1) “Confidentiality” – Under the rules of legal ethics, lawyers generally cannot voluntarily reveal information relating to the representation of their clients without their clients’ express or implied consent. 

2) “Attorney-Client Privilege” – Under the rules governing the introduction of evidence in court, lawyers generally cannot be compelled to reveal communications with their clients.  However, the attorney-client-privilege applies only when clients communicate confidentially with their lawyers in order to obtain legal service. 

3) “Work Product” – Under the rules of civil and criminal procedure, lawyers generally cannot be compelled to reveal written material that was created while working on their clients’ behalf to prepare a case for trial.  When lawyers do legal research, take notes of witness interviews, or meet with other lawyers to develop strategies, the written material is called “work-product” and it is protected from disclosure by rules of both criminal and civil procedure.  

The rules of legal ethics prevent lawyers from volunteering what they know; the rules on introducing evidence in court prevent lawyers from being compelled to tell what was discussed with their clients, and the rules of court procedure prevent lawyers from being compelled to reveal written information created for litigation.  

Q:  Is information transmitted by electronic means protected by these secrecy rules? 
A:  Yes.  Lawyers and clients may exchange confidential information by e-mail, fax transmissions, cellular phones, cordless phones, text messaging, video conferencing, and other electronic means.  Generally, lawyers may communicate with clients by e-mail without encryption or other safety measures.  But enhanced security measures may be required for any form of electronic communication transmitting exceptionally sensitive information.

Q:  Can a business organization, as well as a natural person, be a client?
A:  Yes.  The rules requiring lawyers to maintain confidentiality of their clients’ information apply to both natural persons and to entity clients such as corporations, partnerships, and unincorporated associations. 

Q:  Why are lawyers required to keep secret information relating to the representation of their clients?
A:  The primary reason is to encourage clients to provide their lawyers with all possible pertinent information—including possibly embarrassing or damaging information—that may be relevant to their legal problem.  Full communication allows lawyers to determine what is or is not relevant to their clients’ case.  The confidentiality rule protects clients from being penalized for consulting with lawyers and telling their lawyers as much as possible about the matter. 

Q:  Can clients keep facts secret by telling these facts to their lawyers and then relying on the attorney-client privilege to prevent discovery of the facts?
A:  No.  The attorney-client privilege protects only communications, not facts.  Clients cannot hide facts by telling them to their lawyers.  What is privileged is the content of the communications between the clients and their lawyers.  What clients say or write to their lawyers is privileged.  The facts about what clients knew, did, or failed to do are not privileged.  

Q:  Are there exceptions to the three “secrecy rules”?
A:  Yes, and the exceptions are detailed and complex.  Here is a summary of some of the most important exceptions. 

Confidentiality

Ohio lawyers may volunteer information relating to the representation of their clients when the clients give “informed” consent or the disclosure is impliedly authorized in order to carry out the representation.  In addition, lawyers may volunteer information relating to the representation of their clients if lawyers reasonably believe it necessary to:  (1) prevent reasonably certain death or substantial bodily harm; (2) prevent their clients or others from committing a crime; (3) mitigate substantial injury to financial or property interests resulting from their clients’ commission of illegal or fraudulent acts for which their clients have used their lawyers’ services; (4) obtain legal advice about their own compliance with the lawyer disciplinary rules; (5) claim or defend in controversies between lawyers and their clients, defend against criminal or civil claims based on conduct in which their clients were involved, or respond to allegations in proceedings concerning the lawyers’ representation of their clients; and (6) comply with other law or court orders.

Attorney-Client Privilege

In Ohio, there are three basic exceptions to the attorney-client privilege that permit lawyers to disclose information when it is compelled by judicial process.  (1) The Crime-Fraud exception applies when clients have used their lawyers’ services to commit a crime or fraud.  (2) The Testamentary exception applies in Ohio when competing claimants are asserting claims through a deceased client and the dispute addresses their deceased client’s competency, or whether their deceased client was the victim of fraud, undue influence, or duress.  (3) In Ohio, lawyers may testify by the express consent of their clients, or, if the client is deceased, by the expressed consent of the surviving spouse or the executor or administrator of the deceased client’s estate.  There is no requirement that the surviving spouse, executor, or administrator must make the same decision about waiver that the decedent would have made.  

Under the common law there are four major ways in which clients may be deemed to waive the attorney-client privilege.  (1) Waiver by disclosure – revealing privileged documents or privileged communications.  (2) Waiver by failure to object – when a lawyer fails to object to a question that calls for privileged information.  (3) Waiver by attacking their lawyer’s work – clients who sue their lawyers or former lawyers for malpractice waive the attorney-client privilege for communications relevant to the malpractice action.  (4) Waiver by putting the advice of counsel in issue – lawyers may reveal their communications with their clients when their clients’ defense against criminal charges is that they relied on their lawyer’s advice that the conduct was lawful. 

Work Product

Sometimes the opposing party may obtain parts of a lawyer’s work-product if that party has “substantial need” of the materials and is unable to obtain the information in any other way. 

Q:  Are there instances when lawyers are required to reveal their clients’ secrets?
A:  Yes.  In Ohio there are two general rules and one rule specifically related to representing business organizations that require lawyers to disclose information relating to the representation of their clients.

1) Lawyers have duties of candor to the courts.  If the lawyer, the client, or a witness for the client has offered false evidence and the lawyer later learns of its falsity, the lawyer must take “reasonable measures” to remedy the situation, including, if necessary, disclosure to the court.  In addition, lawyers in adjudicative proceedings must take “reasonable measures” to remedy the situation, including, if necessary, disclosure to the court, when they know that their clients or other persons intend to engage, are engaging, or have engaged in criminal or fraudulent conduct relating to the proceeding. 

2) Lawyers must be truthful in statements to others.  When representing clients, lawyers must disclose material facts when disclosure is necessary for lawyers to avoid assisting their client’s illegal or fraudulent acts. 

3) A recent Ohio rule provides that lawyers for organizations are to proceed as is necessary in the best interests of their client organizations when the lawyer knows or reasonably should know that an owner, officer, director, trustee, or employee of the organization is acting, intends to act, or refuses to act in a manner that is (1) a violation of a legal obligation to the organization, or (2) a violation of law that reasonably might be imputed to the organization and is likely to result in substantial injury to the organization.  More specifically, if it is necessary to enable organizational clients to address the matter in a timely and appropriate manner, lawyers must refer the matter to higher authority within the organization, including the highest authority that can act on behalf of the organization. 

This rule only requires lawyers to report within the organization, i.e., report up the ladder.  It does not require or permit lawyers to report outside the organization, i.e., report out.  Nevertheless, one of the two general rules requiring disclosure of information may still require lawyers to disclose information outside the organization. 

5/10/2010

This “Law You Can Use” column was provided by the Ohio State Bar Association.  It was prepared by W. Lance Tibbles, a professor of law at Capital University Law School in Columbus.

Q: What are some examples of these three types of funding?
A: The $8,000 first-time homebuyer credit in 2009 is one example of a tax cut. The State Fiscal Stabilization Fund distributed monies to state and local governments to avoid severe budget cuts in schools at all levels.  Funding toward entitlement programs include extending COBRA benefits and housing the homeless.  A popular example is the $3 billion “Cash for Clunkers” program that was managed by the Department of Transportation. More than $7 billion has been set aside for high speed Internet access in rural communities, and is handled through the Commerce Department.

Q: How is the ARRA managed?
A: The ARRA requires a 13-member Board appointed by the president to manage the funds and insure transparency in government spending, according to the requirements of the law.  The Board is governed by a set of bylaws and guidelines and its main job is to provide oversight. It also has the power to subpoena witnesses, which means it can call people into court to give sworn testimony about matters related to the ARRA. This helps to ensure that the funds are handled properly.  The ARRA also provides for a four-member Advisory Panel whose job is to recommend ways to prevent fraud, waste and abuse.

Q: How do ARRA funds trickle down?
A: Monies are allocated in several different ways, requiring citizens to do their research in order to take advantage of the funds.  Congress has appropriated funding for 28 federal agencies.  Those agencies, in turn, direct monies to state and local governments.  Schools, businesses, and non-profit organizations can, however, apply directly to the federal government for an award. 

Q: How has ARRA helped Ohio?
A: There have been three reporting periods to date since the ARRA was enacted.  For July to September 2009, Ohio started 56 programs worth $1.6 billion in funding. This number increased to 61 programs for October to December 2009 and $2.5 billion in expenditures. Between April and March 2010, 70 programs were valued at $3.3 billion. These programs are run through the agencies that typically handle the particular type of work. For example, the Ohio Energy Resource Commission has funding for a grant program entitled Deploying Renewable Energy: Transforming Waste for Value. Schools can apply for a grant from the U.S. Department of Education that offers training and technical assistance for centers for independent living. The Ohio Department of Transportation has hundreds of road constructions projects underway.

Q: Where does ARRA stand today?
A: While it is too early to say whether the Stimulus Program—not quite two years old--really will fulfill its purpose, it is safe to say that ARRA the program has gained momentum, projects are in the pipeline, and it has become more familiar to most of us.

Q: Where can I get more information about the ARRA?
A: Visit www.Recovery.gov.

8/30/2010

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Nancy Fioritto Patete, a Cleveland attorney who has assisted a private housing association in Geauga County to obtain an EPA construction loan to upgrade its community water well using ARRA funds.

Q: Who recovers the assets?
A: The Ohio Attorney General’s Office administers the estate recovery program on behalf of the Ohio Department of Job and Family Services, although sometimes estate recovery claims may be handled by private attorneys on behalf of the Attorney General.

Q: How will I know if the state will try to recover Medicaid costs from my mother’s estate?
A: Assuming you are a beneficiary of your mother’s estate, you will need to know if your mother’s estate owes money to the state.  If there is a probate proceeding, you must notify the Attorney General’s Office within 30 days of your appointment as the estate’s executor.  After you have provided notice, the Attorney General will file a claim with your mother’s estate.  In cases where there is no probate estate, the Attorney General’s Office will send out letters to most, but probably not all, Medicaid recipients requesting information about what assets existed when the Medicaid recipient died.

Q: What assets can the state recover?
A: Up until 2005, the state could only try to recover from probate assets, but in House Bill 66, the definition of “estate” was expanded to include any property in which the Medicaid recipient had any interest at the time of death. This includes assets in a living trust, joint assets, transfer-on-death and payable-on-death assets, and life estates.

Q: Does the state have a time limit in which to recover the assets?
A:  Ohio law provides that the Attorney General’s office must present its estate recovery claim to the person responsible for the decedent’s estate within 90 days after receipt of notice from the responsible party or one year after the Medicaid recipient’s death, whichever is later.

Q: Are there exceptions to estate recovery?
A: The state cannot recover against assets passed to the surviving spouse during the survivor’s lifetime.  Also, if the assets pass to a child under 21, or a blind or disabled child of any age, no recovery is allowed.  In addition, the Ohio Department of Job and Family Services may grant an undue hardship waiver against recovery on a case-by-case basis.  Generally, this request will only be granted if the estate’s beneficiary was financially dependent on the Medicaid recipient and recovery would deprive the beneficiary of necessary food, clothing, or shelter, or require the beneficiary to receive public assistance.

8/23/2010

This “Law You Can Use” column was provided by the Ohio State Bar Association.  It was prepared by James C. Bates, an attorney in the Brecksville law firm of Daniel P. Seink Co. Ltd. 

Q: When will the judge first instruct the jury?
A: A judge often provides the jury with preliminary or opening instructions before counsel’s opening statements are made and any witnesses are called. These preliminary instructions will tell the jury how they are to approach the evidence and explain their responsibilities as jurors. Commonly, the judge will instruct the jurors about how to conduct themselves during the course of the trial and about how the trial will progress. The judge also will instruct the jurors that they are to decide the case only on the evidence lawfully presented in the courtroom and must not conduct their own investigation, experiments, or research into the facts or law, that they must follow the law contained in the judge’s instructions, and that they must wait until all the evidence has been presented and the case is submitted to them for their group deliberation before they determine guilt or innocence.

Q: What instructions might the judge provide to the jury during the course of the trial?
A: As the trial progresses, the judge may further instruct the jury regarding its consideration of certain testimony. For instance, if the judge concludes certain testimony should not be admitted into evidence, the judge will instruct the jurors to disregard that evidence they may have heard. (Attorneys do try to anticipate before trial what matters should or should not be admitted at trial by filing pretrial motions and asking the judge to rule on points of evidence before the trial begins. There are times, however, when a judge may decline to rule on the matter before trial. Also, a matter may be addressed in testimony that was not anticipated by the parties or the court, and the judge must rule on the matter during the trial.)

Courts generally will assume that jurors will follow a judge’s instructions to disregard evidence. However, there are times when a matter may be so prejudicial to a party that a court cannot reasonably expect or trust that a jury will follow instructions to disregard the evidence. In those situations, a party may ask the judge to declare a mistrial, to dismiss the case and let it start again before a new jury. The judge and the parties will approach with great care the question of whether the jury can be expected to follow a judge’s instructions about disregarding matters they have heard.  If the judge finds there is a “manifest necessity” to declare a mistrial, then a new trial will be ordered. But if the judge grants a mistrial when it was not manifestly necessary to do that, the new trial may be barred on the basis of the defendant’s constitutional right to be free from being tried twice for the same crime (double jeopardy).
 
Q: What kind of instruction does the jury receive when all the evidence is in?
A: When all the evidence has been presented, the case will be submitted to the jury for its determination of guilt or innocence. Before the jury deliberates, the judge will give final instructions to the jury.  These instructions include reminding jurors that the prosecutor must prove, beyond a reasonable doubt, each and every element of the crimes the defendant is charged with committing.  The judge will define these elements and the meaning of the “proof beyond a reasonable doubt” standard.  The judge will also identify and define any defenses that arise from the evidence submitted, any lesser offenses that may also be charged against the defendant, and the order and method of deliberations.  

Jurors will be told that they should listen to one another’s views and try to reach agreement on the case, and that, in order to convict the defendant of any offense, their verdict must be unanimous.  They will also be told how to complete the verdict forms. The judge will again emphasize that the jurors must: decide the case solely on the evidence lawfully admitted in the courtroom; deliberate on the facts and the law without sympathy, bias, or prejudice to either side; and respect one another’s views so that a thorough discussion of the facts and the law will occur and a reliable judgment will be reached. 

8/22/2010

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA).  It was prepared by Professor Margery Koosed, University of Akron School of Law. 

Q: What is environmental insurance?
A: Those who buy or sell property that is, or may be, contaminated risk having to pay for a cleanup to comply with environmental laws or to pay for damages caused by the contamination.  A  tool that can be used to deal with these potential liabilities is environmental insurance.  Two of the most common types of environmental insurance are pollution legal liability (PLL) policies and cleanup cost cap policies.

Q: What do these policies cover?
A: PLL policies protect policy holders against third-party claims for property damage, personal injury and cleanup costs relating to the environmental contamination.  Cost cap policies can protect policy holders against cost overruns associated with a specific cleanup project for known contamination.

Q: Haven't policy holders and insurance companies fought over coverage issues relating to environmental insurance?
A: You may be thinking of the coverage disputes arising under “comprehensive general liability” policies issued before 1986.  These disputes have been litigated in courts across the country because the insurance companies have claimed that such policies were never intended to cover claims relating to environmental contamination at third-party Superfund sites. 

The newer policies are designed specifically to cover certain specific environmental liabilities, so it is less likely that disputes will arise.  However, policy holders should not assume there is no risk of future liability.  A policy is a contract between the insurance company and the insured.  The policies are lengthy and complex.  Disputes are possible over the meaning of provisions and the intent of the parties.  It is important to seek advice from an experienced attorney concerning the risks associated with the policies and to negotiate policy terms that are tailored to your particular needs.

Q: Who should consider these policies?
A: The policies may be of interest to businesses of all types and sizes (and certain individuals) that are concerned about environmental liabilities.  Purchasers of old industrial properties (called brownfields) often purchase PLL and cost cap policies to protect against the uncertain and sometimes substantial liability risks.  Also, policies may help minimize risks for small business owners (who may try to protect their children or partners as part of business succession plans), individuals who have owned gas stations or manufacturing companies, or very large businesses concerned about catastrophic liabilities.

Q: What must I do to get environmental insurance?
A: First, you would complete an application and provide the insurance company with information (such as the site history, hazardous substance usage, etc.).  This information allows the insurance company to evaluate the risks and establish a premium and other terms.  For a PLL policy, insurance companies generally require, at a minimum, a Phase I assessment by a qualified consultant.  For a cost cap policy, you would need to provide a detailed cleanup plan for known contamination.  If you do not accurately complete the application, the insurance company may cancel the policy or deny a claim.

Q: How much do the policies cost?
A: Costs vary; they are usually expensive, but not cost-prohibitive.  The cost for a PLL policy depends on the market, the level of risk, the coverage and deductible amounts, and how long the policy is effective.  The cost for a cost cap policy depends on how likely it is that that the cost of cleanup will be higher than predicted (based on newly discovered problems or other factors).

10/19/2010

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association.  This article was prepared by attorney Andrew L. Kolesar, a partner at Thompson Hine LLP in Cincinnati, Ohio and the leader of the firm's Environmental Practice Group.  For more information on a variety of legal topics, visit the OSBA’s Web site at www.ohiobar.org.

Q:  What are “brownfields” and why have we been hearing so much about them lately?
A:  Brownfields are properties that either are or may be contaminated.  Contaminants might include gasoline, solvents, or other waste materials.  While such properties may represent opportunities for developers, they also create unique environmental and legal risks.  Many brownfield properties are in urban areas, but they also are found in small towns.  They are often abandoned or underutilized because fears of legal liability and cleanup costs have scared off developers, businesses and banks.  However, careful planning and analysis can reduce the environmental and legal risks of re-using brownfields.

Q:  Why is brownfield development on the rise?
A:  Many factors have caused this increase, including:  state and federal financial incentives (e.g., Ohio has offered grants of up to $3 million for  brownfield property cleanup); diminishing “greenfield” (uncontaminated) sites; and increasing pressure to prevent urban sprawl and loss of farmlands.  In addition, many state brownfield and voluntary cleanup programs now establish objective cleanup standards.  These allow cost-effective risk-based cleanup based on how the property will be used and what engineering and institutional controls will be employed.  This, in turn, may allow a developer to avoid cleaning up to strict residential standards if there are restrictions on how the property is used.  These programs also provide liability protection to parties that clean up properties.  Finally, lenders have become increasingly likely to provide loans for purchase and re-development of these properties.

Q:  If I buy a brownfield property, should I worry about legal liability for contamination?
A:  Yes.  Even if you, the buyer, did not cause the contamination, you may be liable for the costs of cleanup and other liabilities.  These costs may far exceed the value of the property.

Q:  Can I buy the brownfield property through a business so I won’t lose my home if there is a problem?
A:  Maybe.  You can set up a limited liability corporation (LLC) to shield your personal assets from liability when buying a brownfield property.  Even though environmental laws are far-reaching, you can use a “corporate shield” to protect the assets of parent corporations, holding companies and shareholders.   However, if you are a small business owner, you still may be held personally responsible for your company’s actions if you directly managed the company or the property.  Also, if the company is bankrupt or has been dissolved, a court may decide to “pierce the corporate veil” and make parent corporations, shareholders, managers, and heirs liable for environmental problems. 

Q:  How can I reduce my risks before buying a brownfield property?
A:  First, completely check out the environmental conditions at the property.
At a minimum, conduct a “Phase I” assessment including a review of property records, a site inspection, and interviews with current owners and government officials.  You may need to test soil and groundwater.  After completing your investigation, you can estimate the potential cleanup costs and better evaluate the risk that other problems may be present. 

If you conduct an appropriate Phase I assessment (and comply with other requirements), you may be eligible for the "innocent purchaser" or "bona fide prospective purchaser" defenses under the federal Superfund law.  However, these defenses do not protect you against state agency enforcement actions or third-party claims.

Second, require the seller to disclose in the purchase agreement all known or suspected environmental problems and, if possible, get an agreement saying that the seller is responsible for pre-existing contamination. 

Third, consider implementing a cleanup under Ohio’s voluntary action program (where available).  This may allow you to get certain protections from liability, including a “covenant not to sue” from the state. 

Fourth, explore insurance policies, such as pollution legal liability policies to protect yourself against claims made by third parties, and cost cap policies to provide coverage if the cleanup costs are higher than expected.

Q:  Are there any other considerations?
A:  Complex issues can arise when you buy and develop brownfield properties.  Ask experienced legal counsel and environmental consultants to help you determine your level of risk and guide you through the process.  In addition, federal, state, and local programs may give you incentives to buy and develop brownfield property.  Identify these funding sources early; the grant process may take a year or two.  Also, check with lenders (banks, etc.) early so you know their expectations and limitations.  This will help you negotiate your contract and learn what you must do to check out the property before you buy.   Be cautious about potential environmental liabilities, but do not walk away from a good opportunity because of unsubstantiated fears.

10/19/2010

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association (OSBA).  This article was prepared by attorney Andrew L. Kolesar, a partner in the Cincinnati office of Thompson Hine and the leader of the firm’s environmental practice group.

Identifying certain potential environmental risks or concerns before purchasing a home can alleviate future stress and expense.  Two common concerns for home-buyers are associated with lead-based paints and asbestos.

Q: What is asbestos and where might I find it in a home?
A: Asbestos is a fibrous inorganic material that is found in some rock formations.  It has been used as insulation on pipes and boilers, in floor tile, and in certain plasters.

Q: When is asbestos considered a health risk?
A: When asbestos is in poor condition and you can crumble it in your hand, it can pose a risk.  Well-managed insulation or plaster containing asbestos need not be an immediate concern.

Q: What should I do if I suspect that there may be some deteriorating asbestos in the home I'd like to buy?
A: A good home inspector can point out any areas of a home where potential asbestos problems might arise.  However, without sampling, it is impossible to be sure that the material in question contains enough asbestos to be considered a problem.  Asbestos removal was advocated when health hazards were first determined.  However, asbestos containment is more commonly suggested now, due to health risks related to the removal process itself, which can cause asbestos dust to get into vents or onto furniture, etc.

Q: What should I do if I have determined that the home I wish to buy has potential asbestos problems?
A: You should factor in the cost of sampling to determine asbestos levels as well as the cost of professional asbestos removal or methods and costs of asbestos management if it is found that the asbestos-containing materials are likely to deteriorate over time.  You should be aware that, although asbestos-removal contractors may need licenses from the state and be subject to state regulations, federal Environmental Protection Agency (EPA) asbestos-removal regulations do not generally apply to single-family homes.

Q: Why should I be concerned about lead-based paint?
A: Lead-poisoning problems can arise, particularly among children, who may eat bits of flaking paint or breathe paint dust. Dust can get on surfaces; it makes its way to children's hands and can potentially be ingested.

Q: Does a seller have to tell a buyer about any lead-based paint in the home?
A: Yes.  The seller must tell the buyer about any known lead-based paint, and must give the buyer 10 days to conduct a risk assessment or inspection for the presence of lead-based paint.  Also, according to federal regulations, a seller must give the purchaser of a house built before 1978 an EPA-approved lead hazard abatement pamphlet.

Q: What can be done to minimize any health hazards in a home that has been painted with lead-based paint?
A: Like asbestos, containing any risk of lead poisoning is now a more common approach to dealing with the problem, as the removal process itself can cause problems.  A wall that was once painted with lead-based paint poses little danger if it has been painted over with several coats of non-lead-based paint and is maintained in good condition. Keep in mind that, as of the spring of 2010, any company conducting home improvement activities must be certified by the USEPA as trained to minimize hazards from lead. This includes window replacement companies, painters, remodelers and the like. It is a good idea to ask for proof that they have been properly certified.

Most homeowners will not know if lead-based paint was used in their homes, and few have actually tested for it.  If you buy a home and later find areas where the paint is in poor condition, have it tested or plan to correct any potential problem by repainting or by removing the lead-based paint. 

8/18/2010

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Bill Hayes, a Cincinnati attorney with Vorys, Sater, Seymour & Pease.

Note:  This article reflects tax law information for the 2009 tax year (January 2009 through December 2009) being used to file 2009 tax year returns during the 2010 filign season, which began January 15, 2010. Returns are filed by April 15, 2010 for most individuals, but anyone who files an extension has until October 15, 2010 to complete the return. (Although tax payments are still due by April 15, 2010 when and extension is filed, the deadline for submitting the return is October 15, 2010.)

Q:  What is the Earned Income Tax Credit (EITC)?   
A:  The Earned Income Tax Credit (EITC) is a refundable federal income tax credit for low-income working individuals and families.  The tax credit was passed by the U.S. Congress in 1975 in an effort to offset the burden of Social Security taxes and to provide an incentive for people to work.     

Those eligible for the Earned Income Tax Credit include individuals and families who earned income less than: $13,440 ($18,440 if married and filing jointly) with no qualifying children; $35,463 ($40,463 if married and filing jointly) with one qualifying child; $40,295 ($45,295 if married and filing jointly) with two qualifying children; or $43,279 ($48,279 if married and filing jointly) with three or more qualifying children.
           
Q:  Who can claim the credit?       
A:  To claim the EITC on your federal tax return, you must follow certain guidelines.  For example, you must:
• have a valid Social Security number;
• have earned income during the year;
• meet the income guidelines provided above;
• not have investment income of  more than $3,100;
• be a U.S. citizen or a “resident alien” who has had this status all year.
To claim the EITC, your tax-filing status can be any filing status except “married filing a separate return.”  Check with the Internal Revenue Service (IRS) on other individual specific eligibility guidelines.
            
Q:  Who might I be able to claim as a qualifying child under EITC?
A:  Basically, a qualifying child is a child who is your son, daughter, stepchild, adopted child, eligible foster child or descendant of any of them.  For purposes of EITC, other qualifying “children” may include your brother, sister, stepbrother, stepsister, or a descendant of any of them.  Children must be either under age 19 by end of the tax year or under 24 and a full time student, or they must have been permanently disabled during the year, and lived with you in the United States for more than six months during the tax year.

The Fostering Connections to Success and Increasing Adoptions Act of 2008 changed the uniform definition of a child. Now a "qualifying child" must:
• be younger than the taxpayer claiming that child unless the child is disabled; and
• not have filed a joint return except to claim a refund.
It also added a new Parent Adjusted Gross Income (AGI) rule. If the same child is a qualifying child of a parent and another relative, the person who is not the parent can claim the child only if their AGI is higher than the AGI of any parent of the child.

Q:  Why am I allowed to claim three children for tax year 2009 with EITC?
A:  The American Recovery and Reinvestment Act (ARRA) provides a temporary increase in EITC and expands the credit for workers with three or more qualifying chldren. These changes are temporary and apply to 2009 and 2010 tax years.
          
Q:  Where can I go to get answers to other questions about my individual situation and eligibility? 
A:  Visit the www.irs.gov website, click on “More Forms and Publications,” and choose “Publication 596" for information about the Earned Income Tax Credit, or choose “Earned Income Tax Credit” under “Frequently Asked Questions.”  Also, you may wish to call the IRS at (800) 829-1040. 

8/9/2010

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. 

Q: We are interested in adopting a child, and understand the court must approve us first. What requirements must we meet?
A: In some Ohio counties, the probate court will conduct a home study in order to investigate and pre-approve prospective adoptive parents. (This may be handled by the probate court in your residential county or that of the birth parent, or the county of the licensed adoption agency in the case of an agency adoption.) In other counties, the probate court may authorize an agency to handle the investigative home study.

Q: What’s the first step in the home study process?
A: You must complete a pre-placement application and list five references. These individuals should be unrelated and capable of expressing opinions about your ability to be adoptive parents. The completed application should be signed only in the presence of a notary public. You should also collect five letters of recommendation, preferably from individuals not listed on the pre-placement application. These letters should provide information such as how long the references have known you, why you would make good parents, and how you relate to children.

Q: Must we have a medical exam?
A: Yes. The probate court requires you, your spouse, and any other household members to have had physical exams within the past year (from the time the pre-placement application is filed). Every adult and child in your household must obtain either a letter or completed medical form from a physician regarding his or her health or undergo a physical exam.

Q: Does Ohio law require us to have a criminal background check?
A: Yes, for you, your spouse and any other adult household member. The Bureau of Criminal Identification and Investigation (BCII) requires that all requests for Ohio civilian background checks be submitted electronically through the use of WebCheck or other approved methods. It will take approximately 30 days to get results. There are more than 400 WebCheck locations now available to persons seeking background checks. You may go to the location nearest you to have your fingerprints scanned. These locations are listed by county on the Ohio Attorney General's website at http://www.webcheck.ag.state.oh.us/webcheckcommunity.htm.  

Q: Does the court require any other documentation?
A: Yes. You also must complete a Residency Certification form, stating the length of time you have lived in Ohio. Courts will also require a Child Abuse Clearance through the Ohio Department of Job and Family Services, a Home Fire Inspection and a Safety Audit. Your attorney or agency representative must file these forms, as well as the other documentation mentioned above, with the probate court. The court social worker will review the documents and then contact you to arrange a home study.

Q: My spouse and I have lived in Ohio for only a year. Will we need more than an Ohio criminal background check?
A: Yes. If you or any of your adult household members have lived in Ohio for less than five years, you must also undergo a national criminal background search by the Federal Bureau of Investigation. Most places that do criminal background checks will offer to do this.

Q: What kinds of criminal convictions might keep us from adopting a child?
A: Convictions for felonies, drug offenses, or sex-related charges may keep you from adopting a child, even if these convictions have been expunged.

Q: What happens during the home study?
A: The social worker will conduct a personal interview with you and your spouse and/or other household members and review your pre-placement application to determine whether you meet the minimum standards established under Ohio law to provide a suitable home for a child.

Q: Is there a follow-up home visit?
A: Yes. The court social worker will periodically return to interview the family after the child is placed in the home in order to determine whether finalizing the adoption is in the child’s best interests.

8/17/2010

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Columbus attorney Thomas N. Taneff, who concentrates on probate and adoption law and has served on the Ohio Adoption Commission.

Q: We have a neighbor whose daughter would like us to adopt her baby when he or she is born. Can we adopt her child, or must we go through an agency to find a child?
A: Ohio law clearly allows you to adopt her child. Although you do not have to go through an agency to identify a child who is available for adoption, you must go through the court in order to make an adoption legal. It is wise to consult an attorney when going through this process.

Q: Friends of ours want to advertise in the newspaper for a child. Can they do this?
A: No. No one who is not certified by the Department of Job and Family Services may buy advertising for adoption purposes, nor may a person offer money or other inducements to parents to part with their children, or in any way knowingly become a party to the separation of a child from its parents or guardians, except through a juvenile court or probate court commitment under Ohio law. Whoever violates this law may be found guilty of a first-degree misdemeanor, which is a criminal offense. However, some other states do allow for advertising. To see which states do, go to the U.S. Department of Health & Human Services site at: http://www.childwelfare/gov/systemwide/laws_policies/statutes/advertising.cfm.

Q: What are prospective adoptive parents allowed to do to find potential birth parents?
A: Ohio law allows “targeted” or “identified” adoption referrals. For example, you  may know a doctor, lawyer, clergy person, counselor, or other person who has learned about a birth mother seeking to place a child for adoption.

Another option is to network for adoption possibilities. For example, you may call or send letters, post-cards or e-mails to family, friends and co-workers, letting them know of your interest in adoption, and asking informally for referrals, and encouraging them to pass the word. Another tool and resource is to use social networks such as Facebook, Twitter or YouTube.

8/17/2010

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Columbus attorney Thomas N. Taneff, who concentrates on probate and adoption law and has served on the Ohio Adoption Commission.