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LEGAL AFFAIRS
LEGAL AFFAIRS A Cleveland Jewish News Special Section
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LEGAL AFFAIRS
Consider options before signing contract BECKY RASPE | SPECIAL SECTIONS STAFF REPORTER @BeckyRaspeCJN braspe@cjn.org |
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ome might not realize it, but contracts and agreements are signed every day. It could result from updating a computer or telephone, signing a release at the physician’s office, applying for a job or swiping a credit card at lunch. According to Tod Northman, counsel at Tucker Ellis LLP in Cleveland, and Art Elk, managing member of Elk & Elk in Mayfield Heights, if someone is concerned about signing a contract, it doesn’t hurt to consult an attorney. “You want to know if you’re getting Elk what you expect from the relationship,” Northman said. “Depending on the type of contract we’re thinking about, frequently the contract is a variance of what you thought you were getting and a lawyer could be invaluable for that.” Northman said a lawyer also could help identify risks you may not have been aware of and help you recognize alternatives to signing a contract. Northman Elk said if options are considered before signing, it’s possible to negotiate more favorable terms. “Exploring other options may also help you avoid arbitration clauses, which can force you to give up your
legal rights if something goes wrong,” he said. For example, Elk said in personal injury claims, many victims are rushed and pressured by insurance companies to sign off on a settlement and release from further action. “Victims should never accept these initial terms and should always review their options with an attorney,” he said. “Their injuries may involve chronic components that aren’t apparent right away and signing such a contract could be detrimental to the victim’s ability to pay medical bills or collect wage loss. Injury victims should also consider their options before signing a fee agreement with an attorney to be sure they won’t be on the hook for case expenses or expert fee necessary to prove their case.” Northman said lawyers are necessary for this situation because they play the role of being an advocate for their client. “They can help you understand the language of the contract which may not be obvious if you’ve never been through that situation,” he said. “A litigator will have practical experience.” Elk also pointed out a lawyer’s role in helping a client understand confusing language. “Many people sign contracts without reading them and find themselves bound to terms they don’t understand or weren’t prepared to accept,” he said. “It’s not a defense to a breach-of-contract action to say that you did not read the contract, so it’s critical to make sure you understand every aspect before signing any contract.” The attorneys said technology has changed the way society approaches contracts and agreements, as oldfashioned signatures aren’t always required anymore.
“Online this can be in the form of click-through agreements and terms and conditions,” Elk said. “These types of contracts are generally just as enforceable as more traditional contracts, so consumers need to be aware of what they are agreeing to when they sign up for or purchase things online.” Because of smartphones and software updates, Northman said consumers become exposed to contracts in more ways than before. “You as a consumer are left with a choice if they want this product or not, not if they agree if the terms are fair,” he said. “People can’t slip through and it’s almost a burden to get to the bottom of 20-page terms and conditions. You can’t negotiate it, and people do it without thinking of it as a contract even though it is.” A client should ask for help with anything he or she is uncomfortable signing, both attorneys suggested. “It never hurts to have an attorney review a contract of any type before you sign it, but it’s especially important to seek the opinion of a lawyer for contracts that involve injury settlements or negotiations with insurance companies or large transactions like home purchases and nondisclosure agreements,” Elk said. “Contract reviews aren’t typically very expensive and can save you a lot of money in the long run.” Northman said, “Anything that is of great importance to you, you should consult an attorney. Anytime you can negotiate a contract is an opportunity you should take.” Elk added, “All parties involved give up something when signing a contract and you never know when the party you’re dealing with may be trying to take advantage of you.”
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APRIL 20, 2018
Pre-planning can help protecting estate in divorce resolution BECKY RASPE | SPECIAL SECTIONS STAFF REPORTER @BeckyRaspeCJN braspe@cjn.org |
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ouples in the process of a divorce have many things on their minds, but an estate plan may not be one of them. According to Bill Beseth, associate attorney at Taft Stettinius & Hollister LLP, Patrick Saccogna, partner at Thompson Hine LLP, and John Harrison, attorney at Beseth Hickman and Lowder, all in Cleveland, individuals should meet with an estate planner after a divorce has been finalized. “In the event of a divorce, you want to do your estate Harrison planning to make sure all of your designations are clear,” Harrison said. “How do we do estate planning? A lot of it is done through beneficiary designations or who it pays to upon death. Saccogna But if that’s still under the spouse’s name, that could go somewhere you don’t want it to go. You want to come up with a list of your assets that are titled in your name and do the planning around that.” Beseth said redoing individual estate plans is the best thing for divorced couples to do. “The general concern is making sure your former spouse doesn’t receive your assets after you’ve been divorced,” he said. “Depending on how certain designations are made, it could cause additional problems or costs even if the spouse isn’t receiving your assets. Divorced individuals should create a new estate plan as a single person. In addition to doing that, they should revisit all of their beneficiary designations and update those as well.” Saccogna said getting legal counsel before marriage can be helpful.
“There is so much planning they can do to define their rights before they get married,” he said. “They can do that by doing a prenuptial agreement. And if they don’t have the chance to do that before marriage, they can do things during the marriage to help protect separate property. The separate property is the property each spouse owns before they enter the marriage and any gifts they receive personally.” Beseth said, “A prenuptial agreement could assist with some of this. No one makes an estate plan in a happy marriage with the anticipation of divorce, but if one spouse has significantly more assets or a potential family inheritance, those things should be discussed.” Harrison said co-mingling can be a big issue when trying to sort through joint estates. “There can be litigation about what portion, if anything of a joint home, is someone’s separate property,” he said. “But it can potentially be protected from the spouse.” Saccogna said co-mingling is typically when divorcing couples get caught up and make mistakes. “If they end up combining their assets together, like owning a home before the marriage and adding their spouses’ name to the deed, the idea is married couples have the opportunity to keep their separate property separate during the marriage,” he said. Beseth said attorneys can help divorcing couples review their documents and make sure no unwanted outcomes occur. “When meeting a new estate planning attorney, go over these things and provide the attorney with the divorce agreement or judgment so its terms are incorporated as they need to be in their estate plan so you’re not in violation of the divorce decree,” he said. “There needs to be some coordination with the attorney that represented them in the divorce or provide the estate attorney with that information, so they can follow it.” Harrison said, “This is all going to be worked out with the domestic relations attorney and will all be followed up. But (couples) need to at least cooperate, and I know that can be difficult.”
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Due diligence leads to successful workers’ compensation filing BECKY RASPE | SPECIAL SECTIONS STAFF REPORTER @BeckyRaspeCJN braspe@cjn.org |
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hen someone suffers a workplace injury, it’s common to file for workers’ compensation. It’s a common practice, but it can be complex. According to Benjamin Wiborg, associate attorney at Nurenberg Paris, and Geoffrey Turoff, partner at Dworken & Bernstein, both in Cleveland, the first thing victims should do is immediately report injuries. “Someone gets injured on the job, the first thing they do is report that to their employer,” Wiborg said. “Then, they should seek medical attention and once they do that, the medical provider will likely fill out the first report of an injury. That starts the process. It lists all the info about the incident. Once it is filed and signed, it’s sent to the bureau (Workers Compensation Commission).” Turoff said the most important part is to immediately report the injury. “If there is a policy with the company spelling out the expectations for work injuries, they have to follow that policy the best they can,” he said. “If there is an incident report they should file, they should do that immediately and keep
a copy if possible. The second most important thing is to go to the ER and get checked out as they can document medically what is wrong with you.” Wiborg said following those steps exactly is the best approach. “Also, keep the story consistent,” he said. “Changing the story can be confusing and could cause an issue down the road.” After doing the proper filing, Turoff said getting representation is an important part of the process. “People who are hurt at work should remember it’s an adversarial situation,” he said. “The employer is going to be represented by someone who knows the lay of the land and knows it well.” There are ways claims could be delayed and even denied. Both attorneys noted many issues could be avoided by following the process and doing so on time. “One example is someone is hurt at work and they don’t want to be a complainer so they don’t report it as a work injury,” Turoff said. “Sometimes, it can go unexpectedly, and they are off work for an extended period of time.
But by then, it may be too late because if they’ve already gone through the process and described it as not happening at work, it can be really difficult for them to later say it’s work related.” Wiborg said a common issue is a delay in reporting the injury or confusing a prior injury with a work-related one. “If someone reports a knee injury, but they had another knee injury prior, it can be difficult to attribute if the injury is a product of the incident,” he said. “When you have those overlapping injuries, it can get a little tricky.” Wiborg noted there is a specific process after filing. After filing the claim, a decision gets made either granting or denying it. “Once that decision is made, the party can appeal the decision which is the injured and their rep and the employer and their rep,” he said. “If the bureau denies a claim, I would appeal it for my client. It would then go to a hearing at the industrial commission, which is a created body to hear disputes for a worker’s compensation claim.” Turoff said it’s important for people to remember even if their employer is eager to help them with the claim, there’s a chance it won’t get accepted.
Turoff
Wiborg
“Even if the employer isn’t fighting the claim, the Workers Compensation Commission may be,” he said. “Even if someone is self-employed or tight with their company, that does not guarantee it’s all going to go the way they want it to go.” Wiborg said contacting an attorney as soon as possible is encouraged. “It’s easier for us to prevent things from happening instead of fixing things that have gone wrong,” he said. “What most injured workers don’t realize is that they can get treated at any medical facility of their choice. They are often sent to a doctor the employer chooses. That is to their advantage – having an objective independent doctor.”
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Workplace danger – employees’ social media habits BECKY RASPE | SPECIAL SECTIONS STAFF REPORTER @BeckyRaspeCJN braspe@cjn.org |
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s people share almost every aspect of their lives online, businesses find themselves doing damage control over employees’ internet practices. According to Jon Hyman, partner of the labor employment practice at Meyers, Roman, Friedberg and Lewis in Woodmere, and Michael Stovsky, partner and chair of innovations, information technology and intellectual property group at Benesch in Cleveland, employers should consider creating social media policies to keep employees conscious online. “There is still a huge misunderstanding about the divide between business and the personal and private,” Hyman said. “If you ask most employees, they would tell you that what they do and say online off-duty is or should be off-limits to their employer. And if you ask most employers, they’d say what their employees say on or off-duty is fair game. It’s too easy to figure out where someone works. Once you put that puzzle together, there is too great of a risk of reputation harm to businesses because of what employees do.” Stovsky said businesses were more worried about efficiency when the internet was in its infancy, but now are more worried about security.” “People were trying to get used to the internet then, but since then, things have changed as it’s become more of a legal issue,” he said. “Using social media through the workday has become problematic because the issues have changed. Issues like data security and privacy risk have come at the forefront of everyone’s concerns and when employees are at their desk unsupervised and using company services to visit their social media outlets, you have other risks because you’re using a system that can put the company at risk.” Both professionals said there are a number of ways employers can begin drafting social media and online policies. “Any policy needs to be drafted with an eye on what the company’s culture is,” Hyman said. “One aspect of a workplace social media policy is a note to employees about who they can connect with online. Part of it is going to be a function of workplace culture and to decide how much risk you want to embody in your policy through things like that.” Hyman suggests businesses run their policy by an attorney before rolling it out, especially if it uses online resources to draft it. “You don’t know when (the resources) were drafted, who drafted it and what
Hyman
Stovsky
state it was drafted in, as these laws differ from state to state,” he said. Stovsky said, “You want the policies to be specific and address a concern you have. A lot of companies go online and look for policies that may look good, but have no bearing on what you need. You want them to be reasonable and in line with the actual things you practice.” According to Stovsky, a large part of implementing an online policy is employee education. “Policies don’t mean a lot if your employee base doesn’t understand them,” he said. “As we move along in years and use of the internet by employees, we can learn a lot. We can teach employees how to spot a phishing scam that might put their personal data at risk. The vast majority of data security breaches do not arise from malicious hackers getting into your machine, it’s fake emails.” Hyman said employers and employees alike need to understand the divide between the personal and professional no longer exists. “(Employees) need to run everything they type online through that social/ business/workplace filter,” he said. “I’m very active on social media. While everything I write on social media may not be business related, it at least goes through the filter of me thinking if I could hurt my business or practice with (a post.) And if I have any hesitation at all, that’s something I’m not writing. There is no longer a personal or professional – it’s one persona. Employees need to consider how this persona could impact their future.” Stovsky said, “Employees that go online and say things that reflect their personal views could lead to a negative reaction from a customer. It’s important that people always think about what they are writing and saying and how it will be viewed by someone looking at it from another perspective. No one wants to stifle their employee’s speech, but there is a practical reality of the world and that’s living with a little bit of caution.”
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BakerHostetler names new chair of firm BECKY RASPE | SPECIAL SECTIONS STAFF REPORTER @BeckyRaspeCJN braspe@cjn.org |
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akerHostetler has elected Paul Schmidt, leader of the firm’s national tax practice and its international tax team, chair of the firm, effective Jan. 1, 2019. Schmidt, who grew up in Cuyahoga Falls, said his selection for the role by his partners is an “overwhelming” honor. “Being native to the greater Cleveland area, it was especially meaningful to me to be selected as chair of BakerHostetler, a firm with a rich history founded in Cleveland more than 100 years ago and tracing its roots back to former Cleveland Mayor and Secretary of War Newton D. Baker,” he said. Schmidt’s appointment follows Steven Kestner, who served as chairman for 15 years, stepping down at the end of the year. Kestner said he thinks the appointment will serve the firm well into the future.
Haas joins Latham & Watkins’ NY office ED CARROLL | STAFF REPORTER @EdCarrollCJN ecarroll@cjn.org |
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leveland native Michael Haas has joined Latham & Watkins’s New York office as partner in the finance department and a member of the real estate practice. He will also serve as global co-chair of Latham’s real estate practice. Haas previously was with Jones Day, where he co-led the firm’s real estate practice. “Michael is a recognized market leader in real estate private equity and finance, and we are delighted to welcome him to the firm,” said Michèle Penzer, office managing partner at Latham & Watkins Haas in New York, in a news release. “His experience advising on large and complicated (mergers and acquisitions), private equity and financing transactions across industries and asset classes will be of tremendous value to our clients not only in New York, but around the globe.”
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“Paul joined the firm in 2004,” he said. “In his practice, he counsels CEOs, CFOs, boards and audit committees on all aspects of their financial Kestner Schmidt dealings and as a member of the firm’s policy committee, our governing body, he has critical insights into and understanding the firm’s strategic needs, priorities and vision for the future. “In appointing Paul, we have selected a leader who embodies the growth, success and culture of the firm,” he said.
Schmidt said he will continue to contribute to the success of the firm as chairman. “BakerHostetler has an unwavering commitment to providing superior service to its clients and I intend to continue that tradition,” he said. “The firm has doubled in virtually every metric over the last decade under the leadership of Steven Kestner and the policy committee. I plan to continue that trajectory of smart, strategic growth in key practice areas and geographies, including potentially international expansion.”
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In the news release, Haas said, “Latham’s capabilities and reputation across practice areas and jurisdictions allows for a level of client service that is necessary to executing today’s increasingly complex real estate transactions.” Haas told the Cleveland Jewish News on April 18, he will commute from Cleveland to New York, and continue to reside in Pepper Pike.
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What you need to know about prenups, postnups
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ANDREW ZASHIN
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hen it comes to marital finances, usually we think of three major types of contracts between spouses: prenuptial or antenuptial agreements entered into before a marriage, postnuptial agreements in the absence of a divorce/dissolution and separation agreements incident to a termination of marriage in Ohio. Most readers have likely heard of a prenuptial, or antenuptial, agreement. Also known more casually as a “prenup,” this agreement is used to clarify – before the nuptials – how certain assets and liabilities will be divided if the marriage ends in divorce or upon death. Romantic, right? But it can be a very useful and important tool. A prenuptial agreement may also specify what spousal support will look like upon a divorce, and how certain assets will be treated upon the death of one party. It is most often used to protect assets that a party brings into the marriage, but it can also be used to protect a spouse against the debt of the other. And, it can also be used to protect the inheritance of children from a prior relationship. If you are considering a prenuptial agreement, you will want to keep a few points in mind. First, it is important that both sides make full disclosure to the other of all assets and liabilities. This disclosure should be embodied in the document, usually as an attachment. Second, the other side should have a meaningful opportunity to read, review, and understand the document, and to consult with an attorney prior to signing. It is important that the document be signed of each party’s own free will, without any fraud, duress or coercion. Please do not surprise the other side with a prenup two days before the wedding. Third, the terms of the agreement cannot encourage profiteering from a divorce. Fourth, know that spousal support terms contained in a prenuptial agreement are not necessarily binding if they are unconscionable at the time you are seeking to enforce them.
But what if you failed to get a prenuptial agreement before the marriage? Maybe the marriage is on rocky ground and it seems like a good idea to get some things in writing. Perhaps you want to take some of your premarital money or inherited money and use it to purchase a marital home and you want to make sure you are able to get it back if you divorce. Maybe you want to go into business with a family member and you want to clarify how that business will be treated. All of those and more are reasons that have prompted couples to think about postnuptial agreements. It may sound tempting to whip up a quick contract that both spouses will sign. After all, a signature is binding, right? Not so fast. You will do much better to document any of these types of events and keep financial records in case they are ultimately needed in a court case, as postnuptial agreements simply are not valid in Ohio. A notable exception to this rule is an agreement for purposes of separation. Generally used for a settled divorce, dissolution or legal separation, a separation agreement will typically encompass some agreement on all financial terms, including division of assets, debts, and other financial issues, and any ongoing financial support. That agreement will then be enforceable in the divorce court and will be attached to any final decree.
Andrew Zashin writes about law for the Cleveland Jewish News. He is a comanaging partner with Zashin & Rich, with offices in Cleveland and Columbus.
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APRIL 20, 2018
Collateral consequences of mere accusations LARRY ZUKERMAN
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ollateral consequences exist if a person merely accuses you of criminal conduct. I previously detailed many of the collateral consequences that result from criminal convictions; some believe deservingly so. Many consequences exist from being accused of wrongdoing. Zukerman In today’s age of civil rights protection and aggressive enforcement of police and governmental misconduct, who would believe that innocent people could suffer great indignity if merely charged or accused of an offense? A great paradox exists in our yearning for justice and equal enforcement of the laws and our seemingly irreconcilable, “Hawthornesque” need to punish those who we believe committed an offense, based upon a mere accusation. No more illustrative of this conundrum is O.J. Simpson and Harvey Weinstein. O.J., acquitted of killing his ex-wife and her friend, Ron Goldman, and Harvey Weinstein, convicted in the court of public opinion and yet, not formally and criminally accused of any sexual offenses. These publicized individuals illustrate the hypocritical application of our lives. Less newsworthy people suffer the same ostracism every day, even though not convicted or acquitted of criminal conduct. • Loss of employment: Many employee handbooks outline the reasons why employers can either fire you from your job, demote you, move you to a different position or temporarily suspend you, with or without pay. The rationale exists this policy protects the worker from harassment or more importantly, his/her co-workers from harm. The possibility of civil liability because the employer allowed this person to remain as part of the work force outweighs his/her right to work and provide support and medical insurance to his/her family. • Right to education: Public and private colleges utilize Title IX
procedures to expel students from its campuses. Title IX empowers and requires public universities and private colleges to remove/expel students from classrooms, laboratories, and/ or campuses. Remarkably, this occurs if someone is accused of off campus conduct that either results in a criminal accusation or not. The removal/ expulsion of the student requires the student to obey this order because the school strikes his/her name from the class rosters. The remedy available to the student allows him to participate in a long and very one-sided administrative appellate process and if necessary, to litigate the matter in court. Often, students overburdened with school loans are unable to financially shoulder this process and attempt to navigate the legal process without competent legal counsel. • Loss of Reputation/Friends: People accused of crimes of sexual assault will carry this stigma with them, even through an acquittal or dismissal of the charges/case. Unfortunately, our society has adopted its own moral compass as a substitute for the court of laws to assuage the complainant. While this perceived politically insensitive statement may offend some, it remains true nonetheless. Society adopted an “everybody talks” mentality to undermine due process rights to make people “feel better” about the results. Many reasons exist why triers of fact acquit people or where no one is charged – innocence remains high on that list. We should not forget the principles upon which our forefathers founded this country and the reason why our ancestors sought refuge here. The Freedoms upon which our country and government rely define us as the greatest nation in the world. Let’s make this principle true by firmly respecting these freedoms to ensure the continuity and full expression and pleasure of our democracy.
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