Monday, November 11, 2013

The Appeal of Zeal

Jeffrey D. Brunson

Letterman or Leno?  That was the assignment handed out in my freshman year college English course.  I was to debate which late-night talk show host was better against another student. We walked to the front of the class and exchanged oratorical parries and deflections.  At the end of the carnage, my opponent said something to the effect of, “Hey man it’s not World War III; we’re just talking about late-night talk show hosts here.”   As my 12-year-old daughter says about everything, “Awkward!”   In my mind, I was passionately and zealously advancing my position.  To my fellow student I was creating uncomfortable conflict in regards to an issue that was just not that important and I should give it a rest.

This may come as a shock to some, but lawyers have ethical rules that govern their behavior.  In the preamble to the ethical rules it provides, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”  (I.R.P.C. Preamble [2].)  A lawyer has an ethical duty to fight passionately for his or her client’s position.  Too often there is a stigma attached to a lawyer who is passionately representing his or her client.  A lawyer’s primary focus should not be to make opposing counsel happy and comfortable, but instead to put his or her client in the best position possible.

Frequently, lawyers use their passion not for advancing their client’s position, but rather for forcing their client to settle the case.  While settlement may be a good result in some instances, the desire to settle should not dominate a lawyer’s efforts in handling a case.     

In a system designed to deal with conflict, conflict is going to happen.  Combatants in the legal arena should be equipped to deal with this conflict and not allow perceived discomfort to prevent them from zealously advancing the cause.   Even judges at times can seem uncomfortable with passionate representation.  A lawyer must be ready and willing to step into these situations.  In fact, a good lawyer should be causing these “awkward” situations. 

The lawyer one sees at church on Sunday should not be the lawyer one sees in the courtroom.  I am not suggesting that a lawyer should be running around the courtroom screaming “Did you order the Code Red?!” but rather that a lawyer should be passionately fighting on his or her client’s behalf.  At times the comment, “he cares a little too much about that issue” is used to characterize someone who is overly excited about a subject.  A good lawyer should “care a little too much” about his or her client’s case.

Zealous representation is not only okay; it should be desired and applauded.  A lawyer who seems checked out, distracted, or disengaged is not a lawyer worth hiring.  On the other hand, a lawyer who treats your matter like it is World War III is one worth having on your team.  A zealous advocate may not be able to solve all of your problems, but, at a minimum, should at least be able to convince you of the incontrovertible truth that what was true in my freshman English course is still true today – Letterman is better than Leno.

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Thursday, March 15, 2012

Gambling on March Madness

Henry Weinhard’s Root Beer.  That beverage is about as good as it gets to a 17 year-old on a warm summer day.  “Loser buys winner a six pack of Henry’s,” my friend had said in challenging my other friend and me to a game of basketball.  While he was a good player, he was not that good.  In hindsight I may have overlooked the fact that I was a scrawny cross-country runner who was probably 130 pounds soaking wet, and my teammate to be was a football player who liked to hit people.  Nevertheless, we accepted the challenge and liked our chances in the two-on-one matchup.  What ensued was neither pretty nor fun.  The game came down to one decisive play which I have absolutely no recollection of.  All I remember is that there was a dispute over the rules, which was going to determine the outcome.  Both sides became entrenched, and by entrenched I mean I began screaming and losing control over my limbs while our opponent chuckled.  I ended up leaving in a huff.  “What started out as a joke [had] turned into a disaster!”  (Yes, that is a Rocky IV quote.)

My initial foray into gambling left a bad taste in my mouth, not for the moral reasons it probably should have, but instead because I did not like the way I behaved with something riding on the outcome of an otherwise friendly game.  Because of that experience, I am still reluctant to this day to put “skin in the game.”  Even when it comes time to do something I love like filling out brackets for March Madness – there is never any desire on my part to put money on the line because I am afraid of how I will behave when things get tense.  Fortunately for CBS, this is not an infirmity afflicting most Americans. The moral implications of putting a few bucks into a March Madness pool could be endlessly debated (and I am certainly not suggesting how that debate should come out).  As adeptly pointed out by my partner, John Avondet, there is a separate legal question that one must consider before plunging into the pool of college-basketball-betting-iniquity.  Is putting money in a March Madness pool illegal?

Let’s break it down much like one does when deciding what team to pick in filling out a bracket.  Idaho Code § 18-3801 defines gambling as, “risking any money . . . or other thing of value for gain contingent in whole or in part upon lot, chance, the operation of a gambling device or the happening or outcome of an event . . .”  So by putting a few dollars into the pool one is “risking money” on the “outcome of an event” and clearly meeting the statutory definition of gambling.     

Idaho Code § 18-3802 further provides that a person is guilty of gambling if he:  “participates in gambling; or knowingly permits gambling to be played . . . in any real or personal property owned, rented, or under the control of the actor . . . .”  The statute further provides that gambling is a misdemeanor.  So if you participate or are an employer and know about the office pool under the plain terms of the statute you are guilty of a misdemeanor. 

Idaho Code § 18-3803 goes even further and provides, “Every prosecuting attorney, sheriff, constable or police office, must inform against and diligently prosecute persons whom they have reasonable cause to believe offenders against the provisions of this chapter, and every such officer refusing or neglecting to do is guilty of a misdemeanor.”  So be careful, if law enforcement catches wind of your office pool they have an absolute duty to diligently pursue you or they themselves are guilty of misdemeanors.  So if, for example, the prosecutor’s office, hypothetically speaking of course, had an office pool, they would be committing a misdemeanor in participating in the pool and an additional misdemeanor for failing to prosecute themselves. 

So the next time you casually bet a six-pack of Henry’s or contribute to the office pool, you might want to make sure you have a prosecutor or two participating so as to avoid prosecution.   

Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA.  The opinions contained are his own and nothing written should be construed as legal advice.  Jeff's practice involves litigation, business disputes, and estate disputes.  He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, or follow him on Twitter @jeffbrunson.

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Employment Law, Litigation
Saturday, November 3, 2012

Avoiding hiring entanglements

“Binders full of women.”  Governor Mitt Romney’s gaffe during the second 2012 presidential debate has become an internet sensation.  While attempting to send the message that he was supportive of women in the workplace, Governor Romney’s choice of words may have sent the opposite message.  President Obama has also made gaffes.  When responding to a question about his bowling prowess, President Obama stated, “No, no.  I have been practicing . . . I bowled a 129.  It’s like – it was like Special Olympics, or something.”   President Obama’s attempt at self-deprecating humor came off as insensitive to families with special needs children.    

Just as candidates can run into problems saying too much on the campaign trail, employers can say too much during job interviews.  See if you can guess which of the following questions are okay to ask and which ones are not (source material taken from Employment Law Guide, Business and Legal Reports, Inc.).

  • You have an interesting name where does your family come from originally? – Not okay to ask.  Employers should not ask questions that could indicate the applicant’s lineage, ancestry, or national origin.
  • Are you authorized to work in this country? – Okay to ask.
  • Who should I contact in case of an emergency? –  Not okay to ask before hired.  This question could elicit information regarding marital status, domestic partnership status, national origin, or other protected information.
  • How old are you? – Not okay to ask.  May give the impression that applicants of a certain age are preferable leading to a claim of age discrimination.  It is permissible to ask whether an applicant has reached the legal working age in order to comply with child labor laws.
  • What was your last job? – Okay to ask.
  • Have you ever been arrested? – Not okay to ask.  An arrest without a conviction does not evidence any wrongdoing.  Blanket policies that exclude any applicant with a history of arrests could violate the law because they tend to exclude members of certain racial or ethnic groups.
  • Have you ever been convicted of a crime? – Generally okay to ask.  You could still run into problems if there were a blanket prohibition.  However, some jobs such as child care jobs require inquiry into a criminal background.  
  • Can you work on Sundays? – Not okay to ask.  The law prohibits discrimination on the basis of religion.  Once the applicant is offered a job it is okay to ask if the applicant will require an accommodation for religious practices.
  • Are you gay? – Okay to ask in Idaho.  Federal law does not expressly prohibit discrimination on the basis of sexual orientation.  It is left to the states to legislate.  In Idaho, a bill has been proposed that would ban discrimination based on “sexual orientation”.  It has been proposed each year for the last six years and is yet to be given a hearing.

No matter how well you did on the quiz, it is still advisable to consult an attorney regarding what questions you can ask during a hiring interview.  An employer can ask a question about a prohibited category only if it is reasonably necessary to the operation of the employer’s business and there is no less intrusive way to ensure that the applicant will be able to perform the essential functions of the job.  Making these determinations can be difficult, and an attorney can help you come up with the right questions to ask.

If you ever find yourself in a job interview in the middle of the awkward silence that follows after you asked a poorly thought out question, take solace in the fact that at least your gaffe will not be broadcast to millions and can probably be remedied by pulling a reverse Donald Trump and saying, “you’re hired!”

Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA.  The opinions contained are his own and nothing written should be construed as legal advice.  Jeff's practice involves litigation, business disputes, and estate disputes.  He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, or follow him on Twitter @jeffbrunson.

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Employment Law
Saturday, September 17, 2011

Signing your freedom away

“Just sign here,” my 9-year-old daughter said to her two younger siblings.  Her younger brother and sister did not think twice before signing.  My 9 year-old was quite pleased with the deal she struck.  She now had exclusive access to the optimally located desk while her younger brother and sister were relegated to sharing the older table in the corner across the room.  Two lessons can be learned from this example:  (1) I need to stop taking my work home with me; and (2) read and consider before signing.  While my wife might have something to say about the former, it is the latter I wish to focus on here.

One area in which reading and considering is paramount is non-compete agreements.  Non-compete agreements are designed to protect employers from the competitive efforts of their former employees.  Are non-compete agreements enforceable?  I will resist the urge to give the standard lawyer answer of “it depends”(although that is technically the correct answer as it is religiously taught in law schools across America that if someone asks any question about anything the answer is “it depends”).  Based on an Idaho law passed in 2008, a non-compete agreement is likely enforceable if:

  • It is limited to 18 months after separation;
  • It is limited to the geographic area where services were provided;
  • It is limited to the type of work provided by the employer; and
  • It seeks to protect customers or other business interests of the employer.

On the front-end of a relationship most employees attach little significance to signing a non-compete agreement.  Take Larry and Bob, for example.  Larry owns a lemonade stand.  Larry hires Bob fresh out of business school to sell lemonade.  The lemonade costs 25 cents a cup and Bob gets 3 cents for every cup he sells.  Larry presents Bob with a non-compete agreement which was expertly drafted by his attorney, Tommy Tort.   Bob signs the non-compete agreement without reading it.  For the next few years, Bob sells lots of lemonade.    Bob knows he could make much more than 3 cents a cup on his own and announces to Larry that he is leaving to start his own lemonade stand.  Larry pulls out the agreement and tells Bob that if he sets up shop in the community he will sue him.  Bob is stuck because he does not want to uproot his family and leave the community.  If Bob wants to challenge the agreement he will need to pay a lawyer to do so.  While non-compete litigation is common, it can be avoided.

The best time to deal with a non-compete agreement is before you sign it.  Employers can protect their interests by drafting a non-compete agreement that follows the law. By signing a non-compete an employee is giving up some freedom.  It may be worth it to sign the non-compete – the point is you should understand what you are signing.  You should not allow the joy and confidence that come from having marketable skills cause you to sign something you will regret later.  Otherwise, you may end up stuck in the corner sharing a table with the freedom of your own desk staring you right in the face from across the room.

Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA.  Jeff is a trial lawyer who specializes in business disputes and estate litigation.  He can be reached at his Rexburg office (208) 359-5883 or

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