June 2001 |
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In This Issue
Kegler Brown Attorneys in the NewsTony Celebrezze has joined Kegler Brown. Tony served two terms as Ohio Attorney General, where he earned national distinction and recognition for his initiative in environmental enforcement, consumer protection and law enforcement. He is also a former State Senator and Ohio Secretary of State. Steve Chappelear has been selected for inclusion in the "Best Lawyers in America Consumer Guide," and was named President-elect of the Ohio State Bar Association. Tom Hill was named in the "Best Lawyers in America" in the business litigation area. Helen Mac Murray, former Chief of the Ohio Attorney General's Consumer Protection Section, has joined Kegler Brown. Noel Melvin was honored by the Ohio State Bar Association for having practiced law fifty years. Geoff Stern was honored in "Ohio Lawyer" magazine by the Ohio State Bar Association as its outstanding volunteer. Chris Weber was recognized by the Columbus Bar Association as "Lifesaver of the Month" for his volunteer legal services for the poor through the Lawyers for Justice program. Your Customer Has Filed for Bankruptcy...Now What?By Paul V. Danielson In today's economy, bankruptcy is again a popular topic of discussion. Most companies assume that they have automatically lost all chance of ever recovering any debts due and owing from a customer once the dreaded "B" word is uttered. But, this does not have to be the case. While the bankruptcy system is designed to give debtors a "fresh start" by discharging old debt, there are several factors which may allow a creditor to realize at least a partial return from the bankruptcy estate. For example, the purpose of a chapter 11 bankruptcy is to allow the corporate debtor to reorganize its business. Similarly, chapter 13 bankruptcies were created to allow an individual debtor (including those pesky d/b/a's) to reorganize its affairs. A powerful tool of a creditor in both chapter 11 and chapter 13 cases is the ability to object to confirmation of the debtor's payment plan in the bankruptcy. Even in a Chapter 7 bankruptcy, which is a straight liquidation of the debtor's assets, there are legal devices which a creditor can utilize to increase its chances of receiving a disbursement from the bankruptcy estate. Since there are so many types of bankruptcy and potential avenues to maximize recovery, it is important to contact your attorney as soon as you receive notice of a customer's filing. Time is of the essence, so don't delay! It is also essential to realize that there are many steps a creditor can take before a customer files for bankruptcy in order to protect itself. Properly securing enough collateral to cover the debt owed by a customer, as well as taking action upon recognizing the signs of a customer in trouble are examples of how a creditor can minimize the effect of a bankruptcy. The Creditors' Rights and Bankruptcy attorneys at Kegler Brown are happy to give a presentation to your company on strategies to deal with bankruptcy both before and after a customer files. Record On: Few Restrictions Exist for Taping CommunicationsBy Kim H. Finley In the post-Linda Tripp/Monica Lewinsky era, many people may be wary of recording conversations without disclosure to, or consent from, all parties. But under Ohio and federal law, there is no real need for concern. Those with a penchant to record their conversations can keep the tape rolling. All others should remember that conversations are subject to taping at any time without their awareness or consent. While both state and federal law provide a general rule prohibiting anyone from purposely recording a wire or oral communication, exceptions exist in both laws for private citizens. These exceptions are sometimes referred to as the "one party consent rule," which provides that as long as a person is not working as or with law enforcement, a party to a communication is not prohibited from intercepting and recording it. However, if not a party to the conversation, consent must be gained before recording the communication. The only difference between the federal and state provisions comes in the prohibitions concerning use of the recordings. Under federal law, the intercepted communications can not be used for criminal or tortious purposes. In Ohio, the recordings may not be used for criminal, tortious or "any other injurious act." Ohio law also differs from the wiretapping statute in Maryland that led to the indictment of Tripp. In Maryland, all parties must consent to the recording of a conversation. Although Lewinsky obviously was unaware of the taping, Tripp's prosecution hinged on whether she had the intent required to violate the Maryland law. Because of a lack of evidence about when Tripp became aware of this state statutory prohibition, the charges were ultimately dropped. Beyond the legality of recording communications, whether via phone or in person, the practice does raise ethical considerations. There may be professional or business organizations, or a company's own internal policies that strictly prohibit the practice or that strongly advise against it. For example, the surreptitious recording by attorneys in the course of legal representation was deemed unethical by the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline, in an opinion released in 1997. That decision was in line with the position of the American Bar Association Committee on Ethics and Professional Responsibility, which first addressed this issue forty years ago. The ABA Committee recommended that "no lawyer should record any conversation whether by tape or other electronic device, without the consent or prior knowledge of all parties to the conversation." Ultimately, no legal reason exists to hit the pause button on recording a communication if you are a party to it. But the ethical considerations must be resolved independent of the law. Perhaps the best advice is to be aware that while you may decide not to tape your communications, the person you are talking to might be. Responding to SubpoenasBy John Lowe IV They only seem to come at inopportune times. Whether they request your attendance when you were to be in Hilton Head with family or just in an important meeting, subpoenas are often served with little warning and demand action when it is inconvenient. Many people don't realize that attorneys often get away with serving subpoenas that, if the subpoena were questioned, a court would refuse to enforce. While courts recognize the importance of parties in litigation obtaining documents and information from third parties, courts also require the parties to adhere to specific rules for obtaining documents and information. Too often, however, individuals who receive subpoenas never question them — thus allowing attorneys to obtain information and documents to which they have no right and in a manner which may be improper or inconvenient. Subject to extraordinarily limited exceptions, attorneys can subpoena practically anything from anybody. For good or ill, courts require subpoenaed individuals to protect themselves. The good news is, all that is required to protect oneself is a letter. The Ohio Rules of Civil Procedure set forth the specific requirements for the issuance of, and objection to, subpoenas. There are four basic objections that an individual or company can make to a subpoena: (1) it was not validly served; (2) it fails to allow a reasonable time to comply; (3) it requires disclosure of privileged or otherwise protected matter; and/or, (4) it subjects the subpoenaed individual or company to undue burden. These objections must be made in writing within 14 days after service of the subpoena, or if the time specified for response to the subpoena is less than 14 days, objection may be made at any time before the response date. Once one of these written objections has been made, the attorney who issued the subpoena must ask the court for an Order commanding compliance with the subpoena. The subpoenaed entity will receive a copy of the motion — thus allowing the subpoenaed entity to respond to the motion before the court rules. These objections are not, however, to be loosely made. The Rules specifically provide that failure to obey a subpoena "without adequate excuse" may be deemed contempt of court. Thus, baseless objections may be punished. That said, however, courts are generally slow to fine or punish anyone for discovery violations, and non-parties to litigation are usually going to have to act in bad faith before a court will use its authority to punish a non-party. Each of the objections applies differently depending on the circumstances. For instance, providing the CEO of a Fortune 500 company with three weeks notice for a deposition — especially without attempting to accommodate his or her schedule ahead of time — would likely fit within the "fails to allow a reasonable time to comply" or "undue burden" objections. The same is not necessarily true for subpoenas issued to a grandparent who does not work. Basic questions to subpoenas can often be answered without research or a significant time commitment by an attorney. If you are subpoenaed to provide information or documents in a suit, you may be well served to contact your legal counsel prior to responding. Directory of Trial LawyersYou can contact our trial lawyers via the Litigation Practice Team web page.
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© 2008, Kegler, Brown, Hill & Ritter Co., LPA.