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Search Warrants, Deadbeat Landlords, and More Free Legal Advice – Free Joe Tuesday 9/27/11

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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.

Courtney: is a search warrant any good if the wrong name on it but correct address.. and was i suppose to see the warrant before they knocked the door down!! and what kind of evidence they need to issue a search warrant??

Joe Escalante: If the authorities confiscated any evidence during their search, your goal is to keep that evidence out of court. One way to do this is to attack the search warrant as faulty. However, a search warrant is for a place, not a person. If the address is correct, it would be hard to attack it. An arrest warrant should have the name correct, but a search warrant just needs to have the address correct to pass muster in most instances.
Should you see it first? Theoretically yes, but sometimes the warrant is useless if they have to show it to you first because while they are showing it to you, someone is behind you destroying evidence so some element of surprise may be approved by the court.

Cathy: My coworker tracks my sick and vacation time. Do I have any recourse? Does this qualify as creating a hostile work environment?

Joe Escalante: If she has no authority to do so, it qualifies as a creepy work environment to say the least. In situations like this, the protocol is to make a written complaint to your superior to get it on record. There may be nothing you can really do about this, but what if it escalates into something more obviously hostile like logging data about repeated wardrobe combinations? You gotta get the stuff on record to have recourse. You are putting your supervisor on notice. That’s key. They will be held accountable if things escalate and they continue to do nothing.

Tina: What is a good LSAT score?

Joe Escalante: 100%

If you want to have a chance at a top ten school, you need a 170 (the range is from 120 to 180). If you don’t get a 150, you might want to take it again. Make sure you go to a prep course. That is vital.

Michael: Hey Joe, I live in a condo that I rent from a woman living out of state. She (my landlord) owes the building’s Home Owners Association several thousand dollars and their attorneys are requesting that I now pay rent directly to the HOA instead of my landlord. Can they do that? Should I continue to pay my landlord until seeing something from a judge?

Joe Escalante: You should tell them in writing that if you pay them, without a court order of garnishment or some equivalent, you will still be liable for the rent to her. What if her bikini waxing bill isn’t paid on time? Should you pay them too? Sorry to put that image in your mind, but without a court order it makes about as much sense as paying that bill for her too.

Missylynn: Question for Joe: Does a prosecuting attorney have to notify a victim or the victim’s family in a criminal proceeding, if it was requested of the attorney to do so?

Joe Escalante: The duty of a prosecutor to notify a victim or their family varies from state to state, and even jurisdiction to jurisdiction within each state. It also varies between rights of the victim, and rights of the victim’s families. Most jurisdictions recognize the right of a victim to be notified as to the proceedings and to attend, give voice, and confer with prosecutors.
There are some states that have put this stuff in their state constitutions, like the notification of a dangerous perp about to be released.

Willnella: I am doing an internet website with a friend. What type of legal documents do we need to solidify the partnership and protect each other in the future?

Joe Escalante: You should have a partnership agreement at least. This spells out the duties each partner has to each other and to the partnership/project. It also spells out what are the partnership assets and what happens if one partner wants to leave, or how a partner can be booted with “cause.”
Other things to think about are an Employer Identification Number (EIN) so you can open up a bank account.

If you start to make money, you might get an LLC, or incorporate. Talk to your tax pro to see when this makes sense. Liability insurance is a great idea at any stage of the business. With a partnership agreement and insurance, and a good tax pro, you can get most of the advantages of incorporating without going through that process yet.

John: How do I protect or copywright a slogan and variations there of?

Joe Escalante: Learn the difference between copyright and trademark. It is possible to trademark a slogan or phrase in connection with a product or service. It would be difficult to copyright a slogan. A copyright protects the creative expression of an idea. A book or a song is a creative expression of an idea. Is a slogan? Probably not.

“I can’t believe I ate the whole thing” is a slogan associated with Alkaseltzer. Since they are using it in commerce, they can apply for federal protection to prevent other people from using it in commerce thereby creating a likelihood of confusion in the marketplace for consumers.

The key is you have to be using the slogan in interstate commerce to qualify for a trademark. You can’t just register cool things you think of and squat on them. The law doesn’t protect that behavior.

Here’s a cool article on the topic from the geniuses at Legalzoom:

LegalZoom: And here’s a video featuring Joe: :)

Nathan: Hey Joe I have a business partner overseas that owns 39% of our LLC. Can I write off business expenses that occur out of the US?

Joe Escalante: That’s a question for your tax pro, not free Joe, sorry. But here’s a hint, some of them, yes.

April: What is my first legal move in starting my business? a liscense…etc…what?

Joe Escalante: A license is a good thing to get locally. First, sit down with a tax professional. Talk to someone at your bank and ask them what docs you need to open up a business checking account. You should just need anEIN, Employee I.D. Number. Then some liability insurance.
Your tax pro will advise you when you can move from a sole proprietorship/partnership to a LLC or Corp. Good luck!

Becky: Am I obligated to pay a credit card that was established with my social security number but the credit card company has my name wrong on it?

Becky: I contacted the company and was told I have to prove the name is wrong before they will change it. It really bothers me that a card could be issued to Marie when my name is Mary. Seems to me showing your ID is a waste of time if the company can put any name on the account that they want to misspell.

Joe Escalante: If you incurred the charges, something like that wont relieve you of your liability.

Peter: will, trust, or POD/TOD?

Joe Escalante: I don’t have a trust because I have no kids and my house is held in joint tenancy with right of survivorship. If I die, it passes automatically to my wife w/o probate and w/o a trust.

If I had kids, I would immediately put all my property into a trust so that my kids could avoid probating the crap I leave to them. Probate is not fun. It’s to be avoided.

Peter: Thanks. I do have one boy who is 6. Should I make the beneficiary of my 401K and any other financial account this trust that I create or should it be my son?

Joe Escalante: Each type of property is different. With a 401K, you can name someone as beneficiary and it doesn’t need to go into your trust, even if it was legal to put it in your trust. However, these are questions better asked of your tax pro. If you don’t have one, get one soon.

Liz: Two for Tuesday:
1. Is there a law school in CA I can apply to and use 30 years entrepreneur/career experience in absence of a bachelor’s degree? I live near Pepperdine and have made contact with admissions office.
2. Can a franchisor revoke a franchisee’s license agreement for not purchasing non franchise specified items from their “required” distributor? Items are the same brand at a lower price through a competing distributor.

Joe Escalante: I don’t know of any school that publicizes accepting students who have not completed an undergraduate degree, not even Abraham Lincoln online law school.

I would start at the bottom of all law schools, (which is not Abe Lincoln, btw) and start asking the admissions people.

#2. The answer depends on the written terms in your franchise agreement. Of course you could get the stuff cheaper, but that’s part of the deal. If you make a deal with them that you can go buy the stuff anywhere, the franchise fees will just go up. Pick your poison. Did I ever tell you about my idea for a Taco Bell that serves margaritas?

Crystal: I have a business where I make skin care products. I have several friends that would like to be consultants and sell my products through parties. What kind of legal paperwork/contracts do I need to have them sign?

Joe Escalante: It sounds like multi-level marketing, so you should investigate that business model. there are a lot of ways to break the law in that world if you don’t do it right so be careful and get a lawyer. Check out this link

Zane: Can I copywrite a television treatment?

Joe Escalante: Yes, but it has to be detailed, i.e., more than an outline. It has to qualify as a creative EXPRESSION of your idea, not just an idea itself.

copyright is the spelling

Kevin: I hear Nevada is a common law state, what does this mean in a divorce?

Joe Escalante: Nevada does not recognize common law marriages.

Karen: How can I legally charge a school, organization, or company for my services if I operate as a non-profit corporation?

Joe Escalante: It is legally OK for a non-profit to earn money. It’s what the non profit does with that money that could get you in trouble. Talk to your tax pro about that.

Theresa: I was with someone for 13 years he wanted prenupt we got one. He wouldnt honor it when we split, he still followed me around and bothered me for another 15 years he died in march corriner chased me down 1st cause ran his ss# my name came up first. Trying to get his family to honor prenupt even though i am now married and have a little one. Only fair to me cause ex and i had property ect. I walked away lucky to be alive. Legal prenupt

Joe Escalante: You need a lawyer. You have a contract, it would be simple to enforce if he was alive, but since he’s not, it gets really complicated. Carrie is going to provide a link for you to Attorney Connect so you can start talking to some lawyers that specialize in family law.

LegalZoom: Hi Theresa, Here’s the Attorney Connect link:

LegalZoom: That’s a wrap for Free Joe Tuesday! Come join us on Friday for more free legal advice from Barely Legal Radio w/ Joe Escalante. See you then!

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September 29th, 2011 at 6:12 am