Monday, March 25, 2013

What You Should Know about Talking To an Attorney Online


Q:       I need legal advice. Can I find an attorney online?
A:        Attorneys, like many other professionals, are using social media and websites to develop new relationships with those seeking legal representation. But hiring an attorney online will likely be a multi-step process due to restrictions on lawyers regarding advertising and the obligation to keep client information private.

Q:       Why can’t an attorney just tweet or post on Facebook the answers to my legal questions?
A:        While social media makes easy for someone to find an attorney, there are many reasons why the attorney is unlikely to answer your question online in real time. Several of these are listed below.
·       Confidentiality. Generally, lawyers owe their clients and prospective clients the right to keep information shared about a legal matter private, unless the client gives consent to share it with others. Exchanges posted on a social media site are hardly private; anyone with access to the site can view communications. For this reason, new rules have been proposed to help ensure that lawyers behave professionally in a world filled with social media. The rules require attorneys to not only be mindful of their conversations online, but also to be very familiar with the technology they use to gather information. Even if you and the attorney share information privately through your personal email, a direct Twitter message or a contact form on the lawyer’s own website, the attorney must be familiar with whatever online service you are using to exchange information, as well as the privacy settings of that service.
·       Jurisdiction. If someone is communicating online, it’s not always easy to determine where that person is physically located or where the legal matter at issue took place. Lawyers are only allowed to represent clients in jurisdictions where they are licensed to practice. For example, a lawyer licensed to practice only in Ohio cannot give specific legal advice to a person whose legal issue is in Michigan.
·       Conflicts of interest. Lawyers must avoid discussing legal matters with anyone who might have interests that conflict with that lawyer’s existing clients. If a lawyer simply responds in real-time to a person online in hopes of signing up a new client, that lawyer may later discover that the new client is involved in a legal matter in opposition to another client who is currently being represented by the lawyer or the lawyer’s firm. Lawyer ethics do not allow such a “conflict of interest,” so the lawyer will not be able to represent the new client.

Q:       If lawyers won’t provide answers online, why are they using social media?
A:        While certain restrictions and obligations make providing online legal advice difficult, a lawyer can provide general legal information to educate the public. Such educational information is likely to include a statement indicating that the information provided is general and not a substitute for personal legal advice. This statement serves as a warning that the information being provided will not necessarily pertain to an actual legal situation described by someone who is seeking legal advice. In legal matters, each case is different and one size does not fit all, but an attorney’s explanation of the law may help someone know what questions to ask a lawyer during a consultation about his or her particular case.

Q:       Can lawyers answer online questions to advertise their services?
A:        Lawyers are bound by specific rules on how they can advertise and solicit business. For example, lawyers must clearly alert readers or viewers that the information provided is actually an advertisement. In a social media setting, you may not see a disclaimer on a tweet or post, but lawyers still must abide by the advertising and solicitation rules. In the online media setting, a lawyer may, for example, list the penalties for DWI, and then state that this is general information. The lawyer may then invite you to submit an email, fill out an online form or call for additional information. If you do provide information about your particular legal matter, the lawyer can then take steps to determine if the matter is within that lawyer’s jurisdiction, that there is no conflict of interest between you and other clients, and to ensure that what you share will be confidential.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Columbus attorney Dan Trevas. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, March 18, 2013

Ohio Law Provides Ways for Non-Marital Households to Divide Property


Q:       I’ve been living with someone for ten years, and now we’re splitting up. Can we use a divorce court to divide our assets and debts, even though we aren’t married?
A:        No. If you are not married, Ohio law does not give you the right to stand in front of a court and request an equal or equitable division of your property. The legislature has passed laws governing equitable and equal division of separate and joint property for married couples, but no such statute governs how to determine what is equitable when dividing property between co-habitants. 

Q:       Since we’ve lived together for so long, might we be considered to have a common law marriage?
A:        No. Common law marriage is no longer recognized in Ohio. Ohio law recognizes common law marriage only if it occurred before October 10, 1991 and was not ended by death, divorce, dissolution of marriage or annulment. However, Ohio will recognize a common law marriage if it was proper under the laws of another state for people who are now meeting all of Ohio’s residency requirements.

Q:       Is there a way we can divide our real property, even though we were never married?
A:        Yes. Most people hold their real property as “tenants in common” (meaning that they own it together) or as “tenants with the right of survivorship” (meaning, generally, that they own it jointly, and the entire property passes to one of them on the death of the other person). If you own property jointly as tenants in common, then one of you may wish to buy out the other. However, if you do not wish to do this or cannot agree on the price, you can file a civil action in a civil common pleas court. This is called a “partition action.” The court will consider the property appraisals and the interests of both parties, and decide who should have the property by the partition action. A partition action can be brought if you cannot end your relationship by selling or transferring your interest in the property to each other or to a third party. Also, if the property is not paid for, your interest can be lost, either through the partition action or through a foreclosure action.


Q:       The person I’ve lived with for ten years will not return my personal property. Does Ohio law address this issue even though we’re not married?
A:        Yes. If the other party is holding your personal property and will not release it, you can bring suit in municipal court requesting the return of your personal property. You must, however, be able to prove the suit by evidence such as other witnesses who know you owned the property, receipts for purchase, cancelled checks and such other evidence to show that it is your personal property

Q:       Can I sue my partner if she reneged on her promise to marry me?
A:        No. One co-habitant cannot sue another based only on the promise to marry. If you have lost property or have transferred property based on that promise, you can try to get the value of the property or the property back, but you cannot claim any “damages” (compensation for the injury your partner caused you) based on the promise alone.

Q:       Does Ohio have a Defense of Marriage Act?
A:        Yes. Ohio’s Defense of Marriage Act was passed on Nov. 2, 2005. This act effectively changed Ohio’s constitution to define marriage as a contract between one man and one woman. Article XV, paragraph 11 of Ohio’s constitution says that “the state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or affect of marriage.”

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Dayton attorney James R. Kirkland of Kirkland & Sommers, Co., L.P.A. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, March 11, 2013

Do You Have Severed Oil and Gas Interests on Your Property?


Q:       What is a “severed mineral interest”?
A:        If you buy a property, you may find you don’t own everything on that property. For example, a past owner may have sold the house and land, but kept an interest in minerals that might be found underneath the property. This is called a “severed mineral interest.” While it could be a reservation of gold or silver, today such an interest is usually in oil and gas. This severed interest may take different forms. A past owner may have reserved all mineral rights, all the oil and gas rights, half of the oil and gas royalty rights, the oil and gas leasing rights and part of the royalty rights, or some variation of these.

Q:       How do I know if my property has a severed mineral interest?
A:        Your deed may spell this out, but to be certain, you should have a qualified person do a complete oil and gas mineral search. This would involve an examination of public records going back to the 1880s.

Q:       Should I simply assume that I have the right to sign an oil and gas lease?
A:        If you sign, and later it is determined that you do not own all of the oil and gas rights, you will be notified and told to eliminate any outstanding oil and gas interests. However, eliminating those interests after signing a lease may be more difficult or costly.
            For example, if a severed oil and gas interest was only for part of the royalty interest, then the owner of that interest has no right to lease the property. That royalty interest would mean something only if oil and gas were being produced on the property. If you are currently leasing the property, the potential value of that royalty interest is automatically more valuable, so the owner of the interest would likely fight to keep that interest.

Q:       Should I sign an oil and gas lease if I do not own all of the oil and gas rights?
A:        If you do not own all of the oil and gas rights, it may be unwise to sign a lease for the reasons stated above.

Q:       If my property has an oil and gas problem, should I fix the problem or wait to see if the oil and gas company takes care of it?
A:            An oil and gas company will rarely take the legal action needed to eliminate an outstanding oil and gas interest affecting your property. Let’s say you own only half of the oil and gas leasing rights, while a previous owner has reserved the other half for his or her heirs. The oil and gas company may approach those heirs instead of you, and acquire their signatures on the lease. To avoid such a scenario, you should attempt to eliminate the severed minimal interest before signing a lease.

Q:       What can I do to eliminate any outstanding severed oil and gas interests on my property?
A:             You have several options, depending on what the deeds in your chain of title say and whether there is any oil and gas production on your property. One option is based on the 1989 Ohio Dormant Minerals Act. This remedy can be used only if, within the last 20 years, there has been no oil and gas production and no claim filed or recorded to preserve that interest. An amendment to this act, effective June 30, 2006, now requires that a notice be given to the holder of the severed mineral interest.
            You may also be able to use the Ohio Marketable Title Act, depending on the wording used in the deeds in the chain of title, beginning with the most recent deed that has been of record for at least 40 years. This option would require you to file a Quiet Title Action in court, which involves more time and costs than the first option. This remedy is also not available if there has been oil and gas production on your property in recent years.
            If the severed mineral interest was created using “words of inheritance” (such as “heirs and assigns”) in a deed made before June 13, 1925, you may be able to argue that the reservation was valid only during the lifetime of the individual who made the reservation, unless the deed includes words of inheritance or succession. After June 13, 1925, words of inheritance were no longer required to create a fee simple estate.
             
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Woodsfield attorney Richard A. Yoss of the Yoss Law Office. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, March 4, 2013

“Castle Laws” Change Self-Defense Rights


Ohio’s passage of Senate Bill 184 on Sept. 9, 2008, and of Senate Bill 17 effective Sept. 30, 2011, marked numerous changes to the state’s self-defense laws and concealed carry laws, including adding provisions known as “castle laws,” which have also been enacted in 47 other states.
Ohio law previously required the victim of a home invasion to retreat before using deadly force against the intruder; a person who used deadly force in such a situation had to prove in court that he or she acted out of fear of serious physical injury or death. 
Ohio’s self-defense laws now give homeowners more rights to protect themselves. In addition, S.B. 184 and S.B. 17 have loosened restrictions on concealed handgun license holders regarding carrying and renewal requirements.

Q:       If someone enters my home illegally, and I shoot her in self-defense, does S.B. 184 protect me from being arrested for protecting myself and my family?
A:        Generally, yes.  Ohio’s “castle laws” presume you have acted in self defense or in defense of another when using deadly force against someone who has unlawfully entered your residence or vehicle. If you were to be charged, the prosecution would have to prove that the intruder did not enter your house or vehicle with the intent of causing harm. 
            S.B. 184 also bars criminal offenders from recovering damages for injuries they receive from their victims while engaged in criminal conduct. You can now defend yourself in your home without worrying that your attacker will be able to recover for injuries incurred during the intrusion. 

Q:       Are there any other S.B. 184 or S.B. 17 provisions that might affect me?
A:        Yes. These bills made several modifications to the 2004 concealed carry law. If you have a concealed handgun license (CHL), you may now carry a loaded handgun in your vehicle. Under S.B. 17, if you are a CHL holder, you do not have to keep your gun in a closed glove box or console box. The penalty for failing to notify a law enforcement officer that you have a concealed handgun license has been reduced to a minor misdemeanor. 
            Previously, you could not carry a concealed weapon into any room where liquor was dispensed. As of Sept. 2011, if you are a CHL holder, you may bring your gun into bars and other places where liquor is sold. However, if you bring a gun into a bar, you are not allowed to drink any alcohol and you are not permitted to bring a gun into any bar or other business that posts a sign banning weapons.
            Further, only certain government buildings designated in the law are off limits for “concealed carry,” and you may now carry a concealed weapon into a building that is used primarily as a shelter, restroom, parking facility, or rest facility—as long as there is no sign posted that bans weapons. 
            The law also decriminalizes carrying a concealed weapon in a school safety zone while immediately in the process of picking up or dropping off children at school, so long as the licensed holder of the weapon remains in the vehicle.    

Q:       How has S.B. 184 changed the rules for renewing my concealed handgun license (CHL)?
A:        You are no longer required to bring a color photograph or resubmit your finger prints when you renew. While prior law required that you renew your license at least 30 days before it expired, the new law says that you may renew your license any time before it expires, as long as you don’t try to renew earlier than 90 days before expiration. Further, if you have had a criminal conviction in the past that has been sealed or expunged, it cannot be used to deny you a CHL.

Q:       Can my landlord keep me from having a gun if I have a CHL?
A:        No. Landlords can no longer restrict or deny tenants who have a CHL, or guests of tenants who have a CHL while the tenant is present, to keep and bear arms on the rented premises. Also, a homeowner is not required to have a CHL to lawfully carry a concealed weapon in his or her home.

Q:       What does S.B. 184 say about keeping an unloaded gun in a vehicle?
A:        Senate Bill 184 changed the definition of “unloaded firearm” as it pertains to vehicles. Now for the gun to be considered unloaded, it may not have ammunition in it, nor can ammunition be loaded into a magazine or speed loader anywhere in the car.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was originally prepared by Columbus attorney Michael L. Close of Wiles Boyle Burkholder & Bringardner, and updated by Douglas Riddell and Bridget Purdue Riddell of Riddell Law LLC. The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem.

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