How you could be waiving attorney client privilege without knowing it

Most people have heard of "attorney-client privilege".  To oversimplify the privilege, any communications you have with your attorney are confidential and are therefore, inadmissible in court.  This means, typically, if you confess to a crime to your attorney, that is confidential information that cannot be revealed.  Attorney client privilege is an important aspect of legal representation and that privilege should be closely guarded by both clients and attorneys.

Attorney client privilege, however, is only a privilege as long as you do not waive that privilege.  You waive that privilege when you share that information with a third party. That means if your mom is in the room when you tell your attorney something, you may be waiving that privilege as to anything you say.  That also means if you've told your mom the same information you told your attorney, that information is no longer covered by attorney client privilege. 

You may be waiving attorney-client privilege without even realizing it.  Do you use gmail as your email provider?  Have you heard the recent news that gmail "scans" all of their emails?  Have you ever read the entire agreement for your email provider (you know that long agreement after which you clicked the little box that said "Yes, I agree to those terms")?  Did you know that many of these free email providers include in those terms that they can hand over any of your emails to anyone they please at anytime?  This is not to say you can never use that email to communicate with your attorney.  You just need to be aware of the fact that  any information you convey in those emails could possibly be used against you; be careful.

On a similar side note, keep all of this in mind if you use social media during the time you have legal representation.  Anything you post on social media (i.e. facebook), can and likely WILL be used against you.  Ask your attorney for advice on whether or not you should be using social media and if so, to what extent, during legal procedings.  

Annulment v. Divorce

So your marriage isn't working out, how do you know if you should pursue an annulment or a divorce?

The grounds for an annulment are significantly narrower than grounds for a divorce.  To oversimplify things for the purposes of this post, an annulment basically voids the marriage like it never existed.  A divorce simply terminates the marriage.  Most of the time, people who are seeking to get out of a marriage are going to go down the divorce path rather than pursue an annulment.  However, there are situations in which an annulment may be appropriate. 

In oversimplified terms, the grounds for annulment are: if there was no marriage license, if either party was still married to another person, marriage between a brother and sister, marriage between an uncle/niece type relationship, marriage when either party is under 18, lack of consent (because of mental incapacity or infirmity), if either party was a convicted of a felon and the other did not know, if wife was pregnant with another man’s baby and husband did not know or vice versa, if either party had been a prostitute without the other knowing, fraud, duress.  If after obtaining knowledge of any of the above, the parties continue to live together and/or act as a married couple, annulment will likely not be an option. 

Divorce, on the other hand, can be decreed for a multitude of reasons including that the parties simply had irreconcilable differences and separated (though there are minimum separation requirements prior to obtaining a divorce on this ground).  Divorce is typically a longer process and may be more complicated, though not necessarily.

If you are unhappy in your marriage and are looking to terminate it, consult with an attorney to determine the best possible process for you to pursue. 

Pondering divorce? May want to meet with an attorney ASAP

Are you pondering a divorce?  If you are seriously thinking about divorcing your spouse, you may want to meet with an attorney as soon as possible.

Meeting with an attorney is confidential and by no means translates into having absolutely decided to divorce your spouse.  During you decision making process, an attorney can provide a great deal of guidance and advice relating to not only the divorce process, but also the effects after the divorce, the timing of leaving your spouse, the manner of leaving your spouse, etc.

It is at this time, the decision making process and the initiating of the divorce, that many people make mistakes that can hurt them legally during the divorce process.  An attorney can help you determine how to "separate" depending on your financial situation, the incomes of you and your spouse, your children's situations, etc. so that you are protecting your legal rights down the road.  For instance, you may not want to leave the marital residence if that is where your children are residing, depending on the totality of the circumstances.  You also may believe you can't afford a divorce financially.  An attorney can help you understand your different options to determine if there is a way to afford a divorce.   Another example: if you leave your spouse, you may be setting yourself up for your spouse to divorce you based on desertion (again, depending on the totality of the circumstances).

Attorney's are not just there for the actual divorcing of you and your spouse, they can help you prior to your separation, during the separation and divorce, as well as after the divorce.  If you are contemplating a divorce, you may be smart to go ahead and meet with an attorney who can help you navigate this tough time. 

Theories of Sentencing

A crime has been committed.  The defendant has been charged, tried and convicted.  The next phase: sentencing.  How should this person be punished?  What do we hope to obtain from their sentence?  Why do some people, who are convicted of similar crimes, have such drastically different sentences?

Sentencing, in Virginia and similarly throughout the country, is based on four main theories.  Deterrence, Incapacitation, Punishment and Rehabilitation are all typically considered when determining what a person's sentence should be.

Deterrence - This is meant to deter future crimes by not only this individual person, but also others who may be enticed to commit the same or similar crime in the future.  We, as a society, at least theoretically, want to make sure the sentence deters that individual and other individuals from committing that type of crime in the future.  We want to reduce crime in general in our society.

Incapacitation - This is meant to deter future crimes as well.  We want, again at least theoretically, to remove this individual from society to ensure that this individual does commit crimes in the future.  This begs the question, in my opinion, when is it ever time to allow this individual to return to society?  How do we know we have incapacitated him for long enough?  Nevertheless, this is to be considered when crafting a sentence for a criminal defendant.

Punishment - This is simply meant to punish the individual for the crime committed.  What degree of crime was it? Did they kill someone?  Did they injure someone?  Did they steal $5 or $50,000?  Should this make a difference as to sentence?  Society has determined over time certain crimes they think are more heinous than others and therefore, warrant a harsher sentence.  In large part, although not exclusively, this is played out through the punishment theory.

Rehabilitation - This is meant to help an individual become a "better person" and reduce the likelihood that they will commit crimes in the future.  Some say that not all criminal defendants can be rehabilitated.  Some criminal defendants, however, such as criminal defendants who are addicted to drugs, can be rehabilitated through services such as therapy.

All four of those theories are the basis for crafting sentences in Virginia.  Some apply to a certain criminal defendant than others but all should be considered and addressed by your attorney in a sentencing hearing. 

If you have been charged with a crime, seek the advice of counsel as soon as possible to ensure your rights are protected throughout the entire process. 

Driving and texting - A primary offense

So I'm sure you've all heard that it is now against the law to text while driving; this includes reading emails, by the way.  However, it's not against the law to use your phone as a GPS or to dial a phone number.

First of all, it has been against the law to do these things for quite some time now.  Previously, it was a secondary offense - meaning you could not get pulled over just for texting and driving; you had to be breaking the law in another way as well.  Now, it is a primary offense - meaning if a police officer has reasonable suspicion that you are texting while driving, you can be pulled over.

The big picture is this: there is another offense out there which police officers only have to have reasonable suspicion to pull you over for.  This could lead to much more serious charges once you have been stopped on the basis of reasonable suspicion, but that issue is for another day.

The short term picture is this: how will police officers prove that you were texting or emailing and not dialing a phone number?  Even more interesting, how could they prove you were reading an email?  It's not as if they can pull up the halfway typed text message?  Is it enough to show you have a recent email or text to say that you were reading that on your phone?  That cannot be the case.  But then, how will they prove these types of offenses?  The answer to that question, I do not know but I suspect we will find out in the near future as more and more of these cases go to court and the Commonwealth has the burden to prove their case.

Either way, it is still illegal to text or email on your phone while driving.  And all the police officer needs to pull you over is reasonable suspicion that that's what you were doing.  If you are charged with a violation of this law, you should seek the advice of an attorney prior to your court case to ensure your rights are protected. 

Virginia as a Right to Work State

Virginia, as you may know, is a "Right to Work" state.  The term can have a complicated root and definition but for the purposes of this article, it means in Virginia, you can terminated from your job for no reason at all.  This means that tomorrow morning your boss could decide, for no reason, to fire you.  You would have little, if any, recourse in that situation (although you should always consult with an attorney regarding your specific circumstances).

Although you can be terminated for no reason at all, you still cannot be terminated for improper reasons.  This means you cannot be terminated due to your race, age, national origin, gender, etc.  The problem with this is that it becomes very difficult to prove that you were terminated for an illegal reason because your employer does not have to have any reason at all to terminate you.

If you have been terminated from your job, speak with an attorney as soon as possible to determine what rights you may have. 

Why Should You Set Up A Trust?

There are many, many types of trusts but for the purposes of this post we are talking about simple trusts, either created by you during your lifetime or created upon your death through your will (see earlier posts regarding wills).

An inter vivos trust, or living trust, is created while you are living.  This is simply set up for you to transfer your property to.  The trust will have a trustee, who controls all of the property in the trust, and a beneficiary.  You many want to set this up for a couple of reasons; the biggest reason is to save your family the trouble of dealing with the probate process upon your death.  Trusts are also more difficult to challenge than a will, though certainly not impossible, and may be a good idea if you expect someone to challenge your will.  Keep in mind, however, trusts can be expensive to maintain and will have certain tax consequences that you should consider prior to creating a trust.

You can also create a trust through your will that will be created upon your death.  You would typically do this if you want to give your property to someone, such as your young children, but want someone more mature, experienced, etc. to handle that property.  In that case, you can set up specifics about how you want the trustee to distribute the property, such as a for education or living expenses, or a certain amount at certain times.  The same consequences mentioned above still apply to this type of trust as well.

If you are looking to create a trust, consult with an attorney to determine the best plan for you and your property.