Category Archives: General Legal Issues
Funeral Agents
A thorough and well thought out estate plan is essential for many reasons and puts you in control to define your wishes and desires for when you are no longer able to make those decisions. Careful estate planning addresses many issues, including who will receive your assets, who will care for your children, establishes trusts to provide money for the care of your children, and gives you a voice to make medical and financial decisions when you are unable to communicate them on your own.
For those situations when an individual out lives their relatives, are estranged from family members, or may have reason to believe family members will not abide by their expressed wishes with respect to funeral plans, particular consideration in estate planning becomes necessary. New Jersey law authorizes the inclusion of a provision in your Last Will and Testament that appoints another person to control the funeral and disposition of your body. N.J.S.A. 45:27-22. The person appointed, sometimes called the funeral agent, does not have to be the executor under the Will. Funeral homes are required to honor the instructions of the person appointed as the funeral agent.
For those finding themselves in this type of situation, a sample of the language that should be included in the Last Will and Testament appears below. This is offered for illustrative purposes only. We recommend that you consult with an attorney for your particular situation.
Appointment of Funeral and Disposition Representative
“I hereby nominate, constitute and appoint [insert name] to serve as my Funeral and Disposition Representative, pursuant to N.J.S.A. 45:27-22. My Representative shall have the authority and power to control the arrangements for my funeral and the disposition of my remains. My Executor shall notify my Representative of this appointment, and shall advise my Representative of the financial means available to carry out the Funeral and Disposition arrangements. In the event [insert name] should predecease me or for some other reason not qualify to serve as my Funeral and Disposition Representative, then I nominate, constitute and appoint [insert name of alternate] as my Funeral and Disposition Representative.”
Legal Malpractice – Suing Your Ex-Lawyer
Even though your case did not turn out the way you hoped, most of the time, it is not your lawyer’s fault.
But sometimes it is.
In New Jersey, an attorney will be liable to a former client if the attorney fails to meet the “standard of care” and as a result, the client is damaged.
In performing legal services, an attorney must exercise the care, skill, and diligence that are commonly exercised by other attorneys representing clients in similar matters. If the attorney does so, the attorney meets the standard of care.
The attorney most often fails to meet the standard of care in dealing with the technical or procedural components involved in the services being rendered to the client.
Technical and procedural components include such things as recording documents, providing notice, drafting deeds and mortgages, filing a lawsuit within the filing-deadline set by a statute, drafting wills and other estate documents that accurately reflect the client’s intention, obtaining expert witness reports on the pertinent issues of the case being litigated, following a client’s instructions regarding a transaction or a lawsuit, providing tax advice to a client involved in a transaction or an estate administration, meeting all the requirements of proceeding with a lawsuit, informing a client of a settlement offer or other pertinent information needed for the client to make a decision as to how to proceed, advising a client of potential adverse consequences of a client’s decision and other similar events.
Take a look at our blog article titled “Real Life Legal Malpractice Cases,” for more detailed examples of cases.
One of the key elements of a legal malpractice case is that the person suing the lawyer must prove there is “an attorney-client relationship.” This means that the person and the lawyer agreed that the lawyer would provide legal services to the person.
Sometimes, however, a person is harmed by a lawyer’s actions or inactions, but the person is not a client of the lawyer. Courts have ruled that where an attorney provides information or takes on a responsibility that the attorney knows is not just for the client, but is also relied upon by other people, those other people can sue the lawyer if the information turns out to be unreliable or if the attorney fails to fulfill the responsibility undertaken.
Courts have ruled that an attorney who provided inaccurate information in a bid package could be held liable to a contractor who relied on that information and suffered harm because the information was inaccurate. Courts have also ruled that where a lawyer represents a person selling property and agrees to record the deed from the client (seller) to the buyer, and then fails to record the deed, the lawyer could be responsible for damages caused to the buyer even though the buyer was not the lawyer’s client.
Look for other blog posts on the topics of Discovery, Expert Witnesses, Mediation, Non-Binding Arbitration and the Trial.
This article is intended as general information and not as legal advice. If you are considering starting a lawsuit, contact an attorney at Maselli Warren, P.C. to schedule a consultation.
Tech Companies May Run Afoul of Employment Anti-Discrimination Laws – Is Your Company Compliant?
In 2007 billionaire Facebook founder, Mark Zuckerberg then 22 years old, made a series of comments that, depending on your age, prompted either a vicious rebuttal or knowing agreement. Zuckerberg said, “Why are most chess masters under 30? I don’t know…Young people just have simpler lives. We may not own a car. We may not have family.” In short, perhaps due to their focus or lack of distractions Zuckerberg concluded and publicly announced that, “Young people are just smarter.” He encouraged tech companies to only hire young people with technical expertise.
Zuckerberg’s sentiments may simply be a reflection of the industry or they may have been a driving force behind its current state of employee recruitment and hiring. Fortune Online has highlighted the alleged preference by tech companies for younger workers over those who are in their 30s, middle-aged, or older. These preferences, as expressed in the employment advertisements, likely violate federal employment law.
Meticulous Legal Guidance is Essential for Non-Compete Agreements
Recently non-compete agreements have been a particularly hot topic. A recent New York Times Business Day article elucidates how non-compete agreements are no longer something that is the exclusive concern of CEOs, executives, lawyers, engineers and board members. Rather, the non-compete agreement is making its way to numerous positions throughout the service-based economy. While the non-compete is certainly an effective means of protecting intellectual property when it is properly applied, non-compete agreements may be struck down by a court when they are unreasonable in their restrictions, when the restrictions do not serve a clear and articulable business purpose, or when considerations of equity dictate.
When is it Time to Move on From a Sole Proprietorship?
At Maselli Warren, P.C. our attorneys have helped guide businesses of all sizes through their legal issues. Whether your business is a one person start-up or a several hundred person operation, you need to protect your company name and assets. In earlier blog posts, we had previously discussed other types of organizational structures for businesses — namely corporations, partnerships and LLCs. While each of these articles delved into some of the advantages, disadvantages and other complexities of these structures, one type of business structure was left completely unaddressed: the sole proprietorship. Continue reading
Debtor Rights vs. Creditor Rights
Very simply put, debtors owe money, while creditors are owed money. Of course, the relationship between debtors and creditors is far more complicated than a single, simplified sentence can convey. Numerous regulations have been enacted to protect entities on both sides of the debt fence, and when a payment comes past due, effective and ethical conflict resolution often amounts to a careful balancing act between the rights of the creditor, and the rights of the debtor. What are those rights, and how do they coexist? In this blog entry, our New Jersey bankruptcy lawyers examine debtor rights vs. creditor rights, and how filing for financial relief affects these rights.
Which Business Structure is Right for Your Company? Part Three: LLCs
One of the most fundamental and important questions new business owners must ask themselves is how the business will be structured. While numerous options for legal structures are available for entrepreneurs to choose between, what may be optimal for one entity could prove disastrous for another. At the end of the day, the formal structure which is best for your venture depends heavily upon your business’ unique objectives. In the past, our three-part blog series “Which Business Structure is Right for Your Company?” has gone over the merits and drawbacks of corporations and partnerships. In the third and final installment, our business attorneys evaluate the pros and cons of registering your business as a Limited Liability Company, or LLC.
Which Business Structure is Right for Your Business? Part Two: Partnerships
Last month, we wrote a blog post launching a three-part series about the merits and drawbacks of the various legal structures that new business owners have to choose from. We began by examining the pros and cons of the corporation, and in this installment, our New Jersey business lawyers will be taking a look at another major commercial structure: the partnership.
Which Business Structure is Right for Your Company? Part One: Corporations
Like embarking on a marriage or moving to a new city, launching a new business is one of life’s greatest and most exciting experiences. If your efforts are successful, you’ll be profiting from a line of work that you love, with the added bonus of being able to control your company’s culture, policy, and workflow. The appeal of creating a corporation, partnership, or LLC is obvious, and with job opportunities scarce in today’s struggling economy, more and more Americans are trying their hands at launching their own start-ups. According to Census data, approximately 543,000 new businesses are launched in the United States on a monthly basis. Multiply that by twelve, and you have a rough average of 6,516,000 new businesses per year.
It goes without saying that, as you begin in your path toward starting a new company, there are many questions you will have to answer. How many employees are you going to hire? Who is your company’s target audience? Will you be an exclusively digital business, or will you operate a brick-and-mortar location? All of these questions are important, and all must be answered sooner rather than later. However, there is one basic, overarching question which takes precedence over the others, because it impacts virtually every aspect of your operation, particularly where finances are concerned: which business structure is right for your company? In the first installment of this blog series, we’ll be examining the corporation.
The Four Business Blunders to Avoid
The business jungle can be difficult to navigate. In the nonstop battery of contracts and paperwork, emails and meetings, sales and purchases, hirings and firings, there are virtually endless opportunities for owners and employees alike to inadvertently damage the companies they work so hard to keep afloat. With all the effort you’ve put into nurturing your enterprise, the last thing you want to do is hurt (or even undo) your success by making an avoidable mistake. However, you can’t hope to avoid mistakes if you don’t know how recognize them first. To that end, we’ve compiled this list of the four worst business blunders to avoid. No matter what your company does, how many employees you staff, or what your professional mission may be, always take care to steer clear of these business mistakes.