To Lawyer or Not To Lawyer

To lawyer up or not to lawyer up?

That is a difficult question. Whether you are entering a divorce, custody dispute, criminal defense, civil litigation, employment dispute, or bankruptcy case, the decision to retain legal counsel can be a challenging and potentially life-altering one. I have addressed the attributes and talents of a competent attorney in past articles on www.bambergerlaw.com. But the very choice of whether to pay the money to retain counsel can in itself be a difficult call.

Color me biased but having represented more than 2,000 clients in almost as many cases over the past 13 years, I have found great peril when laypeople try to prosecute their own case. Having said that, I rejoice when I go up against the opposition “pro se” (representing themselves). It’s fun to know the law and know the court and know the judge and see that the other side floundering since they know none of it. Having said that, many people cannot afford a high-priced law firm. In some cases, even though I am a solo practitioner and almost always charge far less than those fancy wood-grained firms, it still can be expensive to hire any competent attorney to represent a needy client in any of the types of cases listed above.

When considering whether the outcome of a divorce in ten years from now, the custody of your child, a prison sentence in a criminal case, a severance package in an employment case, or a complete discharge of debts in a bankruptcy, it is almost always wise to hire legal counsel. My law firm operates in more than 20 different county and municipal jurisdictions in Southwestern Ohio; many more than that if you add federal courts as well. They all want different forms at different times. Even within a given court, different judges can demand things differently. Seasoned professionals make mistakes and need to re-file pleadings from time to time.  Do you want to travel that gambit alone? Again, I am very biased, but as I tell my children “…think about how you want things to look a decade from now and walk in that direction without doubts or reservations”. In this context, don’t let short-term comfort lead to long-term pain. After all, this IS your life!

MJB, 5/15/2018

Motorcycling as an Analogy for the Practice of Law… Or Vice Versa

motorcycle legal case

Those who know me know that I love motorcycling. My 2000 Honda Goldwing “Blue Mistress” and I ride about 15,000 miles/year. To be fair, these are always working trips. I take the laptop. I take the Android. I spend a few hours each evening in the motel du jour catching up on calls and emails and briefs and memos.

motorcycle parked
The Blue Mistress at repose, Lincoln, Maine, 9/20/2017

In an odd way, I see my thousands of miles of riding; be it to the Keys in Spring or the Outer Banks in Summertime or New England or the Rockies in the Fall as an analogy to the practice of law. Follow me here. So many legal cases are a long and winding road. Civil litigation, divorces, custody battles can be a long haul, like riding to Key West or Bar Harbor, Maine. Conversely, criminal cases and some bankruptcies come and go pretty quickly; like a nice one-day 300-mile ride around Southeastern Ohio.

mark key west ballast
Mark and bike at the Key West Ballast, March 4, 2014

All cases have their risks, as does riding a motorcycle. Yet like riding my beloved 900-pound Goldwing, I see many folks gain satisfaction through the legal process. There can be bumps and obstacles in the pursuit of justice, like a closed road, a rainstorm, or a slug of bad gasoline on a ride. But in both cases, its often the pursuit of justice or the ride itself that provides the satisfaction, not just getting to the end.

For clients, they want positive outcomes, which of course is reasonable. However, I have been in this line of work long enough now to see that not all cases end in success. Don’t get me wrong. We win far more than we lose. Indeed, getting to a successful destination on a motorcycle, say Duval Street on Key West or Cape Hatteras in the Outer Banks or Cabot’s Trail on Cape Breton Island in Nova Scotia is really gratifying, just as helping our clients complete an equitable divorce, a successful discharge of debts in a bankruptcy, or a reduced charge and no jail time in criminal defense.

motorcycle legal case
Mark and The Blue Mistress riding on Daytona Beach, Florida, March 2015

Aside from joys with my family, nothing beats the feel of a long motorcycle trip when the weather is wonderful and the bike feels like an appendage of my body. Likewise, nothing beats victory in court; seeing the tears of joy in a client’s eye when they realize they can move forward in his or her life. Keep moving forward!

mark bamberger riding
Picture was taken on Cabot’s Trail, Cape Breton Island, Nova Scotia, 9/22/2017

Keeping Score

The Mark Bamberger Co., LLC was founded on February 1, 2009. For those keeping score, since TMBC opened 3,185 days ago (as of October 21, 2017), Mark has completed 988 separate cases from roughly 700 clients in his practice, in other words, we are honored to have received a new case every 3.22 days and a new client every ~4.55 days. Those 988 cases have comprised the following:

  1. 300 federal Chapter 7 and 13 bankruptcy cases;
  2. 165 criminal defense cases;
  3. 140 dissolution/divorce cases;
  4. 128 civil (trial and appeal, non-employment) Ohio and federal litigation cases;
  5. 92 corporate/contract review or dispute/simple will cases;
  6. 83 child custody/guardianship cases;
  7. 64 employment cases; and
  8. 16 environmental/animal law cases.

Through our four offices in Enon, Spring Valley, Tipp City, and West Chester, TMBC has completed casework in 12 counties in Southwestern Ohio (Butler, Champaign, Clark, Clermont, Clinton, Darke, Greene, Hamilton, Miami, Montgomery, Preble, and Shelby) and a total of more than 35 separate federal, county, and municipal jurisdictions. The mean case cost for our clients has been $1,322 and, given our lower overhead obligations, most of our clients have found our prices well below average for the region.

Mark’s masochistic mantra is “the best reward for a job well done…is more work”, so keep those cases coming! And we always love referrals from client friends, family, and colleagues. Have a wondrous Fall and 2017 Holiday Season.

Animal Replevin and Animal Custody

The Complexities of Considerations of Animal Law in Other Areas of Law Practice

by: Mark J. Bamberger, PhD, Esq.

Interdisciplinary planning for the care of pets and other animals can implicate itself in many practices of law other than core animal law. Areas such as estate planning, domestic relations (family law), criminal,  property, and

Interdisciplinary planning for the care of pets and other animals can implicate itself in many practices of law other than core animal law. Areas such as estate planning, domestic relations (family law), criminal law, property law, and environmental law must contemplate what happens to animals. Indeed that topic can generate passion and potential controversy in already contentious legal situations.

Click to review as published by the Ohio State Bar Association

Who Represents the Animals

pit-bull

First, what is animal law? In general, it relates to the legal protection and/or regulation of all non-human animals. For example, I am the general counsel for a few animal shelters in Ohio. Issues such as corporate formation of animal-related LLCs, implementation of proper insurance to protect those involved with the animal concern, and law suits filed by visitors and vendors to animal protection facilities are common issues that must be handled. There are also more large-scale animal concerns such as ranches, farms, and endangered species that involve animal, as well as more general environmental legal issues.

One of the biggest difference in the representation we perform for animal cases is that we do so on a pro bono basis (without charge). The reason is that I love animals, especially wolves and dogs. I do some legal work for Wolf Creek Wolf Habitat & Rescue in Brookville, Indiana. They are good people doing wonderful work in the protection and raising of wolves that would otherwise most likely be killed.

At an Ohio Bar Association in Cleveland, Ohio, I gave a presentation on animal law and how it effects other legal practices, including corporate, criminal, family, and general environmental law. Many, if not most, legal practitioners, at one time or another, will encounter an animal law case. Examples here include divorce with custody disputes over the family pet, the scary link between animal abuse and serial murder, dog bite law suits, and the Endangered Species Act of 1973.

More and more, society in general is turning on to the concerns of factory farms, slaughter houses, puppy mills , and other abusive situations. There will never be a day when non-humans have the same legal rights as we humans, but it would be nice if a little more understanding of and respect for the plight of animals was commonplace in our culture.


1 TMBC has offices in Tipp City, Enon, West Chester, and Spring Valley, Ohio. Check us out and contact us through www.bambergerlaw.com
2 Check them out at wolfcreekhabitat.org. They operate on donations and visitor fees alone. For a fee, you can go “sit with the wolves’; a definite bucket-list experience.
3 The Endangered Species Act (16 U.S.C. §1531 et seq. (1973) is under constant attack by some in Congress and around the nation.
4 A little-known fact: The Amish communities are some of the worst violators of still-weak puppy mill laws.

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.

Your Rights Once Arrested

rights-once-arrested

Increasingly, I am asked what I should do if and when I am arrested. This is a complicated issue, but let me explain the primary concepts; regardless of whether you are white or a person of color. This article is more detailed than most of my others, so take your time and read it thoroughly. Your freedom might depend on it! In short, KNOW YOUR RIGHTS.

Initial Actions

When stopped by a police officer, keep your hands in plain site; preferably on the steering wheel. Take a deep breath as the cop arrives at the window and be as courteous as you can be. Cops are trained to be friendly on these stops and most are, so provide that respect back. Do not be sarcastic or mean when asked why you were stopped.[1]  If you have a gun or hunting knife in your vehicle, announce clearly when the cop arrives at the window that you have the weapon and in the case of a gun, a valid CCW Permit[2]. Hopefully this is true.

Plan ahead for this and have your ID, proof of insurance, and car registration readily accessible.  If you go to the glove compartment to retrieve these items, move slowly and narrate your actions to the cop as you go so there are no surprises. If you lack of one these documents, explain to the officer why.  If you license is under suspension, hopefully you will have a good reason why you are on the road, e.g., going to hospital due to a family emergency, etc.

The 4th Amendment

If the officer asks you to exit the vehicle, exit the vehicle. Need be you can attack the constitutionality of this request later. For now, do what is being asked. Case law is clear that government representatives generally have wide ranging rights to inspect or search your vehicle since vehicles can be driven away and hidden. Any part of the vehicle that is not considered a separate and locked compartment can be easily searched.  If you have a separate, locked safe or compartment in the vehicle, the cop must impound the vehicle and get a search warrant based on probable cause to access the locked compartment. You can ALWAYS challenge the constitutionality of the search under the 4th Amendment of the Constitution, administered to Ohio via the 14th Amendment. DO NOT try to argue this matter while at your vehicle. It will not end well and chances are the police officer will not be equipped to deal with the legality at that moment anyway, even though they are trained in this area at the Academy (we hope).

Search and Seizure and Terry Stops

If evidence is seized from the vehicle, it is important whether you are arrested or not.  Search and seizure incident to an arrest is easier for the State to defend than an “expedition mission” without an arrest.

As for your person, cops are always allowed to do a Terry Stop[3]. The search must be “reasonable” as legally defined, and limited to safeguarding the police officer/s. Excessive searches can lead to suppression of any weapons or other evidence searched and seized in a latter hearing.

Miranda Warnings

As for questioning, you can be arrested without being “Mirandized”.[4]  However, once you are “in custody”, you must be read your rights BEFORE being questioned.  If not, whatever you say can and should be suppressed and thrown out. Furthermore, any evidence found or produced after an illegal, custodial interrogation (be it at the car, in their car, or at their station)[5] can be challenged as “fruit from the poisonous tree”[6] and suppressed as well.

It is never a bad idea to provide NO answers as to the evidence or alleged offenses while you formally and audibly, yet respectfully, request a lawyer. This is your legal right and does not indicate that you are guilty of anything. An elderly family member once told me “…if I have nothing to hide, why should I not just answer questions right away”. Though innocence is presumed, not all cops are honest and they can openly lie to you to gain insight into a case. Sadly, as a defense attorney, I tell my clients to assume that the cops are not your friends in these specific instances and to SHUT UP until we get involved. Plus, though our Constitution is under attack right now, we must know and defend the Bill of Rights and our protections under the law.

This is but a thumb nail sketch of your rights and our suggestions on your expected behavior.  Be courteous, know your rights, and protect those rights so that your lawyer can provide the most effective representation to you down the road. We will add more detail in future articles. Feel free to contact me directly or chat with my staff on-line at www.bambergerlaw.com.



[1] Realize that a cop can stop you for pretty much any reason they choose; speeding, driving erratically, broken light, etc.  Your chances of getting charges thrown out merely on the probable cause for a stop is unlikely.

[2] In Ohio, you can transport a gun in your vehicle without a CCW, but in that case the ammo and gun must be kept in separate parts of the vehicle and not in easy access to the driver.

[3] This right is based on the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), which allows government representatives to search your person reasonably to protect themselves against potential ambush or attack. This is in contrast to such programs as New York City’s Stop and Frisk, which was deemed discriminatory based on racial bias.

[4] Miranda v. Arizona, 384 U.S. 436 (1966) mandated the reading or your rights to remain silent and to legal counsel prior to formal custodian questioning.

[5] The concept of being “in custody” is a complex one, but as a very general rule, if a reasonable person would not feel the ability to simply walk away from the government agent/s, that person should consider him or herself “in custody” and therefore due related constitutional rights under the 5th and 14th Amendments. Custody in this context is synonymous with restraint of liberty and does not necessarily mean actual physical imprisonment.

[6] There is an extension of the exclusionary rule established in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). This doctrine holds that evidence gathered with the assistance of illegally obtained information must be excluded from trial. Thus, if an illegal interrogation leads to the discovery of physical evidence, both the interrogation and the physical evidence may be excluded, the interrogation because of the exclusionary rule, and the physical evidence because it is the “fruit” of the illegal interrogation. This doctrine is subject to three of important exceptions. The evidence will not be excluded (1) if it was discovered from a source independent of the illegal activity; (2) its discovery was inevitable; or (3) if there is attenuation between the illegal activity and the discovery of the evidence. Wong Sun v. United States, 371 U.S. 471 (1963) is the seminal case that allowed “poisonous fruit” evidence to be suppressed.

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.

Lawyering and Life

What is it like to be a lawyer? Well, it can suck. Alcohol and substance abuse among attorneys is among the highest of any profession.[1] The fact is that in so many cases it is hard to divorce ourselves (pardon the pun) from the pain and suffering of our clients. So many attorneys take that pain home with them and self-medicate. I am one of the few attorneys who would probably benefit from drinking more, but all joking aside this is a serious problem. Not only are lives ruined by such addiction, but the quality of representation to our clients can suffer. There is an entire branch of most bar associations to confidentially help attorneys with addiction.[2]

One of the most important skills your attorney can have is the ability to compartmentalize. I am occasionally asked how I can represent alleged rapist and thieves, people going through a contested divorce or custody dispute or disastrous bankruptcy. The answer is that I can usually compartmentalize. My wife Lynne and my daughters are happy for this. Many testimonials on our web site (www.bambergerlaw.com) talk about my compassion and demonstrated concern for client problems and worries. That is great to hear, but is also quite true. I do honestly care and those are not just words, but shown again and again by my staff and my actions.

Not all lawyers do care. Many get into the business for personal gain; to grab that corner office doing only transactional law and never see the inside of a courtroom. Others literally do ‘chase ambulances’ and feast on others’ misfortunes. These are the attorneys that give this incredibly noble profession its bad name. Yet, attorneys and their management of the common law is the foundation of our society. When Shakespeare wrote. “The first thing we do, let’s kill all the lawyers”,[3] he was not disparaging the profession, but in context saying that attorneys are the basis on which cordial and regulated society works. I take that stuff seriously.

As many of you know, law is my second career. I was an environmental geologist for 18 years before going to law school. I went to law school evenings while teaching at two colleges during the day and helping to raise three daughters. For me, it was never about money, though getting paid for my time and expertise is nice too. Seeing the tears of joy in client’s eyes when they realize their debt problems are behind them, an ugly divorce is over, a criminal mistake is not going to end their life, or their horrid employment issue is handled brings me satisfaction and joy.

On The Blue Mistress, my beloved 2000 Honda Goldwing motorcycle, I try vigorously not to think about work (sorry folks). However, when I do, I see the faces and expressions of the clients TMBC has been able to help. It makes me smile as the hundreds of motorcycle miles fly by.

MJB, Dayton, Ohio 3/2017

[1] See for example http://www.brooklyneagle.com/articles/lawyers-struggle…, March 22, 2013

[2] In Ohio, the State Bar Association has the Lawyers Assistance Program (www.ohiolap.org).

[3] shakespeare.mit.edu/2henryvi/2henryvi.4.2.html, cited from Henry VI, Part 2, Act 4, Scene 2

 

But He’s Guilty, Right?

Handcuffs

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

One of the most challenging, yet most satisfying areas of my practice is criminal law. I have been asked more than once, and even by family members, how can I defend a suspected murderer, rapist, drug offender, or intoxicated vehicle operator when I know (or at least strongly suspect) s/he is guilty. Admittedly there are times when it is difficult, but two tenants of our common law legal system are:

  1. the presumption of innocence; and
  2. the right to competent legal counsel. Everyone, even the most loathsome among us, deserves a competent, compassionate criminal defense and a just and non-discriminatory sentence.

In many cases, though the dispositive evidence against them is overwhelming, our clients come to us simply to explain and then guide them through the legal system. Many clients openly admit their offense/s, but just want “a fair shake”. My experience has been that the vast majority of our clients are truly contrite about their transgression. They know they have done wrong and my job is to get them a reasonable sentence or reduced charge so that they can become a meaningful contributor to society again.

The bottom line is this – crime should be punished. But in most cases, there is another end than one’s life being ruined by a mistake or bad choice. We are here to make sure that our clients get the best possible outcome from a difficult situation and, where possible, move forward into a brighter future.

MJB, 1/17