One of the most important things within the attorney-client relationship is confidentiality. Once said relationship is set in motion, the attorney is bound to keep everything the client says to him/her in confidence. They can’t go blabbing to their neighbor or best buddy as to what you talked about during your meeting. They can’t discuss the finer points of a conversation they had with a client over a quiet dinner with their spouse. And in this day in age, they most certainly can’t go on their Twitter and/or Facebook account and post a witty remark about the inner workings of your relationship.
Bound by the rules of ethics, an attorney is required to keep everything that is discussed within the confines of the attorney-client relationship confidential. To do this, said relationship must first be established. For example, if an attorney is talking with a friend about something personal and the attorney then “gossips” about the conversation to another friend or colleague, confidentiality is not broken because no actual attorney-client relationship between the parties was formally established. For confidentiality to exist, the attorney and client have to have a “meeting of the minds” and voluntarily enter into such a relationship. If not, anything you say to an attorney can and will be used against you, so to speak.
The rules of confidentiality also do not apply when a third party is present. Here, whatever is divulged to the attorney cannot be considered confidential because of the presence of the third party. If the third party is also a client that is involved in the same case, such as a husband and wife, then confidentiality would be back on the table. However, if a dispute were to arise between the husband and wife based off of what was said in confidence between them and the attorney, the attorney would not be bound to keep things in confidence in favor of one spouse over the other.
If a client discloses to their lawyer that they are going to cause harm to another individual, the lawyer in this scenario is not bound by the attorney-client relationship in terms of confidentiality and may notify the proper authorities to prevent said act.
Similarly, if a client tells their lawyer that they have intentions on hurting themselves, such as committing suicide, the lawyer is not bound in confidence and may alert the proper authorities.
While it is true that the attorney-client relationship allows the client to speak their mind without the stress and fear that their disclosure will end up in tomorrow’s “headlines,” there are numerous times when lawyers do not have to take the information “spilled” upon them to the grave. When talking to a lawyer and it is your wish to keep things secret and off their Facebook and Twitter feed, be certain an iron clad attorney-client relationship exists. Make sure nobody else in the room and don’t make mention of any intention to harm yourself or anyone else. If all of this is properly done, your attorney will then be ultimately required to take your deepest, darkest secrets to the grave.
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
www.carbonelawgroup.com
www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
Wednesday, July 28, 2010
Thursday, July 22, 2010
Did somebody say Hearsay?
We’ve all heard of the term “hearsay” but what does it really mean? In the legal vernacular, hearsay is defined as an out of court statement (oral or written) by a person (referred to as a declarant) offered to prove the TRUTH of the matter asserted. In other words, a person can testify that they saw somebody run a red light and attempt to have that testimony offered as actual PROOF that the person in question in fact ran the red light. Another example would be if a declarant testified that they saw a man shoot another man with a pistol. Here, the declarant’s testimony cannot be admitted solely for the purpose of TRUTH that the man in question actually committed the shooting.
Confused? Don’t worry. Even the mightiest of lawyers around the globe have trouble differentiating what is and is not hearsay. Most times, when an attorney yells “objection!” during a trial, they are referring to a violation of the hearsay rule. Unless an exception exists, standard hearsay is inadmissible in court.
The exceptions to the hearsay rule is where all the fun is at. Whether a statement is or isn’t hearsay will depend upon the PURPOSE for which it is offered. The keyword here is PURPOSE. Many out of court statements (such as a piece of a conversation between parties) may look like hearsay at first glance, but are not to be considered hearsay if said statements are NOT offered to prove the truth of the matter asserted in the statement.
Statements made that go on to show things other than truth are often deemed admissible and therefore are not to be classified as hearsay.
The top ten most common exceptions to the hearsay rule are as follows:
Party Admission
Former Testimony
Forfeiture by wrongdoing
Statement against interest
Dying declaration
Excited utterance
Present sense impression
Statement of then-existing mental, emotional, or physical condition
Statement for purpose of medical treatment or diagnosis
Business and public records
These exceptions apply because TRUTH is not being offered when testimony is given and therefore are not to be considered hearsay.
The main reason why statements that are considered hearsay are not allowed in court is because they are simply not reliable. Often times it is one person’s word against another and therefore the truth of the matter asserted cannot be established on those statements alone.
Without the hearsay rule, trials would become one big finger pointing “he said, she said” accusation-laced free for all. As The X-Files’ Agent Fox Mulder once said, “The truth is out there.” The hearsay rule helps us get there.
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
http://www.carbonelawgroup.com/
www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
Confused? Don’t worry. Even the mightiest of lawyers around the globe have trouble differentiating what is and is not hearsay. Most times, when an attorney yells “objection!” during a trial, they are referring to a violation of the hearsay rule. Unless an exception exists, standard hearsay is inadmissible in court.
The exceptions to the hearsay rule is where all the fun is at. Whether a statement is or isn’t hearsay will depend upon the PURPOSE for which it is offered. The keyword here is PURPOSE. Many out of court statements (such as a piece of a conversation between parties) may look like hearsay at first glance, but are not to be considered hearsay if said statements are NOT offered to prove the truth of the matter asserted in the statement.
Statements made that go on to show things other than truth are often deemed admissible and therefore are not to be classified as hearsay.
The top ten most common exceptions to the hearsay rule are as follows:
Party Admission
Former Testimony
Forfeiture by wrongdoing
Statement against interest
Dying declaration
Excited utterance
Present sense impression
Statement of then-existing mental, emotional, or physical condition
Statement for purpose of medical treatment or diagnosis
Business and public records
These exceptions apply because TRUTH is not being offered when testimony is given and therefore are not to be considered hearsay.
The main reason why statements that are considered hearsay are not allowed in court is because they are simply not reliable. Often times it is one person’s word against another and therefore the truth of the matter asserted cannot be established on those statements alone.
Without the hearsay rule, trials would become one big finger pointing “he said, she said” accusation-laced free for all. As The X-Files’ Agent Fox Mulder once said, “The truth is out there.” The hearsay rule helps us get there.
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
http://www.carbonelawgroup.com/
www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
Monday, July 12, 2010
Legal Movies You Can Learn From
My mother always told me as a kid that I watched too much TV. She was absolutely correct. However, I believe that every so often, television and movies do a fine job in illustrating certain real life situations and are pretty accurate in their depiction.
There have been several legal based films over the years that I feel do a great job in presenting legal issues in a realistic manner.
One movie right off the bat that is a great introduction into the legal field is the 1972 classic The Paper Chase. There was a spin off TV show by the same name, but I am referring to the movie. This film really does a great job in depicting the life a first year law student. It may appear a bit out of date, but the basic core structure of law school today is still in tact. Students are often “reborn” when they begin law school. Everything they learned in college is out the window, so to speak as students are abruptly forced to adapt to a whole new way of learning. As always, there are those who flawlessly make the transition, but again, they are in the minority.
Another great legal drama is A Few Good Men. This Tom Cruise classic really shows how experience can sometimes be tossed aside in favor of tenacity and sheer dedication. A lot of good trial techniques were exposed in this film. I wouldn’t go so far as to say everything in the film is true to real life, but all in all, it’s a good depiction of trial procedure. For the record, I have yet to have a witness tell me I couldn’t handle the truth.
A Time to Kill is also a great movie in terms of watching a trial unfold. In this film, pure passion and emotion came into play more so than the actual law. Sometimes presenting the law isn’t enough. The attorney needs to “sell it” and speak from the heart. This movie did a great job in depicting how raw emotion comes into play while conducting a trial.
As discussed in one of my previous blogs, My Cousin Vinny is a great legal film that a person can pick up useful pointers from. In fact, my Evidence professor in law school said that comedy aside, this movie really does a fantastic job in demonstrating how the rules of evidence are played out during a trial.
The films A Civil Action and Erin Brockovich specifically focus on environmental law and were based on a true story. These movies show how the negligent actions of big companies can have a serious adverse affect on the average American citizen.
Certain aspects of the countless Law and Order television shows along with other legal dramas and “dramadies” such as The Practice and Boston Legal also serve up a decent quasi-legal lesson from time to time as well.
I often wonder what I would have become if I skipped watching re-runs of Night Court.
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
http://www.carbonelawgroup.com/
www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
There have been several legal based films over the years that I feel do a great job in presenting legal issues in a realistic manner.
One movie right off the bat that is a great introduction into the legal field is the 1972 classic The Paper Chase. There was a spin off TV show by the same name, but I am referring to the movie. This film really does a great job in depicting the life a first year law student. It may appear a bit out of date, but the basic core structure of law school today is still in tact. Students are often “reborn” when they begin law school. Everything they learned in college is out the window, so to speak as students are abruptly forced to adapt to a whole new way of learning. As always, there are those who flawlessly make the transition, but again, they are in the minority.
Another great legal drama is A Few Good Men. This Tom Cruise classic really shows how experience can sometimes be tossed aside in favor of tenacity and sheer dedication. A lot of good trial techniques were exposed in this film. I wouldn’t go so far as to say everything in the film is true to real life, but all in all, it’s a good depiction of trial procedure. For the record, I have yet to have a witness tell me I couldn’t handle the truth.
A Time to Kill is also a great movie in terms of watching a trial unfold. In this film, pure passion and emotion came into play more so than the actual law. Sometimes presenting the law isn’t enough. The attorney needs to “sell it” and speak from the heart. This movie did a great job in depicting how raw emotion comes into play while conducting a trial.
As discussed in one of my previous blogs, My Cousin Vinny is a great legal film that a person can pick up useful pointers from. In fact, my Evidence professor in law school said that comedy aside, this movie really does a fantastic job in demonstrating how the rules of evidence are played out during a trial.
The films A Civil Action and Erin Brockovich specifically focus on environmental law and were based on a true story. These movies show how the negligent actions of big companies can have a serious adverse affect on the average American citizen.
Certain aspects of the countless Law and Order television shows along with other legal dramas and “dramadies” such as The Practice and Boston Legal also serve up a decent quasi-legal lesson from time to time as well.
I often wonder what I would have become if I skipped watching re-runs of Night Court.
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
http://www.carbonelawgroup.com/
www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
Monday, July 5, 2010
Where there’s a Will there’s a Way
As I’ve said in a previous blog, everyone should have a will. It doesn’t matter if you have Bill Gates money or if you are living paycheck to paycheck. Having a will securely in place provides financial stability and piece of mind.
Contrary to popular belief, one does not have to take the time and itemize every single item or artifact they have acquired through his or her lifetime. All one has to do to ensure their loved ones inherit their worldly possessions is to set up what is commonly referred to as a “simple will.” It’s simple because it is direct and to the point. There is not a lot of lugubrious language that makes things complicated and verbose. Instead, a simple will is typically crafted to make sure the spouse of the testator (person who dies leaving a will) receives all their personal and real property. Bluntly put, the spouse gets it all. They get the house, the cars, the golf clubs, the jewelry, you name it. The testator does not have to specifically name each and every item.
Also found in a typical simple will is language naming another party as substitute beneficiary. This is in case both husband and wife die simultaneously. In this case, both spouses are deemed to have pre-deceased each other and the other named beneficiary or beneficiaries in the will get all of their personal and real property. These beneficiaries are usually the children, grandchildren, or other close relatives.
If one wishes a specific individual to receive a specific item, such as an old family heir loom, this item would then need to be specifically mentioned in the will and so on.
I would like to mention that one does not have to be married to create a simple will. The basic structure still applies.
In terms of executing a will, this is also simple, pun intended. In New York State, a will needs to be witnessed by 2 non-interested parties. Once this is done, keep the will in a safe place, such as a safe, lock box, or something of that nature. These types of wills take relatively little time to have drafted up and are reasonable in terms of attorney fees.
By taking the time to put a will of this nature in place, an individual is ultimately putting themselves and more importantly their loved ones in a more safe and opportune financial situation.
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
www.carbonelawgroup.com
www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
Contrary to popular belief, one does not have to take the time and itemize every single item or artifact they have acquired through his or her lifetime. All one has to do to ensure their loved ones inherit their worldly possessions is to set up what is commonly referred to as a “simple will.” It’s simple because it is direct and to the point. There is not a lot of lugubrious language that makes things complicated and verbose. Instead, a simple will is typically crafted to make sure the spouse of the testator (person who dies leaving a will) receives all their personal and real property. Bluntly put, the spouse gets it all. They get the house, the cars, the golf clubs, the jewelry, you name it. The testator does not have to specifically name each and every item.
Also found in a typical simple will is language naming another party as substitute beneficiary. This is in case both husband and wife die simultaneously. In this case, both spouses are deemed to have pre-deceased each other and the other named beneficiary or beneficiaries in the will get all of their personal and real property. These beneficiaries are usually the children, grandchildren, or other close relatives.
If one wishes a specific individual to receive a specific item, such as an old family heir loom, this item would then need to be specifically mentioned in the will and so on.
I would like to mention that one does not have to be married to create a simple will. The basic structure still applies.
In terms of executing a will, this is also simple, pun intended. In New York State, a will needs to be witnessed by 2 non-interested parties. Once this is done, keep the will in a safe place, such as a safe, lock box, or something of that nature. These types of wills take relatively little time to have drafted up and are reasonable in terms of attorney fees.
By taking the time to put a will of this nature in place, an individual is ultimately putting themselves and more importantly their loved ones in a more safe and opportune financial situation.
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
www.carbonelawgroup.com
www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
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