Many clients have so many questions for our attorneys during their initial call, that they often do not know where to start. Unfortunately, administrative, health care, professional licensing, and employment law are not the most “user-friendly” areas of the law. They are often completely foreign to individuals who are involved in a legal dispute or dilemma for the very first time.
Fortunately, Simas & Associates, Ltd. is a recognized leader in the state of California for all of these types of law. As a leader, we recognize some of the more common questions our clients typically have prior to even contacting our firm. Below, please find our best effort at identifying those questions and providing concise answers.
Please note that these generalized answers are not designed to replace specific answers to your particular situation. In fact, many times questions will turn on the facts and circumstances of a client’s particular matter. So, please only use this tool as general information.
Q Why do I need to hire an attorney?
A The short answer to this question is that you hire an attorney for the same reason you hire a physician, auto mechanic or electrician. Not only do the attorneys at Simas & Associates, Ltd. collectively have over 100 years experience practicing law, we have experience handling cases exactly like yours. We are familiar with the law, the process of presenting your case, how to present your case in the best light possible and how to defend and protect your rights.
Q Who are Simas & Associates, Ltd.’s clients?
A The clients of Simas & Associates, Ltd., range from individuals or small businesses with professional licensing or employment matters to major corporations and government agencies. Accordingly, our clients have extremely differing levels of experience when it comes to dealing with attorneys and the expectations of the attorney-client relationship.
Q Why are attorneys paid by the hour?
A The answer to this question stems directly from what it is attorneys sell. And this has not changed for hundreds of years: The time and advice Simas & Associates, Ltd. sells comes from the many years experience our attorneys have had in handling cases like yours. We provide clients the benefit of our experience in dealing with numerous regulatory agencies in the executive branch of government, our experience in the legislative branch of government and our experience with the judicial branch of government. If we have not dealt with the exact agency, regulatory agency or issue involved in your case, we have dealt with a number of agencies and issues very similar to yours.
Q Why can’t I just represent myself?
A There are two significant reasons why a client should not represent himself or herself, especially in a contested matter in the area of government and administrative law.
The first reason is experience. Like medicine, the law is becoming increasingly specialized. Even attorneys hire other attorneys in legal matters outside their specialty. In fact, Simas & Associates, Ltd. consults with numerous law firms and attorneys, providing expertise in professional licensing, healthcare and employment matters. Most clients simply do not have the expertise in the subject matter or the process of presenting their case to sufficiently represent themselves.
The second reason a client should not represent himself or herself is perspective. Because a client is intimately involved with and in the middle of a case, by definition the client does not have the perspective necessary to proceed without legal advice, counsel, and outside perspective.
Q Why do I have to pay an initial retainer?
A There are several reasons why law firms require retainers. First, it allows both you and our firm to confirm that we have established an attorney-client relationship and are committed to working with each other. Second, it allows our firm to undertake the work necessary to get up to speed on your case and quickly prepare to handle it.
In most cases, the retainer is designed to allow our firm to jump in and become familiar with your case. Because we do not control the actions of the opposing side or the administrative law judge or court, we cannot control all aspects of the case. Once we enter into a case on a client’s behalf, we are ethically bound to respond to anything the judge or opposing parties ask of us. For example, should the opposing side file a motion or some other request of the court, we will have a time-specific deadline to respond. The retainer permits us to promptly respond without worry of the client not having the ability to pay for the time and resources it will take to competently and promptly respond.
Q Will I win my case if I hire you?
A While Simas & Associates, Ltd.’s attorneys always try our best to win each and every case, this question is impossible to answer. There are many factors which affect the outcome of a case, including the judge, the presentation, the performance of witnesses on any given day, the credibility of those witnesses who testify and many other considerations.
In our experience, preparation wins cases. Therefore, when Simas & Associates, Ltd. enters into an attorney-client relationship, we do so with the assurance that we will try our absolute best, while adhering to the rule that preparation wins the cases. This relates to the questions above involving the retainer for legal services. Simply stated, the retainer and the strong level of commitment of our clients allows our firm to be extremely prepared and increases the likelihood we will win cases.
Q Can’t I just hire you to settle my case?
A While it is the goal of Simas & Associates, Ltd., to resolve cases by settlement if possible, it is not always possible. In all cases, whether civil litigation or an administrative licensing matter, resolution of a case requires the involvement of both sides. In cases involving the government, the attorney for the agency still must obtain the consent of the agency representative or agency head to settle the case.
In addition to not always being able to convince the other side to settle, settlement is a process. A process often involves turning over evidence to the other side to convince them that their case lacks merit or that we have a defense to their case. In other words, preparing the case for trial simultaneously prepares the case for settlement.
In the case of an administrative licensing action the other complicating factor is that the state agency that has taken the action has already investigated the case and formulated conclusions before bringing the action. Thus, to settle the case we must convince the state’s attorney that the agency’s case it worked so hard to bring now has no merit.
Q I believe an agency is investigating me for license discipline. What should I do?
A A good first step prior to responding to any agency telephone call, letter, or inquiry is to contact an experienced licensing attorney. Most attorneys will offer a free and confidential initial consultation, permitting you to provide background information in regards to your matter and examine what – if any – potential discipline the agency could be seeking. While in most cases, it will be important for you to, ultimately, cooperate in the investigation, by no means must you do so without attorney assistance.
Q I am applying for a license. I have a criminal conviction. Should I disclose it?
A Yes. Most licensing agencies will want a thorough understanding of the conviction. In addition, most will want an explanation of the conviction if it relates to an underlying purpose of the license. Some licensing authorities even bar licensees for life based upon particular convictions.The best thing to do in such a situation is meet with an experienced licensing attorney. Not only would they know how to defend licensing discipline as a result of a criminal charge or conviction, they also know how to minimize and mitigate the conviction in the eyes of the licensing authority at the time of initial licensing.
Q I just received a Statement of Issues (or Accusation) from my licensing agency. What should I do?
A Again, a good first step is meeting with an attorney. However, you may not have enough time. It is important that you immediately complete a Notice of Defense after receiving either document. The Notice of Defense should be mailed back to the licensing agency within fifteen days of receiving the underlying Statement of Issues or Accusation.When completing the Notice of Defense, do not disclose anything to explain or volunteer information without first reviewing with a competent attorney. Anything you write in response could be interpreted and used as an admission against you in any further legal proceeding.
Q Do I have a right to an attorney to represent me in defense of my license?
A No. While you have a right to be represented by an attorney at your own expense, the licensing agency is under no legal obligation and will not provide or appoint an attorney to those who cannot afford one.
Q I want to terminate an employee who refuses to sign my company’s employment agreement. They are refusing because they disagree with our company’s covenant not-to-compete clause. Can I proceed with termination?
A No. Unlike many states, California prohibits the enforcement of covenants not-to-compete. California Business and Professions Code § 16600 provides that covenants not-to-compete are void. This statute has been interpreted strongly on behalf of employees and exceptions are limited by the statute itself.Termination of an employee because of their refusal to sign an unenforceable covenant not-to-compete could give rise to a claim of wrongful termination. The better approach would be to meet with an experienced employment attorney who has experience drafting employment contracts who may be able to address your company’s needs through an enforceable clause (e.g. “noninterference of trade” clause).
Q California is an at-will employment state. As a result, I can just terminate any employee I want, at anytime, for any reason, right?
A No. While you are correct to point out that California is an at-will employment state, it is important to note that there are many actions an employer can take to replace the default, at-will law governing the employment relationship with that of a contract or quasi-contract. This can occur through oral or written statements providing a guarantee of employment or compensation for work performed. Alternatively, an ambiguous and inconsistently enforced corrective action policy could result in the company having to provide the employee with notice of poor performance and an opportunity to correct the behavior. Finally, law and public policy protect employees. Thus, terminating employment based upon protected status (e.g. race, gender, age, etc.) is prohibited. Therefore, the failure to document the reasons for a termination could nevertheless result in a nasty, expensive lawsuit.
Q All I have to do to protect myself personally from liability caused by my business is incorporate, correct?
A No. While incorporating your business is an option and method towards to achieving personal liability protection, it is not the only option. Given your needs and the needs of your business, other entity forms may be more practical and desirable.Were you, nevertheless, to choose incorporation for your business, it is important to recognize that it involves more than just filing a document with the Secretary of State. Rather, by incorporating, you are creating a separate entity from you, personally, in the eyes of law. In order to maintain that status, your incorporated business needs to continue to act and behave as a separate entity.
Thus, it is important that you work with attorneys who are experienced in forming all types of businesses – from partnerships, LLCs, trade associations, and non-profits, to closed corporations, S-corporations, and even publicly-traded corporations. Simas & Associates, Ltd. has that level and diversity of experience.
Q Our company doesn’t want to have to deal with withholding taxes. Can we just pay all of our employees as independent contractors?
A No. While you and your employees can agree to initially classify the relationship as that of an independent contractor, the decision is often dictated by local, state, and federal government agencies, such as the IRS and state workers’ compensation and unemployment insurance agencies. If the agency determines that your independent contractors should have been wage-paid employees, watch out! You may be liable for unpaid overtime, unpaid sick time, penalties for failure to withhold proper taxes, and penalties for failure to pay proper unemployment insurance, among others. Rather, it would be wise to meet with a knowledgeable employment attorney who can go through each of the relevant agencies’ tests to determine whether your workers can be treated as independent contractors or not. Alternatively, to draft effective contracts that provide the structure of upholding the desired relationship.
Q I think my friend (or sibling, parent, co-worker, etc.) needs an attorney. However, before suggesting you as the attorney she should hire, I want to know how you would advise my friend.
A I am sorry, but that is just not possible. Your friend should only be disclosing intimate details about her present legal predicament or needs to his or her attorney. That is because even before your friend decides to hire an attorney, her initial consultation is protected by the attorney-client privilege. This means that neither the client nor the attorney could be forced to testify as to what was shared during that consultation.But this privilege is extremely limited. Once the advice is shared by the attorney or your friend to a third-party, the privilege is broken and all parties could be forced to testify. That is why it is not possible for our firm to discuss your friend’s legal matter with you in confidence. Rather, your friend needs to speak to us individually.