Skip to content
MS-Logo-UP
Client Reviews

1.800.481.2180

  • Contact Us
  • Home
  • Blog
  • What We Do
    • Business Compliance Services
    • Business & Contracts
      • Choosing a Business Lawyer for NC Corporations and Other Small Business
      • The Number One Problem for Small Limited Liability Companies
      • How To Dissolve a Corporation in North Carolina?
      • 5 Considerations as to Your Business’ Negative Internet Review
      • (Part 2) 5 Considerations as to Your Business’ Negative Internet Review
      • (Part 3) 5 Considerations as to Your Business’ Negative Internet Review
      • (Part 4) 5 Considerations as to Your Business’ Negative Internet Review
      • (Part 5) 5 Considerations as to Your Business’ Negative Internet Review
      • Are Negative Reviews Really Bad for Business?
    • Limited Liability Company
      • Your New LLC – Part 1: The Basics
      • New LLC: Maintaining Limited Liability Protection
      • Your New LLC – Part 3: Federal, State and Local Registration, Licensing and Permitting
      • “Your New LLC” – Part 4: Transacting Business in Another State
      • “Your New LLC” – Part 5: Moving Your LLC to Another State
    • Mortgage & Foreclosure
      • Hearing Results
      • Mortgage Problems – Should You Trust Your Lender or Loan Servicer?
      • When to Hire an Attorney for Foreclosure and Mortgage Relief
      • Mortgage Loans: Recourse versus Non-Recourse and Foreclosure Related Deficiency Judgments
      • Negotiating with a Bank: Why do I have to Provide My Financials?
      • Can the HOA (Homeowners’ Association) Foreclose on my Home?
    • Real Estate Cases
      • Breach of NC Real Estate Purchase Contract – Buyer’s Damages in NorthCarolina
      • Private Mortgage Insurance (PMI) – What is the Borrower Really Paying for?
    • Real Estate Closings
    • Disputes & Lawsuits
      • Business Contracts: What Should Yours Say Regarding Recovering Attorneys’ Fees in Case of Dispute? (Part 1)
      • Business Contracts: What Should Yours Say Regarding Recovering Attorneys’ Fees in Case of Dispute? (Part 2)
      • Arbitration versus Mediation
      • Responding to a Lawsuit Complaint
    • Tax & IRS Matters
      • S-Corp Tax Election for LLC
      • Comparison of Subchapter K v. Subchapter S
      • Employment Tax Considerations in Starting a Business
      • Is your Worker an Independent Contractor? (The IRS Cares!)
    • Wills, Trusts & Estate Planning
      • Congrats, You’ve Inherited a Mess
      • When Should I Write a Will?
      • Top 5 Reasons to Change Your Will
    • Prenuptial Agreements
      • Recently Engaged? 5 Reasons Why You Should Consider A Prenup
    • Other Practice Areas
      • Indemnification in Contracts: What if Both Parties Are at Fault?
      • Indemnification in Contracts: Should You at Least Have to be Guilty as Charged?
      • Venue Clauses in Contracts – Beware Listing Only the County and State
    • Limited Scope Services
      • Arbitration Agreement: How to Get to Arbitration if A Lawsuit Was Filed First
      • Follow the Contract’s Arbitration Clause or File a Lawsuit?
      • Arbitration: setting the rules and identifying which arbitration organization will be used
      • Why does your Corporation or Company Need a Registered Agent?
  • Who We Are
    • Jason A. McGrath
    • James M. Spielberger
    • Kelly J. Brown
    • Todd E. Gonyer
    • Trent Grissom
  • Where We Practice
  • Client Services
    • Helpful Resources
    • News & Updates
  • Consultations
    • About McGrath & Spielberger’s Intake Form

Category: lawyers

Business Ownership Deals (Part 6 of Series): How Many Different Attorneys Need To Be Involved?

Posted on May 22, 2024May 22, 2024 by g83js92js91
Categories: attorney, Business Law & Contracts, lawyers, legal assistance, limited liability company, llc

bigstock Group of Business Talking in a 428578823The “owners” of a Limited Liability Company are traditionally referred to by attorneys as the LLC’s “Members”. It’s important to realize that (with some variation from state to state) there can be “Members” but also what may be referred to as “Economic Interest Owners”, and those are not the same thing. However, for the rest of this article and related articles, we’re just going to use the terms “Member” and “Owner” as synonyms, and Owner is going to mean someone who has full rights in the Company (mainly meaning having voting and economic rights).

A very common question we get asked at our law firm of McGrath and Spielberger is “What do I need to do to add an owner to my company?” The answer to that exact question is similar to the related question of “How do we transfer the ownership interests of a Member who is leaving the LLC?”

The process and legal mechanics of changes to business ownership are largely discussed in the first 5 parts of this series. In this article, we’ll focus on questions such as the following.

  1.   Can (or should) an attorney represent both a buyer and a seller?
  2.   Can an attorney serve in a neutral role, essentially working on the transaction without representing a particular party?
  3.   Does each party involved in the deal need their own lawyer / law firm?
  4.   Can the same attorney / law firm represent the LLC and also give advice to individual members?

As is the case in most things “legal”, the devil is in the details, “it depends”, and “changing one fact about the situation may change the answers”. Having said that, here’s how it generally works, based largely on the professional regulations which apply to lawyers (which differ somewhat from state to state and which are typically called the “Rules of Professional Conduct”).

  1. Can (or should) an attorney represent both a buyer and a seller? NO. A single lawyer / law firm should not, and usually could not, represent the buyer and the seller.
  2. Can an attorney serve in a neutral role, essentially working on the transaction without representing a particular party? YES. In fact, this is an underutilized scenario. Realistically, this can be a bit tricky or even awkward, but in many instances this works just fine and can save everyone significant time and money.
  3. Does each party involved in the deal need their own lawyer / law firm? NO in the sense that nobody “has” to have an attorney at all (unless perhaps the Operating Agreement says otherwise). NO in the sense that a single attorney can usually represent parties who are aligned / have common interests. YES in the sense that an attorney should not, and typically could not, represent parties who have opposing interests (even if there is no “dispute”).
  4. Can the same attorney / law firm represent the LLC and also give advice to individual members? YES, NO, MAYBE? The answer to this one is similar to (C) above. Many non-lawyers (and even some lawyers) may not always clearly grasp that “representing someone” and “giving advice” are essentially the same thing. For example, this is not terribly uncommon:
    • LLC Member: “Hey Lawyer, I realize you don’t represent me, but can you just tell me if anything in this proposed Membership Interest Transfer Agreement is unfair to me?”
    • Lawyer: “I’m sorry, I can’t give you that advice (which would more or less make you my client, or at least blur that line), since I represent a different party in this situation, whose interests may not completely align with yours.”

    On the other hand, a lawyer typically would be allowed to represent (for example) the LLC itself and aligned owners, in particular owners who are not buying or selling. There are other combinations of parties who could be represented by the same lawyer in the same transaction / situation.

Another important aspect of this (not further explored here) is a “waiver of conflicts of interest”. In a high level sense, parties – to a certain extent – can waive some conflicts of interest or potential conflicts of interest. Doing so may allow a single attorney / single law firm to represent multiple parties when that perhaps could not happen without the conflict of interest waiver by those parties.

These sorts of LLC transaction issues are commonly dealt with by business law attorneys but can be tricky. Paying attention to these details, being careful, and planning ahead gets the best results for clients, which is what we do here at McGrath & Spielberger.

If you’d like assistance with business compliance services, please click here: https://mcgrathspielberger.com/business-compliance-services/.

Posted in attorney, Business Law & Contracts, lawyers, legal assistance, limited liability company, llc

Do You Want Your Lawyer To Be A Jerk?

Posted on January 18, 2024January 18, 2024 by g83js92js91
Categories: lawyers, Legal Profession, legal services, negotiation

bigstock Angry businessman shouting on 92687795

TV and movies are full of lawyers who are … choose your own adjective, for purposes of this article we are going to use “jerks”. Real life, of course, contains some lawyers who are jerks, but they are truly a small minority of the profession.

The question remains – do you want your lawyer, your attorney, to be a jerk? Not a jerk toward you, of course, but toward the opposition or other party, whether in a real estate litigation case or a business law contractual negotiation?

Some people want that, or think they want that. Some lawyers – perhaps especially those who grew up more recently, when TV characters became more nasty – think that being a jerk is part of being a lawyer, and that’s what they should be.

There is a huge difference between an attorney being assertive and a strong advocate for a client versus being a jerk. Being “tough” is too often confused with being a jerk. Your lawyer being a jerk toward the opposition is unlikely to help you, while on the other hand it: (A) may harm your case; and (B) will certainly make your legal situation more expen$ive. We’ll explain why.

*****

How Your Attorney Being A Jerk Might Harm Your Lawsuit.

What do most people – perhaps especially these days – do when they feel attacked? They get angry and either counterattack or get defensive.

A lawyer who is being a jerk to a witness is almost certainly going to cause that witness to be hostile, or more hostile. That hostility will be directed at the attacking lawyer and the attacking lawyer’s client(s). Having testimony that is even more “against” your own client is typically harmful.

You might be thinking “Yes, but attacking might lead to the witness making a mistake or being caught in a lie!” Sure, that can happen. But a more effective technique, which also doesn’t have the downside risk, is for a lawyer to use a calm and precise approach which leads the witness where the lawyer wants the testimony and evidence to go.

Another aspect of this which most clients would not have a reason to be aware of is the perception of others (especially a judge and/or jury) and how they react to your lawyer’s behavior. A lawyer who behaves like a jerk is ultimately not going to be liked by a judge or most of a jury, is not going to get the benefit of the doubt from those very important persons, and will not be as credible.

How Your Attorney Being A Jerk Might Harm Your Contract Negotiation.

There are other negative ways in which a lawyer’s rude behavior can harm a client. Contract negotiations, by their nature, include the lawyer huddling with the client and then going back and forth with the other side. Communicating the client’s position calmly and professionally increases the chances that the other side won’t just knee-jerk react negatively.

If I, as your lawyer, send proposed changes in a reasonable and professional manner, I am putting you in a better position to succeed. If I’m a jerk about it, or even if the proposed contractual changes are written in an unnecessarily off-putting manner, I’m harming your chances of getting what you want.

How Your Attorney Being A Jerk Makes Your Legal Matter More Expen$ive.

First, some background information: for most common legal deadlines during a lawsuit, the parties / their attorneys can mutually agree to one or more extensions without having to get court approval and without having to have a court hearing.

This scenario is very common in the world of litigation:

  1. Defendant has a legal deadline coming up;
  2. Defendant’s attorney wants an extension of that deadline; and
  3. Defendant’s attorney asks Plaintiff’s attorney to agree to an extension.

If the Defendant’s attorney has been a jerk, of course the Plaintiff / Plaintiff’s attorney is much less likely to agree to an extension. If there is no such agreement, then Defendant’s attorney is faced with 2 choices: rushing to meet the deadline or scheduling a court hearing to seek a court order extending the deadline. Both of those are bad for the Defendant – congratulations, you just paid your attorney a few thousand dollars to attend a court hearing that most likely could have been avoided if the attorney hadn’t been a jerk – with no guarantee you’ll even get the extension.

There are many, many instances during a typical lawsuit in which the parties / their attorneys have the opportunity to cooperate, and almost always, each side will want one or more instances of cooperation from the other side. Handling such things cooperatively and without having to hold a court hearing is almost always better for all and is always less expensive.

Don’t Forget About The Stress And The Emotional Toll

We all know that feeling – just in regular life – when there is an email, phone call, mail item received, or even text message and we know (or think we know) it’s going to be hostile or about a stressful topic. Now, think about being in a lawsuit or some other legal dispute or in an intense contract negotiation and the stress that brings. Then, add the hostility / increased hostility factor which comes when your attorney is a jerk.

Each and every communication or development is more likely to be a stressful one, or have increased stress attached to it versus how it could have been. The emotional toll this takes (which attorneys are not immune from) can accumulate rapidly and have serious negative consequences in your life and in your case.

There is no doubt that acting like a jerk is usually a poor choice for an attorney. Attorneys should know (or learn) how to be tough without being a jerk, and they should steer their clients toward productive behavior as well.

Posted in lawyers, Legal Profession, legal services, negotiation

To Kill a Mockingbird: did Atticus Finch get his client killed?

Posted on February 28, 2011 by g83js92js91
Categories: atticus finch, Civil Rights, lawyers, Life and the Law, malpractice, practice of law, race, The Legal Profession, to kill a mockingbird
Click here to read the actual NC Bar Journal Article – See page 12.
North Carolina Bar Journal, Spring, 2011

Did Atticus Finch Commit Malpractice? Did he get his client killed?

BY JASON A. MCGRATH, Esquire

On November 21, 1935, Tom Robinson raped 19-year-old Mayella Violet Ewell. So said the Maycomb County, Alabama jury, as written by Harper Lee in the classic novel To Kill a Mockingbird. Despite an admirable defense by court-appointed attorney Atticus Finch, Tom Robinson was convicted and sentenced to death by a jury which was most definitely not made up of his peers.

The book strongly implies that Mr. Robinson was innocent, that the primary prosecution witnesses lied throughout the trial, and that it was only Mr. Finch’s valiant efforts and relationship with the community which caused the jury to hesitate at all before the unfair conviction. What if, however, Atticus in fact made a terrible mistake during trial which eliminated any small chance his client had of acquittal, any chance of avoiding death?

Although I’m a fairly voracious reader for pleasure, I’d never gotten around to reading To Kill a Mockingbird. However, one recent weekend, desperately in need of a break from contract review and liability analysis, I grabbed it from the coffee table where my wife had deposited it a few days earlier. I’d never read a review or summary of the book (nor have I yet), but was still vaguely aware that it featured a lawyer named Atticus, a rape or murder, and a racial controversy. This makes it even more unlikely that I ended up reading the book, as I tend to avoid stories about lawyers, who in books and movies are almost always far too perfectly successful, far too naive, or far too evil to be realistic.

I grew up in an environment very dissimilar to Maycomb; nobody would confuse south Florida with south Alabama. Now that I’ve moved to North Carolina, however, explorations of southern culture seem more appropriate. Plus at least half of those running for judgeships and other positions within the justice system here seem to claim To Kill a Mockingbird as their favorite book. Thus I came to read it, in three different sittings within 36 hours. I enjoyed it, but I was at first puzzled, and then dismayed at the way the trial went, and not just due to the unjust outcome. I’ve litigated many cases, including sex crimes, violent felonies, wrongful death cases, business controversies, mortgage disputes, etc., and I just couldn’t fathom what happened — or rather didn’t happen. What went wrong, Atticus?

Toward the end of the trial, the father of the alleged victim, a disreputable white man named Bob Ewell, took the stand after being called by the prosecution. He described what he witnessed the night of November 21, 1935 as he returned home from the woods. “[J]ust as I got to the fence I heard Mayella screamin’ like a stuck hog inside the house—.” Mr. Ewell went on to point to the defendant, Tom Robinson, who was seated next to his attorney, Atticus Finch, and to exclaim, “I run up to th’ window and I seen…I seen that black nigger yonder ruttin’ on my Mayella!” The language used and the events described caused a disturbance in the packed courtroom.

Minutes later, Mr. Ewell’s testimony continued with a question by the prosecutor. “Mr. Ewell, did you see the defendant having sexual intercourse with your daughter?” The witness answered with certainty, “Yes I did,” and then stated that he had a clear view of the room as his daughter was being raped by the defendant. Finally, the angry father confirmed, “I sawed who he was, all right.”

Upon cross-examination, Atticus Finch established several points, the key being that Mr. Ewell was left-handed. This was potentially relevant, as other evidence showed or implied that Mr. Ewell was a mean and perhaps abusive drunk, and that his daughter’s injuries were largely on her right side — and thus arguably inflicted by a left-handed attacker.

The next witness to be called was the alleged victim herself, Mayella Violet Ewell. Other than being a member of the unpopular Ewell family, there was no indication in the book that Mayella herself was particularly disliked. Rather, she was presented as a young woman born into an unfortunate situation; into a family with no means, no motivation, and no role models.

Mayella agreed that she’d peripherally known the defendant for years, as they were neighbors. She testified that on November 21, Tom Robinson had been walking by her home when she asked him to assist her in chopping an old piece of furniture up to be used as firewood. Instead of helping her as asked, however, he attacked and raped her. “[A]n ‘fore I knew it he was on me….He got me round the neck, cussin’ me an’ sayin’ dirt—I fought’n’hollered, but he had me round the neck. He hit me agin an’ agin—.” “Then what happened?” the young Ms. Ewell was asked. She replied, “I don’t remember too good, but the next thing I know Papa was in the room a’standin’ over me hollerin’ who done it, who done it? Then I sorta fainted an’ the next thing I knew Mr. Tate was pullin’ me up offa the floor and leadin’ me to the water bucket.” (Mr. Tate was the sheriff.)

Tom Robinson later testified, denied that he had committed any type of crime or improper action, and reluctantly explained that it was he who had fended off Mayella’s sudden advances. Atticus Finch demonstrated to the jury that Mr. Robinson had a particular physical impairment of his left arm and hand, which made it less likely that he could have carried out the attack as described. During closing arguments, Mr. Finch emphasized to the jury that the evidence of guilt was unreliable, and implored the jurors not to assume guilt merely because of the color of the defendant’s skin. He also commented, “Her father saw it, and the defendant has testified as to his remarks. What did her father do? We don’t know, but there is circumstantial evidence to indicate that Mayella Ewell was beaten savagely by someone who led almost exclusively with his left.” Despite Mr. Finch’s efforts, Tom Robinson was found guilty after perhaps six hours of jury deliberations.

At first, I expected Atticus to pounce on it during cross-examination of Mayella, for that would be what most lawyers would do. However, some lawyers (this writer being one of them) prefer not to emphasize such “gotcha!” testimony during cross, but rather save it for closing argument. (Why bring it up during cross, which only gives the opposition the opportunity to try to completely correct the problem or at least minimize the damage with additional evidence?) Thus, I thought “Ahhh, the wise Atticus Finch will keep this nugget in his pocket, polishing and savoring it until the moment is absolutely right, until the jury is hanging on his every word, his every motion. Of course!” Although it was one o’clock a.m. when I read this part of the book, I folded page 206 in order to mark it, the way I’d have asked a court reporter to mark a piece of testimony during a real trial. I then read through closing arguments before going to sleep, a sleep literally troubled by what turned out to be missing from Atticus’ closing argument.

The next morning, I explained my thinking to my wife. She looked at me, trying to determine if I was actually being clever (for a change) or if I mistakenly thought I was being clever. Eventually she nodded in agreement, and her face took an expression of slightly puzzled thoughtfulness as she subconsciously continued to nod her head ever so slightly up and down.

Perhaps some of you reading this knew where I was going before you read more than a sentence of two of this commentary. Others may have picked up on it a few hundred words ago, while some of you, appreciated readers, are still waiting to hear what, to me, seems a blatant and damning error by the esteemed Atticus Finch. Well, let’s get to it.

Bob Ewell testified very clearly that he saw Tom Robinson attacking and raping his daughter. Further, he then watched as Mr. Robinson, his long-time neighbor, exited the Ewell house and ran off. We have Mr. Ewell’s own words that he “sawed who it was” and we know that he pointed to the defendant when he exclaimed, from the witness stand, “I seen that black nigger yonder ruttin’ on my Mayella!” That’s a perfectly straight forward and positive, first person, eyewitness identification, offensive language notwithstanding.

However, what did Mayella Ewell testify regarding her father and his words and actions at the time of the alleged crime? She made a general statement that she didn’t “remember too good” what happened immediately after the rape, but then testified with specificity as to what she did remember. “[B]ut the next thing I know Papa was in the room a’standin’ over me hollerin’ who done it, who done it?” (emphasis added)

That question mark means everything here. The father, who testified so emphatically that he was an eyewitness to the defendant’s rape of his daughter, was reportedly yelling and asking that very daughter who had raped her. This could have been, should have been, the moment, or at least should have led to the moment of the trial. The “gotcha” moment, the “now we all know you’re a liar” moment, the “not even you, ever-suspect jurors, can now mess this up” moment. Yet somehow, it was not. Atticus Finch missed the key bit of testimony and its significance. The otherwise competent, even inspiring, country lawyer let his client down and, we may even feel, let us down.

The Finch’s neighbor, Miss Maudie, reflected that it was impressive that Atticus had at least given the all-white, biased jury reason to pause on its way to unfairly convicting the defendant. “And I thought to myself, well, we’re making a step – it’s just a baby step, but it’s a step.” Well said, but under further consideration, we may be left to wonder if that baby step could have or should have been a leap.

I still can’t decide if I like Atticus Finch more now than I would had he been better, had he pulled off the miracle. At least he wasn’t perfect, as we surely are not. I dare say we are no better than Mr. Finch was, and we should remain thankful for him, stunning error and all.

Jason A. McGrath, along with Attorney Jim Spielberger, owns McGrath & Spielberger, PLLC, a small firm with a large geographical reach.  He spent five years as a criminal prosecutor, followed by eight years as a litigator in a private firm in which he was a partner. Mr. McGrath now focuses on business law matters (including disputes), and mortgage dispute / foreclosure cases. The Firm overall also handles tax issues, estate planning matters, and various other types of cases.  ⏹

https://www.ncbar.gov/media/121077/journal-16-1.pdf#page=6&zoom=page-fit,-323,792

Posted in atticus finch, Civil Rights, lawyers, Life and the Law, malpractice, practice of law, race, The Legal Profession, to kill a mockingbird

Categories

Recent Posts

  • Business Ownership Deals (Part 6 of Series): How Many Different Attorneys Need To Be Involved?
  • Business Ownership Deals: Buying And Selling (Transferring) Membership Interests In LLCs – Part 5, Filings With The Secretary Of State
  • Business Ownership Deals: Buying And Selling (Transferring) Membership Interests In LLCs – Part 4, Operating Agreement (“OA”) Changes
  • Business Ownership Deals: Buying And Selling (Transferring) Membership Interests In LLCs – Part 3, The Company Resolution
  • Business Ownership Deals: Buying And Selling (Transferring) Membership Interests In LLCs (Part 2)

McGrath & Spielberger, PLLC

Tweets by JasonMcGrathLaw

Sitemap

  • Contact Us
  • Home
  • Who We Are
  • Where We Practice
  • Consultations
  • Blog

What We Do

  • Business & Contract Law
  • Limited Liability Company
  • Mortgage & Foreclosure
  • Real Estate Cases
  • Disputes & Lawsuits
  • Tax & IRS Matters
  • Wills, Trusts & Estate Planning
  • Prenuptial Agreements
  • Other Practice Areas
  • Business Compliance Services

Location

Directions

Contact Us

7300 Carmel Executive Park Drive, Suite 300, Charlotte, NC 28226

info@mcgrathspielberger.com

1.800.481.2180


fb


tw


yt


ld

google

The attorneys responsible for this website are Jason McGrath and Jim Spielberger. At least some of the content of this website may be considered attorney advertising in some jurisdictions. For information about our website privacy policy and terms and conditions, please click here.

Attorney Website Design, Legal Search Engine Optimizations and Lawyer Online Advertising by Leads Online Marketing Services.