Attorney’s Fees – The Oft Neglected but Crucial Provision

On the issue of attorney’s fees, Virginia and many other states subscribe to what is known as the “American Rule.”  The “rule” states that all parties to a lawsuit will be responsible for their own attorney’s fees regardless of who “wins” unless a contractual provision or statute provides otherwise.  Even so, it is often surprising how many contracts fail to include any terms regarding the ability to recover reasonable attorney’s fees in the event that a party needs to sue for breach of the contract.  When negotiating terms, parties routinely fail to consider the costs associated with initiating or defending a lawsuit arising from the contract.  These costs, including but not limited to attorney’s fees, are significant.  In some cases, these costs can even exceed the actual damages incurred as a result of the breach.  In that instance, the wronged party can never be “made whole” because he or she has had to absorb the costs of the lawsuit.  This result can easily be avoided if the contract provides for the ability of a prevailing party in a suit for breach to collect attorney’s fees. 

Attorney’s fees provisions can also benefit the parties by discouraging litigation in some circumstances, or reducing the time before settlement of litigation in others.  The provision should deter a party from filing any lawsuit that is not a) necessary and b) well-founded, due to the risk that he or she will be ordered to cover the opposing party’s fees if the suit is not successful.  The same risk encourages parties to enter into negotiations and reach a resolution before incurring substantial fees.  Although an attorney’s fee provision is a necessary and far reaching provision, it terms are relatively straight forward and simple.  When entering into negotiations regarding the language and terms of a contract, or before drafting even the simplest agreement of your own, it is always in your best interest to consult an attorney to ensure that the ability to recover reasonable attorney’s fees is provided clearly and in accordance with the law of the jurisdiction that will be used to interpret the contract in the case of an alleged breach.  While many people believe that they only need an attorney once a problem arises, it is only by consulting an attorney prior to the execution of the contract that you can ensure you are protected before it’s too late.  RRBMDK attorneys are experienced in drafting and reviewing contracts/agreements arising in various areas of law – from Real Estate to Family Law, Employment to Corporate Organization, and want to urge anyone considering entering into a written contract to call upon us for a thorough document review, and to answer any questions related to that ever-present “fine print.”  

RRBMDK Expands With the Addition of Three New Attorneys

RRBMDK recently added three additional attorneys to our firm. They bring a wealth of experience for our clients.

Tom Urban attended the Naval Academy and Texas A&M, with distinction, expecting to pursue a career as an aeronautical engineer. He participated in one of NASA’s early research projects dealing with a manned mission to Mars. Choosing to attend law school instead of pursuing aeronautical engineering, Tom graduated from the Georgetown University Law Center, convinced that his future looked brighter here, on earth, as an associate at Williams and Connolly rather than a life among the stars.  Tom now has more than 20 years as a trial attorney handling a wide variety of complex civil and criminal cases all over the country including RICO, antitrust, employment discrimination and whistleblower claims, white collar crimes, class actions, securities law, toxic torts, corporate fraud, banking law and financial services litigation.

Elizabeth “Liz” Csoka-Bubacz  brings to the firm a solid background in real estate transactions. Having formed and managed her own real estate settlement company, she is familiar with all aspects of real estate settlements, including financing and title insurance. She has litigated a wide variety of real estate and other claims, both in bench trials in General District Courts and jury trials in Circuit Courts, including claims involving RESPA and TILA violations, wrongful foreclosures and landlord/tenant disputes. She has also advised and represented many clients in connection with short sales, foreclosures and deficiency judgments. Liz has shared her expertise through seminars and courses dealing with Fair Housing Regulations, Ethics, and home inspections.

Mark Sullivan is our most recent addition. Before joining us, he served in the Fairfax Commonwealth’s Attorney’s Office for eight years, prosecuting all types of criminal misdemeanor and felony cases. Prior to that, Mark spent seven years in private practice dealing with all aspects of negotiating commercial contracts and complex litigation, including construction and leasing issues, intellectual property rights, and employment law.

We are delighted to welcome Tom, Liz and Mark to the firm. They not only deepen our bench in areas in which we already practice — real estate, complex civil litigation and criminal defense --but they also free up time for our attorneys who concentrate on other areas of our practice — corporate and business transactions, employment law, land use, wills, trusts and estates, civil rights and family law.

Contact us if you think that we can be of any assistance to you, your family, your friends and acquaintances (we are growing and always appreciate referrals) in any of the areas in which we practice. Even if we can’t help you with a particular legal matter, we will do our best to refer you to a well-qualified lawyer who can help you.

Underage Drinking: What To Do When The Party's Over

It’s that time of the year again when Prom, “Senior Skip Day,” Graduation and Beach Week all lead to one thing:  Underage Drinking.  So, what should you do when you get that dreaded phone call or knock on the door and your teen has been arrested?  Protect his rights.  Protect her future.  Calling an attorney is not about “getting your kid out of it,” it’s about making sure that a foolish mistake doesn’t cause long-term damage.

Most people know that purchasing, possessing or drinking alcohol when under 21 years of age is a crime, with a few exceptions.[1]  Underage drinking is formally charged as Underage Possession of Alcohol.  If your teen is 18 years or older, this is a misdemeanor criminal offense that carries a maximum punishment of 12 months in jail and/or a $2,500 fine, as well as a 6- to 12-month suspension of the right to operate a motor vehicle.[2]  The case will proceed through the General District Court for final disposition. 

If your teen is under 18, the case will proceed through the juvenile justice system.  Purchasing, possessing or drinking alcohol is considered a “delinquent act,” not a crime.  Not all juvenile arrests for underage drinking result in court proceedings, but if the case does proceed to court in Virginia, it will be handled by the Juvenile and Domestic Relations District Court.  If the Judge determines that the facts are sufficient to justify a finding of underage drinking, the court must deny driving privileges for at least 6 months or deny the child's ability to apply for a driver's license for six months following the date she reaches the age of 16 and three months.  Other potential dispositions include, but are not limited to, mandatory attendance and completion of law-related or substance abuse educational or rehabilitative programs, community service, “house arrest, ” probation, or fines. 

Whether your teen is under 18 years old or not, the Commonwealth must prove its case in court.  Never assume the case is a ”slam dunk” for the prosecution, at any stage.   Your teen cannot be found guilty by association--merely being at a party is not a basis to convict.   Your teen typically cannot be found guilty merely because the officer detects the odor of alcohol.   Your teen has rights, including the right not to answer questions and to refuse a breath test at the scene.  If challenged, the prosecutor must prove your teen’s rights have not been violated or face a potential dismissal of the case.

A “finding of delinquency” or a criminal conviction has collateral consequences you might not think of or know about.  If you find yourself in this situation in the coming weeks of parties – or at any time – the attorneys of RRBMDK can help.

---

[1] For example, underage consumption of alcohol in Virginia is allowed in private, residential homes as long as the underage person is accompanied by the physical presence of a parent, legal guardian, or spouse who is at least 21.  Va. Code § 4.1-200.

[2] Public Intoxication is also a misdemeanor, but the maximum penalty is a $250 fine (and a 6-month license suspension if your teen is under 18).  Va. Code §§ 16.1-278.9, 18.2-388.

Real Estate Contract Terms Are Negotiable

As the real estate market begins to recover, it is more important than ever to understand the contracts that you are asked to sign whether you are purchasing/selling or leasing your home. While you may be presented with a pre-printed standard purchase contract or lease, each term is negotiable and should be looked at as such. Not only is it important to understand what your responsibilities are under the contract, it is equally important to understand the consequences of not performing those responsibilities.

All too often, we are asked to review a fully-executed purchase contract only after a problem has arisen between the purchaser and seller. The majority of the time, we find out that one or both of the parties did not understand their duties and responsibilities under the contract. While a good real estate agent can serve a vital role in the purchasing, selling or leasing process, they cannot give you legal advice. Buying or selling a home is one of the biggest and most important investments of your life. Hiring a real estate attorneys to review your contract prior to executing it can not only give you peace of mind in your decision, but it can also end up saving you thousands of dollars in attorneys fees if you are caught in a dispute later in the process.

Divorce – Do I Need An Attorney?

Divorces require time and attention, and can therefore lead to substantial attorneys fees.  Many parties work out many of the details of settlement on their own and question the necessity of hiring counsel.  After all, a party is permitted to file and proceed in obtaining a Final Decree of Divorce pro se, or “for oneself.”   The answer, therefore – much like the process itself – is not a simple one.  There is not a “one size fits all” solution.  Parties dealing with particular issues or living in particular jurisdictions (even within the same general geographic area) may “need” counsel more than others. 

Understand first that simply because both parties agree they want a divorce, a matter is not rendered “uncontested.”  If the parties disagree on any of the issues that the Court must determine in a divorce proceeding (e.g., property distribution, spousal or child support, child custody/visitation) then the case is not uncontested.  Even if parties are only arguing over whether Mr. or Mrs. gets to keep the engagement ring, the divorce is not uncontested.  What also occurs quite often is that parties agree on all of these matters, but one party will not actually sign a settlement agreement or Final Decree of Divorce setting forth the agreed upon terms.  This too is not an uncontested divorce. 

Where matters are  truly uncontested (involving parties who have settled all matters and have done so in writing), the filing party may nonetheless be living in a jurisdiction with stringent requirements for the content of Final Decrees or  other complex procedures or docketing practices that render it preferable, even if not necessary, to have counsel handle finalizing the divorce.   Finally, in certain cases, there may be unique complicating factors, such as a need to serve one’s spouse out of state or by publication.  So, although every jurisdiction in Northern Virginia provides a pro se divorce package containing the tools needed to complete most, simple, uncontested divorces.  Whether those tools can be used in your case is another question: 

If one’s case is fully uncontested -- meaning that there are no disputes regarding the existence of “no-fault” grounds for the divorce (i.e., six months’ separation with written settlement agreement and no children, one year separation otherwise); property distribution (i.e., everyone is satisfied with who is taking/keeping what); child custody & visitation; child support or spousal support, or no such issues exist (no children, no marital property) -- pro se might be the way to go.   In either case, the Plaintiff would indicate in his/her Complaint  for Divorce the status (e.g., there are no issues of equitable distribution, custody or support, or the parties have signed an agreement settling them all) and if agreed, the opposing party would “admit” (i.e., concede, agree with) that allegation in his/her responsive pleading OR waive the right to file a responsive pleading altogether.  If in fact some or all of those have been resolved, rather than do not exist, one must be sure that all agreed upon terms regarding children, support and/or property distribution have been reduced to writing in a settlement or separation agreement, or at least into the Final Decree to be submitted to the Court, before you ask the Court to finalize a divorce.  Courts will not simply divorce parties with children, for example, without addressing custody, visitation and support in the Final Decree, even if merely by reference to a written agreement. 

BOTTOM LINE:  If you’re going to go it alone, do it carefully, and it’s still a good idea to sit down for a brief consultation with a RRBMDK family law attorney to make sure that your case is ripe for filing, that you’ve addressed all potential issues with your spouse, that your ducks are in a row as far as filings and service, and that there don’t appear to be any complicating factors related to your case or unique to your jurisdiction.  

Facebook and Family Law: The New Peril of Timeline

There are a number of factors that anyone having and using Facebook should consider when they are in or could be involved in a family law matter.  Of course the absolute best practice would be to delete the account, or not have any current use of it, that’s not always an easy thing for people to give up.  And deleting a Facebook account is not easy, but can be done by following these steps.  Even if you stop current use, without deleting the account there is still a lot of visible information about you out there. 

The first step should be to re-evaluate your Facebook friends wisely and de-friend estranged spouses, family and friends.  It’s also more important than ever to review those security and privacy settings.  Choose carefully who can see what information you post, and certainly never keep any part of your profile public.  One of the first things opposing attorneys do when taking a case is a general online search of the opposing party, including Facebook. 

Remember your Facebook page will still be viewable to a large number of comingled friends who can take screen shots or print your Facebook page, so being careful about what you post is also critical.  More and more often Facebook pages are popping up as evidence in divorce or custody and visitation trials.  Additionally, Facebook pages show a general trend in a person’s behavior, possible signs of an adulterous relationship and parenting decisions.  

Now all Facebook users have been forced to the new Timeline format.  Timeline was created to highlight the most memorable posts, life events and photos of your life.  This feature allows people with access to your Facebook page to view items and information spanning back to when you joined Facebook, and possibly before if you were tagged or have been tagged in events prior to your joining Facebook, easier and quicker than ever.

When your page switched over for you as a user, you had seven days to edit it before anyone with access to your page would view it in Timeline format.  After that point all your past that wasn’t hidden was placed on your visible Timeline profile.  If you haven’t done so already you should carefully go back through your timeline from start to finish and carefully review all posts and pictures.  You can hide, edit or remove any posts, or pictures, you don’t want visible to others on your timeline.  Also consider un-tagging yourself in any unflattering photos and/or ask the person who posted it to delete it.  Generally your profile picture and cover photo will still be publicly viewable, even if you have changed your privacy settings to be very strict, so be careful what photos you use for your profile and cover. 

It’s generally good practice to not over-share on Facebook, whether it be using Facebook check-ins, posts, status updates and pictures.  But also be cognizant of which applications you allow to automatically share information on your page such as Instagram, Living Social and Four Square. 

Lastly, remember that venting about what you are going through or things that an opposing party or potential witness did in a public format is never smart.  Don’t post anything you wouldn’t want a grumpy Judge, who doesn’t know you enough to put what you said in context and who controls your destiny, to see.

Do I Really Need a Will?

If one doesn’t have a Will, is it the end of the world? No, the state has a Will for you. It is called the law of intestacy; and generally the results are not unreasonable.  Your property will not go to the state, but to your nearest relative, generally in this order – spouse and then children or other descendants; if no descendants, then to parents, siblings, nieces/nephews, and so forth.  

But if you do not have a Will, then no part of your property will ever go as follows:  to your favorite charity or religious institution; to a friend; to a non-spouse life partner; to a foster child or god-child; or out of the order or with percentages different than provided by the law of intestacy.

Also, without a Will, you do not get to name your Executor, the Guardian for your children, or a Trustee to manage property for your children until they become a responsible age.  You also cannot save money by waiving surety on the Executor’s bond or by waiving the requirement for a Trustee to provide formal accountings.  Finally without a Will, tax planning is very difficult.

When should one make a Will?  I tell clients all the time that there is definitely no rush.  They have their entire life . . . however long that might be.

--Lonnie C. Rich