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Matthew Scott Berkus

Matthew Berkus’s Answers

6,366 total

  • What must a lawyer provide to his replacement when a client changes lawyers?

    We're not satisfied with the competency or responsiveness of our parents' current lawyer, who drew up their most recent wills, POA's, and Trust docs. If we change lawyers, what must he forward to his replacement vs what might be considered his fi...

    Matthew’s Answer

    Generally, any document in the lawyers position that is considered part of the client "file" must be turned over. However, items like the attorney's notes and work-sheets, working documents and software etc. would not be turned over. I don't know nor believe you can requests a specific digital format. I would consider "word" version of documents to be working documents. The client is entitled to the final draft which would either be in PDF format or hard copy (that is industry standard). Plus, your new attorney isn't going to crib off another attorney's work anyway, he may look at the prior documents, but the new attorney (if they are any good), would create new documents.

    State's do vary on these requirements.

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  • How to prepare for eventual backlash from school hair color policy

    My daughter has been wanting to dye her hair for awhile now. Nothing major, six small bit of hair in the color of the rainbow so they can be twisted into a braid and hang off the side of her face. The total hair would be about the size of a fing...

    Matthew’s Answer

    You dye her hair back to a normal color before school starts. That's it. There is no fight here, she either complies or she doesn't, if she doesn't, there will be consequences (being sent home, etc.).

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  • What evidence do we need to prove unsafe environment for my niece at her mothers house from stepfather

    abuse neglect

    Matthew’s Answer

    This question can't be answered in the abstract. Evidence is simply assertion of fact. The most common way to illicit evidence is witness testimony. You would need a witness to testify in court to whatever facts that support your conclusion that abuse and neglect are taking place.

    You should get an attorney to handle the case...if the situation is that serious, a diligent person finds a way to hire an attorney, not having an attorney creates a subconscious beleif that your assertions are suspect.

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  • What does "work performed by me will be retained as work product" mean?

    I requested a copy of our entire file and a refund from our immigration attorney. He said he would send all personal documents, government receipt notices and letters. Since a refund is being issued, work performed by him would be retained as w...

    Matthew’s Answer

    Work product is also what the attorney produced as part of representation. For example, if you were involved in a court case and the attorney drafted a motion to dismiss, but you fired him before it was filed with the court, that is attorney work product; unless you paid for it, you don't get it. A client doesn't get to benefit from an attorneys work unless they pay for it.

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  • Re: my previous question

    I am concerned that if I precede with legal recourse the company can just file bankruptsy

    Matthew’s Answer

    We don't have a way of tracking your questions, so, you referencing your "previous" question doesn't help because we have no way of identifying that question. You need to include a link.

    In general, bankruptcy would create a problem in collecting, but companies don't typically file BK on a whim. If you are owed money, you keep trying to collect until or if they file BK.

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  • Rear ended by a car that was rear ended by a delivery truck. classic whiplash & bumper damage. worth seeking counsel?

    stopped at a red light, car behind me was also stopped. Fed Ex truck hit that car, hard, which then hit mine. having neck pain and headache. Been to the doc and have been put on a treatment plan. Failed a concussion test on the first try, bare...

    Matthew’s Answer

    If there is physical injury involved, even if the injury is relatively minor (not just damage to the car), then you want to get an attorney, otherwise, the insurance company is going to low ball you and only pay for the the one or two doctors visits you already had and not compensate for any future medical.

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  • Can I sue a Dr. for false accusations of elderly neglect?

    Father lives with me since a stroke. Took him for check up(last one was 7 months). He was 15 lbs lighter and Dr. claimed dehydrated. With no word to anyone he calls the cops and APS, had an ambulance take him to hospital where Dr. there did all th...

    Matthew’s Answer

    The doctor's opinion is not false (nor true), it was his professional opinion and he/she took action. I am sorry this happened to you, it doesn't sound like a viable lawsuit. You can't really sue people over good faith opinions and that is likely what a court would find.

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  • Does a Tax Lien from the IRS or state protect me from other creditors?

    I owe a large amount of money to the IRS, around $20k. I am on an installment agreement with both the IRS and State of Colorado. I was told that I would have a tax lien filed against me because of the amount I owe. I also have several credit cards...

    Matthew’s Answer

    Tax liens don't work that way. You won't have the protection as you describe it. If you are on a voluntary installment agreement with the IRS and CO DOR, your wages are fair game to another creditor who sues you and obtains a judgment. If the IRS was garnishing (levying) your wages, that is different; but an installment agreement is not a wage levy (even if the installment agreement is directly debited from your paycheck).

    If those are the debt issues you are facing, probably time to consider bankruptcy. If the taxes are old enough, you may be able to off-load a portion of your tax debt in the process.

    So, the direct answer to your question, YES, another creditor can garnish your wages notwithstanding the existence of the tax lien.

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  • What is the jurisdiction? Where do I file, Colorado or California?

    I purchased camera equipment on a credit card registered to me and my Colorado address. The equipment was sent to a California address. The individual who was in agreement to pay for the gear has not paid anything since the initial payment. I am...

    Matthew’s Answer

    I am not sure I quite understand the facts here. Let me see if I can clarify.
    1. You live in Colorado
    2. Your purchased camera equipment and used your credit card.
    3. However, you were purchasing the equipment for someone else (let's just call them "friend")
    4. The camera equipment was sent to friend in California.
    5. You have some sort of agreement (do you have it in writing?) with friend that the friend would pay you back?

    That is a somewhat complex analysis. The default rule is that you generally sue someone where they reside. The issue is having the court be able to exercise jurisdiction (power) over the defendant. Your underlying claim (appears to be) a breach of contract claim. You had an agreement with Friend whereby you would purchase and pay for camera equipment for friend and friend would pay you back. The jurisdiction question is, where is that contract considered to be executed, no way to tell based on the facts you presented. It is safer to sue in CA, or more certain. If you sue in CO, you run a substantial risk that a CO court won't have jurisdiction over hte defendant.

    As a practical matter, it would probably be more beneficial for you to sue in CA. Reason being, if you sued in CO and got a judgment, you still need to take that judgment to a CA court to have it recognized (domestic the judgment in CA) before you can do anything (seize the equipment, garnish wages, levy bank accounts, etc). You are going to end up in CA court anyway, so you might as well start there. You can definitely sue in CA, the more suspect position is whether you can validly sue in CO.

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  • I am a lawyer - I need advice from fellow attorneys regarding the ethics rules.

    I have my own solo practice. A friend of mine wants to become a debt collection business (he's purchasing debt, getting the license and the bond). He's asked me to be his litigator on cases that he needs to collect from. He's offering me 50% of wh...

    Matthew’s Answer

    Keep things separate and simple. The most straight-forward way to do this is to have the LLC a client of your firm and execute a contingency fee agreement. You don't want to be a member of the LLC, that creates all kinds of liability issues, tax issues, employment issues, and potential ethical issues.

    As a practical matter, make sure your fee agreement is clear about how funds will be handled. From a business perspective, you want to keep control of the funds (in your client trust account) and then automatically deduct your fee at the same time as you make a disbursement to the client. Also, you may want to stipulate that any funds collected will be held for 91 days prior to disbursement. Reason being, there is a high risk that the debtors will file bankruptcy at some point, and funds collected within 90 days of filing the BK are considered preferential payments, and subject to disgorgement back to the BK trustee and/or debtor.

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