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I’m Not Satisfied with My Lawyer. Can I Get My Money Back? And More Legal Q&A – Free Joe 12/7/12

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On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Keith: Can I ask my attorney to refund my money? One bill was for trial preparation. But thrn there wad no trail. I’ve been paying for custody trial since January. My life hasn’t changed. No mediation no trail. I’m just paying child support and now my attorney. But nothing has happend except my bill keeps increasing.

Joe Escalante: To deal with a divorce / child custody case effectively you need a lawyer, and you got one. That’s great. However, that doesn’t guarantee results. If he prepared for a trial, then charged you for “preparing for a trial” I don’t see any problem with this.
What you’re experiencing is very typical. This is the worst case scenario in life. It’s an extremely expensive and painful process.
If he never follows through and commits actual malpractice, there are remedies for that, but so far, what you described is just bad news, but now a breach of any duty so far.

Christopher: As a new LLC, what is some advice you’d have for me being an independent contractor and consultant? Should I keep every receipt and make logs of all I do? Just curious, as its a transition.

Joe Escalante: First, figure out the minimum tax in Pennsylania for LLCs. I think it’s $300. So even if you do no business, you’re going to have to pay that at tax time. Next, sit down with a tax professional and figure out how you are going to elect to be taxed, as a partnership? as a C-corp? All this matters and mainly all your concerns with this LLC are going to be tax related so get that person on board asap.
Be familiar with what makes you an independent contractor. Generally, it’s using your own tools, choosing your own hours and stuff like this. If you where a name tag with a company logo on it, you’re probably not an I.C. However, it’s probably more important that your clients know what I.C. status involves.

Robert: How much money should a “Business” be bringing in before it has to start filing taxes and actually forming an LLC? Like is there a Minimum/Maximum requirement for that

Joe Escalante: No minimum. You can be a sole proprietor or a partnership forever if you want. People form other entities after consulting with their tax advisor when money starts rolling in. Make sure you talk to yours. Or at least talk to Gary here on Thursdays. Click below.

LegalZoom: Here are the Ask the Tax Pro details, Robert:

Azure: If my mother just found my father after 35 years , is it to late to sue him for child support?

Joe Escalante: It depends on the state. California doesn’t have a statute of limitations for these obligations, but many states do. There are usually like 10 to 20 years.

Greg: As far as you know, what is the best way to go about getting Grandparents Rights, at least in the state of Wisconsin? My wife has NOT seen her grand daughter in over 5 years. Although the parents of this child are not married, the “dad” has NOT allowed my step daughter see her side of the family since their child, a girl, was born over 5 years ago. As I understand it, the “dad” does NOT want a jo
b, so my step daughter has the ONLY job between them. My step daughter also does all the housework and raises their daughter. The only communication between them and her side of the family is occasional phone calls between my step daughter and my wife, her mother, and chance meetings between my step daughter and her brother, my step son.

Who could I get in touch with in Wisconsin so my wife can see her grand daughter?

Joe Escalante: You’re in luck. Wisconsin is one of the few states that has a path for grandparents to petition for visitation rights.

Gerod: how do i make my neighborhood marching band reconized as a non profit org.

Joe Escalante: This is not a bad plan because it could result in people being able to pay your “neighborhood marching band” (if that’s what you want to call it) and tax deductible donations. Click below and read Legalzoom’s info on this. It’s not easy, but it can be done on your own with their help. A lawyer will cost $2,500 to $10,000 to complete this process. Also, you need a good tax advisor right away. Get one on board asap.
Gary gives tax advice here on Thursdays if you have more questions about this plan. When you’re done, check back with us and we’ll try to “drum-up” some donations for you guys.

LegalZoom: Here’s the link, Gerod:

Debra: I want to know if Mississippi has a “one bite” law for someone that has a dog and it attacked someone? Thanks,Debra

Joe Escalante: Mississippi has a “one bite” rule. My reading of it is that the owner is liable for the next bite. The first bite is a “who knew?”

Joe: I have a question. I started a Mobile App business with a partner a few months ago. We set up a LLC Partnership with a 50/50 split. After a few months of very hard work on my part I realized that I was going to be doing all the work and my partner was only there for a free ride. After creating the brand, generating 90% of the clients, and basically building the business myself, I have decided to split up and dissolve the company. Now he wants to continue on using all the material I created, including the logo, business name, taking credit for the apps that I built, etc… How do I prevent him from doing this? Is there grounds for a law suit?

Joe Escalante: This sounds like a legal mess. You could sue him for breach of contract or of a fiduciary duty involved in being a business partner or some other legal theory like that. However, you should consult with a local attorney experienced in this kind of litigation so you can learn how expensive this is going to be and the likelihood of recovering anything from your tool of a partner.

Kim: I was part of a group that broadcast shows on an online radio station and ran a Facebook page. After a brief illness I found that I was locked out of all of our accounts. My business partner has since filed for a trademark of the name and submitted the logo that I created. My name and image are still being used. I have asked for her to cease and desist the use of my image, voice recordings and the logo and other art that I created.

Joe Escalante: Sounds like at the very least you have a copyright infringement case for the logo, and perhaps breach of an implied contract with a covenant of good faith and fairy dealing, breach of fiduciary duty, and unjust enrichment. You might want to throw a couple terms like that around in your next correspondence. If there’s real money at stake, consult a lawyer to make your next letter have some teeth.

Cindy: I sold my house within 1 I had to find another I did.closing for both same day.the day before closing the realtor told me she had bad news.that the house I am buying is in foreclosure.iwas in total shock.i had to be out of my house the next day..the realtor knew this couple days before I was told. Should the bank and the realtor have known this? They did not offer me one of their apartments or anything…but suddenly a realtor friend of the realtor his son has a house for sale.i looked at it and decided to take it because I had no choice.i have’s ok but at my age I was looking for certain things in a the realtor friend felt sorry for me and said i could rent the house if I bought till closing.charged me 500.00 for a weekor so but did give me a little back…I was overwhelmed .has been over a year.still bothers me.and now I see the house that was in forclosure is for sale there a case here?

Joe Escalante: My guess is that the litigation costs in this would amount to more than the price of the house. If you won, and proved fraud, you might get your attorney fees covered by the other side. But you would also go through about 5 years of hell. They aren’t going to roll over, and it will be a mess. My advice is to enjoy your new house and imagine that other house is haunted or has toxic death mold.

Angela: Hey, I have a question for you. I was served a 5 day eviction notice for non payment of rent I called my landlord and told him I could pay him the back rent when I got paid. He then told me I was still evicted anyway for other tenants complaing that my children were “ringing peoples doorbells, and chasing their dogs”! The first I had heard about this, and had he warned me i would have corrected the situation! Is this even legal grounds for eviction? I live in Wisconsin.

Joe Escalante: 5 day means “pay or quit” in within 5 days. Promising to pay will not cut it. If you don’t pay within 5 days, a legal eviction will commence. You will be out very soon because unlawful detainer trials take precedence because the property owner can suffer irreparable harm if his property remains unrented waiting for court calendars to clear.
The other reasons he has will make no difference if the rent is not paid within 5 days. That will be all the justification he needs.

Lynn: I am a resident of Oklahoma but will be in California for a few months in 2013. If I work while I am there will I pay both California and Oklahoma state tax on that income or just California? Thank you!

Joe Escalante: Probably just Oklahoma, but to be sure, ask Gary on Thursday. Click below.

LegalZoom: Here are the details for Ask the Tax Pro, Lynn:

Kathy: Concerning life insurance and wills. If I make the beneficiary of my life insurance policies my estate, will it go towards paying my debts. Alternately if the life insurance beneficiaries are individuals are they paid the full amount of the policy with protection from my debt?

Joe Escalante: I haven’t read your policy, but in general, the proceeds payable on death, go directly to the beneficiary and even avoid probate proceedings. Your creditors should not be able to touch them.

Michael: Is it possible to get a divorce in Texas with a kid involved through a mediator or do we have to go through the court system?

Joe Escalante: You can do everything through a mediator and draft the support documents yourself, and then get it approved by the court so that it has legal teeth if violated. I don’t know the exact process in Texas, but it should be possible to do this. The state should actually prefer it.

Mary: What does it take to do a will and go you have include all your children ?

Joe Escalante: It’s not that hard, and you should mention your children so it’s clear if you want to leave them something. It should also be clear if you want to exclude them. If you don’t mention them, it will increase the likelihood they will challenge it in court as phony baloney. Click below and let LZ help you with this. That is my advice.

LegalZoom: Here’s a link for more info about the last will process, Mary. Let us know if you have questions!

Jeffrey: can i own a gun with no convictions on my adult record but though i have been to boyschool

Joe Escalante: There’s a gay bar in my town called boyschool, but it’s definitely not illegal to there, but you should keep your wits about you.
Each state governs their own requirements for gun ownership. If you have no convictions as an adult, you should be able to own a gun. A concealed permit is much harder though.

Golden: Is there a legal letter I can write up to prohibit someone staying away from my business ;)
Besides restraining orders ect ect ;)

Joe Escalante: You’re going to force them to shop? I assume you really want to keep them away. You can post a sign or tell them to leave. If they don’t, the proper procedure would probably be to report them to the police for trespassing. If that doesn’t work, and if there are grounds (like you are in danger), you can petition the court for a restraining order against them.

Megan: If an employee resides in nj but worked in pa.. do they collect unemployment from nj or pa?

Joe Escalante: I’m no expert but from what I understand, you file in the state you live in, but the benefit rate is based on the state you work in.

Sonny: Once someone is deemed incompetent by a doctor, is that hard to get reversed? Long story short- my aunt’s daughter has connections and has had her mom deemed incompetent. She has lost all access to her money and rights to live where she wants. She is trapped in a mental/nursing home that she doesn’t belong in. We are in Ohio if that helps answer. Thanks!

Joe Escalante: If this happened through the court, you would go to the same court and petition to have it reversed. If it didn’t happen through a court, the deeming had no legal effect and so you just have a family fight on your hands and you need to sit down with that doctor.

Denyse: Can IRS (personal) take any business assets of an LLC or a joint bank account?

Joe Escalante: Your LLC, if properly registered and maintained, should be shielded from IRS collections. The joint bank account would depend on who the actual owner of the bank account is. You should have a lawyer look at all this stuff.

Michael: Joe, in CA (County of Orange), can you request discovery in a civil case (e.g. unlawful detainer or civil lawsuit)?

Joe Escalante: In an unlawful detainer case I think you can file the Subpoena form L-0835 to get documents from the other side, and in a regular civil case you can always request discovery. Unlawful detainers are tricky because they happen so fast, so ask the clerk if that form is proper for this proceeding.

Michele: Living in a trailer park with our disabled friend and her son, whom we’re taking care of. Owner wants us out telling her is breaking contract rules, which she is paying mortgage. But he also wants us out because we used to live in same park, and he had to pay for whatever he had to clean. Needless to say, she is wheelchair bound and needs much assistance until am able to get her more help. What can do to fight him, she was already served by sheriff of him wanting to take possession of the trailer. Is it worth fighting him on, oh we are also homeless basically with no place else to go.

Joe Escalante: It seems like you are about to make her homeless too so you need to read the rules they say you are breaking and find a way to get this person the care she needs without putting her in breach of what may be a valid contract.

Miguel: How can we stop the government from spraying aerosols in the sky? How can we find out what is in the aerosol they are using with the lies that it is to fight global warming?

Joe Escalante: I’ve never heard of this problem but your prose about it is so poetic I think you have the beginnings of a protest song. The answer, my friend, is blowing in the wind. The answer is blowing in the wind.

Wendy: What’s the cheapest way to sue a large corporation for breach of contract, and what kind of attorney would handle that?

Joe Escalante: You need someone experienced in plaintiff litigation. Cheapest way is to do it yourself by just using the pre-printed complaint forms provided by the court. However, if they don’t blink, soon you will be a bit overwhelmed.

Maurice: If you own an LLC in California, are you allowed to have multiple businesses underneath the LLC? If so, how does it work? For example, if an attorney opens his practice called Law office of Joe Smith LLC, can he also under that same LLC have another separate business called Smith Consulting Group?

Joe Escalante: You can, but it’s different when you have a professional corporation like a law firm. A law firm can’t own other business willy-nilly. They are regulated in a special way.

Scott: Hi Joe, this is Scott from San Diego Entrepreneur Center. I have a corporate tax question regarding an internet marketing company with corp offices offshore. Is an offshore company receiving income from US companies obligated to pay US taxes?

Joe Escalante: This is a great question for my friend Gary the tax expert who is here on Thursdays. Click below.

LegalZoom: Here’s the info for Ask the Tax Pro, Scott:

Wendy: How do you get a charge exspunged? And does it cost anything?

Joe Escalante: It costs a lot, it’s not automatic, in fact it’s rare. It usually involves the work of a high priced criminal defense attorney. The process starts with the State Attorney General’s Office, I believe.

Mel: From a legal standpoint in terms of owner accountability…what are the major legal differences between an LLC, corporation, sole proprietership, s corp?

Joe Escalante: LLC, and corps offer the same accountability in terms of legal liability. If they are done right, your personal assets are protected from litigation against the companies. As a sole proprietor, you don’t have this protection, but many people get protection that is adequate by just being properly insured.

Elaine: If my Mother passed away w/o a will, no major assets, Im the remaining immediate fam member…am I responsible for her bills? Final expenses? And how do I declare myself the person who can have the remainder of her checking acct to recoup at least some of the funeral expenses. Oh..she lived in CA and I live in SC…ugh!

Joe Escalante: Sorry about this Elaine. This must go through probate. I would get this book and start reading it. This is not going to be fun. In fact, it’s going to suck.

Eva: Is it true that the courts can not hold your licence over 5 years whether u owe or not?? they took mine for f.t.a. i have never had a accident OR ticket in my life a police pulled me over i did not have my licence so i got a fi it ticket and thats how it all started. its called the 5\25 rule OR Law i think.

Joe Escalante: I don’t know about that law, but I think your best bet is telling the best story you can to a traffic judge in court and try to get the amount you owe reduced, or off set with community service.

Sheila: what happens in a revocation hearing son was on 5 yrs paper did 3 yrs what will happen he was arrested on class c felony not covicted

Joe Escalante: There’s no way I can answer this. Sorry. I’d have to read the file, and I can’t read. I’m just a skull with two crossed gavels. It all depends on the specific culture of that court and the temperament of the judge. And of course the facts.

Jason: Are Rhode Island Student Loan Authority (RISLA) loans private loans that can be discharged in bankruptcy?

Joe Escalante: No. 99% sure on that one.

Wendy: I was found knocked unconscious on the road with my motorcycle running a few feet from me. I am being charged with a DUI. Can I fight it? They took blood from me. I was actually trying to get the bike running not driving it.

Joe Escalante: I think you’re toast. Unless you have a lot of time and money, then you might have a shot with a good criminal defense attorney.

William: If you were to open a corporation and issue yourself 1million shares of stock at 100,000th of a penny a share and the corporation owned a building, if you issued 1 share of stock to each “member” and then allowed said members to walk around naked inside this private building. and upon entry the members paid a Due would it be legal? Someone presented this to me as a way to get around the current ban on nude dancing in town. Just curious about the legalies. If the shareholders were in fact part owners but not to a significant degree to matter on decision making. Could you in fact have nude men and women and still charge a Due at the door for members?

Joe Escalante: This would last about as long as it would take for the city to pass a new law preventing these kinds of corporations. Also, the Secretary of State may not qualify it as a “legal purpose” to have a corp. However, it would make a good episode of Law and Order, or the Apprentice. Or Here Comes Honey Boo Boo.

Karen: Is it better to file your own 501c3 documents/paperwork or have them professionally prepared?

Joe Escalante: It’s really hard to do it yourself. Really hard. But if you’re crafty, it can be done. Jut make sure you are consulting with your tax pro along the way.


Joe Escalante: You file for divorce in the county where he last lived, or where you guys were married, and the hearing gets publicized and you try to serve him. If a judge decides you did your best and his rights are being protected enough, a divorce can be granted even though he didn’t show up, because he had his chance. Burn.

Michael: How do I get all my inventions patented? What are the first steps I should be taking? Thank you Mr. Escalante.

Joe Escalante: The first step is usually filing a provisional patent. That will last a year so you can decide if it’s all worth the money to go forward. And you can write “patent pending” on it I think.

Click the link below to find out more:

LegalZoom: Here you go, Michael:

Angel: I want to start a Community Development Corporation in California as a non-profit organization. What paperwork must I fill out for the Feds and the State of CA to be recognized as a 501c3 nonprofit org?

Joe Escalante: Read Legalzoom’s info on this. It’s not easy, but they can make it happen with least amount of cost and drama. And the info is free. Good Luck!

LegalZoom: Here’s the link, Angel:

Jose: What do I need to do to file a LLC in California? How to I get a ein ?

Joe Escalante: You should read the Legalzoom info on both of these. Then you either do it at Legalzoom, or hire an attorney. I think you know which one is cheaper. The most important thing is to get a good tax advisor on board before you make any decisions. You might be better off as a sole proprietor or a with a partnership for a while. Tax advice is key.

Rania: I have a tech startup company and consulted with a lawyer to create the terms and conditions of my company but then he want me sign a paper that to state that he is not obligated to present me in case I got sued for the what he created unless I sign a new contract or agreement to take place. How is a lawyer is not held responsible for the terms and conditions that he wrote?!

Joe Escalante: A lawyer is responsible for doing what you paid him to do. If he commits malpractice, he is liable for that and he probably has insurance for it. However, just because he drafts documents, doesn’t mean he had to represent you in court if you end up in litigation over them. You would have to make a new deal with him for that. I don’t see anything wrong here. Sorry.

Teresa: Do a spouse or legal children have legal right to property regardless of what a last will and testament states?

Joe Escalante: No. You can leave your stuff to the neighbor kids if you like. However, you can’t bequeath your husband’s share of community property to any one.

Kelley: Can you sue the federal government for your student loans because the undisclosed terms are unconscionable?

Joe Escalante: You can try, but it’s a loser.

Dorothy: What is the best way to convert from a partnership to an LLC?

Joe Escalante: You just create an LLC according to your state’s rules with the partners as managing members of the LLC. Most importantly, have your tax advisor on board the whole way.

Corey: Can Sales Letters be copyrighted? Can the person who wrote it claim it’s theirs??

Joe Escalante: It has to be minimally creative to warrant a copyright and there is no clear standard on what is minimally creative. Sounds boring, but could still be creative. It would depend on many factors. Give it a try. It’s cheap. Remember that facts are not protectable, even recipes aren’t protectable, if that gives you any clue as to how this will turn out.

Barkeiya: Do I have a claim for lost wages against a person who hit my car; while parked and refused to cooperate with her insurance company’s attempt to investigate delaying my access to a rental car? It’s been 11 days and they just accepted liability today. I rented a car after the company did not respond after 48 hours (their policy is 24 hours)

Joe Escalante: You can tack that on as your damages. If the court sees it as reasonable, you may get it. However, some states have statutory limits on such things so it’s not 100%.

LegalZoom: Wow! Tons of questions today! Thanks to all of you for your questions and thanks to Joe Escalante of Barely Legal Radio w/ Joe Escalante for his answers.

Joe will get to the questions in the order they came in. If you haven’t posted your question yet, save it for next week and join us on Tuesday when Joe will be back with more free legal advice!

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December 11th, 2012 at 6:00 am