Author: Steve Graham

     Idaho has had a new rash of hate crimes in the last year.  Last Friday, Brittany Edelblute’s Subaru was spray painted with swastikas.   In an article in the Spokesman-Review, it was explained that Brittany Edelblute was apparently targeted because she has friends who are African-American that come by her house.  She has had a problem of people shouting racial slurs while they drive by.  I blogged about a similar incident last month against Haitham Joudeh.   In the news coverage last month in the Coeur D’Alene Press, the comment section was full of hateful comments.   The whole story was later taken down.  This time, the Coeur D’Alene Press did not post a story online about the crime against Brittany Edelblute.   Last month, a majority of the people making comments online accused Haitham Joudeh of vandalizing his own car just to get sympathy.

     Why does this stuff always happen in North Idaho?  I don’t think it is just happenstance. It seems that the people in power over there inadvertently foster such behavior by their own actions.  Look at the shabby way Kootenai County Commissioners Rick Currie, Todd Tondee and Richard Piazza treated Haitham Joudeh.  Haitham Joudeh, an Idaho native of middle-eastern descent, sought a building permit.  The local Planning Department did not object to the project.  In addition, after a lengthy public hearing where all sides were held, the Hearing Examiner Rebecca A. Zanetti recommended that the permit be approved.  But neighbors put together an anti-Joudeh rally against the applicant, and the county commissioners bowed to pressure and rejected the permit.   Haitham Joudeh complained that during the rally and the public hearing, many negative comments were made about his religion and ancestry.   Commissioner Rick Currie is a member of the Mica Grange, the group that allegedly held the anti-Joudeh rally.   Currie boasts of his membership to this group on his re-election website.

     I have done a fair amount of land-use law in my practice, and that sure seems seems strange that the county commissioners would not approve a permit when the experts did not see a problem with it.  And if the commissioners are affiliated with groups opposing the permit, they have a duty to step down and appoint a neutral decision maker.

Re-Posted with permission of the author, attorney  Chuck Peterson of Peterson Law Office.  http://www.idahocriminaldefenselaw.com/ 

     This week’s first call from a potential client posed the question: Why do federal investigations take so long? Long is right! I am involved in a fraud case in federal court (potentially) that began nearly 5 years ago, and like that rabbit it just keeps going and going and going and – well you get it. Federal prosecutors are like great gift givers at Christmas. By the time you get their “package” it is so tightly “wrapped” (resulting from a long, thorough investigation) that you seldom have a chance to get to the goods in one piece. Those long, thorough investigations result in very thorough indictments, and complex trials in federal court.

     Federal investigators have unlimited investigative resources when investigating federal crimes. They use wiretaps, surveillance, monitoring of computer and banking records, and they love informants. As a result, federal investigations frequently take months and years and seldom involve mistakes or sloppy work, unless those informants have gotten sloppy.

     And let’s not forget the darling of every federal prosecutor – conspiracy. In almost every federal criminal case you will find a conspiracy charge, to give the feds even greater investigative leverage. A charge of conspiracy changes the rules. That out of court statement made by your brother is suddenly admissible at trial because of the co-conspirator exception to the hearsay rule. Other defendants making plea bargains may claim you are guilty of crimes you did not commit or are only partially responsible for, based on hearsay and their motive to avoid a stiff sentence.

     So what to do if facing a federal investigation? Here are my top three tips:

     First – hunker down and be willing to endure. You can seldom change the course or scope of a federal investigation, whether you are suspected of some type of fraud or an obscure federal criminal tax violation. So settle in and hope to wait them out. It happens! Sometimes they find a bigger fish to follow and lose interest in your problems.

     Second – get the best legal help you can afford. ONLY hire an experienced criminal defense lawyer who has spent time trying criminal cases in federal court. Ask him or her specifics about federal criminal trials and do not settle for someone who has never WON a federal criminal trial.  You do not need a novice or a generalist – your life and liberty are on the line.

     Federal criminal trials are different from state or local criminal prosecutions. They are more complex, they take longer to get to trial and you start at an investigative disadvantage because of the length of time the United States has taken to investigate before filing that criminal case.

     Finally – do not talk about the case with others. There is no “frightened potential criminal defendant – old college room mate” privilege. There is that attorney – client privilege that allows us to hear the whole story in complete confidence so that we can give you reasoned advice. Real advice on what to do next.

Posted with Permission of the Author, Sandra L. Clapp    

      You can pick up many financial planning books or articles that will emphasize the “evils of probate” and encourage the reader to “avoid probate.”  Many of these articles are designed to generate fear in the reader and rely upon state laws where estate administration is cumbersome and costly.  This second article in our planning series will focus on removing the mystery from “probate” and outlining administration and title options under Idaho law.

     You have probably heard the word “probate,” but what is it really?  Simply put, probate is the legal process of appointing the personal representative (executor), paying the decedent’s debts and final expenses, determining the heirs (whether through a will or intestacy), liquidating assets, paying all estate and/or income taxes of the decedent, and distributing assets to the heirs.  The “estate” generally refers to all property, debts, rights and obligations of the deceased person.  Each person has an “estate” on death without taking any action whatsoever as the estate is created automatically by law.   However, to have authority to act on behalf of the estate, the court generally must appoint the personal representative (also known as the executor or administrator in other states).  Once appointed, the personal representative assumes fiduciary rights and responsibilities to properly administer and distribute the estate and is accountable to the court, creditors, and beneficiaries regarding the estate.

     The laws of probate vary among the states and may be fairly straightforward or very complex and costly.  These probate laws govern the administration of the “estate,” which include the details of how the personal representative is appointed, the priority of creditor claims against the estate, the identity of the beneficiaries in intestacy (if death occurs without a will), and distribution and closing of the estate.  Idaho has adopted the Uniform Probate Code which provides for an efficient means to administer an estate without added court oversight or large additional cost.  In most Idaho estates, all documents are sent to the court and no appearance is made before the court unless a dispute occurs or for certain identified matters.  The initial appointment of a personal representative and determination of the heirs (through a will or intestacy) is generally a fairly swift process and can take less than one week except in more difficult circumstances.  If you are an Idaho resident, the need to probate the estate should not alone be a motivator to establish a trust or adopt more complex planning (although there may be other reasons which justify a trust or more complex planning documents).

     You may have read or received the recommendation that you create a revocable trust to “avoid probate” or protect your assets from creditors.  Many of the administrative steps outlined above regarding debts, taxes, and distribution will need to occur whether the estate is administered through a will or through a revocable trust.  Often the only difference is the initial filing of the pleadings for appointment of the personal representative.  A revocable trust will also not protect your assets from creditors because the person who creates the trust will generally retain the right to revoke, amend or terminate the trust, which will not prevent a creditor from accessing the trust assets to satisfy your debts or liabilities.

     There are situations where use of a revocable trust or other structure are appropriate.  One situation is if you own assets in more than one state, particularly real estate, the need for a more complex plan is appropriate to minimize the possibility of going through probate in more than one state.  With multi-state real property, it may be appropriate to establish a revocable trust or to hold the real property in a business entity such as a limited liability company or limited partnership.  Another situation where revocable trusts are beneficial is age or physical infirmity where your assets can be held and effectively managed by another through the trust for your benefit.  If a revocable trust is used, the assets must be titled in the name of the trust to be governed by the trust document and “avoid probate.”  In addition, a will is still generally required to transfer assets outside of the trust to the trust for administration as part of probate of the estate (remember the estate is all assets of the decedent which may be outside of the trust).  Generally a “pourover” will is used with a trust to transfer all assets outside of the trust into the trust for comprehensive administration. 

     Because use of a trust and estate planning generally involve important legal issues, it is recommended that you consult with your legal and tax advisors to ensure any action taken is appropriate for your circumstances.  This article is not intended to replace legal advice applicable to your situation and should be used only for informational purposes.  Next issue we will focus on asset titling and coordinating beneficiary designations to accomplish your planning desires.

Posted with Permission of the Author, Stephen M. Nipper

     The best book I read in 2009 was Seth Godin’s “The Dip.” If you haven’t read it, DO.

     In “The Dip,” Godin mentions the following passage from the Declaration of Independence:

     …all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.

     My challenge to my fellow attorneys is this:  if there is an “evil” you are suffering or see others suffering, whether that “evil” be personal, professional, or societal, do something about it.  Maybe that means fixing broken relationships.  Maybe that means ending other relationships.  Maybe that means righting a wrong.  Whatever it means to you, and no matter how uncomfortable it is in the short term, deal with it.  Let 2010 be the year that you started enjoying life again.

[note:  the above appeared in JD Supra's post on "Lawyers-Legal Professionals Looking Ahead to 2010" (which is worth reading too)]

Re-Posted with permission of the author, attorney  Chuck Peterson of Peterson Law Office.   Originally posted on December 19, 2009 on http://www.idahocriminaldefenselaw.com/

     I sometimes laugh at the notion of lawyers as counselors. We are not trained to be counselors.  We are trained in the law and by experience we learn to be fighters. Advocates. I have always liked the French term “avocat” as it better describes our role in the disputes that dominate our professional lives.  But what do our clients really need from us?  And what does the idea of “wise counsel” include?

     First – clients need and deserve our full attention. They need to unload the facts and circumstances that make their case, and they need to know that we understand their plight.  Let’s call this ACKNOWLEDGMENT.  They need to know that we understand all the facts so that we can help them tell their story. Every case is just that – a story.  Our clients are not bit players in their dramas, they are the stars.  So we need to acknowledge their role and give them our best attention.

     Second – our clients need the TRUTH about their situation.  We have the benefit of our education and experience. The key to making their position a winner is understanding how their facts fit the law. Once we know how facts and law will join, we need to tell them what we think about their position.  Is there position likely to carry the day? If not, they need to hear that from us, before a judge or jury tells them what we so often know but do not fully articulate.  The truth can save them money and save us the emotional upheaval every trial brings.

     Third – our clients need the benefit of our ability to lead in the face of the storm – this is VISION. Vision encompasses more than just acknowledgement and truth. Vision transcends the tough times and sleepless nights our clients cannot get past.  Vision is our ability to keep moving forward regardless of the collateral damage. But in tough times, vision is the first casualty.  Think of a time in your life where you faced that seemingly impossible situation. Was your ability to see the bigger picture eclipsed by the detail of your personal hardship? Our clients and their families are under incredible stress, handling life and death decisions that grip them. They are often depressed, indecisive, preoccupied and mired down with anxiety and guilt.  They need us to lead and to direct – they need the vision that comes from our view of the territory and understanding of the law.

     If you are a lawyer thinking about next year – as I am right now – maybe these thoughts will help with your planning.  My resolution for 2010 is to be a more client-focused “avocat..” 

     I will try to not fight with the folks who have asked me to fight for them.  This is not always easy because of their emotional state and the stakes involved in their case, and sometimes, the client is wrong.  Sometimes the client won’t listen and will not take our advice.  But I will try.