A Privileged Thanksgiving

Well, we are one day away from Turkey Day. America's annual tribute to gigantic helium balloon animals, parades, football and family dysfunction. Ah, the holidays.

It is in the vein of cynicism I write simply because it ties in nicely to a topic that goes well with intra-familial disputes- the husband-wife privilege. If you watch Law and Order or the other courtroom dramas (which I do not, since I see no need to have my job also become my entertainment), you have no doubt heard about the attorney-client privilege. You know, "Objection, your Honor. My client is not required to answer. It's protected by the attorney-client privilege."

Like the attorney-client privilege which prohibits inquiry into the contents of the communications between a lawyer and his client, the husband-wife privilege expressly recognizes that the relationship between spouses shares the same sort of sanctity. Communications between a husband and wife are not properly the subject of inquiry in a lawsuit.

The purpose? To foster open communications in marriages. It would be troubling to have husbands compelled to testify against their wives and vice versa. When discussing this the other day at a party, a friend (who is not in the legal business) asked why Tony Soprano, then, never told his wife about what was going on.

And that's where we come to the exception. Tony didn't tell Carmella about the crimes he was committing because they were crimes (and they live in New Jersey, which may not have the same express privilege we have). If he told her, she could be an accessory to the crime and be charged. In some states she could even be compelled to testify and thereby subject herself to perjury. The long and the short of it here is, the privilege is unassailable so long as you stay within the bound of legal conduct. If you come home and tell your wife that you stole the neighbor's lawn gnomes, you might start running afoul of the protection afforded by the law.

Have a happy Turkey Day!!

More weird laws

• Weird laws

  For those of you who haven't had the pleasure, I occasionally publish weird laws just to remind you that this is sometimes a funny and imperfect system. Oh, that and I don't feel much like working this week. So, here's what I've got for today.

  Big Pine Key

• It is illegal to molest a Key deer. If caught one will be fined or will have to go to jail.
  
  

  Cape Coral

• It is against the city ordinance to hang your clothes outside on a clothesline.
  
  
• It it illegal to park a pick-up truck in your driveway or in front of your house on the street. This law is limited to only those who do not own the house. (Repealed 2000)
  
  

  Daytona Beach

• Sec. 10-56. While intoxicated, under influence of narcotics, prohibited. It shall be unlawful for any person to swim or bathe in that portion of the Atlantic Ocean within the corporate limits of the city when under the influence of intoxicating liquor or narcotic drugs to the extent that his or her normal faculties are impaired. (Code 1955, § 28-64)
  
  
• Sec. 18-2. Weeds, trash, etc., as a public nuisance; removal by property owner or by city at owner's expense; notice and hearing; lien for expenses. (a) The existence of weeds, trash, undergrowth, brush, filth, garbage or other refuse on any lot, tract or parcel of land within the city which has caused the property to become, or which may reasonably cause the property to become infested, or inhabited by rodents, vermin or wild animals, or may furnish a breeding place for mosquitoes or threatens the public health, safety or welfare, or may reasonably cause disease or adversely affects and impairs the economic welfare of the adjacent property, is declared to constitute a public nuisance and is hereby prohibited.
  
  
• Sec. 22-44. Storage, depositing prohibited. It shall be unlawful for any person, either as owner, occupant, lessee, agent, tenant, or otherwise, to store or deposit, or cause or permit to be stored or deposited, any abandoned, junked or discarded motor vehicle or motor vehicles upon any public or private property within the city. (Code 1955, § 20-11)
  
  
• The molestation of trash cans is banned.
  
  

  Hialeah

• Ambling and strolling is a misdemeanor.
  
  
• Sec. 3-1. Bird sanctuary declared. (a) It is hereby declared that all territory embraced within the corporate limits of the municipality shall be a bird sanctuary. (b) It shall be unlawful for any person within the municipality to shoot, trap or in any manner kill, wound or maim any bird of any kind, or at any time to throw at any birds of any kind any missile with slingshots or any other weapon, or to disturb their eggs or their young or their nests. (Ord. No. 8-59, §§ 1, 2, 8-10-59)
  
  
• Jupiter Inlet Colony Inlet
  
  

  Key West

• Chickens are considered a 'protected species'.
  
  

  Miami

• Sec. 8-3. Bell or other warning device. No person shall operate a bicycle unless it is equipped with a bell or device capable of giving a signal audible for a distance of at least 100 feet, but no bicycle shall be equipped with, nor shall any person use upon a bicycle, any siren or whistle. (Code 1967, § 8-3; Code 1980, § 8-3)
  
  
• It is illegal for men to be seen publicly in any kind of strapless gown.
  
  

  Pensacola

• A women can be fined (only after death), for being electrocuted in a bath-tub because of using self-beautification utensils.
  
  
• It is illegal to roll a barrel on any street, fines go up according to the contents of the barrel.
  
  
• Citizens may not be caught downtown without at least 10 dollars on their person.

Something Different

Happy Wednesday. Ordinarily - as you know - I dedicate this blog to all matters legal that I think might impact you or your business. Today, I've decided to use my time to tell you about something I just ran into at the bookstore. That's right, I am shilling for a cause.

I stopped by Border's on my way back from a meeting. At the counter, I saw that for the ridiculously low sum of $2.99 you can donate a book to children in need. That's right - books!! Paper, ink and binding. You almost forgot they existed, didn't you?

I like this cause and, at the price, who can say it's too much. Giving children the opportunity to read and learn for $2.99 is something I think men, women, democrats, conservatives, republicans, liberals, religious zealots and agnostics can all agree is a great cause.

So, stop by your local Borders and give kids the chance to learn. It costs less than Starbucks - not that I want you miss out on your afternoon caffeine jolt.

P.S. - Borders is not a client and I get nothing for this. In fact, Borders doesn't even know I'm doing this.

Unpaid

It's late Monday again, people. Time for another week of work and....well, work.

It's been quite a year for many of us. Many lost jobs or investments and entire industries collapsed. Many posed questions to me about what to do about unpaid wages. There are a lot of you out there who have not been paid for days, weeks or months. It's a terrible fact of the economy - your boss is in financial trouble, too.

Someone I spoke with the other day about his unpaid wages thought that calling me was futile. "How can I sue, if I don't have the money for a lawyer? This is how my boss gets away without paying his employees," he grumbled.

Alas, friends, there is hope! Like I've told you over and over again, attorneys' fees are borne by each party to a lawsuit and you do not get to recover yours from the adverse party if you win -UNLESS you have a contract that says so or a specific statute authorizes it.

Well, guess what? In Florida, if you have to sue to recover your unpaid wages, the law recognizes that you might not have the cash on hand to hire lawyers and file lawsuits. So, the law authorizes your recovery of fees from the employer if you prevail. Nice.

Today's Maxim

Hello, everyone. For Wednesday, I found the following a funny case headnote

85k9 k. Principles and Maxims

The maxim "de minimis non curat lex," the law does not concern itself with trifles, applies even to constitutional claims, and its function is to place outside the scope of legal relief the sorts of injuries that are so small that they must be accepted as the price of living in society rather than made a federal case out of.
People v. Durham, 391 Ill. App. 3d 1100 (Ill. App. Ct. 2009)

A Friday Quickie

Ladies and Gentlemen:

Because I have back to back meetings today and clients who need stuff done before the weekend, I thought I would share a brief, but important legal maxim I cam across and which all of you should note:

Mere speculation does not constitute proof.
Andrade v. United States, 116 F. Supp. 2d 778 (W.D. Tex. 2000).

Too often we find ourselves fighting and litigating over the things our imaginations conclude us to believe must have happened or are going to happen without using the facts to support or refute our positions.

With that, I return to my labors. Enjoy your weekend!

When It Seems Too Good To Be True

My apologies to those of you that live outside of the South Florida area, but this is the story that's been rocking the community for the last 5 days for anyone tied to the legal industry. The article below is from the Sun Sentinel website and falls under the category of "It Could Only Happen In South Florida."

FORT LAUDERDALE - Attorney Scott Rothstein returned to Fort Lauderdale on Tuesday after contemplating suicide amid mounting allegations that he misappropriated hundreds of millions of dollars from an investment business he covertly ran out of his law office.

Stuart Rosenfeldt, the president of the Rothstein, Rosenfeldt and Adler law firm, said he was told that Rothstein met with federal prosecutors after his chartered plane landed at Fort Lauderdale Executive Airport.

Rothstein's arrival came four days after he sent a desperate text message to his law firm's five partners indicating they wouldn't see him again.

"Sorry for letting you all down," he wrote. "I am a fool. I thought I could fix it but got trapped by my ego and refusal to fail and now all I have accomplished is hurting the people I love. Please take care of yourselves and please protect Kimmie (Rothstein's wife). She knew nothing. Neither did she nor any of you deserve what I did. I hope God allows me to see you on the other side. Love, Scott."

For much of Tuesday afternoon, speculation ran rampant over where Rothstein would show up. Within 30 minutes of his plane touching down, Fort Lauderdale police officers, some wearing bulletproof vests, surrounded every entrance of the downtown tower housing the law firm. Rothstein did not appear.

Nor did he show up at a late-afternoon court hearing in which a retired Miami-Dade judge was appointed as the financial overseer of the 150-employee law firm that its attorneys say only has $500,000 in its operating accounts. That's barely enough to cover the next paychecks of staff and clerical employees. Many of the firm's remaining attorneys have agreed to waive their salaries for now.

"We've been learning more by the hour, and by the hour, it's getting worse," said Kendall Coffey, the former U.S. attorney who is representing the law firm. The law firm filed suit against Rothstein on Monday, accusing him of misappropriating money from an investment business he ran out of his private office.

Within the past year, Rothstein has had a meteoric rise in South Florida's political, business and nonprofit worlds, spending millions during a recession that forced other local law firms to make cutbacks.

For the first time on Tuesday, more details began to emerge about just how much money was sunk into Rothstein's investment business, which guaranteed a minimum of 20 percent investment returns in as little as three months.

Banyan Income Fund, a Fort Lauderdale-based hedge fund, invested at least $300 million with Rothstein, according to sources with knowledge of the firm's business.

Fort Lauderdale attorney William Scherer confirmed he is representing clients who lost $72.5 million. Miami attorney Mark Raymond said he has spoken to a group of New York investors who are out $36 million.

In addition, the first investor lawsuit was filed Tuesday against Rothstein, Rosenfeldt and Adler by an Aventura company that says it lost more than $3 million.

"We have very little sense (of what's happening) other than clearly something has gone very wrong," said attorney Alexandra Sanchez, who is representing FDS Investments USA LLC.

Investors over the weekend began raising questions about what happened to their money. Rothstein's whereabouts during those tumultuous days remained a mystery, and even his attorney said he didn't know where in the world his client was.

Rothstein's law partners all got the Oct. 31 text message, and Rosenfeldt talked to Rothstein, urging him to "choose life."

Rothstein said he had three options--kill himself, live life "on the lam as a fugitive" or go to prison and risk being killed there because he has made enemies, Rosenfeldt said.

Rothstein returned about 12:50 p.m. Tuesday, landing in a chartered jet at Fort Lauderdale Executive Airport. Flight tracking records show that about the time Rothstein arrived at the airport, a chartered Gulfstream V jet from Casablanca, Morocco, touched down. The same jet flew from Fort Lauderdale to Casablanca on Oct. 27.

Rothstein's attorney, Marc Nurik, could not be reached to comment Tuesday night. Nurik had vowed that Rothstein "would straighten this thing out" once he returned.

Fort Lauderdale police surrounded the office tower housing Rothstein's law firm after receiving a call that lawyers there had "some concerns about their safety," said Sgt. Frank Sousa, a Fort Lauderdale police spokesman.

"Better safe than sorry," said Rosenfeldt about his firm's call to police.

A few hours later, Streitfeld named retired Miami-Dade Circuit Judge Herbert Stettin to be the firm's receiver, responsible for approving the firm's day-to-day financial decisions. Rosenfeldt will be responsible for the firm's legal decisions.

The ruling freezes Rothstein out of the firm.

"He has twice chosen not to appear (in court), he has in my opinion, for now, relinquished his authority," Streitfeld said.

Or as Coffey later said, "He is O-U-T, out of the picture."

I'll Find It

Last week, I sent out a "discussion" about what happens after you get your judgment. So, what about the other side of that coin. What if you are the person against whom a judgment is entered? You own some investment property with a couple of partners, Partner A loses her job and, all of a sudden, you guys can't make your mortgage payments. You get together and decide to let the property lapse into default and then foreclosure. Like so many other people I know and have met in the course of my day to day practice, you think the bank will take the property and call it a wash.

Those days, my friends, are over. Property prices have fallen, people have stopped buying and banks do not want to incur the costs of ownership (property taxes, maintenance, garbage collection, etc.). In case you've been living in a cave for the last year and a half, the banking business is looking for the same thing you are- money.

So, before you let that property go or end with any judgment against you for any reason, you should know that the entry of a money judgment against you allows for the person who sued you access to all of your financial information. You heard right. Once a judgment is entered, the plaintiff gets to ask (and you have to disclose) the whereabouts of your assets, your bank accounts, your investments, your future earnings.

This is invasive and it is meant to be. Once you turn over this information, the plaintiff then gets to send the "sheriff" (Miami-Dade County has an office of the sheriff but no real sheriff to speak of) and seize your assets, sell them at public sale and keep the money it generates.

You also get to fill out a Court-approved form that asks you identify all of your assets. If you don't, the Court can compel you to do it. The Court can then make these assets subject to seizure, as well.

This is a tough situation for anyone to be in. There is an entire practice of law devoted to the protection of assets against the potential exposure to and seizure of assets. Of course, if you find yourself already in litigation, it's too late. The time to protect your assets is before there is trouble. If you do it after litigation starts, it can been deemed a fraud on your creditor.