Homophobia is Still Rampant in Many Law Firms

ENDA appears to be going nowhere this year and as a result LGBT employees in a majority of states - including ever backwards Virginia - will continue to have no employment non-discrimination protections. That includes LGBT attorneys and paralegals who either cannot get hired by law firms in the first place or who must live in fear in the professional closet so as to not be fired from their jobs. The other side of the coin, of course, is that of whether or not LGBT clients want to utilize law firms that would not hire them or other members of the LGBT community as an employee.

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While this post will focus on Virginia, the problem identified occurs all over the country where states do not protect LGBT citizens from employment discrimination. As I have noted before, I was forced from a large law local firm in 2004 because I was gay - true, they tried to dress it up as something else, but one did not need to be a NASA scientist to know what was going on - and I have a good friend who experienced a similar fate when his sexual orientation was discovered at another prominent local law firm.
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The major disconnect in this wide spread picture is that most prominent law schools require interviewing employers as a condition to recruiting on campus to abide by employment non-discrimination policies that bar discrimination based on sexual orientation. In Virginia, the leading law schools, The University of Virginia School of Law (my alma mater), The College of William & Mary School of Law, The Washington & Lee University School of Law, and The University of Richmond School of Law all have such policies (click on the school to view its respective policy). Research has shown that Virginia’s mega law firms – Williams Mullen, P.C., McGuire Woods, L.L.P., and Hunton & Williams - actually have such policies in place at their firms, as does Leclair Ryan. Yet, the majority of Virginia law firms that conduct on campus interviews do NOT actually have official non-discrimintation policies that comply with the law school mandated non-discrimination policies. In fact, two local law firms - Wolcott Rivers Gates and Willcox & Savage, P.C. - have fired LGBT staff due to their sexual orientation.
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Of the other locally based law firms, one - Kaufman & Canoles, P.C. - has a nondiscrimination policy that on its face excludes sexual orientation. The rest as well as some in other parts of Virginia have non discernible non-discrimination policy whatsoever: Vandeventer Black, L.L.P., Watt Tieder Hoffar & Fitzgerald LLP, Taylor & Walker, P.C., Christian & Barton, P.C., Hirschler Fleischer, P.C., and Huff, Poole & Mahoney, P.C (Taliban Bob McDonnell's former firm). Obviously, something is seriously wrong with this picture if these firms are allowed to recruit on campus at leading laws apparently giving a wink and a nod to the law schools' non-discrimination policies.

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LGBT clients need to be aware of more than just a law firm's supposed reputation if they want to be assured that they will receive respectful and knowledgeable representation.

Dissolving Same Sex Relationships - Tips For A Smoother Breakup

While I do not handle regular divorce or family law matters in my law practice, I have come to represent on a number of occasions one of the partners in LGBT relationship who are splitting up and in need of sorting out their frequently intertwined assets, preferably with as little animosity and hatred as possible. In fact, I am representing two such clients currently. Since same sex relationships in Virginia receive zero recognition, ownership rights in and the methods for the dissolution of gay and lesbian relationships usually come down to issues of contract and property law, with a jointly titled residence generally being the issue that leads to legal warfare. Although jointly titled investment accounts, vehicles and other items can bubble to the surface and create conflict as well.

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One way to avoid battles over a co-owned residence is to have a written - and preferably recorded - agreement that spells out what will happen if the couple splits. Given the number of gays in the military in this area it is even possible to have such agreements drafted in a manner that make them appear to an outside party as nothing more than a joint ownership/investment agreement with buy-sell options and/or rights of first refusal. Thus, they do not create a possible trigger under "Don't Ask, Don't Tell." Sadly, most couples do not take these types of precautions and so the battle begins as the relationship falls apart. A relatively recent story in the New York Times looks at "pre-coupling" measures that can be taken to make a potential split down the road easier and perhaps even less hostile. Here are some highlights:

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[W]e asked several experts on same-sex issues what gay couples need to think about before legally partnering, and what they’ll probably need to consider should they decide to split:
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Get it in writing. Even though prenuptial agreements or domestic-partner agreements can be contested and may not be enforceable in some states, they can be useful in outlining how assets should be divided in the event of a split, especially if a couple doesn’t have access to divorce court. “Those documents often do clarify intentions and create enforceable obligations,” said Jennifer Pizer, director of Lambda Legal’s national marriage project.
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You can also get creative, said Joyce Kauffman, a lawyer in Cambridge, Mass., with a same-sex clientele, and “put language in it that says if we are not able to divorce, wherever we live, we want this to be viewed as a binding contract and it can be enforced.”
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Children. Same-sex marriage, civil unions and comprehensive domestic partnership laws generally recognize children born into these relationships as the children of both parents. But the parent-child relationship can be contested in some states, which is why parents without biological ties to their children should adopt them (or move to a state where they can). So if a couple splits, the relationship between the nonbiological parent and child will be protected — as will the parents’ obligations to the child — and any custody issues can be decided in a family court.
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Dissolve all unions. All legal unions should be dissolved through the legal system whenever possible. If you don’t (or can’t), the states that respect same-sex marriage may continue to view your former spouse or partner as the next-of-kin, which means that person may have legal rights to make medical, financial and other important decisions if you become incapacitated.
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“If a married gay man who can’t get divorced in his home state is traveling in a state that recognizes him as still married, his estranged husband will have a full range of default legal rights,” Ms. Pizer said. Some of those rights can be overridden with legal documents like medical and legal powers of attorney, but failing to sever your legal ties can also cause problems if you attempt to remarry or repartner.
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Dividing assets. Heterosexual couples can divide their assets with few, if any, tax implications in a divorce. One spouse can sell property to the other without worrying about capital gains taxes, and they can transfer an unlimited amount of assets to each other without incurring gift taxes. (While all individuals can give up to $13,000 in cash and other assets to as many people as they desire, anything above that is considered a taxable gift; everyone has a $1 million lifetime exemption.) But this is a big gray area for gay couples. The Internal Revenue Service hasn’t issued any guidance for same-sex couples, but you can assume that it doesn’t recognize gay marriage because of the Defense of Marriage Act, the federal law that bans same-sex marriage. That means that gay couples are not entitled to tax-free division of assets in a divorce (though they may not have to pay related state taxes if they live in a state that recognizes gay unions).
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So if a gay spouse wanted to transfer his share of the house to a spouse as part of a divorce agreement, any amount above $13,000 could well be considered a taxable gift. (Both spouses would need to file a gift tax return on amounts that exceeded $13,000, which would exhaust part of their lifetime exemption).
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“And the sale of one same-sex spouse’s appreciated property to the other, as commonly occurs in divorce, could result in a reportable capital gain,” said Allen Drexel, a family lawyer in New York who works with same-sex couples. But the gay partner selling his share could use the $250,000 exclusion on capital gains, as long as it’s a primary home; there are no exclusions for vacation homes or other property.
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And if a gay couple without access to divorce court can’t figure out a way to equitably split assets on their own, they may need to resort to other legal remedies. “For example, if you own property together and don’t want to, you may be able to file a petition to partition or a similar action, which will result in a court order to sell the property,” Ms. Kauffman said.
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Retirement Plans. When heterosexuals divorce, they can also split qualified retirement plans like 401(k)s without triggering federal income taxes or penalties by using a “qualified domestic relations order,” or QDRO. Individual retirement accounts can be transferred tax-free, too. But gay couples must withdraw the amount and pay all taxes and any penalties. That’s why it pays to compensate a gay spouse with other assets, if you have them, before dipping into a retirement plan . . . .
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Alimony. Typically, the person who pays spousal support can treat those payments as a tax deduction, while the recipient must report it as taxable income. But the I.R.S. hasn’t issued any guidance here either, and the person paying spousal support may not be able to deduct these payments, and he or she could could incur a federal gift tax liability, Mr. Drexel said. “The jury is still out on this very important question,” he added.
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Bottom line: in states that do not allow same sex marriage - and even in those that do because of the Defense of Marriage Act - dissolving same sex relationships and unwinding property interests can be difficult and usually will need to involve both an attorney and a tax advisor.

Finding LGBT Friendly Legal Counsel

It can be a challenge for LGBT Virginians to find "gay friendly" legal counsel to handle their legal matters from a sympathetic and respectful perspective. Since my firm has been marketing to the LGBT community for a number of years now, we receive many calls from LGBT Virginians - sometimes from hundreds of miles away - seeking legal representation in areas of the law that this office does not handle. I endeavor to refer these people to other counsel that I know are both competent and gay friendly if not actually gay to insure that the legal representation provided will be thorough and that the clients will not be sold out by counsel afraid to stand up to frequently anti-gay biased judges (two judges in Norfolk spring immediately to mind in this regard, but the problem is really state wide).

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Of late, I have been receiving telephone calls providing tales of opposing attorneys - particularly in divorce cases - who advertise themselves as "gay friendly" yet who willingly and viciously play the "gay card" in courtroom hearings to harm their client's gay former spouse to the maximum extent possible in the divorce case. Obviously, most attorneys who do this hope to prejudice the court and/or brutalize the opposing party. In this vein, I received a call yesterday from a gay man whose estranged wife is being represented by an allegedly "gay friendly" attorney with a large area firm that advertises on Equality Virginia's legal resource page. This attorney reportedly is playing the gay card for all it is worth in the divorce hearings - even to the point allegedly of representing that the gay father can only have supervised visitation. Moreover, he is with a law firm that, in my opinion, is not only extremely homophobic, but would never have an openly gay attorney in its employ.
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Unfortunately, as the economy has nose dived, cynical attorneys and firms that are seeking to bolster falling revenues are waking up to the fact that the gay community is a potentially lucrative market niche. In my opinion, these attorneys and firms in reality care NOTHING for the LGBT community or individual LGBT clients and are after one thing only: gay dollars. As a result, they are not invested in seeing that LGBT clients receive justice in the courts. It's all about money and when a client comes along who wants to engage in vicious gay bashing to win in a case, these attorneys and firms quickly jump right on board (even though such conduct is probably a violation of the attorney Rules of Professional Conduct and raise issues under the Canons of Judicial Conduct as well).

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With the growing awareness of the size and purchasing power of the LGBT community, numerous websites are springing up that allow attorneys to advertise themselves as gay friendly (some sites allow the attorney to advertise that they are gay and out) . Similarly, some LGBT organizations such as Equality Virginia, provide legal resource listings as well. The problem is, no one seems to check behind attorneys and firms seeking to be listed. In the situation I mentioned, the Virginia Beach firm has itself listed as a legal resource on Equality Virginia's website, an issue that I have raised with Equality Virginia for investigation.
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So what should the LGBT client seeking legal counsel do? The first advice is to check behind the listing with people in the LGBT community. Is the attorney advertising to the LGBT market out professionally? If not, does the attorney claiming to be "gay friendly" support local LGBT organizations as a member, sponsor or through some other means? If in doubt, the LGBT client should call local LGBT organizations to see what, if anything, is known about the attorney participating in and advertising to the community. Likewise, call other advertising attorneys in other areas of legal specialization to determine what they know of the attorney/law firm in question. Bottom line: do your homework to make sure you will truly be hiring an attorney who will advocate your case.

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LGBT clients need legal counsel who are not afraid to call out the opposing counsel and/or the presiding judge if they engage in or allow gay bashing to occur in the case. Gay bashing and playing the gay card is NEVER appropriate. Do not allow yourself to fall victim of a cynical and opportunistic attorney who only wants your money and who will disparage you behind your back while happily taking your money.

Avoiding Foreclosure Rescue Scams

Foreclosure rescue scams target homeowners facing foreclosure, particularly if they are equity-rich but cash-poor. Rescue scams cost consumers thousands of dollars and, often, their most valuable asset — their homes. With foreclosure rates on the rise, foreclosure rescue scams are also increasing. The elderly, and people with low incomes or blemished credit, are particularly vulnerable. Before entering into any such transaction, it is crucial that the homeowner consult a competent real estate attorney. Moreover, NEVER, EVER sign paperwork at the kitchen table that has not been reviewed by some third party looking out for your interest. Some of the scams utilized are as follows:
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Phantom help - The rescuer charges excessive fees for telephone calls and paperwork that the homeowner could have handled them self, or promises representation and services that never materialize. In either event, the homeowner may have little or no financial resources remaining to save the home after paying these worthless fees.
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Bailout - The rescuer bails out the homeowner by helping “dispose of” the house. The homeowner typically surrenders title to the house while believing they can stay on as renters and/or buy the house back once they resolve their financial matters. Too often the terms are so onerous, however, that repurchase becomes impossible, the homeowner permanently loses possession, and the “rescuer” walks off with all, or most, of the homeowner’s equity.
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Bait and switch - Rescuers tell the victims they will obtain a new loan that will solve their problems. In reality, the homeowner signs documents that give the scammers ownership of the home, while the victims remain responsible for the mortgage repayment obligations. Many homeowners believe that they were signing documents for a new loan to make the mortgage current, or arranging for an intermediary to negotiate more favorable terms with the lender.
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There are a number of things that a distressed homeowner should do to help themselves. Here are some of them:
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1. Make sure that your home actually is in foreclosure. If you are behind in your mortgage payments, you will receive a delinquency notice from the lender. These letters notify you of your delinquency and give you a chance to resolve the debt. If you receive a Notice of Trustee’s Sale, or similar document, your home is in foreclosure, and you need to respond accordingly IMMEDIATELY. Contacting an attorney on the eve of the foreclosure sale is too late..
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2. Ask your lender about renegotiating or refinancing your loan or working out a payment plan. Be honest about your financial situation. The sooner you contact your lender, the sooner you may be able to remedy the problem.
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3. Contact your attorney, not one referred by the individual or company that is involved in the foreclosure prevention/agreement.

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4. Do not sign a contract under duress. Request time to review documents or to have them reviewed by your attorney. If you do not understand a document’s contents, ask a trusted family member, attorney, or financial planner to review the documents with you.
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5. NEVER accept verbal representations. Obtain offers in writing, and review all written offers
Thoroughly with a trusted independent advisor.

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While Virginia has passed legislation directed to limiting the ability of scammers to operate in the state, crooks are very resourceful and the legislation in and of itself doesn't mean that scammers will not continue to find ways to take advantage of distressed homeowners.

Will Recession Force Restructuring of Legal Profession?

An interesting column is in today's New York Times that looks at the legal profession as it is buffeted by the recession and corporate clients seeking to drastically control their legal expenses. For consumers how things shake out may make for better, more cost effective ways to secure legal services without paying excessive fees to big law firms, especially as attorneys leave large firms and open smaller operations. In short, it may be come easier to secure attorneys with big firm knowledge at smaller firm pricing - something my firm offers.

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The reality is that the current set up of large law firms is much like a plantation system with a huge overhead factor where the often grossly over paid partners oversee the laborers made up of the associates. In some cases the partners do little - the real work is done by associates - yet bill crazy amounts for their inflated time. Meanwhile, associates are pressured to bill literally every minute of their time to generate required billable hours and collect fees. Associates often feel themselves to be like rats on a wheel with no way of exiting. Meanwhile life among the partners is no cake walk either and in many firms life among the partner ranks is like being in a piranha tank. Savvy consumers should use the current upheaval to their advantage. Here are some column highlights:

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The economic downturn is hitting the legal world hard. American Lawyer is calling it “the fire this time” and warning that big firms may be hurtling toward “a paradigm-shifting, blood-in-the-suites” future. The Law Shucks blog has a “layoff tracker,” and it is grim reading. Top firms are rapidly thinning their ranks, and several — including Heller Ehrman, a venerable 500-plus-lawyer firm founded in 1890 — have closed.
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The employment pains of the legal elite may not elicit a lot of sympathy in the broader context of the recession, but a lot of hard-working lawyers have been blindsided, including young associates who are suddenly finding themselves with six-figure student-loan debts and no source of income.
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The silver lining, if there is one, is that the legal world may be inspired to draw blueprints for the 21st century. The changes are likely to begin with compensation. . . . Lower pay should mean that associates will not need to work the grueling hours many have been forced to. And it will mean less pressure to go into private practice for law graduates who would rather do something else.
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Clients are also likely to benefit — and consumers, since legal fees are built into the cost of almost everything. Even before the downturn, big-firm clients, led by the Association of Corporate Counsel, were pushing to phase out the billable hour — which can go as high as $1,000. Tight corporate budgets will give clients more leverage to push to pay by the project or for successful outcomes.
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Law schools may also become more serious about curriculum reform. The Carnegie Foundation for the Advancement of Teaching released an influential report that, among other things, urged law schools to make better use of the sometimes-aimless second and third years. If law jobs are scarce, there will be more pressure on schools to make the changes Carnegie suggested, including more focus on practical skills.

Lower Your Taxes By Appealing Assessments

One result of the decline - or depending where one lives, the collapse - of the residential real estate market is that many homeowners are likely to find themselves with tax assessments that exceed the current market value of their homes. If you believe that you are in such a circumstance, you need to check your assessment against the current market reality in your neighborhood in terms of current sale prices and/or via an appraisal. City assessments are an inexact science at best and are not always quick to catch up with market changes, especially when prices are falling. This is especially true in neighborhoods that have been plagued by numerous foreclosures and/or short sales. A recent Virginian Pilot story looks at the situation in the southside of Hampton Roads. Here are some highlights:

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As home prices fall across Hampton Roads and city assessors scramble to keep up with changing values, persuading a city to lower an assessment - especially by $10,000 or more - could mean hundreds of dollars in tax savings. In the past year, the median price for homes in South Hampton Roads has dropped 7.4 percent, according to Real Estate Information Network, the Virginia Beach-based multiple listing service. Sales of existing homes also have fallen to unusually low levels - another problem for cities trying to value them.

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"We're all up against the same thing," said Jerry Banagan, Virginia Beach's assessor. "The volume of sales is down so much that (it) makes it harder to do an assessment and make comparisons." Several cities have already announced that median assessed values will decline this year. Despite that, for homeowners who think their properties still are overvalued, now is the time to challenge the assessment.

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"If you disagree, you call into the office. We will put them in touch with the appraiser who is responsible for their property." Minor discrepancies such as mistakes in square footage, damage that has occurred in the past year, or the fact that a home is unfinished, are often resolved quickly.

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"We normally get 300 to 500 calls a year," said Chesapeake Assessor William L. Rice. "Out of those, we'll do about 75 or 80 home visits. We come out and take a look. If there's something wrong, it's often something on our property record cards." The assessor shares with the homeowner recent sales in the neighborhood that were used as comparisons.

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If the city does not agree to change the assessment, the last recourse for a property owner typically is to appeal to the city's Board of Equalization. Boards meet at various times, depending on the city.

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Depending upon one's circumstances, filing an appeal with the Board of Equalization may make sense and could translate into savings for a number of years to come. Since each local city has its own process, it is important to file a timely appeal. The burden of proof in an appeal lies with the taxpayer:

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Section 58.1-3379.C of the Code of Virginia: "the burden of proof shall be upon a taxpayer seeking relief to show that the property in question is valued at more than its fair market value, that the assessment is not uniform in its application, or that the assessment is otherwise not equalized. In order to receive relief, the taxpayer must produce substantial evidence that the valuation determined by the assessor is erroneous and was not arrived at in accordance with generally accepted appraisal practice."

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Set out below are the schedules for the cities in south Hampton Roads:

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Chesapeake Board meets: May
File appeal by: May 1
(757) 382-6235
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Norfolk Board meets: July and August
File appeal by: May 31
(757) 664-4732
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Portsmouth Board meets: April
File appeal: Office recommends as soon as possible before the board meets.
(757) 393-8631
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Suffolk Board meets: May
File appeal by: April 30
(757) 514-7475
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Virginia Beach Board meets: December
File appeal: The city accepts appeals all year.
(757) 385-4601

33,000 Local Homeowners Owe More Than Homes are Worth

The caption of this post is the headline from a new Virginian Pilot article that looks at the faltering residential real estate market and the fact that more and more homeowners are "underwater" on their properties. Here are a few highlights:

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More than 33,000 homeowners in Hampton Roads owed more on their mortgages than their homes were worth at the end of 2008 as home prices continued to fall, according to a report released Wednesday by a mortgage research firm. That's roughly 13 percent of all mortgages in the local market, . . .
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Across the country, more than 8.3 million homeowners owe more than their homes are worth, representing about 20 percent of all outstanding mortgages, First American CoreLogic reported. The majority of such "negative equity" mortgages are in states such as California, Florida, Texas and Michigan. In Virginia, 19.6 percent of all mortgages were underwater.

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Brian Holland, president of Virginia Beach-based Atlantic Bay Mortgage Group, said many of the region's upside-down loans could be attributed to mortgages guaranteed by the Department of Veterans Affairs with no down payments. "Your typical VA buyer is going to fund 100 percent," said Holland, whose firm handles such loans from 19 mortgage offices in Virginia and the Carolinas. "After fees associated with the sale, they're automatically underwater."

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"The ones who are really impacted by this are the ones who have to sell," she said. "Then you're forced in to a short-sell situation." A "short sale" means selling a house for less than the amount the seller owes the lender. Lenders agree to take a loss on the short sale to avoid the added costs of a foreclosure plus trying to maintain and resell the property.

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Negotiating a short sale is NOT an easy process and is something that neither most homeowners looking to sell or buyers looking to purchase have the where with all to undertake. Worse yet, many Realtors are rather clueless in how the process works as well. Michael B. Hamar, P.C., has experience in such transactions and can assist in expediting the process which can take weeks or months depending upon the lender involved and the particular circumstances.

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In addition to the overview article on this blog, a detailed piece - with sample forms and exhibits - on negotiating a short sale is available upon request. It is not posted on this blog because of its length and numerous exhibits. Anyone interested in learning more should e-mail the office at mike@hamarlaw.com We also provide resources for for sale by owner ("FSBO") transactions which can save the seller the 6% real estate commission otherwise payable to a realtor. This savings can significantly improve the out of pocket loss for a homeowner who is "underwater" on their property.