May
30

One of the brands of K&G is: “No detail is too small!”

Recently two very different situations crossed my desk: an executive offered a new stock option scheme; and a manufacturer concerned about the lack of contractual relationships with their distributor/sales representatives.

Both situations emphasize the need and importance of properly drafted contracts and a “total review” of their interaction with other arrangements; with the executive, what impact would the stock plan have on the executive’s employment agreement and other contracts? With the manufacturer, what types of control do they have over pricing, and, of course, performance?

As it relates to the executive, K&G needs to review the employment contracts and bonus plans, to have a clear understanding of the expectations of each party and how would the existing agreements be affected by the stock plan. What happens in the event of a termination? How is this stock plan impacted by termination; is there any difference between who terminates: the company or the employee?

As it relates to the manufacturer, besides the following elements: Obligations and Responsibilities – what each party needs to do under the contract; Performance – how well each party will perform; Payment Terms – detailing how payments will be made; Liabilities – how liability and responsibilities will be handled once there is a problem; Breach of Contract – what will happen if either side fails to fulfill their obligations; there should be provisions for how house accounts are to be handled; does the representative get paid for servicing accounts in their territory; and/or are they obligated to service them; how much latitude does the representative have in the final price of the product?

All too many times, I am asked to make the contract simple: I do not want to have too much ‘legalese’. There is a difference between keeping it simple and making certain it is fair to all parties. Disputes cannot always be avoided, but their likelihood and the prospect of an uncertain or negative outcome increases to the extent that proper care has not been taken at the beginning of the relationship. I have written several times: “go to the end of the movie first and read the credits!” Care must be taken about how the end of the relationship is handled.

It is in the interests of both contracting parties to maximize contractual clarity and certainty. The issue of one party seeking to take contractual advantage of the other – failure to identify and attempt to avoid unfair contractual provisions – is simply poor business practice. Due diligence at the time of formation of the contract can avoid much time and expense if there are subsequent contract disputes.

Lastly, an often-overlooked concept is to agree on confidentiality and non-disclosure provisions protecting sensitive information, as well as non-disparagement. As part of the agreement, the parties should be legally bound to hold in secrecy the information shared among them, and the party that violates this confidentiality would be held liable. Equally important is, after the relationship ends, for whatever reason, to agree not to disparage the other.

May
30

Welcome Back…Really?

Many of us are at the age when our children have grown, physically and in years, and yet, there is still something about their judgment that continues to make us wince. For whatever reason, blame it on the economy; blame it on changing values; blame it on…what difference does it make? Many of our children, by exhibiting what they think is “adult behavior,” land back home to the safety net of mom and/or dad, or other family members, with suitcase in hand, duffle bag, or backpack, maybe a guitar slung over one shoulder, or unfinished manuscript, with a baby on one hip. Or, standing in your threshold, perhaps pregnant, with or without the expectant father, or the expectant father with expectant mother or not. And sometimes, one or both of the partners are haunted with abuse issues that take a nasty hold. The manifestation of abuse takes refuge with: abuse of drugs, alcohol, physical, emotional, psychological, and/or sexual.

What’s a parent to do? The calm and accepting approach is to let this play out. Unfortunately, as parents, we are instinctive enablers. Enabling detracts from the main focus and concern which must be directed to our children and the children born to our children.

If the parent(s) agree, for the time being, that it is in the child’s best interests that they not parent the child, and you, as the grandparents are ready, willing and able, consider filing a Petition for Guardianship of a Minor, where the parents assent to the petition. The parents should understand that having guardianship of the child is not permanent and their parental rights will not be terminated. The Guardianship Petition may always be dismissed, if the guardian and parents of the child agree. Or by Order of the Court.

If there is no agreement, the standard for Guardianship of a Minor is that the parent(s) are unavailable or not fit to exercise their parental rights. In either circumstance, reasons must be given to support the unavailability or unfitness statement. If an extreme emergency exists, file the Petition for Guardianship of a Minor, accompanied by an Ex Parte Motion for Temporary Guardianship. The Ex Parte Motion may be allowed without notice to the parent(s), because an emergency exists and time is of the essence. This will buy some time (at best ten days) to set a plan into motion to address what is truly in the best interest of the child.

Oftentimes, when a child is born with drugs in his or her system, the Department of Children and Families (“DCF”) will appear, looking for a suitable home for the child. Grandparents, come forward! Or siblings, or aunts, uncles or cousins. What must be conveyed to the children who gave birth to the babies, is that nothing is permanent, but it is expected that they will learn, tackle issues and once solid progress is made, seek to regain custody of their child (ren).

If steps are not taken to assuage the situation, it will only put the child (ren), your child and grandchild (ren) more at risk. Here’s to all of the children in our world!! Everyone needs and deserves the best care and love on all counts for an equal playing field in this life.

If you or someone you know is in the midst of this nightmare (and it is a nightmare, when two irresponsible people allow a human being to come in to this world, caused by their inability to think beyond their own needs) please call or email me. I know my K&G TEAM can help.

May
30

The Good Lawyer

Unless you are an attorney, you probably have not come across the phrase “good lawyering.” What exactly does it mean? What is a “good” lawyer? Is it a lawyer who always wins? A lawyer who charges lower fees than others? A lawyer with an intimidating reputation? The correct answer, I would submit, is none of the above.

This term of art suggests certain professional characteristics which are not necessarily quantifiable. Good lawyers aren’t just tightly aligned with their clients; they are consistently mapping out new, and better, routes for reaching the desired outcome. Beyond any specific skill (e.g., reasoning, writing) or subject matter (e.g., contracts, domestic), good lawyers are masterful problem-solvers. No matter what transpires, clients benefit by virtue of counsel’s solid judgment, systematic thinking, and flexible mindset.

It may be surprising to hear that it’s somewhat common for clients to come to our office aware that they have a legal problem but not knowing with certainty what outcome they seek. Clients may believe that they have been wronged but may require counsel as to what would be an acceptable and cost-efficient result and, naturally, an effective strategy for obtaining it. That’s when our experience, creativity and overall enthusiasm kicks into gear. In these situations, “good lawyering” calls for even more than just attorneys with book-smarts. We must then also serve as legal counselors, educating and guiding our clients, as well as anticipating potential future conundrums.

So, what does good lawyering entail?

Returning phone calls and emails promptly, treating all parties, attorneys and the court respectfully, and acting as our clients’ human “Siri” by reminding them of pending deadlines and appointments. It also means advising our clients when the law is not in their favor, keeping up with continuing professional education and training, and cultivating a network of trusted professionals in other fields such as accounting, construction and medicine to bolster and perfect our work product. Good lawyering includes foreseeing important turning points in our clients’ cases so that preparation is more than simply adequate, and resources are appropriately allocated. As the saying goes, “everyone makes mistakes;” good lawyering skills must include devising acceptable solutions to the inevitable error.

There are many “good lawyers” in Massachusetts. “Good lawyering,” though, is a rarity – and a plum.

May
30

The Lesson from Picasso Does Not Paint A Pretty Picture

Pablo Picasso is credited with saying, “Only put off until tomorrow what you are willing to die having left undone.” Ironically, Picasso died intestate, meaning he had no Will. When he died in 1973 at age 91, he left a large tax bill owed to France and, among his other heirs, a child born out-of-wedlock who had to fight to be legally recognized as an heir. Ultimately, it took years and a reported 19 lawyers to settle his estate.

If you, like many of us, are distracted with paying off student loan debt and your mortgage, you may not realize that you do have assets that will need to be dealt with if you become incapacitated or when you die. There are countless blog posts and newsletter articles advising people to make an estate plan. However, a 2017 survey by caring.com found that over half of Americans have no estate plan in place. An estate plan becomes even more important if you have children, as an estate plan may include not only asset distribution instructions but also guardianship and support plans for your children. Despite this, over 70% of those with children under the age of 18 have no estate plan. If you die without naming a guardian for your minor children, a judge will ultimately make that decision instead. The judge may not choose the person you would have selected.

Additionally, minor children cannot directly receive assets from, for example, a life insurance policy where they are named as a beneficiary (nor would you want them to!). Therefore, you should also appoint a guardian of their property. Even if your children are legally adults, they may be too young to responsibly manage the amount of money they would inherit, even if it is a relatively small amount. A million dollars is a modest amount for a life insurance policy. However, most of us would agree that giving an 18 or even 21-year-old a million dollars with no restrictions is a mistake. Creating a trust for the benefit of your children will allow someone with more experience to help invest and manage those funds. An estate plan is also particularly important if you are in a partnership that is not recognized as a legal marriage. If you or your partner is in an accident or has a health care crisis, you want to ensure that you have the right to be involved in his or her care.

Even those who do create an estate plan often spend a lot of time thinking about their final wishes, such as who should receive their assets when they die, but do not think enough about who is going to carry out those wishes. Be mindful of family dynamics when choosing people to act as your representatives. Be sure to consider potential conflicts of interest. It may go without saying, but choose people you trust. Do not assume your wishes will be followed without being clear and explicit in your plan AND discussing your wishes with the people you appoint to carry them out.

As Picasso’s heirs discovered, legal fights over assets can get nasty. It is unfortunately common that family members spend all of the money they inherit on a legal fight and destroy relationships with other loved ones in the process. When family businesses are involved or assets are divided amongst a blended family, things can become even more complicated. An estate plan that has been carefully considered ahead of time can avoid heartache for your loved ones during a time of grief. It is admittedly not fun to think about the end of your life, especially if you are young and healthy. However, estate planning is not really about you. It is about those closest to you, who will be left to sort through the mess that occurs when a loved one dies without an adequate plan in place. The lesson here is to do as Picasso said, not as Picasso did.

Aug
17

K&G: Now With 100% More Karens

It’s hard for me to believe that I will be coming upon my one-year anniversary with Konowitz & Greenberg this fall. My son, who was just an infant when I joined the firm, is now walking and talking (well, mostly throwing things and yelling “uh oh!”). While my son rules the roost at home, I try my best to serve as the “team captain” at work, so that the K&G TEAM can do its best work for our valued clients.

In addition to my role as Office Manager, I am also the K&G Legal Assistant. My professional experiences and education have prepared me well for these extra responsibilities. Before moving to Massachusetts with my husband, I practiced law in Connecticut, working at a small trusts and estates firm after receiving my law degree from Saint Louis University and my undergraduate degree from Williams College. Before attending law school, I also earned a master’s degree in healthcare administration and worked full-time in a nursing home as an admissions coordinator, honing my interpersonal and communication skills. In addition, I have taught English and History to (sometimes) unruly teens. So, it’s not hard to see why I feel well equipped to manage the TEAM here!

What do I actually do here, you might wonder? This is a small office so, not surprisingly, I wear many hats. As the Office Manager, I organize calendars and coordinate meetings; communicate with clients, opposing attorneys and the courts; update our website; and plan the newsletter. I also make sure the office is running smoothly by ordering supplies, managing the billing, and providing technical support and computer assistance.

When I am wearing my Legal Assistant hat, however, I display my “do not disturb” sign at my desk, so that Steven, Karen and Cyndy know that I am not available to fix their computer problems! As a Legal Assistant, I organize and assemble court notebooks for civil litigation and domestic cases and assist in the preparation and review of legal documents such as Wills, Trusts, and Powers of Attorney. I also run the K&G Estate Planning Department, which is a highlight of my job.

One of my most important responsibilities as TEAM captain is ensuring that my attorneys can stay focused on what they do best: practicing law. Each attorney here specializes in somewhat different practice areas. Karen is a highly experienced (and awesome!) domestic relations attorney. As I have learned, this type of practice requires certain talents. For example, appearing in front of a judge in a highly contested divorce proceeding requires chutzpah — that is, a certain swagger or boldness. If you do not understand my reference, you have yet to see Karen Greenberg in action. Karen, who tells me she is “4 feet 11 and a half inches tall” is more intimidating than my 6’5” husband could ever be! Cyndy’s breadth of knowledge and sharp legal mind makes her an excellent strategist and skilled at analyzing complicated issues. Steven is experienced and unflappable, willing to tackle whatever situation arises for any client who walks through our door. In my role here, I am privileged to work behind the scenes to support their court appearances and other achievements. I love the preparation, the collaboration, and the negotiation. I love the document drafting and the attention to detail this requires. Using my strengths and skills, I am able to assist Karen, Cyndy, and Steven and participate in our clients’ successes.

When I graduated from Williams, I could never have anticipated this course, but, right now, I cannot imagine being anywhere else. What I have found most rewarding is the opportunity to take on as much responsibility as I want, which means I am always learning. In fact, joining K&G has re-ignited my passion for legal work. In the near future, I hope to expand my legal role and responsibilities even further. I remain very grateful for the warm welcome I continue to receive from my colleagues and our clients!

Aug
17

Attention All Soon to Be Mother-in-Laws
Attention All Soon to Be Father-in-Laws

I know the peak wedding season has already passed, so perhaps my message is late for some, but I know it is still timely for others. Perchance your son, or your daughter, is engaged and planning to wed. With any luck, you are pleased (or moderately so) with your child’s choice of a lifetime partner. If you are not, or even if you are, there is something that you should consider: whether your son or daughter ought to have a prenuptial agreement drawn up before he/she marches down the aisle. Hmm, you might be saying, shouldn’t this question be directed at the future groom or future bride? The answer, as with any answer by a lawyer, always begins with two words: It depends.

Take a moment to think ahead, hopefully far ahead, to when you have departed from this earthly plane. Your worldly goods aren’t going anywhere; as the adage puts it, you can’t take it with you. But you may have strong opinions about who should keep it.

I think I hear another hmmm. Clearly when anticipating a joyful union, one does not want to focus on anything more frightful than the bill. But death or divorce should be considered, particularly with families that have significant possessions to pass on to their children.

“Karen, would you please get to the point?” as Steven would say — actually, he would silently make a sweeping gesture with his arm, letting me know I need to keep moving, and pick up the pace.

A prenuptial agreement, executed by the married couple-to-be, may protect your estate from falling into the hands and/or control of your future (ex) son-or-daughter-in-law. Simply put, a prenuptial agreement, entered into voluntarily, with full financial disclosure to the parties to the agreement, may include language as to inheritances. And, inheritances (and gifts), so long as the assets are kept separate and not co-mingled with the marital estate, may potentially be excluded in case the newlyweds eventually find themselves in a less-than-blissful union. Proper language in a prenuptial agreement may keep an inheritance off the table and excluded from the marital estate. It may then not be subject to division in the event the parties divorce after your death.

The issue may arise as to whether a surviving spouse is entitled to an inheritance that is part of a deceased spouse’s estate. The inherited property may be excluded, if there is a valid agreement in place and the deceased spouse’s will does not contradict the prenuptial agreement.

A good estate plan, coupled with pre and postnuptial agreements executed by your children, can help ensure that your “family” assets are protected. However, as mentioned earlier, if co-mingled with the marital estate of the divorcing couple, all can be for naught. Good practices to avoid such pitfalls may include, for example, establishing a trust for large gifts such as a vacation home. What you are hoping to avoid is the couple using inheritances to pay for marital expenses such as vacations or their children’s education. Once that occurs, it may be difficult for your child to claim that the inheritance is not a marital asset subject to division upon divorce.

Please do not have the take away of this article be, oh dear, we screwed up. Breathe a sigh of relief. Massachusetts courts have recognized postnuptial agreements, so long as such agreements are entered voluntarily with full disclosure of each of the parties’ assets and liabilities.

So, returning to your initial question, “Shouldn’t the consideration of a prenup be directed to my child,” it depends… It depends upon the sophistication, age and worldliness of your offspring. Right after the cake-tasting may just be the moment to be that pushy parent!

Any questions? Of course! You know how to reach the Konowitz & Greenberg TEAM. We can help with prenuptial and postnuptial agreements as well as wills and trusts and estates.

Aug
17

Moving on Up…

New position? New career? Lateral move? C-suite? Middle Management? New kid on the block?

You’ve accepted an opportunity and HR sends you a “love letter” that is 108 pages long. You think to yourself, do I really have to read this before signing it. Isn’t this just some generic paperwork akin to the Fine Print on the bottom of the form I just signed for my new refrigerator?

You should most certainly read that love letter. Even better, you should have an attorney review it. The relatively small cost that you will incur in hiring counsel may later save you significant funds at several junctures, for example, (1) at the time of hiring; (2) in the event of firing; (3) in the event of resigning; or (4) if your employer closes its doors.

Will my new position include health insurance benefits? For what portion of the premium am I responsible? Is this negotiable? Will my soon-to-be spouse be covered after our wedding in 6 months? Am I entitled to an annual bonus? If I voluntarily leave my position just before my bonus is due, will I receive it? Will my new employer have to pay my commissions that come in to the company after I have left? Is the proposed non-compete legitimate? Can my employer really restrict my work activities like that for the foreseeable future? Can I take the customers I am bringing to my new position with me? Can my old boss badmouth me on social media with no consequences? And, by the way, should I sign that aforementioned “love letter?”

You may wonder whether you will be a so-called contract employee or an employee-at-will, even if you have a written contract. This technicality could become very important if, for example, your dream job morphs into a nightmare or you decide to move cross country or return to school. Will leaving your job subject you to a breach of contract claim by your former employer to whom you may have to pay damages?

If you are reading this now as you are “moving on up” and cursing yourself for signing on the dotted line “blindfolded” for your previous job, all may not be lost. Allow us to review what you then signed and with any luck, you are better situated than you think. You may, for example, not realize that you have paid vacation for which you are entitled compensation under Massachusetts law. A little cash in your pocket while you ready yourself for your new adventure could be a nice, unexpected treat.

And if you happen to be reading this while in the process of searching for a new position, make sure you ask us about some of our important State laws such as Massachusetts’ progressive, and relatively new, Pay Equity Law and our Wage Act.

While reviewing employment contracts and related documents may seem arduous and time-consuming to you, at K&G, this type of work is one of our specialties. Let us help you out and pave the way for a rewarding and enjoyable new opportunity.

And for you employers who may be reading along, because of our extensive experience working with employees, we are in an ideal position to assist you in crafting employment agreements and non-competes that comport with your own business objectives. And don’t forget those Employee Manuals!

Aug
17

Parent’s (FKA Dad’s!) Law, Part Three

Now that our children have graduated from college, started graduate school, finished graduate school, or are entrenched in their careers, their need for a Health Care Proxy, Living Will and HIPAA Authorization is even more paramount. We might recognize the need for such documents for ourselves as parents; after all, we owe it to our children to reduce the foreseeable stress that will accompany our aging. However, the very same documents are also important for our now-adult children, especially when they do not live under our roof and/or are geographically distant. Our children’s lives and personal philosophies about relationships, life and death have changed so dramatically from when they first officially became adults (In Massachusetts the age of majority is 18) to today. As tough as it can be to accept, they are independent adults. As such, they may not want their parents making critical decisions for them anymore. They may have “significant others” or “best friends” or even close siblings/cousins in their lives who they would want to depend upon to carry out their wishes in serious health-related circumstances.

Let’s make certain we understand each of these documents and why they are so important:

A Living Will, also known as an advance medical directive, is a document that outlines the medical decisions you want in case you are unable to communicate them. A Health Care Proxy, a document that often accompanies a Living Will, names the person you want to make health care decisions for you (known as an agent) in case you are incapacitated. Essentially, the Living Will states what you want to be done and the Health Care Proxy identifies who you want to carry that out. A HIPAA Authorization —the acronym refers to the Health Insurance Portability and Accountability Act, the law governing medical data privacy — is a document that allows any appointed person or party to share/receive specific health information. Without this document, family members, friends and significant others have no access to your health information. As a side note:
in the Commonwealth of Massachusetts, currently, the Living Will is not recognized as a binding document; but, when presented to a Court by your Health Care Agent, the Living Will clearly indicates to the Court what your intentions were when you were fully functional.

Your child may think that having these documents screams: “I am not that old; I am not dying; I will never need them!” The problem with this rationale is that, while statistically sound and very reassuring, if they are needed and have not been drawn up, the consequences could be potentially devastating. Writing a Living Will is not pleasant to think about, but it ensures that the owner of that Living Will, if incapacitated, receives the treatment that s/he wants. In other words, the course of treatment incorporates your child’s wishes.

Conversely, if your child has not completed a Health Care Proxy, someone may be asked to make decisions based upon what they believe your child would want done. You might want to encourage your child to figure out his/her preferences for medical treatment, pointing out, for example:

• If your heart stopped beating, would you want CPR or defibrillation, which administers an electric shock to the heart?
• If you were unable to breathe on your own, would you want assistance from a breathing machine?
• If you were unable to eat or drink, would you want feeding tubes to supply your body with nutrition and fluids, and/or dialysis to remove waste from your blood and manage fluid levels?
• Would you want to donate your organs and tissue for transplantation or scientific study?

Because a Living Will raises questions that aren’t necessarily easy to answer, one must discuss these questions with a Health Care Agent before naming someone. Also, if your child practices a religion that has a particular stance on certain treatments, this consideration is equally important. When selecting a Health Care Agent, you should encourage your child to choose someone s/he thinks will act honestly and maturely, with your child’s interests at heart (not someone your child feels obligated to ask). This can be a family member, friend or outside adviser who is able to make thoughtful decisions.

Times have truly changed, and it is not unusual to be involved in a long-term relationship with a “significant other” to whom one is not legally married. This person with whom your child is sharing his or her life will not be entitled to receive any medical information unless s/he has been named in a HIPPA authorization. A well-drafted HIPPA authorization will allow your child to name several individuals, if desired.

A philosopher I once knew stated: “Maturity is tough!” Please contact me if I can assist you or anyone you know.

Apr
13

Attorney Karen Greenberg quoted by Professor Daniel Pollack’s Policy & Practice Magazine

Attorney Karen Greenberg was quoted by Professor Daniel Pollack in his article, “The Role of a Guardian Ad Litem in a Termination of Parental Rights Proceeding,” published in the American Public Human Services Association magazine, Policy & Practice. Check out the full article, with Karen’s contribution, below!

Click here to view article!

Feb
09

Yet Another Discipline of A Business Litigator

As a commercial collection attorney, I am often asked what the difference is between a commercial collection attorney and a retail collection attorney. Commercial refers to business to business, as opposed to retail, which is business to person.

The next inquiry is what is the difference between a commercial collection situation and a breach of contract situation? To answer that question, I must first answer the question, what is a breach of contract? A business contract creates certain obligations that are to be fulfilled by the parties who entered into the agreement. Legally, one party’s failure to fulfill any of its contractual obligations is known as a “breach” of the contract. Depending on the specifics, a breach can occur when a party fails to perform on time, does not perform in accordance with the terms of the agreement, or does not perform at all. So, how does this differ from a commercial collection situation? Generally, money is at the crux of the situation. Commonly, the right and/or remedies in a commercial collection situation are already well established. The only major issues are how much is owed by one business to the other business and what is the likelihood of success for collection of that debt. In other words, the contract has already been breached.

Commercial debts are not like fine wine; they do not become better with age! Small/medium businesses tend to hold on to their commercial accounts far too long. The chief advantage of turning over an account to a commercial collection attorney is an increased likelihood of a successful outcome. The old expression, the squeaky wheel gets the grease, rings true.

What makes a good commercial collection attorney? The immediate reaction is the one who gets the money back. That may seem to be the correct answer, but the better answer is one who can accurately review the quality of the potential claim, which actually means its ultimate collectability. If the claim is eventually uncollectible, a business is better off to cut its losses and move on. Why spend good money and resources when, at the end of the day, the business will get nothing? Sometimes this is an emotional decision. But it should not be; it is a simple cost analysis. Should one spend more time, money and energy, only to get little, if anything, in return? Additionally, pursuing a claim also means that the business may be spending time and effort away from its main goal, namely growing and developing the business.

A seasoned commercial collection attorney is your best defense against being taken advantage of either as a creditor or as a debtor. Such an attorney can help come up with strategies either to get you the money that you are owed or to protect you from overeager creditors. If you are a creditor, a commercial collection attorney can help you develop a strategy to put you in the best possible position to be able to recover any money due the company. If you are a debtor, a commercial collection attorney can help provide advice to try to protect your assets and offer alternatives to resolve the situation.

At the end of the day, I, as a seasoned commercial collection attorney, thoroughly investigate my business clients’ commercial/corporate goals and apply my many years of experience to provide advice based on principled thinking that not only has their backs, but their futures, too. If you are caught in the crosshairs and need someone to talk with, call me at (781) 237-0033 x236 or email me at ssk@kongreen.com.

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