I promise to quit beating a dead horse and yet another example of the dangers of improperly managing your online persona pops up. It seems that medical students at the University of Florida don’t know any better than to announce they belong to the “I Hate Medical School” group or to pose in lab coats labeled “Kevorkian Medical Clinic” online. As a graduate of the FSU College of Law, I’d love to turn this into a “Gator hater” joke, but I doubt that students in any other graduate program anywhere would fare any better.
I’m not saying that you need to stay offline or avoid social networks. I’m just saying you need to be aware of what you’re doing and saying. Don’t do anything that you wouldn’t do at noon in the middle of Times Square on a busy Sunday. Ask yourself “How would I feel if my ____________________ (fill in blank with Mom, Dad, boss, future employer, minister, teacher etc.) saw this?” If the answer is “embarassed”, then don’t do it online.
I don’t practice divorce law anymore, but I thought this article in Lawyers USA was interesting. The article relates the treasure trove of information available on most people’s home and work computers as well as the other sources of information out there. How about GPS histories as to where a vehicle has been, how long it was parked, and so forth? How about proof of business income? When I did do divorce work, I found it uncanny how frequently a spouse’s business failed at the same time a divorce was filed. Examination of the business computer may prove otherwise. Florida, like many states, is a no fault divorce state so infidelity may be irrelevant, but a wasting of marital assets on expensive gifts for a mistress is not. Hidden marital assets and the valuation of marital assets are also relevant.
Unfortunately, electronic discovery is not cheap, but then litigation never is. This article states that the average digital forensics examination runs $4,000.00 to $10,000.00. It is money well spent though if it produces crucial evidence. A spouse who has been hiding assets or who has been undervaluing assets may be forced to settle when confronted with the truth from his or her own computer records.
I’ve probably beat this horse to death so I promise to avoid it for awhile.
Joshua Lipton apparently doesn’t read this blog. He’s also seems to be an unrepentant, partying roadway menace. Young Mr. Lipton was involved in a drunk driving crash that seriously injured a woman. So, what was he doing two weeks later while she was recovering in a hospital? Leading a sober life of regret and contrition, right? Heck no! He was out whoopin’ it up at a Halloween party dressed in a black and white striped shirt and wearing an orange jumpsuit labeled “Jail Bird.” As we used to say when I was that age — “Smooth move, Ex-Lax!”
Naturally, the picture on the left ended up on Facebook. The articles I’ve read say that “someone” posted the pictures on Facebook so maybe Mr. Lipton didn’t post them himself, but it really doesn’t matter. The enterprising prosecutor in his case, Jay Sullivan, found the pictures online. (Kudos Mr. Sullivan!) He showed them to the judge at Mr. Lipton’s sentencing and used them to argue that Mr. Lipton was a remorseless partier. Wow! If you’re a prosecutor it just can’t get any better than that! Actual photographic evidence of a complete lack of remorse and repentance! It must have impressed the judge who pronounced the photographs “depraved” and sentenced Mr. Lipton to two years in jail. OUCH! Bet he’ll learn his lesson now.
Of course, Mr. Lipton isn’t alone. I’ve even detailed an example involving a client of mine where her MySpace page hurt her PI case. A USA Today article gives several examples of others who have been damaged by their MySpace pages and have in some cases garnered longer sentences, or jail time instead of probation.
My first suggestion is that if you’ve seriously injured another human being try some decency. Instead of making light of what you’ve done and the consequences, try a little contrition. Quit drinking and if you can’t, get help. If you can’t be a decent person then, as a lawyer, I recommend that you at least be a smart person. Don’t make light of the serious injuries you’ve caused to another and the possible consequences. Don’t let pictures be taken of you being a jerk or with any alcohol in your posession or around you. And for Heaven’s sake make sure no pictures are taken that can end up online!
I recently had conversations with a couple of lawyers who also practice probate litigation. We agreed that probate litigation is often the result of poor communication. Specifically, parents tell their children what the children want to hear or use ambiguous phrases like “don’t worry you’ll be taken care of.” The same goes for other relatives and friends who might be expected to be remembered by you with money or assets when you pass away.
Here is one example of muddled communications — A decedent’s nieces and nephews sued their aunt’s beneficiaries claiming undue influence. The nieces and nephews said their aunt called the beneficiaries the “cleaning lady” and “the lawnman.” The beneficiaries said the decedent disliked her nieces and nephews, but the nieces and nephews swore the aunt loved them and promised to “take care of them” when she died. I believe both sides were telling the truth. The decedent had a prickly, cranky, insecure personality and had told each side what they wanted to hear and whatever made her feel important. Coupled with the fact that she waited to do her estate planning until she was on the way to the hospital where she died, it was a perfect recipe for a lawsuit.
Children often overestimate the wealth of their parents when they don’t know what their parents actually own. They may not realize that dad obsesses over MSNBC and Bloomberg because he enjoys it and that $100,000.00 in 10 or 20 stocks is all he has. They think he’s obsessively monitoring his millions. A phrase like “don’t worry I’ll take care of you” is ambiguous enough to cause problems. For the parent it may mean, “I’m leaving you $10,000.00,” but for the kids it may mean. “Don’t worry I’ll make sure you’re set for life.”
Here are some tips to make sure your legacy to your heirs and beneficiaries isn’t a lawsuit:
- Be clear. Make sure that your children and other beneficiaries know what to expect from you at your death.
- Don’t just tell people what they want to hear. You don’t have to tell people you hate them, but you shouldn’t misrepresent your relationships with others either/
- Don’t wait until the last possible moment to meet with a lawyer and plan your estate.
- Don’t wait until you’re incapable of making your appointments and arrangements to visit a lawyer before planning your estate.
- If you remarry and have children from a previous marriage, get a prenuptial. If you later decide to ignore or revoke the prenuptial, do so in writing.
- Don’t share your estate plan with someone or promise to “take care of them” and then set up all of your accounts and beneficiary designations so they pass outside of the estate plan that leaves everything to someone else.
- Don’t make misleading or false promises to people you don’t intend to “take care of” in your estate plan.
This list is far from comprehensive. The bottom line is to be honest with yourself and others. Do what you can to not make misleading statements or promises or to give false hopes or expectations. You may save your heirs and beneficiaries a lot of headaches.
I don’t practice divorce or family law any longer, but I do draft prenuptial agreements. Effective October 2007 Florida adopted the Uniform Premarital Agreement Act as Florida Statute section 61.079. Unfortunately, prenuptials (a/k/a antenuptials) don’t prevent litigation or contentious divorces. They are often sources of litigation themselves as we can see from this article about Bill Murray’s divorce and prenuptial. Doreen Inkeles, a board certified family and marital law attorney, believes that the Act will make it more difficult and risky to challenge prenuptials. She wrote an article for the Florida Bar Journal that concluded with:
Combined with the apparently more stringent standards set forth in the UPAA, parties will have second thoughts about testing the enforceability of their agreements now that the Florida Supreme Court has recognized the enforceability of prevailing party attorneys’ fee provisions contained in prenuptial agreements which would place liability on the impecunious spouse for the already dominant spouse’s attorneys’ fees should the agreement be upheld.52 “Contracts can be dangerous to ones well-being. That is why they are kept away from children. Perhaps warning labels should be attached. In any event, contracts should be taken seriously.”53
Interestingly, the statute applies “only to proceedings under the Florida Family Law Rules of Procedure”, which govern divorces. Prenuptial agreements aren’t only in anticipation of divorce. Older couples frequently have them to cover what will happen in the event of death. For example, a prenuptial often contains provisions waiving spousal homestead rights and the elective share in the event of death. In fact, I recommend that any couple, especially older couples, with children from previous marriages, separate property, and a home have a prenuptial agreement.
I often warn clients that are starting new businesses that incorporating is not a perfect shield against personal liability. Most small businesses are run by their owners who work in them. People who personally engage in tortious conduct may be held liable even if they’re working for an incorporated business at the time. The example I often give clients is to assume that they’re driving a company owned vehicle when they run over an old lady in a crosswalk (i.e., liability is clear). The client gets sued as the driver and the company gets sued because it owns the vehicle and the client was on company business. Now assume the driver is another employee of the company, the driver gets sued and the company gets sued, but not the owner. In this case, the Fifth District Court of Appeal relied on this principle in ruling that a corporate officer may be held personally liable for violating the Florida Deceptive and Unfair Trade Practice Act (FDUTPA) if he participated personally in the decepitve or unfair practice.