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Elder Law Power of Attorney – Protecting Your Loved Ones

Friday, August 27th, 2010

There are few circumstances when your loved one should execute a financial power of attorney that gives their agent the immediate authority to make financial decisions. Financial powers of attorney are one of the easiest ways to commit elder financial abuse.

The preferred method is to require that the agent’s authority is granted only after two qualified medical doctors declare in writing, under penalty of perjury, that the elder is mentally incompetent and unable to make sound financial decisions.

Although still not foolproof, this requirement gives a great deal of protection against financial exploitation. A bad guy must now involve two doctors in order to carry out the rip-off.

It is always possible that the perpetrator will simply have the elder execute a new power of attorney that revokes all prior powers and gives the agent the immediate authority. When family members and friends are actively involved in the elder’s life, the crook will have much more difficulty in accomplishing this without being caught.

When the elder has no immediate family or friends, the odds of being financially abused are greatly increased. However, there are still some preventive measures that can be taken to reduce the risk.

Speak with bank personnel and other financial institutions where the elder’s money is invested. Show them the power of attorney and explain that its purpose is to protect the elder in case someone tries to take advantage. Point out the added protection that requires two qualified medical doctors confirm the elder’s lack of capacity before the power of attorney is effective.

Ask them to red-flag the elder’s accounts by placing a computer notation that the bank personnel should question any substantial withdrawals or unusual activity.

In my city and state (Riverside, California), for example, a law exists that makes all bank employees a mandated reporter. This requires bank personnel to report any reasonably suspicious activity to local law enforcement. In states where similar laws exist, bank employees will receive some training to identify the signs of financial exploitation in order to comply with their mandated reporter requirements.

Many family members hesitate on broaching the subject of powers of attorney, in fear that their elderly loved one may take offence and tell them to mind their own business. Every family has their own unique dynamics. However, you can ease some of the awkwardness by doing some of your own research and sharing it with your loved one. Many counties agencies have informational brochures that explain the purpose in creating powers of attorney and how they can assist in financial matters.

Delaying the discussion often results in no action being taken. Then, when the need arises, it is often too late because the elder no longer has the requisite mental capacity needed to execute the power of attorney.

There is no surefire way to avoid financial exploitation of an elder. However, through education, discussion and assistance with the financial institutions involved, and with the help of a qualified elder law attorney, a power of attorney can be put in place that affords piece of mind that the chances of financial abuse are minimized.

By: George F. Dickerman, Esq.

George F. Dickerman is an elder law attorney in Riverside County, California, practicing law for 24 years. To learn more about elder law issues, including powers of attorney for financial and healthcare decision making, and to subscribe to a free newsletter that provides valuable information on how to assist your family members or loved ones, please visit http://www.elder-law-advocate.com/health_care_poa

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Attorney Fees – Understanding Lawyer Hourly Billing

Sunday, August 22nd, 2010

If you’re working with an attorney for the first time, you may have questions about hourly billing.

Lawyers and staff often bill by the amount of time spent working on your legal or business matters. This is called “hourly billing” or “timed billing.” The tasks for which attorneys and staff will bill on an hourly basis are included in your individual retainer agreement with your attorney. Generally, attorneys and staff will bill at their prevailing hourly rate for any time that they spend working on your matter. Hourly billing is accepted as a fair way to record the value of an attorney or staff person’s services for most matters. Attorneys will only bill you for the reasonable time spent on your matter, because lawyers are professionally obligated to accurately report their fees and time spent to the client.

Attorneys often bill their time in 1/10 of an hour increments, which computes to billing in six minute increments. Alternatively, your lawyer may bill his or her time in 1/4 of an hour increments, which computes to fifteen minute increments. By billing in such small increments, attorneys are able to keep costs as low as possible for the client, while still using an accurate record keeping system.

Because an attorney only has his or her time and expertise to “sell,” the attorney must bill for time spent on a matter, even when it may only be a short period of time spent on the matter. This is because any time spent on your matter could have been spent earning fees helping another client or other valuable use of the attorney’s time.

Clients that are not used to working with an attorney or law firm occasionally express concern about hourly billing, especially when the client is used to receiving tangible goods, such as a new TV, a brand new car, or groceries at the store. While you will occasionally receive tangible goods as a result of your attorney’s work, such as a contract, legal pleading, or memorandum, it is also important to understand that advice provided over the phone, via e-mail or in a client meeting is also valuable use of your attorney’s time.

Eric Menhart is an attorney with CyberLaw P.C., where he concentrates in Internet Law, copyright and trademark matters.

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Ask the Attorney – Prenuptial Agreements

Friday, August 20th, 2010

INTRODUCTION: Prenuptial Agreements (“Prenups” or Premarital Agreements) are becoming more and more popular. Initially only popular among people that were previously married, many more getting married for the first time are realizing the benefits of a Prenup.

QUESTION: Dear Mr. Cheng – I am getting a divorce. I do not understand why I am being told by my attorney that the prenuptial agreement I signed with my husband is invalid. He is claiming that if he knew how wealthy I was he would not have signed an agreement in the first place. My attorney says that the judge may throw out the agreement. I am totally confused. I paid an attorney to draft it and my husband signed it willingly. Why should I have to pay for him? He cheated on me with my secretary and now he wants to cheat me out of my money. Can you help me? Cindy – San Marino

ANSWER: Dear Cindy, thank you for your question. A Prenuptial Agreement is essentially a contract between two people. When examined they are viewed like any other contract with some additional requirements based on various family law statutes.

I explain prenuptial agreements like insurance. No one buys auto, life, or property insurance with the hopes of using it. In the same vein, no one should write a prenuptial agreement with the hopes of divorce. However, like any insurance, if you get a divorce without a prenuptial agreement, life can become very expensive. A typical non-contested divorce can be about $3,000-$4,000.00. A contested divorce can be substantially more expensive. I have seen some divorces cost as much as large corporate litigation. Family law attorneys are some of the most profitable attorneys out there because not only is it expensive, but family law divorces are very emotional. Many times, emotions drive lawsuits when they really should be settled.

Prenuptial Agreements Help Settle Future Disputes.

One of the things I tell people is that a prenuptial agreement can settle future disputes without much cost. Like I stated earlier, a Prenup is like a contract. Hence, a Court will adhere as closely to the contract as possibly, disregard any things that are ambiguous against the drafter, and throw out the contract entirely if it unconscionable. Hence, many issues can be settled years in advance. For example, spousal support or alimony can be settled in the prenuptial agreement so that when divorce takes place the Court can rely on the parties’ contractual decision and not have to make a decision for them.

Courts Support Premarital Agreements.

When I used to work for judges in the Los Angeles Superior Court, they were always happy when a premarital agreement was presented to them because they were left with very few issues to resolve. Provided the agreement was freely entered into by the parties (no deception, duress or undue influence) and not violative of public policy, premarital agreements are favored in family law dissolutions.

Suggestions to Prevent a Void Premarital Agreement.

Many agreements are written so poorly that many judges have no choice but to void portions of a Premarital Agreement or throw out the entire contract entirely. The following are suggestions to keep that from occurring:

(1) Do not raise issues about children. Premarital agreements cannot make decisions about children. For instance, child support, legal decisions for children, etc. Any statements made about children are easily stricken, and sometimes raise an eyebrow in the judge’s mind that this is a voidable contract.

(2) Have an attorney represent the other side. The chance of a person raising an argument that the agreement is unconscionable substantially increases when the person signing it is not represented.

(3) Give the person reviewing it another 30 days after all changes have been done. By law, the person reviewing the agreement needs 7 days to review it. However, I always recommend additional time so that no one can say that they were forced into an agreement.

(4) Have it translated into a language they understand. I do not know why if you are looking to protect your assets, you would risk a person arguing to a judge that he/she did not have the ability to read it. It makes absolutely no sense. Enough said.

(5) Always favor disclosure versus vagueness. If you are going to spend the time and money to write a Prenup why would you want certain clauses or information to remain ambiguous? The purpose of a Prenup is to give people full information so they know what they are giving up. If you are debating between full disclosure and partial or no disclosure at all, give it up.

Most Prenuptials are Voidable for the Same Reasons.

Remember, courts want to enforce agreements. But many times they cannot or will not. There are essentially two bites at the apple when it comes to overturning prenuptial agreements. But no matter when a person seeks to overturn the prenuptial agreement the argument usually is that the agreement itself is unconscionable. A premarital agreement is unconscionable when it is proven:

(1) The party was not provided a “fair, reasonable, and full disclosure” of the other party’s property or financial obligations;

(2) He or she did not voluntarily and expressly waive in writing any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(3) He or she did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.

Conclusion.

Premarital Agreements are awesome. They give people the flexibility and cost savings that are needed to ensure that should dissolution occur the monies paid are reasonable and not just outrageous attorney fees. Make sure if you get one that it is done by a reliable and reputable attorney. The way a Premarital Agreement is written can substantially change the outlook of any family law dissolution.

ASK THE ATTORNEY is a news supplement that is included in the Chinese Daily News (Saturday), Taiwanese Daily News (Monday), the Chinese Biz News (Weekly), and on Youtube.

Paul Cheng was recently selected as a contributor for the upscale Vivid Magazine and will be published in their second quarter issue of 2009.

Mr. Cheng leads a team of distinguished attorneys in Los Angeles, California. Mr. Cheng has an extensive background in small to large business operations and commercial realty transactions. He has counseled individuals and businesses at all levels in a variety of transactional and litigation matters, including contract, landlord-tenant, land use, employment, franchise law, fraud, identity-theft, business immigration, civil rights violations, products liability, trademark violation, construction defect and general torts.

Prior to practicing law, Mr. Cheng served as a judicial extern to Judge Roy Paul and Commissioner Maren Nelson in the Superior Court of California, Los Angeles. Mr. Cheng was also a seasoned mediator with the Superior Court of California and Los Angeles City Attorney’s office, mediating over 50 cases ranging from complex civil litigation to personal injury.

Mr. Cheng has traveled extensively through Asia and is a frequent lecturer at the universities there. Recently, he was a guest lecturer at Beijing University’s School of International Studies. He is fluent in Mandarin.

Mr. Cheng is a member of the California State Bar, Los Angeles County Bar, and Taiwanese American Lawyers Association. He was also the 2008 President of the Arcadia Kiwanis Club.

To contact Mr. Cheng email: Contact@PaulChengLaw.Com or call 626-356-8880.

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Hiring a Lemon Law Attorney Makes the Lemon Car Law Work For You

Saturday, August 14th, 2010

When we buy a new car, we expect it to perform flawlessly for the foreseeable future. But if you’ve ever purchased a lemon car, then you know how quickly those expectations can be dashed. While almost any vehicle that experiences engine trouble is casually referred to as a lemon, a vehicle that qualifies as a legal lemon is usually one that is still under warranty but repeatedly fails to live up to its warranty. For example, if a car continues to experience problems with its braking system regardless of how many times the system is repaired, chances are that it qualifies as a legal lemon.

In most states, a vehicle’s lemon status is defined by a certain number warranty failures within a certain period of time or a within a certain number of miles, whichever comes first. For instance, in New Jersey, a vehicle that has been repaired for the same problem three or more times within 18,000 miles, or that has spent at least 20 hours undergoing repairs since its delivery date qualifies as a lemon. In addition to new vehicles, some states also have lemon laws that cover emergency vehicles, motorcycles, used cars and the chassis on RV’s and mobile homes.

Whatever kind of lemon vehicle you own, your top priority should be receiving a refund from the manufacturer or a free replacement vehicle. As with other legal matters, you could opt to pursue the matter on your own. However, there are three major reasons why your should always hire a lemon law attorney to represent your case, beginning with the fact that lemon car law is often complicated.

Proving your lemon case means that you’ll have to write a fair amount of legally convincing and forceful letters; letters that major manufacturers often tend to ignore unless they come from a lemon car law firm. In addition, an automaker might present an offer that’s contingent on your signing a release. Once signed, the release absolves the automaker of further legal responsibility regarding your vehicle. If your vehicle’s problem occurs again, you won’t be able to bring a lawsuit because you signed a release. In short, you’ll be stuck with your lemon car.

A second reason why you should hire an attorney is that consumers have virtually no negotiating power. Some people think that because they know the lemon law an automaker will treat them fairly. But because consumers can’t file a lawsuit and jeopardize an automakers reputation, automakers usually find no reason to take consumers seriously. In addition, automakers have to pay money to defend lawsuits, and the fees start accruing from the moment the lawsuit is filed. Because money makes an automakers’ world go round, they’ll be much likelier to give you a refund than they will fight the lawsuit in court and end up refunding you anyway.

A third reason why hiring a lemon law attorney is essential to your case is that attorney negotiated settlements are generally much higher than settlements negotiated between consumers and automakers. If you’re driving a lemon car, receiving a refund or a replacement vehicle could amount to more than a financial victory; it could also put you behind the wheel of a vehicle that’s safer to drive. If you’re driving a lemon car, don’t wait for an automaker to do the right thing. Call a lemon law attorney and get the compensation that you deserve.

The lemon car law is there to protect consumers against getting stuck with lemon cars. But getting the best results from your lemon law case usually requires hiring a lemon law attorney. Research shows that consumers who hire an attorney receive higher awards from automakers.

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Enduring Powers of Attorney – Important Law Changes in New Zealand

Wednesday, August 11th, 2010

Do you have Enduring Powers of Attorney in place? If not, you may care to read on to see what could be a likely scenario in the event of your losing mental capacity for any reason, be it old age or an unforeseen accident or illness.

Firstly, you might ask “What is an Enduring Power of Attorney?” Pursuant to an Act of Parliament called ‘The Protection of Personal and Property Rights Act 1988′, every person is able to put in place types of power of attorney known as Enduring Powers of Attorney. These powers of attorney come in two forms, one for personal care and welfare and a second, for property matters. In relation to our personal care and welfare, we can only appoint one attorney at any given time, but in relation to our property matters, we can appoint two or more if so desired.

The distinct difference between these types of power of attorney and a ‘traditional’ power of attorney is that as the word ‘Enduring’ suggests, the Enduring Power of Attorney remains in full force and power if for any reason we lose mental capacity. Any other type of power of attorney ceases to be of effect on loss of mental capacity.

If you are thinking that you’ve heard all this before, you might care to stop and think for a moment, what happens if you lose mental capacity for any reason and you do not have Enduring Powers of Attorney in place! The Protection of Personal and Property Rights Act anticipates this situation, and provision is made in the Act for an application to be made to the Family Court for someone to be appointed as either a personal welfare guardian or a property manager.

However, whereas it might cost you around $400 – $500 per person to put in place Enduring Powers of Attorney for property and personal care and welfare whilst you are of sound mind, if application has to be made to the Court, following your sudden or unexpected loss of mental capacity, the costs are likely to be dramatically higher. Why is this and how much could it cost you might ask?

The simple answer is that it can cost several thousands of dollars to put in place arrangements, which could have been made for a fraction of that price with a little foresight. The reason for this is that in circumstances where an application to the Court is necessary, not only do you have a solicitor representing the person making application to be appointed as welfare guardian and/or manager, but there is also an independent solicitor appointed by the Court to represent the person for whom the power of attorney is required. A percentage (usually half) of that independent solicitor’s fees are usually met from a Government Consolidated Fund, but the remainder must be paid out of your own funds.

Before making an appointment as welfare guardian or manager, the Court must be satisfied that there is a genuine loss of mental capacity and it is necessary to seek medical opinions and a report is then filed with the Court by the independent solicitor. If the manager is to have the ability to deal with property in excess of $120,000 in value, this requires the consent of the Court also.

Sadly, the expense does not necessarily stop once an order of the Court is granted, as the orders for appointment of manager and/or welfare guardian must be reviewed in the Court every three years, requiring the same process to be followed once again and further costs are incurred.

Because the costs involved in having a manager and/or welfare guardian appointed by the Court are considerable, there can sometimes be circumstances where it may not be appropriate to incur the expense. Take for example a situation where there is an obvious loss of mental capacity but the person does not have any significant property in their name. It might be argued in those circumstances that it ought not to be necessary to apply to the Court to have a welfare guardian appointed, particularly where there is a surviving spouse or partner.

Changes To Protection of Personal and Property Rights Law

Effective from the 26th of September 2008 significant changes to the law dealing with Enduring Powers of Attorney have come into effect.

The Enduring Power of Attorney regime first came into being with the passing of the 1988 Protection of Personal and Property Rights Act.

Over time limitations with this legislation became apparent with occasional abuse of the power of attorney by attorneys. Furthermore, upon loss of mental capacity by the Donor, there was no reporting requirement on the attorney.

In 2001 a report was published by the Law Commission which highlighted a number of potential areas of abuse of Enduring Powers of Attorney including:-

• Insufficient protection for the donor when making an Enduring Power of Attorney, particularly in relation to a donor not being properly advised when signing.

• Attorneys failing to consult with a donor to protect the interests of the donor.

• The fraudulent use of Enduring Powers of Attorney.

In 2007 an Amendment Act which modified the original Act in certain areas was passed and new prescribed forms came into effect on 26 September 2008. Some of the significant changes to the Act and the focus of the Enduring Powers of Attorney are as follows:-

• The Donor of the Enduring Power of Attorney must now have his or her signature witnessed by a solicitor or registered legal executive and the witness must be independent of the attorney. Therefore, if a lawyer acts for a husband and wife and they wish to appoint each other as attorney, then the Donor will need to be referred to another firm for independent advice. Whilst this will lead to increased costs, the hope is that the new requirements will lead to better protection for Donors at the time of appointment of an attorney.

• The new prescribed form for the appointment of a property attorney contains certain options which did not form part of the old forms.

• One such option is for the appointment of a successor attorney where the appointment of an attorney has ceased.

• Another option allows for the donor to require the attorney to consult with certain specified people in exercising their power – these might include a spouse or other siblings where one of your children is appointed as your attorney.

• The Donor can also require the attorney to provide specific information relating to the exercise of the Enduring Power of Attorney to a nominated person or persons if those people request such information.

• If the Donor wishes the attorney to be able to benefit themselves or other specified persons after the donors loss of mental capacity this can also be specified in the Enduring Power of Attorney.

The Amendment Act also places a requirement on the witness to sign a certificate certifying that they have witnessed the execution of the Enduring Power of Attorney, they are either a practicing lawyer or registered legal executive, that they have explained the effect and implication of the Enduring Power of Attorney and that the Donor had mental capacity when they signed the form.

Notwithstanding that the new requirements will lead to increased costs, an Enduring Power of Attorney is a valuable document. The alternative if one loses mental capacity and does not have an Enduring Power of Attorney is an application to the Family Court and likely cost about $2,000 – $3,000.

The writer is an expert on senior law and you are invited to contact for a free initial consultation him via his firms website which is

http://www.harmans.co.nz

Brent Selwyn is a self employed lawyer in Christchurch New Zealand. He has been a partner of Harmans Lawyers since 1994 and heads the specialist senior law team at Harmans. Brent specialises in all aspects of senior law. He has a regular monthly column in the local over 50’s newspaper ‘Older & Bolder’ and has twice presented papers on his specialist subject of Elder Law at national confernces. Brent can be contacted fora free initial consultation via his firms website which is http://www.harmans.co.nz

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Demand Planning Process

Monday, August 9th, 2010

Demand Planning
Supply Chain Planning
Demand Planning (CDP) is a business-planning process, that enables sales teams (and customers) to develop demand forecasts as input to service-planning processes, production, inventory planning and revenue planning. :SAP Production Planning

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Law Jobs in Massachusetts

Saturday, August 7th, 2010

Law jobs in Massachusetts vary from law clerks to attorneys and in between. Legal secretary jobs in Massachusetts are available to those who have previous experience in a law firm setting. All types of attorneys are needed civil litigation is a common practice area.

Cellai Law is seeking a litigation attorney who has at least 1-4 years of experience. If the desired number of years is not available it can also be with courtroom experience, civil and criminal is preferred. Cellai Law specializes in civil litigation and collection issues. You can apply by e-mail to their law firm.

Boston Perm is searching for an attorney who has financial service experience. The contract for this position is temporary, lasting six months but it could be extended if the right candidate is placed within. Financial services include working with US investors and pension plans along with fund accounting. Education should be from an accredited law school, a Juris Doctor is required with proof of bar admission. The Adecco Group is a Fortune 500 company and they have offices all over the world with many attorneys working towards the goal of financial surety of their clients. You can apply for this position a number of ways, an on line application can be filled out or you can call them directly. Those with insurance experience should apply.

Daley and Associates is seeking a tax attorney who has experience with Massachusetts legal code regarding tax issues. The qualified candidate should have experience with accounting issues as well as legal procedures. You would be working in house for Daley and Associates. 5 to 7 years of experience is recommended with a salary of $100,000 plus, this is a full time position.

Law jobs in Massachusetts are not just for the experienced, those who are staring their career in law now have a place to begin, FLJ & Associates helps those who have recently passed the bar and want to start practicing law. Founded on the principals that helped you obtain your law degree, FLJ & Associates wants to help you find a law job that will get you on your way. They are not looking for the cream of the crop and if you struggled in law school but passed the bar they are willing to work with you. Law students need a company like FLJ to help them break into full time practice. Apply at their website.

Seyfarth Shaw is searching for a labor and employment attorney. You must possess excellent written and verbal skills and you will be dealing with labor cases and you should have at least 3-5 years of experience. You can apply at the link on their website.

Bankruptcy law jobs in Massachusetts are still in demand. Brookstone Law is expanding their affiliate program and they need an attorney to work with Chapter 7 bankruptcy proceedings. You will meet with the potential clients and file their claim with Best Case software. After the necessary filings are processed you will work with the list of creditors and also with the discharge hearing. The procedures to be followed are an appearance, filing of the proper documents and post bankruptcy proceedings. Clients will be referred to your office once this has taken place. You will need to be in good standing with the state bar association and have the proper license for your state. Many attorneys use Brookstone Law to help build their client base. This can be a part time or full time position.

For more information on Law Jobs in Massachusetts

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False Claims Act For South Carolina Whistleblower & Qui Tam Fraud Plaintiffs, Lawyers & Attorneys

Friday, August 6th, 2010

A suit under the federal False Claims Act (FCA), also known as a “qui tam” action, allows people who have insider information of fraud against the Government, known as a “relator” or “whistleblower,” to file a suit to help stop the perpetrators from defrauding the United States Government. The False Claims Act seeks to deter fraud against the United States Government by providing for penalties of up to three times the amount of the fraud in addition to fines of $5,000 to $11,000 per violation. It is estimated that the United States has collected almost $8 billion in fines and penalties in False Claims Act cases since 1986.

The FCA is codified as 31 United States Code Sections 3729 – 3732. It is critical that the South Carolina whistleblower come forward with his or her information as soon as possible. The False Claims Act requires that the South Carolina relator be an “original source” of the information, which generally means that he has direct and independent knowledge of the fraudulent conduct and he has voluntarily provided this information to the Government before filing the qui tam suit. Information about fraudulent conduct which is in the public domain prior to the time the whistleblower reports the same to the Government generally precludes the prosecution of a qui tam suit.

If the qui tam suit alleging false claims is successful, the whistleblower or relator will also be entitled to 15%-30% of the government’s total recovery, which includes damages for the false claims, treble damages, plus civil penalties of from $5,500 to $11,000 per false claim. To recover this bounty, the relator must have complied with the complex and unusual statutory requirements, however. Merely providing information to a hotline will not entitle the relator to a recovery under the False Claims Act.

Some of the factors the U.S. Department of Justice considers for a possible increase in the percentage awarded to a relator are as follows:

• The relator reported the fraud promptly.
• When he learned of the fraud, the relator tried to stop the fraud or reported it to a supervisor or the Government.
• The qui tam filing, or the ensuing investigation, caused the offender to halt the fraudulent practices.
• The complaint warned the Government of a significant safety issue.
• The complaint exposed a nationwide practice.
• The relator provided extensive, first-hand details of the fraud to the Government.
• The Government had no knowledge of the fraud.
• The relator provided substantial assistance during the investigation and/or pretrial phases of the case.
• At his deposition and/or trial, the relator was an excellent, credible witness.
• The relator’s counsel provided substantial assistance to the Government.
• The relator and his counsel supported and cooperated with the Government during the entire proceeding.
• The case went to trial.
• The FCA recovery was relatively small.
• The filing of the complaint had a substantial adverse impact on the relator.

Some of the factors the U.S. Department of Justice considers for a possible decrease in the percentage awarded to a relator are as follows:

• The relator participated in the fraud.
• The relator substantially delayed in reporting the fraud or filing the complaint.
• The relator, or relator’s counsel, violated FCA procedures, i.e., complaint served on defendant or not filed under seal, the relator publicized the case while it was under seal, or the statement of material facts and evidence not provided.
• The relator had little knowledge of the fraud or only suspicions.
• The relator’s knowledge was based primarily on public information.
• The relator learned of the fraud in the course of his Government employment.
• The Government already knew of the fraud.
• The relator, or relator’s counsel, did not provide any help after filing the complaint, hampered the Government’s efforts in developing the case, or unreasonably opposed the Government’s positions in litigation.
• The case required a substantial effort by the Government to develop the facts to win the lawsuit.
• The case settled shortly after the complaint was filed or with little need for discovery.
• The FCA recovery was relatively large.

31 U.S.C.A. § 3729, entitled “False Claims,” provides as follows: (a) Liability for certain acts.–Any person who– (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; (3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid; (4) has possession, custody, or control of property or money used, or to be used, by the Government and, intending to defraud the Government or willfully to conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt; (5) authorized to make or deliver a document certifying receipt of property used, or to be used, by the Government and, intending to defraud the Government, makes or delivers the receipt without completely knowing that the information on the receipt is true; (6) knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the Government, or a member of the Armed Forces, who lawfully may not sell or pledge the property; or (7) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government, is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person….

Unlike most other lawsuits, the initial civil complaint under the False Claims Act must be served upon the government but must not be served on the defendant until ordered by the court, must be filed under seal, and must be supported by a detailed disclosure memorandum, not filed in court, but served on the government, setting forth the factual underpinnings of the complaint, together with copies of all relevant documents.

The attorney for the South Carolina plaintiff/relator should not discuss the case or to disclose its existence to anyone, including the defendant and the media, as to do so could impair the government’s ability to investigate the allegations in secret. A whistleblower or qui tam plaintiff’s failure to follow these unique statutory requirements of the False Claims Act (FCA) can result in dismissal of the action. After the complaint is filed under seal, and a disclosure memorandum and related documents are served on the government, the government has 60 days to intervene or decline to intervene, move for an extension of time to determine whether to intervene, seek dismissal of the action, or settle the case per §3730(b)(4). The government will usually request numerous extensions of the 60-day initial investigatory period, however, as 60 days typically is too short a time period for the government to complete an investigation.

Upon completion of its investigation, the government has the option to take over, or intervene in, the case. Regardless of whether the government intervenes, the South Carolina relator or whistleblower who has complied with the proper procedures and is not otherwise barred from recovery, is still entitled to a share of the recovery, and may pursue the case on behalf of the government. The South Carolina qui tam lawyer should be aware that the statute of limitations for an FCA qui tam/whistleblower action is found in Title 31, Section 3731(b) of the United States Code: “A civil action under section 3730 may not be brought-(1) more than 6 years after the date on which the violation of section 3729 is committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.” In determining which limitations period applies to an FCA action, courts examine the time at which either the relator or the Government became aware or knew of the violation. The South Carolina whistleblower attorney should be diligent in determining the date(s) when the qui tam relator became aware of the fraudulent conduct of the putative defendant. A qui tam complaint should contain references to as many specific fraudulent acts, dates, actors and related documents as possible because defense attorneys frequently try to have an FCA complaint dismissed for lack of specificity as required by Rule 9 of the Federal Rules of Civil Procedure with respect to allegations of fraud.

In 2009, important changes to the False Claims Act were enacted in a law known as the Fraud Enforcement and Recovery Act of 2009. These changes include as follows:

• The definition of a “claim” was expanded and fraud directed against government contractors, grantees and other recipients is now plainly covered by the law, thus overruling the U.S. Supreme Court decision of Allison Engine Co. v. United States ex rel. Sanders, 128 S.Ct. 2123 (2008).

• Funds which the United States government administers (such as in Iraq) are now covered by the False Claims Act.

• When an overpayment of money from the government is retained, such retention is a basis of FCA liability, which will be a source of concern for health care providers and defense contractors.

• Conspiracy liability to violate the FCA was broadened.

• The government was granted authority to broadly use “Civil Investigative Demands” and to share information with state and local authorities and with whistleblower/relator plaintiffs.

• Whistleblower anti-retaliation protection was extended to cover not only to ‘employees,” but also “contractors” and “agents.”

• Defendants other than “employers” can now be liable for retaliation.

• Materiality as applied in False Claims Act cases was defined.

• In an amendment to the statute of limitations provisions, the government was authorized to assert its own claims after the whistleblower/relator has filed a qui tam case under the False Claims Act.

In South Carolina (SC), as in most states, civil False Claims Act cases are initially reviewed for prosecution by the U.S. Attorney’s Office for the District of South Carolina. Assistant U.S. Attorneys (AUSAs) will be assigned to the FCA case to investigate the claims and allegations contained in the complaint. The AUSA will work with federal agents from any number of different federal agencies who may be assigned to investigate the case, including, but not limited to, the Federal Bureau of Investigations (FBI), Homeland Security, Department of Defense (DOD), Health and Human Services Offices of the Inspector General.

There are many types of fraud perpetrated against the federal government in South Carolina, including, but not limited to, contractor fraud, defense industry fraud, environmental fraud, grant fraud, government sales fraud, healthcare fraud, Medicare fraud, Medicaid fraud, off-label prescription use fraud, tax fraud (in excess of $2 million), and procurement fraud.

In South Carolina, the Attorney General has established a state Medicaid Fraud Control Unit (MFCU) which specifically focuses on Medicaid fraud and abuse. Some of the Medicaid fraud which is targeted by the South Carolina MFCU include billing for nonexistent or unnecessary medical services, billing for more expensive products or services than were provided, paying kickbacks to patients or other providers for patient referrals, inflating a nursing home’s annual cost report, padding mileage accumulated on ambulance trips, and billing for professional services rendered by personnel lacking appropriate credentials.

The South Carolina qui tam or whistleblower plaintiff should contact an experienced FCA litigation attorney. Few attorneys handle qui tam or False Claims Act whistleblower cases on a regular basis. Contacting a former Assistant U.S. Attorney from the district of South Carolina or U.S. Department of Justice fraud litigator is highly recommended.

© 2009 of Joseph P. Griffith, Jr.

Joseph P. Griffith, Jr.
SC Whistleblower Attorney
SC Qui Tam Lawyer
SC Government Fraud Attorney
Joe Griffith Law Firm, LLC
7 State Street
Charleston, South Carolina 29401
(843) 225-5563 (tel)
http://www.joegriffith.com
http://www.joegriffith.com/qui-tam-whistleblower-claims.html

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Law Lemon Attorney

Thursday, July 22nd, 2010

Buying a new car is a big step for most people. A great deal of thought and research probably went into the process before you even entered the car dealership. With the amount of models and options available to the consumer today, it’s a wonder any of us can make a decision. But, you finally have and are the proud owner of a brand new car. Great! Everything’s brand new, there’s a warranty and everything should be smooth sailing from here on out. Sounds good but, unfortunately, that isn’t always the way it works out. For those unfortunate few, their new car will turn out to be a lemon. If you find yourself in this sinking ship, the best thing you can do for yourself is to consult with a law lemon attorney.

Even though all fifty states now have some form of the lemon law on their books, the conditions and coverages for these laws do vary. A law lemon attorney can help you sort through the particulars of the law for your state and will help you decide if you even have a case.

If you do, there are steps that will need to be taken before you can apply for the lemon law and criteria that will need to be met once you do. These steps include getting documentation for each and every repair ever done on the car, keeping all your invoices and receipts for these repairs, and documenting any and all conversations regarding these repairs that you have with the dealership. Most of the lemon laws require that your car be out of service for at least 30 days of the year to be eligible for coverage. Documentation will go a long way with helping to prove this. This can and will be a long and drawn out process and having a law lemon attorney may help to speed up the process a bit.

Some dealerships may offer you the use of a law lemon attorney, but be wary of this. These attorneys are not necessarily looking out for your best interests. Hire your own attorney. Many attorneys will offer you their services at no up front cost to you, only a percentage if you win your case. Others may charge you, but if you win, the settlement may include your legal fees anyway. Ultimately, having an law lemon attorney is a win-win situation.

By Ray Walker

Lemon Law Information [http://www.e-lemonlaws.com]

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How Can an Attorney Help Me With Child Support?

Wednesday, July 21st, 2010

Child support is a very important legal matter that is best understood when discussed with an attorney. Each state has their own specific laws regarding support, although many are very similar if not identical. Attorneys in each state will be familiar with the laws governing financial support for children in their state and will guide their client through the process of determining child support and over any hurdles they face in reaching an agreement with their ex-spouse or in making their payments.

For example, when an individual who has been ordered to pay child-support suddenly and unexpectedly loses his or her job, panic may quickly set in. Most people understand the weight that not paying support can hold and may fear for their legal and financial well-being upon losing their job. An attorney will explain to the individual their options and will recommend a path to rectify the situation and work towards a solution. The attorney will answer any and all of their client’s questions so they understand their new responsibilities.

Child support is designed to help the custodial parent handle the costs of everyday living associated with the child. California has certain guidelines that are addressed when calculating the amount the non-custodial parent must pay in child support each month. Some of the factors considered include how much money both parents earn, or can earn, the amount of other income received by both parents, the number of children the parents have together, the amount of time each parent spends with the child(ren), the tax filing status of both parents and support of children from other relationships.

Other factors include health insurance expenses, union dues, retirement contributions and the cost of sharing daycare and uninsured healthcare costs. An attorney experienced in handling child-support cases will work to ensure that their client’s rights are accounted for in reaching a fair child support payment agreement. In some cases, the parents will agree on the child support payment, but when they cannot, a judge will determine support based on the above mentioned factors.

Taking once again from the previous example, child support may be adjusted if one party loses his or her job. An attorney will assist their client in the steps they must take when this is the case. They will also inform their client of the various consequences stemming from a failure to pay child-support, and will fight to protect them in such cases.

Justin suggests that if you need more information contact an experienced and professional Child Support Lawyer or review information online from a Family Law Attorney by browsing for the Diefer Law Group.

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