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Tuesday, October 20, 2015

New York Electrician Will Leave Light on for Divorce Attorney

By: Peter J. Lamont, Esq. | UTLRadio.com
October 20, 2015

Take a walk around the Staten Island and Brooklyn Courthouses and you will find hundreds of flyers posted on sign posts, parking meters and in other prominent places all seeking one thing, a qualified divorce attorney willing to barter services with a licensed electrician. Anthony Davino, a 49-year-old electrician, licensed in New York and New Jersey, has taken to the streets in the hopes of finding an attorney to help him through the remainder of, what has turned out to be, an emotionally and financially draining divorce.

Davino has been without legal representation since his second lawyer quit because Davino was unable to afford the $30,000 fee requested by the attorney for continued representation. According to Nicholas Rizzi (@nickr15), in an article posted on dnainfo.com, Davino said, "I'm pretty much dead in the water. The only thing I have left is my skill, and there's got to be a lawyer who I can barter my services with." (https://www.dnainfo.com/new-york/20151016/st- george/local-electrician-trying-barter-his-services-for-divorce-lawyer)

Reportedly, Davino has been battling his wife through divorce proceedings after he allegedly caught her “cheating”. Davino is reported to have spent over $200,000 on legal fees, alimony and child support as he continues to fight for custody of his 11-year-old daughter and 9-year old son.

While Davino has taken a unique approach to finding representation, this unfortunate scenario is played out daily throughout the country. Every day good people who cannot afford an attorney find themselves mired in legal troubles. While there are times that non-lawyers can do a good job representing themselves, there are so many legal matters that require the assistance of an attorney. For example, small business owners are required by law to be represented by an attorney. It is also extremely difficult to represent yourself in divorce proceedings as they are complicated and extremely emotional.

As an attorney myself, I understand the need to be compensated for your skill, effort and time. However, should greed override compassion? I say, “No.” The unfortunate reality is that some attorneys see clients as a revenue stream only. They charge excessive fees and as quickly as they sign up the client they also terminate representation when the client can no longer pay the bill.

So how can attorneys strike a balance between being fairly compensated for their work and providing quality representation to clients whose pockets may not be that deep? One solution is by providing alternate fee arrangements to certain clients. Alternate fee arrangements can include hybrid billing, where a client pays a flat fee for some services and an hourly fee for others; value or success based fees; and even through bartering agreements.

Many attorneys scoff at the idea of bartering services while others mistakenly believe that bartering is unethical. The reality is that it is not. In a recent ethics opinion, the Connecticut Bar Association Standing Committee on Professional Ethics advised that "lawyers may participate in
a barter exchange program and provide legal services to clients in exchange for receiving barter currency . . . rather than being paid for the services in cash by the client." http://www.thelawforlawyerstoday.com/2015/10/can-lawyers-barter-their-services-ethics- opinion-says-yes-and-it-may-be-a-trend/

The recent Connecticut opinion follows other states’ ethics opinions, including the New York State Bar Association (1994), the Utah State Bar (1997) and the North Carolina State Bar (2010). See also Alabama State Bar Office of General Counsel (2001); Florida Bar (1984, rev. 2011).
So, in the case of Anthony Davino it is possible for an attorney to trade services with him so long as the attorney complies with New York Rules of Professional Conduct. Now he simply needs to find an attorney who needs to have some electrical work done. Hopefully, for Anthony Davino his innovative, yet "old-school" approach pays off. In fact, it already may have as reports suggest that at least one attorney has already contacted Davino. (https://www.dnainfo.com/new-york/20151016/st-george/local-electrician-trying-barter-his- services-for-divorce-lawyer)

Peter J. Lamont, Esq. is a New Jersey Business & Contract attorney and the host of UTLRadio.com, a business and legal podcast and video program. Contact: pl@pjlesq.com. Visit UTLRadio.com for business and legal information.

Wednesday, October 14, 2015

How to Vacate A Default Judgment | UTLRadio.com

By Peter J. Lamont, Esq.

Did you know that there is a way out of a default judgement if one's been filed against you? I'm going to tell you how you can vacate a default judgement.

In a prior video, we've explained what a default judgement is, and it's essentially when you fail to answer or otherwise move when you're served with a summons and complaint. The plaintiff obtains a default judgement against you, meaning that whatever relief they've requested in their complaint, is being granted simply because you didn't respond.

How do you vacate a default judgement? Well, good news. First of all, the courts favor litigating cases on the merits, as opposed to giving someone a default, especially when money is involved. Here's how you do it: you have to file a motion to vacate the default judgement. There are two things that must be in every motion. It's going to vary from state to state, but in the majority of states, you've got to be able to show two things.

One: excusable neglect, a reason why you didn't answer the complaint, for example, you weren't served on time, you never received a copy of the summons and complaint. Two: a meritorious defense, meaning you've got to be able to show the court that you do have a defense and that there's a reason for them to vacate the default because you can defend the claim, because of a meritorious defense. It's just a tangible or real defense. Whether or you can prove it's a separate thing, but as long as you can show the court that you've got some defense, then they're going to vacate the default judgement.

There are times that you should not attempt to do this on your own, and that's the majority of the time. Quite frankly, I'm not a big believer in saying that every legal matter that pops up, you need an attorney for, because the truth is, is that a lot of things you can handle on your own, but once you've been served with a motion of default or a default judgement or any of those things, it's gone beyond the stage that you should be handling it.

In another video we talk about when you should handle something on your own and when you should not. Assuming that it is a relatively high judgement against you, and relatively high depends upon on your level of comfort; for some people a thousand dollar judgement may be really high, for others it's a ten thousand dollar judgement that's really high. You've got to gauge your level of comfort. In general, I always recommend consulting with an attorney when you have a default judgement against you, because, like I said, you're at the end of your rope. All they have to do now is seize your bank account or garnish your wages, and then you're really stuck and it's a lot more difficult to get out of that hole.

If you have a default, you can file a motion to vacate, like I explained, but it's always a good idea to talk to an attorney. I hope that you understand now a little bit of the dynamics of how to vacate a default judgement. If you'd like more information or if you'd like to see a sample motion, I encourage you to pick up the phone and give me a call. My telephone number is 973-949-3770, or you can e-mail me directly at plamont@perterlamontesq.com. I'm available to take your calls, to answer your e-mails. I really want to help you understand the law.

Until next time, don't forget, subscribe. Click the button below to like this video. Share it with your friends if it's helpful. Don't forget to look at the iTunes App Store to download our free app, which is available for iTunes and the iPad, and it allows you to ask questions directly to an attorney in our office, get an answer, and it's all free. Thanks for joining me, and I'll see you next time.

If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at pl@pjlesq.com Offices in: New Jersey & New York.

© 2010-2015, Law Offices of Peter J. Lamont & Associates. © 2015 Insight Consultants, LLC. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Friday, October 9, 2015

Why won't an attorney take my case on a contingency basis?

By: Peter J. Lamont

A common question that I receive all the time is, "Why won't an attorney take my case on a contingency basis? I see it on the news all the time that an attorney will accept a contingency fee, but why won't an attorney accept my case?" Inside today's video I'm going to answer that question for you.

Today, we're going to be looking at a question that I get all the time. In fact, I just received a telephone call about it yesterday. I had someone call me up and say, "I've been sued, and I just don't have the money to hire a lawyer to pay hourly. I need somebody that will take this case on a contingency basis. I've called 15 lawyers, and nobody will accept the case. I don't understand why. At this point I just want to know why no lawyer will take this on a contingency basis." I spent some time with her, and I explained it to her, and that's what we're going to talk about today.

Contingency fees that attorneys advertise are primarily for collection cases, when you are the one that is owed the money, and personal injury cases. A contingency fee is essentially an agreement by the attorney that he or she will take a percentage of what you ultimately recover. The standard percent is 33-1/3%. It can vary in different states, and it can vary between you and your attorney. Maybe your attorney has agreed to a lower percentage. The point here is that the attorney agrees to get paid for his or her work based upon a percentage of what you ultimately recover in your lawsuit.

Just as an aside, understand that attorneys will generally always require the client to pay for actual fees or costs, not attorney's fees, not paying the attorney, but if you need to file a complaint, and it's $150.00, they'll pass that cost along to the client in most cases. If you need to hire an expert witness, they're going to pass that along, too, as well. A contingency fee arrangement means that you don't have to pay your lawyer anything. Your lawyer is investing in your case, taking a gamble, a chance on your case because if they don't recover for you, they're not going to get any money.

In the case of the woman that called me yesterday, she was being sued. She was being sued for, I don't know, something over $15,000.00. She wanted an attorney to take the case on a contingency basis, and no one would do it. She didn't understand why, and I explained it to her. The reason is because the attorney can never get paid for his or her work when you're defending a claim because there's no money that you're going to be entitled to. The reason that no attorney would accept this client who called yesterday is because they can't get paid. They can't recoup their money or their time because there's no money to be had because that person's being sued.

Contingency fee cases only work when there is the potential for recovery. After, of course, I explained it to the woman, she completely understood and decided to handle her defense pro se, meaning on her own. I gave her a little bit of guidance, and I think she'll be okay. That's the distinction. That's why attorneys don't accept every case on a contingency fee basis because they need to pay overhead, the lawyers that work with them, their staff, and if there's no hope of getting paid on a case, then it's a pro bono case, not a contingency fee case.

I hope that that clears up some of the confusion about when a lawyer will accept a contingency case and why you might be running up against an obstacle where an attorney will not accept your case. If you have more questions about this topic or any topic, please feel free to contact me. You can reach me by telephone at 973-949-3770 or e-mail me at plamont@peterlamontesq.com. I'm always here to answer your questions.

Please don't forget to subscribe to the YouTube channel and that way you're notified when new videos are posted. I also want to let you know I really do appreciate all the comments and feedback that I receive from you guys. I read and respond to every comment made, and I would like you to keep them coming because it helps me provide you with better content, content that you need or that you're looking for answers about. Thanks, and thanks for joining me today. I'll see you next time.

Wednesday, October 7, 2015

Representing Yourself: Can You Hire a Lawyer to Help with Portions of the Case? | UTLRadio.com

By: Peter J. Lamont, Esq. - New Jersey Business Attorney & Host of UTLRadio.com

Today I want to talk about something that has come up recently. A number of phone calls have come in and it's been from pro se litigants, people that are representing themselves in a lawsuit. One of the questions that has been very popular is, is it possible to handle a portion of my lawsuit by myself and then try to get an attorney to come in and maybe appear at a court conference or help me with settlement negotiations? Is that something that can be done? 

When you're representing yourself there are certain things that you find easier than others. One of the things that I always think is more difficult for a pro se litigant to do is to appear in court or to negotiate a settlement on their own behalf. It's particularly difficult to negotiate your own settlement because there's really no buffer. If the other side is saying to you, "Will you take this?" you can't go back and say, "Hold on, let me talk to my client." I guess you can but you'd probably have multiple personality disorder. That's not going to work. Having an attorney help you negotiate a settlement, that's really beneficial.

To answer the question, is it something that you can do? Can you bring an attorney in later on in the case to help you with particular sections of the case or tasks? The answer is yes, but let me make you aware of one thing. When an attorney comes into a case they have to submit papers to the court to let the court know that they're going to be formally or officially representing you. In doing so they become attorney of record for that case. Basically what that means is now they're obligated to handle your case, your matter, in a professional manner, in a way that an attorney should represent a client. They can't just show up for a negotiation or show up in court and then say, "I'm done," without a formal understanding between you and them of what the expectations and limitations are.
When you're going to retain an attorney for a limited-scope task you have to make sure that you're very clear with the attorney. You have to say to him or her, "I want to hire you to do this." That way they can give you a limited retainer and they can explain to you, "Here's what's going to happen. My representation of you will terminate at this point." If they become attorney of record in a case you might have to substitute them as council back to yourself and that's something that you're going to have to work out with the attorney before you or they agree to help you with your case.
Another thing that people often overlook is the idea of ghosting, a lawyer who might help you write or review legal documents on the back end, where they're not necessarily attorney of record. They're just helping you with some of your demands and maybe your complaint, maybe a motion. Maybe they're helping you with some research, but your name goes on the paper. They're not formally representing you in court. That's something else that can be done.
I think it's a good question and it's good knowledge to have because a lot of times I think a pro se litigant says, "I tried to get a lawyer at the beginning of the case. They were too expensive. They weren't interested in my case," and then they give up. They say, "I couldn't get one for the beginning of the case. Why would somebody come in now?" I just want to let you know that hiring a lawyer later on in the case to help you with particulars in that case is something that you can do. You just have to find the right attorney.
If you have questions about this topic or any of the topics that you hear us discuss please feel free to contact me. You can do so at info@UTLRadio.com. Also, don't forget to subscribe to our podcast on iTunes and our YouTube channel because we're constantly providing free business and legal content, giving you updates, how-tos, instructionals, and things of that nature that you could find helpful.

In fact, if you go to UTLRadio.com right now there's a link on the page that provides you with a free download, the Top 10 Tips of Legal Writing for Non-Lawyers. It's a good little booklet. It gives you the top 10 things to avoid and the top 10 things you should be doing when you're doing your own legal writing. Check that out, it's free, at UTLRadio.com. 

Tuesday, September 29, 2015

Do Small Business Owners Need an Attorney to Review their Commercial Lease?

Most small business owners often act as their own legal counsel for a variety of what they consider to be “simple” legal matters.  Such “simple” matters often include reviewing and negotiating commercial property leases.   While I firmly believe that a lawyer is not needed for every small business legal matter, reviewing a commercial lease is one of those matters that should almost always be done by an attorney.  In response to that statement, many small business owners would say, “But why? Aren’t most leases just form documents anyway - there is nothing to negotiate”   

While its true  that many commercial landlords use form documents, it is not true that there is no room for negotiation.  More importantly, just because a lease is a form document doesn’t mean that there are not adverse provisions in the lease that you might want to avoid.  In the course of my career I have seen thousands of commercial leases. Most of the small commercial leases are based off of standard forms. However, I would estimate that almost 75% of small business commercial lease agreements are modified, to some extent, by the landlord or his/her attorney. 

A commercial lease is not something that a small business owner (or anyone for that matter) should sign without having a complete understanding of the terms and conditions.  Often times, small business owners feel compelled to take the first commercial space that looks “good enough” and fits their budget. They simply sign the lease without understanding the implications of the lease, their rights or obligations.  A qualified attorney can help a business owner fully understand their obligations and remedies under the lease and help him/her decide whether the lease is worth signing.  

So, what are some of the things that an attorney will be able to assist small business owners with relative to a commercial lease agreement? Well, before I answer that questions I must point out two important issues. First, most leases are negotiable even if the landlord says he is not willing to negotiate. Second, in my opinion there is no property worth signing a unfavorable lease for. Now let’s get into the issues that an attorney can help identify and protect small business owners from. 

Slanted Leases It is a fact that most commercial leases are “slanted” in the direction of the landlord. An attorney is trained to examine the lease provisions and determine which ones are so one-sided that they need to be modified.  Sometimes a lease is so one-sided and the landlord so unreasonable that no matter how “perfect” the space is you you should walk away. 

Personal Guarantees Personal guarantees can sometimes be “hidden” within the body of the lease.  I have spoken to many small business owners who didn’t realize that they had signed a personal guarantee until they were being sued personally by the landlord. When you sign a personal guarantee you are agreeing to accept personal responsibility for debt, liability and other situations.  A personal guarantee can eliminate all protections that you might have had from your corporate structure (i.e. LLC, Inc.)

Common Area Maintenance Fees (CAM) It is really important to make sure that your CAM is not dependent upon the total rented square feet.  Rather, it should be based upon the total rentable square feet.  This is extremely important because astronomical CAM fees have put many small businesses out of business.  

Competition There are few things worse than moving into your new space only to find out that the landlord just rented the space across from you to a competitor.  An attorney will be able to make certain that the landlord will not be permitted to rent to your competition. 

“Dangerous” Tenants  I don’t mean that the tenants are”dangerous” in the sense that they could cause you bodily harm, rather I mean that whatever they are selling could have a negative impact on your business.  For example, I was involved with a client who was a pediatrician.  This doctor had negotiated her commercial lease without an attorney.  She was one year into her ten year lease when the landlord rented the office next to hers to a magazine publisher and photographer who published and photographed pornography.  Even though they were not photographing nude models in the hallway, the pornographic element was enough to cause many families to find a new pediatrician.  

Negotiations  Under most circumstances you will get more accomplished if an attorney negotiates your commercial lease than if the small business owner or his/her real estate broker attempts to do so.  


It is important to remember that there is really no such thing as a “small” or “simple” commercial lease.  A landlord-slanted lease has the potential to damage your business, sometimes beyond repair.  While there are many legal and quasi-legal matters that small business owners can handle on their own, reviewing and signing a commercial lease is not one of them.  

If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at pl@pjlesq.com Offices in: New Jersey & New York.

© 2010-2015, Law Offices of Peter J. Lamont & Associates. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.
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