Never say never

My excitement about Blakely’s impact on the Federal Sentencing Guidelines was tamped down by my sense that the federal judges in my district seemed to like the guidelines most of the time.  Departures were rare except for “substantial assistance” situations and it often felt as though upward departures were more common.
In a sentencing this week, a client received a non-guideline “reasonable” sentence that would have been reversible when the guidelines were not advisory.  There were solid named grounds for departure under the Guidelines for aberrant behavior

and lesser harms.  Without considering any departures though the guideline range for my client was 24-30 months.  The judge sentenced him to one year and a day.

My first clue that this was an unusual case was when one of the Deputy Marshals in the courtroom at an early hearing thought that my client should never have been charged.  The sentence was firm but fair, a year in prison is a lot for someone who has never had a real brush with the law before.  Even though I think guideline sentences will be the norm here, it is good to have a safety valve.
The Law Guy

Whither private counsel?

Is a client better off with a salaried public defender or court-appointed private counsel?  My answer (one that clients hate to hear) it depends.  I expect that most states will shift to public defender dominated systems fairly soon.  My county had no public defenders when I began practicing here.  All criminal defendants who could not afford an attorney (about 90%) got an assigned attorney in private practice.  Most of the “street lawyers” in town were on the list.  The quality of those on the list reflected the same range of skill as the local private bar.
We were generally hostile to the idea of changing the status quo.  The amount of the fee was totally within the discretion of the trial judge.  I did occasionally get screwed when a judge felt a $50 fee was sufficient for the trial of misdemeanor trespass, even it took 6 hours to handle.  Those cases were the exception though.  I think our local judges understood that if they were too stingy with fees, lawyers would stop taking court-appointed cases.  Pro se defendants take a lot more time to get through the system.  Most attorneys on the court-appointed list thought we had a fairly good thing going. We figured that any changes would not benefit us.
Politically though that system’s days were numbered.  The fiscal camp was outraged at the amount of money being spent and the increases every year.  Essentially individual judges decided how much would be paid and just handed the bill to the government.  Each new prosecution brought an incremental increase because the state would have to pay a private lawyer for that particular case.  It was politically unpopular for millions to be handed over to lawyers.
There was also the quality camp.  That group was concerned about whether defendants were getting competent counsel.  While most counties had a method of screening lawyers for the court-appointed list, the most heavily weighted factor was length of experience.  There was anecdotal evidence of egregious incompetence, but it was not really possible to systematically evaluate just how well or badly court-appointed counsel were doing.  However the anecdotes were persuasive.
The fiscal camp likes public defender’s offices because the cost is fairly predictable from year to year.  The pay is comparable to what prosecutors and other government attorneys earn.  There is less political fallout because less money is going into the hands of “greedy attorneys.”  A mostly private appointed counsel system is not sustainable politically because legislators will always see it as a giveaway to lawyers (not a popular group) and criminals (only group more vilified than lawyers).  It took about 10 years of intense lobbying by federal judges to get fees in federal cases raised.  Hourly pay to attorneys in private practice will always be a politically poisonous issue.  Since the state is paying the public defenders the same as the thousands of other lawyers who work full-time for the government, there is less a sense lawyers at the trough.
The quality camp likes public defenders because there is a mechanism for getting rid of poor performing lawyers.  The chief public defender can supervise the work of assistants and remove anyone he believes is incompetent.  Whether this will actually happen in practice remains to be seen.  All government enterprises are notoriously slow to drop dead wood.  We have a public defenders office here now that has 1 public defender, about 12 other attorneys and support staff.  They are motivated and talented and several members of the private bar moved to the PD’s office after it opened.  I considered it.  Our PD’s office now handles about 70% of the criminal cases.  We still have court-appointed lawyers who take cases when the PD’s office has a conflict.  I am still on that list.
Whether public defenders are better can be argued forever, but the shift  driven by the fiscal camp and quality camp is inevitable.
Ask the Law Guy


Power of Attorney Question

My Aunt passed away last year – my cousin convinced her to change her will to leave him everything and nothing to his brother.  While she was alive, he had power of attorney.  She was receiving checks for some land we sold awhile back – in the midst of  her illness, somebody sent a note to the buyer of the land and instructed them to send the checks to my cousin’s address and not my Aunt.  As he had POA, we knew he could cash/deposit these checks.  However, since she died, these checks which are made out to my Aunt in her name have been and are still being cashed.  Is this against the law and is there anything we can do about it?
After your sunt’s death the power of attorney was no longer effective.  Upon your aunts assets and liabilities became the property of her estate.  The executor or administrator of the estate is responsible for collecting assets and paying any of the estate’s liabilities before distributing the estate to persons named in the will.  If your cousin is the executor of the estate, he would be able to cash the checks on behalf of the estate.
If you believe that your case used undue influence to cause your aunt to change her will, you would need to speak with an attorney experienced in estate litigation to challenge the will.


Tree Removal Costs and Suing the Neighbors

I live in a private, gated community governed by a homeowners association with strict property deeds with covenants and restrictions. …. He has a large live oak tree that is on his property … that he refuses to maintain (refuses to trim branches) and refuses to treat the carpenter ants and termites that live in the tree trunk. After futile attempts to get him to care for his tree, I sent a letter of complaint to the homeowners assocation asking them to enforce our deed restrictions that do not allow any homeowner to have an infested tree that is not maintained. I had my tree company trim back his branches that were in my yard and have damaged my lawn and shrubs. I also used my tree/lawn fertilizer company to treat his tree for carpenter ants. My neighbor threatened to sue me …. The homeowner’s association backed my neighbor stating I needed to create a barrier around my property to keep his carpenter ants from invading. Furthermore, I was told by the property manager that I was not allowed to trim my neighbor’s branches that were in my yard.

I have continued to write a letter of complaint yearly stating the same complaint about my neighbor’s diseased tree …. Each time I was told that I was not allowed to touch my neighbor’s tree, not allowed to trim his branches that are over my property line and not allowed to treat the caprtenter ants or termites.

We recently had a named hurricane with category 2 wind gusts … Many of his diseased live oak tree large branches fell into my yard, smashed several sections of my cement driveway, smashed several of the cement sidewalk sections in front of my property, destroyed my cast iron custom made mailbox resulting in the USPS turning off my mail delivery until I have a working mailbox and has created a mess of my landscaping, and is in the road partially blocking traffic. ….

My neighbor refuses to take care of his diseased tree that is now partially overturned in my yard, refuses to acknowledge the damage his tree did (told me “shit happens”), refuses to clean the mess his tree has made in the street or sidewalks. … The cost of tree removal ranges from $18,500 to $41,999. The real problem is the fact my neighbors tree is severely damaged from the carpenter ants inside. … The tree company wants to remove the trunk and tree stump. The trunk and stump are on my neighbors property which I have been told that I am not allowed to touch by the HOA and my neighbor.

What type of lawyer do I need to hire? Could I be held liable if the tree causes more damage when we remove the fallen attached branches?… Thank you for any advice you may offer to a very frustrated homeowner. I enjoy reading your comments to variuos letters on your website.

With the kind of loss you are facing you will need to have a lawyer to get anything accomplished.  I need to leave it to that lawyer to answer your questions after looking at the information you have gathered.

I am going to talk about how to go about choosing a lawyer.  This is a garden-variety legal matter that any competent lawyer ought to be capable of handling.  Think about it as having to replace the clutch in your car.  All mechanics should be able to handle it.  Most will get the work done no problem.  There are always some who do shoddy work or take forever to get the job done.  Ask around and see what the lawyer’s reputation is before hiring the same way you would ask around to find a good mechanic.

You don’t need a high-powered $300 per hour legal specialist to take care of this either.  Most of that firepower would be wasted.

Finally consider money.  Your neighbor’s track record suggests he is unreasonable.  It is unlikely that the case will be resolved with a letter or a phone call.  If you considering hiring me I would probably tell you that I thought this could easily take 15-20 hours of attorney time to prepare the case for trial.  That would include investigating the facts, researching the law, and engaging in some discovery.  Attorney hourly rates vary widely but there is a good chance you could find someone who charges $100-$200 per hour.  This means that you should expect to have to pay an attorney $3000 to $4000 minimum.

Experience matters but it is not everything.  The most important factor is whether you have confidence in and trust the attorney you hire.

Good luck.


Dumb actions but no dumb questions

I have a pretty dumb question about something I’d hate to admit is scaring me out of my mind.
I was visiting a friend when we decided to go swimming around 3 a.m. Well, we went
dipping in a swimming pool belonging to apartments her boyfriend used to live in.
But the security guard spotted us as we were about to leave and contacted the police because
we did not have IDs. But after identification, when asked what he wanted to do with us,
the security guard requested that we be put under civilian arrest for trespassing.
So here we are, two 19 year olds cited for trespassing, wondering what will happen to us.
We are to appear in court next month, and we’re scared!! Isn’t trespassing a criminal offense?
If so what will happen to us, to our records? Is there a difference in penalties from a person
with no criminal background, and a person who does? Does the swimming pool need a
NO TRESPASSING, VIOLATORS WILL BE PROSECUTED sign? I mean, the gates were closed, and it says the pool hours in small print, so in other words it’s kind of obvious that we weren’t supposed to be there at that time. But even without that sign anywhere, are we still “eligible” for citation?
What will happen to us??
Trespassing is a criminal offense.
If you are convicted you will have a criminal record.
Anyone facing the criminal charges needs to have a lawyer.  The Supreme Court ruled years ago (in Gideon v. Wainwright) that a defense attorney was so critical to an accused rights, that the Constitution required a state to provide an attorney for those who cannot afford one.  It amazes me how many people will decide to represent themselves in something like a trespassing or marijuana possession case.  Later they find out that having a criminal record may affect employment, college admission and other activities.
Hire a lawyer.  Expect to pay a reasonable fee for the lawyers services.  If you cannot afford a lawyer, ask that one be appointed.  If you think it is expensive to hire a lawyer, check the expense of not having one.


Criminal History

How long will a misdemeanor stay on your record?  If trying to get a job and a criminal record check finds a drug possession misdemeanor on your history, can it and will it affect the likelihood of employment?  Will it ever disappear?  How long, legally, can potential employers view your history?
A criminal record is forever.  Only an expunction or pardon removes a criminal conviction.  In North Carolina a person who was convicted of a misdemeanor before age 18 could be eligible for an expunction.  Pardons can only be granted by a governor or the president.
It is up to each individual employer to decide whether to hire someone with a criminal conviction.  There is no limit on how far back an employer can look into your past.


17 Year Old Debt

I am 35 years old.  When I was about 17 – 18 years old I got a department store credit card.  Well I thought that I paid it off.  The company went out of business.  Seventeen years I am getting a call from a credit collection company saying that I owe the money.  I have not heard anything from anyone until now.
I think that in most states a collecting a debt that has been outstanding for 17 years would be barred by statutes of limitations.  Technically the expiration of the statute of limitations does not mean that you do not owe the debt.  It means that the courts will no longer enforce the obligation.


Bad Checks from a Bad Boss at a Bad Company

Our company has been writing us NSF payroll checks. I can not cash my checks and my co-worker can not cash her checks at our respective banks anymore because our owners have written us so many bad checks. We have gone so far as to open accounts at the bank that the checks are drawn on and we went there to cash them this last week and there was not enough money in there account to cover either one of them. This was a holiday weekend and no money for food or bills or anything. We live from check to check what can we do legally to rectify this situation? We are looking for new jobs but until we can find one we are stuck!

In North Carolina, it is a crime to write a check knowing that there are insufficient funds in the account to cover the check, if you could convince the District Attorney to prosecute, that might give you some leverage.  You could also try to contact a state agency like the Department of Labor.
The laws of man cannot overcome the law of physics one of which is “You cannot get blood from a turnip.”  If your employer is in financial trouble your chance of a meaningful recovery for unpaid wages is low.


Default Judgement and Payment Plans

Discover Bank has acquired a default judgment against me via a North Carolina law firm.  I’ve attempted to work out a payment plan with the law firm that I can afford, but the amount that they are requesting is more than I can pay.  We are considering bankruptcy.  My question is this:  Can a consumer creditor, such as Discover Bank and their NC attorneys, seize and/or take money from my bank account in NC?  I know they can’t garnish my wages, …and I’ve completed my motion for exemptions form that I was served.  My fear is that they will take money from our bank account on my payday (I’m a teacher and get paid once a month) and then my family will be unable to pay our bills such as electricity, car payment, house payments, etc.  I know bank levies can go into place for tax bills and such, but can this by done for outstanding credit card debt for which a judgment has been issued?
The procedure for enforcing a money judgment is called “execution.”  In an execution the sheriff is required to locate any non-exempt assets the debtor has and seize them to sell or apply toward the money owed.  A bank account is an asset and and if the money does not qualify as an exemption, it is subject to seizure.  Whether or not that will actually happen depends on how aggressive the creditor is.
If you cannot pay and are unlikely to be able to pay for the foreseeable future, you should consider bankruptcy since it would probably eliminate the debt for good.


Extra Deadbolts for the Ex-Stay-At-Home Dad

My husband moved out of our house today. He was a stay-at-home dad for our two young children.  He wants to continue to watch them while I am at work which will allow him access to our home.  I am fine with him watching them for now since daycare for two would be very expensive and it is not in my budget. I would like to install deadbolts that would lock him out of the house when he is not supposed to be here such as at night or weekends.   I can lock him out right?  He mentioned to me this afternoon, if he can not afford rent where he is at he will move back.  Can he move back in with out me agreeing?
Usually when one spouse leaves the marital residence, the spouse who has remained there can bar the other from moving back in.  However as long as the house is titled in both names, both spouses are legally entitled to the use of the property.
Often I see that spouses who have separated try to resolve things informally.  Sometimes this works, but it also puts off problems that have to be dealt with later when it has become a crisis, such as each parent insists on having the children for Christmas.  What you and your husband need to do is establish clear ground rules on several things:
  • Who is going to keep the children and when is the other parent going to get visitation?
  • What is going to happen to the house?
  • Who is going to pay any debts that you have?
  • How are the parents going to divide financial responsibility for the children?
  • Will there be any form of alimony?

If the two of you cannot work out the answers to these questions between yourselves, you will need to get the help of a lawyer or mediator.  If you wait until there is a confrontation over one of these questions, it will be much harder to work out.