Wednesday, September 29, 2010

Prevent Your Power of Attorney from Being Ignored

A durable power of attorney is one of the most important estate planning documents there is. It allows someone you appoint -- your agent or "attorney-in-fact" -- to act in your place for financial purposes when and if you ever become incapacitated. However, many people experience difficulty in getting banks or other financial institutions to recognize the authority of an agent under a power of attorney.

Banks are often reluctant to accept powers of attorney for fear of being sued if the power of attorney isn't valid. A certain amount of caution on the part of financial institutions is understandable. Still, some institutions go overboard, for example requiring that the attorney-in-fact indemnify them against any loss.

To prevent problems later, contact your bank when you execute your power of attorney to find out what information it needs to accept the document. Many banks or other financial institutions have their own standard power of attorney forms. If this is the case, get the bank's form and sign it in addition to your own power of attorney form. While, it isn't legally necessary, signing the bank's form can save your agent a lot of trouble and time down the road. In addition, you can provide the bank with copies of your power of attorney. It is also a good idea to update your power of attorney frequently so the bank knows it is current.

If a bank is giving you a hard time about accepting a power of attorney, you can try talking your way up the chain of command. You can also have the lawyer who prepared the power of attorney call the bank. If that doesn't work, you may have to have a lawyer deal with the bank.

Friday, September 24, 2010

Parol Evidence in Contracts

When structuring a contract, it is axiomatic that the parties to the contract must say what they mean and mean what they say. Problems arise when people engage in “do it yourself contracts", using online forms, which are inapplicable to Texas law or the transaction, or, my favorite - write out the deal on your computer over a glass of wine.

A contract dispute, for goods or services, becomes exponentially more complex when the parties to the dispute are forced to resort to parol evidence (not parole - as in get out of jail) to prove what they meant in the contract.

Parol evidence is essentially evidence outside of the four corners of a contract, which may be used to explain a provision in the contract that has not been clearly addressed in the agreement. If an attorney must rely on parol evidence to explain a material term of the contract, he or she may typically look at the course of dealings, verbal testimony, and other outside evidence. For obvious reasons, this is not the preferred method to decipher the true agreement of the parties. It always boils down to a "he said - she said" scenario.

A Houston contract lawyer will typically draft a contract to ensure that all material terms agreed to by the parties are contained in the contract, and limit the likelihood that parol evidence will be introduced to decide the matter.

The problem that business lawyers face if the contract does not contain all the material terms of the deal is that they must construe the intent and agreements of the parties by relying on extrinsic evidence. The end result, especially if the dispute winds up in court may yield a result neither party wanted.

Charles M.R. Vethan
Managing Partner

Finding Top Expert Injury Lawyers

Where Can I Find a Personal Injury Attorney Referral:

Friends, Friendlies and Family

The first thing to do is to speak to friends, family and coworkers who were once injured and had already had an experience with an Injury lawyer who had represented them in their personal injury lawsuit claims. If your friend, family or coworkers had good experiences with their accident lawyers, put that particular lawyer on your list of legal counselors to speak with. In all events, never make a decision about retaining a particular lawyer just because someone said he or she was good. Everyone has a different responses to an injury lawyer's particular style or lack thereof, as well as personality or lack thereof. Don't make a decision until you have researched the lawyer's bar record and check their online verdicts and settlements information, as well as having discussed your case, its pitfalls and strong points and then having decided that you are at ease working with him or her.

Legal Groove's Lawyer Directory

Legal Groove offers a totally different worldwide and human edited lawyer directory that contains free legal forms, legal articles, bios and legal profiles for each attorney. This is the type of free information that will guide you through the accident attorney selection process. The lawyer profiles can tell you about your lawyer's experiences, his or her legal education, percentage contingency fees, and their vision of the practice of law. Legal Groove has made a determination that as of the listing date, each lawyer listed in the groove directory has a valid law license/bar card and is in good standing with their prospective licensing agency, bar association. Every lawyer in most countries takes an oath to communicate regularly with their clients.

Legal Groove assures that its listed attorneys will provide you a free estimate of the time and cost, if any, involved in your contingency fee case. Groove also takes care to ask its attorneys to provide you with a written retainer agreement that spells out how each attorney will litigate your legal claims in Court. Legal Groove's lawyer directory covers California, Nevada, Arizona and other countries like the United Kingdom and even Germany.

Other Law Firms

Another great way in finding experienced injury lawyers is to get referral from other experienced personal injury lawyers in other states or cities not in the jurisdiction where your lawsuit will be filed. Lawyers regularly refer cases to each other. Many injury lawyers will know someone who litigates plaintiffs' injury claims. As with all referrals, do your own independent research too!

We hope you have enjoyed this free article on finding experienced injury lawyers that was provided by excellent Toronto personal injury attorneys. Our Toronto car accident attorneys want to help.

Sunday, September 19, 2010

Nursing Home Residents Have Rights

Many people incorrectly believe that once someone enters a nursing home, their freedom is over. In fact, nursing home residents have many rights, and it is important to know those rights and to be able to enforce them.

Nursing home residents' rights are protected under federal law. In broad terms, nursing homes are required to ensure that every nursing home resident be given whatever services are necessary to function at the highest level possible. Following are some of the specific protections that residents have:

• Nursing home residents have the right to privacy in all aspects of their care. This means phone calls and mail should be private, and residents should be able to close doors and windows. In addition, residents may bring belongings from home, and nursing home staff is required to assist the residents in protecting those belongings.

• Residents have the right to go to bed and to get up when they choose, eat a variety of snacks outside meal times, decide what to wear, choose activities, and decide how to spend their time. The nursing home must offer a choice at main meals, because individual tastes and needs vary.

• Residents have the right to leave the nursing home and belong to any church or social group they wish to.

• Residents must be allowed to participate in planning their care. Residents may also manage their own financial affairs.

• Residents may not be moved to a different room, a different nursing home, a hospital, back home or anywhere else without advance notice and an opportunity for appeal. For more information on fighting a nursing home discharge, click here. click here

For a full list of nursing home resident rights, click here

If a disagreement with the nursing home does arise, there are a number of steps you can take to enforce the resident's rights. The first step would be to talk to the nursing home staff directly. This may be all it takes to solve the problem. If that doesn't work, then you may need to talk to a supervisor or administrator. The next step is to contact the ombudsperson assigned to the nursing home. He or she should be able to intervene and get an appropriate result. Contact information for the Ombudsman Program in your state can be found at: Additional steps include reporting the nursing home to the licensing agency and hiring a geriatric care manager to intervene. If the direct approach isn't working, you may need to hire a lawyer to try and resolve the issues. The last resort is to move the resident to a different facility.

For more information on resolving nursing home disputes, click here.

Wednesday, September 15, 2010

Do You Have a Right to Monitor Your Employees' Electronic Messages?

E-mail and text messaging is a way of life in the modern business world. Use of various forms of electronic communication by employees has risen dramatically, with no end in sight. It seems every worker has an employer-provided Blackberry, Droid or iPhone device.

But what rights do you as an employer have for monitoring or reviewing your employees’ messages?

In its recent decision in City of Ontario v. Quon, the U.S. Supreme Court held that a police officer did not have a right to privacy regarding personal text messages sent and received via a city-owned two-way alphanumeric pager. The City of Ontario’s policies and procedures specified that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources” and the employee signed a statement acknowledging that he had read and understood the Policy.

However, the New Jersey Supreme Court held in Stengart v. Loving Care Agency Inc. that an employee who sent and received e-mail messages on an employer-issued laptop computer had a reasonable expectation of privacy in her private, password-protected internet e-mail account, and the act of sending and receiving e-mails to her attorney via a company laptop did not eliminate the attorney-client privilege that protected them. This was despite the employer’s policy that allowed the company to review any messages sent on its electronic systems, but allowing "occasional personal use" of e-mail.

How do you as an employer act to protect your business and monitor your employees’ electronic communications to ensure they are not harmful to your business?

As in many employment issues, the first line of defense is to have a clearly worded policy related to the use of employer-issued electronic devices and computers. That policy should include, at the minimum, (1) specific definitions of the work devices and messages that are covered by the policy; (2) a provision regarding personal use of the devices; (3) a provision informing employees that the employer may monitor and log all work devices and accounts; (4) a waiver of any expectation of confidentiality or privacy in messages sent over those devices; and (5) clearly stated consequences for violation of the policies.

These policies should be provided to all employees and a signed acknowledgement obtained from each employee.

Furthermore, any search must be motivated by a legitimate, work-related purpose and no unfocused “fishing expeditions” for undefined information should be allowed. The law is still developing in this area and caution is the best policy.

Any questions regarding the scope of any investigation or monitoring should discussed with legal counsel prior to any action. The combination of clearly defined policies and procedures, and competent representation, should minimize the employer's exposure to costly litigation.

Lee Keller King
Senior Associate at The Vethan Law Firm

Wednesday, September 8, 2010

Study: Location, Firm Size Key to Billing Rates

Law Firm
The September issue of The American Lawyer Offers a preview of the Real Rate Report, a study produced by CT - TyMetrix Inc., a company that audits Law Firm bills, and The Corporate Executive Board Co., a company that provides best practices research and analysis. They studied the bills sent to 36 large corporate clients between 2007 and 2009 -- more than $4 billion worth of time sheets submitted by 90,000 people at 3,500 firms. They scrubbed the data to protect the identity of the billers and the billed. Then they got to work crunching the numbers.

A lot of interesting statistics jump out. For starters, legal bills increased at rates that exceeded inflation, in-house Lawyers who spent more at a particular law firm were not getting any discounts, and partner status added nearly $100 on average to a lawyer's rate regardless of experience.

But what most struck us about the report was its portrayal of an industry fraught with inconsistency. The vast majority of lawyers -- 85 percent -- charge clients different rates for the same work. The location of the biller and the size of the biller's firm -- not the biller's experience -- are the variables that most influence how much a client will pay. And though in-house counsel talk a good game about keeping rates in check, they approve almost three-fourths of all timekeepers' rate hikes.

Thursday, September 2, 2010

Intellectual Property Licensing

When clients talk to our trademark attorneys or business lawyers about the scope of a license – whether for trademarks, copyrights, or other intellectual property matters, the first question they usually ask is, “what does the license cover, and how much can I push the envelope?” I am often reminded of a misbehaving 5-year-old child who, being punished for doing something inappropriate in a social setting, asks his or her parent, “How do I know I cannot do something unless you tell me?” While the statement is precocious coming from a 5-year-old, that attitude is not as endearing in the context of intellectual property law.

Licenses for copyrights, trademarks, and other intellectual property are creatures of contract. As a contract, a license must specify what the licensor allows a licensee to do with the licensed intellectual property. If the licensee takes any action or utilizes intellectual property for purposes not allowed by the license, that person is an infringer, not subject to the protection of the law. In structuring a license for a copyright, trademark, or, for that matter, any other intellectual property, the following considerations must be considered.

First, what is the intellectual property sought to be licensed? The scope of the licensed rights must be defined with specificity, so that the grant of rights is apparent to an objective third party. Business lawyers should be able to construct a license with the appropriate granting language, as well as the following considerations.

Second, after the intellectual property to be licensed has been identified, the licensor must delineate the permitted use and exploitation of the licensed intellectual property. This becomes part of the granting clause of the license, which should unambiguously identify the terms of usage and exploitation.

Third, the license contract must specify the term and territory of the license. Most times, in traditional businesses, a license will be granted for a particular time within particular geographical parameters. This limits the area in which a license may be exploited, and allows the licensor to control or limit the actual dilution or threat of dilution in the licensed intellectual property. The issue of territory becomes more complicated when dealing with businesses that sell primarily online. In fact, it is arguable that there can be no territorial definition, for license purposes, online. There is also a practical prohibition to online licensing as it is difficult to track all sales made by a licensee utilizing the trademark, copyright, or other intellectual property, whether for simple audit purposes or to control the dissemination of the intellectual property. The term of the license is important because it controls how long a licensee may utilize the licensed intellectual property. If the term of the license is too long, it may be effectively a quasi-assignment of the intellectual property rights, which the licensor would not want because it may dilute the value of the licensor’s trademark, copyright, or other intellectual property interest.

Fifth, and finally, a license agreement must provide for the terms under which the license may be involuntarily terminated, upon determination by the licensor of any impermissible acts or exploitation of the intellectual property – essentially examined under contract law, or provide for a sunset provision by which the license expires by its own terms.

In entering into license negotiations, the licensor and the licensee must fully and frankly explore their common business relationship during the term of the license, with the licensor imposing some degree of control on license grant, and the licensee negotiating a realistic right to fully and fairly exploit the rights granted in the license.

Charles M. R. Vethan
Managing Partner