LAWYER MONTHLY©2024 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com. The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Approx. 302,000 net digital distribution. AUGUST 2024 Welcome to the latest issue of Lawyer Monthly Magazine, where we delve into the diverse and dynamic world of law, bringing you the most insightful articles and updates. This month, we feature an essential guide on our front cover: "How to Choose a Personal Injury Lawyer." In this article, we provide practical advice and key considerations for individuals seeking legal representation in personal injury cases. Whether you're navigating complex legal waters for the first time or looking to switch attorneys, this piece will help you make informed decisions. Additionally, we provide an in-depth analysis of Workers Compensation in Virginia, examining the complexities and recent developments that practitioners and claimants alike need to be aware of. In our feature "Bankruptcy: A Blessing or a Curse?", we unpack the dual nature of bankruptcy as both a lifeline for struggling businesses and individuals, and a challenging process with long-term implications. Our expert contributors discuss the strategic considerations and potential outcomes, offering a balanced view on this critical topic. For those interested in niche legal roles, we present an intriguing piece on Working as an Expert Witness in the Mining Industry. This article covers the unique challenges and legal considerations that come with providing expert testimony in a highly specialized field, offering guidance to both legal professionals and potential expert witnesses. We also delve into the world of Tax Resolution, providing crucial insights into resolving tax issues, understanding tax liabilities, and navigating the complexities of tax law. This article is a must-read for anyone facing tax challenges or looking to expand their knowledge in this vital area of law. Our global roundup includes a host of the latest transactions happening around the globe, showcasing the dynamic and ever-changing nature of the legal landscape. From mergers and acquisitions to major corporate deals, we provide a comprehensive overview of the legal moves that are shaping industries worldwide. As always, our mission at Lawyer Monthly is to keep you informed and engaged with the latest legal news, trends, and expert opinions. We hope this issue provides valuable insights and sparks thoughtful discussions within your practice and beyond. Happy reading! Warm regards, Mark Palmer Editor, Lawyer Monthly Martin Sheehan Bankruptcy: A Blessing Or A Curse? David Falcon Discussing Workers Compensation in Virginia 16 12
Production Team: Emma Tansey, Luke Ostle production@lawyer-monthly.com Sales Enquires: Jacob Mallinder Jacob.mallinder@universalmedia365.com @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 CONTENTS AN INTERVIEW WITH... 8. Andrew Bamber Exploring the Legal Considerations within the Mining Industry as an Expert Witness 12. David Falcon Discussing Workers Compensation in Virginia 16. Martin Sheehan Bankruptcy: A Blessing Or A Curse? 4. Political Violence Rising in the US 6. A Victory for Trump? 7. Kirkland Advises Commure on Acquisition of Augmedix SPECIAL FEATURES 20. 6 Questions to Ask Before Choosing a Personal Injury Lawyer 24. Tax Resolution Commando Style Written by Carl N Cottone 28. The Importance of Confidentiality in Legal Practice 30. The Legal Implications Of Crime Scene Cleanup 34. What You Should Do If You Get Injured In A Construction Accident - NEWS - 20 TRANSACTIONS 40. The Sale of Rad-X to Swiss Life Asset Managers and Vesper 41. The Sale of the TIM Network to KKR 42. Heygaz Biomethane’s Acquisition of Ormonde Organics 44. Vaxart’s $40 Million Common Stock Offering 45. Wolf Eyewear Acquires White Optics 46. Freeland Acquires Asenium 47. Sincanli Tractor’s Sale to TVH Parts
4 LAWYER MONTHLY AUGUST 2024 Political Violence in the US In the past we have seen political violence growing in numbers as well as supporters and instigators. Over the weekend we heard, what is being considered the most serious assassination attempt on a president or presidential candidate since Ronald Raegan was shot in 1981. The FBI are calling the crime a potential domestic terrorism act. The suspect, Thomas Matthew Crook was 20 years old using a gun which was registered to his father. He was positioned on the top of a building nearby the rally as Donald Trump was speaking he was shot which grazed his ear leaving him bloody but mostly unharmed. The suspect was shot on the scene and unfortunately has caused the death of one man and left 2 injured. The reaction President Joe Biden has commented on the shooting calling it ‘sick’ and calls for Political Violence Rising in the US NEWS The shooting aimed at Trump highlights the political unrest and growing number of violent moments and those who support using violence in politics.
NEWS 5 a shift in language being used towards the candidate and condemns any political violence. Global leaders have spoken out as well sending Mr Trump well wishes and thoughts to the victims of the shooting all reiterating that violence has no place in politics. This includes the Prime minister of England - Keir Starmer, Canadian President - Justin Trudeau, Ukrainian President - Volodymyr Zelensky, French President – Emanuel Macron and many more. Moments of Political Violence Political violence has grown especially over the past 5 years studies show. Those in politics are at a high risk of a targeted attack similar to the examples below. In 2011 a representative of Arizona, Gabrielle Gifford was attending a meet and greet at a grocery store where she was shot in the head. 6 people were killed from this attack, Gifford survived and now allocates her time to fighting against gun violence and promotes for new gun laws in the US. In 2017, members of the Republican congressional baseball team were targeted where 5 were injured. In 2020 there was a record high number of election administrators who received threats. This included a kidnapping scheme against the Democratic Governor of Michigan, Gretchen Whitner. This was uncovered along with the groups bomb making supplies and surveillance of Whitner. Also in 2020 an executive at Dominion Voting Systems, Eric Coomer was forced into hiding after mass amount of threats as well as his home address, phone number being released and a bounty placed on his head. Trump supporters believed the votes had been tampered with and took criminal action against those at Dominion Voting Systems. In 2021 Trump supporters protested the moment Joe Biden was sworn into office. This quickly led to a mob of attackers many being armed swarming the Capitol building smashing windows. This resulted in 7 deaths and 140 people injured. Why? The US is facing a time of unrest leading to violence as people feel a loss of control over their country as well as growing feeling that force is the only way to get what they want as the two side compete. Both Republicans and Democrats have stated their no tolerance for political violence and their could potentially be a need for a new direction of this election steering away from the highly competitive focus. With conspiracy theories running over social media and large groups of people able to engage and connect this way it encourages radical ideas to turn into action. Comments online sit on the fence of threats and violence being swept under the rug as it’s just a joke online. Data from the Global Terrorism database and FBI statistics show that incidents from the left wing are rising in numbers however those from the right wing still overshadow and take up a large majority of political violence acts. Those committing political violence are often found to be planned moments from well established members of a community. Robert Pape a professor of political science at the University of Chicago specialises in International security affairs conducted a survey to find out what 270m American think about political violence. He found that 5-10% of adults were supporting political violence to restore Donald Trump to the presidency. Now, they also found that 10%, that it 26million adults support the use of force to prevent Donald Trump returning to presidency. The lack of gun control in the US also gives people with violent tendencies and ideologies to have access to a lethal weapon and a way to cause damage.
6 LAWYER MONTHLY AUGUST 2024 Donald Trump faces a victory as one case against him is dismissed. A Victory for Trump? The Classified documents case against Donald Trump has been dismissed. This is a huge win for Donald Trump in the election run up as Presidential candidate just days after the attempt on his life. Trump promised to bring sweeping political change, to create wealth, and to make America safe again in a speech that excited delegates on the fourth and final day of the convention. (A. Shaker/VOA) When Donald Trump left the Whitehouse in 2021 they later found he was mishandling classified documents taking them with him to his new residence. Falling under the Espionage Act which could have resulted in a prison sentence. The former President pleaded guilty to all charges despite classified documents being found in his Mar-aLago resort in Florida. Why was the case dismissed? It was Judge, Aileen Cannon who dismissed these charges as she ruled that the special counsel who brought the prosecution had been improperly appointed. This violated the Appointments clause of the US constitution as the special counsel appointed, Jack Smith had not been named to his post by the president or confirmed by the Senate. This meant the court could not move further with this case and this comes at a great time as Donald Trump is set to nominate his choice for Vice-president if their party win the US election. Jack Smith could appeal this and the Supreme Court could determine the lawfulness of his appointment leading them back to a trial. Earlier this year Donald Trump was found guilty of fraud with the sentencing trial set for September. Donald Trump’s legal complications does not seem to be affecting his election run and now with this victory he could be seeing a further spike in support. NEWS
NEWS 7 Kirkland provided counsel to Commure, Inc., a company in the General Catalyst portfolio, in finalizing a definitive agreement for the acquisition of Augmedix, Inc., a company specializing in ambient AI medical documentation and data solutions. Commure, Inc. intends to utilize the synergies resulting from the acquisition to further expand its presence in the healthcare technology sector. The acquisition was publicly disclosed on July 19, 2024, and is expected to be completed in late Q3 or early Q4, 2024. Kirkland Advises Commure on Acquisition of Augmedix The team was led by corporate partner Marshall Shaffer and associates Davi Sacco and George Colligan, with assistance from corporate partners Christian Atwood and Dave Gusella. Augmedix, Inc. (Nasdaq: AUGX) has announced that it will be acquired by Commure, Inc. in an all-cash transaction valued at approximately $139 million. Under the terms of the agreement, Augmedix stockholders will receive $2.35 per share in cash, and Augmedix will become a whollyowned subsidiary of Commure. This acquisition represents a premium of approximately 169% over the volume weighted average price of Augmedix’s common stock for the 30 days ending July 18, 2024. Kirkland & Ellis LLP, based in Chicago, Illinois, is a prominent American multinational law firm. Established in 1909, Kirkland & Ellis holds the title of being the largest law firm globally in terms of revenue and the seventhlargest in terms of the number of attorneys. It made history as the first law firm to achieve an annual revenue of US$4 billion. NEWS Also Read: The Legal Consequences of Getting a DUI, online at: www.lawyer-monthly.com
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WWW.LAWYER-MONTHLY.COM 9 Andrew Bamber An Interview with... Exploring the Legal Considerations within the Mining Industry as an Expert Witness Please introduce yourself to the readers of Lawyer Monthly. I am a mining and mineral processing engineer with over 30 years’ experience in the industry covering various roles from plant design, construction, and operations, to research, as well as broad-based consulting and advisory work. Not only did I study and now work in mining, but I grew up around mines, from the coal mines of the North East and Midlands of the UK, to gold mines of the Eastern Transvaal and Iron Ore mines of the Kalahari desert. So, not so much a career, but a lifelong love-affair. What is your professional background and education? I originally studied as a mechanical engineer, graduating from the University of Cape Town in 1993 with an honour’s degree in mechanical engineering and materials science. After a short stint as a research engineer I completed my Mines Engineering Certificate while working on the Bara Consulting is a consulting engineering and advisory group actively involved in mining and mineral processing projects globally. Current work extends from expert witness and due diligence through Feasibility Study work to mine development and operations support in Europe, Central Asia, Africa and the Americas. Over the past few years, Bara has delivered on many diverse projects, from narrow vein gold mining in Scotland, massive potash in England, lead-zinc in Spain and Bosnia, iron ore in Ukraine, platinum in Finland, copper in Zambia, to gold and copper-gold in Serbia and Kosovo. Lawyer Monthly recently caught up with Dr. Andrew Bamber, Managing Director of Bara Consulting UK to discuss his involvement in investor-state arbitrations and work as an Expert Witness. Contact Andrew Bamber Partner & UK MD Email: bamber@baraconsulting.co.uk Tel: +44 (0)7444 86 4046 www.bara-consulting.com
South African Goldfields, qualifying as a Mines Engineer in 1996. In 1997, I was transferred to the company’s head office, where I embarked on an initial career in capital project development, involved in design, cost estimation, and construction management for a series of capital projects in nickel, copper, platinum, and chrome. In 2003, I was accepted into graduate school at the University of British Columbia, graduating with an MSc in mineral process engineering in 2005 and then a PhD in mining engineering in 2008. What are your areas of expertise and professional experience? My main area of expertise is in process- and process plant design, and the techno-economic evaluation of mining and mineral processing projects in both base and precious metals. As a technologist, I have major specialisations in process technology, including sensorbased sorting, high-pressure grinding, high-speed stirred milling as well as coarse- and fine-particle flotation. As a consultant, I have a wide range of experience designing as well as evaluating mining and mineral processing projects - both open pit and underground - across commodities including copper, nickel, chrome, iron ore, lead-zinc, tin, tungsten and more recently lithium, and across geographies including Chile, through the Americas, to sub-Saharan Africa, the UK, Eastern Europe, the Balkans and Kazakhstan. When did you start providing expert witness opinion/reports and evidence and how did this come about? I originally got involved in Expert Witness work while still a PhD student at UBC, having been drafted in to support an opinion in a dispute between two competing process technology vendors. Subsequently, as CEO and CTO of a mining technology company, I was involved firstly in the drafting of, then in the defense of several key filings in a growing family of patents for that company. When I returned to the UK and to consulting in 2018, I was asked to assist the then MD of Bara Consulting in an investor-state arbitration concerning a junior gold project developer and a Central Asian state, acting for the State. Then, on the strength of that combined experience, I led as Expert Witness in an Investor-State patent dispute, then on two Investor-State expropriation matters (acting for the Investor), advised on an Investor-Investor M&A dispute, plus as Expert Witness for the State on an Investor-State operational dispute. What type of expert witness services do you provide, and to which type of client? As I mentioned above, I typically act as the Mining and Mineral Processing Expert in mostly Investor-State disputes; perhaps, unlike other companies or Experts, we do not specialize in or focus on representing Investor or State, are equally happy to act for either on a case-by-case basis. A minority of matters are Investor-Investor, while a small number of matters so far have been patent disputes in the field of either mining or mineral processing technology. What are some of the common challenges you face when working with instructing solicitors or third parties and how do you overcome these challenges? I would say the most common challenge we face in these matters is bridging the knowledge and practice gap between, for example, ourselves as non-legal technical experts and non-technical legal experts. We work and have worked with fantastic lawyers at the top of their game who really need to grasp the technical gist enough to deliver the legal case, whereas we, as Experts, really need to grasp, at the very least, the merits of the case enough to then deliver strongly on the technical or techno-economic Opinion. A secondary challenge, in my personal experience, has been - again, as a non-legal technical expert - getting to grips with and perhaps reaching across the table during the Instruction phase to make sure the Instructions are as clear as possible and that we as Experts can then deliver against those Instructions (as readers may well know, poorly instructed matters otherwise strong on merits and jurisdiction can fall down if the Instructions were poorly crafted or executed against. Apart from quality and depth of knowledge, what do you consider the essential elements of an expert witness report? I think objectivity and clarity of message are essential in the Expert’s report. In some cases evident bias towards, for 10 LAWYER MONTHLY AUGUST 2024 We believe, as Expert Witnesses, that our primary obligation is to speak truly and objectively to the Tribunal or the Court as the case may be.
example, the Respondent’s case is clear in the opposing Expert’s report, where such bias - whether the report is technically strong or not - totally dilutes the effectiveness and impact of the report. As Sellers’ Inspector Clouseau famously once said, “but the facts, Hercule, the facts!” What are the challenges and complexities with providing expert opinion on matters concerning investorstate arbitrations and or investor-investor matters? In Investor-State matters we see two common issues. One issue is that in such cases many of the potential exhibits potentially in possession of the Respondent clearly must have existed at some stage, but are not discoverable as they are either not traceable or completely ‘lost’, which impairs our ability as Experts to then accurately opine. On the other hand, particularly with Investors who may have been at an early stage of corporate and project development at the time, the Investor did not pay enough attention to papering the situation effectively enough at the time, so even though a particular position could be inferred, it cannot be proven because the paperwork (e.g. Accounts, Budgets, or Contracts) were either weakly drafted or entirely non-existent (e.g. ‘handshake’ agreements). What are your obligations as an Expert Witness and how do you gauge your success and or input? We believe, as Expert Witnesses, that our primary obligation is to speak truly and objectively to the Tribunal or the Court as the case may be. We are happy to be instructed and to be well-instructed. However, the combination of the facts of the matter as represented in the exhibits, combined with the past knowledge and experience we bring to the table as Experts, by and large, determine the content of our Witness to the Tribunal or the Court. We gauge success in a few ways: how we feel about our report and witness ourselves, the feedback we get from our own counsel, as well as the response of the opposing Witness and Counsel - it is often clear whether points have been scored or games won based on the reactions in the room while providing testimony. What is the most interesting case you have worked on and why? We’ve worked on a few that were very interesting, including v. Large Mining co vs State on a patent matter and v. Large Mining Co. vs v Large Mining Co in an M&A matter, v. Large State v. Small Mining Co. in an Investment matter, and Small State v. V.Small Investor (basically a sole trader) in an Expropriation case. Perhaps the most interesting was the State v. V.Small Investor, where the Claimant (for whom we were acting) died, so the case went quiet for a long while but was then resuscitated by his Estate whom we ended up acting for again - but instructed by entirely new Counsel - in the final Arbitration. WWW.LAWYER-MONTHLY.COM 11
David Falcon An Interview with... Discussing Workers Compensation in Virginia 12 LAWYER MONTHLY AUGUST 2024 Please introduce yourself to the readers of Lawyer Monthly. My name is David Falcon and I am in my 25th year of practice representing injured persons in the Washington DC Metropolitan area. In 2016 I started my own firm Ackerman & Falcon together with my partner Howard Ackerman. We handle personal injury and workers’ compensation claims in Virginia, Maryland and Washington DC. Workers Compensation in Virginia – what does it mean and who does it impact? Like most states, Virginia has a no-fault system designed to pay benefits to persons injured on the job. What this means is that if a person is injured while at work and meets certain legal criteria, their medical expenses and lost wages are paid by their employer. If their injury becomes permanent, they may also qualify for loss of use benefits for certain injuries. Workers’ compensation is a state-mandated insurance program that provides medical, wage replacement, and rehabilitation benefits to employees who sustain work-related injuries or illnesses. In Virginia, this system is governed by the Virginia Workers’ Compensation Act (VWCA), specifically Title 65.2 of the Code of Virginia. David Falcon has been representing accident victims and injured workers since 1999. He has handled thousands of cases before the Virginia Workers’ Compensation Commission, as well as numerous appellate matters before the Virginia Court of Appeals. David Falcon (Ackerman & Falcon Law Firm – Virginia) believes that effective legal advocacy means placing his clients’ interests first and achieving the best possible result requires a proper blend of negotiation and litigation. David’s extensive experience gives him the advantage necessary to secure the benefits his clients need to be fully compensated for their injuries. Lawyer Monthly recently caught up with David to discuss workers compensation in Virginia. Contact David Falcon, Ackerman & Falcon, LLP 8221 Old Courthouse Rd #201, Vienna, Virginia 22182 Tel: (703) 288-1400 | Fax: (703) 636-3052 www.ackermanfalcon.com
WWW.LAWYER-MONTHLY.COM 13 What are the most common areas of Workers Compensation claims or cases you handle? We see a tremendous number of clients who suffer back injuries, usually resulting from lifting heavy objects. Also very common are surgical injuries to the knees and shoulders. In our experience, people working in the construction industry by and large suffer more injuries than any other type of worker. What are some of the common elements shared by the state workers’ compensation laws when it comes to benefits? Almost all states allow injured workers to recover 66% of their wages for every week they are unable to work. Similarly, most states provide for payment of medical expenses related to an injury. Lastly, most states have a means of compensating workers if their injury becomes permanent and they sustain a loss of use of the body. Where state laws largely differ is the duration for which these benefits can be paid. For example, Virginia has a lifetime medical award, which allows the injured worker to claim medical benefits that are reasonable, necessary, and causally related to his or her injury for life. In contrast, many states limit medical benefits to a fixed period, such as 5 years. Virginia also provides for lifetime wage loss benefits for a person who becomes permanently disabled due to a work-related injury. Not all states allow for lifetime wage loss benefits. What actions should be taken when an accident happens at work? Report your injury to a supervisor as soon as possible! Virginia has a 30 day notice requirement, and we see many Almost all states allow injured workers to recover 66% of their wages for every week they are unable to work.
cases where an injured worker with a serious injury fails to report his claim, thus giving the employer/insurer a means of denying the claim. In addition, it is critical to seek medical attention as soon as possible. Many times injured workers disregard injuries that appear to be minor, only to have the injury worsen over time. The sooner you see a physician following an injury, the better. What are the steps involved in the Workers’ Compensation settlement process? Settlement is a voluntary process where the claimant agrees to accept money from the employer/insurer in exchange for closure of a workers’ compensation case. Once a client is ready to settle his case, we prepare a settlement evaluation with them to determine how much to demand (request) from the employer/ insurer. If the employer/insurer offers an amount that the client finds acceptable, the settlement proposal is submitted to the Virginia Workers’ Compensation Commission for review and approval. Once approved, the client receives his settlement funds and the case closes. Which expenses do Workers’ Comp settlements cover? When settling a workers’ compensation case it is important to account for the closure of the claimant’s medical award, the loss of income replacement, and potential loss of use compensation. Will the claimant require surgery in the future? If so, then the cost of that surgery, as well as the aftercare, should be included in the settlement amount. If the claimant will continue to be disabled in the future, then either total or partial wage replacement should also be included in the settlement. Lastly, if a claimant has sustained a permanent injury, then a disability rating should be obtained which can be used to calculate loss of use compensation. What are the typical Workers’ Compensation settlement amounts? There is no typical workers’ compensation settlement. A worker who becomes paralyzed and confined to a wheelchair would likely be entitled to medical care and wage loss replacement for the rest of his life and could be entitled to a seven-figure payout. In contrast, a worker who sustains a minor finger injury and quickly returns to work could receive a de minimis settlement of less than $1000. Returning to Work After a Workers’ Compensation Claim. Fortunately, most injured workers can return to work. I run my practice with that goal in mind. I want to make sure that my clients’ medical needs are covered, and they are financially protected until they can return to earning income. If they are unable to do so, I want to make sure they are fully compensated for the fact that their body is not the way it was before the accident. What Happens if You Can’t Agree on a Workers’ Comp Settlement? Not every case can settle. Many employers/insurers refuse to settle cases where the injured worker is still employed with the preinjury employer. Some municipal employers do not settle cases as a rule. Still other cases do not settle simply because there is no meeting of the minds between the parties. If a case cannot be settled, my job is to make sure that my client continues to receive the full benefit of his or her lifetime medical award and is fully compensated for the time they are unable to work. Lastly, if their injury worsens over time I want to make sure that they receive additional compensation for the deterioration of their condition. 14 LAWYER MONTHLY AUGUST 2024 Not every case can settle. Many employers/ insurers refuse to settle cases where the injured worker is still employed with the preinjury employer.
What can I do if my workers compensation claim is denied in Virginia? Call an attorney as soon as possible for a consultation. Many injured workers hesitate to consult with a lawyer and lose valuable benefits as a result. Most workers’ compensation attorneys in Virginia offer a free initial consultation which is completely confidential. The attorney will advise you on what steps to take to protect your rights, and you can decide whether hiring an attorney is the right step to take. Should I hire a workers’ comp attorney, or can I handle my own case? Not all injured workers need an attorney. I speak to many potential clients where the employer/insurer is paying for their medical care and their wage loss following their injury. They ask me what else I can get for them, and I tell them candidly: nothing. You are receiving all the benefits you are currently entitled to. However, if your case has been denied, you very well may need to hire an attorney. The reality is that most individuals do not understand the complexities of legal pleadings, deadlines and the burden of proof. An attorney is trained to handle these types of cases, and they will be responsible for making sure you meet the requirements of Virginia law. The moment any complexity arises in your case is the moment you should hire an attorney. What are some examples of situations that call for a lawyer’s intervention? Certainly, if you are notified your case has been denied you should consult with an attorney. Other red flags that may call for a lawyer to intervene are if the insurance company wants to take a statement from the injured worker or want the worker to respond to written questions. Lastly, if you receive a letter telling you your case is scheduled for a hearing do not hesitate to contact a workers’ compensation lawyer. What will a Virginia Workers Compensation lawyer do for me and what should I expect? The role of a workers’ compensation lawyer is to listen to the client’s needs, educate the client on the law and advocate for the client’s interests. Because every case is different, there is no single approach that works for every case. One case may require immediate litigation and might only be resolvable by a judge. Another client might be fearful of going to court and confronting his or her employer, which could lend itself to mediation or another form of alternative dispute resolution. Only by listening to the client’s needs will the lawyer be able to best handle each case. Furthermore, because many laws are written in a manner difficult for nonlawyers to understand, it is the job of the lawyer to explain this to the client so they comprehend it. Once the client and the lawyer agree on the best strategy, it is the lawyer’s job to implement this strategy: to advocate for the client to achieve a successful result. Do you have a particular style or approach – what are the essential ingredients of a healthy and effective lawyerclient relationship? Our firm’s approach is best described as compassionate advocacy. What often makes a business stand out from its competitors is the way they treat and care for their customers. A law firm is no exception. Injured persons do not want to be treated like they are a number, or valued according to what their case is worth. We provide the same customer service to our clients regardless of the severity of their injury or the size of their claim. We take care of clients, not cases, and believe that this approach has made Ackerman & Falcon one of the top firms in our field. WWW.LAWYER-MONTHLY.COM 15
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WWW.LAWYER-MONTHLY.COM 17 Martin Sheehan An Interview with... Bankruptcy: A Blessing or A Curse? What sectors and areas of law do you specialize in? My practice has tended to focus on Criminal Defense, Bankruptcy and a smattering of other complex legal problems. Donald Trump has filed for business bankruptcy four times: the Trump Taj Mahal in 1991, Trump Plaza Hotel in 1992, Trump Hotels and Casinos Resorts in 2004 and Trump Entertainment Resorts in 2009. Donald Trump responded to criticism by arguing that businesses often have to file for bankruptcy and that filing for bankruptcy was a financially sound move each time he did it. How can filing for bankruptcy be a good thing? Well-meaning and competent people can be caught financially flat footed. Bankruptcy reorganization allows a “time out” to keep productive assets together and to be made productive again. Bankruptcy is the only legal proceeding in which debt can be restructured without unanimous consent of all creditors. Bankruptcy can have the primary goal of effecting a sale, free and clear of liens, of an ongoing business. That can be useful. Why is it better to file for bankruptcy at the earlier stages rather than continuing to run a failing business in the hope of turning it around? No one likes to admit failure. Facing reality is often deferred. In my experience, early intervention allows a greater chance to recover. Individuals tend to a) refinance their homes to pay credit card debt, and b) cash out their retirement money. The refinancing causes unsecured debt to become secured debt. Potential exempt equity in real estate is lost in this way. Retirement money is largely exempt. Using it to pay bills causes great exemptions to be lost also. Today, an individual in West Virginia can exempt $35,800 in home equity, and a married couple can exempt twice that sum. The exemption for retirement assets is now $1,362,800. People who surrender their home equity, and their Attorney Martin P. Sheehan, Esq – is the founder of Sheehan & Associates, P.L.L.C., located in Wheeling, West Virginia and specializes in bankruptcy law and helping businesses who cannot repay debts to creditors. Martin believes that bankruptcy is an overlooked alternative for many people, often thought of as a matter of last resort, but can be valuable. Lawyer Monthly recently caught up with Martin to discuss bankruptcy and the advantages of filing for bankruptcy earlier rather than later.
retirement money before consulting an attorney waste their legal options. Exemption analysis should be done by a competent attorney. Some analysis is easy, but there are odd opportunities that may exist in some cases. While corporations do not receive exemptions, the terms of secured debt can often be negotiated. Restructuring payments over a longer time cycle is preferable to having a borrower fail completely. After financial issues develop, but while it is possible to make payments, that’s the time to see if a new payment structure can free up some cash flow. Take advantage of that time before resources to successfully reorganize and vaporize. Early consultation is always better! Should I at least try to pay back my creditors before filing for bankruptcy? No! TALK TO A BANKRUPTCY LAWYER 18 LAWYER MONTHLY AUGUST 2024 FIRST! Your creditors knew your options when they extended credit to you. Should you not have the same understanding? Ignorance can be expensive. Are there any other things that you definitely do not want to do before filing for bankruptcy? When some financial difficulty makes you think bankruptcy could be an option, see a lawyer who practices bankruptcy law. Find out how exemptions could work for you, as an individual. Sometimes spectacular results are possible. In the corporate world even where no exemptions are available, obtaining advice early on is also useful. As noted, time allows for negotiation. Time also allows for identification of what debts would flow through a corporation onto individuals. Obviously, this includes voluntarily guaranteed debt. No one likes to admit failure. Facing reality is often deferred. In my experience, early intervention allows a greater chance to recover.
But it will also include debts for some corporate taxes that a “responsible corporate officer” can be required to personally pay if the corporation does not. These include monies withheld for taxes owed by an employee, the employee share of social security taxes and state sales taxes. Consultation will allow payment alternatives, and the repercussions to be understood. Do you have a particular approach or method used to assist failing businesses considering bankruptcy or is every case different? I have a generic intake form for businesses and individual clients. While each case is different, there are common scenarios that are used to solve financial problems. I have a few written explanations for some common scenarios that I provide to clients, as appropriate. This helps me explain bankruptcy law is not magic. I want my client to be informed and understand, without going to law school, just how the law works and how the law can benefit them. What are the pros and cons of filing for bankruptcy? The big advantage is that the purpose of a bankruptcy is to obtain a discharge. A discharge once meant a discharge from debtor’s prison. Now it means that debts of most kinds are no longer a legal obligation. Alternatively, my clients are concerned about a potential stigma from filing for bankruptcy. There is some. Bankruptcy will remain on a credit report for ten years. But missing payments contributes to a bad credit score also. About two years after receiving a discharge, and resuming timely payments often causes credit scores to rebound. Can filing for bankruptcy at an earlier stage benefit me personally? Could it be disadvantageous for me personally to file for bankruptcy at the later stages? I want to say, earlier is better, but not too late. I have had calls from individuals saying, “I’ve lost my job, and I need to file, now.” I discourage filing until that person returns to work. This allows more negative issues which will occur during unemployment to be included. A good lawyer will work on the timing of filing as well as filing. Do you have a particular style or approach for your clients – what do you think the most important aspects of a lawyer-client relationship are? Trust. I have stopped talking about my experience. I simply ask questions that focus on a client’s situation. Clients understand that from the questions, I know what is important. I offer explanations about how the law works relative to their situation. That builds trust, the key to any successful attorney-client relationship. About Martin P. Sheehan, Esq. I am a 1980 graduate of Duquesne University School of Law in Pittsburgh. I clerked for a federal judge in Pittsburgh before becoming an Assistant United States Attorney. As an AUSA, I handled civil, bankruptcy and general criminal cases. I left after being involved in a RICO case involving a locally notorious figure. My walls contain a Merit Award from DOJ and a letter of commendation from the FBI Director. I joined a regional law firm in 1992. During that employment, my most complex case involved the defense of a college student accused of killing her new-born child. Complexity was everywhere due to medical and psychological issues. Over time, my practice has involved complicated legal problems of every sort. In 1993, I was appointed as Chapter 7 Panel Trustee in West Virginia. I joined the National Association of Bankruptcy Trustees soon after. I am a long-time member of the Amicus Committee of NABT. I also served as Editor of NABTalk for 3 years. Over the years, I have contributed various articles to that publication and others. In 2014, I had the honor to serve as National President of NABT. I served as an adjunct lecturer at West Virginia School of Law, primarily teaching Advanced Bankruptcy (Chapter 11), but also Introduction to Bankruptcy (Chapters 7 and 13). I found a case that I had won had been included in then Professor, now United States Senator, Warren’s textbook. WWW.LAWYER-MONTHLY.COM 19 Early consultation is always better! Contact E: Martin@MSheehanLaw.net T: (304) 232-1064
20 LAWYER MONTHLY JUNE 2024 Choosing a personal injury lawyer feels overwhelming, especially when dealing with the stress of an accident. You want someone who knows their stuff and can fight for your rights. It is not just about picking any lawyer but about finding the right fit for your case. From understanding their experience to knowing how they charge, asking the right questions upfront can make all the difference in getting what you deserve. Keep reading to uncover these essential questions before choosing a personal injury lawyer. Questions to Ask Before Choosing a Personal Injury Lawyer
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Where Do They Practice? Location is also a critical aspect to consider when choosing a personal injury lawyer. You need someone practising in the state where you file your case, as they will be familiar with local laws and regulations. Imagine hiring a New York lawyer for an accident that happened in California - it just does not work. A local lawyer also means accessibility; you can meet up easily without longdistance hassle. Narrowing down to your specific county helps even more since different areas have unique ordinances. Plus, local lawyers often know the judges and court staff, giving them insider knowledge that can benefit your case significantly. Do They Specialize in Your Type of Case? Besides their years of experience, you will want to pay attention to their specialization. Different cases, like car accidents or medical malpractice, need different approaches. It is like seeing a heart specialist instead of a general doctor for heart issues. Huge firms like Bradley Law have lawyers specializing in various personal injury areas, ensuring you get expert advice tailored to your situation. A lawyer who specializes understands the specifics and nuances that could be easily overlooked by someone without that focused experience. How Much Experience Do They Have? Experience matters big time when choosing a personal injury lawyer. It is like picking a seasoned mechanic over someone fresh out of training - you want the job done right. First, check their website. Experienced lawyers often highlight their wins and years in practice there, so you do not have to dig too deep. If that info is missing, do not hesitate to ask directly during your consultation. You deserve someone who knows all the ins and outs. 22 LAWYER MONTHLY JUNE 2024 1 2 3
How Are Their Soft Skills? Soft skills also matter a lot when choosing a lawyer. You need someone who listens well, communicates clearly, and shows empathy. Strong organizational skills and good time management are also crucial. The best way to assess these qualities is by visiting them in person. Most consultations are free, giving you a chance to compare different lawyers. Notice how they interact with you: Do they seem genuinely interested? Are they easy to understand? These traits can make your experience smoother and more reassuring during what is often a stressful time. What Is Their Reputation? Another critical factor to consider is reputation. Look at past client reviews to get a sense of their performance and outcomes. Positive feedback on social media, online mentions, and word-of-mouth can indicate reliability. Do not forget to check with your state bar association for any complaints or disciplinary actions. Red flags include consistently poor reviews, unresolved complaints, or lack of transparency in communication. You want someone who is not just skilled but also trustworthy and wellregarded in the community. What Are Their Billing Options? Understanding billing options is key. Most personal injury lawyers work on a contingency fee basis, meaning they only get paid if you win. Typically, they take a percentage of the settlement or award. These percentages can vary widely, so it is essential to ask upfront. Remember, cheaper is not always better; you often get what you pay for in terms of quality and experience. Make sure the lawyer explains all charges clearly and does not surprise you with hidden fees later on. Being forthright about costs reflects professionalism and helps build trust right from the start. NEWS 23 4 5 6 Final Words Having a lawyer on your side is crucial, especially when facing pushback from defendants with deep pockets. Most insurers come armed with their legal teams, so having your own lawyer levels the playing field. But it is not just about having a lawyer - it is about having a good one. So take the time to find someone who ticks all these boxes and gives you peace of mind during this challenging period.
Part I Basics Categories of Tax Debt: All of Gaul is divided into three parts and so are personal income taxes. Although personal income tax divisions are called Categories or Statuses. The categories of a client’s tax debt are important because only one of the three categories is dischargeable, without payment, in a Chapter 7. The Categories are: 1. Priority 2. Secured 3. Unsecured Unsecured Tax Debt: Tax debt is Unsecured if it adheres to certain rules. And those rules are: 1. THE THREE-YEAR RULE. 11 U.S.C. § 507(a)(8)(A)(i). The tax year in question is over three years preceding the filing date of the bankruptcy. The three-year period is computed from most recent date the tax return is due for the tax year. For instance, the due date for the tax year ending on December 31, 2020 is April 15, 2021. Unless an extension to October 15, 2021 is requested. 2. THE TWO-YEAR RULE. 11 U.S.C. § 523(a)(1)(B); 11 U.S.C. §1328(a)(2). A tax return has been filed by the taxpayer for the tax year(s) in question at least more than two years preceding the filing date of the bankruptcy. 3. THE 240-DAY RULE. 11 U.S.C. § 507(a) (8)(A)(ii). The tax claim was assessed at 24 LAWYER MONTHLY AUGUST 2024 Tax Resolution Commando Style Written by Carl N Cottone Attorney at Law The generally accepted definition of a Commando is that of a highly trained soldier who is focused, single mindedly, on a specific mission. And, per the title, that’s the mentality of this article. No fluff. However, I am compelled to honor one soldier, although he was not a commando. And that soldier is Audie Murphy. If you know about him, you know why I mention him. If you don’t know about him and you do an online search, you won’t be disappointed. A common misconception about federal and state personal income taxes is that they cannot be discharged in a Chapter 7 or a Chapter 13 bankruptcy. Not true. In the Best Case Scenario, federal and state income taxes, including penalties and interest, can be completely eliminated in a Chapter 7. Here’s how. Contact Carl N Cottone Attorney at Law, Licensed in New York and Ohio Tel: 614-401 9873
rules, the tax debt is a Priority debt and the taxes cannot be discharged, except by payment. For example, the tax might be over 3 years old, but if the taxpayer did not file a return for that tax year at least 2 years prior to the bankruptcy filing, then The Two Year Rule is not met and the tax debt is considered a Priority debt that must be paid in full. You can think of Priority taxes as embryonic Unsecured taxes. A Priority tax debt can be paid over 3 to 5 years in a Chapter 13 repayment plan. And a fringe benefit of including Priority taxes in a Chapter 13 is that the monthly interest charged by the IRS stops accruing the moment the Chapter 13 is filed. Secured Taxes: If a tax lien has been filed, either judicially or through recordation, against a taxpayer’s real or personal property least more than 240 days preceding the filing date of the bankruptcy (plus any period of over-lapping time during which an offer in compromise was pending, plus 30 days). 4. NON-FRAUDULENT RETURN RULE. 11 U.S.C. § 523(a)(1)(C). 11 U.S.C. §1328(a) (2). The tax return in question was nonfraudulent. 5. NO WILLFUL TAX EVASION RULE. 11 U.S.C. §523(a)(1)(C); 11 U.S.C. §1328(a)(2). The taxpayer has not engaged in activity deemed a willful attempt to defeat or evade the tax. So, if a tax debt satisfies each of the above rules, it is Unsecured and is fully dischargeable, without any payment, in a Chapter 7. Priority Taxes: If the tax debt fails any one of the above WWW.LAWYER-MONTHLY.COM 25 A common misconception about federal and state personal income taxes is that they cannot be discharged in a Chapter 7 or a Chapter 13 bankruptcy.
About Carl N Cottone Although I graduated Capital University Law School in May 1999, I was working in Information Technology making over 90k annually, so I didn’t take the Bar Exam until February 2003. Subsequently, I fell into a position at Mills Law Office and became immersed in Chapter 7 and Chapter 13 work, which unexpectedly, I took to like a duck to water. In January 2005, I hung my shingle on my own law office and I’m glad I did. 26 LAWYER MONTHLY AUGUST 2024 prior to a bankruptcy filing, then the tax debt is Secured. Moreover, even if the tax debt satisfies the rules making it Unsecured, it is Secured if a tax lien has been filed. A tax lien is a taxpayer’s ultimate trauma. It’s always better to string the IRS along with innocuous communication and activity for as long as necessary to fulfill The Three-Year Rule, The Two-Year Rule and The 240-Day Rule. It’s like a platoon withdrawing from a position. The rear guard only needs to hold the opposing force at bay, so the withdrawal can be orderly. The rear guard will not engage in a pitched fight. Secured tax debt, like Priority tax debt, can be paid fully over 3 to 5 years in a Chapter 13 repayment plan without incurring interest during those 3 to 5 years. Part II Details Many tax debts are pretty clear cut -- the return(s) were due over 3 years ago; the taxpayer filed the return(s) over 2 years ago, the return(s) were assessed over 240 days ago and there is hardly ever an issue regarding fraud or willful tax evasion. However, there are a number of events that can toll, or suspend, the counting of time related to The 3 Year Rule, The 2 Year Rule or The 240 Day Rule. Too many events for this article to comprehensively discuss, but I’ll give a few examples. If a taxpayer files any bankruptcy Chapter before The 3 Year Rule is satisfied, the time in that Chapter, plus 90 days, does not count toward satisfaction of The 3 Year Rule. The same is true concerning time spent, or wasted, in an IRS due process hearing. And that time includes the weeks or months leading up to the hearing and the weeks or months waiting for the decision to come down. A taxpayer is better off spending his or her time satisfying The 3 Year Rule, The 2 Year Rule and The 240 Day Rule. By filing returns timely, the ability to discharge taxes in a Chapter 7 is more black and white. If you have a client that cannot afford to immediately pay their tax liability, be sure to inform him or her that not filing their return limits their options down the road. In my experience, tax debt is usually a mixture of Unsecured and Priority amounts, so that a Chapter 7 will not wipe the slate clean. If Unsecured and Priority taxes are included in a Chapter 13, the Priority amount must be paid in full over the 3 to 5 year life of the plan. The Unsecured amount is paid the same percentage as other unsecured debts in the plan. If a taxpayer files any bankruptcy Chapter before The 3 Year Rule is satisfied, the time in that Chapter, plus 90 days, does not count toward satisfaction of The 3 Year Rule.
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