Delaware Business Lawyer Blog

The hourly fee has been a traditional basis for billing clients. As a Delaware attorney, I've found that it doesn’t have to be that way. Here’s an example of an alternative way to determine the fees you’ll be paying your attorney. If a lawsuit has to be filed, we’d begin with a written plan that outlines what you can expect throughout the lawsuit. The plan will vary according to the complexity of the case and the issues raised. The plan also has to take into consideration the amount in dispute so that the litigation is cost effective. In addition, the written plan could provide a timeline for the various stages of the case. For a lawsuit, a general outline would possibly include:

(1) Meeting with client and review of documents
(2) Draft the Complaint
(3) Send Complaint to client for review and input
(4) Revise draft
(5) File Complaint with the Court
(6) Monitor service of the Complaint by the sheriff on the defendant
(7) Review Answer prepared by defendant’s attorney
(8) Discuss with client the defenses raised in the Answer
(9) Prepare initial discovery requests, such as written interrogatories, request for production of documents, and request for admissions
(10) Consult with client to obtain facts needed to respond to defendant’s discovery requests
(11) Draft responses to defendant’s discovery
(12) Review defendant’s responses to our discovery requests
(13) prepare for depositions of defendant and witnesses (if any)
(14) settlement negotiations
(15) mediation
(16) conference with judge and defense attorney
(17) organize exhibits for trial
(18) prepare for trial
(19) trial of case

If the legal matter does not involve litigation but rather the preparation of a contract or other documents, a written plan can outline the steps needed and the anticipated fees for client meetings, drafting, review, and revision of document.

Once the written plan is prepared, the next step is to estimate what the attorney’s fees will be for each of the items on the plan. These can be estimates, or the attorney and client can agree on a fixed fee for each step along the way.

The idea is that attorneys and clients can reach an agreement on fees based on how creative they choose to be.

If you're an employer in Delaware, you might consider meeting with your business attorney to discuss the changes to the Americans With Disabilities Act that became effective January 1, 2009. Under what is referred to as "the 2008 amendments," there are significant changes in the law, including the definition of the word "disabilities."

Here are just a few things you need to know.

Employers who are covered by the ADA law are required to make sure that individuals with a disbility have an equal opportunity to apply for jobs and to work in jobs that they're qualified for. Once an individual with a disability is hired, you have to make sure that they have an equal opportunity to be promoted. You also have to make sure that such person is given equal access to the same benefits offered to other employees. And you have to make sure that such persons are not harassed because of their disability. This last point about harassment has to be taken seriously. If you receive a complaint from one of your employees that he or she is being harassed because of their disability, you should conduct an immediate investigation and take whatever action is needed to fix the situation.

Most employers know that they can't ask certain questions during a job interview. But what exactly are the questions that can't be asked? You can’t ask the job applicant about their physical or mental impairment. You can’t ask how they became disabled. You can’t ask the applicant about the medicines they take. And you can’t ask the applicant about their workers' compensation history.

The subject of accommodations is brought up a lot by employers, and this will be explained in future articles.

How often do we all go to our fax machines only to find an advertisement that we crumble up and throw in the trash as we mumble an expletive deleted? Well, you can do more that throw it away. You can actually file a lawsuit against a company that sends you “junk” faxes, and you can collect up to $500 in damages for each violation. In fact, the court may even award you up to $1,500 for each violation if it’s determined that the company knowingly committed the violation.

Under federal law, it’s unlawful for someone to send to your fax machine an unsolicited advertisement without your express prior invitation or permission. On the other hand, it would not be a violation if the sender has an established business relationship with you. And even in those circumstances, if you tell them to stop, they're required by law to stop sending you these junk faxes no later than 30 days after you make your request. If they fail to honor your request, that’s another violation.

In my next articles on this topic, I’ll discuss other options besides filing a lawsuit, and I’ll go into greater detail about the rules concerning established business arrangements (also known as “EBRs.”

The IRS has published a Tax Calendar For Small Businesses and Self Employed. This 2009 calendar of due dates and actions can actually be imported into Outlook. According to the IRS, this calendar is packed with useful information on General business taxes • Internal Revenue Service and Social Security Administration customer assistance • electronic filing and paying options • retirement plans • business publications and forms • common tax filing dates • federal legal holidays. Look for some brain teasers too! Each page highlights a different tax issue that may be relevant to your business. You may find it helpful to read through the entire calendar, then refer back to pages that pertain to you. Don’t miss the tear-out Hints & Help Guide at the end of this calendar. You’ll find room on each month to add your notes, such as state tax dates or appointments.

If you're an employer here in Delaware, it's important to understand the rules relating to unemployment compensation. A great place to start is the Delaware Dept. of Labor's "Unemployment Insurance Handbook For Employers."

You should also become familiar with the term "just cause." Let's say you've just received written notice that an employee you recently fired has applied for unemployment compensation. You're going to have to decide whether or not to challenge this employee's eligibility for benefits. In making this determination, a term that often comes up is "just cause."

As a Delaware business attorney, I reviewed this issue just last week with a business owner. Simply stated, an employee who is fired for just cause is disqualified from receiving unemployment compensation benefits. The Courts in Delaware define just cause to mean a willful or wanton act or pattern of conduct that's in violation of (1) the employer's interest, (2) the employee’s duties, or (3) the employee’s expected standard of conduct.

“Willful and wanton conduct" means conduct that's evidenced by either a conscious act by the employee or reckless indifference that leads to a deviation from established and acceptable workplace performance.

Just cause has been found to exist, for example, where an employee failed to comply with his employer's policies. As the employer, you'll have to show that the policy actually existed, that the employee was aware of the policy, and that the employee knew a violation of the policy could be reason for termination.

As a Delaware business attorney, part of my responsibility to my clients is to help them avoid legal problems. A legal check-up or legal audit can save a business owner a lot of time, money and aggravation in the long run if we can identify potential problems and deal with them before they get out of hand. In this series of articles, I’ll address various areas that appear on my legal audit checklist.

In this article, let’s discuss the topic of “escheat.” It turns out that many business owners are unfamilar with the concept of escheat, and they don't realize that they have a legal obligation to report and turn over to the Delaware Division Revenue abandoned or unclaimed property in their possession.

Like other states, Delaware has an unclaimed property law. There are lots of examples of unclaimed property. For instance, you issue a paycheck to an employee who has resigned, but the employee never cashes the check. Or you have a bank account that’s been dormant for several years. Or you send a supplier a check and the check is never cashed. The list also includes uncashed dividend checks, uncashed refund checks, unclaimed insurance proceeds, and stocks and bonds. In addition, if a person dies without a will and there are no known heirs, the deceased’s property is considered abandoned and unclaimed.

Once these funds or assets have been unclaimed for a period of 5 years, they're generally considered abandoned. Businesses with abandoned property have to send written notice to the last known address of the owner. If the abandoned proeprty remains unclaimed, a business has a legal obligation to report it to the State and turn it over to the Division of Revenue. Failure to comply carries stiff penalties.

The legal process whereby the government takes control of the money or assets is known as “escheat.”

Here’s the interesting part. You can search whether any state or even the federal government is holding funds or property that belong to you. In this regard, on October 31st, 2008, the Delaware Division of Revenue published in the News Journal and the Delaware State News the names of approximately 75,000 owners of unclaimed property in Delaware.

Delaware has a searchable database that lists owners who have a last known address in Delaware. There is even a national database that gives you the ability to search for assets that belong to you in other states.