Whether it is a commercial or a matrimonial matter, there can be a need for an investigator (costly but effective) as noted in this recent landlord/tenant case:
NY POST - Nolita landlords say tenant earned $500K over 4 years by illegally renting out apartment as a NYC ‘hotel room’ - used private eye posing as tourist to out sublet
Showing posts with label Investigations. Show all posts
Showing posts with label Investigations. Show all posts
Monday, August 5, 2013
Tuesday, July 20, 2010
PREPARING FOR ANY TRIAL - CLIENT STRESS
Recently, I had a trial where my client gave testimony about facts that I was never advised of. How did this happen? This is my view: due to the stress that a client goes through during a litigation, there is much confusion. Some things a client may be thinking is:
1. I think I told the attorney everything.
2. I am going to withhold information that I feel will not be helpful.
3. The attorney will be able to ascertain all the facts on his or her own.
4. I don't want to put any more effort into this than I have to as it is already stressing me out...let the lawyer figure it out
And the list goes on. This is a recipe for disaster because the attorney cannot prepare for trial if the attorney does not have all the facts. This is a good time to remind clients of their responsibilities, courtesy of the New York State Bar Association:
"Statement of Client’s Responsibilities
Reciprocal trust, courtesy and respect are the hallmarks of the attorney-client relationship. Within that relationship, the client looks to the attorney for expertise, education, sound judgment, protection, advocacy and representation. These expectations can be achieved only if the client fulfills the following responsibilities:
1. The client is expected to treat the lawyer and the lawyer's staff with courtesy and consideration.
2. The client's relationship with the lawyer must be one of complete candor and the lawyer must be apprised of all facts or circumstances of the matter being handled by the lawyer even if the client believes that those facts may be detrimental to the client's cause or unflattering to the client.
3. The client must honor the fee arrangement as agreed to with the lawyer, in accordance with law.
4. All bills for services rendered which are tendered to the client pursuant to the agreed upon fee arrangement should be paid promptly.
5. The client may withdraw from the attorney-client relationship, subject to financial commitments under the agreed to fee arrangement, and, in certain circumstances, subject to court approval.
6. Although the client should expect that his or her correspondence, telephone calls and other communications will be answered within a reasonable time frame, the client
should recognize that the lawyer has other clients equally demanding of the lawyer's
time and attention.
7. The client should maintain contact with the lawyer, promptly notify the lawyer of any change in telephone number or address and respond promptly to a request by the
lawyer for information and cooperation.
8. The client must realize that the lawyer need respect only legitimate objectives of the client and that the lawyer will not advocate or propose positions which are
unprofessional or contrary to law or the Lawyer's Code of Professional responsibility.
9. The lawyer may be unable to accept a case if the lawyer has previous professional
commitments which will result in inadequate time being available for the proper
representation of a new client.
10. A lawyer is under no obligation to accept a client if the lawyer determines that the cause of the client is without merit, a conflict of interest would exist or that a suitable working relationship with the client is not likely."
What I ask my clients to do is to write out, in diary form, their testimony, answering the basic questions of who, what, where, when and how as to each detail. Unfortunately, there are times when there is not full compliance with my request and this is how cases can be lost.
1. I think I told the attorney everything.
2. I am going to withhold information that I feel will not be helpful.
3. The attorney will be able to ascertain all the facts on his or her own.
4. I don't want to put any more effort into this than I have to as it is already stressing me out...let the lawyer figure it out
And the list goes on. This is a recipe for disaster because the attorney cannot prepare for trial if the attorney does not have all the facts. This is a good time to remind clients of their responsibilities, courtesy of the New York State Bar Association:
"Statement of Client’s Responsibilities
Reciprocal trust, courtesy and respect are the hallmarks of the attorney-client relationship. Within that relationship, the client looks to the attorney for expertise, education, sound judgment, protection, advocacy and representation. These expectations can be achieved only if the client fulfills the following responsibilities:
1. The client is expected to treat the lawyer and the lawyer's staff with courtesy and consideration.
2. The client's relationship with the lawyer must be one of complete candor and the lawyer must be apprised of all facts or circumstances of the matter being handled by the lawyer even if the client believes that those facts may be detrimental to the client's cause or unflattering to the client.
3. The client must honor the fee arrangement as agreed to with the lawyer, in accordance with law.
4. All bills for services rendered which are tendered to the client pursuant to the agreed upon fee arrangement should be paid promptly.
5. The client may withdraw from the attorney-client relationship, subject to financial commitments under the agreed to fee arrangement, and, in certain circumstances, subject to court approval.
6. Although the client should expect that his or her correspondence, telephone calls and other communications will be answered within a reasonable time frame, the client
should recognize that the lawyer has other clients equally demanding of the lawyer's
time and attention.
7. The client should maintain contact with the lawyer, promptly notify the lawyer of any change in telephone number or address and respond promptly to a request by the
lawyer for information and cooperation.
8. The client must realize that the lawyer need respect only legitimate objectives of the client and that the lawyer will not advocate or propose positions which are
unprofessional or contrary to law or the Lawyer's Code of Professional responsibility.
9. The lawyer may be unable to accept a case if the lawyer has previous professional
commitments which will result in inadequate time being available for the proper
representation of a new client.
10. A lawyer is under no obligation to accept a client if the lawyer determines that the cause of the client is without merit, a conflict of interest would exist or that a suitable working relationship with the client is not likely."
What I ask my clients to do is to write out, in diary form, their testimony, answering the basic questions of who, what, where, when and how as to each detail. Unfortunately, there are times when there is not full compliance with my request and this is how cases can be lost.
Tuesday, December 29, 2009
UNEMPLOYMENT INSURANCE - OVERPAYMENTS
A recent consultation revealed the following. Claimant was terminated due to lay off and filed for unemployment benefits. Claimant received several weeks of benefits. Employer filed objection and during investigation, Claimant did not respond to investigation because Claimant found new employment. This was a mistake because the Department of Labor, having no evidence to the contrary, decided that Employer's objection would be granted and penalized Claimant. Even though the amount in dispute is small, Claimant must have a hearing to eliminate not only the overpayment but the additional penalties involved. This is from a handbook on representing yourself in an unemployment insurance hearing from MFY Legal Services which works in concert with community organizations to provide free civil legal assistance to those in greatest need:
"You are not obligated to refund overpayments if you accepted them in good faith (you believed you were entitled to the benefits), you did not make any false statements, AND you did not willfully conceal any pertinent fact in connection with your claim for benefits. New York Labor Law § 597.
You can be required to refund overpayments if you made a false statement of fact in connection with your claim for benefits, even if the false statement was inadvertent. For example, you could be required to refund benefits if you made an incorrect statement about the amount of your base period earnings and weeks of employment, even if it was an accident. A.B. 257,498; and A-750-2106.
If you made a statement that was an “error of law,” but was not a false statement of fact you cannot be required to refund the benefits. For example, if you reported a total lack of employment, but it is later determined that you were doing activities that actually constituted employment, your statement may not be a false statement of fact if an ordinary person would not have considered him/herself employed under those circumstances and you in fact did not realize that your activities were 'employment.' See Claim of Valvo, 57 N.Y.2d 116, 440 N.E.2d 780, 454 N.Y.S.2d 695 (1982).
If the false statement was made inadvertently (i.e., you did not know it was false), the DOL will collect the overpayment by collecting 50% of your future benefits. 12 NYCRR § 470.5"
"You are not obligated to refund overpayments if you accepted them in good faith (you believed you were entitled to the benefits), you did not make any false statements, AND you did not willfully conceal any pertinent fact in connection with your claim for benefits. New York Labor Law § 597.
You can be required to refund overpayments if you made a false statement of fact in connection with your claim for benefits, even if the false statement was inadvertent. For example, you could be required to refund benefits if you made an incorrect statement about the amount of your base period earnings and weeks of employment, even if it was an accident. A.B. 257,498; and A-750-2106.
If you made a statement that was an “error of law,” but was not a false statement of fact you cannot be required to refund the benefits. For example, if you reported a total lack of employment, but it is later determined that you were doing activities that actually constituted employment, your statement may not be a false statement of fact if an ordinary person would not have considered him/herself employed under those circumstances and you in fact did not realize that your activities were 'employment.' See Claim of Valvo, 57 N.Y.2d 116, 440 N.E.2d 780, 454 N.Y.S.2d 695 (1982).
If the false statement was made inadvertently (i.e., you did not know it was false), the DOL will collect the overpayment by collecting 50% of your future benefits. 12 NYCRR § 470.5"
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