Monday, July 26, 2010

Choosing the right litigation Lawyer for your business

Risks and laws are involved with every type of business, whether the business is new or an established one. To solve the legal matters through trial and discussion is the work of the business Litigation lawyer. Any dispute related to your personal, public or civil matters can be resolved with the help of a litigation lawyer.

Litigation is a term used to describe all legal steps involved in settling a controversy between two or more parties. There are instances when you are not able to protect your rights as a business owner and have to sue for damages. In such situations, it has become very important to choose the right person for your legal affairs.

While selecting the right litigation attorney for your business deals, it is important to consider checking the past records of the person you want to handle your legal matters. The complexity in business deals occurring today makes it really significant to have an expert business attorney.

Business Law
Such lawyers are proficient in analyzing the business and its functions, are capable of handling contract negotiations and preparation, are aware of rules and regulations of the federal and state securities, buy and sell agreements between the parties, can manage business disputes and civil law and have a good understanding of Internet laws, copyrights and trademarks of the business organizations.

Hiring a Business lawyer can be a complex and confusing process as selecting the right candidate for your legal issues involves a lot of discussions and matters related to your business concerns. You should talk with many people and friends before making a choice.

A business litigation lawyer must be aware of your Business Legal Issues and should be honest in their work. It is good to get a recommendation from a close friend, relative or a colleague. But remember, every legal situation varies. Hence, the recommended lawyer might not be suitable for your type of business problems.

Source : ArticleBase

Friday, July 23, 2010

LegalZoom Sued for Deceptive Practices

One of the most prominent sellers of do-it-yourself wills and other estate planning documents, is the target of a class action lawsuit in California charging that the company engages in deceptive business practices and is practicing law without a license.

The lawsuit was filed in Los Angeles Superior Court on May 27, 2010, by Katherine Webster, who is the niece of the late Anthony J. Ferrantino and the executor of Mr. Ferrantino's estate.

Knowing that he had only a few months to live, Mr. Ferrantino asked Ms. Webster in July 2007 to help him use LegalZoom to execute a will and living trust. Based on LegalZoom's advertising, Ms. Webster says she believed that the documents they created would be legally binding and that if they encountered any problems, the company's customer service department would resolve them.

But after the living trust documents were created and signed, the financial institutions that held his money refused to accept the LegalZoom documents as valid. Ms. Webster tried to get help from LegalZoom, with no success. Mr. Ferrantino died in November 2007.

Ms. Webster was forced to hire an estate planning attorney, who petitioned the court to allow the post-death funding of the trust. The attorney then had to convince the banks to transfer the funds -- a more difficult task following Mr. Ferrantino's death. The attorney also discovered that the will LegalZoom created for Mr. Ferrantino had not been properly witnessed. All this cost Mr. Ferrantino's estate thousands of dollars.

The lawsuit claims that Ms. Webster and others like her relied on misleading statements by LegalZoom, including that LegalZoom carefully reviews customer documents, that it guarantees its customers 100 percent satisfaction with its services, that its documents are the same quality as those prepared by an attorney, and that the documents are effective and dependable.

"Nowhere in the [company's] manual do defendants explain that using LegalZoom is not the same as using an attorney and that its documents are only 'customized' to the extent that the LegalZoom computer program inputs your name and identifying information, but not tailored to your specific circumstances," the lawsuit states, adding that "the customer service representatives are not lawyers and cannot by law provide legal advice."

Ms. Webster is suing not only on her behalf but on behalf of anyone in California who paid LegalZoom for a living trust, will, living will, advance health care directive or power of attorney. The lawsuit estimates this class embraces more than 3,000 individuals.

"LegalZoom's business is based on nurturing the false sense of security that people do not need to hire a traditional attorney," says San Francisco attorney Robert Arns, one of the attorneys who filed the lawsuit. "The complaint points out that LegalZoom advertises that you don't need a real attorney because its work is legally binding and reliable. That's misleading. Improperly prepared estate planning documents are a ticking time bomb that can result in improper tax consequences and other items that could cost the estate and heirs huge sums."

"LegalZoom preys on people when they're at their most vulnerable, when they are of advanced age or poor health and need a will or a living trust," adds San Francisco elder abuse attorney Kathryn Stebner, Ms. Webster's lead counsel.

One of the defendants named in the suit is LegalZoom co-founder Robert Shapiro, who appears on the LegalZoom Web page and TV ads and who is best-known for being one of O.J. Simpsons attorneys.

This is not the first suit against LegalZoom. In December 2009, a Missouri man who paid LegalZoom to prepare his will sued the company for engaging in the unauthorized practice of law (Janson v. LegalZoom). The lawsuit is also seeking class action status. LegalZoom is trying to have the case removed from Missouri state court to the United States District Court for the Western District of Missouri.

Wednesday, July 21, 2010

The True Meaning of Fiduciary Duty

The highest duty owed by one person to another, recognized by law. That is a scary legal requirement as it applies in corporate law. Texas Corporate Law, similar to the corporate law of other States, such as Delaware, imposes a heightened duty upon a director, officer, or senior employee of a company to the company. Fiduciary duty is broken down into two components: a duty of loyalty and a duty of care to the corporation. This duty is not merely a passive duty owed by an individual to the corporation. It is a duty to ensure that a corporate opportunity or corporate benefit is not illegally taken by a person in a position of trust. In short, it prevents someone from “feathering their own nest” at the expense of the company with which he or she is affiliated. While the law imposes fiduciary duties on corporate directors and senior officers of a company, a fiduciary duty may be recognized under Texas law depending on the nature of the relationship. If an individual is in a position of trust and confidence of the company, has controlled of the company or its information, a jury may determine that a fiduciary duty exists.

In cases involving claims for a breach of fiduciary duty, the moving party, whether it is the corporation, or someone suing derivatively on behalf of a corporation, alleges that an individual has taken something that does not belong to him or her, and has injured the corporation. In such a case, the remedies that a Court may impose is not only a disgorgement of all benefits, regardless of whether part of the benefit taken by the wrongdoer was valid, but may also impose punitive damages against the wrongdoer.

The question arises as to why this duty exists in the first place. Essentially, when acting as a corporate collective-hence the corporation-certain individuals are entrusted with information that is valuable to the survival and growth of a corporation, which is recognized as a distinctly new entity under the law. In breach of fiduciary duty cases, a business lawyer will bring a claim seeking to punish the wrongdoer and impose a constructive trust on all monetary benefit that has been improperly derived. It is an important consideration for all senior personnel in a corporation, before they involve themselves in taking advantage of a benefit that their principal may also benefit from, to obtain a statement of release or a statement of non-interest from the board of directors of the company. In doing so, any prospective endeavor, should it yield any significant return, will belong to the individual, without any claim made upon it by the corporation.

Charles M. R. Vethan
Managing Partner