Poor communication is the oldest and most common complaint about attorneys. And unfortunately, it’s often true. Many lawyers treat their firms like a part time job rather than a full time business. This can be very frustrating to clients, both new and old. A court case is designed to be a slow process that prioritizes careful information gathering over quick solutions. Insurance claims are the same way. The long timeline can leave many clients feeling adrift, without a clear sense of where the case is going and when it might get there. If your attorney doesn’t have the common courtesy to return phone calls and emails, it gets frustrating fast.

So why doesn’t the lawyer answer the phone when you call?

There can be some good reasons. First, lawyers have many clients, just like doctors have many patients. That’s not bad for you, because a lawyer who has shepherded many others through the process will know how to handle any curveballs thrown at your case. The last thing you want to do is hire an attorney who only touches your type of case once each year. But the downside of an attorney having many clients is that your attorney may not be able to pick up the phone right when you call. Instead, the attorney might be in court, in a deposition, or calling another client. And that’s ok; it’s what the attorney is supposed to do.

Second, an attorney being unavailable for a call might be an example of good customer service rather than bad. At Lawrence & Associates, every new client sits down with their attorney for around an hour and discusses the issues in the client’s case, likely outcomes, and things the client can do to help the case move forward efficiently. That’s great customer service – many law firms never set up a meeting between client and attorney before starting the case, and some don’t let you meet with the attorney in person until the case is ready for settlement. But the flip side of that meeting is that every Lawrence & Associates attorney is unavailable to answer calls while the attorney is in these one hour consultations. We think – and most clients agree – that its better for everyone to get comfortable with each other at the beginning, even if it means some callers have to leave a message.

Third, remember that lawyers and paralegals work in a team just like doctors and nurses do. Some clients call to speak to their attorney and speak to the paralegal working on their case instead. As long as the paralegal is able to answer the client’s questions, that’s ok! Just like calling a doctor’s office generally results in you speaking with a nurse, many attorney office calls result in you speaking with a paralegal. Lawrence & Associates’ paralegals are well trained and have worked here for years. Many paralegals have degrees or certifications to help them do their job. Sometimes, a paralegal might be even better at explaining things than the attorney is. If you call in and get to talk to the paralegal, don’t feel slighted. As long as you’re getting your question answered, you’re accomplishing what you set out to do.

But the Attorney Never Responds to Me. When is Enough Enough?

There are good reasons an attorney might not be able to take your call right away, but if your legal team isn’t responding to you at all that is unacceptable. Lawrence & Associates requires the legal team to respond to client calls and emails within 48 hours (except for weekends and holidays). We set the limit at 48 hours because sometimes attorneys are in trial or in a series of depositions that makes 24 hours impossible. If clients don’t get a response within 48 hours, they can escalate the issue to their attorney’s supervisor. The supervisor will get the phone number or email the client used and check the firm’s phone and email records to make sure we received the call and email and didn’t return it. In rare cases where there is not some reasonable issue (e.g. we sent a reply email but it bounced back, or we called but couldn’t leave a voicemail because the mailbox was full), the attorney or paralegal can be disciplined.

Not all firms have such a strict communication requirement, so here are some tips to maximize the chance you resolve the issue without needing to find a new attorney:

1. Make sure you try phone and email. Some people are good about returning calls but not emails, or vice versa. And sometimes attorneys can respond to an email right away even when they can’t take a call. For example, sometimes attorneys are waiting for their case to be called by the judge, but court is running late and the judge is dealing with other attorneys. Your attorney may have wi-fi access and be able to respond to your email while he or she is waiting.
2. Make sure you try the paralegal too. I can’t stress enough that paralegals are legal professionals and have access to all the information the attorney has access to. They are hired to help, so give them a chance to help you!
3. If you start to feel frustrated, ask to schedule an appointment with the attorney. You might have to wait a week to get one, but lawyers are chained to their calendars. If they have time carved out for you, the attorney will be there. If the attorney won’t schedule an appointment with you, it is a sign that something is seriously wrong.
4. Keep a journal of the number of times you called or emailed with no response, include the phone number and email address you used. Consider sending the attorney a letter with this list and demanding better service. The longer the list, the more embarrassed the attorney ought to be.
5. Ask to escalate. For larger law firms, and for firms that are run like a business, there ought to be a corporate hierarchy. That means your attorney may have a boss. Just like you’d ask to speak to a store manager, ask to speak to your attorney’s supervisor.

If none of these tips work, and if you’re getting absolutely no feedback from your legal team, you should look for a new attorney to represent you. Clients are allowed to fire attorneys at will, and firing an attorney for a failure to communicate is considered a “for-cause” firing that prevents the non-communicative attorney from recovering a fee in contingency cases. This helps you find a new attorney, who won’t be as concerned about taking the case but not being able to recover a fee. When you sit for a consultation with the new firm, be sure to ask them what their policy is on returning client calls and emails before you sign a new contract. If they don’t have one, move on.

If you have any other questions about what you should expect in a personal injury, workers’ compensation, bankruptcy, or social security claim, give us a call! We offer free consultations and we always make your case our cause. We look forward to speaking with you.

A recent opinion from Judge Wise in the Eastern District of Kentucky’s Covington division has opened the door for people filing bankruptcy petitions to make payments on their bankruptcies. You can read the full text of the opinion here.

So how do payment plans work? First, let’s talk about the difference between Chapter 7 and Chapter 13 bankruptcy. If you have a Chapter 13 bankruptcy, Lawrence & Associates already gives you a payment plan. You’re required to pay your court filing fee and the cost of pulling your credit report up front. Court fees change occasionally, but this has been less than $400 for years now. Attorney fees are paid as part of your monthly payment to the bankruptcy trustee, and each monthly payment is the same. So in Chapter 13 bankruptcies, you automatically have a payment plan.

Chapter 7 bankruptcies are different because you don’t make any payment to the Trustee. On top of that, if you still owe your bankruptcy attorney money when you file the bankruptcy, then you just declared bankruptcy on your attorney too. Your attorney isn’t allowed to collect. This means that all Chapter 7 bankruptcy attorneys used to be required to collect their entire fee up front. If they didn’t, they were stuck with whatever money they’d accepted on the front end. Judge Wise’s opinion is important because it upends the old way of doing things and provides a blueprint that allows Chapter 7 bankruptcy filers to file without having to get all the money up front.

The most important thing to realize if you intend to have a payment plan on a Chapter 7 bankruptcy is that you are going to agree to separate different parts of the bankruptcy that ordinarily go together. Although there’s probably more than one correct way to do this, Lawrence & Associates divides the services up like this:

If you don’t have a payment plan and choose to pay the entire attorney fee, court costs, and credit report fee up front, then both columns are completely covered by that payment. But if you choose to have a payment plan you’ll sign a contract that covers just the items in the first column for as little as $300 in attorney fees. That gets your bankruptcy filed and gets the automatic stay in place to stop your creditors from garnishing you. But if you don’t also do all of the things in the second column, your case will be dismissed! You aren’t required to use the same law firm to complete the things in the second column; in fact, you aren’t required to use a lawyer at all! But you should be aware that some of the things in the second column must be done within as little as seven days after filing your bankruptcy, so you’ll have limited time to educate yourself if you decide to go it alone.

If you decided to retain Lawrence & Associates to complete the items in the second column, you’ll have a second meeting with your attorney and sign a second contract that covers those items. That second contract is accompanied by a form that allows us to take a deduction from your bank account once each month for 12 months. There’s no money owed on the second contract other than the monthly deduction. Having a payment plan is slightly more expensive than paying everything up front, because the law firm must keep the case open for longer and because the firm runs a risk of not getting paid over time. But payment plans give hard working people the opportunity to get a fresh start without dodging garnishments and law suits while they try to save up enough to file.

We can set up a payment plan for any Chapter 7 bankruptcy we file in Kentucky. Unfortunately, Ohio courts have not allowed this option yet, so we are not able to set up payment plans for Ohio bankruptcies. If you think a Chapter 7 payment plan is right for you, give Lawrence & Associates a call!

In Kentucky, all automobile insurance policies default to having at least $10,000 of Personal Injury Protection (PIP) benefits. These are also called no-fault benefits or, in some policies, basic reparations benefits (BRB). It’s possible to waive these benefits, but you must sign waivers with some strongly worded disclaimers. Very few drivers execute such a waiver, so if you’re a Kentucky resident, the odds are that your car insurance has between $10,000 and $50,000 in PIP coverage.

PIP coverage is unique because it is paid as you go, regardless of who was at fault. It pays for medical bills and up to $200 per week of lost wages. There are no co-pays, and only some plans have a deductible. Usually you do not have to go to an independent medical exam to access PIP benefits, and the carrier is not allowed to deny coverage upon only a paper review of your medical records. In the world of auto insurance, where most adjusters are trained to fight you on your claims – or even convince you not to file a claim – PIP benefits can be a real life saver.

Unfortunately, because most adjusters are trained to fight you on a claim for bodily injury from automobile insurance, you’re likely to need a lawyer at some point during the claim. Trying to resolve the claim without one is usually a big time sink, a big headache, and a big shot in the dark. We frequently tell clients that hiring a lawyer is like hiring a plumber – both are service industries where hiring someone with more knowledge and better tools than you makes a job easier than doing it yourself would be. Since personal injury lawyers get paid by taking a percent of the money you get from an insurance policy, it would be easy to assume a lawyer gets a percentage of the PIP payment from your auto insurance. But they don’t.

Kentucky has a statute that controls when an attorney can take a fee from PIP: KRS 304.39-220. This statute says that attorneys can take a fee when PIP benefits are unreasonably overdue and recovered by the attorney. The attorney must have either filed the case in court or at least sent a letter to the insurance company telling them a lawsuit over the overdue PIP benefits was coming. However, the statute is very clear that “[n]o part of the fee for representing the claimant in connection with these benefits is a charge against benefits otherwise due the claimant.” In other words, the attorney fee must be in addition to the PIP benefits owed to you. The attorney fee doesn’t get deducted from the PIP benefits owed to you. This is different from every other kind of insurance coverage, where the insurance policy pays one amount that the attorney fees come out of.

If your attorney is taking a fee from your PIP benefits, you have every right to question it. An attorney taking a fee from the PIP owed to you is doing something illegal. In fact, this is a big red flag that the attorney may be incompetent to handle your case. If you call Lawrence & Associates one of our attorneys will review the PIP paperwork for you at no charge and advise whether the attorney fee is appropriate. If an attorney takes a PIP fee inappropriately, we will give you guidance on how to report this to the Kentucky Bar Association so you can get the money back. On the other hand, if the attorney took the fee appropriately, you’ll at least have the peace of mind in knowing you were treated fairly under the law. Speaking up might not only benefit you, but also benefit other clients who will fall into the same trap.

As many unemployed homeowners and renters know, there has been a moratorium against filing foreclosure or eviction cases in court since the start of the COVID-19 pandemic lockdown. However, that prohibition is starting to end. Because Lawrence & Associates practices bankruptcy law in Kentucky and helps save about one hundred homes every year, we’ve been paying careful attention to the Kentucky court system to see how they are handling foreclosures and evictions. The Kentucky Supreme Court issued an order that partially reopened courthouses starting June 1, 2020. Buried in this order are directions to the Kentucky state courts on how to process foreclosure and eviction lawsuits. Knowing what the state courts are allowed to do is critical to saving your home or apartment.

How the Kentucky Supreme Court Order Affects Renters

It’s important to know that Kentucky is still under a “state of emergency” due to COVID-19 and that there is no set date that this will end. However, the Governor could end the state of emergency at any time, and we don’t know how much notice we’ll get when that happens. Governor Beshear could make an announcement that the state of emergency will end in a day, a week, or a month. The Kentucky Supreme Court order says that all evictions can resume when the state of emergency ends or on July 25, 2020, whichever comes first. Some evictions can begin before then, but generally only if they are on commercial property or if the eviction is for some reason other than non-payment of rent. The order goes on to say that “…nothing in this Order shall be interpreted to suspend or otherwise excuse an individual’s duty to pay rent….” In other words, if you aren’t paying rent now then you’re living on borrowed time. The backlog of unpaid rent is piling up, and you have a maximum of seven weeks before that bill comes due.

How the Kentucky Supreme Court Order Affects Homeowners

If you own your home and are behind on mortgage payments, the situation is even more dire. The order allows judicial sales to begin again, effective immediately. A judicial sale is when a mortgage company gets a foreclosure judgment against you and the Master Commissioner sells your house to the highest bidder. The day of the judicial sale, the buyer is allowed to enter the house and change any locks on the doors. The judicial sale is a point of no return. Northern Kentucky counties – particularly Boone County, Kenton County, and Campbell County – have already put out scheduling orders for when hearings will be held to schedule the Master Commissioner’s sale. Lawrence & Associates has one client whose hearing is as early as June 11, 2020. While the amount of time depends on the county you live in, it does seem like homeowners who are several months behind on a mortgage have even less than the seven weeks that renters have to get caught up or find another way to save their homes.

What Does Bankruptcy Do to Save Your Home?

For homeowners, this answer is easy. If you’re behind on your mortgage and you can’t catch up, you file a Chapter 13 bankruptcy. The rules in Chapter 13 are simple. You have to make your regular, monthly mortgage payment directly to the mortgage company beginning when the next payment is due after the bankruptcy is filed. (So for example, if you pay on the first of every month and you file bankruptcy on June 15, you’d need to start regular monthly mortgage payments again on July 1.) The total unpaid arrearage on the mortgage goes into the bankruptcy and your monthly bankruptcy payment will pay it off in full. The mortgage company can’t charge interest on the arrearage in the bankruptcy, but they get to charge any late fees or attorneys fees that were applied before the bankruptcy was filed. Your normal interest rate applies to the rest of the mortgage. You can file this bankruptcy at any time before the Master Commissioner’s sale, but once that sale happens the bankruptcy can’t save the home anymore. But whatever you do, don’t wait until right before the sale happens. You have to come up with several hundred dollars and quite a few documents to file, and the average client takes around a month to get everything together. Even if you are faster than average, you might not find an attorney willing to turn it around for you in just a day or so. That kind of speed can lead to mistakes, and many of us have other clients already scheduled to file.

For renters, the answer is a little more complicated. Your safest bet is to file the bankruptcy before the eviction is ever filed in court. If you do that, you’ll still have to get caught up on your rent while the bankruptcy is in progress, but you are guaranteed the opportunity to do so. The landlord cannot file an eviction while the bankruptcy is proceeding. But if the landlord files the eviction in court first, the landlord has a unique power to negotiate an agreement over the rent arrearage rather than having an agreement forced on the landlord by the bankruptcy court. If you wait to file bankruptcy until after an eviction is already filed in court, the bankruptcy will stop the eviction action temporarily. But it’s not a given that the bankruptcy will automatically save you from eviction. Landlords have a lot more rights in bankruptcies than most other creditors. This means Kentucky renters who are behind on their rent should not wait until July 25, 2020 or the end of Kentucky state of emergency before they file bankruptcy! Beating the landlord to court is the surest way to make sure you aren’t out on the street once the state of emergency expires.

If you have more questions about evictions or foreclosures, or just about how bankruptcy works in general, don’t hesitate to call Lawrence & Associates at (513) 351-5997. Our attorney consultations are free, confidential, and can be done by phone or video. We’re Working Hard for the Working Class, and the COVID-19 pandemic can’t change that. Good luck out there!

A motor vehicle collision is a stressful, unhappy time no matter what. Even the most minor of crashes can cause property damage and injuries, and that leads to missed time from work, missed bill payments, pain, and frustration. The good news is, we have insurance and our insurance is supposed to take care of all this quickly and easily, right? But what if you can’t figure out which insurance is supposed to cover the collision? That’s the problem we are seeing more and more with the rise of the “gig economy” and services such as Uber Eats, DoorDash, and Grubhub, not to mention the original gig jobs of driving a taxi for Uber or Lyft. When you’re hit by a driver working as an independent contractor for one of these companies, you can find yourself in a confusing situation where every insurance carrier is pointing the finger at someone else.

Determining Which Insurer Should Pay

Let’s start with the basics. In a normal motor vehicle collision where the other driver is at fault, your insurance steps in right away with no-fault benefits. In Kentucky the minimum no-fault benefits are $10,000 of PIP and in Ohio the minimum no fault benefits are $5,000 of med pay. Kentucky’s PIP goes toward medical bills and up to $200 per week in lost wages, while Ohio’s med pay only goes toward medical bills. After that, your insurance policy is done for a while. That is when the at-fault driver’s policy should step in. (If you have underinsured motorist coverage, your insurance might step back in at a later time, but that’s beyond the scope of this post.)

The problem with someone driving for a gig job is that you don’t know whose auto insurance policy should cover, at least not right away. Let’s use DoorDash as an example. Assume you were hit by a driver whose job was to take food from your local McDonalds to a DoorDash customer. This driver should have personal auto insurance to cover driving when that person isn’t working for DoorDash. After all, this is the at-fault driver’s personal vehicle and there are plenty of times when he or she is picking kids up from school, going to the grocery, or maybe going to another job. All of those things are personal to the driver and don’t involve DoorDash. But DoorDash also has its own insurance company that provides coverage for injuries caused by their employees while driving. Usually that insurance is through a California company called Assurant, even if you’re hurt in Kentucky or Ohio (the two states where Lawrence & Associates is licensed). So while the at-fault driver is working for DoorDash, the driver has two insurance policies covering their negligent driving: one personal, and one professional.

At first, having two different insurance policies at hand sounds great. Double the coverage, and almost no chance of running out of insurance while you still have medical bills to pay! What could go wrong? Unfortunately, the devil is often in the details. Here, that devil can be reduced to one question: Who has to pay first? Continuing our example above, let’s assume the at-fault driver for DoorDash has a personal auto insurance policy through State Farm and then DoorDash’s professional policy through Assurant. The driver caused the collision while going to pick up the food, but before actually getting to the restaurant. State Farm has an exclusion in all its policies that says they will not pay any money for a driver that is using the personal car in a professional job. Let’s further assume Assurant has an exclusion that says it only provides coverage from the moment the driver picks up the order to the moment the driver delivers it. If the crash occurs while the driver is picking up the food but before the food is picked up, it leaves the insurance coverage in a no-man’s land where nobody wants to pay. And that leaves the injured person who is not at fault with few good options.

What are your options after being in an accident with a delivery driver?

What should you do if you find yourself in this situation? This will seem a little cliché when coming from an attorney’s website, but the first thing to do is call a lawyer. At law firms specializing in automobile accidents, attorneys should get a lot of training on how to unravel this type of contractual snarl. Not every insurance claim requires an attorney, but if both adjusters deny payment and each points the finger at each other, you’ve reached the point where paying an attorney is worthwhile.

Second, take a deep breath. While the resolution won’t necessarily be quick, you are likely to receive a resolution that causes insurance payments to go toward your medical bills, lost wages, the diminished value of your car, and you and your spouses pain and suffering related to the accident. In both Ohio and Kentucky, the law absolutely hates a lack of insurance coverage. Judges are instructed to try to find coverage from someone, somewhere, unless there’s just no way to do it. So in our example above, it’s most likely that you’ll get coverage from either DoorDash’s Assurant policy or the driver’s personal StateFarm policy.

Third, don’t let the confusion make you take less than you’re due just to get rid of the headache. It can be tempting to do that but this money is supposed to cover medical bills and replace missing paychecks. Your doctor and your mortgage company aren’t going to forgive your obligations out of sympathy for the tough situation you’re in, so you can’t take one red cent less than what you need to cover what you’ve lost.

Whose insurance will pay?

Which insurance company should provide the coverage for the collision in the example above? DoorDash and Assurant are probably holding the bag, regardless of whether you use Ohio or Kentucky law. One of the first things we’d look at is whether the at-fault driver was logged into the DoorDash app when the collision occurred. If not, that points to the driver not being on the job and the driver’s personal insurance covering. But if the driver was logged in, that indicates the driver was on the job regardless of whether the driver had picked up the delivery food. State law has a lot of effect here, but often state law draws the line at whether the driver is furthering the employer’s interest (i.e. by getting food for delivery after a fee was paid on the app, which is how DoorDash makes money). If the driver is doing what the employer hires the driver to do, the employer can be liable. DoorDash isn’t likely to leave itself completely exposed with no insurance coverage at all, so even if the Assurant policy doesn’t have to cover the crash, DoorDash may have some other policy that will. DoorDash might even lean on Assurant to provide coverage for you, just to avoid a lawsuit. Solutions aren’t always straightforward and sometimes require arm twisting, but arm twisting is sort of what lawyers are for.

Discuss Your DoorDash Accident with a Lawyer

If you’ve been in a wreck like this one and all the insurance policies are telling you they won’t pay for the bills – or won’t pay enough – do yourself a favor and set up a free consultation with an attorney. Most attorneys charge contingency fees, so it won’t break your bank. And on top of that, good attorneys almost always move cases along more quickly and for better results than what you would see without the attorney. If you’ve got any questions about an accident like the DoorDash scenario in the example above, please give us a call at (513) 351-5997. Lawrence & Associates is Working Hard for the Working Class. We’d love to help you.

Ohio and Kentucky residents know their states are re-opening slowly, and the exact guidelines – Are restaurants open this week? How about bars? – can be really tough to pin down. Kentucky’s re-opening dates are published on the state’s official website with a handy poster explaining the guidelines here. Meanwhile, in Ohio there is a similar re-opening plan with dates that only vary from the Kentucky schedule by a few weeks at most.

Law firms are just one more industry that is trying to stay one step ahead while complying with all the state regulations. Since Lawrence & Associates has locations in both West Chester, Ohio and Fort Mitchell, Kentucky, we are combining both states’ re-opening guidelines into one plan to have both our offices physically reopen on June 15, 2020. We are waiting until June 15th because many of our employees are not able to get childcare earlier. Even where childcare facilities will be open, the restrictions on the number of children in a single room mean some employees might not be able to send their children in on the first day the facility opens. Until then, Lawrence & Associates will continue to represent our clients while working from home. We’ve made a few posts explaining how our focus on using the latest technology to achieve better results for our clients made the mandatory office shutdown very easy for us. You can see a video here explaining how our phones, email, and fax are all internet based and work normally even when the employees are working from home.

Our transition was so seamless, we even managed to achieve over $1,000,000.00 for our clients during the shutdown. In addition, we’ve been able to continue keeping our clients informed using video options such as Google Duo, Zoom, Microsoft Teams, and by telephone.

We know that your case is important and that work must continue. We recently produced another video talking about how we’ll manage our cases and personnel as we transition back into the West Chester and Fort Mitchell offices.

And while all this is going on, court systems are continuing to adjust and plan their own re-opening schedules. Here’s a little insight into how the court systems are planning for the next six weeks.

Personal Injury –The federal courthouse in Cincinnati recently re-opened. Kentucky is re-opening courthouses on a limited basis starting June 1, 2020. Despite that date, we expect that many routine motions and other issues will still have their hearings by video or teleconference due to restrictions on the number of people allowed in a courtroom. Lawrence & Associates’ attorneys have been attending or hosting depositions and mediations using Zoom. Important documents are being signed by Docusign so everyone can remain remote. Doctor’s offices’ re-opening has allowed us to get medical records in more quickly, and we are still asking clients if they’d prefer a medical records review by a doctor instead of an in-person exam, so your case can move forward despite your comfort level.

Workers’ Compensation – all workers’ compensation hearings are now moving forward normally, although mostly by telephone. Lawrence & Associates is seeing very little slowdown in the Workers’ Compensation system at this time, as both the Ohio hearing officers and Kentucky Administrative Law Judges have adapted to telephonic hearings. In fact, the telephone hearings have been so successful that we hope both systems continue to use them as a matter of course in the future. If you are in a workers’ compensation claim, you should see very little or no slow down at this time.

Bankruptcy– Much like the previous entry, there should be no slowdown in your ability to file bankruptcy cases. All hearings in federal court have been reset by video or telephone, and there was never a break in our ability to file bankruptcies. While this practice area requires client to produce a lot of documentation, Lawrence & Associates has a website set up where clients can upload all their documents with just the click of a button. There’s no more need to bring stacks of paperwork to an attorney’s office. If you need to file bankruptcy – and so many do because of the coronavirus-related layoffs – you should be able to hire an attorney and do so without leaving your home.

Social Security – although many social security hearings were remote even before the pandemic, this system has been slower to reset hearings than more. While Lawrence & Associates can still meet with clients by phone or video, and can get your claim filed, the hearings still haven’t been set at the same rate we saw before the COVID-19 pandemic. However, those first steps that can be done are still very important. Getting your initial application and follow-up motion for reconsideration filed are important pre-requisites to a hearing, so hiring an attorney and filing those documents still moves your case along the path of a successful disability claim. Lawrence & Associates’ social security disability attorneys expect to see many backlogged hearings set in the next month, but so far have not seen actual dates.

Tech-savvy Cincinnati lawyers

Our attorneys continued to be amazed and frustrated at the number of people who report that their current attorney is unreachable because the attorney’s office is closed, or who report that their cases are going nowhere because the courts are closed. This isn’t true, and if you’re being told these things you should find a new attorney. Good law firms with even a minimal grasp of modern technology should have no problem getting settlements or completing bankruptcies at this time. For those personal injury cases that can’t be settled, it is true that you cannot get a jury trial and that can be an impediment to moving a case forward. But ask your attorney about getting a bench trial done by video, because many courts are experimenting with this format to finalize cases without settlements. And above all, make sure you have an attorney that can keep you informed and move your case forward in case the COVID-19 cases start to rise again. While we all hope the quarantine is about to be over for good, no one knows. If businesses do shut their doors, will your case shut down or keep going? The decision you make today could affect you in the near future.

To get in touch with a tech-savvy Cincinnati law firm, call Lawrence & Associates at (513) 351-5997 or contact us online.

The short answer is, “No, you’ll almost certainly get to keep the money if you have a good attorney.” After all, that’s what we do – find the loopholes and use them to your benefit. The long answer is a little more complex. First, the CARES Act makes it clear that the stimulus check can’t be counted toward income in a bankruptcy. Therefore, if you’re an existing Chapter 13 client, the Chapter 13 Trustee can’t demand that you turn the money over. The Eastern District of Kentucky Trustee says so in her blog. Because the CARES stimulus check is not a part of your income, it can’t prevent you from filing a Chapter 7. Further, it can’t increase your disposable monthly income (DMI), which is one of the factors that sets your Chapter 13 payment.

The bigger problem is that nothing in the CARES Act says the stimulus payment can’t be property of the bankruptcy estate. It doesn’t say it can be, either. Instead, it’s silent. The “bankruptcy estate” is made up of all your assets on the date you file, include payments you expect to get shortly after filing even if you haven’t gotten them yet. If you filed bankruptcy before March 27, 2020, you don’t have a problem. You can’t expect to get a payment because of a law that didn’t exist yet. But if you filed on that date or after, that’s where things get troubling. The U.S. Trustee Program has explicitly told Trustees that “Regardless of whether the rebate is property of the estate, the United States Trustee expects that it is highly unlikely that the trustee would administer the payment after consideration of all relevant circumstances….” The word “administer” in that sentence means “take the payment away from the person filing bankruptcy”. That’s a strong statement and the underlining is in the original document. But it doesn’t outright prohibit a Trustee from taking the cash and some Trustees are more aggressive than others. Therefore, your best bet to keep the money is to make sure you exempt it. In most states and for those in which federal exemptions apply, that means using your precious Wildcard Exemption, which is used for everything from the cash you have in the bank to your second car. Artfully using the rest of your exemptions to keep as much Wildcard available as possible is essential, and that’s often where great attorneys are separated from those that shouldn’t be dabbling in bankruptcy law.

If you’re a DIY bankruptcy filer – which I don’t recommend – the actual language of the portion of the CARES Act that lays the foundation for all this is printed below. If you have other questions or know someone that needs to file bankruptcy right now, our doors are (virtually) open and we’re getting things filed quickly using Zoom, Google Duo, and the old fashioned fax and telephone. Good luck out there!

SEC. 1113. BANKRUPTCY.

(a) Small Business Debtor Reorganization.—

(1) IN GENERAL.—Section 1182(1) of title 11, United States Code, is amended to read as follows:

“(1) DEBTOR.—The term ‘debtor’—

“(A) subject to subparagraph (B), means a person engaged in commercial or business activities (including any affiliate of such person that is also a debtor under this title and excluding a person whose primary activity is the business of owning single asset real estate) that has aggregate noncontingent liquidated secured and unsecured debts as of the date of the filing of the petition or the date of the order for relief in an amount not more than $7,500,000 (excluding debts owed to 1 or more affiliates or insiders) not less than 50 percent of which arose from the commercial or business activities of the debtor; and

“(B) does not include—

“(i) any member of a group of affiliated debtors that has aggregate noncontingent liquidated secured and unsecured debts in an amount greater than $7,500,000 (excluding debt owed to 1 or more affiliates or insiders);

“(ii) any debtor that is a corporation subject to the reporting requirements under section 13 or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m, 78o(d)); or

“(iii) any debtor that is an affiliate of an issuer, as defined in section 3 of the Securities Exchange Act of 1934 (15 U.S.C. 78c).”.

Authored by Justin Lawrence and Chris Rose

Limited scope representation is a relatively new and somewhat controversial idea in the legal profession. Some attorneys are hesitant to provide limited scope representation because they are concerned about the ethical ramifications of entering into an agreement that limits their representation of a client and leaves the untrained client to perform some (or even most) of the duties traditionally reserved for attorneys. Generally, the influx of limited representation has developed due to the growing costs of legal services many people cannot afford. Proponents of limited scope representation believe clients are better off with the limited representation they can afford, as opposed to attempting to face their legal hurdles entirely by themselves.

As limited representation becomes more common, attorneys turn to their state bar associations in search of guidance on how to enact this model of legal services.The Kentucky Bar Association has not issued specific guidance on limited scope of representation of unsophisticated clients in areas such as family law or defense of collection activities. Kentucky’s SCR 3.130(1.2)(c) does specifically allow that, “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” However, paragraphs six and seven of the Supreme Court’s 2009 commentary paint only the broadest outlines of what might be considered a reasonable limitation. For example, paragraph six states that when representing an insured, one’s representation of the insured may be limited to the issue of coverage, leaving the insured to determine appropriate damages on its own.

However, may a Kentucky attorney contract only to draft an Answer and conduct initial discovery, but no more? An ethics opinion from 1991, E-343, does give authority to draft only initial pleadings, so long as the attorney does not give the appearance that the claimant is entirely unrepresented, stating, “The overriding consideration should be the recognition and satisfaction of the legal needs of indigent persons. Artificial barriers should not be set up in the name of legal ethics.” In other words, drafting an answer is only ethical so long as the reservations in KBA Opinion E-343 are followed, but if discovery is also drafted, the attorney has entered an ethically gray area.

Bearing that in mind, may a Kentucky attorney agree to pursue a divorce by agreement, but cease representation if property settlement is disputed? And if a Kentucky attorney contracts only to represent in pre-trial litigation but not in trial, is withdrawing on the eve of trial unethical? Both the rule and commentary fail to provide the detail necessary to answer these questions.

The neighboring bar associations in Tennessee and Indiana have yet to address this issue and do not have information on the issue available on their websites. However, other states in the region, specifically Ohio and Missouri, have addressed the issue to provide guidance to their attorneys on how to competently serve their clients through limited representation, while protecting themselves from potential ethical hurdles that this model of legal representation may present.

Ohio Dipped Its Toe in the Limited Scope Representation Waters…

An article posted on the Ohio Bar Association’s website addresses the issue of limited scope representation, starting with the issue of ethics.When an attorney considers expanding his or her practice to include a new area or new service, one of the first concerns is how to ethically provide this service. Like Kentucky, the Ohio Rules of Professional Conduct do allow limited scope representation, pursuant to Prof. Conduct R. 1.2(c).This rule is an adoption of the Model Rules for Professional Conduct and a similar version of this rule appears in the rules governing attorney conduct in most states. Ohio’s rule allows limited representation of new and existing clients provided the limitation is reasonable and communicated to the client, preferably in writing (although written consent is not required).

According to Ohio Judge, Jeffrey Hooper, more than 50 percent of the cases in his court included an unrepresented party. Judge Hooper says it could be a “win/win” if more attorneys adopt the limited scope representation model because that allows clients to receive representation they can afford and attorneys may receive fees for providing this representation. No one is placed in a worse situation by the enactment of limited representation, according to Judge Cooper, if it is done correctly.

Ohio, which has a non-mandatory state bar association, adopted a piecemeal approach to incorporating limited scope representation. For example, the Sixth District Court of Appeals in Toledo has an official program for involving limited scope representation at the appellate mediation stage, while the First District in Cincinnati has not taken up limited scope representation at either the appellate court or bar association level. However, the Ohio State Bar Association (OSBA) adopted ABA findings that unbundling the following legal services can be permissible—and even desirable—if the client’s informed consent is obtained:

• Advising on court procedures and courtroom behavior
• Coaching on strategy or role playing
• Collaborative lawyering
• Conducting legal research
• Reviewing documents
• Drafting documents, contracts and agreements
• Drafting pleadings, briefs, declarations or orders
• Ghostwriting
• Making limited appearances
• Negotiating
• Coaching for or participating in online, telephone or in person dispute resolution
• Organizing discovery materials
• Preparing exhibits
• Providing legal guidance or options
• Assisting with service
• Appearing at a hearing
• Negotiating on a client’s behalf.

The Ohio State Bar Association’s recommendation list gives much clearer boundaries for what a la carte offerings may be ethically made, which is a boon for both attorneys and judges encountering limited scope representation for the first time. If you want to know more—a lot more—about the ABA’s findings that were adopted by the OSBA, their 149-page Handbook on Limited Scope Legal Assistance on limited scope representation is available online.

… And Missouri Dove Right In

Of Kentucky’s neighbors, Missouri seems to be at the forefront of enabling its attorneys to provide limited representation, while also providing the guidance to enable them to do it competently and ethically. First, Missouri’s Rule 4-1.2(c) requires agreements to limit representation to be in writing and signed by the client, a brighter line rule than those of Ohio and Kentucky. The Supreme Court of Missouri and the Missouri Bar Association established a commission in 2002 to examine pro se litigation in the state. That committee released a report on limited scope representation that can be of great guidance to Missouri attorneys in implementing limited representation. This report addresses many issues Missouri attorneys face when providing limited scope representation and even provides an example of a limited representation contract for attorneys to use when unbundling their legal services. These are the most affirmative steps taken by a state Supreme Court and bar association to provide its attorneys with the information and resources they need to provide competent limited representation to clients who need it the most.

The Missouri Bar Association also provided guidance to attorneys to aid the determination of when limited scope representation is practical and ethical. The Missouri Bar Association advised that attorneys who deal in limited scope representation provide potential clients with questionnaires that will assess that individual’s ability to represent himself or herself to the degree the limited scope representation requires. Further, it set guidelines for the endpoint of limited scope representation, with specific requirements for how an attorney is to withdraw.

Finally, Missouri’s Rule of Civil Procedure 55.03 has a more detailed, more explicit list of activities expressly allowed under the rules, giving lawyers more guidance on whether a specific scope of limited representation is permissible. Attorneys in Missouri are expressly permitted: a) to draft documents to be filed in court without signing said documents; b) to appear and withdraw from representation at points of litigation expressly set forth in the contract, without fear of being held over into a trial without hope of payment from the client, and; c) to rely upon the self-represented party’s representation of the facts when drawing up legal documents or performing legal research. Missouri’s Rule 55 serves as a helpful list of dos and don’ts that give clear, logical guidance to attorneys seeking to engage in limited scope representation. We could find no other neighboring state with a better system in place.

The legal market, like any other, has an invisible hand. As market pressures such as rising tuition and the rising cost of litigation force attorney’s fees higher, new solutions emerge that resolve disparities between the cost of supplying legal services and the ability to pay by litigants demanding those services. Limited scope representation is the most relevant, prevalent and inevitable of those solutions. It is here to stay. Until the Kentucky Supreme Court modifies SCR 3.130(1.2)(c), or until appellate court rulings interpret how it is applied to the kind of limited scope representation described above, practitioners interested in providing such services should adhere to the ABA Handbook. Since SCR 3.130(1.2) (c) is modeled from the ABA rules of professional conduct), and review the specific programs created in Ohio and Missouri to see if they can adopt similar practices in their local Kentucky courts. By doing so, you should be able to help more people, stay ethically sound and grow your law practice.

The following post is part of our Law Student Blog Writing Project, and is authored by Joe Trammell, a 2020 Juris Doctorate Candidate at The Ohio State University Michael E. Moritz College of Law.

Attorneys have learned in law school to be honest, even if it may seem to put them at a disadvantage. It is always better to be truthful, and if there is a good case it won’t matter that some of the law or facts are not favorable.

So here is the concession: you do not have to hire a workers’ compensation attorney to receive workers’ compensation. You are legally allowed to file for it on your own.

That may seem like a strange way to start a blog post for a law firm that does workers’ compensation, but do not worry. The rest of the article will detail why in many cases you should hire a workers’ compensation attorney.

There is a reason why there are many law firms that deal with this area. Laws are complicated, and workers’ compensation laws are a great example of that. Attorneys go through three years of law school (if they go full-time and do not do a dual-degree program) learning how to interpret them. At Ohio State’s law school, it is one of the first things taught to new students, and the process never stops. Add to it the need to interpret the exact meanings of parts of laws through reading cases decided by courts, and it is a very complicated process.

This is also why criminal trials guarantee a right to counsel. The landmark Supreme Court case, Gideon v. Wainwright, decided this. Mr. Gideon was not given representation in a burglary case, and faced a prosecutor who was in the courtroom for a living. Mr. Gideon lost his case, but after he won his Supreme Court appeal, he was retried—this time with representation—and was acquitted. Nothing had changed in Mr. Gideon’s case. He just had someone that knew how to take the facts and ask the right questions.

Unfortunately, the government does not provide counsel for workers’ compensation. But the point to sharing this is to illustrate how difficult it can be for people to understand the law and advocate for their rights when they have not been trained. That is not an indication of anyone’s intelligence or abilities; it just means that law is a specialized field and requires specialized training, the same way a doctor or pharmacist needs specialized training.

When you receive representation for your claims, you gain the benefit of that attorney’s education and experience not only practicing law, but practicing that specific kind of law. This may be pretty new to you, but the attorney is used to it. He or she knows what the laws say, what strategies to implement and what arguments to make, how to provide proof for your case, how to file the necessary paperwork, and how to answer the questions that will be asked. This relieves the burden on you and puts it on the shoulders of someone who does this for a career.

How Can An Attorney Help Me Win an Ohio or Kentucky Workers’ Compensation Claim?

One complexity in workers’ compensation laws is the list of exempted employees. Both Ohio and Kentucky cover most employees. But both exempt agriculture workers, domestic workers, and anyone who voluntarily rejects workers’ compensation coverage. Kentucky exempts nonprofit workers who make their living through the nonprofit, while Ohio exempts volunteer nonprofit officers.

Another is the statute of limitations. Statutes of limitation prevent claims from being filed after a certain length of time has passed. In Kentucky, an employee has two years from the date of the injury to file for workers compensation (or, if the employer initially paid voluntarily and then stopped, two years from the last payment). In Ohio, it is only one year. But, if you were not keeping up on the law, you might think it is two years. The statute of limitations was changed to one year in 2017 after decades of being two. But, to further complicate, this change only applies to injuries and death from injuries. The statute of limitations for occupational diseases and death from occupational diseases remains two years.

Ohio also has something known as “subrogation,” which allows the Bureau of Workers’ Compensation to recover from the injured person being compensated if the injured person has recovered twice. An example of this would be if the person receives workers’ compensation and then sues the person responsible (which could not be his or her employer) and receives money from the lawsuit as well. The Bureau of Workers’ Compensation would be able to recover some of the money from the lawsuit. Kentucky has similar provisions, although subrogation is calculated very differently in the two states.

Kentucky has a specific law that allows coal miners suffering from Black Lung (which this author’s great-grandfather died from) to recover extra, although this law continues to fluctuate.

These examples demonstrate a portion of the complexities of workers’ compensation laws. There are many deadlines and forms to keep track of, and the laws continue to change. With the state elections taking place this year, the possibility remains strong that more changes are coming. It is possible for you to track this yourself, but attorneys have more experience dealing with these claims and better resources available to research and help with the case.

There are some situations in which an attorney is especially needed. One, representation is more needed when the employer does not cooperate. Perhaps the employer denies the claim, refuses to fully compensate you, or you are retaliated against. It can also help to have an attorney if there is something else complicating your claim, such as if you are receiving other government benefits or have a preexisting condition, or if your injury is serious and affects your work. It is also advisable to have an attorney with you when you have a workers’ compensation hearing.

If you are in this unfortunate situation or find yourself in it in the future, keep this in mind. You can go it alone, but it might be a more effective claim with some assistance from workers’ compensation attorneys.

Do you need help with a Workers’ Compensation claim? Call Lawrence & Associates and let one of our experienced attorneys help. We’re Working Hard for the Working Class, and we want to help you!