No Good Deed Goes Unpunished

No Good Deed Goes Unpunished:

When it comes to lawyers it appears that no good deed goes unpunished. After all, we are easy targets, right? Recently a Des Moines Register letter to the editor unfairly criticized some lawyers who had volunteered for junior high and high school mock trials. The letter said the lawyers made a "mockery" of our mock trial system because certain lawyers admitted to students that they had not read the materials before judging the contest. The writer further stated the lawyers gave the impression to the students that due diligence is not important within the Iowa bar.

How unfortunate these volunteers would be called out on the carpet. Lawyers across Iowa volunteer countless hours judging junior high, high school and university mock trial tournaments each year. These tournaments include local, regional, state and national tournaments. Each year lawyers leave their busy law practices and spend time away from their families to assist students. The mock trials occur during the middle of work day, in the evening and sometimes even on the weekend. The only compensation is knowing you have served your community. Due to tight schedules these lawyers may not always have time to read the case materials before volunteering. Does this mean they should not volunteer?

The reality is that every time a lawyer steps in front of a jury that jury is hearing the case for the first time. It is the lawyer's obligation to educate the jury about the facts of the case. Often judges may be unfamilar with the facts of a case before a bench trial. Again, the lawyer must educate the judge. I see nothing wrong with a mock trial judge that has not read the case still volunteering their time. Perhaps it is more realistic and less contrived.

Despite the writer's pot shot it is obvious these lawyers demonstrate each year that community service and assisting our youth is important. Is that such a bad example?

Settle Stubborn Business Disputes Like Lincoln: Mediate

Settle Stubborn Business Disputes Like Lincoln: Mediate

In his Notes on the Practice of Law, Abraham Lincoln wrote:

"Discourage litigation. Persuade your neighbours to compromise when you can. Point out to them how the nominal winner is often a real loser - in fees, and expenses, and waste of time. As a peace maker, the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation. A worse man can scarcely be found than one who does this."

Abraham Lincoln would have been a big proponent of mediation. Mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify disputed issues, develop options, consider alternatives and work to reach an agreement. Sullivan & Ward, P.C. has an experienced group of mediators.

Larry McLellan is a member of the Iowa Academy of Trial Lawyers and has been recognized by his peers as one of the "Best Lawyers in America". Larry will graduate in May with an LLM in Alternative Dispute Resolution from the University of Missouri Law School. Larry is a Board Certified Mediator by the American Academy of ADR Attorneys and is a member of the Board of Directors of the International Academy of Dispute Resolution. He has been the mediator or arbitrator over the past decade in matters involving the following areas: Business and Commercial Law, Construction Law, Employment Law, Environmental Law, Family Law, Toxic Torts and Personal Injury.

Bob Holliday is also a member of the Iowa Academy of Trial Lawyers. Bob has completed mediation / arbitration training through the American of ADR Attorneys. He mediates cases involving Personal Injury, Business and Commerical Law, School Law and Family Law.

Click here to learn more about Sullivan & Ward's mediation services.

Lawlacart Offers Iowa CLE Online

Lawlacart Offers Iowa CLE Online:

Lawlacart is a cheap and easy way to get Iowa CLE credit. Patent attorney Brett Trout started Iowa's first online CLE Web site. The credits are cheap, 1 hour for $20.00. Iowa lawyers are allowed to have up to six hours of CLE credit online. Don't miss this easy way to earn six hours of credit.

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Forty under 40 Honored Tonight

Forty of Central Iowa's best young business and community leaders are honored tonight at the Polk County Convention Complex by the Des Moines Business Record. The program is from 4:30-7:00 p.m. The cost is $20.00.

Rush Nigut of Sullivan & Ward, P.C. is among those honored in the 2006 class.

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Basic Information Regarding Limited Liability Companies In Iowa

Basic Information Regarding Limited Liability Companies In Iowa Guest Blogger: Dennis Puckett of Sullivan & Ward, P.C. a West Des Moines business law firm.

The Limited Liability Company is a hybrid form of doing business that combines characteristics of the corporate structure and the partnership structure. It is a separate entity like a corporation and therefore carries liability protection for all of its members/owners, but is generally taxed like a partnership which has the benefit of flow-through taxation.

The owners are called members and can be virtually any entity including individuals, corporations, other LLCs, trusts, pension plans, etc. Some states, like Iowa, permit one-member LLCs, and others do not. If you are going to do business in multiple states, it may be wise to have at least two members of the Limited Liability Company. A husband and wife are considered two members for formation purposes.

The manner in which the Limited Liability Company will be operated is set forth in an operating agreement, which is an agreement between the members. The operating agreement for a Limited Liability Company is similar to the by-laws for a regular corporation.

In many respects, a Limited Liability Company is very similar to a Sub-Chapter S Corporation. However, the Limited Liability Company provides much greater flexibility with respect to owners and the allocation of income to the owners. An S-Corporation may only have one class of stock, while an LLC may offer several classes of member ownership. Any number of entities or individuals may own interest in an LLC; however, ownership interest in an S-Corporation is limited to no more than 75 shareholders. Also, S-Corporations cannot be owned by C-Corporations, other S-Corporation, many trusts, LLCs, partnerships or non-resident aliens. LLCs are allowed to have subsidiaries without restriction, while S-Corporations are not allowed to own 80% or more of another corporation's shares.

Like a regular corporation, the primary advantages of forming a Limited Liability Company is the liability protection the corporate entity affords its members (shareholders with respect to a regular corporation). The members of a Limited Liability Company are not liable for the debts and obligations of the company. By comparison, in any Sole Proprietorship or Partnership, the owner's personal assets may be used to pay debts of the business. Another advantage relates to the on-going existence of the company. If an owner of the company dies or wishes to sell their interest, the corporation can continue to exist and do business. If an owner of a Sole Proprietorship or Partnership dies, generally the business or partnership also terminates.

Unlike a regular corporation, the wages paid to the members of a Limited Liability Company will be subject to self-employment tax; however, self-employment tax may be avoided on members who do not participate in management.

Click here for more information on forming a limited liability company in Iowa.

Conduct Free Background Checks Using Iowa Courts Online Web Site

Conduct Free Background Checks Using Iowa Courts Online Web Site

You can conduct a free background check of prospective employees by accessing the Iowa Courts Online Web Site. You should still have all prospective employees sign a release and authorization allowing you to conduct a background search. If you are conducting background searches of your employees you should also make sure to conduct the search before offering employment or make the offer conditioned upon the successful background check.

Please be sure to consult your employment lawyer before conducting background checks using online resources.

Flu Pandemic Planning for Business

Flu Pandemic Planning for Business - Alert Guest Blogger: Mark Landa of Sullivan & Ward, P.C.

In a recent Boston Globe article highlighting the emphasis on corporations planning to meet the challenges to be posed by a flu outbreak, it was asked, "If a super-flu sweeps the globe, who will haul away the garbage? Keep the factories running, making cars and computers and tissues? Stock and sell groceries? Who will keep the electricity flowing?"

A survey of U.S. businesses has revealed that two thirds are not adequately prepared to protect themselves from an influenza pandemic and 39% say there is not much they can do anyway. A national preparedness plan issued by President Bush in November stated that, in a worst case scenario, the country will need about 750,000 ventilators. U.S. hospitals estimate there are 105,000 ventilators available today and 100,000 are currently in use. The nation's school, long recognized as being incubators for flu and other viruses are being told to plan for the possibility of a flu outbreak. Regardless of the planning for such an event, all federal and world health organizations have warned that we should be prepared to plan for a widespread flu outbreak as if a blizzard is coming - a blizzard that could last up to 18 months.

World and U.S. Health organizations have also concluded that vaccinations will not be available to protect us from the spread of influenza and that the only defense for at least the first six months of any true pandemic will be the health precautions that businesses, schools and churches take to prevent its spread among workers, students and congregations. All organizations are advised to establish a plan to prepare for the likelihood of flu outbreak whether it is limited to a local region or is worldwide.

The Iowa Department of Public Health has recommended that community planning be initiated as soon as possible and that this planning occur at the county level.

Consider Mediation Before Litigation to Resolve Disputes

Business Owners Should Consider Mediation Before Litigation to Resolve Disputes:

A mediator can help business owners find ways to settle disputes on their own terms. Unlike an arbitrator, the mediator does not decide who is right or wrong. Rather, the mediator enables people to retain their decision-making power and use their creativity to find an acceptable solution for all parties.

Successfully mediated settlements commonly result in:

A cost-effective, speedy resolution
Reduced levels of stress and animosity among parties
Enhanced respect between the disagreeing parties
A sense of cooperation between parties
A feeling that the settlement is fair, reasonable, and cost-effective.

Click here to find out more about mediation to resolve disputes.

Tips to Protect Your Business and Customers from Identity Theft

Tips to Protect Your Business and Customers from Identity Theft

If your business maintains people's information, you must protect that information from misuse. Here are some basic tips from the Better Business Bureau, National Cyber Alliance and Federal Trade Commission.

1. If you do not need the information, do not collect it. The more information you have, the more tempting it becomes to a thief and the more damaging it is to your customers if the information is stolen.

2. If you need it once, do not save it any longer. Companies sometimes collect information that's necessary to complete a single transaction, then file that information away (either in a paper file or in the computer file). For example, what about job applications for people you do not hire? These contain all sorts of information, including social security numbers. If you don't keep it, it cannot be stolen. You should also have well-drafted document retention policies regarding all company and employee documents.

3. If you have got it, but you don't need to save it, dispose of it carefully. A good deal of identity theft happens in the trash barrel or dumpster. Even the small business can afford an inexpensive paper shredder (preferably the cross-cut kind). Make sure you use the shredder to dispose of customer or employee records.

4. If you have to keep it, think security. First, make sure those paper records that contain personal information are kept under lock and key. Make sure computer terminals are password protected. Limit the eyeballs that have access to these records - only those who have an absolute need-to-know should have access to personal information. Don't allow customers or others to wander around the private areas of your business.

5. Do not broadcast personal information. How often have you stood in line at an office or store behind someone who was being asked to give his/her social security number, telephone number or birth date? How many times have you watched a company's employee pull up personal information on a computer screen that is visible to other customers? Or have you seen personal information on a file that was left open on a desk or counter? Instruct your employees to be sensitive to these issues. Turn computer screens so they can't be viewed by anyone other than the operator. Instruct employees who need to have personal information to have customers jot that information down, and do not repeat it out loud where it can be overheard by others. (Dispose of the writing with a shredder). Do not put personal information like account numbers in billings or letters where that information is visible through windows in the envelope.

6. Do not use Social Security Numbers as account numbers. This practice is just downright dangerous - to you and your customers.

7. Do not give out employee or customer information to anyone whose identity cannot be positively confirmed. Information thieves and stalkers tell authorities over and over how easily they were able to obtain all sorts of valuable information simply by calling small business owners or personnel departments and asking. Posing as government agencies or credit grantors or health insurance providers, these thieves have found that a well-crafted, believable story can often get you past the best locking file cabinets or pass-word protected computers. Your organization should have very strict policies on when and how employee or customer information is shared.

8. Locks and alarms are a real deterrent. If you have done everything suggested, you will be more secure during business hours. Make sure your business is just as secure when your business is closed. Make sure all vital records and offices are locked during non-business hours. Exterior doors should have deadbolt locks. Hinges on exterior doors should be secured to prevent removal. Exposed windows should have shatter-proof glass. Your business exterior should be adequately lighted from dark to dawn. Naturally, the business should be protected with an alarm system, preferably one that is monitored by a security company. Your business insurance company -- or, in some cases, your local police - may be able to assist you with a security assessment.

Governor Vilsack Signs TouchPlay Ban

Governor Vilsack signed the bill today to ban the Iowa Lottery's controversial TouchPlay machines. The ban gives business owners 45 days to shut down machines. It appears as though investors in the machines and lawmakers are exploring ways to avoid a looming legal battle. Look for more on this issue if litigation unfolds.

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Rush Nigut named to Des Moines Business Record's Forty under 40

The Des Moines Business Record named Rush Nigut to its list of "Forty under 40" community and business leaders. Click here to see the entire list of Forty under 40 members and their biographies.

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How to Avoid Incorrectly Treating a Worker as an Independent Contractor - Part II

How to Avoid Incorrectly Treating a Worker as an Independent Contractor - Part II.

In yesterday's blog I decribed the factors which often demonstrate a worker is an employee. If you answer "Yes" to the following questions you probably have an independent contractor.

1. Does the worker furnish significant tools, materials and equipment?
2. Does the worker have a significant investment in facilities?
3. Can the worker realize a profit or loss as a result of his or her services?
4. Does the worker provide services for more than one firm at a time?
5. Does the worker make his or her services available to the general public?

A human resource audit may help you avoid incorrectly treating a worker as an independent contractor.

How to Avoid Incorrectly Treating a Worker as an Independent Contractor

How to Avoid Incorrectly Treating a Worker as an Independent Contractor.

The penalties for incorrectly treating a worker as an independent contractor are significant. Consider these factors before deciding whether to treat a worker as a contractor.

Many business owners want to use independent contractors to complete certain tasks rather than hiring employees. There are advantages to hiring an independent contractor. First, instead of paying significant overhead costs for an employee - including taxes, benefits and insurance - you pay a contractor only for the end result. Second, hiring a contractor involves a smaller administrative workload. An owner need only file IRS Form MISC-1099 as opposed to dealing with the numerous forms and deductions required for a regular employee. It is important not to treat your contractor like an employee. The penalties for incorrectly labeling a worker as a contractor can be costly. An owner is responsible for the employer taxes for failure to withhold as well as a portion of the employee's taxes that were not paid. You must file MISC-1099 for each contractor that you paid in excess of $600.00 during the year. Failure to file could double your percentage of the employee taxes you may owe should you determine that your contractor was actually an employee.

If the answer is "Yes" to the following questions the worker is probably an employee:

1. Does the owner provide instructions to the worker about when, where and how he or she is to perform the work?
2. Does the owner provide training to the worker?
3. Are the services provided by the worker integrated into the owner's business operations?
4. Must the services be rendered personally by the worker?
5. Does the owner hire, supervise and pay assistants to the worker?
6. Is there a continuing relationship between the owner and the worker?
7. Does the owner set the work hours and schedule?
8. Does the worker devote substantially full time to the business of the owner?
9. Is the work performed on the owner's premises?
10. Is the worker required to perform the services in an order or sequence set by the owner?
11. Is the worker required to submit oral or written reports to the owner?
12. Is the worker paid by the hour, week or month?
13. Does the owner have the right to discharge the worker at will?
14. Can the worker terminate his or her relationship any time he or she wishes without incurring liability to the owner?
15. Does the owner pay the business or traveling expenses of the worker?

Have you considered a human resource audit to help you avoid incorrectly treating a worker as an independent contractor?

How to Preserve Corporate Status and Maintain Limited Liability

How to Preserve Corporate Status and Maintain Limited Liability: Follow simple steps to preserve your corporate status and maintain limited liability.

If you are careless about maintaining the separation between the corporation and yourself, you can jeopardize your freedom from personal liability or certain tax benefits - the main reasons to incorporate. It is rare for a judge to disregard a corporation and impose personal liability on a shareholder, but it does happen. When it does it is almost always in a small corporation where the owner has allowed the line between the corporation and the owner to disappear.

Following these simple steps help preserve your corporate status and maintain limited liability:

1) Put adequate capital into your corporation. This means putting in enough money and other assets to meet your foreseeable business requirements. The amount will vary from business to business. Get advice from someone in that business or an accountant.

2) Insure against obvious risks. Is there a substantial risk to customers or others being injured because of your business? It is wise to obtain a reasonable amount of coverage.

3) Observe corporate formalities. Issue stock certificates to shareholders before doing business. Keep a corporate record book with Articles of Incorporation, stock records, bylaws and minutes of shareholder and director meetings. Hold annual meetings each year to elect directors and officers.

4) Separate your personal finances from the corporation's. Your corporation needs its own bank account. Don't use the corporate bank account to pay your personal expenses.

5) Use the correct corporate name. Use your full corporate name in all your business dealings. Put the corporate name on your stationery, business cards, phone book listings and on your Web site. Be careful not to use an abbreviated version of your corporate name unless you have filed for a fictitious name with the Secretary of State.

6) Sign documents as a corporate officer. Sign your name - "John Doe, President" - along with the name of your corporation, rather than sign just as an individual. This makes it clear you are acting as the agent for a corporation and not as an individual. If you must personally guarantee an obligation you should still follow this advice. It provides evidence that the corporation and you are separate legal entities.

7) Assign existing business to the corporation. If you incorporate an existing business (such as a sole proprietorship or a partnership) the old business may have contracts. It's usually a good idea to formally transfer these contracts to the corporation.

Who Should Conduct an Internal Investigation of Harassment?

Who Should Conduct an Internal Investigation of Harassment: Considerations

Business owners often wonder who should conduct internal investigations of harassment. Here are some considerations:

Internal Investigators

1) Management. A direct supervisor may be less likely to be impartial. If a manager is chosen outside the direct line of supervision, that person should be of higher rank than the accused. A person the same rank may appear biased.

2) Attorney. The corporate attorney is often chosen because the company can invoke the attorney-client privilege. An attorney investigator will usually be outside the line of supervision of the accused and is often familar with laws and company policies. A corporate attorney, however, may also appear biased in certain situations.

3) Human Resource Department. A human resource manager is often outside the chain of supervision and familar with applicable laws and company policies. This person may also be trained in investigation techniques. In certain situations, however, this person may appear biased.

Outside Investigators

Outside investigators may be necessary to ensure independence and also may have the necessary training and experience to conduct such an investigation. If you have a small business, an outside investigator may be critically important in order to avoid the perception of bias. You must make sure the outside investigator becomes familar with your company policies.

Sullivan & Ward, P.C. Provides Iowa Registered Agent Services for Businesses

Iowa Registered Agent Services for Businesses:

Sullivan & Ward, P.C. provides Iowa registered agent services for your business. Corporations and limited liability companies are required to appoint a registered agent and office within Iowa to receive service of process. We serve as your business entity's Iowa designee to accept official documents on your behalf such as original notices for lawsuits and communications from various Iowa state agencies. If your business is a corporation, our service also includes preparation of the biennial report filed with the Iowa Secretary of State office.

You may see other organizations and businesses on the Internet, in magazines or the newspapers that provide registered agent services. Many of those organizations are unable to provide you with legal advice and may not fully understand the implications of Iowa law. Our law firm is located in the State of Iowa and we provide these registered agent services only in the State of Iowa.

Click here to find out more about Sullivan & Ward's registered agent services for businesses.

Des Moines Patent Lawyer Files RICO Lawsuit to Fight Alleged eBay Fraud

Des Moines Patent Lawyer Files RICO Lawsuit to Fight Alleged eBay Fraud

Des Moines patent lawyer Brett Trout recently filed a federal lawsuit alleging RICO violations against a woman Trout says is defrauding eBay users. Trout purchased a car from the woman for $22,000 on eBay. He received the car but the title was never delivered even after months of phone calls and threats of litigation. To support his RICO claims, Trout alleges the woman did not deliver certain items to winners of her other eBay auctions including a boat. RICO claims are most often used against criminal conspiracies such as organized crime. While the approach may be novel Trout says the claim fits in this situation. It may have worked too as he is currently in negotiations to obtain the title and recoup certain costs he incurred over the last several months. Trout says, "I just want to drive my car, right now it is the world's largest door stop."

Brett Trout is the author of Internet Laws Affecting Your Company. For more information you can visit his Web site at www.bretttrout.com

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Growing Companies Face Exposure to Employee Lawsuits

Growing Companies Face Exposure to Employee Lawsuits: Des Moines Business Record

The Des Moines Business Record recently featured business lawyer Rush Nigut of Sullivan & Ward, P.C. in an article concerning the exposure of growing companies to employee lawsuits. Click here to read the article on exposure to employee lawsuits.

Avoiding Sexual Harassment Claims in Iowa

Avoiding Sexual Harassment Claims in Iowa: Practical Advice

Employers have an obligation to prevent sexual and other forms of harassment in the workplace. Some ways to avoid harassment claims include the following:

  • Have a written policy against harassment which should include an anti-retaliation provision for those employees who report harassment.
  • Provide and communicate in writing multiple channels for your complaint procedure. Employees should be able to report harassment to more than one person within the company. The complaint process should be clearly defined in your employment manual.
  • Make sure you train supervisors each year and require supervisors to report harassing conduct.
  • Once notified of harassing conduct - take immediate action to investigate.

Click here for more information on avoiding sexual harassment claims in Iowa.

Small Business Human Resource Audits

Small Business Human Resource Audits: How to avoid employee lawsuits

Are your employment policies and practices up-to-date? Every employer is at risk for an employment-related lawsuit. Every lawsuit is potentially devastating to your business, given the high costs of defending a suit, negative publicity, employee time spent in litigation, and ripple effect of employee complaints. You can significantly cut down your exposure to an employment-related lawsuit by having an attorney review your company employment policies and procedures from the interview to the termination stage. Well-drafted employment policies and handbooks, detailed recordkeeping, and good human resource practices are the best way to avoid complaints and employment-related lawsuits. Click here for more about small business human resources audits.

Small Business Incorporation in Iowa

Are you looking to incorporate your Iowa small business? My first word of advice is to speak with an accountant to determine which form of business best suits your tax situation. Your choices likely include the "S" corporation, "C" corporation or you could choose to form a limited liability company.

Some people are inclined to choose an online service to incorporate your business. Many of these companies hook you in with a low cost advertisement for the incorporation but the other necessary documentation is offered for a significantly higher cost. Further, these organizations are often unaware of specific legal situations and local laws.

It is wise to choose a business lawyer to incorporate your business. You want to make sure your lawyer practices primarily in business law. Choosing a lawyer that is not familar with business law may have serious consequences and may increase the costs because the lawyer may learn on your dime. By analogy, you would not want a plastic surgeon operating on your heart. Find out how to affordably incorporate or form a limited liability company for your business. Click here for more on small business incorporation.