

Strategy Presented By:

Lisa Karges

Senior Attorney | Tampa, FL

168

Know thy Judge!

ORGANIZATION

Initial Interview

Trial preparation begins the first time you meet with your client. Your interview will develop as a summary of the issues that could be litigated in your case.

Determine preliminary outline of witnesses and exhibits

169

Internal Trial Deadlines

170

Once the trial is set, you should schedule a 90-60-30 day meeting with your paralegal and, if necessary, your client.

Calendar external deadlines

for court

90-DAY MEETING

Review potential exhibit file

Review exhibits from prior motions, such as temporary support, and find out if they need to be updated or modified

Make sure that the witnesses are available for the trial date; letters or subpoenas to witnesses

171

Other 90-Day To Do’s:

Make sure that all of your discovery requests are updated and sent out.

Determine whether you need to file additional Expert Witness Interrogatories.

Prepare your draft Witness List.

Begin preparing your exhibit list as it will look in final draft.

172

Other 90-Day To Do’s:

Confirm that all depositions that need to be scheduled have been scheduled.

Check your pleadings and make sure that you have pled everything that needs to be pled for trial.

Make sure you have filed your Notice of Intent to Use Summaries.

Make sure you have filed a request for judicial notice appropriately.

173

Other 90-Day To Do’s:

Begin work on any memos of law regarding substantive issues.

Review the evidence code predicates to admit your exhibits and make sure you have met the criteria to introduce them.

Meet with your tech support person to begin the preparations for the technology needs for trial. If you intend to use a videotaped deposition at trial, begin marking the sections you intend to introduce.

174

Block out your calendar for the 3-4 days prior to trial for meeting preparations with experts and client and for your trial testimony finalization.

Start developing your theme for trial.

175

Other 90-Day To Do’s:

60-DAY MARK

Additional depositions and the

status of witnesses

Work on outlines of trial testimony for witnesses

Outline for your trial notebook in place

Work on stipulations at trial

176

60-DAY MARK

Determine exhibit exchange timing with OC and allot time for Motions to Compel Summaries or backup for summaries.

Make sure you have the basic information for experts: transcribed depositions, CV’s, notes and all file data for all your expert witnesses

177

DEPOSITIONS

178

Make sure you have all the transcripts of all the depositions you intend to use at trial.

Summarize those depositions for use at trial.

Depositions should be used for impeachment, admissions, or if the witness is unavailable pursuant to the rules.

Depositions should be published during trial.

30 DAYS PRIOR TO TRIAL

Prepare a proposed final judgment using the findings of fact per issue as a guideline in the presentation of the evidence.

Work on any pretrial motions or stipulations and memos of law.

Determine if you will need a continuance of trial and get the motion filed ASAP.

179

30 DAYS PRIOR TO TRIAL

Start assembling trial notebooks in final format.

File any Notices related to depositions (Errata sheets etc)

180

7 DAYS PRIOR TO TRIAL

181

Finalize witness outlines and trial testimony.

Review all exhibits from OC and prepare cross exam. Prepare notes on closing and keep in your closing argument section.

Finalize arrangements for getting boxes and computer equipment to the courthouse.

7 DAYS PRIOR TO TRIAL

Determine where lunch breaks will be and make plans for lunch. Make sure the paralegal on the case is available during lunch for last minute or unexpected issues.

Arrange in advance for someone to do quick legal research as needed

182

TRIAL NOTEBOOKS

183

Organized and easy reference

Very Individualized, use personal preferences

Should have been created in some form throughout the entire case

TRIAL NOTEBOOK SECTIONS

184

CPA/Expert Witness

Other Witnesses

Asset/Liabilities Worksheets

Legal Research

Trial Memorandum

Closing Argument

EXHIBIT NOTEBOOK

185

Index of Exhibits

List Exhibits in Order of Admittance

Objections to Opposing Parties’ Exhibits

General List of Objections

Witness Selection

186

You get what you get!

Prepare your Witness

187

188

189

190

191

192

193

GOOD EXHIBITS

Good exhibits provided with the assistance of

Lewis, Birch & Ricardo

1530 West Cleveland St.

Tampa, FL 33606

and

Monica Ospina, CPA

Forensic Accountants and Consultants, PA

400 North Ashley Drive, Suite 2600

Tampa, FL 33602

194

195

196

197

198

199

200

201

202

203

204

205

206

207

208

209

210

211

212

213

Trial Binder Index

214

OTHER MATERIALS FOR USE AT TRIAL

Professor Irving Younger’s Lecture on the Ten Commandments of Cross Examination

McElhaney, The Trial Handbook

The Litigation Manual – Trial (ABA Publication)

215

Child Support: On and Off the Charts

Presented by: Frank Murphy | Senior Partner | St. Louis

and Cherlyn Crosby | Asst. Litigation Manager | St. Louis

What’s Included in Gross Income?

• Salaries

• Wages

• Commissions

• Dividends

• Severance pay

• Pensions

What’s Included in Gross Income?

• Interest

• Trust income

• Annuities

• Partnership distributions

• Social security benefits for the parent

• Retirement benefits

What’s Included in Gross Income?

• Worker’s compensation benefits

• Unemployment compensation benefits

• Disability insurance benefits

• Social security disability benefits (SSD) due to parent’s disability

• Veterans’ disability benefits

What’s Included in Gross Income?

• Military allowances for subsistence and quarters

A Closer Look at a W-2 for Gross Income

• Box 1 – wages, tips, bonuses, prizes, and other compensation, plus taxable fringe benefits – not elective deferrals to retirement plans, pretax benefits or payroll deductions

• Box 12 – depending on the item, these may need to be added to gross income

Trust Income Considerations

See Comment B.

Can the parent direct the income?

Can the parent control the investments?

Will the parent continue to receive the income?

Self-Employment Considerations

• Gross income is net profit or net loss on the schedules filed as part of parent’s federal income tax return.

• BUT expense reimbursements or in kind payments by the business for personal expenses may be income.

See Comment I.

Self-Employment Considerations

• Depreciation and travel expenses (if unrelated to business) are added as income for S corporations. Blevins v. Blevins, 249 S.W.3d 871 (Mo.App. 2008).

Ordinary & Necessary Expenses

• common and accepted in your trade or business

Ordinary

• helpful and appropriate for your trade or business

Necessary

Cost of Goods Sold

• Costs of products or raw materials, including freight

• Storage

• Direct labor costs, including contributions to pensions or annuity plans

• Factory overhead

Capital Expenses

• Business start-up costs

• Business assets

• Improvements

Other Business Expenses

Use of home

Use of car Employee’s

pay

Retirement plans

Rent expense

Interest

Taxes Insurance

Rents & Royalties Considerations

Gross receipts

The ordinary and necessary

expenses incurred to

produce such receipts

Gross Income

What May be Included In Gross Income?

• Overtime compensation

• Bonuses

• Earnings from secondary employment

• Recurring capital gains

• Prizes

• Retained earnings

• Significant employment-related benefits

Overtime Compensation & Secondary Employment Considerations

See Comment C.

What effect does it have on parenting time?

What is the motivation for working overtime or a second job?

Will the parent continue to receive the additional income?

Bonus Considerations

• What effect does parenting time have on receiving bonus?

• What is the motivation of the parent? • What was received in past three years? • Will the parent continue to receive the bonus? • How many other dependents is the parent

financially responsible for?

See Comment D.

Capital Gains Considerations

• What was earned for the past three years?

• Will the parent continue to receive the income?

• Why were adjustments made to account?

See Comment E.

Retained Earnings Considerations • Is reinvestment of business income an ordinary &

necessary expense?

• Is reinvestment of business income for maintenance or growth of business?

• Is reinvestment of business income based on sound business practices?

• What is the parent’s reason for reinvestment?

See Comment F.

Employment-Related Benefit Considerations

See Comment G.

Non-taxable income and employment-related benefits may be added to a parent’s gross income.

Employment-Related Benefit Considerations

• Pretax “flex plan benefits” that offset the cost of health insurance. Fulton v. Adams, 924 S.W.2d 548, 554 (Mo.App. 1996).

• Employer contributions to a retirement plan – if the parent controls the distribution of funds. Roberts v. Roberts, 847 S.W.2d 108, 109 (Mo.App. 1992).

What is Not Included in Gross Income?

• TANF payments

• Medicaid benefits

• Supplemental Security Income (SSI)

• Social Security Disability (SSD) benefits received on behalf of the child

• Food Stamps

What is Not Included in Gross Income?

• General Assistance Benefits

• Other Public Assistance Benefits Having Eligibility Based on Income

• Child Support Received for Children Not the Subject of This Proceeding

What About Expenses? Child’s Health Insurance Costs

Uninsured Medical Costs

Other Extraordinary Costs

Day Care Expenses

Extracurricular Expenses

Private School Education Costs

Post-Secondary/College Expenses

Daycare Costs – Line 6a

• “Off the Chart” if an event is going to occur soon – e.g., five year old is starting school full-time.

• Not included for a parent with zero income, but if imputed income then cost may be imputed too.

• If included on Form 14 then cannot include as an expense for maintenance calculations. Atchley v. Atchley, 334 S.W.3d 709 (Mo.App. 2011).

Child’s Health Insurance Costs – Line 6c

• Premiums paid by parent or spouse are included.

• Cannot include health care costs in retroactive award if child was covered during pendency. Love v. Love, 72 S.W.3d 167 (Mo.App. 2002).

Uninsured Medical Costs – Line 6d

• Must exceed $250/year, be predictable and recurring.

• Benefits ordered off the charts are also appropriate.

Other Extraordinary Costs – Line 6e

• “On chart” if both parents agree or the court orders both parents to contribute.

• If there is a separate order for payment of college or other educational expenses, a court may not include these expenses on the Form 14. Hart v. Hart, 210 S. W.3d 480 (Mo.App. 2007).

• Cell phone & car insurance are necessary-child rearing expenses not extraordinary costs. Pickering v. Pickering, 314 S.W.3d 822, 837-38 (Mo.App. 2010).

Extracurricular Costs

• Costs include: camps, lessons, travel and other activities intended to enhance the athletic, social or cultural development of a child.

• Dance lessons & piano lessons excluded absent evidence of specific costs. Searcy v. Searcy, 85 S.W.3d 95 (Mo.App. 2002).

Private School Costs

• Costs include: tutoring, and special or private school to meet the particular educational needs of a child.

• Cannot be included if one parent is unemployed. Markowski v. Markowski, 793 S.W.2d 908 (Mo.App. 1990).

College Costs

• Costs include: tuition, room and board, books, fees and other reasonable and necessary expenses.

What About Tax Dependency Exemptions?

• Assumption that the exemptions go to the parent entitled to support.

• Based upon this assumption, “the trial court is required to rebut the PCSA as being unjust or inappropriate” before a dependency tax exemption can be awarded to the child-support obligor. Jarvis v. Jarvis, 131 S.W.3d 894, 898 (Mo.App. 2004).

What About Tax Dependency Exemptions?

$3,900 for 2013

What About Tax Dependency Exemptions?

• In Vohsen, the Eastern District explained that to effectuate allocation of a dependency tax exemption to a noncustodial parent, “a trial court must order the custodial parent to annually sign the prescribed declaration, presently IRS Form 8332.” Vohsen v. Vohsen, 801 S.W.2d 789, 792 (Mo.App. 1991). The court's order should further “make execution of the declaration contingent upon the custodial parent's receipt of the court ordered child support payments” and establish a deadline for signing the declaration. Id.

What About Tax Dependency Exemptions?

• In Thorp, the trial court awarded the tax exemption to Father and ordered Father to pay $64 more per month than calculated by the Form 14 so Father would pay $1,092 more per year in child support while recognizing a $3,800 dependent tax exemption for Tax Year 2012. Moreover, Father is the higher income earner, so his ability to take the tax exemption maximizes the tax benefits to both parties and Minor. Thorp v. Thorp, 390 S.W.3d 871 (Mo.App. 2013).

Resources

• Missouri Child Support Enforcement - http://www.dss.mo.gov/cse/

• Comments to Form 14 - https://www.courts.mo.gov/file.jsp?id=29741

• IRS – http://www.irs.gov

20-Minute Break

What Every Family Law Lawyer Needs To Know

About Ethics Presented By:

Barbara Johnson-Stern | Partner | Denver and

Scott Trout | Managing Partner/CEO | St. Louis

Report of the Office of the Chief Disciplinary Counsel for the year 2012 together with the Financial Report of the Treasurer of the Advisory Committee Fund for 2012

ALAN D. PRATZEL

Chief Disciplinary Counsel

• 2039 Complaints Received in 2012

• 856 Formal investigations opened

• 457 investigated by regional disciplinary committees

• 390 investigated by OCDC

• 48 placed in OCDC formal resolution program

968 not opened

94 needed further review

125 insufficient information

96 referred to fee dispute committee

24 referred to comprehensive resolution

27 held in “inquiry status” (developing)

• NATURE OF VIOLATIONS * NO.

• Rule 4-1.4 (Communication) 386

• Rule 4-1.3 (Diligence) 334

• Rule 4-1.15 (Safekeeping Property) 217

• Rule 4-1.5 (Excessive Fees) 115

• Rule 4-8.4(c) (Dishonesty, Fraud, Deceit,

• Misrepresentation) 83

Nature of Violations* NO.

Rule 4-1.4 (Communication) 386

Rule 4-1.3 (Diligence) 334

Rule 4-1.15 (Safekeeping Property) 217

Rule 4-1.5 (Excessive Fees) 115

Rule 4-8.4(c) (Dishonesty, Fraud, Deceit, Misrepresentation)

83

• Rule 4-1.16 (Improper Withdrawal) 73

• Rule 4-1.7 (Conflicts) 67

• Rule 4-5.5 (Unauthorized Practice) 35

• Rule 4-7.2 (Advertising) 33

• Rule 4-1.1 (Competence) 23

• Rule 4-3.3 (Truth to Tribunal) 21

• Rule 4-4.1 (Truth to 3rd parties) 21

Nature of Violations NO.

Rule 4-1.16 (Improper Withdrawal) 73

Rule 4-1.7 (Conflicts) 67

Rule 4-5.5 (Unauthorized Practice) 35

Rule 4-7.2 (Advertising) 33

Rule 4-1.1 (Competence) 23

Rule 4-3.3 (Truth to Tribunal) 21

Rule 4-4.1 (Truth to 3rd parties) 21

• Rule 4-1.6 (Confidentiality) 18

• Rule 4-5.3(b) (Supervisory Responsibility) 7

• Rule 4-8.4(b) (Criminal Activity) 7

• Rule 4-3.4 (Obstruction/False Evidence) 4

• Rule 4-3.5(b) (Ex Parte Contacts) 4

• Rule 4-3.8 (Prosecutorial Responsibility) 2

• * Many complaints included more than one allegation

Nature of Violations NO.

Rule 4-1.6 (Confidentiality) 18

Rule 4-5.3(b) (Supervisory Responsibility)

7

Rule 4-8.4(b) (Criminal Activity) 7

Rule 4-3.4 (Obstruction/False Evidence)

4

Rule 4-3.5(b) (Ex Parte Contacts) 4

Rule 4-3.8 (Prosecutorial Responsibility)

2

* Many complaints included more than one allegation

4-1.1 -- Client-Lawyer Relationship -- Competence

• My boss wants me to take on a breach of contract claim, I’ve never done this, can I?

• Yes. See Rule 4-1.1, and Comments (1) and (2) to same • Can I charge my client for familiarizing myself with the

relevant law related to his claims? • Yes. See Comment (2) • My client called me from jail, he has a bond hearing

tomorrow and he wants me to help. I have never done a criminal case, can I?

• Cautiously, yes. See Comment (3)

• 4-1.2 -- Client-Lawyer Relationship -- Scope of Representation

• My client only wants help with settlement negotiations, can I step in?

• Yes. See Rule 4-1.2(c) • Do I need a special fee agreement? • Yes. See Rule 4-1.2(c) • My client wants me to help him engage in insurance fraud, what

should I do? • Decline. But see Rule 4-1.2(f) • My client wants to keep all of the financial accounts; he wants to

transfer them to a hidden over-seas bank account, what should I do?

• Separate objectives from means. See Comments (1) and (7) to Rule 4-1.2

4-1.3 -- Client-Lawyer Relationship -- Diligence

• I need to slow this case down, I just have too much on my plate, can I?

• No. See Comments (1),(2) and (3) • Do I have to take

the first trial date offered? • No. See Comment (1)

• 4-1.4 -- Client-Lawyer Relationship -- Communication • My client just wants this to go away so he gave me

permission to settle this case, can I really leave him out of it?

• Not entirely. See Comment (2) to Rule 4-1.4 • What is enough communication? • Depends. See Comments (1) and (3) to same • My client is going to hate this expert report and might do

something stupid, do I have to send it to him? • Not immediately. See Comment (6) • My client is going to hate this letter, and I just don’t want

to deal with it. Can I toss it? • No. See Comment (6)

• 4-1.5 -- Client-Lawyer Relationship – Fees • This case is going to take all my time, I won’t

be able to take on more work, what can I do? • Consider appropriate fee. See Rule 4-1.5 (a)(2) • This guy can’t pay, can I take his divorce on a

contingent fee? • No. See Rule 4-1.5(c) and (d)1 • Now his divorce case is over, can I take post decree

matters on a contingent fee? • Maybe. See Comment (6) to Rule 4-1.5

4-1.7 -- Client-Lawyer Relationship -- Conflict of Interest: Current Clients

• My friends want to form a joint venture, can I represent them all?

• No. See Rule 4-1.7(a) and Comment (8) to same • I’ll just get them all to waive the conflict, will this work? • No. See Comments (14) and (15) • My long time friends are getting a divorce and want me to

be their lawyer, they agree on almost everything and don’t want to go to Court, can I represent them?

• No. See Rule 4-1.7 (a)(1) and (b)(3) and Comment (23)

4-1.8 -- Client-Lawyer Relationship -- Conflict of Interest:

• My client wants to invest in my restaurant, can I let him?

• Yes. But see Comment (1) to Rule 4-1.8 • The lawyer on the other side plays golf at my club

with me sometimes, can he represent my wife?

• Yes.

4-1.9 -- Client-Lawyer Relationship -- Duties to Former Clients

• I represented a client in a divorce, now his ex wife wants me to represent her in her new divorce, can I?

• Yes. See Rule 4-1.9(a)

and Comment (3) to same

4-1.10 -- Client-Lawyer Relationship -- Imputed Disqualification: General Rule

• I just moved firms. My new firm represents the wife of my former client, what should I do?

• Fully consider Rule 4-1.10 (a) but also 4-1.9 (b)(2),

(c) and Comment (4) to same

4-1.14 -- Client-Lawyer Relationship -- Client with Diminished Capacity

• This client doesn’t seem to be able to follow our discussions or the information I’m giving him, what can I do?

• Depends. See Rule 4-1.14 (a) and (b) • This case involves children and parenting time, I’m

afraid if I reveal this problem with the client it will hurt his case, what can I do?

• Be cautious. See Rule 4-1.14 (c)

4-1.15 -- Client-Lawyer Relationship -- Safekeeping Property

• My client wants me to keep his guns, can I?

• Yes. See Rule 4-1.15(a) • Can I put them in my gun safe

with my guns? • No. See Rule 4-1.15(a).

Remember standard in Comment (1)

4-1.16 -- Client-Lawyer Relationship -- Declining or Terminating Representation

• I’m done with this guy but his case isn’t over, can I terminate our relationship?

• Maybe. See Rule 4-1.16 (b) and Comment (9) • I don’t want to take this case, do I have to? • No

4-1.22 -- File Retention

• I know this client hated me and has it out for me, can I destroy his file when I’m done?

• No. See Rule 4-1.22 (a) and (c)

4-2.4 -- Counselor -- Lawyer Serving as Third-Party Neutral

• My friends are getting a divorce, can I mediate their case?

• Yes. See Rule 4-2.4 but see (b)

4-3.2 -- Advocate -- Expediting Litigation

• I want to take the summer off, can I? • Depends. See Rule 4-3.2 and

Comment(1) to same

4-3.3 -- Advocate -- Candor Toward the Tribunal

• My client just testified that he makes 3,000 a month, but actually, it is 7,000, what can I do?

• Take Remedial Measures. See Rule 4-3.3(a)(3) • My client told me he wants to lie about his income,

what do I do? • Take Remedial Measures. See Rule 4-3.3(b) and

Comments (6), (10), and (11)

4-3.4 -- Advocate -- Fairness to Opposing Party and Counsel

• I really don’t like the client on the other side, and I want the Court to know what a snake she is, can I bring up her DUI if there aren’t kids involved?

• No. See Rule 4-3.4(e)

4-3.7 -- Advocate -- Lawyer as Witness

• My best friend wants me to represent him in his divorce, I am so glad he is getting a divorce because I saw every weekend how his wife behaved and she really shouldn’t have the kids. Can I represent him?

• Maybe. See Rule 4-3.7(a), but also (a)(3)

4-4.1 -- Transactions with Persons Other than Clients -- Truthfulness in Statements to Others

• My client has a DUI, no one has asked me directly about it, do I have to fess up?

• Yes. See Comment (1) to Rule 4-4.1 • My client’s Mother just told the other side that her

son has never been drunk a day in his life, I know this is wrong, what do I do?

• Disclose. See Comment (1) to same

4-4.2 -- Transactions with Persons Other than Clients -- Communication with Person Represented by Counsel

• I run into the other side in a restroom during mediation, can I just ask her a quick question about her job?

• No. See Rule 4-4.2 and Comment (2)

4-4.4 -- Transactions with Persons Other than Clients -- Respect for Rights of Third Persons

• My client wants me to subpoena her husband’s girlfriend’s employment file and take her deposition, can I?

• No. See Rule 4-4.4 (a) and Comment (1) to same, also Rule 4-3.4(d)

• My client just brought me copies of emails between his wife and her lawyer. They were just laying around, can I keep them?

• Don’t Know. See Comment (2) to Rule 4-4.4

4-7.1 -- Information About Legal Services -- Communication Concerning a Lawyer's Services

• I have had good success in trial, can I advertise that I will win their case for them?

• No. See Rule 4-7.1(b) • I’m the best lawyer in town, can I say that in my ad • No. See Rule 4-7.1(e)

4-7.2 -- Information About Legal Services -- Advertising

• Can I run a television ad? • Yes. See Rule 4-7.2(a) • My neighbor is broke. She is a marriage counselor,

can I pay her $100.00 per referral to send clients my way?

• No. See Rule 4-7.2 (c) and Comment (2)

4-7.3 -- Information About Legal Services -- Direct Contact with Prospective Clients

• Can I hang around outside of marriage counseling offices and try to generate some business as people leave the office?

• No. See Rule 4-7.3 (a) • Can I put flyers on their cars? • Yes, but subject to limitations. See Rule 4-7.3(b)

4-7.4 -- Information About Legal Services -- Communication of Fields of Practice and Specialization

• Can I say I am a family law specialist? • Yes. But see Rule 4 and

need for disclaimer

4-8.3 -- Maintaining the Integrity of the Profession -- Reporting Professional Misconduct

• My best friend is a lawyer. We were out the other night and he told me he shredded a document that was a case breaker for his client. What do I do?

• Report. See Rule 4-8.3(a)

4-8.4 -- Maintaining the Integrity of the Profession -- Misconduct

• I really want a new car, so I told the lender my salary was double what it is, can I get in trouble for that?

• Yes. See Rule 4-8.4(b) and (c)

• Clients with diminished Capacity • Communication, Communication, Communication:

How to Market a Law Practice, Satisfy Clients and Avoid Complaints

• Lawyer Advertising: These are Not Your Father’s Advertising Rules – Have you Recently Considered What you Can and Can Not Do?

• Limited Scope Representation a/k/a Unbundled Legal Services

• Some Conflicts are Without a Cure • Seven Things Attorneys Do Not Want to Say

Thank you for attending!