Bluegrass Business Law

May 7, 2007

Comprehensive legal consultation

Filed under: Business,Construction Law — G.A. Napier @ 3:52 pm

Every time I meet a new person and wind up saying that I am an attorney, or counselor at law, the very next question is, “What kind of law do you practice?” or “What kind of lawyer are you?” I am always tempted to say, “The good kind.” But, I think I have a better answer, “A comprehensive one.” In every professional field, there is increasing pressure to specialize. The general practitioner, whether in law or medicine, is being squeezed out of existence. I often wonder if there will be a backlash to this demand for specialization.

One downside to specialization is a narrowing of focus. Consider this situation in the construction/development industry where a prominent developer is being criticzed for violating Federal laws protecting wetlands. I do not wish to focus on the motives involved in bringing this situation about, rather it left me wondering what kind of legal counsel did the developer get before starting and along the way with this project. Did that developer have one attorney specializing in construction, but unaware of the issues of environmental law? Was an attorney consulted at the inception at all? And most importantly, if an attorney who valued a comprehensive approach had been consulted, would the developer now be facing expensive fines and delays? I do not know the anwers; for all I know, the developer sought and received top notch legal counsel.

What I do know, is that even if an attorney specializes, maintaining a comprehensive mindset can be invaluable. Such an attorney may not have the answers at the tips of his fingers. The value of such an attorney is more in how he or she thinks and not in the knowledge possessed. It is a truth about the practice of nearly any profession, but especially true about law, that the answers can be found if you just figure out the right questions to ask. So, a comprehensive minded lawyer would have been asking about environmental impact issues from the beginning.

December 1, 2006

An Ounce of Prevention . . .

Filed under: Business,Construction Law,Real Estate Law — G.A. Napier @ 11:22 am

Two situations I encountered this past week really drove home how valuable it is to obtain a little professional advice before agreeing to something. For privacy reasons I can only say that both of them signed away something very valuable without realizing it. I am sure that if someone had suggested to either of them that they should consult an attorney first, their first thought would have been that the expense was too great for something that seemed so simple. That is what most people would think. It is something I would have thought too prior to going to law school. Now, though, the cost to each one has grown exponentially because they are either paying to clean up the mess or have lost a right forever. If I can convince just one person out there that it is cost effective to get legal advice on the front end of a deal, then I will be content. This is especially true if you can locate a reputable solo practitioner or small firm. There are a few reasons for this. First, a solo practitioner will personally look over your circumstances rather than relegating down stream to a new associate or law student that is clerking for the firm. Second, most solo practitioners and small firms have lower hourly fees because of their lower overhead. Lastly, the solo’s and small firms are interested in long term business, even the small stuff, so they are more likely to give your issue the attention it deserves. Even if they do not have the answers when you first talk to them, they have the know how to get those answers. Seriously – most solo’s and small firm attorneys can look over a release form, contract, or custody papers in half an hour. In Kentucky, that would be anywhere from $75 to $100 dollars for routine issues (perhaps more for specialized issues). That is far better than having to pay for many, many hours of legal help in trying to fix a matter once it has gone sour. I want to doubly emphasize this if you are an individual and the other party to the contract is a corporation such as an insurance company. They have already spent thousands and thousands of dollars to lawyers with the end resulting being release forms and contracts that give them maximum protection and you minimum wiggle room. So, spend a little on the front end and save a lot in the long run.

November 15, 2006

ENGINEERS: Avoiding “Plan Stamping”

Filed under: Construction Law — Michael W. Troutman @ 5:55 pm

“Plan Stamping” is the illegal and unethical use of a licensed engineer stamp to certify plans.  In
Kentucky, where there is only one stamp among all of the various disciplines, the opportunity for abuse is even greater.  Not only can an engineer use his stamp to certify plans not done by him, he can use it to approve plans outside his discipline. 

KRS 322.340 addresses the use of a stamp.  It specifically refers to the Kentucky Administrative Regulations for directions on how it is to be used.  Subsection 4 specifically states that a stamp and signature shall be used by licensees only if the work being stamped was under the licensee’s complete direction and control.  Subsection 7 addresses working with any engineer not licensed to practice in KY and states that the KY engineer shall check and have complete dominion and control of the design and engineering work which shall include possession of construction documents with all supporting calculations, indicating all changes in the design.  In order to properly stamp plans prepared by an employee, the engineer must exercise “ direct supervisory control.” as defined by the regulations.  If certifying another engineers work, he must comply with specific requirements in the Administrative Regulations. 

Violations of these statutes can result in criminal prosecution and loss or suspension of license.

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