Selecting an Environmental Lawyer

Kevin Murphy

Environmental law matters frequently involve an overlap and interplay between legal, scientific, and business concerns. Translating science into policy and policy into law and the resulting enforcement or interpretation of the law by government agencies and the courts can leave people and businesses frustrated, confused and confounded by the law and its regulators. Adding to that frustration is both the complexity and harshness of the law and often, the absence of simple, quick, and easy solutions to environmental legal problems. 

    There is much an environmental lawyer can do to benefit the client’s interests. Counsel is best sought, of course, prior to any actual conflict arising. Environmental counsel can minimize potential client liability through compliance counseling, assistance with permitting, site and process auditing, the performance of pre-acquisition due diligence, and the presentation of public comments or testimony prior to the enactment or promulgation of statutes or regulations that may impact the client. Should issues of non-compliance or liability arise, counsel familiar with the specifics and peculiarities of environmental matters will likely be the best advocate for a client confronted with environmental concerns. 

    First and foremost, an environmental lawyer must be a good lawyer. Ask your friends, business associates and trade organizations, state or local bar and business groups, and your engineer, technical consultant or non-environmental lawyer for one or more recommendations of a lawyer or a law firm that practices environmental law. 

    Interview any lawyer that you might consider hiring. Determine their qualifications and experience. Consider first the candidate’s general qualifications, including years of experience; years of environmental law experience; their professional development through organizations, attendance at seminars, written articles, or teaching; and prior experience, including past governmental positions. Next, consider the candidate’s experience as it relates to your legal concerns. Among the many types of environmental matters which might require the assistance of environmental counsel are the sale or purchase of real property, securing a government permit, notice of a government enforcement action, a neighbor who alleges that you are polluting his property or your concerns that a neighbor has polluted your property. Determine if your candidate’s experience includes matters similar to yours. If they have never assisted a client secure a permit or has never defended a government enforcement action, he or she might not be the best-qualified environmental lawyer to resolve your legal matters. Determine if the lawyer has practiced before the government agency with which you have a conflict. While not mandatory or essential, familiarity with the specific regulator and its procedures and practices may also be helpful. 

    Ask the candidate to explain how the law works in your particular area and what type of solutions might be available. Remember, because environmental law involves the confluence of law, science and business, you should select a lawyer who not only understands the complex issues you are confronted with but who can communicate the issues and possible solutions in a clear, precise and understandable manner. If you cannot understand your lawyer, you will be frustrated and the other side, whoever it may be, is also likely to be frustrated. 

    Inquire as to what other professionals may be needed. Not only environmental engineers and consultants, but other legal professionals. Often times environmental issues arise in the context of other legal conflicts such as potential foreclosures, bankruptcy or trust and estate matters. Determine if your candidate has access to the necessary qualified professionals or if the candidate can successfully work with your existing counsel and experts. 

    Before engaging the services of an environmental lawyer, or any lawyer, discuss fees. Be aware, however, that lower hourly rates do not necessarily translate into lower total costs. Determine how your matter might be staffed, who will do the work and the likely or potential complications, which will add to the costs of a solution. Speaking to more than one candidate is the best way to determine a realistic picture of the potential range of costs and time involved and the options and approaches to solving your problem. 

    In making your final choice, do not disregard your instinct – select the lawyer you are most comfortable with and the lawyer you trust. Be wary of promises that are easy to make but difficult to keep. Make sure your lawyer listens and understands your goals and objectives but, at the same time, listen to what your lawyer says they can and cannot do for you. 

What Is A Living Trust?

Tim Doolittle

My clients often are aware of what a Last Will and Testament is and its purpose of providing for the distribution of their assets when they pass away. They also know that trusts exist but are not sure what they are or what a trust does. The focus of this article will be on Living Trusts, also known as Revocable Trusts. A Living Trust is made during your lifetime and can be very helpful relating to the administration of your assets, both while you are still alive and after you pass away. 

    A Living Trust is a trust wherein the creators maintain control over the assets placed in the trust during their lifetime and also sets the terms by which the assets are distributed when the creators pass away. The trust document will name the initial trustees (usually the creators) and specify backup trustees in the event the initial trustees die or lose their capacity. Living Trusts are generally modifiable and revocable, so there is flexibility relating to amending the distribution terms of the trust and/or the appointment of backup trustees. 

    Almost anything can be placed into a Living Trust. If the property has tangible value of any kind, it can be transferred into the trust. The trust can open a bank account and also own property in the name of the trust. Some examples of property creators may transfer into the Living trust include: real estate; checking and savings accounts; fine art and jewelry; personal property; business interests; investment accounts; and intellectual property 

    There are many reasons why it may make sense for you to create a Living Trust. One of the biggest reasons why Living Trusts are created is to avoid the probate process when the creator(s) pass away. Avoiding probate means surviving family members can avoid the costs associated with the probate process. Not having to go to court saves on both court fees and attorney fees relating to the probate process. You can also facilitate the transfer of the assets that you put into the trust to the beneficiaries in a timelier manner. Probate in New York will stretch on for months, if not years, during which time there may be uncertainty about business interests and during which time investments and property may not be managed as carefully as they would by new owners. A Living Trust eliminates this period of uncertainty because trust assets can quickly transfer to the beneficiaries selected by the creator(s) and allow the beneficiaries to enjoy their inheritance in a swift manner. 

    Avoiding probate is also a worthy venture for those individuals that own properties in multiple states. A good example of this would be “snow-birds” who winter in a condo in Florida and come back to a home in New York when the weather warms up. When the individual dies probate will need to be initiated in both New York and Florida to pass each piece of real estate from the estate to the beneficiaries of the estate. A Living Trust would allow the family to avoid multi-state probate so long as ownership of the properties are transferred to the Living Trust during the creator’s lifetime. 

    Living Trusts can also help ensure that the creator’s assets are appropriately cared for in case of incapacity. By naming a backup trustee in the trust document, the creator vests authority in that backup trustee to take control over trust assets in the event the creator’s capacity falters. There is no need to worry about the family having to initiate guardianship proceedings, the backup trustee would simply move into the trustee position upon the creator’s incapacity. 

    While all of these reasons are very good reasons to create a Living Trust, it is important to understand limitations of this type of trust. For example, assets held within a Living Trust are still considered resources which can be spent on nursing home care and are available to any potential creditors of the creator. The trust assets also are considered part of the creator’s taxable estate, which can trigger federal estate taxes and New York estate taxes. If Medicaid planning and/or estate tax planning are part of your goals, speaking with estate planning attorney about the alternatives available is a must. 

    If you are an individual who finds it worthwhile to avoid the probate process and arrange for a smooth transition of your assets after your death, contact a qualified attorney to discuss the pros and cons of creating a Living Trust. 

Tim Doolittle primarily focuses his practice on estate planning. He counsels clients concerning estate planning and administration, as well as asset preservation for individuals. Contact him at 315-445-1700.

Public Service Commission Extends NY-Sun Program

Chris Baiamonte

In spite of the seemingly cataclysmic budget pressures New York State is under in light of additional expenses and crimped revenue related to the pandemic response, its long-term commitment to achieving its renewable energy goals, as articulated in the Climate Leadership and Community Protection Act (CLCPA), shows few signs of wavering. On May 14, the Public Service Commission issued an order (Case No. 19-E-0735) granting the New York State Energy Research and Development Authority’s (NYSERDA) petitions seeking an additional $573 million to fund the New York-Sun (NY-Sun) solar energy program through the year 2025. 

    NYSERDA’s petition, filed last November, sought funding to extend the NY-Sun program for an additional two years. It had been scheduled to end in 2023. The NY-Sun program was created in 2014 by the governor in order to provide state subsidies to solar projects around the state, with the initial goal of adding 3,000 megawatts (MW) of installed solar capacity. It has thus far helped finance nearly 1,000 MW worth of solar energy generating capacity, with another 1,000 MW in the pipeline. The goal articulated by the CLCPA for distributed (typically, rooftop) solar energy capacity is 6,000 MW by 2025. Initial funding for the expansion will use untapped NYSERDA funds and additional funding potentially coming from the Clean Energy Fund. 

    About one fourth of the new funding will go towards Community Adder incentives for community solar projects located in the National Grid and New York State Electric and Gas Corporation utility territories (Rochester Gas and Electric Corporation soon to be added). The Community Adder is an incentive-based successor to the Community Credit component of the Value Distributed Energy Resource tariff. PSC also approved additional adders for projects involving storage, system resiliency, value to disadvantaged and affordable housing communities, and projects to be sited on brownfields, landfills, or parking lots. 

    PCS’s order granted the proposal contained within the petition to use at least a quarter of the newly allocated funds on programs focusing on benefitting customers with low- or moderate-income customers. NYSERDA dubs this new effort the Framework for Solar Energy Equity (FSEE). FSEE will attempt to, among other things, incent projects sited on affordable housing, certain homeowners who install rooftop solar panels, energy storage projects, and expand on NYSERDA’s existing Solar for All program, which offers discounts to low-income New Yorkers on their energy bills through participation in a community solar project. 

 Questions and Updates 

    Please do not hesitate to contact the Wladis Law Firm if you have any questions about the above information. We will do our best to provide you with updates and will be available to answer questions as circumstances change. 

Chris Baiamonte primarily focuses on civil litigation, counseling individual, corporate, and municipal clients on resolving disputes ranging from environmental liability to shareholders rights to creditor–debtor suits. He also works with clients to navigate various state and federal regulations relating to areas such as environmental protection, employment, and civil rights. Contact him at 315-445-1700.

Alternative Goals of Estate Planning

Timothy Lambrecht

When you think about creating an initial estate plan, you likely focus entirely on the need to create a roadmap for the distribution of your estate assets in the event of your death. While that certainly will always remain an important estate planning goal, you will undoubtedly include additional goals into your estate plan over time.  The following subjects should be at the forefront of your mind, depending on your own unique personal situation.   

Incapacity Planning  

    People typically associate the possibility of becoming incapacitated with old age, specifically with Alzheimer’s and other age-related dementia conditions. While Alzheimer’s is a leading cause of incapacity in elderly individuals, the reality is that you could suffer a period of incapacity at any age as a result of a tragic accident or debilitating illness. If that happens, who will take over control of your assets? Who will make health care decisions for you? In the absence of an incapacity planning component in your estate plan, a judge may be forced to answer those questions – and you may not like the answers.  Putting a power of attorney and health care proxy into place will allow you to appoint your own agent to act in your best interests in the event of incapacity.  

Probate Avoidance  

    Probate is the legal process that is required after the death of an individual. The primary purpose of probate is to identify, value, and eventually transfer the decedent’s assets to the intended beneficiaries and/or heirs of the estate. If the estate is required to go through formal probate, it can take months, even years, to get through the process. In addition, a lengthy probate can be costly, diminishing the value of the estate that is ultimately passed down to loved ones. Probate avoidance tools and strategies can help your estate avoid the need for formal probate.  The most common tool for probate avoidance is a Revocable Trust, otherwise known as a Living Trust.  By working with an attorney to establish a Revocable Trust and placing your assets in the trust, every asset that goes into the trust will avoid the probate process.  

Planning for Parents with Minor Children or Children with Special Needs  

    If you are the parent of a minor child, you undoubtedly want to make sure your child is provided for if something happens to you. Your minor child, however, cannot inherit directly from your estate. Simply leaving assets for your child in your will doesn’t ensure that your child will be well cared for in your absence. Instead, most parents establish a trust to protect their child’s inheritance until the child reaches an age where the child is more mature. As the creator of the trust, you appoint someone as the trustee to manage and invest the trust assets while your child is a minor. That same trust can then be used to stagger disbursements once your child becomes an adult, allowing your child to learn how to manage his/her inheritance before receiving it all.   

    In the event there are children with special needs that will inherit, a particular trust called a Supplemental (or Special) Needs Trust would need to be established.  The Supplemental Needs Trust allows the child to have the benefit of their share of the parent’s estate, but not have any risk of losing any public benefits that may be subject to assets tests, like Supplemental Security Income (SSI) or Medicaid.  

Long-Term Care Planning  

    Long before you reach retirement age, you should start thinking about the possibility that you, or a spouse, will need long-term care (“LTC”). Specifically, you need to plan for the high cost of that care. With a nationwide average of over $100,000 per year for 2020, most people cannot afford to pay for LTC out of pocket – and Medicare will not cover LTC expenses. Medicaid can help with those expenses, but you must first qualify for Medicaid benefits. Medicaid uses both an income and an asset test that could be problematic if you failed to include Medicaid Planning in your estate plan well ahead of the time you need to qualify.  An experienced estate planning attorney will be able to guide you through the process of establishing certain trusts that can help protect your assets from Medicaid.  

    Reaching out to an experienced estate planning attorney is the first step in helping you accomplish your estate planning goals.  The sooner the process is started, the sooner you can rest assured that you and your family are taken care of. 

Timothy J. Lambrecht primarily focuses his practice on complex civil litigation, environmental law, and municipal law matters. Mr. Lambrecht is an experienced environmental law practitioner and litigator. If you would like legal assistance in an environmental case contact Attorney Lambrecht of the Wladis Law Firm at tlambrecht@wladislawfirm.com

Do You Need An Environmental Lawyer?

Kevin Murphy

If you are buying or selling real estate you may need to hire an environmental lawyer.  

    If the answer is yes then you may need environmental counsel when any of the following arise:  

  • You want to obtain “bona fide prospective purchaser protection” for your property acquisition but are not sure what is required. You need assistance in drafting environmental provisions in a contract of sale in order to protect yourself from risk and future liabilities.
  • The parties to a commercial real estate deal cannot figure out a fair method for allocating the costs to clean up environmental contamination and need creative, workable solutions.
  • “Everyone knows” the property is contaminated because of a leaking tank or an asbestos problem, but no one knows what to do. The lender tells you a Phase I environmental site assessment needs to be prepared, but you know you shouldn’t rely on a Google search to find a qualified environmental consultant.
  • The Phase I Environmental Site Assessment report tells you there are “recognized environmental conditions,” and you do not know how to proceed or if you should proceed.
  • A Phase II Environmental Site Assessment confirms the presence of contamination and you do not know how to proceed or if you are required to report the findings to anyone.
  • You do not know whether environmental insurance is available to resolve some of the difficult problems in the deal.

You need an environmental attorney when you or your client wants to know:  

  • Whether and how the development of the property could meet the requirements of the New York State Brownfields Cleanup Program.
  • How to get the best estimates of the costs of, and how to evaluate the adequacy of, proposals to clean up the property.
  • Whether there is a potential claim against the prior owner for failure to disclose an environmental liability that he knew or should have known about and should have disclosed to the client/purchaser.
  • If there is a viable claim against prior owners in the chain of title.
  • Whether there is a potential claim against an adjacent property owner for contamination on the property that the client now owns. What the scope of your liability is for property damage and personal injury to nearby properties from contamination migrating from your property before and after purchase.
  • If completion of a Phase I ESA is all that needs to be done to obtain “bona fide prospective purchaser” protection.
  • How to get a “no further action” letter from a government agency to meet a lender’s requirements.
  • What the impact of contamination is on the value to your property.
  • Whether, even after cleanup, there is an actionable “stigma” attached to the property.

The Basics of Special Needs Trusts

Timothy Doolittle

Special Needs Trusts (“SNTs”) are an essential tool both when a person with disabilities has assets to protect and when that person’s parents are considering their estate plan. Whether the person with the disability has funds, receives funds from a personal injury settlement, or receives funds and property as a gift, the money must be managed carefully. SNTs (or Supplemental Needs Trusts as they can be referred to) are the best tool to use for asset protection for those with disabilities. 

    The primary goal of an SNT is to preserve a disabled person’s access to needs based public benefits when receiving a lump sum or inheritance. These benefits might otherwise be lost when the individual acquires resources over a given threshold. A person who is disabled may be receiving Supplemental Security Income (“SSI”) on a monthly basis and may have Medicaid coverage to pay for the costs of healthcare. Medicaid and SSI are means-tested and impose limits on resources, so an influx of money from an injury settlement or inheritance could result in a loss of benefits access. 

    An SNT makes it possible to avoid this loss of benefits. When properly drafted in accordance with the law and when properly structured and maintained, SNTs allow money to be used for the benefit of someone who is disabled without jeopardizing benefits access. The assets held in the trust are not counted as resources for Medicaid or SSI calculations but can be used to supplement and enrich the quality of life of the person who is disabled, beyond what governmental benefits provide for. When SNTs are created, it is important to know what specific type of trust must be used. There are two primary kinds of SNTs: first-party trusts and third-party trusts. The unique situation of each person will dictate which type of trust will need to be created. 

    If the money or property being put into the trust comes from the person who is disabled, the trust is a first-party trust. This situation can occur if the individual receives a windfall inheritance, receives a personal injury settlement, or if they simply have built up assets based on gifts from family members. A third-party trust can hold assets that are deposited in the trust directly by any third-party source, like a grandparent, parent, aunt, uncle, neighbor, etc. 

    A first-party special needs trust can be established only by the disabled individual, parent, grandparent, guardian or court. They also can only be established for someone under the age of 65. In some situations, courts would monitor these trusts. The main drawback of a first party SNT occurs when the individual with a disability dies. At that point, the SNT must contain terms that names the state providing Medicaid benefits to the individual as the primary beneficiary of the SNT’s assets. This is known as the “Pay-Back” provision, to allow the state to pursue reimbursement for the costs of care expended during the individual’s life. 

    A third-party SNT can be created by anyone who wants to leave money to someone who is disabled. Third-party SNTs can be funded up to any amount, with any type of asset. The trust can be used for virtually any purposes to benefit the person with special needs, except for that the person’s own money cannot be held in the trust. Often times, parents of a child with disabilities will set up a third-party trust as part of their estate plan, to ensure any inheritance meant for the child will not affect their public benefits. 

    Upon the death of the disabled beneficiary of the third-party special needs trust, the money and property can transfer to any other relatives or beneficiaries that the trust creator chooses. Because the money and assets in the trust never belonged to the person who was disabled, the state has no ability to require a pay-back provision. 

    Special Needs Trusts can provide very important protections for someone with disabilities. If you are in a situation that calls for a Special Needs Trust, reaching out to a qualified attorney well versed in the area is a must. 

Timothy Doolittle primarily focuses his practice on estate planning, as well as asset preservation for individuals. Mr. Doolittle is a magna cum laude graduate of the State University of New York at Buffalo, Honors College. Mr. Doolittle is admitted to practice in New York State and is a member of the New York State Bar Association. Contact Mr. Doolittle by emailing TDoolittle@WladisLawFirm.com.

Lead-Based Paint: Notice requirements imposed by Federal law

Kevin Murphy

In 1978 the federal government banned consumer uses of lead-based paint, thus effectively stopping the use of lead-based paint in all housing across the country. Prior to that date, lead-based paint was widely used including in housing and homes constructed prior to that date.  If properly managed lead-based paint poses little, if any risk to human health. If allowed to deteriorate (peeling, chipping, chalking, cracking, damaged, or damp), lead-based paint is a potential hazard. It can cause serious health problems, especially to children and pregnant women. 

Homebuyers 

    Federal law requires that before being obligated under a contract to buy housing built prior to 1978, buyers must receive the following from the seller:  

  • An EPA-approved information pamphlet on identifying and controlling lead-based paint hazards titled Protect Your FamilyFromLead In Your Home.  
  • Any known information concerning the presence of lead-based paint or lead-based paint hazards in the home or building.
  • For multi-unit buildings, this requirement includes records and reports concerning common areas and other units when such information was obtained as a result of a building-wide evaluation.
  • An attachment to the contract, or language inserted in the contract, that includes a “Lead Warning Statement” and confirms that the seller has complied with all notification requirements.
  • A 10-day period to conduct a paint inspection or risk assessment for lead-based paint or lead-based paint hazards. Parties may mutually agree, in writing, to lengthen or shorten the time period for inspection. Homebuyers may waive this inspection opportunity. If you have a concern about possible lead-based paint, you may secure a lead inspection from a certified inspector before buying. 

Renters 

    Federal law requires that before signing a lease for housing built before 1978, renters must receive the following from your landlord:  

  • An EPA-approved information pamphlet on identifying and controlling lead-based paint hazards, Protect Your FamilyFromLead In Your Home. 
  • Any known information concerning the presence of lead-based paint or lead-based paint hazards in • For multi-unit buildings, this requirement includes records and reports concerning common areas and other units when such information was obtained as a result of a building-wide evaluation. 
  • An attachment to the contract, or language inserted in the contract, that includes a “Lead Warning Statement” and confirms that the landlord has complied with all notification requirements.

Property Managers and Landlords 

    As owners, landlords, agents, and managers of rental property, you play an important role in protecting the health of your tenants and their children. Buildings built before 1978 are much more likely to have lead-based paint. Federal law requires you to provide certain important information about lead paint before a prospective renter is obligated under lease to rent from you. 

Landlords must give prospective tenants of buildings built before 1978: 

  • An EPA-approved information pamphlet on identifying and controlling lead-based paint hazards, Protect Your FamilyFromLead In Your Home.  
  • Any known information concerning lead-based paint or lead-based paint hazards pertaining to the building. 
  • For multi-unit buildings this requirement includes records and reports concerning common areas and other units when such information was obtained as a result of a building-wide evaluation. 
  • A lead disclosure attachment to the lease, or language inserted in the lease, that includes a “Lead Warning Statement” and confirms that you have complied with all notification requirements. 

Real Estate Agents and Home Sellers 

    As real estate agents and home sellers, you play an important role in protecting the health of families purchasing and moving into your home. Buildings built before 1978 are much more likely to have lead-based paint. Federal law requires you to provide certain important information about lead paint before a prospective buyer is obligated under a contract to purchase your home. 

Real estate agents must:  

  • Inform the seller of his or her obligations under the Real Estate Notification and Disclosure Rule. In addition, the agent is responsible if the seller or lessor fails to comply; unless the failure involves specific lead-based paint or lead-based paint hazard information that the seller or lessor did not disclose to the agent. Read the regulations that includes these requirements. 
  • Provide, as part of the contract process, an EPA-approved information pamphlet on identifying and controlling lead-based paint hazards titled Protect Your FamilyFromLead In Your Home. Attach to contract, or insert language in the contract, a “Lead Warning Statement” and confirmation that you have complied with all notification requirements. 
  • Provide a 10-day period to conduct a paint inspection or risk assessment for lead-based paint or lead-based paint hazards. Parties may mutually agree, in writing, to lengthen or shorten the time period for inspection. Homebuyers may waive this inspection opportunity. 
  • A copy of the pamphlet Protect Your FamilyFromLead In Your Home is available at: 

https://www.epa.gov/sites/production/files/2017-06/documents/pyf_color_landscape_format_2017_508.pdf 

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Watertown and Syracuse. He concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Contact Mr. Murphy by emailing KMurphy@WladisLawFirm.com.

Protecting Business Partnerships from Unanticipated Emergencies

Ian Gilbert

The maxim that an ounce of prevention is worth a pound of cure holds up just as well in the business world as it does in the practice of medicine. Consider the following situation: partners Allen, Bob, and Charlie have a successful small business together. Through years of grit, industry, and teamwork, they have taken a business idea from the theoretical into the practical and found a niche for themselves in a new market. In the course of success, they formed an limited liability company (LLC), developed relationships with marketers, suppliers, accountants and lawyers, and did their due diligence to ensure their growth and viability for the future.

                But then disaster strikes. Maybe Allen is getting a divorce. Maybe Bob is faced with personal bankruptcy and criminal charges of fraud or tax evasion. Maybe Charlie has been in an accident and is looking at long-term care and permanent intellectual disability. The question of whether the business can survive (and at what cost) may rest on the partners having planned in advance for these contingencies.

                In any of the situations described above, the lack of a formal recognized agreement between the partners could very well end the business. A divorcing spouse may be entitled to a share of the business assets, forcing a sell-off or dissolution. In the case of personal bankruptcy, accounts and assets of the business could be subject to judgments and liens. If a member of the business is afflicted with some type of disorder that prevents them from actively participating, the business could find itself hamstrung until a guardianship can be put in place if unanimous consent is required for some decision-making.

                The most practical way for a business with multiple partners to guard against unanticipated disaster is to adopt a well-crafted buy-sell agreement. A buy-sell agreement is, in the simplest terms, a contract between all of the owners of a business and the business itself that governs how the interests in the business can be transferred. New York has adopted certain rules that restrict what an enforceable buy-sell agreement can include. For example, prohibiting a member of an LLC from ever selling his or her interest in the business to somebody else would likely be deemed an “unreasonable restraint on alienation” and unenforceable. On the other hand, New York courts will generally uphold a provision that gives the business or the other members a first right to “buy back” the selling member’s interest on the stated terms, or pursuant to a stated figure in the agreement within a certain time period.

                The buy-sell agreement or operating agreement can be expanded to include rules that require certain outcomes based on triggering events such as death, divorce, incapacity, personal bankruptcy, imprisonment, etc.

                There are other practical steps a business should consider taking with respect to its members. A business can take out life insurance policies on the members naming the business as the payee. Upon the member’s death, the business can then use the life insurance policy proceeds to pay a sum to the surviving family members, rather than trying to scrap together enough money through new loans and liquidating assets, to satisfy the amount owed for the decedent member’s share of the business. Another option is for the members to grant each other limited durable powers of attorney. A power of attorney is an agreement granting another person the authority to make certain decisions on his or her behalf. This is a useful tool for situations where consent must be unanimous (such as making large capital purchases or entering settlements and confessions of judgment). Powers of attorney can also be “springing” which generally means that they come into effect only if the principal becomes incapacitated. Again, the idea here is about saving time and money down the road by taking simple preventative measures.

                Many of these steps also apply to business owners who operate as sole proprietors or who are in charge of single-member entities but wish to see their businesses continue on after their own involvement. To that end, lawyers can help to reconcile business goals with broader estate planning objectives.

                All of these strategies and more should be considered by business owners, and can often be implemented expeditiously and without great cost, through an attorney or team of advisors familiar with the business’s operations and the owners’ goals. Failing to take proper precautions may cause, as Churchill said, “history to cast its verdict with those terrible, chilling words, ‘too late’”.

                The information in this article is for informational purposes only and should not be construed as legal advice with respect to any specific subject matter or circumstances. Contact a reputable attorney for advice regarding your particular situation or issue.

Breaking Biases

AMANDA COLTON

It can often be difficult for individuals with criminal convictions to find employment or housing, even years after serving their sentence. Even with protections in place, some employers and landlords can’t fight an unconscious bias towards these individuals. Local attorney Matthew Porter has begun using a new law passed in October of last year to protect his clients from such bias.

    New York State does not have any laws in place to erase, or expunge, criminal records. Instead, New York offers a processes for sealing certain criminal records. For an individual experiencing additional hardship due to an old conviction, applying to have their records sealed may be an attractive option.

     “When a person’s record is sealed it is not erased, but any related fingerprints, booking photos, and DNA samples may be returned to the individual or destroyed, and records of their crime will no longer be available to the public,” explained Mr. Porter.

    Under New York’s Executive Law Section 296(16), employers are prohibited from inquiring about or taking any discriminatory action based on an individual’s sealed record. This means that if a record is sealed it cannot be considered in an application for employment.

    “However,” said Mr. Porter, “this law does not apply to law enforcement agencies, nor to those charged with federal licensing for firearms or other deadly weapons.”

    The two processes for having criminal records sealed are outlined in New York’s Criminal Procedure Law Sections 160.58 and 160.59. Section 160.59, effective October 2017, has created a new opportunity for individuals who have not been convicted of a crime in the past ten years to apply to have their criminal convictions sealed.

    Due to the individual nature of applying this new law, Mr. Porter is unable to state that any conviction will be automatically sealed. However, he was able to provide certain requirements a person must meet in order to apply to have a conviction sealed under the new law, primarily including but not limited to:

  • The individual may have up to two convictions, including only one felony conviction;
  • To be considered an “eligible offense” the conviction(s) must not have been for any of the following:

    ◦ sex offenses,

    ◦ other crimes requiring sex offender registration,

    ◦ Class A felonies (including but not limited to the following non-violent felonies: aggravated enterprise corruption, criminal possession or sale of a controlled substance in the first or second degree, operating as a major trafficker or conspiracy in the first degree)

    ◦ violent felonies, and

    ◦ attempts to commit any ineligible offenses under the categories listed above;

  • It must have been at least ten years since either

    ◦ the date the sentence was imposed, or

    ◦ the date of release from the individual’s last period of incarceration; and

  • The individual must not have been convicted of any new crimes during the ten-year waiting period.

    Once the application is filed, the local district attorney’s office has forty-five (45) days to notify the court whether they will oppose sealing the record. Then a judge must consider a number of factors in determining whether to grant a sealing application, including:

  • the amount of time since the individual’s last conviction,
  • the circumstances of the offense the individual seeks to have sealed,
  • any other convictions,
  • the individual’s character,
  • statements by any victims of the offense,
  • the impact sealing will have on the individual’s reintegration into society, and
  • the impact sealing will have on the public.

    Any experienced criminal attorney can help individuals determine whether they are eligible for sealing and to guide them through the sealing application process. The attorneys at Conboy, McKay, Bachman & Kendall, LLP, with offices in Jefferson County and St. Lawrence County, understand this new law and have begun aiding clients in having their criminal records sealed.

AMANDA COLTON is from Ogdensburg. In 2016, Amanda received her J.D. from Hofstra University and she is currently pending admission to the bar. Once admitted, Amanda will be practicing in the areas of domestic relations and criminal law.

Legal Duties and Responsibilities of Directors & Officers

Megan Kendall

An individual must fully understand the duties and responsibilities that accompany being a director and/or an officer of a nonprofit organization. Directors and officers have fiduciary responsibilities to steer the organization towards a sustainable future, to adopt policies that are sound, ethical and legal, and to ensure the organization complies with the required laws and regulations. The directors and officers are responsible to ensure that the nonprofit has adequate resources to advance its mission.

    Directors and officers are held to the standard that they will act in good faith, and will use the degree of diligence, care and skill which a prudent person would use in their similar position and under similar circumstances. Directors and officers are expected to comply with the three fundamental areas of legal and fiduciary responsibilities, including the duty of care, duty of loyalty and the duty of obedience. 

Duty of Care

    The directors and officers are required to participate in the governance and oversight of the organization’s activities.  Directors and officers are required to specifically uphold the following duty of care requirements: 

1.) To attend board and committee meetings regularly;

2.) To review and understand the financial documents and reports;

3.) To help develop a strategic plan that identifies and helps to manage risk;

4.) To take all necessary steps to advance the organization’s mission goals;

5.) To take reasonable steps to ensure the organization is compliant with all of the applicable laws and regulations;

6.) To read the minutes and reports from prior meetings, including meetings that were missed;

7.) To approve the process for fundraising, professional fees, compensation and construction contracts;

8.) To ensure the board minutes reflect any dissenting votes or actions that are taken;

9.) To read all of the literature on the organization’s programs;

10.) To make sure that monthly financial statements are available, that they are clear, and communicate the proper information;

11.) To ensure that all policies are written, safeguarded and are used to protect the organization’s assets. The polices must be updated regularly;

12.) To ensure background checks are done on employees;

13.) To determine the amount and level of director and officer liability coverage;

14.) To encourage diversity within the board members; and

15.) To be involved in the selection and review of the chief executive officer and any other key employees involved in the day-to-day operations of the organization.

Duty of Loyalty

    The Duty of Loyalty requires officers and directors to act in the best interest of the organization at all times. Directors and officers need to ensure that all potential conflicts of interest are identified and disclosed prior to joining the board. New York State specifically requires that all nonprofits have a written conflict of interest policy. The policy must be re-signed each and every year by the directors and officers. Specifically, directors and officers must:

1.) Be able to identify circumstances that render conflicts of interest;

2.) Be involved in setting forth procedures to disclose conflicts of interest;

3.) Prohibit other individuals from being present during or participating in deliberation, voting on the issue, or influencing the vote on the issues that directly involves the conflict of interest; and

4.) Ensure the organization documents and resolves each conflict;

Duty of Obedience

    The Duty of Obedience requires that directors and officers work to ensure that the organization complies with all applicable laws and regulation, ensure that the organization complies with its own policies and ensure that the organization is carrying out its mission.  Directors and officers have a duty to ensure that the organization is complying with the requirements to maintain their tax-exempt status by filing the appropriate forms with the IRS and the attorney general.  

    Before joining the board, make sure you complete your due diligence. You should research the expectations of board members, governance responsibilities, the time commitment, the regularity of board and committee meetings, fundraising obligations, the current board of directors, the leadership style of the board, the number of employees, and the organization’s policies. In addition, you should verify that there are no pending regulatory investigations or any other pending investigations. You must review the organization’s by-laws and verify that the organization has directors’ and officers’ liability insurance coverage.

Joining a nonprofit board can be an extremely rewarding experience.  Now that you have the knowledge to make an informed decision, go join a nonprofit board!

 

Megan Kendall is an associate attorney at Conboy, McKay, Bachman & Kendall LLP, and practices in areas of estate planning, real estate, and business law. She is a member of Clayton Lions Club, Clayton Improvement Association, Herring College Trust, T.I. Community Foundation, Association of the Blind and Clayton Opera House. Contact her at 315-788-5100