Gilbert Jallad

What Mediators Need to Instinctively Know

Can and/or Should every Mediation result in an Agreement?
 
While I hate not being able to help parties in mediation come to an agreement, the fact of the matter is that it isn’t my mediation to decide. It is the party’s mediation.
 
Every Mediation cannot and should not result in an agreement and Mediators need to become comfortable with this fact.
 
Mediators need to instinctively know:
– How to be Flexible
– When to Listen
– How to be Empathetic
– When to Push
– How to Play Devil’s Advocate
– Even when to be Directive . . . among many other things
 
To learn more click here Mediation Moment Video

If you would like additional training in building a more profitable mediation practice while earning CLE/CME credits, check out our Mediation Mastery seminars.  

Tye Bourdony

Tye Bourdony

Mediator
tbourdony@cplspa.com

Single Parent Estate Planning

Questions I hear almost weekly from potential clients:

“I am a single mother and the father of my baby is not in his life, nor on the birth certificate. Will he get the baby when I die or will he get the baby’s inheritance?”

This question comes to me at least weekly and is complex. I am an estate planning attorney in Florida and work with many young people to establish an estate plan, should they die unexpectedly.     

We live in a world where the traditional nuclear family has changed. Children are raised by two fathers, children are raised by single mothers, whose father is not in the picture, and the child does not know the father.  Children are raised by single fathers, whose mother is not in the picture or their lives.  As an estate planning attorney, I can do some great planning that can keep the children’s inheritance out of the hands of the uninvolved parent.  

So many times, I see the results of no planning or poor planning. For example, if a child’s mother dies, she has done no planning at all, and the wealth will go through guardianship court, where the child’s other parent can petition the court for legal guardianship, over the property, and be appointed.   That can be avoided completely, by setting up a trust for the child, where you have the ability to name who is in charge of those assets (the Trustee). And the other parent cannot get anywhere near those assets. A Trust is a private document that passes your property to your loved ones and heirs and allows control over how your heirs use the trust property.  I do not recommend being in guardianship court, as no one is happy, and the extra attorney fees and court costs can diminish the child’s inheritance.

As far as who gets to raise the child, a natural parent is, by law, a legal guardian, of the person of the child.  The family court would decide who will be the guardian of the person of the child, but anything you put in writing in your Last Will and Testament or Pre Need Guardian Document, would carry great weight with the court. As I do not practice family law, we need a family attorney to weigh in on these issues.  Planning through legal documents for your minor children, when you are gone, is one of the important acts you can do for your children as a parent.

Are You Really Ready to Sell Your Business?

Whether you started your business with the intent to sell it one day or have simply decided its time to move on after years of hard work, many business owners eventually want to sell. Sometimes the potential buyer is right in front of you, like a co-owner or employee with sufficient purchasing power and the necessary expertise to seamlessly step into your shoes. If not, you can take several important steps to make your business more appealing to a wider audience, increase its value in the marketplace, and help facilitate a smooth transition. 


The first place to look are your business records. Potential buyers will want to review documents like tax returns, profit and loss statements, balance sheets, cash flow statements, accounts receivable, and accounts payable. If you already have excellent record keeping practices, then you are in good shape. If not, then now is the time to make a change. Consider seeking professional help from an accountant or other qualified financial expert to organize your books. These records will show potential buyers how much your business has prospered and give them a good idea of its future potential. 


Next, you will want to look at your operations from an outsiders perspective. If your business is turnkey and will not require long hours or extensive hiring for the new owner, then it is inherently more valuable and easier to sell. Have you developed a loyal base of customers? Do you have marketing in place to acquire more? Are your employees happy at work, and do they do a good job? Will the existing team be able to continue providing great service to current and future clients, even if the company is under new ownership? Does your business have solid relationships with important vendors and other third parties, separate from you as the owner? Do you have thorough written policies and procedures, handbooks, and training manuals ready to go? Have you secured valuable intellectual property, like your businesss name and logo?


Taking these steps can enhance your businesss value. When the time comes to determine a sale price, you can choose from several methods of valuation. These may vary by industry, especially if your business is unique, but in general you can use annual revenue as a way to determine your businesss value. One common calculation looks at recent sale prices of similar businesses compared to their annual revenue. You can price your business based on these sales by plugging in your own financials. Then you can examine your businesss other strengths, like the soft factors described above, to determine if buyers might pay an additional premium. A professional business valuator can offer assistance in obtaining a fair and appropriate valuation that you can trust. 


Finally, its important to discuss your plans with a team of experts, including an accountant, an attorney, and other trusted advisors, like a mental health professional or business coach. You might discover that it does not make financial sense to sell your business at this time. Maybe you can find another way to step back if you are suffering from burnout or lack of interest. If the time is right, though, then your team will help you through the next steps. If you are interested in learning about my experience as a corporate law attorney assisting business leaders and entrepreneurs in our community, please email me at mcannon@cplspa.com or call me at 407-647-7887.

Building a Better Workplace Environment and Culture

As an employer in our community, you are responsible for cultivating a positive working environment for your team. Not only is it the right thing to do, and it will therefore bring significant personal satisfaction to you as a business leader, but it’s also a vitally important step you can take to protect your business interests. Let’s take a look at some strategies you can implement today to improve your workplace environment and culture. 

  • Create (or update) your employee handbook

Your handbook is not a “set it and forget it” type of document. It must be reviewed and updated with regularity to ensure you are complying with all of the latest recommendations and requirements. Furthermore, you should take care to make the handbook easily accessible to your employees. Ideally, you would provide each of them with a hard copy on their first day of work, along with an electronic version that can be updated as needed and accessed anywhere, anytime. These written policies and procedures are essential for keeping your business running smoothly and protecting you from liability. They help you set the tone and establish expectations for how employees behave in the workplace.

  • Lead by example

Your employees are looking to you to set the bar in terms of how they will interact amongst themselves and with your clients, vendors, and other important third parties. It is key to have a leadership team in place that is not only competent but kind as well. Workplace culture starts at the top, and by treating your team with the respect they deserve, you can create an environment that is both productive and pleasant. Take care to demonstrate the behaviors you want to see in your employees, such as being patient, polite, and helpful, and seek out managers who share your values. 

  • Conduct exit interviews 

When employees leave your business, do not miss the opportunity to review the details of their experiences working for you. Even if you sense some unresolved tension in the employment relationship, that is all the more reason to investigate what went wrong and why your employee has chosen to seek work elsewhere. These insights will help you to retain current and future employees, avoiding the significant time and financial burdens of the hiring and training processes. Do not be afraid to ask for feedback from employees who are on their way out. It may be humbling, but it will ultimately help you to excel as a business leader and as an organization. 

  • Hold training and other events

Once a positive culture is in place, you can maintain it by holding development programs on relevant topics like workplace civility, stress management, and communication skills. The benefits of these are twofold: first, the direct results of the training, and second, the overall values you are able to demonstrate, like caring about your employees and being committed to providing a respectful work environment. Another good idea is to hold events specifically for the sake of employee appreciation, whether it’s a weekend of travel to a seminar with all expenses paid or a simple Friday afternoon pizza party in the break room. 

  • Review your hiring and onboarding procedures

Another important way to establish a healthy workplace culture is to hire people who align themselves with your values and whose personalities will help you foster cooperation and harmony on a broader scale. The interview process is a key part of identifying the right fit for your organization. Some candidates look great on paper, but even applicants with the best qualifications may have a negative attitude that could be disruptive or even destructive to your business. When you do find the right people for the job, ensure that your training process will make them feel comfortable and welcome. Consider assigning a designated mentor, whether that person is a peer or a more senior leader, to go to for help as needed. 

These are just a few ideas to get you started with developing and improving the culture in your business environment. The possibilities are endless and can be tailored to your unique concerns and challenges. You have the power to implement positive changes that will increase employee satisfaction and protect your business operations, and you can start today. If you are interested in learning about my experience as a corporate law attorney assisting business leaders and entrepreneurs in our community, please email me at mcannon@cplspa.com or call me at 407-647-7887.

The Importance of Plain English Business Agreements

Much of our American legal system comes from the English common law, where early lawyers (called “scriveners”) were literally paid by the word. This history helps to explain why some legal writing tends to be so verbose. 
 
Today’s attorneys are often paid by the hour. It would be prohibitively expensive for clients to have their lawyers write lengthy agreements from scratch, and this is another reason why legal documents tend to be very wordy. Instead of coming up with a contract out of thin air, attorneys usually start with a template or sample. It may be something they have worked on before, received from another attorney, or obtained from a reputable source, like their state bar association. While this practice is efficient, it tends to perpetuate some of the archaic language that has been passed down by lawyers from one generation to the next. 
 
These days, a growing trend has emerged opposing the old status quo. One significant reason for this is that courts generally analyze contracts using plain English, i.e. the dictionary definition of every single word. Another reason is that savvy lawyers strive to write contracts that can be easily understood by everyone who reads them, which can be impossible if the agreement is filled with complicated, overly formal legalese. In other words, judges and non-lawyers may prefer a more concise, clear, and direct style. The parties to the contract absolutely must be able to understand and carry out its terms. After all, this is the purpose of having a contract. 
 
If you are an attorney, how can you adopt this approach? The primary consideration should be giving the parties to your contract the precise information they need in a way that is easy to understand and implement, leading to fewer disputes down the road. Try to avoid long sentences that attempt to cover too much ground at once. Use as few words as possible, leaving less room for debate and confusion. Make sure every word has a clear meaning and purpose and is truly essential to the agreement, keeping in mind that a judge may be analyzing your language choices down the road.  
 
If you are a business owner, you can easily improve your operations by using plain English contracts. Your employees, clients, and vendors should appreciate being presented with agreements that are as brief as possible and simple to understand. Should you inevitably receive a complicated document, though, it is important to have a qualified business attorney review it before signing. Your lawyer can act as a translator and guide, helping you to understand the agreement’s terms and requesting any necessary changes on your behalf. 
 
Are you interested in learning about my experience as a corporate law attorney assisting business leaders and entrepreneurs in our community? Please email me at mcannon@cplspa.com or call me at 407-647-7887.

How to Protect Your Business With Client Services Agreements

One of the most important assets you will acquire as a business owner is your roster of clients and customers. These relationships often take years to develop and are the foundation for everything you do. Satisfied customers play an important role in helping your business prosper by returning to you for repeat business and by referring their friends and family to you. 

If you are a service provider, how can you take action to protect these valuable relationships? Ideally, you will enter into them with a clearly-defined Client Services Agreement specifically tailored to you and your business. By providing your customers with a detailed written agreement outlining the scope of your services and other important terms and conditions, you are setting your work relationships up for success.

Through your Client Services Agreement you can set clear expectations, making it easier to prevent any potential disputes in the future. Should a conflict arise, you will likely be able to refer to your Client Services Agreement to provide clarity and context to the issue at hand. This helps you provide your customers the best and most comfortable experience possible, even in the event of an unforeseen conflict.

Some important terms to consider including in Client Services Agreements across various industries are: a detailed description of the scope of your services (i.e., what is and is not included); the amount of your compensation, when it is due, and the method of payment; a timeline of when the services will be performed; and any necessary waivers to protect you from liability in the event of personal injury or property damage. Depending on the exact nature of your business, a knowledgeable corporate attorney can make additional, more specific recommendations.

Your Client Services Agreement also has the added benefit of enhancing your credibility and reputation as a business leader. By presenting a well-written agreement that makes both sides feel thoroughly informed and protected, your business increases its authority and trustworthiness with your customers and in the community at large. It demonstrates that you care about your relationships and have taken proactive steps to nurture confidence and trust.

Although a Client Services Agreement is legally binding, it does not need to be excessively formal or confusing. In fact, many experienced business attorneys understand that simplicity and transparency are essential for this type of agreement. Whether you are an athletic trainer, landscaper, web developer, or accountant, most of your clients are likely to want the same thing: an agreement they can easily understand, with terms that are thorough and fair to both sides. The right agreement makes them feel comfortable starting a relationship with you now and continuing to work with you in the future.

Are you in need of a Client Services Agreement for your new or established business? If you are interested in learning about my experience as a corporate law attorney assisting business leaders and entrepreneurs in our community, please email me at mcannon@cplspa.com or call me at 407-647-7887.

Corporate Litigation: Public Relations and Risk Management Considerations

As a business owner, it is essential to protect sensitive information, customer lists, and other valuable assets through the use of corporate agreements: non-competes, confidentiality agreements, and the like. Prevention is truly the best medicine in this case, and attorneys who are experienced in the business sector are likely to recommend executing these agreements whenever possible.

What happens, though, when an employee or other third party violates one of the agreements you have in place? A lot is at stake for you as a business owner. Your business is not just your livelihood, but also a large part of your identity. Of course such violations can stir up feelings of disappointment, betrayal, and insecurity. So what is the best way to proceed? Should you always take legal action when a former employee goes to work for one of your competitors, or a vendor discloses privileged information to another business similar to yours, despite the agreements you carefully put into place to protect yourself?

Some attorneys may be too eager to pursue litigation, driven by their own business interests instead of your own. Litigation can be time-consuming and unpredictable, which means it can be almost limitlessly expensive. Financial considerations are not the only roadblock, however. Corporate law attorneys should also emphasize to business owners that all potential litigation must be assessed to ensure that the benefits outweigh the risks. For example:

Business A, a veterinary hospital, has a non-compete agreement with Employee A, a kennel tech and the single mother of two pre-schoolers. When the employment relationship ended, Employee A immediately sought and obtained another job in the same field and the same geographical area, despite the non-compete she had previously signed, in order to put food on the table for her two children. Even though it is frustrating to lose an employee to a local competitor, the public relations consequences of suing a struggling single parent will almost certainly outweigh any possible benefit of restricting Employee A’s ability to work in the field.

Let’s say Employee B recently quit his job due to a hostile and discriminatory work environment. Unfortunately, Business B recently learned that its managers were treating certain employees less favorably based solely upon their race. After resigning, Employee B promptly disclosed several trade secrets during his search for a new job, violating the non-disclosure agreement he had entered into with Business B. Instead of charging ahead with litigation, a thoughtful attorney will investigate all of his potential counterclaims, which may be much more catastrophic to Business B and its owners than the confidential information that has already leaked.

The attorneys at CPLS, P.A. are here to offer assistance with 1) drafting and executing protective agreements between employers, employees, and other third parties, and 2) advising business leaders of the best course of action to take when an agreement is violated. Always take care to weigh public relations and risk management considerations against any potential litigation you are considering as a business owner. If you are interested in learning about my experience as a corporate law attorney assisting business leaders and entrepreneurs in our community, please email me at mcannon@cplspa.com or call me at 407-647-7887.

Unlicensed Practice of Law and Accountants, Paralegals, and Out of State Lawyers

If you are an accountant, paralegal or out of state lawyer, you must be extremely careful as your services or actions in Florida may constitute the practice of law, which can lead to a criminal violation and civil liability.

Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree. 

Florida Statues, § 454.23. The main issue is whether the activity you plan to engage in, in the State of Florida, constitutes the unlicensed practice of law.  Florida follows a two-part analysis. First, it must be determined whether the activity is the practice of law. Then, it must be determined whether the practice is authorized. If the activity is the practice of law but the activity is authorized, the activity is not the unlicensed practice of law and may be engaged in by a non-lawyer, or non-Florida lawyer.

The test to determine whether a service or activity constitutes the practice of law was provided by the Florida Supreme Court in State Ex Rel. Florida Bar v. Sperry, 140 So.2d 587, 591 (Fla. 1962), J. vacated on other grounds, Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963),, as follows: 

…if the giving of [the] advice and performance of [the] services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law.

Under Florida law, the word “person” includes business entities. When applying this Sperry test it should be kept in mind that “the single most important concern in the Court’s defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation.” The Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980). There is no specific list of activities fully enumerate the unlicensed practice of law; however, Florida Court cases have held the following to constitute the unlicensed practice of law:

  1. Drafting corporate documents (articles, charter, and related documents) for other persons;
  2. Representing other persons in court, arbitration, and government administrative agency hearings;
  3. Preparing or drafting legal documents or forms for others;
  4. Drafting documents to be field in court or administrative or judicial agency;
  5. Modifying documents approved by the Florida Supreme Court;
  6. Holding oneself out as an attorney either expressly or impliedly (including using the titles or initials:  “Esquire”, “J.D.”, “attorney”, “lawyer”); 
  7. Giving any advice on any claims filed, or to be filed in Court or a government administrative or judicial agency;
  8. Helping others select legal documents or forms, or complete legal documents or forms;
  9. Preparing or drafting a contract for sale or purchase of real estate;
  10. Negotiating agreements (whether oral or written) on behalf of others; and
  11. Giving any advice on, or interpretation of any statute, regulation, judicial case, or code.

While this is not an exhaustive list (there are over 230 cases dealing with the unlicensed practice of law), it covers all of the major and common services and activities addressed by the Florida Courts to date.  If the service or activity does not constitute the practice of law, then it can be engaged in without further analysis.  

If you plan to engage in any of the above, or in any activity that you suspect is the practice of law in Florida, the next step in the analysis is to determine if the service or activity is authorized. If authorized, then it is not the unlicensed practice of law and may be engaged in.  The Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980).   Authorization can be strictly service or activity related or person-activity related.  Generally, if the service or activity is not considered to be the practice of law, there is no prohibition to engaging in the activity or service.  Person-activity related authorizations relate to specific authorizations given to specific people, based on their profession, training, or other criteria. For example:

  1. Accountants – accountants are not permitted to draft corporate documents, but are permitted to represent others before the IRS in tax matters because federal law authorizes this activity.
  2. Public Adjusters – public adjusters are not permitted to represent insureds against insurance companies generally, but are permitted to negotiate home property damage issues with insurance companies.
  3. Corporations – a corporation is not permitted to be represented by a non-lawyer, but a corporation may have a non-lawyer represent it in small claims court, if not eviction related.
  4. Non-Lawyers and government – non-lawyers, including non-Florida lawyers, may represent others in federal government agencies if those agencies legally authorize the representation and approves them.
  5. Non-Florida Lawyers – non-Florida lawyers may establish an interstate practice if the attorneys follow the guidelines of The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978). Even then, the non-Florida lawyer’s practice will be limited.
  6. Title Insurance Agents – Title Insurance Agents and other specific classes of persons can prepare certain real estate related forms and agreements.
  7. Law Students – law students or graduates who are not yet members of the Florida Bar may apply to be Certified Legal Interns to represent certain individuals in limited circumstances.
  8. Foreign Legal Consultants – lawyers licensed to practice law outside of the United States can apply to the Florida Bar to become a Foreign Legal Consultant to advise clients on the laws of the bar under which he/she is admitted to practice.  These lawyers are not authorized to provide legal services or activities in any other capacity.
  9. Authorized House Counsel – An attorney licensed in a state other than Florida or a foreign country may work in Florida as Authorized House Counsel for a company if the attorney registers pursuant to Chapter 17 of the Rules Regulating The Florida Bar.

Be careful. If there is any doubt whether a service or activity you are currently engaged in, or plan to engage in, may constitute the practice of law, please let me know and we will provide an analysis specific to that issue for you. You can email me at attorneypersad@cplspa.com or call me at 407-647-7887. 

Tee Persad

Tee Persad

attorneypersad@cplspa.com

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