Recognition for the Firm

The firm is proud to make a couple of announcements. First, the Oversight Board for the Successor Agency to the City of Montclair Redevelopment Agency selected our office to serve as general counsel. Second, the Orange County Register recognized the firm as among Orange County’s Top Attorneys. Third, the firm recently established it’s Martindale Hubbell 5.0/5.0 Client Review rating to complement its AV® Preeminent™ Peer Rating.  



Trash Privatization in Fresno?

Fresno seems on the verge of creating a significant source of revenue to the City. I wonder if the City of San Bernardino and other struggling cities in southern California are watching? The city employees unions fought this initiative hard, and have promised to sue based upon the California Environmental Quality Act and the City Charter if privatization is approved. The City has promised all of the employees jobs for at least a year with the new franchise hauler if privatization is approved. 

Will the voters support keeping trash a city service to preserve public jobs/retirement and a few dollars per hour per employee? Another good question is whether the city negotiated hard enough with the private hauler poised to secure this franchise to get the best deal that the marketplace will offer the city’s residents and businesses. Cities will be exploring ways to get leaner and meaner. Stand by…

Link to Reuters Story re Fresno Trash Privatization

Plastic Bags – What do you think?

It’s an interesting topic. The California Supreme Court upheld Manhattan Beach’s ordinance, but challenges in other cities may still be forthcoming. It’s also fascinating to see how the issue plays across the country. What do you think? Here’s a link to a poll and a place where you can sound off and be “heard” by those in the waste and recycling industry.


The End of “Compassionate Use?”

The California Supreme Court has spoken – if a city or county wants to do so, it can ban medical marijuana dispensaries (store-fronts). While the decision is not a shock to the system, its breadth and impact will resound for months to come.

The Court’s opinion is based upon the authority to regulate land use and/or address the creation or existence of a nuisance. This authority, often called a city or county’s “police power,” is constitutional. Here’s a link to the actual court decision. It makes for interesting reading.

For marijuana advocacy groups, the primary “fix” left is legislative in nature.


The Past Rears its Head – What Now?

I recently answered a question on Avvo® that I thought might have value to an audience beyond the asked. The person making the inquiry started a small business with his sister seven (7) years ago. Although he said that the company is “under” his name, the company leased its retail space under his sister’s name. Further, she contributed to the company’s capitalization and provided a year’s worth of some form of service to the company. Now his sister is demanding sixty thousand dollars ($60,000) plus an additional thousand dollars ($1,000.00) per month.

The level of information you provide is an insufficient basis for meaningful observations. A pair of concepts will be discussed when you share data with a lawyer during a consultation – law and equity. Stated differently, what will matter is what are the “rules,” and what is “fair.” The core questions here, in lay terms, are (a) what was agreed upon between your sister, (b) were enforceable promises made and relied upon or not, and (c) are there any technical/legal reasons that what would otherwise be an enforceable promise might lose its significance.

Avoid sharing extensive facts (or your position, beliefs, memories, etc., with respect to those facts) in this completely public forum. Doing so would be like dropping your drawers on camera when you appear on the “jumbo-tron” screen at a sports game in a stadium. Your private affairs should only be shared with others at an appropriate time, and in the right place. In this case, since the business at hand could have an immense impact on your livelihood, the context for your disclosures about what could be a contentious legal issue should be a consultation with a lawyer.

Sometimes the best thing a competent lawyer can do is answer a question with a question. Here are a few relevant things that you will discuss with a competent attorney if you want an “answer.” Since the best legal advice is NEVER based solely upon impressions that can be formed during an initial consultation, you should not expect to get anything worth relying upon in the context of a free hour. Hire the right attorney and get an informed opinion based upon complete facts, documents

1. What do you mean when you say that your sister is “asking” you for this lump sum and these continuing payments? What exactly did she say or do to prompt you to want to know and/or provide her with an answer?
2. What is the basis for your sister’s request? There is likely a reason that she is making this particular claim. Did you have any understandings with her, oral or written that she is now seeking to enforce? If so, (a) what was the basis of those understandings, (b) what was the intended significance of those understandings, (c) did you make any kind of record of those understandings (if so, what kind of record, if not, are there any “witnesses” to those understandings) , (d) what sorts of things (if any) did you or she do in reliance upon those understandings, and (e) what benefit or burden did the business experience as a result of those understandings.
3. When you say the “risk of breaking the lease,” what do you mean?
4. What exactly was your sister’s one year “contribution” to the company? Did she have a contract (or any understanding) with the company (or with you) related to that contribution?
5. What type of entity is your business? How is that entity organized and operated? Are there clear records that document your organization and/or operations? Who (apart from you) has first hand knowledge about these aspects of the business?

This is not all that you will discuss, but it’s a good glimpse for you into what should be discussed, at least in part, during your initial consultation with a lawyer. There are different kinds of business arrangements that might be appropriate between you and your lawyer. The kind of contract that you establish with your lawyer will likely be determined by what your sister is doing (or not doing) to pursue a claim against you.

The guy has no case, am I alright?

I just responded to an inquiry on the Avvo® website, and thought my comments might be valuable to a wider audience. The “asker” was a contractor who wanted to know if a property owner could claim that a job, was incomplete despite verbal (i) instruction to refrain from doing certain work, (ii)acceptance of work as complete, and (iii)payment for all work per a written contract.     

The short direct answer to your question is that a lack of proof should prevent this “owner” from beating you in any legal or administrative context, but will never stop such an individual from coming after you. A consultation with a business attorney seems warranted to see where you are and what you should do. 

Those of us in the legal community who do defense work will concur on an important principle: it does not matter whether you are “right” in any particular transaction – any aggrieved fool or commercial “terrorist” can come after you and purport to be a claimant. Regrettably, when a business-person like you is responsible, has every necessary license, permit, and insurance policy, and adheres to best practices, doing business the “right” way can be a magnet that draws every potential claimant from under every rock. As the adage says, no good deed ever goes unpunished. 

A claim or complaint doesn’t need to be well-founded to keep the claimant from trotting it up the courthouse steps. Unfortunately, there are many attorneys out there who will eagerly participate in an unwarranted shake-down of a good business. Please don’t think that the evils of the legal system run one way. Many plaintiffs have a legitimate case, and lots of plaintiffs’ attorneys routinely perform a valuable service in our communities. There are indeed as many bad businesses as there are claimants who bring nonsensical claims. One important aspect of your situation is that your choice to live and work in the People’s Republic of San Francisco comes with a jury pool that isn’t known for being business-friendly. 

To make matters worse, selectiveness in taking on customers is a luxury that many businesses cannot afford in this economy. Accordingly, all you can do is all you can do. Most companies would be well advised to consult with a business transactions attorneys in order to develop standard forms (and other documents) for use in day-to-day contact with their customers and employees. For a contractor, such forms would definitely include a good preliminary notice of lien form, a solid form for acceptance of work and release of lien, and a clear disclosure/statement that explains your warranty (or lack thereof) with respect to services rendered. 

If you’re lucky enough to be in a position to investigate/vet your prospective customers, you should find a cost-effective way to do so. A bit of common sense before you sign on for a project goes a long way toward keeping your blood pressure down, and an ounce of prevention (or avoidance) can be worth two hundred fifty seven tons of cure. While terrific front-end legal work and/or due diligence on your behalf can’t prevent a slimy claimant from coming out from under his/her rock after you, well-crafted documents in the paper-trail that tells the story of your transaction and/or a simple investigation of your prospective client will go a long toward helping you stay out of trouble, or shutting a garbage claim down when the rubber meets the road. If you stay in business for a while (particularly in San Francisco), you will recover the cost of legal services such as those I’ve described many times over in peace of mind and reduced legal fees down the road. 

If it makes you feel better, even lawyers are not immune from the marketplace hazards that I describe. We have to be carefully prepare our fee agreements, and be very careful about the clients we agree to represent. Lawyer up, and if your documents are really in line with a solid defense, try to avoid negotiating with a terrorist. That said, never be blind to the potential for a “nuisance value” settlement. If the plaintiff/claimant makes a demand that will cost you less to pay than the lawyers’ fees attached to defending your case, consider the benefit of throwing a small amount of money at the problem to make it go away. Good luck!


Forming a New Business Entity?

A few months ago, I responded to an Avvo inquiry about forming a new business entity. The “asker” said that he/she was considering starting a company in California to provide various services to the general public. The asker also requested information on the best place (state) in which to form the new entity. Perhaps you will find a valuable tidbit in my comments.

Typically it is frustrating when out of state practitioners try to provide comments in response to California questions. In this instance I am glad that you’ve heard from two lawyers practicing elsewhere.

California is somewhat aggressive about eliminating what you might guess are tax advantages of incorprating or forming your company elsewhere. The bottom line is that if you do most of your business here, you WILL pay taxes here and be subject to many of California’s quirky and I am sorry to say sometimes less than business friendly laws. That said, there are advantages to local incorporation/formation. You will need a competent California attorney to work with you and your “people.”

Whether a corporation or an LLC is a better vehicle will be determined by your goals and preferences with respect to operations, growth, control by ownership/management over company affairs, and a host of other important considerations. Imagine you are building a structure – DON’T neglect to lay a proper foundation. If you skimp on professional services on the front end, you will likely regret it on the back end. Your lawyer, your insurance broker, and your accountant are VERY important people in your life when you start a company. Hire carefully.

Following up on another attorney’s general comment re LLCs – one size does not fit all. For example, there may be a good reason to have a simple, non-restrictive and succinct operating agreement. On the other hand, failing to grapple with certain issues in an operating agreement may completely undermine any success you might otherwise enjoy.

In closing, a shareholder agreement (for a corporation) or your operating agreement (or another document addressing nuts and bolts if you choose an LLC) should be prepared sooner than later.

Good luck.

Finding a Criminal Defense Lawyer

Not long ago, I posted the following response on Avvo to an inquiry about how an “asker” might choose the “best lawyer” to assist him/her with securing a finding of factual innocence with respect to criminal charges.  I thought the response might be helpful as a general matter to those facing criminal charges.

Who the best attorney for you will be depends upon your judgment and rapport with the lawyer himself/herself. The attorney who already responded to you is correct – what you seek is not an easy thing to accomplish. Winning on a petition like the one that you will need to file necessitates that the lawyer not only be competent, but also a good writer. 

Look for someone who is highly rated (you can check ratings here on Avvo and on other websites like Martindale Hubbell. It’s difficult (if not impossible) to fake your way to a high peer rating. That said, remember that while ratings are helpful, there are plenty of good lawyers who don’t have them. You can also look for State Bar certified specialists in criminal law. That information is available about each California lawyer via the bar’s website, or you can try to find certified specialists by Google. Again, not all of the best lawyers take the time and dedicate the energy to become certified specialists.

Bottom line: the best lawyer is the lawyer who you like and trust the most. You should base your trust on experience, reputation, specialization, and past results for clients. A lot of information is out there, but some you can only get from a meeting with the lawyer who you are evaluating. Since most lawyers give free consultations, talk to at least three (3) before hiring someone. At least that way you will have some basis for comparison among people you view as qualified. 

Now the bad news – when you hire a lawyer, you typically get what you pay for. Be careful of lawyers promising the world for what seem like low fees. If something sounds too good to be true, it probably is.

An Ounce of Prevention…

Warren Buffet says that “[r]isk comes from not knowing what you’re doing.”

The firm serves a variety of companies as general counsel. The best contrast to the broad range of our clients’ industries is one of their common interests: minimizing risk and limiting exposure.

Platitudes don’t work and one size does NOT fit all. A competent attorney gets to know his/her client and becomes a counselor and a contract member of that company’s management team. As such, a good lawyer understands his/her client’s needs, goals and tolerance for risk.

One of the signature aspects of the firm’s service as general counsel is development and implementation of a customized and comprehensive program to enhance a client’s confidence in its operations. Company policies, form documents, and established procedures all contribute to a workplace and transactions less likely to necessitate legal services. While a proactive approach to risk requires an investment in legal services, the alternative reactive posture is far more expensive.

While trust equals evidence over time, even a new client of the firm will appreciate the difference between its services and those prevalent in today’s marketplace. Let twenty-one (21) years of experience with high-profile litigation and transactions inform your company’s decision-making and help you minimize risk. Call today for a free consultation. Buy an ounce of prevention and discover its astounding value in contrast to the enormous cost of a “cure.”

kotkinlaw 2.0

This WordPress site is superior to my “Go-Daddy” web presence by orders of magnitude.  I can now create some useful and accessible “value-added” (i) tools, (ii) educational materials, and (iii) legal updates for clients of the firm.  

It will take some time, but my goal is to have this website bookmarked by one hundred (100) people by this time next year.

If you’ve been frustrated with your web hosting, try Bluehost.  If your website needs an overhaul, try WordPress.  Here’s a link to a page from which you can install WordPress:

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