Wednesday, June 24, 2015

Radio Program: June 23, 2015 "Locating and Collecting Hidden Assets"

June 23, 2015: Attorneys Kevin P. Rauseo and J. Daniel Marr discuss "Locating and Collecting Hidden Assets".

Tuesday, June 16, 2015

Hamblett & Kerrigan Lawyers Named Among Boston’s Top Rated Lawyers

Hamblett & Kerrigan is pleased to announce that four of its attorneys were named among Boston’s Top Rated Lawyers of 2015 in Legal Leaders publication of 2015 and Legal Leaders publication recently included in The Boston Globe and The Wall Street Journal. The attorneys included in the 2015 recognition are Joseph W. Kenny, Esq., J. Daniel Marr, Esq., Kevin P. Rauseo, Esq., and Paul D. Creme, Esq. Each of the attorneys were recognized for their commitment to providing quality legal services and maintaining a high standard of ethics and professionalism.

When asked about the recognition, J. Daniel Marr, who is the firm’s Managing Director, stated “Hamblett & Kerrigan has a long tradition of providing quality legal services to its clients. We pride ourselves on providing Boston-quality legal services, but without the high Boston legal rates. Our attorneys are committed to continuing the long tradition started by Charles Hamblett over a century ago.

View a copy of the Legal Leaders publication here. Joseph W. Kenney is mentioned on pages 74 and 76, J. Daniel Marr is mentioned on pages 34 and 45, Kevin P. Rauseo is mentioned on pages 41 and 65, and Paul D. Creme is mentioned on pages 28, 54 and 55.

Please check out our attorneys on our website or call us at (603) 883-5501.

Wednesday, June 10, 2015

REDUCED SALARY IS LEGAL WHEN DONE PROPERLY

Small startup companies often have a situation where they may have cash flow problems and need to reduce pay of their salaried executives until the finances get better. Under New Hampshire law, RSA 275:43-b(I) a salaried employee is to receive full salary for any pay period in which the employee performs any work without regard of the number of days worked with certain exceptions. This does not mean that salaried employees’ wages can never be reduced. The key is to provide notice to the employee of the change in the salary prior to the pay period upon which this salary reduction applies. Under New Hampshire law, any paid compensation changes must be in writing, yet, if it is proven that the employee did get notice of the reduction in salary before the pay period, even though it was not in writing, the reduction may still be legal. Nevertheless the law requires written notice and a written notice provides much better proof if later challenged by a disgruntled employee.

The company should also clarify in writing whether or not the salary reduction is intended to be a deferral of the unpaid portion of the salary and if so under what financial criteria will the deferred salary be paid. Once that financial criteria is met, that deferred salary is now wages due under the law. However, if the company intended to reduce the salary for a certain period and not to pay the difference in the future, so long as it gave clear written notice of that reduction before the pay period, then that unpaid salary should not be determined owed to the employee if he filed a wage claim before the New Hampshire Department of Labor. If a company decides to reduce the hours of a salaried executive and correspondingly cut his/her salary, it would be very prudent to provide the executive written notice that he/she signs of the change in the work schedule and the change in the weekly salary so that the salaried executive who would otherwise be exempt from overtime pay of time and a half is not later considered subject to overtime payments once business picks up and that executive starts working well over 40 hours a week.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.

Tuesday, June 9, 2015

Radio Program: June 9, 2015 "Alternatives to a Divorce Trial"

June 9, 2015: Attorneys Kevin P. Rauseo and J. Daniel Marr discuss "Alternatives to the Divorce Trial".

Monday, June 8, 2015

NEW HAMPSHIRE SUPREME COURT CARVES UNUSUAL EXCEPTION TO STATUTE OF LIMITATIONS

All civil claims brought in New Hampshire are subject to a statute of limitations. The statute of limitations is a deadline that is intended to bar old or stale claims from being filed. Most civil claims, but not all, are subject to a 3-year state of limitations. The 3-year clock starts to run the moment the plaintiff realizes, or in the exercise of reasonable diligence, should have realized that they have been injured or damages by the defendant’s conduct. Once that 3-year clock has expired, any claim against the defendant will most likely be barred.

On May 15, 2015, the Supreme Court issued an opinion in the case called Conant v. O’Meara. In Conant, the plaintiffs hired an attorney, Timothy O’Meara, after Mr. Conant’s wife, Anita, was severely injured in an automobile accident in Pennsylvania. Shortly after filing suit, the parties disputed how much O’Meara was to be compensated for his services.

This dispute was exacerbated when the plaintiffs discovered that the defendant in the automobile accident case only had $11,000,000 of insurance coverage, but that Anita needed $23,000,000 to sustain her for the rest of her life. To further complicate matters, the Conants believed that Attorney O’Meara made an unauthorized demand to settle the case for the $11,000,000 of insurance coverage.

After a heated discussion between Attorney O’Meara and his clients, it appears that Attorney O’Meara agreed to reduce his fee. At a settlement conference and the case resolved for $11,500,000 and Attorney O’Meara was to receive $750,000 up front and $1,250,000 would be held in escrow and arbitrated as to how it should be divided. On March 2009, an arbitration panel divided the $1,250,000 roughly 2/3 to O’Meara and 1/3 to his clients.

The Conants filed a complaint with the Attorney Disciplinary Office which culminated in a decision on September 18, 2012 that disbarred Attorney O’Meara. The Supreme Court, in its disbarment order, concluded that Attorney O’Meara lied under oath when he testified at the 2009 arbitration hearing regarding his entitlement to a $2,000,000 fee.

On October 17, 2012, the Conants filed an action against O’Meara to disgorge the fees. The trial court found that Attorney O’Meara had violated his fiduciary responsibilities to the Conants and ordered that his fees be returned. Attorney O’Meara appealed arguing that the 3-year statute of limitations had expired when the Conants filed their lawsuit in October 2012.

On appeal, the New Hampshire Supreme Court held that the 2009 arbitration decision could not stand as binding the Conants to the fee distribution because it was procured by Attorney O’Meara’s fraud; namely his lying to the arbitrators regarding an alleged agreement to reduce his fee to $2,000,000. More importantly, the Supreme Court held that an action that essentially sets aside a prior decision for fraud may not be bound by the statute of limitations; finding that there is a universally “recognized need for correcting injustices, which in certain instances are sufficiently a gross and demand a departure from the rigid adherence to the [statute of limitations].”

However, the watch word is that the fraud must be exceptionally egregious. It is not fraud that was obtained simply because a witness is possibly guilty of perjury. Rather it must be shown that the fraud was a deliberately planned and executed scheme to defraud the court such that the “judicial machinery cannot perform in the usual manner as a partial of adjudicating cases.” In the O’Meara case, the fraud was perpetrated by an attorney who deliberately lied to the arbitration panel regarding his entitlement to a $2,000,000 fee.

Again, this is a very narrow exception to the statute of limitations defense and in the Conant case was applied due to particularly egregious conduct by an attorney. The unanswered question is where is the dividing line between what is “garden variety” fraud and fraud sufficient to impact the impartial function of a judiciary.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at apiela@nashualaw.com.