NH Lawyers Setting Things Right for Wronged Clients

In New Hampshire, what happens when a lawyer acts unethically and harms clients financially?  The rest of the legal profession rallies to provide a measure of relief to the victims and help restore faith in the legal system through the Public Protection Fund.

“There is no other profession that I am aware of anywhere… that has anything like this,” says Kevin Collimore of CullenCollimore, who recently stepped down as chair of the NHBA’s Public Protection Fund Committee. “When one steals from somebody, all of the others get together and compensate them.” The Public Protection Fund, established in 1998 by Supreme Court Rule 55, is supported by a mandatory court fee. The PPF is administered by a nine-member Bar Association committee, under the oversight of the Supreme Court.

The PPF recently experienced its biggest influx of claims against one attorney in its history, following the suspension in December 2010 of former Exeter bankruptcy attorney Brian McCaffrey, an attorney in NH since 1978.

By many accounts, McCaffrey was seen as an upstanding and friendly local guy. But after a complaint was filed, the New Hampshire Attorney Discipline Office launched an investigation that revealed that in scores of cases, fees for bankruptcy filings had been collected, but little or no legal work had been done, according to the ADO. It alleges that funds placed in client trust funds were mishandled. McCaffrey was suspended on an emergency basis.

The ADO turned over files for approximately 300 clients to attorney Philip Pettis, of the Boynton and Waldron firm in Portsmouth, who was appointed by the court to review the files and notify clients about McCaffrey’s suspension.

“I was just in a position to answer their questions and help them either transition to a new attorney or help them understand how to handle their case on their own,” Pettis said. “In many cases, I had to assure the client that I, the ADO, and other lawyers would do everything we could to help them address any pending issues with their cases or transition to a new attorney.” (See related story about how attorneys rallied to help many of McCaffrey’s former clients.)

Pettis also informed the affected clients about the Public Protection Fund and the opportunity to recoup the money they had paid to McCaffrey. The clients couldn’t claim against McCaffrey’s professional liability insurance, because he stopped paying on the policy around the time of his suspension. While some chose not to file claims with the PPF or didn’t meet the statutory deadline, 94 clients filed claims that averaged about $1,500 each. Many of the claimants were particularly vulnerable, relying on Social Security income, some suffering with disabilities or in the midst of a divorce. Members of the PPF committee, which included Kevin Collimore, Thomas Irwin, Keith Diaz, and Thomas Quarles, who recently moved from vice chair to chair, investigated and/or voted on each claim. Also, the late Roland Morneau, a longtime member of the committee, assisted in reviewing many claims before his retirement from the committee last year. The committee also includes public members Jay Haines and Sandra Keans, a longtime member of the NH House of Representatives, who voted on the claims. Because of the extraordinary workload, the committee sometimes operated remotely using a secure online spreadsheet, via technology supported by the NHBA, to track the progress of the many claims.

Some of the claims were rejected, because there was no proof of wrongdoing, but the majority of them were approved. In all, 81 claims totaling $120,000 were paid to former clients of McCaffrey. Most of the claims were investigated, approved and paid within six months.

This was only possible because of a new claims process for PPF claims of less than $2,500 that the New Hampshire Supreme Court approved not long before McCaffrey’s suspension.

Read the entire story by Kristen Senz of the New Hampshire Bar Association.

There are several option available if a client believes his/her attorney has done wrong.  Sometimes the issue can be a simple misunderstanding and a lack of communication between the client and the attorney.   Sometimes attorneys do make mistakes, in which case filing a claim against his or her malpractice insurance may protect the client (IF they have insurance!).  In the rare instance that an attorney defrauds a client, the Public Protection Fund is a safety net.

The Lawyer Referral Service of the New Hampshire Bar Association can help with a referral to a competent attorney who specifically handles Legal Malpractice.  All LRS attorneys are required to carry malpractice insurance.   A consultation with an attorney may be all you need to determine which option makes the most sense for your particular circumstances.  Call 603-229-0002 or request a referral online.

NH’s New Voter ID Law

Photo by Theresa Thompson

From the NH Secretary of State’s Office:

During the 2012 legislative session the legislature passed House Bill 1354, also known as the “Voter ID” Law. The new law will phase-in a photo identification requirement over a period of time.

This explanatory document is required under the “Voter ID” law as part of the process of educating the public about the law’s requirements and application and outlines the law’s requirements for 2012.

What type of photo ID will I need in order to vote?
For any election before Sept. 1, 2013, you will be asked to provide one of the following: Driver’s license issued by any state (even if expired); ID card issued by NH DMV (Division of Motor Vehicles); U.S. Armed Services ID card; U.S. Passport (even if expired); Valid photo ID card issued by either the federal government or a state, county or municipal government; Valid student ID card Other photo ID deemed legitimate by the supervisors of the checklist, the moderator, or the clerk; or Verification of identity by a supervisor of the checklist, the moderator or the clerk.

What if I do not have an approved photo ID?
Before November 1, 2012, any voter who does not present an approved photo ID will be informed of the new law and permitted to vote.  Between November 1, 2012 and September 1, 2013, any voter who does not present an approved photo ID will be permitted to vote after executing a “challenged voter affidavit.”

A voter who does not have an approved photo ID may obtain a free photo ID for voting purposes only by presenting a voucher from their town/city clerk or the Secretary of State to any NH DMV office that issues identification.

Is there any post-election action required by me after I vote without an approved photo ID?
After November 1, 2012, if you filled out a “challenged voter affidavit” in order to vote on Election Day, you will receive a verification letter from the Secretary of State, requesting confirmation that you voted in the election. If you do not respond in writing to the Secretary of State within 90 days of the date it was mailed, the Attorney General will conduct an investigation to determine whether fraudulent voting occurred.

Where can I get more information?  Your city or town clerk or the Secretary of State

Who Inherits Your Digital Library?

Photo by Amit Agarwal

Quentin Fottrell reports in The Wall Street Journal’s Market Watch, on what happens to your digital library of books and music when you die.

Many of us will accumulate vast libraries of digital books and music over the course of our lifetimes. But when we die, our collections of words and music may expire with us.

Someone who owned 10,000 hardcover books and the same number of vinyl records could bequeath them to descendants, but legal experts say passing on iTunes and Kindle libraries would be much more complicated.

And one’s heirs stand to lose huge sums of money. “I find it hard to imagine a situation where a family would be OK with losing a collection of 10,000 books and songs,” says Evan Carroll, co-author of “Your Digital Afterlife.” “Legally dividing one account among several heirs would also be extremely difficult.”

Read the entire article.

The Lawyer Referral Service of the NH Bar Association can refer you to attorneys who can advise you on matters pertaining to wills and estates.  Call 603-229-0002 or request a referral online.

Do’s and Don’ts of Apartment Hunting

The Better Business Bureau has received hundreds of complaints against apartment complexes every year, consistently placing the apartment industry on the BBB’s top 25 list of most complained about industries.

This video filmed by the Rhode Show gives many helpful tips for apartment hunters:

If you are having issues with your landlord that you are unable to resolve on your own, the Lawyer Referral Service of the New Hampshire Bar Association can help with a referral to a competent  attorney who specifically represents tenants.  Call 603-229-0002 or request a referral online.

The Lawyer Referral Service of the NH Bar Association is not a member of, nor is it endorsed by the Better Business Bureau.

Setting Up an Online Business

Reprinted from SBA.gov.

Setting up your business on the Internet can be a lucrative way to attract customers, expand your market and increase sales. For the most part, the steps to starting an online business are the same as starting any business. However, doing business online comes with additional legal and financial considerations, particularly in the areas of privacy, security, copyright and taxation.

Rules and regulations for conducting e-commerce apply mainly to online retailers and other businesses that perform consumer transactions by collecting customer data. However, even if you do not sell anything online, laws covering digital rights and online advertising may still apply to you.

The Federal Trade Commission (FTC) is the primary federal agency regulating e-commerce activities, including use of commercial emails, online advertising and consumer privacy. FTC’s Online Advertising and Marketing provides an overview of e-commerce rules and regulations.

The following topics provide further information on how to comply with laws and regulations related to e-commerce.

Protecting Your Customers’ Privacy

Learn the necessary steps you should take to protect your customers from identity theft and other misuses of their personal information. Any business that collects personal or financial data either through online sales, credit reports or applications should understand these rules and regulations.

Collecting Sales Tax Over the Internet

If you a run business with a physical storefront, collecting sales tax is pretty straightforward: you charge your customers the sales tax required by the jurisdiction where your business is located. For example, if you operate a retail store in Nashville, Tenn., you collect both state and local sales taxes from customers buying merchandise at your store.

But suppose you start selling your products online. Does that mean you charge them the same sales taxes that you do to those coming into your store? It depends.

If your business has a physical presence in a state, such as a store, office or warehouse, you must collect applicable state and local sales tax from your customers. If you do not have a presence in a particular state, you are not required to collect sales taxes. In legal terms, this physical presence is known as a “nexus.” Each state defines nexus differently, but all agree that if you have a store or office of some sort, a nexus exists. If you are uncertain, whether or not your business qualifies as a physical presence, contact your state’s revenue agency. If you do not have a physical presence in a state, you are not required to collect sales taxes from customers in that state.

This rule is based on a 1992 Supreme Court ruling (Quill v. North Dakota, 504 U.S. 298, (1992)) in which the justices ruled that states cannot require mail-order businesses, and by extension, online retailers to collect sales tax unless they have a physical presence in the state. The Court reasoned that forcing sellers to comply with over 7,500 tax jurisdictions was too complex for sellers to manage, and would put a strain on interstate commerce.

Keep in mind that not every state and locality has a sales tax. Alaska, Delaware, Hawaii, Montana, New Hampshire and Oregon do not have a sales tax. In addition, most states have tax exemptions on certain items, such as food or clothing. If you are charging sales tax, you need be familiar with applicable rates.

Determining which sales tax to charge can be a challenge. Many online retailers use online shopping cart services to handle their sales transactions. Several of these services are programmed to calculate sales tax rates for you.

Digital Rights/Copyright

Personal data is not the only thing protected on the Internet. Digital works, including text, movies, music and art are copyrighted and protected via the Digital Millenium Copyright Act (DMCA). The DMCA offers a number of protections for information published to the Internet, as well as other forms of electronic information. Among its many provisions, the DMCA:

  • Limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet. However, service providers, are expected to, upon notification, remove material from its web sites that appear to constitute copyright infringement.
  • Limits liability of nonprofit educational institutions for copyright infringement by faculty members or graduate students.
  • Makes it a crime to circumvent anti-piracy measures built into most commercial software. However, reverse engineering of copyright protection devices is permitted to conduct encryption research, assess product interoperability, and test computer security systems.
  • Provides exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions solely for the purpose of making a good faith determination as to whether they wish to obtain authorized access to the work.
  • Outlaws the manufacture, sale or distribution of devices used to illegally copy software.
  • Requires that “webcasters” pay licensing fees to record companies.

The Lawyer Referral Service of the New Hampshire Bar Association can refer you to attorneys who specifically handle e-commerce matters.  Call 603-229-0002 or request a referral.

Female Inmates Sue for Equal Treatment

Four female inmates, incarcerated at the NH State Prison for Women in Goffstown, are suing the state over what they say is unequal treatment compared with male inmates incarcerated at the NH State Prison.

In an article written by staff writer Joseph Cote of the Nashua Telegraph:

The four inmates filed a suit in Merrimack County Superior Court on Monday alleging the state Department of Corrections hasn’t abided by a 1987 federal court order that it provide female inmates with services including vocational education, work, mental health and substance abuse treatment, education and housing programs comparable to those offered to men.

It’s not the first time the state’s treatment of women in prisons has come under fire. The suit comes a year after a federal civil rights committee lambasted the state over its treatment of female inmates.

The women are being represented by New Hampshire Legal Assistance and Devine, Millimet & Branch.

Read the entire story.

Discrimination affects people in all segments of our population.  The Lawyer Referral Service of the New Hampshire Bar Association can refer attorneys who specifically handle discrimination and civil rights issues.  Call 603-229-0002 or request a referral online.

Barbed wire image by Fiona Dalwood - Creative Commons

 

 

 

Consumer Alert: Deed Retrieval Services Solicitations

NEWS RELEASE

Released By      Michael A. Delaney, Attorney General

Subject:              Consumer Advisory About Deed Retrieval Services Solicitations

                     

Date:                      August 3, 2012

Release Time:       Immediate

Contact:        Senior Assistant Attorney General James T. Boffetti

                            Consumer Protection and Antitrust Bureau

                            (603) 271-0302

                            james.boffetti@doj.nh.gov   

CONSUMER ALERT

Attorney General Michael A. Delaney issued the following consumer alert to all New Hampshire property owners:

Consumers should be aware of mailings being sent to property owners throughout the state from companies using the names:

 SECURED DOCUMENT SERVICES, and DEED RETRIEVAL SERVICES

The mailings appear to be official government notices recommending, “that all United States [or New Hampshire] homeowners obtain a copy of their current grant deed” and further indicate that, for a fee of $86.00 or $87.00, these companies will provide the property owner with a copy of their Grant Deed and a Property Profile.

The Attorney General advises that these companies are providing a service of questionable value and the information advertised in these solicitations can be obtained from any of the State’s Registers of Deeds for significantly less money. With deeds so easily and inexpensively attainable, the existence of these companies depends greatly on the public’s unfamiliarity with the county registers of deeds offices.

 Attorney General Delaney stated, “The real lesson for an educated consumer is to know what you are paying for, which in the case of these deed retrieval companies is virtually nothing more than a homeowner can acquire for far less cost.  Don’t be fooled by a company whose name sounds ‘official’ or by an ‘official’ looking notice designed to confuse and mislead you.  If you would like a copy of your deed, you can obtain it yourself for nominal cost and time, or contact your county’s Register of Deeds, who would be glad to assist you.”

Under New Hampshire’s Consumer Protection Act, N.H. RSA 358-A, it is unlawful for any person to use any unfair or deceptive act or practice in the conduct of any trade or commerce within this state. Anyone who feels they have been the victim of any unfair or deceptive act should call the Attorney General’s Consumer Protection Bureau hotline at (603) 271-3641 or 1-888-468-4454.  For more information on consumer fraud you can also visit the Bureau’s website at www.doj.nh.gov/consumer.

If you believe you are a victim of consumer fraud, the Lawyer Referral Service of the New Hampshire Bar Association can refer you to licensed and insured attorneys who handle consumer protection matters in your area.  Call 603-229-0002 or request a referral online.

Surviving an Active Shooter Event

Would you know what to do if a gunman barged into your place of employment and started shooting?

This nearly 6 minute graphic video, made by the city of Houston, tells people how to survive if a gunman enters their office and starts shooting.

Funded by the Department of Homeland Security, the city hopes that the video can help people prepare people for the worst.

Run, Hide, Fight:  Surviving an Active Shooter Event depicts a fictional shooting incident in a crowded office building.

The video advises people to “always try to escape or evacuate…even when others insist on staying.”  And if you can’t run, the video advises people to hide.   “Turn off the lights and if possible, lock doors, silence the ringer and vibration mode on your cell phone,” the clip further states.

As a last resort, victims are told to fight back.  “Act with aggression, improvise weapons, disarm him and commit to taking the shooter down no matter what.”

Consumer Protection Watchdog Announces Action Against Capital One

Press Release: Jul 18 2012

CFPB probe into Capital One credit card marketing results in $140 million consumer refund

WASHINGTON, D.C. – Today, the Consumer Financial Protection Bureau (CFPB) announced its first public enforcement action with an order requiring Capital One Bank (U.S.A.), N.A. to refund approximately $140 million to two million customers and pay an additional $25 million penalty. This action results from a CFPB examination that identified deceptive marketing tactics used by Capital One’s vendors to pressure or mislead consumers into paying for “add-on products” such as payment protection and credit monitoring when they activated their credit cards.

“Today’s action puts $140 million back in the pockets of two million Capital One customers who were pressured or misled into buying credit card products they didn’t understand, didn’t want, or in some cases, couldn’t even use,” said CFPB Director Richard Cordray. “We are putting companies on notice that these deceptive practices are against the law and will not be tolerated.”

Through the supervision process, CFPB’s examiners discovered Capital One’s call-center vendors engaged in deceptive tactics to sell the company’s credit card add-on products. These products included “payment protection,” which allows consumers to request that the bank cancel up to 12 months of minimum payments – roughly one percent of their credit card balance – if they encounter certain life events like unemployment and temporary disability. It also provides debt forgiveness in the event of death or permanent disability. Another product was “credit monitoring,” with services such as identity-theft protection, access to “credit education specialists,” and, in some cases, daily monitoring and notification.

Consumers with low credit scores or low credit limits were offered these products by Capital One’s call-center vendors when they called to have their new credit cards activated. As part of the high-pressure tactics Capital One representatives used to sell these add-on products, consumers were:

  • Misled about the benefits of the products: Consumers were sometimes led to believe that the product would improve their credit scores and help them increase the credit limit on their Capital One credit card.
  • Deceived about the nature of the products: Consumers were not always told that buying the products was optional. In other cases, consumers were wrongly told they were required to purchase the product in order to receive full information about it, but that they could cancel the product if they were not satisfied. Many of these consumers later had difficulty canceling when they called to do so.
  • Misled about eligibility:  Although most of the payment protection benefits kicked in when consumers became disabled or lost a job, some call center representatives marketed and sold the product to ineligible unemployed and disabled consumers. Despite paying the full fees, they could not get all the benefits of payment protection; some later filed claims that were denied because their “loss” (e.g. loss of job or onset of disability) occurred prior to enrollment.
  • Misinformed about cost of the products:  Consumers were sometimes led to believe that they would be enrolling in a free product rather than making a purchase.
  • Enrolled without their consent:   Some call center vendors processed the add-on product purchases without the consumer’s consent. Consumers were then automatically billed for the product and often had trouble cancelling the product when they called to do so.

Enforcement Action
Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act, the CFPB has the authority to issue Consent Orders and take action against institutions engaging in unfair, deceptive, or abusive practices. To ensure that all affected consumers are repaid and that consumers are no longer subject to these misleading and high-pressure tactics, Capital One has agreed to:

  1. End deceptive marketing: Capital One has ceased all marketing of these products, and will not resume doing so until Capital One submits a compliance plan, acceptable to the Bureau, which helps ensure these unlawful acts do not occur in the future.
  2. Complete repayment, plus interest, to two million consumers:  Capital One will pay approximately $140 million to all of the estimated two million consumers who either initially enrolled in a product on or after August 1, 2010, or who tried to cancel a product on or after August 1, 2010, but were persuaded to keep the product after speaking with a call center representative. In addition to the amount paid for the product, cardmembers will receive a refund of the associated finance charges, any over-the-limit fees resulting from the charge for the product, and interest.
  3. Pay claims denied based on ineligibility at enrollment:  For any of these eligible consumers whose payment protection claims were previously denied because their loss occurred prior to enrollment (because of unemployment, disability, etc.), Capital One will pay their claims as if they had been eligible, if that amount is greater than the refund for that consumer.
  4. Convenient repayment for consumers:  If the consumers are still Capital One customers, they will receive a credit to their accounts. If they are no longer a Capital One credit card holder, they will receive a check in the mail. Consumers are not required to take any action to receive their credit or check.
  5. Independent audit:  Compliance with the terms of this agreement will be assured through the work of an independent auditor, who will determine if Capital One has complied with the CFPB’s Consent Order.
  6. $25 million penalty:  Capital One will make a $25 million penalty payment to the CFPB’s Civil Penalty Fund.

Today’s action is being taken in coordination with the Office of the Comptroller of the Currency (OCC), which is separately ordering restitution of approximately $150 million from Capital One. This amount includes the same $140 million refund to be paid to the approximately two million customers harmed by the deceptive marketing practices identified by the CFPB’s examiners. The OCC’s order also includes separate restitution for additional consumers harmed by unfair billing practices taking place between May 2002 and June 2011 in violation of Section 5 of the Federal Trade Commission (FTC) Act. For the combined activity, the OCC is assessing a $35 million civil money penalty against Capital One.

In conjunction with today’s enforcement action, the Bureau is releasing two Consumer Advisories. One advisory is intended to make Capital One customers aware of today’s action and the other serves as a general warning to consumers who may encounter such deceptive practices.

Complaints received by the CFPB indicate – and the Bureau’s supervisory experience confirms – that other consumers have been misled by the marketing and sales practices associated with credit card add-on products. To further protect consumers, the Bureau is issuing a compliance bulletin that puts other institutions on notice that the CFPB will not tolerate deceptive marketing practices, and institutions will be held responsible for the actions of their third-party vendors. Companies engaging in deceptive practices will be expected to refund fees paid by consumers and, particularly where practices are widespread, pay an appropriate penalty.

The full text of the CFPB’s Consent Order

A factsheet on the Consent Order.

Find out how Capital One will handle refunds.

Couple Accused of Abusing 80 Year Old Woman

As reported by WMUR:

A pair of Ossipee residents were arrested and accused of abusing an 80-year-old woman Monday.

Darin Brown, 43, and his wife, Sharon Giordano, 38, were accused of hiding Brown’s mother and abusing her.

The victim had been reported missing from Massachusetts. On Monday morning, police searched Brown’s Ossipee home and found his mother. Authorities said the woman showed signs of abuse and neglect, and was immediately hospitalized.

Read More on the WMUR website.

RSA 161-F:46 requires any person that has a reason to believe that an elderly incapacitated adult has been subjected to physical abuse, neglect, or exploitation or is living in hazardous conditions to notify the Department of Health and Human Services or their local law enforcement agency.

Any person (other than the alleged perpetrator) who makes a report of an alleged incident of abuse, neglect or exploitation in good faith shall have immunity from any criminal or civil liability.

To make a report, contact the Bureau of Elderly and Adult Services at 1-800-949-0470. Calls are confidential.  If it is an emergency, dial 9-1-1.
 
 
by Patrick Doheny