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Leading Legal Professionals 2017 Q&A

May 16, 2017 11:26AM ● By Cate Reynolds

Commonly asked questions answered by our local professionals

How do I pick the right attorney?

Hiring the right lawyer is one of the more important decisions you will make in your life. They can help you protect your family, minimize your liability, make others accountable, get you good results in a divorce or custody matter, and make sure your loved ones are taken care of after your death. Some people pick lawyers like they buy airplane tickets; cheapest price and fastest route. When you hire an attorney, learn who that attorney is, feel comfortable, and check the attorney out. See what prior clients think of the attorney and how they were treated. While you may have anxiety in the process, you need an attorney who you can trust, lets you sleep better, and is someone who you believe will do the best for you.

Samuel J. Brown, Hillman, Brown & Darrow, P.A.

I am constantly retained by folks who have had someone do renovation or construction work or repair work on their homes. After the work has gone bad or at some point during the job, the homeowner comes to me and says they are not doing what they are supposed to do! What to do?

As I have said for almost 40 years, it costs a lot less money to check out the status of someone with whom you’re contracting as opposed to litigating the issue after the fact. Anytime you are thinking about contracting with someone for any services, materials, supplies, or repair work at your house, always run a quick search online with the available Maryland State databases to verify the status of the contracting party and to determine whether or not they have licenses with either MHIC or any of the other DLLR required licensing entities. Of course, any attorney can verify this information for you quickly and easily and it avoids a lot of problems down the road.

Michael P. Darrow, Hillman, Brown & Darrow, P.A.

Why undergo business succession planning?

Effective planning creates a sustainable platform to guide the company forward under a solid management team and an ownershipstructure that reduces uncertainty. Business succession planning offers stability, can help minimize the chances of conflict, helps to prepare the next-generation of leaders ahead of time, serves as a powerful hiring and retention tool, and helps assure maximum financial flexibility at a transition event, while minimizing related tax burdens. Consider an attorney who has team to handle every aspect of your transition, including Stock and Asset sales, Trusts, Valuations, and Contingency Plans.

Stephen A. Oberg, Managing Director, Council Baradel – Attorneys at Law

I am under contract to buy real estate, and my title report shows the property is subject to easements and restrictive covenants.What should I do?

Many parcels of real estate are subject to easements or covenants that restrict how a property may be used. These easements run the gamut from routine utility easements, to complex covenants that restrict the location, density, or type of allowable development. You or your advisor should carefully examine all the recorded easements and covenants to ensure that the restrictions are compatible with your desired use and development of the property.

Benjamin S. Wechsler, Linowes and Blocher LLP

What is a donor advised fund?

A donor advised fund is a simple and flexible way to give to charity now, or to create a source of funding for charitable giving by future generations of your family. Under federal tax rules, if a donor’s control over a fund owned by a charitable organization is limited to giving advice, and the charity is not obligated to follow the donor’s advice, then the contribution to the fund is deductible as a charitable contribution if the other requirements for deduction are satisfied. The fund can be a great tool to bring families together to agree on annual charitable gifts.

Frank Campbell, Holden & Campbell

Are there special considerations for High Asset Divorce Cases?

At our firm, we regularly handle a substantial number of high-asset divorce cases. Such cases have special considerations, including ensuring the use of court processes to facilitate the preservation of the property from dissipation or misuse. High asset divorces can involve complex questions for equitable distribution including tax consequences and evaluation. If your divorce involves substantial assets and varied financial resources, it is advisable to seek tax and legal counsel as soon as practical.

Kendall Summers, Esquire, Kendall Summers Law, The Good Divorce Network

How does a person who is about to become involved in a family law problem select the right lawyer?

1) Start by checking the lawyer’s rating in Martindale-Hubbell, a publication which rates attorneys based on evaluations from one’s peers. 2) Inquire of friends who have been through a similar situation. 3) Inquire of lawyer friends you may have. 4) Ask people at the courthouse who work for the court in the family law division. 5) Confer with more than one lawyer to make certain that you are comfortable with the person selected. Lawyers are not “one size fits all.” Determine what you are looking for—super aggressive, cerebral, or warm and fuzzy. Look for someone who is responsive in getting back to you, who will not delegate duties to others, and who specializes in the issues that are likely to be involved in your case. This is a very important decision — select wisely.

Ron Naditch, Ronald M. Naditch, P.A.

What can a lawyer do for me if I’m injured in a car crash?

Your lawyer can perform numerous services for you (many free of charge), including handling the property damage settlement on your car or settling the total loss and getting you into a rental car. The lawyer will interview witnesses while the accident is fresh, including the investigating police officer, can obtain the light sequence from the State Highway Administration, take measurements, look for physical evidence which can win your case, such as skid marks or crash debris, can run tag traces, and find witnesses to the crash. Your lawyer will also coordinate paying the doctors either through health insurance or Personal Injury Protection Coverage (PIP) and can arrange treatment with a quality doctor without an immediate out-of-pocket payment from you. Your lawyer will also be able to maximize the available insurance coverage available to you by coordinating different insurance policies that you may not even know exist, will know the value of your case for settlement purposes, can advise you on litigation strategy, and should be able to obtain the maximum value for your case. Remember, you only pay if a lawyer wins your case. So contact the lawyer immediately after the happening of any car crash.

Rick Jaklitsch, The Jaklitsch Law Group

The Court has ordered me to go through mediation before trial; what should I expect?

Most jurisdictions now require mediation as a pre-condition to trial. The parties meet with an attorney or retired judge to determine if they can settle their differences. The decision is voluntary. A compromise almost always is a difficult challenge for all parties to accept, but is often preferable to the grind, expense, and risk of trial. The most important difference is control. In mediation, you make the final decision. In court, a judge or jury makes the final decision.

Rignal W. Baldwin, BaldwinLaw LLC

Why is a trust helpful?

A trust can address a myriad of issues. For example, a parent may want to establish a trust for a young or disabled child. By placing the child’s inheritance in trust, the parent can provide a structure that protects the asset from being wasted by inexperience. A trust allows assets to be managed for the child’s benefit until the child reaches a certain age or maturity level when the child will be better equipped to manage property. In addition, a trust can provide protection to an inheritance while still allowing a disabled child to qualify for government assistance. A trust for a child can also protect an inheritance from the child’s creditors or potential creditors and can insulate the inheritance from being divided in a divorce action.

David E. Sessions, Law Office of Frederick R. Franke, Jr. LLC

Why is it important to seek advice from an attorney as soon as possible about a potential claim?

Memories are generally more accurate when fresh and tend to fade over time. If you consult with an attorney promptly, there is a greater likelihood that you will remember more facts and will be able to provide the attorney with more details regarding your potential claim. Many, if not most, cases also involve documents, electronically stored information, or other objects or things that can be used as evidence if claims are pursued. Prompt consultation with an attorney increases the possibility of preserving evidence that might otherwise be lost or destroyed. Prompt consultation with an attorney is also important because lawsuits asserting claims also must be filed within time limits established by law, and failure to file within the applicable time limits prevents recovery of damages.

Kathleen Howard Meredith, Iliff, Meredith, Wildberger & Brennan, P.C.

Will Maryland courts award custody of a child to persons other than the child’s parent?

The answer to this questions is “YES,” if the court finds that custody or child access is in the best interest of the child. In a recent case, Conover v. Conover, the Maryland Court of Appeals, reversed the holdings in earlier cases, which prioritized parents over third persons, including grandparents, as appropriate custodians. Under the old standard, either “special circumstances” were needed or both parents being found to be “unfit,” for a court to have authority to award custody to a third person. Under the Conover case, the Court may award custody if it finds it is in the “Best Interest of the Child.” Among the factors the courts will review are whether the child has a parental relationship with the third person, such as step-parent or grandparent.

Kendall Summers, Esquire, Kendall Summers Law, The Good Divorce Network

What is a Power of Attorney? Should I have one?

A Power of Attorney is a legal document naming a person to step into your shoes if you are unable to make financial or medical decisions for yourself. The document only works for you while you are alive and usually when you are incapacitated. By having this legal document, you will avoid a guardianship proceeding. You name someone whom you trust to act for you and also name a back-up if he or she is unavailable. A different person can be named to handle your financial and medical decisions. Anyone over the age of 18 should have a Power of Attorney.

Nicole Livingston, SinclairProsser Law, LLC

Is there any uniform advice that you give to clients facing litigation?

My best advice is usually “don’t do it.” Anything that you can do to avoid the time, cost and acrimony of litigation is usually the best avenue to solve your legal problem. Utilize every resource to avoid litigation and fashion a resolve of your problems by your own hand and/or agreement. If you must litigate, give it 100 percent of your time, energy and resources…and win.

Joseph T. Touhey, T. Joseph Touhey, P.A.

What should I expect from my lawyer in litigation?

Litigation results after a lawsuit has been filed. While litigation can often be avoided, there are instances where the court has to be utilized. Competent legal counsel should advise you throughout the process. In advising you, your lawyer should not be a cheerleader;he/she should clearly communicate the pros and cons of the factual and legal landscape of your case. Litigation is unpredictable, but your lawyer should be able to advise you of the approximate costs and benefits in pursuing certain strategies in litigation.

Jeffrey P. Bowman, Gormley Jarashow Bowman, LLC

What Asset Protection Laws are available in Maryland?

In Maryland, an “inter vivos QTIP trust” can now be used for asset protection. Under this new law, one spouse may create a trust for the other spouse, but retain the right to receive income or principal back if the donee spouse dies first. The rules are very precise, but if followed carefully, the trust is not subject to the donor’s creditor claims. For example, a high-risk spouse could create this trust for a low-risk spouse with spendthrift provisions and fund the trust with nonretirement assets.

Randall D. Fisher, Fisher Law Office

What factors are important to consider when designing an estate plan?

Although everyone should have an estate plan, some situations require more intensive efforts. Succession planning for a family business, farm, or legacy property, such as a vacation home, requires close consideration of matters such as taxes and governance. Second marriages often pose unique issues and may call for a document (such as a pre-nuptial agreement) that defines marital rights at death. Special precautions need to be taken to preserve an inheritance for a family member with a disability, particularly if he or she relies on government benefits. Asset protection for legatees involved in high-risk professions is an increasingly important issue. Estate, gift, and income tax planning remains important. However, the most important factor is the goals and family dynamic of the individual doing the planning.

Jack K. Beckett, Law Office of Frederick R. Franke, Jr. LLC

If I am pulled over for Driving Under the Influence of Alcohol, should I take the field sobriety tests or breath test?

While there are many factors related to a person’s ability to absorb and metabolize alcohol, generally speaking if you have consumed more than a very mild amount of alcohol or consumed any illegal drugs, you should not submit to either the field sobriety tests or the breath test. These tests are completely voluntary, and you have the right to decline to participate in these tests. If you choose to perform these tests, understand that you are providing the State of Maryland with evidence that it can use to prosecute you in court if you are accused of DUI or DWI. If you have a Maryland driver’s license, you will incur an administrative penalty (such as a license suspension) from the MVA if you submit a test of breath of .08 BAC or higher, or if you refuse to take the breath test; however, an administrative penalty is far less serious than the consequences of a conviction in court for DUI or DWI, which carries the possibility of jail time and lengthy (and expensive) probation.

Jennifer M. Alexander, Esquire Brassel Alexander & Rice, LLC

How long after an injury or death do I have to file a medical malpractice lawsuit?

In Maryland, the time to file medical malpractice litigation, also known as the Statute of Limitations, is generally 3 years. You can review this law at §5-109 of Md. Code, Cts. & Jud. Proc. Article. If the injury is not immediately known, victims have 3 years from when the injury is or should have been discovered. But, absent special circumstances, a lawsuit must be filed within 5 years from the date of the malpractice. Common cases where there is a delay in discovering an injury often involve cancer that should have been found earlier. To make things even more confusing, in cases involving children, the time to bring a lawsuit starts running when the child turns 18 years old regardless of when the injury occurred. If you think you or a loved one is a victim of medical malpractice you should take action immediately. If your case is past the statute of limitations, no attorney in the world can fix it!

Debbie Potter, Potter Burnett Law Group

Can I require my current employees to sign a non-competition agreement or did I have to have them sign when they were hired?

Assuming your employees are “at will” (whereby they may be terminated at any time for any reason), you can require them to sign a non-competition agreement regardless of when they were hired. While such agreements are generally enforceable, the courts narrowly construe their terms. Employers must make sure all restrictive covenants are reasonable in scope and duration and drafted to protect their legitimate business interests. Overly broad restrictions will not be upheld. Your employees must sign the agreement for it to be enforceable. If your employee refuses to sign, you have the right to terminate.

Jonathan Kagan, Kagan Law Group

My brother and I are trustees of a Trust created by our father. I just found out he withdrew money from the Trust for his own personal use, and he is now ignoring my calls. What do I do?

Your brother may be in breach of his fiduciary duties as a trustee. It will depend on the exact terms of the Trust Agreement executed by your father to establish the Trust, including who the beneficiaries are and what standards govern the actions of co-trustees. If your brother refuses to provide information or cooperate, you may need to seek emergency relief from a court to prevent any further harm to the Trust and/or the beneficiaries, and you will need the assistance of a lawyer who litigates trust and fiduciary claims.

Michael Marinello, Kagan Law Group

Under current Maryland law, can a couple obtain a divorce quickly if they have both executed a complete Marital Settlement Agreement?

Under new laws that recently went into effect, if a married couple does not have minor children, and they have completed and executed a Marital Settlement Agreement that covers all issues of property division and support, they may file at any time for a divorce with a Maryland Circuit Court, in a county with appropriate jurisdiction to hear the case. If the married couple has minor children, the law continues to require a year separation before obtaining a divorce on “no-fault grounds,” although the 2017 Maryland General Assembly has been considering revisions to this requirement.

Kendall Summers, Esquire, Kendall Summers Law, The Good Divorce Network

What should I do if I get into a car accident?

If you are involved in an auto accident it is very important to (i) call the police; (ii) exchange information with the at-fault driver getting insurance information, driver’s license number and tag number (with the advent of smart phones — it is super easy to simply take pictures of all of these things); (iii) take a picture of the property damage and the location of the accident; (iv) seek medical treatment, and (v) contact a lawyer.

John Leo Walter, Esquire, Eastern Shore Legal

Beyond criminal penalties, what sanctions can be imposed by the Motor Vehicle Administration if I have been charged with a drinking and driving offense?

The MVA may impose several different sanctions on an individual who has been arrested for driving under the influence of drugs and/or alcohol. These can include suspending a person’s driving privilege from six months to two years depending on your blood alcohol content and/or refusal of an intoximeter test. An individual can also be ordered to equip their vehicle with an ignition interlock device, commonly known as a “blow-and-go.” The administrative process is extremely complicated. Competent legal counsel is required to navigate through the intricacies of the MVA and, ultimately, help you obtain a positive outcome.

Jesse F. Hicks, The Shipley Law Firm