The Zipper (Why You Should Hire a Lawyer)

  • February 24, 2016

This morning as I was getting ready for work, I found myself contorted into a pretzel trying to zip up a maddening zipper on the back of my dress. Why on earth would anyone put a zipper on the back of a dress? Pure conjecture, but I was guessing

Are you tired of struggling?

Are you tired of struggling?

that this asinine design is left over from the days when women had ladies in waiting, always at the ready to help them button or tie up a piece of clothing.

(Sure enough – a quick search on the internet confirmed my suspicion: “In earlier centuries, buttons found on the back of a dress as opposed to the front were originally intended to give the appearance of wealth in a woman, as wearing such a garment implied the woman could afford servants to help her dress.”)

This got me to thinking about what I am sure is every clients’ frustration with going to a lawyer.  Why should it be necessary to hire a really expensive lawyer to handle something that they should be able to zip up themselves?

Well, much like the zipper on my dress, the legal system has evolved out of complex structures, relationships and systems. Just because our lawyers don’t wear those silly wigswhite wigs anymore doesn’t mean that the legacy of hundreds of years of operating within a complex legal systems has made it any more user friendly. Lawyers are educated and trained to navigate that complex system. Much the same way that doctors are educated and trained to navigate the complex systems of the human body.

There are some things that I encourage my clients to handle on their own (and spend the money they would spend on me buying a dress that zips up the side). These are things like trying to work out a dispute before it escalates, or discussing and outlining the terms of the deal they would like to see come to fruition. And then there are some things that I advise that my clients do ask for help on.

As an attorney I think it is important, and my duty, to be honest with my clients about what I think they can handle on their own and where I think they may need assistance navigating a complex legal structure. I love having that conversation with my clients. It gives me an opportunity to hear what their goals are and how they want to get there. Feeling empowered to make things happen in your business and personal life is energizing, but if someone is struggling with the darn back zipper, I gladly offer a helping hand.

 

Do you hire employees or independent contractors? The answer is probably both.

  • February 1, 2016
Employee-vs.-Independent-Contractor

Do you hire an employees or independent contractors?

Employers routinely consider a number of factors in whether to hire an employee or an independent contractor as their business grows. It is important for businesses to be able to explain why the “independent contractor” the company just hired is actually an “employee” under the law or vice versa. SB 224, recently passed by the Nevada legislature and signed by Governor Sandoval went into effect on June 2, 2015. This law provides much more clear guidance on what qualifies for “independent contractor” status and what doesn’t. SB 224 creates a conclusive presumption that an individual is an independent contractor for Nevada wage and hour claims if certain conditions are met.

This is yet another list of “factors” that business owners and their respective counsel must become familiar. Of potentially greater importance will be determining which law will apply and when. There is a different test in determining the employment classification of a person in each of the follow circumstances: (1) wage and hour claims under Nevada law; (2) wage and hour claims under federal law; (3) workers compensation claims; (4) and unemployment claims. It is entirely possible that under the wage and hour law in Nevada an individual could be considered an independent contractor, but if terminated, the individual could file for unemployment and be classified as an employee.

While some of the factors in each test overlap, using all the factors in each test will, in many cases, result in different classifications for the same individual.  It is now more important than ever to consult your legal counsel to protect your business so that you can properly structure job descriptions for your employees and/or independent contractors to benefit your business as well as plan for the changes in classification that may occur in the event of injury (worker’s compensation claims) or termination (unemployment claims).

If you need more information or have any questions regarding how the new law may affect your business, do not hesitate to contact Incline Law Group, LLP for some clarity on the subject.

Preliminary Injunction to Halt Implementation of Nevada’s Private School Voucher Program

  • January 15, 2016

Editorial Note: For background information on SB302, a statewide private school voucher program and the recent lawsuits that brought about this injunction, click here.

It is now widely reported that on January 11, 2016, Nevada, District Judge Jamesschool_vouchers_INJUNCTION Wilson, Jr., issued an order granting a preliminary injunction halting the implementation of Nevada’s private school voucher/ESA program.

A copy of Judge Wilson’s can be read here and the following text is a key part of the order:

Plaintiff Parents have clearly shown that SB 302 violates Article 11, Sections 6.1 and 6.2.

Plaintiff Parents argued SB 302, Section 16(1) violates Article 11, Sections 6.1 and 6.2 because general funds appropriated to fund the operation of the public schools must only be used to fund the operation of the public schools, but under SB 302 some amount of general funds appropriated to fund the operation of the public schools will be diverted to fund education saving accounts.

Under SB 302 general fund money appropriated to fund the operation of the public schools will be used to fund education savings accounts. The legislature recognized that general fund money appropriated to fund the operation of public schools would be used to fund education savings accounts. This is evidenced by the legislature’s amendment of NRS 387.045 which provides:

  1. No portion of the public school funds or of the money specially appropriated for the purpose of public schools shall be devoted to any other object or purpose.
  1. No portion of the public school funds shall in any way be segregated, divided or set apart for the use or benefit of any sectarian or secular society or association.

The legislature amended that statute to make an exception so funds appropriated for public schools can be used to pay the education savings account grants established by SB 302.

Sections 6.1 and 6.2 require the legislature to support public schools by direct legislative appropriation from the general fund before any other appropriation is enacted. Those sections do not expressly say that the general funds appropriated to fund the operation of the public schools must only be used to fund the operation of the public schools. Sections 6.1 and 6.2 do however necessarily imply that the legislature must use the general funds appropriated to fund the operation of the public schools only to fund the operation of the public schools.

Sections 6.1 and 6.2 mandate that the legislature make appropriations to fund the operation of the public schools. An “appropriation” is “the act of appropriating to … a particular use;” or “something that has been appropriated; specif: a sum of money set aside or allotted by official or formal action for a specific use (as from public revenue by a legislative body that stipulates the amount, manner, and purpose of items of expenditure) …. “‘To “appropriate” means “to set apart for or assign to a particular purpose or use in exclusion of all others.”‘ Therefore, Sections 6.1 and 6.2 require the legislature to set apart or assign money to be used to fund the operation of the public schools, to the exclusion of all other purposes. Because some amount of general funds appropriated to fund the operation of the public schools will be diverted to fund education saving accounts under SB 302, that statute violates Sections 6.1 and 6.2 of Article 11.

Plaintiff Parents have met their burden of clearly proving that there is no set of circumstances under which the statute would be valid, and therefore Plaintiff Parents have shown a reasonable likelihood of success on the merits on the Article 11, Sections 6.1 and 6.2 issue.

[emphasis added.]

 

 

Mortgage Debt Relief Act Extended Through 2016….Finally

  • January 11, 2016

Buried deep in the Tax Extenders provisions of the 2016 Appropriations Bill (H.R. 2029) quietly passed by Congress and signed by the President on December 18, 2015, was a very unpublicized extension of the Mortgage Forgiveness and Debt Relief Act of 2007.  In fact, the reference to this extension of this very relevant Act was so deeply buried, that I am indebted to a very generous Regional Rep of Senator Dean Heller for providing me with a map to find the needle in the haystack (see pages 824-825 of 887!).Mortgage Forgiveness Debt Relief Act Extended

This extension is of great importance for homeowners who are still suffering under the weight of underwater homes.  As I have discussed in numerous articles and blog postings, the Mortgage Forgiveness and Debt Relief Act of 2007 provides a tax exemption for homeowners for “income” resulting from debt forgiveness related to foreclosures, short sales and principal forgiveness of loans.

When a Lender “forgives” debt, e.g. it waives pursuing a deficiency in a short sale or elects not to sue for deficiency after a foreclosure sale, the debt that is forgiven is, in most circumstances considered by the IRS to be ordinary income and taxable as such.  Under the Mortgage Forgiveness Debt Relief Act of 2007 taxpayers can generally exclude income resulting from the discharge of debt on their principal residence.  For more information click here (please note that the IRS has not yet updated its website to reflect the extension of the Act through January 1, 2017).

This latest extension will continue this tax protection for homeowners through the 2016 tax year.  This means that if you relinquished your home in a foreclosure, short sale or deed in lieu, or had a loan modification resulting in debt forgiveness in 2015, or if one of these unfortunate events happens to you in 2016, you may be able to take advantage of this latest extension of the Act.

Please note that before making the decision to relinquish your home and incur taxable debt forgiveness, it is highly advisable that you speak with a tax professional.  As with most IRS rules, there are exceptions and restrictions that could be a “gotcha” for an unsuspecting homeowner.  But if you do in fact qualify, this is fantastic news for underwater homeowners!

If you have questions about an underwater mortgage, loan modification, foreclosures or short sales, Incline Law Group LLP can provide you with options and information to help you make informed decisions.

From the Desk of John C. Rogers, Esq.

  • December 22, 2015

December 22, 2015

Dear friends and clients,

As I transition from Partner to “Of Counsel” with Incline Law Group, LLP, I find myself reflecting about the forty-five years I have spent practicing law, first in California and the last 41 years in Incline Village.

Without qualification, I am grateful for the people I have worked with, for people are what makes life worth living. I am grateful for the good work I have been able to do and the resulting good that I have seen accomplished in our community.

During my legal career, I have had the pleasure of working with wonderful clients, attorneys and friends, for which I feel great satisfaction. I am particularly grateful for the last decade working with my partners at Incline Law Group, with whom I will continue to work until I fully retire fully. They are a wonderful group of attorneys with the highest ethical and professional standards, and they work hard providing legal clarity to our community.

Thank you for giving me the opportunity and privilege to provide legal service.

Please accept my best wishes for a joyous holiday season and a peaceful and prosperous New Year.

Take time to stop and smell the roses as time accelerates and the years go by.

Follow this link to an article published in the North Lake Tahoe Bonanza. JCR NLTB Ad Final

 

John Rogers Transitions to “Of Counsel”

  • December 22, 2015

Effective December 31, 2015, Incline Law Group LLP’s founding partner, attorney John C. Rogers, will transition to “Of Counsel” at Incline Law Group. Sometime later, in 2016, John expects to fully retire after more than 45 years of service as an attorney.

John C Rogers - Incline Law Group“It has truly been an honor for me to practice law at Lake Tahoe and create a long-standing practice,” said John Rogers, Incline Law Group’s founding partner. “My career over the last 45 years and especially my partnership at Incline Law Group has been exciting at every turn and has afforded me the opportunity to work with some of the best lawyers and clients in the Lake Tahoe Basin and surrounding areas.”

In 1969 when John C. Rogers graduated from Boalt Hall School of Law (now known as UC Berkeley School of  Law), he never imagined that his law practice would flourish at one of the most beautiful places on earth, Lake Tahoe, for over 45 years. John began his legal practice in 1973 in King’s Beach, California, while preparing for and passing the Nevada Bar Exam. Early in 1974, John “hung out his shingle” in Incline Village on Southwood Boulevard, where he practiced for five years. In late 1979, over 36 years ago, he moved his practice to Incline Law Group’s present location at the corner of Village Boulevard and Incline Way. As Incline Village began to grow, John developed strong ties with real estate and title professionals, which translated into a thriving real property law practice. Additionally, many people and businesses were discovering the more friendly tax and business climate of Nevada, which created opportunities for service in both real estate and business law with both national and international clients.

The growth of the Nevada business community allowed John the opportunity to work with very capable and excellent lawyers over his career, leading to the current partnership, which is Incline Law Group, LLP. Today, Incline Law Group includes partners, Andrew (Andy) Wolf, who practices in the areas of real estate law, business law, litigation and probate; Cassell von Baeyer, who has been recognized for her practice in business, financing, development and real estate law, and Stacey Herhusky, who was named one of Nevada’s top family law attorneys in 2015. Incline Law Group is also proud to have Vera Struc (Of Counsel) and her estate planning practice and Jeremy Krenek, an associate attorney practicing general business, family, probate and real estate law as attorneys with the firm. All attorneys at Incline Law Group are licensed and practice law in both Nevada and California.

“John will be greatly missed when he retires,” said Andy Wolf, a partner at Incline Law Group, who has worked with John for almost two decades. “It is important to announce this news to our community. John is a role model for his professionalism, diligence, community service, and family values. In many ways, he was a pioneer, growing his law practice with his colleagues to meet the needs of the growing communities at Lake Tahoe. As a leading local business and real estate law practitioner, the breadth of his knowledge of the law and historical facts, and his meticulous care for his clients provide guidance to all of us. Incline Law Group is committed to carrying on John’s legacy and providing legal clarity for our clients, as we have for over 40 years.”

Guns and Marijuana

  • December 17, 2015

Two of the most controversial subjects in today’s political landscape involves the right to bear arms and the legalization of medical and/or recreational marijuana.  The gun debate has been on-going for decades now with many people demanding background checks and/or making certain types of guns illegal. With 23 states and the District of Columbia legalizing medical marijuana (four states and Washington D.C. have legalized recreational marijuana), the implications of these new marijuana laws on current gun laws is becoming very interesting.

The Second Amendment to the United States Constitution states: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”  Numerous cases have been before the U.S. Supreme Court and all have come out the same holding that private citizens of the United States have the right to keep and bear arms. See District of Columbia v. Heller, 554 U.S. 570 (2008). While this is the law of the land, there are a few exceptions to the right to bear arms.

While more and more states are legalizing medicinal marijuana, the cultivation, possession, and/or distribution of marijuana is still illegal under federal law.  Marijuana, whether for recreational or medicinal use, remains classified as an illegal controlled substance under federal law. And, under federal law, it is illegal for a user of controlled substances to possess a firearm. Under 18 U.S.C. §922(g)(3) “it shall be unlawful for any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”  §922 essentially prohibits medicinal marijuana patients from owning or possessing firearms and ammunition.

This raises a plethora of questions for gun owners who are medical marijuana Marijuana, Gunspatients and or dispensary owners. Until the federal laws are amended, it seems these people will have to choose between their right to bear arms and their access to medicine and/or ability to own and operate a dispensary.

Leases and Medical Marijuana Tenants

  • October 21, 2015

The State of Nevada legalized the use and cultivation of medical marijuana in 2014 and began allowing cannabis businesses to operate in 2015. While California voters approved the use of medical marijuana some two decades ago, California law makers only put into place a regulatory scheme in 2015 thereby allowing dispensaries to operate legally.

Legal-Cannabis-Sensi-Seeds-BlogCannabis law is currently a very fluid and rapidly changing area of law. The legalization of medical marijuana at the state level presents significant conflicts with federal law in numerous areas including drug policy, banking laws, criminal law and so much more. Under federal law, the use, cultivation and sale of marijuana – medical or not – is illegal. As a result of the past war on drugs, federal law provides some very severe penalties for violations of federal drug law, including forfeiture.

The federal government does have the right to seize property used in the cultivation, manufacturing or selling of cannabis. This can include real property where the owner of the real property is merely a landlord who does not participate in the cannabis business. While the federal forfeiture laws do have an “innocent owner defense” many state cannabis laws require the lease to specifically state that the lease is for purposes of cultivation, manufacturing or selling.

As noted above, this is a rapidly changing area of law. Just two days ago the Federal District Court for the Northern District of California issued a ruling (a somewhat scathing decision, in fact), based on the 2015 Appropriations Act, halting the Department of Justice from expending funds to enforce federal laws that interfere with state laws that authorize the use, distribution, possession or cultivation of medical marijuana.

Until the conflict between the state and federal laws governing the use and sale of marijuana are entirely resolved, providers of services, goods and property, including landlords (both commercial and in some cases residential) are advised to seek legal counsel and to address new contract and lease provisions such as “escape clauses” and stated compliance with state cannabis law.

Five Ways to Keep Your Divorce Clean

  • October 1, 2015

We have all heard people refer to some divorces as “messy” or “ugly”.  Fortunately, these cases are not the norm but every so often there are cases that are so fueled by anger and vindictiveness that they take inordinate amounts of time, money and emotional energy to get them resolved. Almost every divorce litigant starts off the process expressing a desire to “be amicable”, “stay out of court”, and “keep it clean”. How exactly can that be done? In my experience, following a few simple steps can result in a successful and fair divorce.

  1. Channel Anger. Anger is almost unavoidable in a divorce, but it has its proper time and place. Feel free to vent when necessary to friends, therapists, support groups, and any others who you can rely on to help you work through it. Try to keep your anger out of the negotiations. Question your own motivations behind your proposals. There is an old expression that criminal lawyers see bad people at their best and family law attorneys see good people at their worst. People who are normally pretty mild mannered and kind often default to “scorched earth” when they sense an attack.
  2. Do an Ongoing Cost-benefit Analysis. Although the agreement on the table may leave you with less than you feel a judge would award to you at trial, you have to look at the big picture. Your assessment should take into account the literal cost of fighting — attorney’s fees — as well as the emotional cost of further delays.
  3. Accept Compromise. As Mick Jagger says, “you can’t always get what you want, but if you try, sometimes you just might find, you get what you need.” After a divorce, no one feels like they’ve “won” and most believe their exes you-cant-always-get-what-you-want“won”. Dissatisfaction is guaranteed when you are dividing one household into two and dividing the time you spend with your children. To cope with the grieving process, try and appreciate, or even enumerate, the compromises you are both making. Everyone feels like he or she is losing out. The trick is ensuring you wind up with what you need in order to move on.
  4. Ignore the Peanut Gallery. Do not listen to your well intentioned neighbor or coworker or friend or family member who knows nothing about the law but is able to rattle off the custody arrangements and support awards that all the people they know have obtained in a variety of courts. Listening to these people will cause you to become insecure. It will make you second guess yourself or feel you’re caving too early or being a sucker. Keep in mind that family law cases are determined on a very factual basis. It is guaranteed that the Peanut Gallery only has limited facts about your case and about the other cases. Nobody knows everything about a marriage except the two people in it. Rely on your friends for emotional support only. Unless they are a family law attorney practicing regularly in your jurisdiction, do not rely on them for legal strategy or advice.
  5. Find the Right Professionals. Retain an attorney and/or a mediator who understands your desire to keep things clean and amicable and agrees to help you try and achieve that goal (assuming your spouse and his or her lawyer are on the same page). Don’t just blindly call lawyers out of the phone book. Talk to others about their experiences with various lawyers and find a lawyer who has a good track record for achieving good results for clients outside of court and who is willing to work with you to keep you on track in your efforts to “keep it clean”.