Sunday, July 29, 2007

CPA's Practicng Law - Again

Attorneys are showing a great deal of anger toward some CPA’s right now. It seems that some CPA’s have taken to practicing law and are getting away with it. They are preparing common legal documents such as corporate organizational forms and filing them for their clients. This is clearly the practice of law.

One prominent attorney in the Oklahoma Bar Association was steamed about the problem this week. He found himself defending clients whose CPA had incorporated them and then failed to make necessary subsequent filings. Another attorney chimed in that CPA’s who form corporations are usually incompetent, especially when it comes to the dozens of subsequent forms and notices that should be filed when a corporation is formed. Another observed that he had special rate for clients who let their CPA form a bare bones corporation for them and then came to him when their bank or floor planning vendors required access to their bylaws, operating agreements, notices and disclosures, etc.

Sometime soon, an angry client is going to sue an Oklahoma CPA for unauthorized practice of the law and when it happens the wrath of God is stored up for that unfortunate CPA. Nearly everyone in the legal profession agrees that an example needs to be made and it is never good to be the “EXAMPLE.” The long knives are drawn in bar circles and it will be a precedent setting case. In the meanwhile, the following may help:

(1) Take the time to explain to your client that they have been poorly served by their non-attorney legal forms provider. Don’t just clean up the mess and let it go. Make sure to explain that it would have cost them less to simply use an attorney to begin with.

(2) Copyright your standard legal forms and pleadings. Every attorney has a carefully developed and maintained collection of forms that he or she uses regularly. These forms represent literally hundreds of hours of work and tens of thousands of dollars worth of education. Then, when a CPA sends you a client to get your forms, copies those forms and sells them to other clients, you can sue for copyright violation as well as unauthorized practice of law and perhaps even theft or conversion without waiting for the client to make up their mind.

(3) Lobby the Oklahoma Bar Association to begin pursuing UPL violators seriously and even using undercover investigators for the worst offenders such as legal forms stores, storefront “legal clinics” that cater to illegal immigrants and tax practitioners who dabble in the law.

(4) Educate you local DA’s office about the UPL problem and encourage them to file criminal charges when appropriate.

A lot of the blame for this mess can be laid squarely at the feet of conservative talk radio and the GOP. The GOP has encouraged lawyer bashing and disrespect for the legal profession as a political strategy in the past several campaign seasons. In turn, there are now almost twenty four hour a day commercials on talk radio encouraging listeners to buy and use stock legal forms they do not understand and frequently cannot even file properly. Like every other facetious argument, this one will eventually run its course and the conservative media is going to have egg all over its face for encouraging its gullible listeners to engage in costly and damaging business practices.

Monday, July 23, 2007

Stalking Attorneys

One of the more popular lawyer jokes on the internet is a document purporting to be a "Attorney Hunting License." However, in a more serious vein, a copyrighted story in the San Diego North County Times reports that the practice of law is becoming much more dangerous and many attorneys are now reporting incidences of stalking by their former clients.1

Psychologist Linda Bounds defines stalking as follows in her online article, “Stalkers Not Just For Celebrities Anymore.”2

“So what is stalking? There are both legal and clinical definitions. Legal definitions are intended to help articulate specific aspects of behavior in order to facilitate prosecution or other legal remedies. In contrast, the purpose of clinical definitions is to identify aspects of stalking behavior in order aid in understanding the phenomenon for the purposes of assessment, treatment and research into both stalkers and their victims.

“Legal definitions of stalking vary across jurisdictions, but most US statutes share three elements: 1) a pattern or course of conduct of intruding behaviorally on another person in a way that is unwelcome; 2) an implicit or explicit threat that is evidenced in the pattern of behavioral intrusion; and 3) as a result of these behavioral intrusions, the person who is threatened experiences reasonable fear.

“Bridging the gap between legal and clinical definitions, Reid Meloy, who is one of the leading experts on stalking, adapted language from Zona, Sharma and Lane (1993) to propose a clinical definition of stalking as “obsessional following,” characterized by “an abnormal or long term pattern of threat or harassment directed toward a specific individual,” and consisting of “more than one overt act of unwanted pursuit of the victim that was perceived as being harassing.” …. As Meloy (1998) states, “The crime of stalking does not include any physically violent acts; it was, in fact, codified to prevent future acts of violence.”

Later in the same article, Bounds observes that stalkers are not necessarily deranged people hiding in the shrubbery and peeking through windows:

“Initiating spurious legal action against the victim is a frequent strategy that both insures contact and harasses and disrupts the life of the victim. False rumors to discredit the victim can also have highly disruptive effects in the victim’s life, and are often difficult to trace. Threats can come in many forms, ranging from damage to property, pets or reputation, to direct threats of violence to the victim and his/her family members.”

Oklahoma statutes define stalking as any pattern of activity which would cause a reasonable person or a member of the immediate family of that person to feel frightened, intimidated, threatened, harassed, or molested and actually causes the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed, or molested … Among the acts forbidden by the statute are appearing at the workplace of the victim or even appearing in public in sight of the victim in a malicious manner. Stalking is a misdemeanor in Oklahoma punishable by up to one year in jail and a one thousand dollar fine for the first offense.

Both courts and bar associations nationwide are beginning to take client stalking much more seriously in the wake of several recent shootings and other violent events in courtrooms and on court house grounds. The Oklahoma statute should be modified as soon as possible to specifically include cyber-stalking and other forms of “paper harassment” and provide enhanced punishment for stalking or harassment of officers of the court.



Thursday, July 19, 2007

Speaker Cargill Moves to Intervene In Lesbian Divorce Case

From "The Advocate"


Speaker of Oklahoma house to intervene in same-sex divorce case

The speaker of the Oklahoma house has filed a motion to intervene in a case involving an appeal of a Tulsa County judge's decision to dismiss a same-sex divorce decree, reports the Associated Press.

Republican Lance Cargill said in the motion, filed with the state supreme court, that because Cait O'Darling is challenging the constitutionality of a state law that prohibits same-sex marriage, legislative leaders are allowed to intervene in the case.

O'Darling's appeal challenges an amendment to the Oklahoma constitution, approved by voters in 2004, that defines marriage as the union of one man and one woman; it also seeks to determine whether same-sex marriages performed in other countries are valid in Oklahoma.

As reported by AP, the appeal may also question whether a state statute prohibiting recognition of marriages between people of the same gender performed in another state can also be applied to marriage performed in Canada.

O'Darling filed for a divorce in July 2006 against her wife, identified in court documents as S. O'Darling. Records state the pair were married in Canada in 2002.

In November 2006, then–special district judge C. Michael Zacharias granted the couple a divorce but vacated the order after he discovered they were not a heterosexual couple.

In his ruling annulling the divorce order, he stated he could "find no authority to suggest that Oklahoma would recognize a same-gender marriage from a foreign country."

Cait O'Darling said the judge made a mistake in dismissing her divorce without giving the pair notice or a chance to be heard.

John Flippo, Cait O'Darling’s attorney, told the AP on Wednesday a recently filed brief in the case does not challenge the constitutionality of any Oklahoma law and that Cargill does not have standing to intervene in the case. (The Advocate)



Speaker Cargill is represented by Alliance Defense Fund Senior Counsel Glen Lavy, Alliance Defense Fund Senior Counsel Austin Nimocks and Alliance Defense Fund Allied Attorney Bill Kumpe of Tulsa.