General Practice

Guns, Deadly Force, and Your Rights

guns-deadly force-rights

You own a gun and have your Ohio Concealed Carry Weapon (“CCW”) Permit. So far, so good. But what if you have to use that gun one night?  Having ridden in a motorcycle club comprised almost solely of cops and ex-cops and having numerous friends who are cops, here is a little advice. If you brandish a weapon, be prepared to use it. The data are clear that when a person defending him or herself has a gun, the odds escalate dramatically that there will be shot fired. You do not want to brandish a gun just for show or fun.

 

For one thing, in Ohio there is a mandatory one- or two-year gun specification added to any crime. If you accidentally commit a punishable offense, you might serve one or two years consecutively to another offense (meaning added to any sentence you get, not concurrently).[1] For another thing, when you show a gun in the presence of a “bad guy” who has a gun, chances are the bad guy knows how to use his or her gun better than do you, so you are in trouble.

 

It is romantic to say you have gun for the protection of family and household, but sadly the data are clear there as well. People who have a gun in their homes are 40-170% more likely to be victims of gun violence than a hero using the gun for protection.[2]  Despite what the National Rifle Association (“NRA”) tells people, this has been true for decades.[3]  It is true that Ohio has a “castle rule” that says that you do not have to flee your own home if there is a home invasion. But happily, armed home invasions are exceedingly rare in most areas of Ohio and the statutes also say that you can use deadly force only where deadly force was threatened against your family or yourself.  You cannot shoot someone simply for entering your home uninvited.

 

If you are in your car and stopped with your gun/s on-board, always tell the officer when s/he approaches that you are carrying and have a valid CCW (which should always be on your person).  If the weapon is in an unlocked compartment of the vehicle, odds are good the officer can search and look at the gun, should they choose. If the gun is in a locked compartment, you do not have to allow them to search the weapon, though you may and often should allow them to do so to avoid any additional legal encumbrances.[4]

If one fateful night you must use your weapon, immediately call the local police and report the incident afterwards, have your CCW available for inspection, and contact your lawyer as soon as you can.[5]  As in most incidents, say as little as possible without your lawyer present, and do not tamper with or alter the “crime scene”.

 

The bottom line is this. If you choose to own a handgun, get the training for your CCW[6], go the range on at least a semi-regular basis (preferably with a trainer or more experienced friend), and know your limitations. And always keep the weapon/s and ammo far away from access by children, untrained teens, and family members or friends who might have suicidal tendencies. Once again, if you own a gun and brandish, be prepared to use it.


[1] We had one homicide case at TMBC where our client brandished a gun and shot at his wall to back off his drugged-out son. The bullet went through the wall and killed the son’s girlfriend. She was dead before she hit the ground.  We got a good deal for him on the homicide charge, but he had to serve the mandatory gun spec time, regardless of the other deal.

[2] www.slate.com/articles/health_and_science/medical_examiner/2…

[3] http://smartgunlaws.org/guns-in-the-homesafe-storage-statistics/

[4] As a general rule, cops can stop you for almost any reason they choose and search an open vehicle as they choose.  Case law allows them far more flexibility to search a vehicle without a warrant than a house or other fixed structure, since houses can’t drive away and hide as easily. See another many examples Illinois v. Caballes (2014), 543 U. S. 405, 407.

[5] As a close cop friend told me, anyone who owns a gun and does not have a good lawyer on speed dial is either foolish or naïve.

[6] Most states, except Illinois and those in New England, have reciprocity with Ohio, meaning your CCW in Ohio is valid in those states as well.

How to Find a Competent Attorney

find-competent-attorney

There are literally thousands of lawyers within a stone’s throw of most of our clients, but finding a competent attorney is not so simple. There are massively large law firms with hundreds of lawyers, law firms with folks who have been in the practice for 40 years, solo practitioners who specialize in certain areas of law. So with all those options, why would someone choose my law practice?

We’ve found that there are only a few grounding principles needed to master the practice of law:

  1. Be competent;
  2. Look people straight in the eyes;
  3. Tell clients the truth; be it good, bad, or ugly; and
  4. Put yourself in your client’s shoes

You’d be amazed at how many lawyers fail at one if not all of these basic rules. Large law firms only take large clients since their overhead is so high and firms who specialize in one area or another are often incapable of walking clients through the various complexities in their lives. While they may actually have compassion for your situation, they really don’t have the time to deal with that complexity.

There are fancier law firms than TMBC. Their marble and mahogany offices with piles of outdated law journals shimmer and impress visitors and clients alike. The specializing firms do well; but only in their specialized areas. Our experience has taught us that often a client filing bankruptcy is also going through a divorce, or has a criminal matter, or has an employment concern, or might be fighting for custody of a child or grandchild. Though we do have four offices to serve our clients from Hamilton to Champaign Counties in Ohio, they are basic. Our overhead is very low so we can keep our rates equally low. Yet we have the experience and training to handle many areas of law people need. Besides tax law, Medicaid/Medicare law, and probate law, there is not much we have not competently and completely handled.

At the end of the day, we can help you in the areas in which we practice, we look clients in the eye and tell them the truth, even if they might not be thrilled with the answers, and our clients have told us often that we seem to empathize with their concerns. Choose your attorney wisely. Your life or livelihood might indeed depend on this important decision.

The Nicest Part About Being a Lawyer

nicest day

The practice of law can be stressful, challenging, and at time down right painful. The rate of alcohol and other substance abuse in the legal practice is among the highest of any profession. Those who have practiced more than a few months know why. The good attorney cares deeply and passionately about each client. The smarter one finds ways to cope with all that pain and suffering by compartmentalizing the pain so that s/he can lead decent personal lives.

Yet, with the pain can come great satisfaction and even joy. Over the course of a year, we perform hundreds of bankruptcies, divorces and dissolutions, custody, and criminal defense cases. We often see people at the darkest and lowest point of their lives; dealing with massive debt, depression, and/or heart ache. That said, I have long ago lost track of the number of clients who hugged me, often in tears, when they realized that the debt, horrible marriage, lost time with children, or nervousness of dealing with the court system, was over. They could start a new life with more hope and plans for the future.

My long-held personal mantra is “the best reward for a job well done, is more work”. We continue to get referrals and new clients who see that we care and try to guide them through the worst times of their lives into a brighter age. That indeed is the nicest part of being a lawyer!

MJB, Spring Valley, 2016

The Cyclical Nature of the Practice of Law

I am often asked about the cyclical nature of the practice of law. Certainly there are ebbs and flows in new cases that come in the door at different times of the calendar year. In 2016, roughly 33% of our business involves some form of family law (dissolution, divorce, guardianships, custody, grandparent rights) 33% involve bankruptcy (Chapters 7 and 13), and the other 33% included a diverse collection of criminal defense, corporate law, civil litigation, employment law, animal law, etc.).

Often divorces tend to peak around tax refund time and early Fall. Each year we get a number of cases based on our clients telling us that “…they wanted to wait until after the holidays to file”. This is sad, but a fact of life. Likewise, bankruptcies often peak around tax time since people have the money to file. A large caveat to this is that folks can file a bankruptcy anytime since, as long as they stop paying on their unsecured debt (e.g., credit cards, medical bills, payday loans, etc.), they can accumulate the funds to pay an attorney to file and begin the case for them.

As for the other areas, employment law cases can arise anytime but often peak in the late Summer to early Fall when businesses start setting their next fiscal year budgets; and in doing so look for sleazy ways to trim their payroll on the backs of their employees. Criminal work often follows economic downturns since people get desperate about job loss, mounting bills, or a generally poor economy.

Learning the lesson of the Irish Potato Famine, I have tried to keep this practice of law diversified. Not only is that smarter economics, but it also means our job is NEVER boring. Each day is challenging and engaging…just as we like it!

Run to the Wolves

wolves

Mark J. Bamberger, Ph.D., J.D.

Owner/Attorney at Law, The Mark Bamberger Co., LLC

           On a bright, late October of 2012 day, Blue Knights XXIX decided to ride west.  We left our club meeting in Springboro, Ohio and headed west toward the Indiana state line.  One of our favorite club rides is to head west on State Route 725 through Gratis and north of Hueston Woods State Park outside of Oxford, then hit the Indiana line and continue west, then south towards Batesville and back east around Cincinnati, Ohio.

Riding a variety of bikes, from smaller Harley Sportsters to Honda Goldwings to Harley Road Kings, a v-formed lines of nine bikes ran smoothly through beloved Ohio back roads and into Indiana.  It did not strike this author until about 100 miles were behind us that our daylong ride through brilliant and surprisingly warm Fall sunshine was taking us right through Brookville, Indiana; the home of my wolves.

Well, they aren’t actually “my” wolves.  I adopted them some years back when I first found out about the Wolf Creek Wolf Habitat & Rescue Center in Brookville, Indiana (www.wolfcreekhabitat.org).  Located in a forested valley just west of Cincinnati, Ohio, Wolf Creek formed some 20 years ago when Owner Kathy Baudendistel started rescuing wolves from places where they might have been euthanized. Now, Wolf Creek has between 25-30 wolves, including a few hybrids, which Kathy and her all-volunteer staff feed, love on, and provide a safe and protected home.

I had an idea.  Since we were riding right through Brookville, why not stop and say hi to my wolves?  The others in the MC looked at me as though I had a second nose on my face. A myriad of cat calls and jokes echoed from the crowd. “They will find me tasty” one said.  “I have no interest in that” said another.  As we parked our bikes and walked into the compound, I explained that the wolves have been studied and separated into packs; some more wild and less socialized and some perfectly accepting of human presence.  We walked into the visitor center and were immediately surrounded by the sounds, smells, and pictures of wolves, young, strong, and old.  From only two of us willing to go in and sit with the wolves, I was able to talk all nine of the hard-edged bikers to interact with the packs.

Owner Kathy was out in the field working on the teepee that the group was constructing for their upcoming Native American ceremony the following week.  Greeting Kathy with a hug, I introduced her to the rest of the crew.  This was the fourth time I had been there, but the first for everyone else.  They were pensive as we signed the obligatory release form and then entered with our guide the first pen.  It was there that my friends saw the large, beautiful animals viewing us with some trepidation.

Sitting on a closed water tank, we waited about two minutes until the first wolf walked over to us, sniffed, then licked a barrel-chested, vest-wearing biker’s face.  Ironically, it was the biker who made the “…they will find me tasty” comment.  She did, but limited her exposure to a mere sniff and kiss; then walked timidly away.

Wolves have wonderful memory.  It had been six months since my last visit, yet several of the wolves walked up to me with kisses and an allowance of me petting their backs and ears.  My old friend Yukon was there as well.  An older male, Yukon is a long-time resident at Wolf Creek. Yukon is the alpha male of his pack, but time and age has rendered it more difficult for him to hold that esteemed status.  Through the next hour or so, we enjoyed warm relations with about seven of the wolves.  On our way out, a noise from afar started a group howl.  It sent chills down our collective spine to hear more than 20 wolves in a simultaneous howl to the sky that lasted about three minutes.

There was little comment other than general voiced approval from my biker-vested buddies as the ride leader led us out of the area and back onto our route.  As I moved south on my Sportster, I felt a unexplained warmth move through me.  I found myself sitting an inch or two higher on my bike seat. I got a tad emotional as I thought of the joy from introducing this most precious part of my life to my biker friends.  One important aspect of my life had joined another.  As an attorney, I have tried to provide what little legal assistance I can to Kathy and Wolf Creek.  I wish I could give more of my time; some day I hope to do just that.

These are men of few words at times and they were not immediately expressive of how this experience had moved them.  Yet, as the days passed after our run to the wolves, comments began to surface that demonstrated that this visit moved them as it always moves me. “I can’t wait to go back” said one friend. “I took my girlfriend back the next weekend and she can’t stop talking about it” said another brother.  ‘Let’s make this a regular ride” said the MC Secretary.

All rides with my MC brothers and sisters are meaningful to me.  They all enhance our friendship, our bond and commitment to each other, and memories of those lost and gone or otherwise engaged and not with us.  However the run to the wolves will always top them all in my mind.  I count the days until the next one comes.

MJB, Spring Valley, Ohio  4/13

What A Lawyer is Worth

It’s great to win a case!  Whatever type of case it is, it is great to win.  The clients are happy, justice is served, and The Mark Bamberger Co., LLC gets paid.  What’s wrong with this statement?  Should payment be dependent on whether an attorney wins the case?  In almost all cases the answer is “no”.  We put tremendous passion and effort into our cases.  Many times we win and there are toasts of whiskey all around at TMBC.  However, the losses are often twice as painful and personal as the victories are sweet.  The ultimate determination of the court either in our clients’ favor or in opposition does not change the time we spent or the passion we exerted toward the case.

In these difficult economic times, some clients weigh their commitment to paying their bill on the outcome.  A recent article in the Dayton Bar Association’s Bar Briefs recommended that attorneys bill by the quality of their work, not the time spent.  In this business owner/attorney’s opinion, that feeds right into this vice.  We as legal counsel work hard for our clients, at least we ethical ones do.  We bring years to decades of experience and expertise to the table for our clients.  Our clients must realize that the outcome of their case does not change their admitted commitment to pay us for our time and effort.

We at The Mark Bamberger Co., LLC have always tried to do a consistently high level of pro bono (unpaid) work for those in need.  I do a number of divorces and other cases per year for people who cannot otherwise pay, but are in dire need of legal assistance.  It should be noted that there is a difference between pro bono work and what I term “involuntary pro bono work” (a.k.a. working your butt off and not getting paid).  When I sign an agreement with a client, I expect to do my level best to represent them as they commit to do their level best to be open and honest with me about themselves and their case and further to pay their bill.  That sounds fair…right?

When “Being Done Wrong” is not enough in court?

We get clients come into The Mark Bamberger Co., LLC almost daily with perfectly good (sounding) cases. They have been wronged! There is little doubt from the passion of how they relate their story that they have been wronged; and further that they indeed deserve justice in an Ohio or Federal court. My staff and I listen to client cases and empathize. But remember the old adage “…if you want a friend, buy a dog”? Welcome to our system of justice; in all its splendor and candor. Although Lady Justice is blind and wielding a sword along with scales; if you look closely, she is also bruised, cut, and bleeding.

This is not easy business. The rate of alcoholism is about as high for attorneys as for any other profession besides professional drinkers and bar flies. It is hard to be empathetic and supportive on one side, but also equally realistic about the odds of winning any particular case on the other. The difference between “being wronged” and being able to prove in a court of law (be it criminal, civil, or domestic) that a client was wronged to the proper legal standard is no business for the faint of heart.

I tell my staff that the most important aspect of being a good lawyer (besides basic competence) is the ability to tell the truth. That means not only telling the truth to judges or fellow attorneys, but perhaps hardest of all telling the truth to crying clients who plead for the “launching of their judicial armada”. The litigation process is long and painful. Having said that, when there is a case to be won, we here at The Mark Bamberger Co., LLC go after the bad guys with passion and all the weapons at our disposal. The joy of that is that we usually represent the “little guy” against corporations, governments, and so on. The victories are sweet and we have won far more than lost. But loss is part of the equation that must be considered throughout the litigation process (see past articles on civil litigation and criminal defense).

The bottom line is that all clients want a legal champion, but at times what they need is the straight truth about the pros and cons of their case and a candid analysis of the chance of victory. If their definition of victory is realistic, we can often make it happen.

MJB 4/14/10

General Practice

When you are in need of legal services, you need to find the right attorney. Whatever legal problems arise in your life, you will be in good hands with The Mark Bamberger Law Co.

We provide our clients with a wide range of overlapping practice areas, from drafting wills, trusts and estates and handling personal injury cases to negotiating our clients tax settlements with the Internal Revenue Service. From the simple to complex, we provide effective and caring representation.

We are proud to ardently and aggressively represent your case, no matter its size. You can depend on us to fight to obtain the best outcome for you.