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.

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?

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.

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

On July 24, 3009, the federal minimum wage increased to $7.25 per hour.  This increase is the last of three provided by the Fair Minimum Wage Act of 2007.  Many states also have minimum wage laws, however where the employee is covered by both state and federal law, the employee is entitled to whichever is the higher minimum wage.  As a result, all employees covered by the Fair Labor Standards Act must be paid at least a minimum of $7.25 per hour.  Also, employers must post a revised Federal minimum wage poster in their places of work.   You can download the revised FLSA poster by clicking here. 

Now, there are some exceptions to the minimum wage provisions of the law, though the exceptions tend to be pretty narrowly defined.  Employers should check with legal counsel regarding properly classifying employees and properly compensating them.  Violations of wage and hour laws, even if done accidentally, can result in serious penalties.  For more information about wages and hours, speak to a labor and employment attorney who can advise you about your legal options.

By now, we’ve all become familiar with loan modification scams, deceptive mortgage rescue ads, and other foreclosure scams.  State Attorney General offices have received numerous complaints from unwary consumers who have fallen victim to some of these companies after having forked out substantial money to them, with little or no resolution to their mortgage problems.  Well, the FTC has rallied to help.  (It is its job, anyway, to protect consumers in such a way.)  Cleverly called “Operation Loan Lies,” the FTC is coordinating its efforts with other law enforcement agencies to help protect families and individuals from falling prey to the unscrupulous scammers.  The FTC is also bringing lawsuits against many of these companies for their illegal activity – including charges of deceptive advertising, false claims, misrepresentation, and failing to provide promised services. 

You know the ones I’m referring to – those companies that promise to stop foreclosure, rescue homeowners from high mortgage payments…. all for just a “small” upfront fee.  The truth is – nobody can promise to stop foreclosure and nobody can promise to get you a loan modification. 
However, there are professionals out there, including attorneys, who CAN advise you of what options are available for your particular situation.  Seriously, understanding the landscape is half the battle.  Also, attorneys CAN help you navigate the process with your lender. 

Read the FTC news release about Operation Loan Lies by clicking here. 

To learn more about how the financial crisis affects you, including information about foreclosure, loan modification, and debt relief, visit LawInfo’s Free Legal Resource Center.  For more information, consult an attorney in your area about your financial concerns.  Visit LawInfo’s Attorney Directory to locate an attorney.

These days, when layoffs are large and new jobs are scarce, you might be considering even moving away in order to take a new job in a different location.  So you search for movers on the internet, find the best deal out there (because a lot of new jobs these days aren’t covering relocation expenses) and pack up your belongings in time for moving day.  Once the movers get to your home, you’re rushed through the paperwork and all the boxes and furniture are loaded onto the truck.  … and then &*@ BAMB!  … something awful happens….   The movers tell you that the loading of your belongings took longer than originally estimated, or that your move required additional moving materials, or some other reason that the move is going to cost you MORE MONEY.  All this happens, of course, AFTER your worldly assets are already on the truck… 

Sound scary, right?  Well, it turns out this scenario is a real-life scam the FBI calls “moving fraud.”  In fact, the FBI reported that thousands of people were victimized in this fashion by 16 Florida-based moving companies.  Check out the FBI information page about it by clicking here.

Fraud is a crime.  If you’ve been a victim of moving fraud, or any other white collar crime, contact local law enforcement to make a complaint.  Also, contact an attorney to determine what legal options may be available either to recover your stolen possessions or seek money damages from the perpetrators.

Media reports are swirling over the issue of who will get custody of Michael Jackson’s kids.  It could be a bit of a battle depending on a variety of things including what Michael Jackson’s will provides regarding guardianship of the kids, whether Michael Jackson’s mother (temporary guardian at this point) petitions the court for custody, and whether any other person(s) claim a legal right to custody of the children.  One of the issues that may impact the custody or guardianship proceedings is whether or not another person, such as Debbie Rowe (mother of Michael Jackson’s two eldest children), or the so-called unknown surrogate mother of Jackson’s youngest child, will dispute any guardian named in Jackson’s will and try to obtain custody respectively.   It can be a complicated, if not downright tricky, legal issue when children are born in, let’s say non-traditional, means.  And… unlike some tabloid reports, the person(s) named on a child’s birth certificate are not necessarily conclusively entitled to such custody.  Allow me to deconstruct: 

When a man and woman get married, conceive a child, the woman carries the pregnancy and gives birth to the child, the child is both biologically related to both the man and the woman and the woman gives birth to the baby – both “paternity” and “maternity” are clear.  Both the man and the woman have a “parent and child relationship” with the baby.  The woman’s name is listed on the birth certificate as the mother and the man’s name is listed on the birth certificate as the father. 

With adoption of a child, parental rights are also well-settled.  The man and the woman petition the court to adopt the child, to terminate the biological mother (and father’s when known) legal rights, and for the adoptive parents to become the legal parents.   A Court Report of Adoption is prepared which contains the child’s original birth name, etc. and the natural parents’ names, as well as the child’s new name and information about the adoptive parents.  Then, the child’s original birth record is sealed and a new birth certificate is prepared listing the adoptive father’s name as the father and the adoptive mother’s name as the mother. 

With surrogacy, the legal rights of all involved start getting a little tricky.  First, there are many different types of surrogacy.  A woman’s eggs can be harvested and fertilized by her husband’s sperm and implanted into another woman (surrogate), eggs can be donated by another woman, sperm can be donated, a woman can volunteering (or be paid) to be inseminated with a married man’s sperm in order to conceive and carry a child for a married couple,  etc.   Donors may be known or anonymous.  The most common types of surrogacy according to surrogacy.com are outlined below: 

• Traditional Surrogacy (Artificial Insemination) 
  An arrangement between the intended parents of the child and a woman who agrees to donate her egg(s) to be artificially inseminated with the sperm of the intended father. In most states the intended mother does a step-parent adoption after the birth in order to establish her parental rights and so that the surrogate will relinquish her rights regarding the child.
• Gestational Surrogacy
  An arrangement between the intended parents of the child and a woman who agrees to carry the embryo(s) made from the egg(s) and sperm of the intended parents. The child(ren) of gestational surrogacy is/are the genetic child(ren) of the intended parents, and the surrogate carries the embryo/fetus to term in the role of “host” uterus. In this form of surrogacy, the surrogate may also be called the “gestational carrier”.
• Donor Egg/Gestational Surrogacy
  Arrangement between the intended parents of the child and a woman who agrees to carry the embryo(s) made from the egg(s) of a third party donor (who is often anonymous) and sperm of the intended father. The surrogate carries the embryo/fetus to term as a “host” uterus since there is no biological tie between the surrogate and the embryo/fetus. In this form of surrogacy, the surrogate may also be called the “gestational carrier”.

In many states, the woman who gives birth to a child is presumed to be the mother and is thus named on the birth certificate as such.  With the increase of “assisted conception” and “third party reproduction” methods, however, some states may have regulations in place regarding naming the intended or biological mother on the original birth certificate.  On the father’s side, the intended or biological father may be able to “acknowledge” paternity and be named on the original birth certificate.  However, in many states if a surrogate is married, her husband may be “presumed” to be the father and thus listed on the original birth certificate.  Of course, these “presumptions” may be rebutted through evidence otherwise.

In California, the names of the father or mother listed on a child’s original birth certificate can be changed through a court order called an “Adjudication of Facts of Parentage.” A hospital or the Department of Vital Records can not change the names on a birth certificate without this official court order or “adjudication.”  To get the court order, the person(s) must petition the court, present facts about their situation, and the court must officially determine whether a “parent and child relationship” exists in order for the birth certificate to be changed. 

The Adjudication of Facts of Parentage (court order) must state the following:

1. 1. Specifically instruct the Department of Vital Statistics to remove the existing father and add the new father.
2. 2. Include the child’s date and place of birth as listed on his or her original birth certificate.
3. 3. If the child’s name is being changed, the full new name must be listed in the court order.

Given all of the above, the birth certificates of Michael Jackson’s children may not necessarily be the whole story.  Of course, they would be evidence of legal paternity and maternity.  Since the stakes are quite high in circumstances such as these – i.e. who will obtain legal rights to custody of a child – it is extremely important to seek the advice of an experienced attorney when contemplating assisted conception, third party reproduction, surrogacy, or other methods to create your family.  For more information, contact a family law attorney or a surrogacy lawyer.