Accidents happen.  Sometimes an accident could have been prevented – and was caused by the carelessness of another.  When an accident is caused by someone else’s negligence, then the negligent party (the one who didn’t act carefully enough) can be held responsible when a person is injured as a result.    However, sometimes an accident is truly just an accident – it wasn’t reasonably preventable, everyone involved behaved pretty responsibly, etc.  While it might not seem like anyone could be held responsible for an accident that’s “just an accident,” you’d be surprised at how much liability could actually be involved…  Sometimes the owner of property is legally responsible for an accident that occured on his or her property simply because a dangerous condition existed.  Sometimes a product manufacturer is legally responsible for defects in a product that caused harm to someone simply because the product is considered dangerous.  There are many different ways a person may be held responsible for another’s injuries. 

Take a look at LawInfo’s Free Legal Resource Center for more information – we’ve recently updated our section devoted to the issue of “fault” when a person is injured.  Specifically, we’ve added a new video on the topic to help explain this sometimes complicated matter.  To learn more and watch the videos, click the following:

I was injured in an accident… now what?

Who is responsible when a person is injured?

What does the term “liable” mean?

What does the term “reasonable person” mean?

What is negligence?

What is strict liability?

How do you know if you have a personal injury claim?

What financial compensation can I get in a personal injury claim?

Hiring the right personal injury attorney

New legislation has been introduced to Congress to equalize the sentencing for crack and cocaine drug offenses.  Currently, there is a 100-1 sentencing disparitybetween convictions for offenses involing “crack” or “powder cocaine.”   The legisitation, called the Fair Sentencing Act of 2009, would equalize the sentencing guidelines for these two drug offenses. 

It started with the Anti-Drug Abuse Act of 1986, which at the time was designed to aggressively target the increase in crack cocaine crime.  Under the law, those convicted of crimes involving “crack” cocaine were punished on a 100-to-1 ratio compared to those whose crimes involve cocaine in powder form.  Thus, a person who dealt five grams of crack cocaine (the weight of two pennies) could face 5 years in prison…. but person had to deal 500 grams of powder cocaine for a similar sentence.   Worse, as the years went on, some reports indicated that first-time offenders caught selling five grams of powder cocaine typically only received 6 months in prison, and would often be eligible for probation, while first-time offender selling the same amount of crack faced the mandatory five year prison sentence.  Another disparity was that the majority of dealers convicted for crack cocaine offenses were Black, while most convicted for powder cocaine offenses were White.  

Given the unfairness of the drug policies, several organizations advocated for a change in the “100:1″ crack-cocaine sentencing laws and it was one ofPresident Obama’s campaign pledges to equalize the punishment for the offenses.  Under the new laws, a person would have to be caught with 500 grams of crack cocaine to go to prison – same as for powder cocaine.  

There are many policy reasons behind the push for the new law – primarily to address the racial disparities mentioned, but also to refocus law enforcement efforts on drug king-pins rather than street-level dealers.

Even if you don’t watch the television program “COPS,” you might wonder the most common reasons people get arrested.  Well, you’re in luck because the FBI reports on just that topic!  According to the FBI/DOJ Report, Crime in the United States 2008, there were about 14 million arrests last year.  There were more arrests for property crimes than any other crime - about 1.7 million arrests.  Theft ranks next on the list after property crimes, ranking in at an estimated 1.2 million arrests or so.  Here is the chart from the FBI website:

If you’ve been charged with a crime, you need to protect your legal rights.  Consult an attorney as soon as possible regarding the charges, the circumstances of your arrest, and the facts of your case.  You have the right to have a lawyer present during any questioning.  A criminal defense attorney can advise you about your rights, what the prosecution must prove in order to convict you of the offense charged, and how the evidence in your case will likely impact the result.  An attorney can also help negotiate a favorable plea bargain and advocate for the most favorable sentencing for any conviction.  For more information about being charged with a crime, or to find a criminal defense attorney, visit LawInfo’s Legal Resource Center or search for an attorney in your area using our attorney directory.

Is medical marijuana legal now?  Well, not exactly.  While the legality of marijuana use is still a bit tricky – illegal under federal law, but legal in certain states – the Obama administration has decided NOT to arrest people who use or supply medical marijuana in conformity with their state’s laws.   

Remember the song… “I’m just a bill… on Capital Hill…”? In some ways, recalling our first lesson about “separation of powers” is helpful to this conversation.  In the U.S., what we think of as “the law” is really a collaboration of sorts – the Legislative Branch (Congress / state legislatures) makes the laws, the Judicial Branch (the courts) interprets the laws, and the Executive Branch (the President, police, etc.) enforce the laws.  When it comes to the topic of medical marijuana, each branch of the government has weighed in: 

Legislative:  Under federal law, any marijuana use is illegal.  Under certain state laws, however,  the use of marijuana is “legal” for certain medical purposes (see state medical marijuana laws in:  Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington).

Judicial:  The U.S. Supreme Court ruled in Gonzales v. Raich that the federal government could enforce federal laws against marijuana use under the federal Controlled Substances, despite state medical marijuana laws legalizing such uses.

Executive/Law Enforcement:  Depends on the President. During the Bush administration, hundreds of raids on medical marijuana use/supply were conducted and thousands were arrested.  The Obama administration is doing the opposite… 

The penalties for marijuana offenses, like for other substances, depend on the quantity at issues, as shown in the following chart from the U.S. Department of Justice website (see:    http://www.usdoj.gov/dea/agency/penalties.htm): 

  Federal Trafficking Penalties – Marijuana

In 2008, there were about 1.8 million arrests for drug offenses – and about half of them were for marijuana related offenses (approximately 5.5% of the total arrests were for marijuana sales/trafficking; approximately 44.3% of the total arrests were for marijuana possession).  (See:  DOJ/FBI Arrest Tables – 2008 Crime in the United States.)  Of course, not all of those marijuana arrests were arrests related to the use/supply of medical marijuana, though certainly some of them were. 

While law enforcement will continue to investigate, arrest and prosecute people involved in marijuana trafficking, sales to minors, violent and weapons-related marijuana activities, etc., the Obama administration won’t arrest those involved with legitimate medical marijuana activities.   Aside from the policy discussion, this shift in law enforcement could mean that more attorneys will be needed to advise clients about licensing and compliance with medical marijuana laws.  For more information – and links to state laws legalizing medical marijuana (or permitting some uses), click here.

In these modern times, both individuals and businesses often need legal services in several states…. and many times clients want their same lawyer to handle all those matters. Makes sense to me! I’d certainly rather have my regular real estate lawyer handle all my purchases, sales, etc. of property in various states. He or she would already be familiar with my preferences, etc., and with how best to work with me. Also, with that familiarity, he or she would be in a great position to advise me if any particular transaction would benefit or injure my position on another transaction. This scenario is commonly referred to as the multijurisdictional practice of law. Wouldn’t it be cool if lawyers could practice nationwide?

As a first step, let’s take a look at the ABA’s Model Rules of Professional Conduct. Rule 5.5, regarding Multijurisdictional Practice of Law, provides:

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

(1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

Not too bad… but it’s far from the nationwide practice of law. Lawyers still have to associate with local counsel, or seek permission from a new state to practice in a limited fashion, etc. Even so, the lawyer can’t fully practice in the state without being licensed there, nor can a lawyer fully represent his/her existing client in many aspects of their regular matters that happen to be out of the lawyer’s home state.

There is, however, a growing interest in true multijurisdictional law practice. The realities of how we live and work today have simply necessitated the pursuit of new rules. In fact, the National Conference of Bar Examiners has long been advocating for more uniform state licensing rules. The NCBE has even advocated for a uniform bar examination (UBE) for quite some time. The idea is that after passing the UBE, attorneys could the transport their scores across state lines and avoid having to take the state’s full bar exam.

Of course, for true multijurisdictional practice, there would have to be appropriate rules and standards establishing the minimum competency and professionalism requirements for a lawyer to practice law. Those standards couldn’t be very difficult to determine. Feel free to weigh in if you have some ideas – what would the standards look like to practice law nationwide?

There have been some very high profile cases of extortion in the news lately: The Robert Halderman / David Letterman case and John Travolata’s son’s death, to name two recent and terrible cases. Seems even more common today because people can sell their stories to the tabloids – giving blackmailers and extortionists a ready outlet to reveal private, or sometimes salacious, stories about others. You might think extortion and blackmail is left to celebrities and other high-profile folks (both in the movies and in real life), but its actually more common than you might think. 

According to the Federal Bureau of Prisons, about 5% of the total inmate population are serving sentences for extortion, bribery or fraud. (See: BOP Quick Facts.) 

So what exactly is extortion and blackmail? Extortion is defined by Title 18 of the United States Code, Section 1951 as follows:

“Extortion. The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. 18 U.S.C.A. §871 et seq.; §1951.

“A person is guilty of theft by extortion if he purposely obtains property of another by threatening to: (1) inflict bodily injury on anyone or commit any other criminal offense; or (2) accuse anyone of a criminal offense; or (3) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute; or (4) take or withhold action as an official, or cause an official to take or withhold action; or (5) bring about or continue a strike, boycott or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act; or (6) testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or (7) inflict any other harm which would not benefit the actor. Model Penal Code, §223.4.” (See also: Black’s Law Dictionary definition.)

Now, blackmail is similar to extortion.  Wikipedia distinguishes blackmail as follows:

“Blackmail is the crime of threatening to reveal substantially true information about a person to the public, a family member, or associates unless a demand made upon the victim is met. This information is usually of an embarrassing and/or socially damaging nature. As the information is substantially true, the act of revealing the information may not be criminal in its own right nor amount to a civil law defamation; the crime is making demands in exchange for withholding it. English Law creates a much broader definition of blackmail, covering any unwarranted demands with menaces, whether involving revealing information or not.Blackmail is similar to extortion. The difference is that extortion involves an underlying, independent criminal act, while blackmail does not.”

The Federal Bureau of Investigations has primary investigative jurisdiction of offenses in 18 U.S.C. § 1951 – which covers blackmail and extortion. The FBI defines white-collar crime as “. . . those illegal acts which are characterized by deceit, concealment, or violation of trust and which are not dependent upon the application or threat of physical force or violence. Individuals and organizations commit these acts to obtain money, property, or services; to avoid the payment or loss of money or services; or to secure personal or business advantage.” Extortion and blackmail would be covered bythe FBI’s definition  of white collar crime, along with bribery, forgery, embezzlement, countereiting and other fraud. 

The penalty for a criminal conviction for extortion, or related crimes, can be severe, including up to 20 years imprisonment.

For more information about extortion, blackmail, or white collar crimes, visit LawInfo’s Free Legal Resource Center at www.lawinfo.com and www.resources.lawinfo.com.

Several million mortgages are currently in default or expected to become past due in the coming months. Some of those homeowners who are past due have lost everything in foreclosure, some are simply walking away before it gets to that point, and others are struggling to stay in their homes. For many homeowners in default to be able to stay in their homes, their mortgages must be modified. While some homeowners have received decent loan modifications, others have been surprised to find out only that they’ve been denied by their lender. As diplomatically articulated by the FDIC Chairman, Sheila Bair, the financial industry wants to avoid foreclosure by offering loan modifications only “when it is financially prudent to do so.” (See a portion of the “Message from FDIC Chairman Sheila Bair” here.) Lenders are interested in modifying distressed mortgages, but only when the modified loan will be a “performing loan”. In other words, they’ll modify your loan if: (1) you can actually afford the modified loan and will pay it; and (2) the modification yields more money for them they’d make selling your home in foreclosure.

The FDIC Loan Modification Program manual explains some of the basic eligibility criteria participating lenders and servicers require in order for a homeowner to qualify for a loan modification.  Generally:

• Modifications may be available for loans that are at least 60 days delinquent or where default is “reasonably foreseeable”; 
• Foreclosure sale is not imminent and the borrower is currently not in bankruptcy, or has not been discharged from Chapter 7 bankruptcy since the loan was originated;
• The loan was not originated as a second home or an investment property;
• The modified monthly payment (of principal, interest, taxes, and insurance (PITI)) is within the allowable 31-38% housing-to-income (HTI) ratio;
• The terms of the modifcation are less costly to the bank/investor than a foreclsoure.

For a thorough explanation of the considerations taken into account by the financial industry when reviewing a possible loan modification, read the FDIC manual by clicking here.

According to the latest press release from the U.S. Department of Justice, suspects have been charged with data breach crimes in the largest alleged credit and debit card data breach ever in the United States.  Apparently, data related to more than 130 Million credit and debit cards was stolen by the criminals when they hacked into the computer systems of major retailers and payment card processors.  Albert Gonzalez, 28, of Miami, Fla., “and his co-conspirators, used a “sophisticated hacking technique called an “SQL injection attack,” to break past a computer system’s firewall to gain access to what would otherwise be secure information. 

Ever used your debit card at 7-11?  Well, then you’re card information might have been stored there.  Apparently, 7-Eleven was one of the retailers targeted by the hackers.  The hackers also targeted Heartland Payment Systems, a New Jersey-based card payment processor.  When an electronic payment card is used, the card numbers are stored electronically… the information is then transmitted to your account so that funds can be withdrawn according to the payment made.  Companies are required by various state and federal laws to implement sophisticated technologies protecting the safety of your card information.  However, a hacker’s job is to find ways around these protections. 

Does this mean your financial information isn’t secure?  Well… the answer is probably more like the answer about how safe it is to drive a car on the road.  There are a lot of rules and protections in place so that you don’t get into an accident on the road, but that doesn’t mean rules don’t get broken sometimes.  Same thing here sort of.  The payment systems are equipped with a variety of technologies to keep your financial information safe on the electronic superhighway, but that doesn’t mean the rules don’t get broken sometimes.

The best thing to do is to review your financial accounts regularly for any errors or disputed activity.  Contact law enforcement if you believe your financial accounts have been hacked or you’ve been a victim of identity theft. 

For more on these topics, check out LawInfo’s Free Legal Resource Center or contact an attorney today. 

Read the Department of Justice press  release by clicking here.

Do you have a complaint about your mortgage lender or broker regarding your interest rate, prepayment penalties, fraud, deception, or other matter regarding your home?  First, try to resolve the problem directly with your bank or broker.  If you are unsuccessful, however, I highly recommend you contact an attorney to discuss your legal options.  There are a variety of federal and state laws protecting consumers’ financial rights.  For instance, lenders and brokers are required to provide certain disclosures to borrowers about rates, fees, and other terms and conditions of lending.  If a lender or broker has violated any of the applicable laws, there will be certain legal remedies available to you.  Find an attorney through LawInfo’s online attorney directory. 

In addition to seeking advice from an attorney about your particular situation, you should know that you can make a complaint about a financial institution to various government agencies.  Below is information about how you can submit a complaint to the appropriate agency.   

Federal Deposit Insurance Corporation

The Federal Deposit Insurance Corporation (FDIC) handles complaints about FDIC insured state banks which are not members of the Federal Reserve System.  You can submit a complaint about your financial institution by completing the FDIC Customer Assistance Online Form.  You can also contact the FDIC by mail or phone:

Federal Deposit Insurance Corporation
Division of Compliance
1730 Pennsylvania Ave
7th Floor
Washington DC 20429
(877) 275-3342

Comptroller of the Currency

The Office of the Comptroller of the Currency (OCC) is a bureau of the U.S. Department of the Treasury.  The OCC handles complaints about National Banks. (Usually banks that have “National” in their name or “N.A.” after their names.) You can submit a complaint by completing the OCC Online Customer Complaint Form.  You can also contact the OCC by mail or phone:

Comptroller of the Currency
Compliance Management
250 E Street SW
Mail Stop 3-9
Washington DC 20219
(800) 613-6743
www.occ.treas.gov

Office of Thrift Supervision

The Office of Thrift Supervision handles complaints about Federal savings and loans, and also Federal savings banks.  You can submit a complaint about your financial institution by completing the OTS Consumer Complaint Form and mail or fax your complaint to:

Office of Thrift Supervision
Consumer Affairs Division
1700 G Street NW
Washington DC 20552
(800) 842-6929 
FAX:  202-906-7342
www.ots.treas.gov

Federal Trade Commission

The Federal Trade Commission handles complaints concerning most non-bank lenders, such as, mortgage and finance companies and state credit unions.  You can submit your complaint through the FTC’s Online Complaint Assistant. (Note:  The FTC Online Complaint Assistant is sort of a one-stop-shop for a variety of complaints collected by the FTC (including complaints about non-financial companies, business practices, identity theft, and episodes of violence in the media), so don’t get confused if you see questions related to these topics when using the Online Complaint Assistant…  just answer yes/no when going through the process so that your complaint can be directed to the right place.)   You can also contact the FTC directly:

Federal Trade Commission
Consumer Response Center
600 Pennsylvania Avenue, N.W.
Washington DC 20580
(877) 382-4357
www.ftc.gov

The Federal Reserve Board

The Federal Reserve Board handles complaints and regulates state-chartered banks and trusts. The agency also administers Truth-in-Lending, Equal Credit Opportunity Act, and Fair Credit Reporting Act.  You can submit your complaint by completing the Federal Reserve Board Online Complaint Form.  You can also download the form and submit it to the Federal Reserve Board by mail or fax:

Federal Reserve Consumer Help
PO Box 1200, Minneapolis, MN 55480
Fax: 877-888-2520

Division of Consumer and
Community Affairs
(202) 452-3693
www.federalreserve.gov

National Credit Union Administration

The National Credit Union Administration handles complaints about National Credit Unions. For Federal Credit Union (a credit union with the word “federal” contained in its name or any credit union in Delaware, South Dakota, Wyoming or Washington, DC), NCUA is the regulator.   You can file a formal complaint by sending the NCUA a letter – no special form is required – to the NCUA regional office for your state.  Find the NCUA regional office for your state by clicking here.

National Credit Union
Administration
1775 Duke Street
Alexandria VA 22314-3428
(703) 518-6300
www.ncua.gov

State charted Credit Union:  A credit union without the word “federal” as part of its name and not located in Delaware, South Dakota, Wyoming or Washington, DC, is probably regulated by a  state supervisory authority where the credit union’s main branch is located.  If your complaint is about a state-chartered credit union, you can find the appropriate contact information to make a complaint by clicking here. 

If you’re not sure if your credit union is state or federal, you can use the Find a Credit Union (link) to search by name and look up the credit union’s charter number.  Federal credit unions have charter numbers under 60000, state-chartered credit unions have charter numbers greater than 60000.

Department of Veterans Affairs

The Department of Veterans Affairs handles complaints about loans guaranteed by Veterans Affairs.  Contact the VA Regional Loan Center by clicking here. 

Department of Veterans Affairs
Consumer Affairs Service
810 Vermont Avenue, NW
Washington DC 20420
(202) 273-5770
www.va.gov Handles complaints about loans guaranteed by Veterans Affairs.

Wow.. I recently had the most amazing vacation!  The first time in years I took a vacation without checking my work-related emails, or phone calls.  No cell phone, no laptop.  It did me such wonders, that I was able to be more present to my environment when I returned to working with my clients.  I noticed how many folks around me had not taken vacation….   So I did a little Google search and found that since many people are struggling with their finances these days, they’re foregoing vacation due to fears of losing out on important work assignments or possibly even losing their jobs altogether.  Besides, many of us fear that in our absence, someone else will try to take our place. 

Not only did this news sadden me for those poor souls who really need a break, but it also worried me for employers trying to figure out how to comply with wage and hour laws regarding unused vacation time.  Must employees be compensated for unused vacation time?  Can vacation time roll-over to the following year?  Can employers cap the total hours of vacation time that may be accrued? 

Since you are my favorite readers… I figured I’d give you some answers to the above questions!  The answer is…. it depends.  I  know, I know… you hear that a lot when it comes to the law.  But in this case, its very true.  To a large extent, state laws vary regarding vacation compensation due to employees.  Generally, there is no legal mandate to even provide for vacation time or vacation pay – rather it is considered to be a matter of agreement between the employer and the employee.  But there is a catch…  Most state laws provide that once an employer has made an “agreement” with employees to provide vacation time/pay (even sometimes if only by virtue of an employment policy or provision in an employee handbook regarding vacation time/pay),  then state law steps in to govern whether/how that vacation time may accrue, whether it can be cashed out, etc.   I can tell you one thing for sure – violations of wage and hour laws can subject an employer to expensive lawsuits from disgruntled employees.  In this area, as in many employment topics, it pays to have good legal counsel help an employer draft and execute good vacation time and vacation pay policies. 

Click here to learn more about the laws on vacation time and vacation pay in your state:   List of All State Labor Offices