3 tips for safe emailing with your attorney

October 30, 2014 on 1:11 pm | In Business Planning, Common Interest Community, John Tarley, State & Federal Litigation | No Comments

Obviously the use of email has changed many aspects of our world, including the practice of law. As with all new technology, we sometimes learn hard lessons. The attorney-client privilege is the foundation of effective communication between counsel and clients. Only a client can waive that privilege. Although email has far more positives than negatives, to protect attorney-client communications, use these three tips.

Williamsburg Virginia Business Lawyers

Attorney-Client Privilege

 

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Attorney-Client Privilege: What is it and how do you protect it?

October 30, 2014 on 1:11 pm | In Business Planning, Common Interest Community, State & Federal Litigation, Susan B. Tarley | No Comments

The attorney-client privilege permits confidential communication between an attorney and her client.  The objective is to encourage open communication, which permits an attorney to provide thorough, competent and complete advice.  Generally speaking, only a client can waive the privilege, but as found by the Virginia Supreme Court in Walton v. Mid-Atlantic Spine Specialist, PC, et al., a client’s inadvertent disclosure of a privileged communication may operate as a waiver of the attorney-client privilege.

In this Williamsburg medical malpractice case, a defendant doctor wrote a letter to his attorney calling into question his medical diagnosis he gave to his patient. The doctor kept this letter in a separate notebook. During discovery the defendant medical practice used a third party service to copy document requests. The letter was provided inadvertently to the plaintiff.

Although the defendant claimed that he did not produce the letter or permit anyone else to produce the letter, the Court found that the defendant did not take adequate protection to protect the letter. The Court noted that the notebook in which the letter was found was not marked as confidential or privileged. Furthermore, the Court held that the client did not take prompt action following disclosure.

The Virginia Supreme Court considered five main factors in determining whether the inadvertent disclosure waived the client’s privilege.  The Court looked at:  (1) the reasonableness of the precautions to prevent inadvertent disclosures, (2) the time taken to rectify the error, (3) the scope of discovery, (4) the extent of the disclosure, and (5) whether the party asserting the claim of privilege or protection for the communication has used its unavailability for misleading or otherwise improper or overreaching purposes in the litigation making it unfair to allow the party to invoke confidentiality under the circumstances.

As a start, clients should maintain attorney-client privileged communications in a separate file or notebook and clearly mark the file or notebook and each communication as “CONFIDENTIAL-ATTORNEY-CLIENT PRIVILEGED COMMUNICATION.”  Then, if an inadvertent disclosure is made, the client should contact her attorney as soon as possible to determine a plan of action to restore the attorney-client privilege.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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How is starting a business like getting married?

October 30, 2014 on 1:11 pm | In Business Planning, Merger & Acquisition, Neal J. Robinson | No Comments

I have often been struck by how much business counseling and marriage counseling can be alike.  “He said he was really good at marketing and was going to handle all the sales.  We haven’t seen a worthwhile sale in months.  All he does is drive around, I GUESS making sales calls, but mostly just spending money.”  “She said she was going to keep the books and handle the personnel issues.  I didn’t know that meant a row of shoe-boxes full of receipts and employee turnover at seventy percent!  This place is a disaster!”  “Turnover is at seventy percent because we don’t have enough sales to keep anyone employed.  If you did your job, then maybe I could do mine.”

Williamsburg Virginia Business Lawyers

Starting a Business

He said, she said.  And so it goes.  It is estimated that fifty-five percent of all first marriages fail and approximately 56% of new businesses fail within four years.  Here are some of the reasons most often given for start-up business failures.

 

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General Partnerships, The Way To Go . . . Financially Under

October 30, 2014 on 1:11 pm | In Business Planning, Merger & Acquisition, Neal J. Robinson | No Comments

 

Though the majority of businesses in the United States are sole proprietorships, those of you who read an earlier post know that I recommend, for a myriad of good reasons, that an entity of some kind be placed between a person doing business and the rest of the world. Find an experienced business attorney to help establish your business entity.

In this post, I address briefly the general partnership form of business entity, the only form I consider more dangerous to the financial health of an individual than the sole proprietorship.  Why, you ask?  Because with the sole proprietorship, the sole proprietor is personally liable for the acts of the sole proprietor, the business and the business employees.  In the general partnership, the partners are personally liable for the acts of the business, the employees and each other.  What partners do can be fairly unpredictable, like contracting to purchase or lease things that cannot possibly be paid for out of the profits of the business, or like contracting to do that which cannot possibly be done profitably.

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What does it mean to be on the Board of Directors of your HOA? Fiduciary Duties (Part 1 of a series)

October 30, 2014 on 1:11 pm | In Business Planning, Common Interest Community, HOA, Merger & Acquisition, Real Estate Strategies, Susan B. Tarley | No Comments

Board members are told that they have fiduciary duties to the community association, but what does that really mean?  Fiduciary duties arise because the members of the association entrust a board member to act in the best interest of the association when handling the association’s business.

There are three components that are important to understand fiduciary duty.  First, the Virginia Code, at § 13.1-870, imposes on directors a requirement that a director exercise her duties in good faith and in the best interest of the association.  This requirement is the so-called “business judgment” rule. Second, Virginia case law imposes duty of care that requires a board member to act as a reasonable person would under similar circumstances.  Third, Virginia case law imposes a duty of loyalty that requires a board member to put the association before any personal interest.  These last two duties are referred to as “common law” duties. Continue reading “What does it mean to be on the Board of Directors of your HOA? Fiduciary Duties (Part 1 of a series)”

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Using your business’ computer to email your attorney may be a bad idea

October 30, 2014 on 1:11 pm | In Business Planning, Common Interest Community, General Interest, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation | No Comments

Email

Well, we have written about protecting the attorney-client privilege and about safe emailing tips when emailing your attorney. Although we thought we had it pretty well covered, a recent decision from a California appellate has given us something more to think about.
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HOAs and Transition from Developer Control – 101

October 30, 2014 on 1:11 pm | In Business Law, Business Planning, Common Interest Community, HOA, HOA litigation, John Tarley, Susan B. Tarley, Unit Owners Association | No Comments

Owners in most community associations—both homeowner associations and condominium associations—eventually reach the point where the developer transfers control of the Board of Directors to the owners. This blog post provides an introduction to the transition process and what owners can expect.

Susan Tarley

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Can I “hire” an unpaid intern for my business?

October 30, 2014 on 1:11 pm | In Business Planning, Employment law, John Tarley, Merger & Acquisition, State & Federal Litigation | 2 Comments

I teach as an adjunct faculty member at the William & Mary Law School. I find this part-time teaching gig very stimulating intellectually because the law students at W&M are extremely intelligent, diligent, and driven. This past week a new class of first-year law students arrived with great expectations about their futures. The reality of the job market, though, is that the legal profession has not been immune from the effects of this difficult economy.

Some of my second-year law students have also arrived back into Williamsburg, and I have been surprised at the number of students who report they worked as an “unpaid intern.” Although this practice is permissible in certain situations, these working arrangements with private law firms probably violates federal labor laws, and it is particularly distressing that it occurs in the practice of law. This blog post provides some guidance for your small business when deciding whether to “hire” an unpaid intern.

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Should I incorporate my business?

October 30, 2014 on 1:11 pm | In Business Planning, Merger & Acquisition, Neal J. Robinson | No Comments

Frequently, budding entrepreneurs merely evolve into business without giving it the upfront thought the transition deserves.  They become what are usually known as “sole proprietors” operating “sole proprietorships,” or one-man/woman businesses.

Business Deal

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How to Run An Effective HOA Board Meeting

October 30, 2014 on 1:11 pm | In Business Planning, Common Interest Community, HOA, HOA litigation, Unit Owners Association | No Comments

Have you ever asked yourself after an Association board meeting “what went wrong?” The flow of the meeting was off, the meeting went on way too long and the atmosphere was unwelcoming for the owners who came to observe. With some careful preparation and attention to some simple tips, you can leave your next board meeting with the feeling that everything was right on track.  Although we go into much greater detail when we hold our annual Board training seminars for our clients, this blog post provides some helpful tips to run your next board meeting.

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