Jan
31

Do You Know What’s In Your Will?

Before you signed your Last Will and Testament, did you read it carefully? Do you know and understand the contents of your will? Does your will reflect your wishes today for the disposition of your assets? The language in a will is not always easy to follow or comprehend, but there is a reasonable expectation that you are familiar with the terms of the will, either by discussing the terms with an attorney before it’s drafted and, by reviewing it before signing to ensure the will accurately reflects your wishes.

For over a hundred years in Massachusetts there has been a presumption that one who signs a will, a testator, knows its contents. While this presumption is rebuttable, in Massachusetts, unlike many states, there is no clear standard setting forth the burden someone challenging the allowance of a will must meet to overcome the presumption. In a recent case, Barounis v. Barounis, the Massachusetts Appeals Court faced this hurdle when confronted with multiple challenges to three conflicting estate plans that a Greek business owner with limited English language skills signed in the decade prior to his death. Assuming the need for “clear” evidence in support of a finding that a testator did not as a matter of fact know the contents of the most recent will he executed, the court found that the presumption was rebutted where the testator spoke only Greek, did not read or speak English, and did not ever express his wishes to his accountant who arranged for the will to be drafted by an attorney, who himself, did not speak Greek, and never spoke to the testator before meeting with him to sign the will.

While the facts in the Barounis case may seem extreme, they serve as a reminder to take special care when preparing an estate plan for a client. First, a client who does not have full command of English must have an independent translator during all attorney-client communications if the attorney does not speak the client’s native language. Second, regardless of the circumstance, adult children of the client should not participate in the initial meeting between attorney and client to protect the client from potential undue influence. Finally, it is critical that attorneys not only request written information about assets from a client, such as with a questionnaire, and document the wishes of the client during the drafting process, but also review the details of the estate plan before a client executes the documents. These steps will ensure that a testator knows and understands the terms of his will and estate plan, and can avoid dire consequences as we saw in the Barounis case.

So, on a final note, if you don’t remember what your will says or whether it still reflects your wishes, dig it out of the safe deposit box or contact your attorney. It may be time for an update.

Dec
23

What Will THEY Think of Next?

Three Person Embryo

MITOCHONDRIAL REPLACEMENT THERAPY (MRT)

I recently wrote an article entitled DNA What’s it to you? which can be found on the K&G website www.kongreen.com. My current blog focuses on another aspect of DNA: the manipulation of embryos to avoid inherited mitochondrial DNA. MRT is a controversial therapy which will allow women who have faulty DNA to avoid the risk of passing on genetic diseases to their children.

MRT was made legal in Britain in 2015. The treatment seeks to prevent mothers who have a high risk of transmitting certain diseases to their children, caused by mutations in mitochondria (tiny structures that provide energy inside cells). Children inherit all their mitochondria from their mothers. MRT uses healthy donor mitochondria to replace the faulty ones. The child will have 46 chromosomes from its parents, plus additional DNA from the donor’s mitochondria. The nucleus from the mother’s egg is plucked and then placed in a healthy donor egg to be fertilized, or a fertilized egg.

The jury is out. Thus far, it appears only one child, born April 2016, in Mexico, assisted with a U.S. medical team, is the product of this experimental procedure. Whether or not this process will in fact avoid serious health risks will be determined as the child continues to grow.

There has always been controversy over human embryo research. Concerns that jump out are the commercialism of such procedures, impacting on an (“innocent”) embryo. MRT preclinical research or clinical investigations involve the creation, manipulation and possible destruction of embryos. Others say MRT is not about saving children because the technique does not address a medical need likened to treating someone who is currently stricken. And, of course, there are other not so controversial options available. Families may be created through other means, notwithstanding the children will not be genetically related to the mother. Research and funding would be better spent by focusing on children afflicted with diseases caused by mutation in the genes of the nuclear DNA, rather than embryos.

Once again I say, DNA, what’s it to you?

Dec
05

LAW STUDENT TO LAWYER

Three years of law school is now a concluded chapter. Now I am a recent graduate and new associate, but the experience of being a new associate has revived the same anxious, excited, and uneasy feelings from the first year of law school. As the newest associate in the office, I am not only new to the office, but also to the practice of law. In the past two months, I have learned many things, not only about just how not to practice law, but also about the shift from law school to practice.

One. What I learned in law school does matter not only for the dreaded bar exam, but in practice as well. All throughout my schooling, I, as well as many other students, questioned the reasons for learning various subject matters because we thought we would never need nor remember it. To this day, I stand by this statement about calculus, but such is not true for my law school courses. I left law school with the knowledge amassed from reading appellate cases and studying legal theories, which seemed abstract at the time. Now, in practice, to confront a legal issue, this once abstract knowledge is tapped into and applied to a concrete real-life situation. Even information learned during bar prep has been utilized in practice, leading me to conclude that almost all legal knowledge is good knowledge and law school courses are not high school calculus.

Two. Asking questions is the best way to learn. When I was in school, unless I was asked to speak, I was a quiet student who remained silent, even if I had a thought to share. Such a passive approach had to change as working in a vacuum and not expressing ideas to colleagues is unconducive to a collegial work environment. The saying that “there are no stupid questions” is usually used to encourage participation, although it did not quite work for me in school. Now, I have realized that if I do not ask questions, I am not learning all that I should and could be. Asking questions while tackling a task ensures that I put forth the highest quality final product possible. Simply and frequently asking “why?” when being given an assignment not only helps ensure that my thought process is in sync with my supervisor’s, it also teaches me about strategy driving the need for this task.

Three. Have a life. Whether it be spending time with friends and loved ones, hiking, reading, tuning in on Harry Potter weekend, exercising, etc., taking time to enjoy all the things that make me who I am has been essential to staying balanced and maintaining focus during this exciting and dramatic change from law student to lawyer. I was once advised that I would not be a lawyer 100% of the time, but I am a person 100% of the time and it is equally important to nurture the person behind the lawyer as it is to nurture the lawyer—a piece of advice that has proven to be true.

Nov
28

DNA: What’s it to You?

I recently had the great opportunity to work with two terrific people, experts in their own right at the Mid-Year Conference in New Orleans, Helping to Healing, sponsored by the National Council for Adoption, the American Academy of Adoption Attorneys and American Academy of Assisted Reproduction Attorneys: Dan Berger an attorney who specializes in immigration and adoption related issues, Kayla Sheets, LCGC, a genetic counselor and researcher and founder of Vibrant Gene and I spoke on: DNA and the LAW.

  • DNA use is common in criminal and parentage cases
  • How a biological father may be ruled out as the legal parent
  • DNA alone may not be enough to resolve a custody dispute.
  • DNA testing, pre-birth, in gestational carrier and surrogacy arrangements.

Parentage Cases
When a person executes a Voluntary Acknowledgement of Parentage that person is deemed the legal parent, even if another comes forward, who is a DNA match and seeks to exercise parental rights. Recently, the Nebraska Court confirmed the man who tested positive as the biological father, had no parental rights to that child. Jesse B. v. Tylee H. (In re Adoption of Jaelyn B.), 293 Neb. 917 (2016). No pun intended: a Voluntary Acknowledgment of Paternity trumps the results of the DNA test.

Likewise, the U.S. Supreme Court acknowledged when a child is born to unmarried parents, even if the father’s DNA is a match, that man may not necessarily be deemed the legal father under the law. Or, simply put: DNA does not a parent make.

Custody Disputes
DNA may or may not be helpful in other areas of the law. A parental claim does not require a genetic relationship with the child. The Massachusetts S.J.C. recently recognized the former partner in a same-sex relationship as a legal parent. Partanen v. Gallagher, (MA October 4, 2016). The parties, a same-sex couple, broke up after a committed long term relationship. They never married, the children were conceived through assisted reproduction technology, and the petitioner never adopted the two children conceived and born during their relationship. The Court concluded the lack of a biological relationship did not bar one from being deemed the legal parent, relying upon M.G.L.Ch. 209C § 6(a) (4). (man presumed father of child born out of wedlock if jointly with mother received child into his home and openly held child as their child). The moral of the story: rely upon no one’s word, make it legal: marry or adopt.

It has been suggested that DNA testing would establish whether the placement of a child for adoption, triggers the Indian Child Welfare Act (“ICWA”). Nevertheless, a genetic determination is not enough to establish whether that particular child is an Indian Child subject to ICWA because each tribe has its own set of rules to determine who is an Indian Child. The takeaway: DNA results are not always the answer.

Gestational Carrier and Surrogacy Arrangements
To avert miscalculations and mix-ups, DNA testing prior to the birth of the child as soon as a DNA test may be done, should be mandatory in gestational carrier and surrogacy contracts. If the DNA test comes back negative, the carrier/surrogate misled the intended parents. Any others deceived would be the rest of the story!

Nov
28

Andy Warhol: “In the Future, Everyone will be World-Famous for 15 Minutes!”

Recently, I appeared before the Massachusetts Appeals Court. While most attorneys do not try cases, very few have the opportunity to appear before the Appeals Court. I have been honored to have appeared a handful of times. And each time, I remain in awe of how formal the process is and how exhilarating it feels to argue a case on appeal.

First, the Rules of Appellate Procedure (“Rules”) are very precise about the form of the written brief filed with the Court. The Rules dictate the size of the font, the margins, the color of ink and paper, the size of the paper, type of spacing, even where and how to bind the brief. Writing the brief is a painstaking process, months in the making to ensure that each argument is cogent and tight, and every legal citation in proper form.

Once the brief is filed, it’s time to prepare for the oral argument. Each party to the case is given its “15 minutes” of fame, so to speak. For those brief 15 minutes, I spent hours, upon hours, upon hours, preparing my argument and, equally important, preparing and anticipating the questions the judges would ask me, all the while recalling my motto: “be prepared, be prepared, be prepared, and then, prepare!”

The Appeals Court usually consists of a three judge panel. Each judge and his or her law clerks will have already read my brief, and likewise the judges are poised and prepared to interrupt me with questions. The last time I appeared, I had just finished introducing myself when I was interrupted. I never returned to my prepared argument but I was prepared for their relentless questioning.

The timing of my allotted fifteen minutes is extremely formal and precise. On the podium, ahead on me, are three lights: green, yellow, and red. When I start my argument, the green goes off, with one and a half minutes left, the yellow goes off, and, at the end of my fixed fifteen minutes, the red goes off; even in the midst of thought, I must stop and thank the judges.

Ready, set, show time. My case was called for 9:15 a.m. at the Boston Court House. I live in Newton, and knowing that the Boston morning commute is horrible, I decided, for this normal 35 minute ride, I would leave extra early (“being early, is being on time”) and left my house at 7:00 am. Surprisingly there was no traffic that morning; I parked the car and arrived at the courthouse at 7:45 a.m. After an interminable wait, the case was finally called at 11:45 am. My opponent, the Appellant, who actually filed the appeal, went first and was peppered with questions from the outset. When it was my turn, I started my introduction, and was ready to be interrupted with questions, yet, not one judge asked me a thing! After 7 minutes, the Chief Justice asked if I had anything further to say, whereupon, I said thank you, and sat down. All that preparation, and no peppering!!!

Three weeks after arguing, the Court ruled against my opponent making all the pain and angst worthwhile.

Nov
28

Volunteer Without Fear

With the arrival of the holiday season, many of us plan to volunteer to give back to the community. There is no shortage of those in need, and countless opportunities to lend a helping hand to those less fortunate. As valuable and admirable as your volunteer efforts may be, you could be subject to liability as a volunteer.  So before you head out to serve food at a shelter, sort donated clothes, visit with a senior citizen or veteran, or help deliver gifts to children, take a moment to learn how or if you may be held liable for your volunteer activities.

Volunteers working for an organization, especially those in health care, can be subject to liability. Fortunately, both state and federal laws offer certain liability protection to volunteer professionals. On the federal level, volunteers are protected under the Volunteer Protection Act, which since 1997 has provided all volunteers for not-for-profit organizations and government entities with protection from liability for harms caused by their acts or omissions while serving as volunteers. This federal law pre-empts any conflicting state law although many states have enacted broader protections. In order for the law to apply, the volunteer must act within the scope of his or her responsibilities, be properly licensed by the state (if applicable), the harm must not be caused by willful or criminal misconduct, gross negligence or reckless conduct, and further that the harm must not be caused while the volunteer was operating a motor vehicle. It is important to note that these liability limitations apply only to the volunteer, and not the organization.

Some states have laws in place to add additional protection to volunteers, such as a charitable immunity law or a Good Samaritan law. Generally, Good Samaritan laws protect health care professionals providing care in emergency situations, while charitable immunity laws protect health care professionals who provide non-emergency care for certain charitable organizations.

Massachusetts has a law that caps the amount awarded as damages against a charitable organization, which in effect protects the assets of these charities. A cap of $20,000 applies to not-for-profits for torts (an act or omission that results in injury) committed in the course of any activity carried on to accomplish directly the charitable purposes of the organization. The charitable cap statute has been upheld in a negligence action against a hospital involving a slip and fall that occurred because of snow and ice buildup on the hospital’s parking lot. Recently, in 2013, the cap was increased from $20,000 to $100,000 for not-for-profit health care providers involving medical malpractice claims, in an effort to facilitate settlement. Massachusetts also has several volunteer protection statutes which shield liability from civil damages of a director, officer or trustee of a not-for-profit charitable organization, a volunteer serving as an elder care coordinator or counselor, a physician, nurse or veterinarian acting as a Good Samaritan providing emergency care and athletic volunteers serving a not-for-profit organization.

Volunteering during the holiday season, or any time of the year can be a very gratifying experience whether you are a professional giving your time and talent to an organization or just a generous person trying to help a particular cause. It is reassuring to know that there are protections in place at the state and federal level to shield liability of volunteers and
not-for-profit organizations. While the laws in place cannot prevent volunteers or organizations from being sued, they certainly make it more difficult for a plaintiff to prevail in recovering damages.

Nov
28

Help Your Case Hold Water By Documenting

The theory of a case without supporting facts is just that — a theory — nothing more. I experienced this for the first time about a year ago as a student attorney in the Family Advocacy Clinic in law school. I was sitting across from my professors excited to tell them what I sincerely believed to be a convincing theory of my case. When they questioned, “what facts do you have to support it” my mind searched for an answer, but I had no reply. I envisioned my theory looking like a once full tub now rapidly draining. At that moment, I truly learned that supporting facts are the linchpin of a legal theory’s ability to hold water. To uncover these facts, I needed to conduct a fact investigation. This bath tub analogy resonated with me and as a newly minted associate transitioning into practice, it continues to be an indelible lesson.

Cases and clients are all unique, meaning fact investigations for each case vary depending on its nature and complexity. The best source to help facilitate and expedite fact investigation is the client. In my very green legal career, I have worked with clients who retained no records, clients who kept detailed records, and clients who fell somewhere in between and it is fair to say that where more detailed records are available, the more effectual the fact investigation.

No scientific formula exists for performing fact investigation, but for those who anticipate litigation in the future, there are ways to help the case “hold water.” One good habit is to keep all records, such as bills, bank and credit card statements, tax returns, receipts, and the like, storing them physically or electronically. While keeping documents can help streamline fact investigation, not retaining certain documents is not likely to be particularly damning. However, the same cannot be said for specific events that may help bolster a theory.

Often, a series of specific events that occurred can help strengthen a theory, but unlike documents, which are more concrete, more easily traced, and more easily reproduced, recollections of events are fleeting and can only be found in the memory of the person who experienced it. This is particularly true in family law, where the majority of theory development is rooted in the information the client reports. Details of events dissipate over time, lose value, and can eventually become unrecoverable. For these events to be germane to a legal theory, they must be documented soon after they are perceived to preserve the details and clients should be encouraged to do so, for example by maintaining a journal or log.

My professors used to constantly remind me to “document, document, document,” as a case unfolded. What is needed in a fact investigation can be unpredictable, but the more facts that can be documented the better because you do not usually know which facts will be relevant until the case fully evolves. This advice is not only applicable to lawyers, but is also useful for those who are in the midst of or anticipating litigation. Maintaining records and documenting might not be regular habits for most, but in litigation, these habits can help promote efficiency and economy in litigation by making fact investigation a collaborative effort between client and lawyer, and can most certainly impact the outcome of the case.

Oct
27

Voting

Years ago, my mother would proclaim that in Chelsea, her home town, they would declare: “Vote early, and vote often!”

This year, on October 26th, I voted early. Massachusetts’ foray into early voting stems from a 2014 law, which stipulated that all municipalities must have at least one voting location open during business hours ahead of a general election.

However, this was not my first experience voting prior to Election Day. Decades ago, when I was in law School in Washington D.C., I exercised my constitutional right to vote, as stated in the US Constitution Amendment XV, which was ratified by the states in 1870: “Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” via an absentee ballot. It was, at that time, very exciting knowing that I could be away from my home and still exercise my rights, and have my vote counted on Election Day.

Today, the process was very similar to my absentee ballot in that I filled out my ballot, put it into an envelope, sealed it, and then signed the envelope; of course, instead of mailing, it was placed into a secure bag at City Hall to be counted on Election Day. As always, after voting I got a sticker, which I proudly wore. However, I must admit, that on election night I always go home, and watch the results on television…..now I must wait!

Having the option to vote early made the process easier, which can help increase voter turnout and encourage all to exercise their constitutional right just as I did last night.

Sep
27

Misclassifying Workers as Independent Contractors

Massachusetts has one of the most employee-friendly independent contractor laws in the United States. Under the Massachusetts Independent Contractor Law, which is also stricter than federal law, Massachusetts General Laws, Chapter 149, Section 148B, a worker will be considered an employee unless the employer can show that all three prongs of the independent contractor test has been satisfied:
1. The worker is free from control and direction with the performance of the service, both under contract, and in fact;
2. The worker provides a service that is performed outside the usual course of business of the employer; and
3. The worker is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

The Attorney General’s office has issued guidelines, including several factors considered to be strong indicators of misclassification which include, workers who provide services for an employer that are not reflected in the employer’s business records, workers paid “under the table”, insufficient or lack of workers’ compensation coverage, workers who do not receive 1099’s or W-2s, workers who do not pay income taxes and employers who fail to contribute to the Division of Unemployment Assistance.

The statute has been construed very narrowly by the courts, and most workers will not meet the test for independent-contractor status. The net result is that it is nearly impossible for Massachusetts employers to classify a worker as anything other than an employee. Why are some employers willing to take the risk to misclassify their workers? For financial gain, and an unfair competitive advantage, of course. Because when they do so, employers avoid paying holiday, vacation, and overtime pay; Social Security and Medicare contributions, unemployment insurance, workers’ compensation; and income tax withholding obligations. Employers who violate the statute are liable for damages, as well as civil and criminal penalties.

So if you have a job but you get paid without taxes being taken out of your paycheck, you probably have a claim for money damages. In fact, if you believe you have been wrongly designated as an independent contractor, you may be eligible to file a claim for treble damages for any lost wages, overtime and other benefits and attorneys’ fees under the Massachusetts Wage Act, by filing a Non-Payment of Wage and Workplace Complaint Form with the Office of the Attorney General. Employers beware: the risks and penalties for misclassifying workers are significant and far reaching.

Aug
08

Have you read the Sunday’s August 7, 2016, Globe Magazine????,

Shame on David A. Gross for his callousness and glaring lack of knowledge!!! Anyone who has been touched by adoption (who hasn’t??? now that the dark days of secrecy are gone) knows that NO ONE GIVES UP A CHILD FOR ADOPTION. THERE IS NO SUCH THING. When a parent makes an adoption plan for his/her child, that parent is giving him/herself the gift of selflessness and courage to recognize that now is not the time for that parent to raise a child. (Shame on social workers and others involved in the placement for not emphasizing these aspects!) No one gives up a gift. That parent is also giving the child a gift with a forever family and the adoptive family the gift of a life. No one gives up a gift!!!!!

David Gross as writer and public radio producer should know better before he sets his words out for others to read and hear. One three page article and he dishonors well thought out decisions, weighed down with pain and sadness.

Bravo for Laura Flanagan for persevering through to learn more about the circumstances of her placement, and assisting others. And, of course, each circumstance is different and the tenor of reunions vary. But one thing is accurate: The truth may hurt, but it will set you free.

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