Q & A
Questions & Answers with the Leading Legal Professionals
Q: Why should trial counsel consider contacting an appellate attorney for an appeal if they are already familiar with the case?
A: In addition to experience with appellate practice and procedure, one of the key functions of an appellate attorney is a detached, critical analysis. Unlike trial, where emotional involvement in a case is normal and necessary, it is often unhelpful in an appeal, because the audience is different. Though trial may have resulted in attachment to a certain argument, an appellate attorney can help you determine which previous arguments are strongest for appeal, or whether a new perspective on an old issue is necessary, all without bias for or against any issue.
Matthew J. Chalker, The Law Office of Matthew J. Chalker
Q: What is a donor advised fund?
A: 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
Q: My significant other and I are not married but we want to get a home together. What happens to our property if it doesn’t work out?
A: Many couples purchase property together but may never get married. Couples should consider entering into a co-tenancy agreement with their significant other before purchasing or leasing any property or making significant purchases. A co-tenancy agreement can define each person’s rights and can cover issues such as the payment of the mortgage, utilities, repairs, pets, guests and the division of assets. A well-drafted agreement could save many dollars down the road. Our attorneys at Hillman, Brown & Darrow are here to help you protect your future.
Lauren A. Torggler, Hillman, Brown & Darrow, P.A.
Q: In my first meeting with an attorney, what should I ask?
A: It is important to cover certain topics before retaining an attorney, including: fees and expenses, time frame, likely outcome, who will be working on your case, and your expectations as to communication. In order to have a productive meeting, provide the lawyer with a summary and relevant documents in advance.
Rignal W. Baldwin, BaldwinLaw LLC
Q: Why should I use an attorney to prepare my Will when I can create my own Will using an internet service?
A: Various internet services certainly provide an opportunity to create your own Will. However, in many instances, when using such a service, unintentional mistakes will occur. If the mistake is revealed after your passing, your heirs could end up spending thousands of dollars in legal fees to rectify the mistake. Creating an estate plan that accomplishes your personal estate planning goals is very important. An attorney can help you to understand the applicable estate, tax and other relevant laws with the ultimate goal of creating a customized estate plan that works for you.
Maria Worthington McKenna, Partner, Council Baradel
Q: Do I need a revocable trust?
A: A revocable trust is a legal device that is used in planning for physical or mental incapacity as well as estate planning. It is an extremely effective way of designating someone else—often a
brfamily member, friend, or financial professional — to step in and manage assets on behalf of someone who needs assistance. Revocable trusts can also serve as a “will substitute”— a way of passing property at death outside the probate system. However, revocable trusts do not necessarily help with tax or public benefits (e.g. Medicaid) planning. In many cases, other estate planning documents such as wills or powers of attorney would be preferable. Each person’s situation and asset structure is unique, and no single
brtype of document or estate plan works well for everyone.
Jack K. Beckett, Franke, Sessions & Beckett LLC
Q: When is a lawsuit the best way to resolve an issue or dispute?
A: Almost never. Litigation is expensive, time consuming, and can be emotionally exhausting. More importantly, if you’re spending your days wandering the halls of courthouses, unless you are an attorney, you are not doing what you do to make a living. Resolving disputes and solving problems requires cooperation, patience, and a desire to look forward, not back. The right trial lawyer is the one who encourages clients to find common ground when it is possible, but is prepared for litigation when it is not.
Christopher R. Daily, Brady Fischel & Daily, LLC
Q: What Asset Protection Laws are available in Maryland?
A: 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
Q: 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?
A: 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
Q: I have a family member with special needs. What can I do to protect their financial interests?
A: Ensuring that our loved ones are taken care of after reaching maturity is something that many families must address. You want to ensure that they are well taken care of, and still let them have the independence they need and deserve. There are many ways to provide for and protect them, including special needs trusts, powers of attorney, and guardianships, to name a few. Each option comes with pros and cons, and depending on their legal capacity and intellectual ability, the person with special needs may not be eligible for some of the options. At HBD, we want to make sure that everyone’s, needs are addressed. Between now and August 1, 2018 we will donate 10% of fees collected when working for and with special needs clients to GiGi’s Playhouse of Annapolis.
Sarah E. Brown, Hillman, Brown & Darrow, P.A.
Q: What is a Will?
A: A Will is a legal document that provides for the distribution of property owned solely by you at the time of your death in any manner you choose—subject to laws that prevent disinheriting a spouse. A Will does not govern assets that pass outside of probate like jointly owned property, life insurance, or IRAs that have survivorship or beneficiary designations. A Will designates who you want to wind up your affairs. It also names the individuals, charities or trusts, that receive your assets. If you have minor children, it is important to name guardians for them in a Will. A Will is your personal plan how you want your assets distributed at your death. It should be tailored to your specific situation.
David E. Sessions, Franke, Sessions & Beckett LLC
Q: I am buying or selling a business. When do I need to engage an attorney?
A: As early as possible! You should certainly do so prior to agreeing to any terms, even if those terms are agreed upon informally in a term sheet or letter of intent. People are often too casual with the initial stages of negotiation and do not fully contemplate all of the terms, or the full scope of the proposed agreement. In those instances, things may become unnecessarily contentious during the final negotiations, resulting in an adverse buyer/seller relationship and excess attorneys’ fees. In my experience, initial contract negotiations often overlook crucial elements to the transaction including the aggregate tax effects of the structure, bulk sales considerations for asset purchases, or the specifics of how and when money will change hands after closing. Many business transactions have working capital true-ups, indemnifications, clawbacks, earnouts, and other items that can dramatically change the amounts paid or received by each party.
A business can be an enormous asset. Make sure you protect your investment as you consider buying a business, or selling yours.
James Walsh, Liff & Walsh, LLC
Q: Why is it important to seek advice from an attorney as soon as possible about a potential claim?
A: 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
Q: Will my bankruptcy appear in my credit report and how will it affect me?
A: A Bankruptcy will appear in your Credit Report for up to ten years BUT will typically discharge all your debts, leaving you debt free and with a much better score than you had. Where you then make timely payments, you can usually receive new credit within 10 months after a discharge and obtain a new Mortgage 24 months after discharge. Lenders make loans based on credit worthiness more than any other factor. There are exceptions, but you will probably have little difficulty in re-establishing credit.
Cami Russack, RLC Lawyers & Consultants
Q: How do I know if the injury or death was malpractice or a complication of the procedure?
A: In general, it is malpractice if the injury or “bad outcome” could have been prevented or should have been avoided. On the other hand, if the healthcare provider acted reasonably and took reasonable precautions and an injury resulted anyway, the injury might be a known complication. Determining whether an injury was malpractice or a known complication often involves an expert opinion by another healthcare provider in the same or similar area of medicine and your attorney will investigate the care and treatment to determine this answer.
Andrew T. Burnett, Potter Burnett Law Group
Q: How does a person who is about to become involved in a family law problem select the right lawyer?
A: 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.
brThis is a very important decision — select wisely.
Ron Naditch, Ronald M. Naditch, P.A.
Q: What can a lawyer do for me if I’m injured in a car crash?
A: 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 should only pay if a lawyer wins your case. So contact a lawyer immediately who handles nothing but car, truck or train crashes if that’s how you were injured.
Rick Jaklitsch, The Jaklitsch Law Group | 1-(855)-Big-Dog1
Q: What is Personal Injury Protection (PIP) coverage?
A: PIP is a no-fault coverage that is required in Maryland unless you sign a waiver with your insurance coverage stating you don’t want to purchase it. It is a great benefit and you should check your policy and make sure you have it. It can be used whether you are at fault or a victim. PIP is offered in three amounts ($2,500, $5,000 and $10,000). PIP coverage is per person in the vehicle. It can be used to pay medical expenses or 85% of lost wages. PIP benefits are payable through your own policy and you do not have to pay the money back. PIP helps you pay bills or wages, but allows you to still collect money from the at-fault driver for those same bills. Your insurance company cannot raise your rates, penalize you, or drop you for making a PIP claim. Remember, they will not mail out a lump sum check. Think of PIP like a debit card, as you get treatment or incur lost wages, the insurance will pay a little at a time.
Debbie Potter, Potter Burnett Law Group
A: In addition to experience with appellate practice and procedure, one of the key functions of an appellate attorney is a detached, critical analysis. Unlike trial, where emotional involvement in a case is normal and necessary, it is often unhelpful in an appeal, because the audience is different. Though trial may have resulted in attachment to a certain argument, an appellate attorney can help you determine which previous arguments are strongest for appeal, or whether a new perspective on an old issue is necessary, all without bias for or against any issue.
Matthew J. Chalker, The Law Office of Matthew J. Chalker
A: 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
A: Many couples purchase property together but may never get married. Couples should consider entering into a co-tenancy agreement with their significant other before purchasing or leasing any property or making significant purchases. A co-tenancy agreement can define each person’s rights and can cover issues such as the payment of the mortgage, utilities, repairs, pets, guests and the division of assets. A well-drafted agreement could save many dollars down the road. Our attorneys at Hillman, Brown & Darrow are here to help you protect your future.
Lauren A. Torggler, Hillman, Brown & Darrow, P.A.
A: It is important to cover certain topics before retaining an attorney, including: fees and expenses, time frame, likely outcome, who will be working on your case, and your expectations as to communication. In order to have a productive meeting, provide the lawyer with a summary and relevant documents in advance.
Rignal W. Baldwin, BaldwinLaw LLC
A: Various internet services certainly provide an opportunity to create your own Will. However, in many instances, when using such a service, unintentional mistakes will occur. If the mistake is revealed after your passing, your heirs could end up spending thousands of dollars in legal fees to rectify the mistake. Creating an estate plan that accomplishes your personal estate planning goals is very important. An attorney can help you to understand the applicable estate, tax and other relevant laws with the ultimate goal of creating a customized estate plan that works for you.
Maria Worthington McKenna, Partner, Council Baradel
A: A revocable trust is a legal device that is used in planning for physical or mental incapacity as well as estate planning. It is an extremely effective way of designating someone else—often a
brfamily member, friend, or financial professional — to step in and manage assets on behalf of someone who needs assistance. Revocable trusts can also serve as a “will substitute”— a way of passing property at death outside the probate system. However, revocable trusts do not necessarily help with tax or public benefits (e.g. Medicaid) planning. In many cases, other estate planning documents such as wills or powers of attorney would be preferable. Each person’s situation and asset structure is unique, and no single
brtype of document or estate plan works well for everyone.
Jack K. Beckett, Franke, Sessions & Beckett LLC
A: Almost never. Litigation is expensive, time consuming, and can be emotionally exhausting. More importantly, if you’re spending your days wandering the halls of courthouses, unless you are an attorney, you are not doing what you do to make a living. Resolving disputes and solving problems requires cooperation, patience, and a desire to look forward, not back. The right trial lawyer is the one who encourages clients to find common ground when it is possible, but is prepared for litigation when it is not.
Christopher R. Daily, Brady Fischel & Daily, LLC
A: 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
A: 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
A: Ensuring that our loved ones are taken care of after reaching maturity is something that many families must address. You want to ensure that they are well taken care of, and still let them have the independence they need and deserve. There are many ways to provide for and protect them, including special needs trusts, powers of attorney, and guardianships, to name a few. Each option comes with pros and cons, and depending on their legal capacity and intellectual ability, the person with special needs may not be eligible for some of the options. At HBD, we want to make sure that everyone’s, needs are addressed. Between now and August 1, 2018 we will donate 10% of fees collected when working for and with special needs clients to GiGi’s Playhouse of Annapolis.
Sarah E. Brown, Hillman, Brown & Darrow, P.A.
A: A Will is a legal document that provides for the distribution of property owned solely by you at the time of your death in any manner you choose—subject to laws that prevent disinheriting a spouse. A Will does not govern assets that pass outside of probate like jointly owned property, life insurance, or IRAs that have survivorship or beneficiary designations. A Will designates who you want to wind up your affairs. It also names the individuals, charities or trusts, that receive your assets. If you have minor children, it is important to name guardians for them in a Will. A Will is your personal plan how you want your assets distributed at your death. It should be tailored to your specific situation.
David E. Sessions, Franke, Sessions & Beckett LLC
A: As early as possible! You should certainly do so prior to agreeing to any terms, even if those terms are agreed upon informally in a term sheet or letter of intent. People are often too casual with the initial stages of negotiation and do not fully contemplate all of the terms, or the full scope of the proposed agreement. In those instances, things may become unnecessarily contentious during the final negotiations, resulting in an adverse buyer/seller relationship and excess attorneys’ fees. In my experience, initial contract negotiations often overlook crucial elements to the transaction including the aggregate tax effects of the structure, bulk sales considerations for asset purchases, or the specifics of how and when money will change hands after closing. Many business transactions have working capital true-ups, indemnifications, clawbacks, earnouts, and other items that can dramatically change the amounts paid or received by each party.
A business can be an enormous asset. Make sure you protect your investment as you consider buying a business, or selling yours.
James Walsh, Liff & Walsh, LLC
A: 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
A: A Bankruptcy will appear in your Credit Report for up to ten years BUT will typically discharge all your debts, leaving you debt free and with a much better score than you had. Where you then make timely payments, you can usually receive new credit within 10 months after a discharge and obtain a new Mortgage 24 months after discharge. Lenders make loans based on credit worthiness more than any other factor. There are exceptions, but you will probably have little difficulty in re-establishing credit.
Cami Russack, RLC Lawyers & Consultants
A: In general, it is malpractice if the injury or “bad outcome” could have been prevented or should have been avoided. On the other hand, if the healthcare provider acted reasonably and took reasonable precautions and an injury resulted anyway, the injury might be a known complication. Determining whether an injury was malpractice or a known complication often involves an expert opinion by another healthcare provider in the same or similar area of medicine and your attorney will investigate the care and treatment to determine this answer.
Andrew T. Burnett, Potter Burnett Law Group
A: 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.
brThis is a very important decision — select wisely.
Ron Naditch, Ronald M. Naditch, P.A.
A: 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 should only pay if a lawyer wins your case. So contact a lawyer immediately who handles nothing but car, truck or train crashes if that’s how you were injured.
Rick Jaklitsch, The Jaklitsch Law Group | 1-(855)-Big-Dog1
A: PIP is a no-fault coverage that is required in Maryland unless you sign a waiver with your insurance coverage stating you don’t want to purchase it. It is a great benefit and you should check your policy and make sure you have it. It can be used whether you are at fault or a victim. PIP is offered in three amounts ($2,500, $5,000 and $10,000). PIP coverage is per person in the vehicle. It can be used to pay medical expenses or 85% of lost wages. PIP benefits are payable through your own policy and you do not have to pay the money back. PIP helps you pay bills or wages, but allows you to still collect money from the at-fault driver for those same bills. Your insurance company cannot raise your rates, penalize you, or drop you for making a PIP claim. Remember, they will not mail out a lump sum check. Think of PIP like a debit card, as you get treatment or incur lost wages, the insurance will pay a little at a time.
Debbie Potter, Potter Burnett Law Group
A: 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
A: A special needs trust is a legal document that allows for management of assets for a beneficiary with a disability. The trust mainly accomplishes two goals 1) preservation of government benefits, and 2) effective management of assets. A special needs trust can be used as part of an estate plan to leave money behind to someone with a disability to allow them to continue to be eligible for government benefits. There are different types of special needs trust depending on when they are set up and by whom. Anyone who has a loved one with disabilities may want to consider establishing a special needs trust.
Jon J. Gasior, SinclairProsser Law, LLC
