Right to Counsel - need for a clear record of prior representation

In People v McClean, decided June 10th, the Court of Appeals held that, while right to counsel deprivations are normally reviewable even in the absence of an objection, the record must be clear that there was a deprivation, so a form of preservation requirement sneaks in through the back door.

Here, defendant had spoken to police - in the presence of counsel - about the homicide in question. Three years later, he spoke to them without counsel. The Court of Appeals questioned whether the prior counsel was really representing the defendant on the murder (in which he was a suspect), or merely on the robbery which prompted defendant to co-operate on the murder. The failure of the defendant to make clear at the Huntley hearing that the prior representation was on both matters rendered the question both unpreserved and unclear on the record because “we cannot say that no evidence the People might have presented would lead us to hold otherwise”. This is an interesting formulation, as we also cannot say that no evidence the People might have presented would lead a court to hold that two plus two is a fish stick dipped in custard. Three judges dissented, saying that the attorney who was talking to the police on behalf of the defendant about a homicide and a robbery was representing him on the homicide and on the robbery, and not acting as his lawyer on the robbery and as his personal masseuse and haberdasher on the homicide.

This case also stands for the proposition that if your client is a suspect in a murder, don’t take him to the police to talk about it.

Before Benefits Accrue, Staffing Agency Swiftly Kicks Your Butt To The Curb

"I have been a contract attorney in the SF Bay area for the past 4 years or so. In that time I have worked through approximately 6-7 staffing services. I have noticed that many of them tend to "lose my number" once I have been on project(s) for 4-5 months or so.

Most of these staffing services offer benefits like paid holidays and sick time, but only to workers who have worked over 1000 hours for them. (1000 hours is approximately 6 months of 40 hour weeks.) I have had agencies send me out on projects for a while, but once I get close to the 6 month mark, I suddenly become invisible and never find work through that agency again. Whether it's one longer project or cumulative shorter projects, once I get close to that 6 month mark, the agency never calls again and sends other workers out on projects. There is never any indication of trouble or dissatisfaction with the work I've done, the work just stops.

I don't doubt that staffing agencies would use workers for a pre-determined period of time (up to 4-5 months) and then find new workers to send out on projects so they don't get stuck paying pesky benefits to their workers just because they're legally obligated to do so. I'm just curious whether anybody else has had a similar experience in becoming invisible to staffing services once they approach the benefits date."

How the New Wealth Taxes Will Hit You

We will soon be paying a lot more taxes. According to the new health-care bill that Congress passed in March, new taxes will have to be paid: an extra .9% tax on wages for couples earning more than $250,000 ($200,000 for singles) and a new 3.8% tax on investment income.

What it means for us, ordinary people is that our earnings will be taxes more. For workers, the extra 0.9% levy puts a progressive element in what used to be a totally flat tax. The 3.8% tax on investment income also knocks down a longstanding wall by applying a "payroll" tax to unearned income. Until now, FICA taxes for Social Security and Medicare have applied only to wages, not investment income.

While many details remain unclear and the Internal Revenue Service hasn't issued any guidance, here are preliminary answers to the most important questions taxpayers are asking.

These taxes take effect in 2013, two elections away. Might they be repealed first?

Not likely. "Congress would have to undo the health reform, and budget constraints would still be there," says Clint Stretch of Deloitte Tax. "Even if Republicans take control of Congress, President Obama holds the veto pen until Jan. 20, 2013."

How does the 0.9% tax work?

If Mark and Victoria each earn $175,000, their total employment income is $350,000. Currently they owe 1.45%—$5,075—of regular Medicare tax, and their employers owe a matching amount. In 2013, the couple will owe an extra 0.9%—$900—on their wages above $250,000, which is $100,000. Their employers pay nothing extra.

What about the 3.8% tax on net investment income?

This levy is keyed to "modified adjusted gross income," with a threshold of $250,000 for couples and $200,000 for singles. (This is simply adjusted gross income for nearly everybody except expatriates, who must add back certain exclusions.) The tax is a flat 3.8% on investment income above the threshold.

How would this work?

Example 1: Mark and Victoria, a married couple, have $400,000 of AGI—$200,000 of wages plus $200,000 of investment income. Because they have $150,000 of investment income above the $250,000 threshold, they would owe an extra $5,700.

Example 2: Anne, a single filer, earns $40,000 but has an investment windfall of $190,000, for total income of $230,000. Because she has investment income of $30,000 above her $200,000 threshold, she would owe $1,140 of additional tax.

Example 3: Retirees Mary and Bill have no wages but they do have a taxable IRA payout of $90,000, plus investment income of $150,000, for a total of $240,000. They don't owe the new tax, because they have no investment income above the $250,000 threshold.

What is investment income?

Interest, except municipal-bond interest; dividends; rents; royalties; and capital gains on the sales of financial instruments like stocks and bonds. The taxable portion of insurance annuity payouts also counts, unless it is from a company pension. So do gains from financial trading, as well as passive income from rents and businesses you don't participate in. All are subject to the 3.8% tax on amounts above the $250,000 or $200,000 threshold, as described above.

Not taxed: Distributions from regular and Roth IRAs and other retirement accounts, including pensions and Social Security, and annuities that are part of a retirement plan. Life-insurance proceeds, muni-bond interest and veterans' benefits don't count, nor does income from a business you participate in, such as a Subchapter S or partnership.

Could the 3.8% tax apply to gains on the sale of a home?

Yes, if there is a taxable gain above the $500,000 ($250,000, single) exclusion for gains on the sale of your residence.

Example: John and Jill, who bought their home in a New York suburb for $50,000 in 1972, sell it in 2013 for $1 million. After subtracting the $50,000 cost and $500,000 exclusion, they have investment income of $450,000. If they also have a taxable IRA payout of $70,000 and a pension of $30,000, they would owe the tax of $11,400 on $300,000.

What happens if a taxpayer who owes the new tax on investments also has a large itemized deduction—say, medical expenses or a theft loss?

Even if taxable income is zero because of deductions, he or she could still owe the 3.8% tax. Example: Myra is a single filer with investment income of $100,000 and wages of $200,000. But during the same year she loses $300,000 in a Ponzi scheme. She pays no income tax, but she still owes the new Medicare tax of $3,800 on her net investment income, says Sharon Kreider, a tax expert in Sunnyvale, Calif.

Does the 3.8% tax affect trusts and estates?

Yes, and it can hit them hard. The tax is levied on investment income as low as $12,000 that isn't paid out to beneficiaries. Some believe the tax may also hit children's unearned income subject to the "kiddie tax" if the parents owe it themselves.

What steps would Law Office of Inna Fershteyn recommend to minimize these taxes, other than taking capital gains before 2013 or buying municipal bonds?

• Examine both your regular and investment income: the higher your regular AGI, the more likely that your investment income will be subject to the new tax. So while Social Security and pensions don't count as investment income, they raise AGI. This makes Roth IRA conversions even more attractive for many. "Roth withdrawals don't raise AGI and aren't investment income," says Vern Hoven, a tax expert in Gig Harbor, Wash.

• Reconsider a defined-benefit pension if you're eligible. Pension payouts don't count as investment income, and the older a taxpayer is, the more he can contribute.

• Taxpayers selling assets should consider installment sales,if spreading out the income would minimize the new tax.

• For some, life insurance may become more attractive. Because life-insurance proceeds at death aren't subject to this tax, a taxpayer could buy a policy, borrow from it and settle up at death, avoiding income tax on investment gains within the policy. But Mr. Nash cautions that the savings must outweigh the fees and other disadvantages such policies may have.

Premier NYC TTT Law School Jacks Up The Tuition!

46K a year to attend the Brooklyn Law School Dump and Document Review Training Facility? Is the Dean Joan Wexler freakin out of her mind? For years we have called out this scoundrel and her ilk in the press for their blatant misrepresentation of post-graduate career statistics, and yet they still have the audacity to jack up tuition three times faster than inflation in one of the worst job markets and deflationary environments since the Great Depression. Pure unbridled arrogance and greed!

Art Law class in NYC

Thinking of starting a For-Profit Arts Business? Don't miss this class tomorrow!

Space is still available.

Forming Your For-Profit Arts Business

When: Thursday, June 10th, 2010, 4 - 6 p.m.
Where: VLA, 1 East 53rd Street, NY, NY 10022 (Auditorium)

(There is an additional $10 late fee if you register day of the class. Please fax your registration form in by 2:00 PM on Thursday.)

This class provides valuable information about starting an arts-related business. Covered issues also include: For vs. Non-Profit incorporation, fiscal sponsorship, selecting and protecting business names; the legal and tax characteristics of LLCs an publication requirements, partnerships, and type C and S corporations; choice of jurisdiction; financing your business; employees and independent contracts; and insurance.

This class will be taught by Elena M. Paul, Esq., VLA's Executive Director.

To register and for more information, please see this registration form.
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Since 1969, Volunteer Lawyers for the Arts has been the leading provider of pro bono legal services, mediation services, educational programs and publications, and advocacy to the arts community in New York. The first arts-related legal aid organization, VLA is the model for similar organizations around the world. For more information about Volunteer Lawyers for the Arts, please see www.vlany.org.

Georgetown Law Grad Arrives At Simpson Thacher Covered In Defecation

A van with "Georgetown Admissions" painted on the side was apparently last seen riding around McPherson Square canvassing for homeless.

"We haven't had a continuation of the awful people you can meet on projects recently, so I figure I'd send this gem along. I finished a project about 2 weeks ago and I had overheard a story about one of the coders not more than a few feet from me. Apparently this gentlemen came in one day with shit on his pants and his shoes. When he realized the awful stench of feces was coming from his person, he went right on and continued coding as if nothing was wrong. He eventually "tried" to go clean himself up (after he was coaxed and almost mocked into doing so, even by the project manager), but for the rest of the day he stayed soiled. Can you believe that some people wouldn't even have the decency to go buy another pair of pants or, God forbid, go home for the day so as to not subject others to his lack of cleanliness?"

Lowenstein Sandler

TTT,

Forewarn your readers about this dump! The recruiters are fishing around to staff another project here and will lie to your face about how great it is. They claim it is a short commute from NYC, but when you get here you will find yourself in a dangerous ghetto in the outskirt bowels of New Jersey. The guy that runs the place is a major league class act asshole. He brags about taking MBA seminars to make the place more "efficient" which means that there is no talking, cell phones, or internet. If you can't stand the misery or nausea that you develop after working at this dump after a week and decide to jump ship, the agency will blacklist you FOREVER! STAY AWAY, STAY FAR AWAY!