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    The Greater Williamsburg area is an exciting place to live and work, especially because of the large number of entrepreneurs who have built businesses from the ground up. These entrepreneurs have taken their passion and made it their profession. Many of us want to take that step. Before you begin, you need to think of the type of business entity you want to form. Our attorneys have extensive business experience, from small one-person companies to publicly traded major corporations. Our attorneys are among the leaders in Virginia in the representation of Common Interest Communities. These communities are generally referred to as "homeowners associations," or "HOAs," and "condominium associations." In the greater Williamsburg area alone, we provide legal assistance to nearly 100 associations. Our attorneys have successfully prosecuted and defended a wide array of civil disputes involving community association covenant enforcement, commercial transactions, construction disputes, contracts, real estate matters, boundary line and easement disputes, employment matters, antitrust litigation, copyright violations, administrative proceedings, and estate issues. Real Estate law encompasses a wide variety of matters, and our attorneys have vast experience to assist you. Whether you need assistance with a commercial or residential closing, or you have questions relating to residential or commercial leasing, we provide experienced advice and counsel to our clients. Zoning law can be a complicated maze of statutes and ordinances. We have ample experience in successful applications for rezoning, variance, and special use permit requests. Finally, commercial and residential construction provide special challenges with respect to financing issues and the construction process. We serve as counsel to various financial institutions.

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

October 30, 2014 on 1:35 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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Fictitious Name filings: Make sure you file properly for your business

October 30, 2014 on 1:35 pm | In Business Planning, General Interest, John Tarley, Merger & Acquisition | No Comments

Many businesses operate under a fictitious name, otherwise referred to as “doing business as” or “d/b/a.” There are many reasons for this use, but primarily, a company can use a catchy business name, like when a franchise opens a “T.G.I.F.” or “McDonalds,” but the company’s actual corporate name is not as exciting.

According to the Virginia Supreme Court, Virginia requires a company operating under a different name to file that name with the court and the State Corporation Commission “to prevent fraud and to compel an individual or a corporation to disclose the name of the real owner of the business, in order that the person or corporation may sue in or be sued by the proper name.”

Virginia statutes set forth the process for registering your fictitious name. For restaurants or other single location businesses, the process is pretty simple. First, you file a fictitious name certificate with the court clerk in the jurisdiction where your business is located. After the certificate is recorded, you file the certified copy with the State Corporation Commission.

Problems can arise for construction companies and other types of businesses who transact business in several localities. For those companies, you must file a fictitious name certificate in each county or city where you conduct business. We have had several matters in which these types of businesses failed to properly register their fictitious names in all the jurisdictions where they conduct business. For one thing, those entities cannot bring a lawsuit to collect monies due until they rectify that problem.

“Doing business as” is just another issue to consider when you set up your company. Make sure you fully advise your lawyer so all of your filings can be completed early, and correctly.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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

October 30, 2014 on 1:35 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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Why you should have a buy-sell agreement with your business partners

October 30, 2014 on 1:35 pm | In Business Planning, John Tarley, Merger & Acquisition | No Comments


As we have previously noted, if businesses are analogous to marriages, then the start-up of businesses begins with the “honeymoon” stage in which the business partners believe that they have similar visions of the company’s rosy future. Things change.

The list of “things that change” is long including the death, retirement or disability of your business partner; you or your business partner wanting to sell your interest in the company; or one of you wanting to add another business partner. What do you do then? Continue reading “Why you should have a buy-sell agreement with your business partners”

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Citizen’s Arrest – From Mayberry to Suffolk

October 30, 2014 on 1:35 pm | In General Interest, John Tarley | No Comments

I read a story in the Virginia-Pilot in which it described an incident of Citizen’s Arrest. In the story, a fire inspector, using a flashing blue light on his car, stopped a female driver. He claimed the driver had been swerving, and he stopped her because of his concern she may have been drinking.

A Suffolk, Virginia detective witnessed the incident. After consultation with fellow police officers, the police department urged the Commonwealth’s Attorney to press charges against the fire inspector for impersonating an officer.

The Commonwealth’s Attorney declined. He cited a Virginia case, Hudson v. Commonwealth, for the legal principle that private citizens have a common law right to make a “Citizen’s Arrest.”

I will not go into all of the other complicating legal issues relating to a Citizen’s Arrest, like what obligations does a person have to obey the citizen making the arrest, what force can the citizen use to make the arrest, etc. No, my purpose is more of humorous nature, because the incident reminded me of my childhood, watching Mayberry RFD. In this particular episode, Gomer Pyle shows the proper way to make a Citizen’s Arrest of Deputy Barney Fife:


Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

John Tarley

John Tarley

 

 

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In litigation, you can’t always get what you want (especially if you don’t ask)

October 30, 2014 on 1:35 pm | In Construction litigation, Contributors, General Interest, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation | No Comments

It’s a fundamental rule in Virginia that the Plaintiff (the person filing a lawsuit) can only recover the relief requested in the Complaint. In a recent unpublished decision, the Virginia Supreme Court reaffirmed the requirement that a party can only get relief if they ask for it.

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HOA Case Study: A Board’s statements or conduct may establish the enforceability of its governing documents

October 30, 2014 on 1:35 pm | In Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, Real Estate Litigation, Susan B. Tarley, Unit Owners Association | No Comments

An article in the Washington Post discussed a pending case in the Virginia Supreme Court regarding a dispute between property owners and a community association regarding the owners’ operation of a vineyard and retail store on their property. In an unpublished Order, the Virginia Supreme Court upheld a Fauquier County jury verdict for the property owners that had been set aside by the trial court.

Although unpublished orders do not have “precedential value or . . . significance for the law or legal system,” this case does provide us with a look at how difficult it can be for community associations to interpret their governing documents and also how a board’s previous actions may have an effect upon future enforcement of the community’s declarations and covenants. This blog post will review the facts of that case and its applicability to your HOA.

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Emails from work computer can waive rights to privileged communications

October 30, 2014 on 1:35 pm | In Business Planning, Construction litigation, General Interest, HOA litigation, John Tarley, Real Estate Litigation | No Comments

We have written on the issues that arise when employees use their work computer for personal business. In that blog article, we referred to a California case in which an appellate court ruled that an employee’s emails to her attorney were not protected by the attorney-client privilege because the company had a written policy that informed employees that computers were not to be used for personal matters, that emails could be monitored to ensure that employees complied with the policy, and that employees should not expect any privacy in the use of their computers.

In local news, former Delegate Phil Hamilton raised a “marital privilege” objection to the use at trial of emails he sent to his wife. Certain communications to and from a spouse can be protected from disclosure. There were complicating factors to this case’s analysis.

 

Email

 

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Pool Season: Is Your Association Ready to Take the Plunge?

October 30, 2014 on 1:35 pm | In Common Interest Community, HOA, HOA litigation, Unit Owners Association | Comments Off on Pool Season: Is Your Association Ready to Take the Plunge?

Many Community Associations prepare to open their neighborhood pool by adding chemicals and performing maintenance to ensure the health and safety of the Owners. But just as HOAs take care in measuring chlorine and skimming leaves, Boards of Directors are well-advised to take care in preparing the Association’s Pool Rules. This blog post reviews the possible “rules” that HOAs may implement for pool safety.

HOAs, Swimming Pool and the ADA

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Zoning and “Adaptive Reuse” – What does that actually mean?

October 30, 2014 on 1:35 pm | In Business Planning, General Interest, Land Use Planning, Real Estate Strategies, Zoning | No Comments

DOG Street Pub, the former SunTrust Bank

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