When NOT to File Bankruptcy

At the Mark Bamberger Company my staff and I have successfully completed hundreds of Chapter 7 and Chapter 13 bankruptcies over the better part of the last decade. Bankruptcy, though never a thrilling experience, has allowed millions of people to start over (as in Chapter 7 cases) or to reorganize their debt (as in Chapter 13 cases). I have lost track of the number of former clients who have broken into tears and hugged me when they realize they can stop “robbing Peter to pay Paul” and can finally start thinking about the future; perhaps in a new house or car.

However, being an ethical attorney, I have sent some people away with the advice that they should avoid bankruptcy. Generally there are four reasons for this:

  • Not enough debt – in some cases, the price of even the cheaper Chapter 7 case makes filing for some clients unnecessary. In those cases we can often represent folks and haggle settlement offers from creditors for the clients to pay off; without having a bankruptcy on their record.
  • Too little time – in some cases, clients have filed previous bankruptcies and cannot yet file another. That ranges from eight (8) years between Chapter 7 cases to as little as two (2) years between Chapter 13 cases.
  • Too recent debt – for Chapter 7 and some 13 cases, if a client has very recently used credit cards or purchased an expensive item, there would be reason for an objection to the case or even sanctions for abuse of the bankruptcy code if someone incurs significant debt, then turns around and files bankruptcy. In 2005 the federal bankruptcy code changed a lot to make it harder for people to “game the system” when they in fact could pay back at least some of their debt. Those Chapter 7 cases have since been funneled into 13 cases where debtors have to commit to paying back something. For that we are all thankful, as bankruptcy was contemplated by the Founding Fathers to be a step up, not a hand out.
  • Too little money – in some instances where the client has too much household income, has filed a Chapter 7 too recently, or else has a house in jeopardy, we recommend filing for a Chapter 13 reorganization. However, if the household income is too little to sustain a monthly payment plan, that is a recipe for default and other problems that can make filing anything problematic.

In general, folks can file a form of bankruptcy that assists them in dealing with their financial problems. But an ethical attorney will know when not to file as well as when to file. Find one of them!

7 Is Smaller than 13, Right?

Mark J. Bamberger, Ph.D., J.D., Owner/Attorney and Counselor at Law
The Mark Bamberger Co., LLC

It’s a simple fact of math. Seven is smaller than 13. But in considering bankruptcy, (Chapter) 7 might not be better than (Chapter) 13. In simple terms, a Chapter 7 (“BK7”) is a full, start over from scratch, bankruptcy option for individuals and/or small businesses. They are generally cheaper and faster than a Chapter 13 “(“BK13”).

A BK13 is a personal (or small business) reorganization program whereby you propose to pay back a percentage of your unsecured (and 100% of your secured) debt to the trustee of the court for his or her systematic distribution to your creditors. That percentage can range from 0% to 100%. Typically a personal BK13 payment plan ranges between 2% and 50%. BK13s are generally more expensive since your attorney has to shepherd the case from filing through confirmation to discharge and closure. BK13s last between three (3) and up to five (5) years.

The decision as to which option to pursue is far more complex than a short article here can handle. There are some general rules of thumb, but you should seek legal counsel before making the decision:

  • If you have relatively minor unsecured debt and do not have real estate in jeopardy, you may be able to get away hiring us to haggle settlement offers for your unsecured debt and avoid bankruptcy altogether;
  • If only one spouse has debt in his or her name, you may consider having that one spouse file bankruptcy alone;
  • If you do not own real estate, have not filed a BK7 within the past eight (8) years, and have a household income under what is termed the “Means Test”, a BK7 might be best;
  • If you own a home that is in foreseeable jeopardy of defaulting and you want to try to keep the property, a BK13 is probably best for you and your family; and
  • If your household income is above the Means Test and/or you have filed a BK7 within the past eight (8) years, consider a BK13.

Needless to say, there are many more considerations to be made and I would be happy to schedule a free, no obligation consultation to explore your particular situation. Mind you, you do have the legal right to file your case by yourself (pro se), but bankruptcy law under 11 U.S.C. can be complex and unforgiving, so professional assistance is often strongly recommended.

Well That Blows!

Mark J. Bamberger, Esq., Owner/Attorney and Counselor at Law
The Mark Bamberger Co., LLC

The police lights flash in your rear-view mirror. You tense up and feel your heart starting to race. Not again, you curse under your breath. Your mind races back over the past few hours and the number of drinks you had. Am I OK? Did I drink too much? How long ago was that last drink? It is natural to feel this way, even if you were doing nothing wrong. However, you might have to decide quickly on your course of action. Now, like all lawyers, we caution people not to drink any alcohol or consume any mind-altering substance and then drive. Hey, my family might be out there with you!
The question of whether to take the field sobriety test, which usually includes a “blow test”, is one that we get a lot. The answer is more complicated than you might think. There are attorneys that say never blow. Some say always blow. In fact, you need to consider your specific situation. As a general rule, many judges and courts make it harder on people to get what are called “driving privileges” should you get arrested if you refuse the test. “Driving Privileges” mean that even if you are charged with a DUI, you can get permission to drive on a limited basis, say to school or work or for family events, until you are allowed to get your license back.

The problem with refusing to blow, which by the way is your constitutional right, is that you are then presumed to be over the 0.08% limit and guilty. It is also true that in Ohio the fines and penalties grow the more you are over that limit. If you think you might well pass, a general rule is to take the blow test. You might indeed pass and even if you are over you might be only slightly over. If you know you will fail, leaving my guilt trip on you aside, the decision whether to blow or not to blow is a judgment call. Refusing might be better since they might assume you are less impaired than the data might present.

Again, don’t drink and drive, but regardless, know your rights and options. The Mark Bamberger Co., LLC does a lot of this kind of work and is at your assistance, should need representation in the SW Ohio region or federal court.

Law, Rock, and Motorcycles

Mark J. Bamberger, Ph.D., J.D.
The Mark Bamberger Co., LLC

My main law office has three primary themes; law practice stuff, rock & roll music, and motorcycle models and pictures. It is an odd concoction for some, but not really, if you think of it. The commonality is passion.
I practice law with heartfelt passion for our clients. Lets be clear, I could not afford to do this for free and I do have a fondness for being able to eat and otherwise feed and clothe my family. But at The Mark J. Bamberger, Co., we have a history of taking on cases that might not be the easiest or safest moneymakers. It can be stressful as heck, but personally, I have always liked underdogs. I am a franchise-long Tampa Bay Buccaneers fan, for goodness sake! As fair as the American common law legal system can be, it is not really as equal as the scales of justice might infer. Money buys power and influence; no doubt about that. Yet, don’t you agree that there is something honorable about the single guy or gal going up against the multi-national corporation; and sometimes winning? We empathize with our clients as much as we can and battle for them. This means I will likely never be rich, but boy do I sleep peacefully at night.

Growing up and coming of age in the 1970’s, my soundtrack is steeped in classic rock. I respect jazz, classical, even some hip hop; but I consistently come back home again. It was on when I studied in high school, then college, then graduate school, then law school. It is on these days when I write briefs and prepare for trials and do accounting and paperwork around my offices. You get the point. Having always fought ADHD (we called it “hyperactivity” back in the day), the music always shot down all the distracting thoughts constantly cruising through my brain and thus allowed me to focus on the task at bar. When my daughters became able to distinguish between AC/DC and The Beatles and The Rolling Stones and Def Leppard, I knew my job as a parent was done.

I came to motorcycling relatively late in life. Before the age of 40, I had no interest. Then like a light switch, something got turned on in my brain and my heart. I saw one of my vendors coming to meetings on a shiny green 2001 Kawasaki Ninja and, boom, my life changed. This is not hyperbole, and that by the way became my first motorcycle. Other than my family, motorcycling is one of the strongest passions of my life. In just over 13 years I have logged more than 75,000 miles. Two-thirds of those have come in the past three years on my beloved 2000 Honda Goldwing; she’s named “The Blue Mistress”. Bikers know Goldwings; great big, incredibly well designed and comfy rides that eat up miles like aardvarks gobble up ants. I could write books on the joy of a 3,000-mile motorcycle trip; the freedom, the meditation, the “Carpe Diem”. Lets just say that some think about breathing. I think about riding tomorrow; then the day after that.

The commonality is passion. The music ushers me through the pressures of my work life as it does through mile after mile after mile on my bike. The dangers of riding equalize the pressures of a stressful second career; my law practice. In law school I once asked a professor why so many lawyers have drug and/or alcohol problems. Given her academic bent, she could not answer. After starting to practice law as what I thought of as a thoughtful and engaged attorney, it became quite clear.
Client problems become my problems. It can be corrosive and engulfing. Away from the practice, some lawyers drink or take too many pills or have affairs. I listen to classic rock and ride my motorcycle.

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

Negative Connotations of the Word – Attorney

Negative Connotations of the Word - AttorneyTo be (a lawyer), or not to be (a lawyer); that was our question.  Many of us decided to go into the practice for a myriad of reasons; social justice, money, fame, because playing piano in a brothel was unfeasible  and so on.  We studied all the law and all its historical jurisprudence in our respective law schools.  We further learned in school or elsewhere the scorn many people hold for attorneys.  Why is this so?

“The first thing we do, let’s kill all the lawyers.”
William Shakespeare, King Henry VI Part 2.

 

 

“My decision to become a lawyer was irrevocably sealed when I realized my father

hated the legal profession.”  John Grisham

 

Perhaps people are jealous of the huge sums of money we make; at least that is what I hear. Perhaps they hate our nice suits or fancy cars or big houses.  I have heard those do exist too.  Perhaps they are threatened by the self-discipline they know it takes to get through years and years of agonizing legal education.  Doctors too are often held in low regard.  Many medical friends of mine will relate similar experiences of scorn and derision.  They also often tell of the often fictional “good life” of a well-paid physician.

 

“’Lawyer’, n. One skilled in circumvention of the law.”
Ambrose Bierce, The Devil’s Dictionary.

 

Barristers hold a proud place in the English and American common law.  So noble was the practice in England that the barristers used to not touch the money they were paid.  Patrons would place pay in their robe pockets to keep the honorable practice of law from the low-brow collection of money.  Where did those days go?

 

The above-cited quote from King Henry VI does not mean that life would simply be more pleasurable if there were no lawyers.  It meant something more deeper and more profound.  Within context, the quote inferred that lawyers were the keepers of the rules; the arbiters of structure in society.  In the noble ancestry of the practice of law, this meant that without laws, and therefore lawyers to administer and interpret and argue those laws, there would be anarchy.

I don’t think you can make a lawyer honest by an act of legislature.  You’ve got to work on his conscience.

And his lack of conscience is what makes him a lawyer.” Will Rogers

A measured and organized society needs rules.  Those rules need to be known by and regulated by lawyers.  It is not any more or less complicated than that.  And still we are far too often scorned.  When I began my practice of law, I realized that four easy “riles” would elevate me into the top third of practicing counsel: (1) be competent, if not expert, at least competent in the area in which you are practicing; (2) look clients in the eyes when you speak to them; (3) be honest about the frailties of their case; and (4) manage client expectations.  I learned this lesson the hard way; as do we all.  A growing percentage of my clientele’ emanates from someone else’s client list.  That former counselor somehow lost those clients by violating one of these four rules.  I have violated, to some degree still do violate, at a least rules #3 and #4.  I like all attorneys like paying customers.  There is a profound difference between voluntary and involuntary pro bono work.  However, in my zeal for an exciting case or zest for paying the overhead at my office, I still find myself promising a little too much, saying it a bit too optimistically, or honestly underestimating the challenge of a case; especially since I often find myself on the plaintiff bar of the practice.

 

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
Abraham Lincoln

 

With that in mind, there is a small percentage of the bar who give attorneys their bad name.  We all know who they are.  For me, 90-95% of the Dayton bar are people: (1) I respect; (2) I like personally; and (3) with whom I would share dinner and/or bourbon.  It’s the other 5-10% of the sample population who fail on two or all three of those accounts.  They are not merely “ambulance chasers”, but endeavor to belittle clients and opposing counsel alike; I fear out of a need to compensate for shortcomings elsewhere.  They are the ones who, often in loud and boisterous voice, transmit the form of arrogance and lack of empathy that we all seem to hear when discussing lawyers.  The massive amount of lawyer jokes are on one level humorous, yet on another level telling of the important role we attorneys play in modern society and also the scorn with which we have to deal.

 

The attitude toward attorneys might have something to do with their portrayal in movies and on TV.  From Perry Mason, Jack McCoy on “Law & Order”, or Atticus Finch in “To Kill a Mockingbird” at one end of the spectrum to the drunken underdog played by Paul Newman in “The Verdict” or Al Pacino’s Arthur Kirkland in “And Justice for All” on the other end, lawyers are seen as everything from the most noble to the most base of creature.

 

“I think we may class the lawyer in the natural history of monsters.”
John Keats

 

We like to see ourselves as fitting in the former category, but due to occasional perception problems or arrogance disguised as supreme confidence, some at times see us as fitting more snugly into the latter.  In part, people fear the unknown.  Like taking your car to a mechanic you do not fully trust or your child to a new doctor, humans approach the unknown with concern.  For most people, the American legal system is the unknown.  The best teachers are those who can take complex information and explain it simply.  In part that is what we are; legal teachers as well as counselors.  Let us never forget that.

 

The bottom line is this: We need to drum out the 5-10% that ruin our reputations and defame our good intentions and slowly, client by client, educate people of the importance of law in our society and the noble way we (try to) practice it.  When will I stop “practicing” at law?  I will get back to you on that one.  Often it is a simple matter of education.  The more that our clients understand the complexities (and at times idiosyncrasies) of the law applicable to their case or the frailties of the case they think they have, the more they seem to appreciate our efforts, training, and compassionate practice of the age-old and noble craft of practicing law.

 

“The good lawyer is not the man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape.”
Ralph Waldo Emerson


The Mark Bamberger Co., LLC is a general practices focusing on bankruptcy, civil litigation, criminal defense, employment law, family law, environmental law, and animal law.  See www.bambergerlaw.com.  TMBC has offices in Tipp City, West Chester, Enon, and Spring Valley, Ohio.

As the famous remark by the plotter of treachery in Shakespeare’s King Henry VI shows – “The first thing we must do is kill all the lawyers,” – the surest way to chaos and tyranny even then was to remove the guardians of independent thinking. http://www.spectacle.org/797/finkel.html, The Ethical Spectacle, July, 1997.

These percentages are anecdotal averages drawn from a consensus with other attorneys and is pertinent to the Dayton (Ohio) bar.  My experience is that for the Cincinnati, Columbus, Toledo, or Cleveland bars, the percentage of bad actors is notably higher.

The Exotic Animal Control Law: The Tension Inherent in Animal Law

Bamberger Animal Law

Mark J. Bamberger, Esq., Owner/Attorney at Law

The Mark Bamberger Co., LLC[1]

 

The Zanesville, Ohio exotic animal tragedy[2] received international publicity; not in a good way. There has always existed a tension between our love for wild animals, our concern for their safety and preservation, and the need for their rationale isolation from our community. Further, we have to consider limits on the intrusion upon the privacy and freedom of the individual owners. [3]

Sadly, we are far from the day when non-humans can have reasoned legal protections under our human-derived and human-intended legal system. Following Zanesville, there were some calls for an absolute ban on private ownership of wild and dangerous animals. This was an extreme approach in the eyes of some. Ohio’s Senate Bill 310 (and later House Bill 483) was proposed to maintain a balance between competing parties on this sensitive issue. It was carefully drafted; taking into account both the testimony from a wide variety of experts in the field of exotic and dangerous animals and from owners of such animals.[5] The need for this regulation was clear. The Governor’s office stated that “…while Ohio law is clear on the state’s authority to regulate native species of wild animals, it is unclear about the authority that the state has to regulate dangerous non-native species of wild animals”.[6] Also, “…[the] bill introduced in the [Ohio] State Legislature (SB 310/HB 483) would ban the acquisition, sale, and breeding of restricted species. If passed, the new law would: (1) Prohibit new possession of dangerous wild animals; (2) Prohibit all sales and transfers of dangerous wild animals; and (3) Authorize officials to inspect dangerous wild animals already in someone’s possession. Keeping wild and exotic animals as pets threatens public health and safety as well as animal welfare.[7]

Now signed into law, SB 310/HB 483 became the Exotic Animal Control Law (“EACL”) on June 5, 2012. It provides reasonable regulation of a highly risky, often unpredictable activity with the potential for sudden and widespread harm to our community. This regulation includes various requirements for the registration and training of the owners of exotic and dangerous animals. These includes mandates that owners and facilities owned or operated by them be appropriately inspected and insured and that such animals be humanely and carefully cared for, tracked (including the usage of microchips), transported and transferred from one permit holder to another. Finally, the EACL provides for a dangerous and restricted animal fund, into which shall be deposited permit application fees, fines, and other monies collected pursuant to provisions of the bill.

Sadly, many of these exotic animals were bought legally by Ohio residents as “trophy pets”. In some instances drug lords or those finding a personal zoo desirable bought these amazing animals and built make-shift cages and pens for them; without a clue as to the expense and expertise needed to properly care for them – let alone the abuse of caging a wild animal in a small suburban locale. Until recently, they were summarily killed by law enforcement when the drug lord was arrested or the zoo disbanded. Recently, there has been a movement to provide local sanctuary for those animals.[8] Two local examples of these are Wolf Creek Wolf Sanctuary & Rescue in Brookville, Indiana and Heaven’s Corner Zoo & Animal Sanctuary in West Alexandria, Ohio.

Perhaps most importantly, this legislation provides a reasoned balance between the rights of those who own or wish to own exotic animals and the safety of the general public. The language and spirit of the bill has been vetted by animal care experts and incorporates best practices in what can be a dangerous and volatile hobby/profession/etc. The bill is undeniably in response to the horrific images played around the world when one careless and mentally ill animal owner acted with complete disregard for his neighbors. While no legislation can guarantee the prevention of what occurred in Zanesville, this bill will create safeguards and regulations which give the government the power needed to monitor dangerous animal owners and protect the public from those who would fail to keep those animals responsibly.

The law, which becomes active in 2014, provides for formation of an advisory board, which consists of representatives from the state departments of agriculture and natural resources, the state veterinarian in the Ohio Department of Agriculture, representatives from the Association of Zoos and Aquariums, from the Zoological Association of America, veterinarians, humane societies, the governor’s office, the public at large, and from owners of such animals. The bill was also drafted according to generally accepted zoo and aquarium standards, and generally accepted veterinarian practices.

Tactically, this was an interesting political intersection of strange bedfellows. The conservatives in the Ohio Legislature were concerned about the infringement on personal liberties. Rep. Terry Boose (R-Norwalk), who was one of four members who voted against reporting the bill out of committee, believed the bill heavily encroached on people’s property rights. While he agreed that some regulations for exotic animals must be in place, he explained that SB310 was “overly restrictive.”[9] While some members tout the bill as creating stronger public protection against such actions, Boose believes the additional rules could make it more difficult for exotic animal owners to comply. “Just because you add more rules, doesn’t make it safe,” Boose explained. “I had too many people tell me in their testimony that — what happened in Zanesville — this bill will not stop, and it could happen all over again even with this bill.” Before reporting SB310 out of committee, Chairman Dave Hall (R-Killbuck) presented and saw passed an omnibus amendment that added several new provisions to the bill:
1. Requires the Ohio Department of Agriculture (ODAg) director to seek approval from the

Ohio General Assembly before adding new species to the definition of “Dangerous Wild Animal” and “Restricted Snake.”

2. Changes the ownership fees depending on the number of animals owned: an owner of one

to three dangerous animals would pay $250 a year; the owner of four to 10 dangerous animals would pay $500 a year; the owner of 10-15 dangerous animals would pay $1,000 a year; and owners of 16 animals would pay $1,000 a year plus an additional $125 per animal.

3. Exempts lemurs; pygmy, white-tufted-ear, silvery and black-penciled marmosets; squirrel

monkeys; and brown, white-faced, weeping and white-fronted capuchins. However, all animals must still be registered with ODAg at no fee.

4. Includes a representative from the boards of health on the Dangerous and Restricted Animal Advisory Board.

5. Permits the dangerous and restricted animal funds to be used to compensate boards of health for costs incurred while capturing dangerous wild animals and restricted snakes.
6. Prohibits rescue facility operators from purchasing dangerous wild animals.

7. Requires the wildlife shelter applicant to also submit a plan-of-action in the case of an animal escape to the local fire chief and

8. Excludes domesticated animals which are considered livestock from the definition of dangerous wild animal.

The committee also accepted an amendment presented by Rep. Tracy Maxwell Heard (D-Columbus) which allowed permissive language for local municipalities to keep their own exotic animal laws intact as long as the laws are more stringent than the laws included in SB310.[10] The bill was reported out of committee after a marathon session of 15 hours in which the testimony of 58 witnesses was taken.[11]

Conversely, the more liberal thinkers in the Legislature also were concerned about animal

rights and protections. On one hand they wanted to protect private owners’ rights to keep these animals. Yet they accepted the need for community protection. Many current owners believe the law went way too far. This author represents several clients who own animals classified as “wild”. Although they accept the strict legal liability statutes of such ownership, these animals are as much part of their family as dogs and cats are to most of us. They believe the law is too expensive and too restrictive for those owning one or two animals and will make such activity cost-prohibitive. They liken this regulation to “killing a mosquito with a 341 Magnum”.

Personally, the EACL legislation leaves this author conflicted. My love and adoration of non-human animals leads me to want them kept safe; and preferably in the wild where they are happy and safe – not in zoos or personal collections where they are often confined if not abused and tortured. Seeing a wolf or tiger or boa is a wonderful, moving experience. Seeing them in a little cage and knowing they cannot live out their natural lives as they would wish is heart wrenching. Countering those “tree hugging” feelings is the attorney in me who knows that regulation is mandatory to protect the greater good of the community. In protecting the community, the local police had no option but to execute those beautiful animals in Zanesville. That fact, in and of itself, told us that something was seriously wrong with the system we had. Until wild animal rescues and sanctuaries are established and promulgated through the region, these animals need our physical and legal protection. Perhaps the EACL is a good “first-step” to finding a way to balance that tension between love for animals and need for safety in our community.

 


[1] The Mark Bamberger Co., LLC is a general practice law firm with offices in Tipp City, West Chester, Enon, and Spring Valley, Ohio. TMBC focuses on animal and environmental law, family law, bankruptcy, employment law, civil and criminal litigation, and criminal defense.

[2] For those unaware, Mr. Terry Thompson of Zanesville freely and, at the time legally maintained a large cadre of more than 50 exotic animals, including various species of wild cats and bears (see picture above). These animals were abused and improperly feed and maintained. On October 19, 2011, Thompson brazenly and willfully released all of the wild and exotic animals into the community; then took his own life.

[3] Credit is given to Kyle Silvers, Esq., a founding member and the chairwoman of the Ohio Bar Association’s Animal Law Committee, for her generous and critical contribution to this article.

[4] Picture taken from http://thedailywh.at/2011/10/19/follow-up-of-the-day-sad-end-for-zanesvilles-wild-animals/

[5] Comments made by Kyle Silver, Esq. at the formal Senate hearings on this topic

[6] Quote taken from www.globalpost.com/dispatch/news/regions/americas/united-states/111021/john-kasich-executive-order

[7] Official statement regarding SB310 by The Animal Legal Defense Fund

[8] The author supports, for example, the Wolf Creek Wolf Rescue and Sanctuary, located in Brookville, Indiana. Wolf Creek’s mission is to save wild, wounded, and abused wolves and wolf hybrids from torture or euthanasia. Donations and other support is appreciated. See more at www.nighthowls7.com.

[9] Story originally published in The Hannah Report on May 16, 2012. Copyright 2012 Hannah News Service, Inc.

[10] Id.

[11] Additional information was gathered from Mary Amos Augsburger, Esq., Legislative Counsel of Ohio State Bar Association

[12] Picture taken from http://thedailywh.at/2011/10/19/follow-up-of-the-day-sad-end-for-zanesvilles-wild-animals/

The Law and Crashing your Harley

Lawyer motorcycle accident legal representation

Mark J. Bamberger, Esq., Owner/Attorney at Law

THE MARK BAMBERGER CO., LLC*

*Offices in Tipp City, West Chester, Enon, and Spring Valley, Ohio

 

It had just rained as I piloted my beloved, rebuilt 1990 Harley Sportster 886 between Mason and Spring Valley, Ohio.  After more than a decade and 25,000 some odd miles of riding without one mishap, I was truly comfortable with my motorcycling skills. I dare say I felt more comfortable on my bike seat than on my couch that wet Sunday afternoon.  That all changed in an instant.

 

As I slowed (far too slowly as I came to realize too late) to take a wet sharp turn, the rear tire was out from under me before I knew what was happening.  I would like to braggingly recount that as I fell I examined the various legal ramifications of my on-going mishap.  So often, as people have realized for themselves, when suffering through an accident, time slows down.  Yet here, as I fell to the pavement, I distinctly remember myself thinking “Gee, why am I falling to the pavement?”  There was nothing more and nothing less.  That’s all that was there; nothing philosophical, nothing legally engaging, just the simple fact that from one second to the next, I was contemplating blacktop hitting my body like a hammer.

 

As motorcycle accidents go, this was relatively minor.  There were no broken bones; x-rays confirmed that the next morning.  A month on, my shoulder is still sore and movement is restricted and the road rash on my knee is still heeling.  However, the legal implications are becoming clearer to my mind.  No police officer was there that day to cite me for “Failing to Control”.  One of the three kind onlookers who came running to help me asked if I had insurance. ‘If not, you better get going”, was his apparently experienced advice.  I did have insurance, so was not concerned as I got assistance righting the bike and starting her back up.  All my motorcycles and cars are “hers”; don’t ask – it’s a guy thing.  Yes, I did then  ride the bike home.  In fact, at first I only saw a bloody knee as the prize for my erroneous actions.  “I could hide this from my family and save them the concern”, I honestly thought.  Only later that evening did an ever-more throbbing shoulder and side signal otherwise.

 

Later, I was asked if there was a potential civil action against the tire manufacturer?  I responded “No, but there should be one against its operator for negligence”.  Indeed the accident was almost entirely my own fault.  Due to rushing to get home in the rain; perhaps?  Due to failure to identify a wet turn fast enough; almost certainly.  Due to letting my tires get low on air; maybe.  Due to a deficient bike wheel; not so much.

 

There are attorneys who sue anyone about anything at the drop of a hat.  But the attitude at The Mark Bamberger Company is that our society gets the lawyers (and politicians and doctors) they deserve.  If people weren’t so litigious, there would not be a legal bar to cater to them.  Law suits serve a valuable purpose in society and we pursue many of them at the law firm.  Yet in many cases, seeing the inside of a courtroom is an indication for an attorney of failure; a sign that he or she was not able to settle a dispute reasonably, equitably, and also inexpensively.  In the case at bar, there was no one to sue, although my family members were undoubtedly considering an action against me for negligence and infliction of emotional distress on them for my stupidity.  The bubble of security in which my family members lived while I rode all those thousands of miles had been pierced and might never inflate fully again.  For those who consider themselves serious motorcycle riders; it is a fever that gets into your soul and bones.  The meditation of a quiet ride on an empty country road; smelling the smells, feeling the micro-climatic changes, feeling the freedom of speed and the road, the vibration of power between your knees – hard to explain to the non-rider.  Like all failures, this was a learning experience for me.  I think I lost about eight years of riding confidence that Sunday afternoon and am gaining it back very slowly.  A little fear is a good thing, right?  I took to the bike the very next weekend for a 175 mile ride with my motorcycle club.  I wanted to get back on the horse before my mind went to work on my actions.  Most importantly, the damage to the Harley was minimal and quickly repaired, sans a few new scratches I keep as battle scars.

 

They say that there are two types of riders; those who have laid down their bike and those who will.  A dear friend and far-more experienced rider told me afterwards that all of his motorcycle accidents were largely his own fault.  I then asked myself if I should taking advice from someone who speaks about “motorcycle accidents” in the plural!  The takeaway – from a legal perspective, sometimes you just own the event and your actions therein – and move on.

 

MJB  8/13/12

Until Death (or Dissolution or Divorce) Do We Part

Mark J. Bamberger, Esq., Owner/Attorney at Law
The Mark Bamberger Co., LLC
Offices in Tipp City, West Chester, Enon, and Spring Valley, Ohio


Clients come into the offices of The Mark Bamberger Company for different reasons.  Some need to discuss a potential bankruptcy filing, some need criminal defense, some have an employer who they may need to sue, and others want to discuss some environmental or animal law litigation issue.  Yet, in many cases, the most disturbing discussions relate to a potential dissolution or divorce.  In some cases, we deal with 20- to 25-year marriages that are ending.  In some cases, after one year, someone is ready to “move on”.  All cases are sad, but having gone through the process myself, I know that the pain gets worse and then fades with time.  Time does in fact “heal all wounds”.

 

When counseling divorce clients, I do far more than simply discuss their legal options; be it dissolution, non-contested divorce, or contested divorce.  I also talk to them about non-legal ramifications like financial concerns and the best interest of any children.  Although they do not offer psychology classes in law school, they should.  To be honest, a surprisingly high percentage of my job is non-legal.  I need to know the law, to be sure, but I also need to be empathetic to the client’s plight, their emotional state, their personal safety situation, their financial situation, and the best interest of any minor children involved.  I keep a stocked box of tissues in my office at all times.

 

It is not uncommon for a separation to also implicate a potential bankruptcy.  In some cases, bankruptcy is a smart way to allow the client/s to “move on”.  In some cases, the married couple’s debts are so intermingled that it makes sense for them to remain together long enough to file a Chapter 7 bankruptcy in order to clear those joint unsecured debts; then finalize the divorce. In fact, legally a bankruptcy filing puts an “automatic stay” on any and all other legal proceedings, so either the bankruptcy case has to be closed before the divorce is finalized or else relief from that stay must be recommended by the trustee and ordered by the bankruptcy court.

 

When considering divorce, people are usually wise to “…go with their gut”.  If they are in physical or emotional danger, they need to separate themselves and/or their children as soon as possible.  As I tell clients in that situation, “…the first call should be to ‘911’, the second to their county’s Children’s Services (if and where appropriate), and the final call should then be to me”.  All in all, people do survive divorce.  In most cases, it’s my experience that spouses (and their children) are happier after the legal filing is completed and the pain fades.