Spring & Summer 2003

Inside This Issue:

• What Are My Rights If I Get Fired?
• Lead Paint And Old Buildings: Owners Beware
• DWI: A Question Of Judgment
• New Financial Rules In Divorce Cases Per NH Supreme Court
• Negligent Hosting Of Children - A New Area Of Liability In New Hampshire
• Assisted Living Facility Under Fire
• Child Custody Update: Planning To Move?
• It's Just A Simple Speeding Ticket, Right?
• Real Estate Brokers - You Have New Lien Rights
• Statement Of Our Values

What Are My Rights If I Get Fired?
In New Hampshire, the general rule is that you can be fired by your employer “at will” at any time for any reason, but there are several exceptions to this general rule.

Even if you are an “at-will” employee, you cannot be fired for doing something that’s protected by public policy. For example, it would not be fair for you to be fired for
reporting your employer to the authorities for violation of safety laws or because you filed a workers compensation claim.

Another area of unfair job termination is discrimination. You may be able to sue your employer if it is shown, for example, that you were fired because of your race, religion,
or gender.

You may also have rights to pursue against your employer if your firing was the result of sexual harassment. An example of this situation would be if you were fired because you refused to submit to the sexual advances of your supervisor at work.

If you are an employee of a city, state, or other government employer, you may be entitled to additional rights if the government employer has not followed the special rules regarding termination of government employees.

Finally, if you have a specific written contractual agreement with your employer that covers job termination, you may have additional protections. Most union collective bargaining agreements contain such additional contractual rights to make certain that you are treated fairly.

Employment laws are extremely complex and often changing. It is in your best interest to consult an attorney experienced in employment law to help you understand what your individual rights are.

Lead Paint And Old Buildings: Owners Beware
It is ironic that the best grade of paints used in the finest buildings up until the 1970’s, contained the highest density of lead. Lead helped the paint withstand the harsh New
Hampshire winters. That resiliency, however, causes health problems because lead does not break down after being ingested by youngsters, who are at high risk for lead poisoning.

Property owners and other real estate professionals, should be aware of the Federal HUD regulations on lead paint as it relates to sales, leasing and renovations. They should also beware of New Hampshire law regarding lead paint abatement and the relocation of families when a lead paint hazard is found in an apartment unit.

The bottom line is that although lead paint is a serious health hazard, it can be effectively managed under the law.

The firm has handled several lead paint cases, both on behalf of landlords, property managers, as well as injured children. Please call us if you have any questions concerning your rights and responsibilities regarding lead paint issues.

DWI: A Question of Judgment
Picture this: You go out for the evening and have some wine with dinner. You feel
very much in control. While driving home, you suddenly see the flashing blue lights of a police cruiser pulling up behind you. The next thing you know, a police officer is asking you to do some “tests” at the side of the road, followed by an arrest for DWI. Is the situation hopeless? Not by a long shot.

The vast majority of people charged with DWI are alleged to have been driving while “impaired” by alcohol or “under the influence” of liquor. What exactly do those words mean? Even with today’s so called “field sobriety tests,” breath tests, and blood tests, the ultimate decision about whether someone was impaired by alcohol while driving is up to a judge or jury. To put it simply, it is a judgment call made on a case-by-case basis.

If you feel you have been wrongly accused, you do not have to settle for a police officer’s opinion. These cases can be successfully defended, but you will need an experienced attorney on your side. DWI charges are perhaps the most complicated of motor vehicle charges. You need an experienced lawyer who can investigate and evaluate your case and, if necessary, put on your best defense at trial.

We at urge you to use your best judgment when choosing to consume alcohol. If that judgment is questioned by a police officer, you owe it to yourself to seek counsel before risking a license loss and the other serious consequences that can result from a conviction.

New Financial Rules In Divorce Cases Per NH Supreme Court
“Extracurricular activity expenses” of the parties’ children, for things such as sports, lessons and camps, can not be ordered to be paid by the non-custodial parent. The court has ruled that these things are covered by the child support order and should not be added on as an extra financial obligation. For families with active youngsters, this ruling may have huge financial impact.

“Retirement” contributions made up to the final divorce hearing can be split as
marital assets. Previously, retirement contributions as well as other marital assets had been valued as of the date of the filing of the divorce action.

“Personal injury settlements” are marital property and subject to equitable division pursuant to a divorce, regardless of the purpose of the award.

Based on those rulings, it is even more important to consult your attorney
and financial planner if you find yourself facing divorce.

Negligent Hosting Of Children - A New Area Of Liability In New Hampshire
In this case a young child who regularly visited the house was subjected to sexual abuse by the homeowner’s older child. The homeowner’s insurance company argued that parents are not responsible for all of the wrongs of their children. While that is the general rule in New Hampshire, in this case we successfully argued that, once an individual takes on the obligation of “hosting” a child, that individual owes a duty of reasonable care to that child.

The Superior Court agreed that a homeowner can be held liable for negligent
“hosting” if the homeowner does not take reasonable steps to protect a guest
child from foreseeable harms. In this case the court found that it could be
argued that the harm to the young child could have been prevented if the homeowners
had properly supervised the interaction between the harmed child and their older child.

Please note, however, if you are the parent of a child who is accused of
wrongdoing or you believe your child has been harmed by another child, we suggest
you obtain legal advice regarding your rights and responsibilities before jumping to any conclusions.

Assisted Living Facility Under Fire
As our population continues to age, and we are living much longer than our parents, our older population has not shaken the old terror of “going to a nursing home.”

As a result, the market place has sought to meet the need by establishing “assisted
living facilities.” Some have criticized such facilities to be “nursing homes without the nursing home license.”

Law firms are increasingly being asked to review instances of neglect. While very few cases are actually being brought in New Hampshire, there have been several cases brought against assisted living facilities around the country, which may help to improve the services that are being delivered there. Some abuses have included the following:

In Florida, a former aide at an assisted living facility pleaded guilty to raping a partially paralyzed woman in his care. The man had four previous convictions in other states, but Florida regulations did not require extensive background checks and the assisted living facility apparently did not conduct those extensive background checks.

In North Carolina, an adult care homeowner was charged with manslaughter when one of his elderly residents died when the heater in the home was essentially turned off.

In California, a 92-year old Alzheimer’s patient was found malnourished, dehydrated, and covered with ants by attendants at a residential care facility. This facility was not required to have 24-hour medical staff on site. The man died a week later.

In New Hampshire, sadly, one of our retired Supreme Court Justices died when he wandered out of his Alzheimer facility in the middle of winter and was not able
to find his way back in. Dressed in light clothing, he died during his outdoor jaunt from the cold.

While Assisted Living Facilities serve a very important need, families should look into specific facilities carefully since they are frequently much less regulated than nursing homes.

Child Custody Update: Planning To Move?
In our very mobile society, parental relocation frequently causes child custody disputes. This hot legal issue has motivated the State Legislature to adopt a law to give some restrictions before a custodial parent can take the children away when the original custody order fails to address this issue.

Under the new law, when the final divorce or custody order is silent on the issue,
either party, the custodial parent or the parent with visitation rights, may petition
the court for a hearing on the contemplated relocation. The custodial parent who is seeking to relocate with the children must be able to show that the move is for a legitimate purpose and that the location is reasonable in light of that purpose. If this is shown, then the other parent has the burden to show that the proposed relocation is not in the best interest of the child or children. This change gives the visitation parent more
rights than previous law.

Whenever your parental rights are at issue, we strongly recommend you consult with an experienced family law attorney.

It's Just A Simple Speeding Ticket, Right?
Maybe — and maybe not. If the ticket says you “must appear” in court, be aware that the judge can take your license for up to 30 days for any traffic violation.

Also, depending on your overall motor vehicle record, even a minor traffic violation can cause the Division of Motor Vehicles in Concord to take your license if you have too many “demerit points.” Even worse, the DMV can declare you to be an “habitual offender” and take your license for up to four years!

Most folks in New Hampshire depend dearly on their licenses, especially to get to
work and earn a living. There is no such thing as a special excuse to drive to work if you lose your license. If it’s gone, it’s gone!

We recommend you consult with a lawyer if:

1. You receive a “must appear” type ticket; or
2. You receive any type of ticket, and you already have a record of traffic convictions; or
3. You receive any type of notice from the DMV about your license or registration being suspended or revoked.

Real Estate Brokers - You Have New Lien Rights
A recent change in New Hampshire state law allows real estate brokers, who are due
a commission on real estate sales, to file a lien at the Registry of Deeds without the necessity of obtaining prior court approval.

That new statute provides significant additional leverage to a real estate broker
who is being squeezed out of a commission. Historically, the broker would have to hire an attorney and expend up to $1,000.00 or so in legal fees to actually file suit and obtain prior court approval to attach the real estate at the Registry of Deeds.

This new streamlined process has not yet been tested in New Hampshire courts. It
will be interesting to see how regularly it is used by real estate brokers and whether the lien process causes any delay or tension with the closing .

Statement Of Our Values
Trustworthiness. We are trusted advisors to our clients, because they know we will always do it right – or refer them to someone who will. We keep our word. We speak the truth, without exaggeration, even if the truth is not what the client wants to hear. Whatever needs to be done on their behalf will be accomplished properly and with their best interest in mind.

Service. We care about and identify with our clients. People come to our firm because they know we solve problems and get things done in a thorough, thoughtful, and timely manner. We approach every problem as if it were our own, every client as if he or she were a valued member of our family.

Excellence & Pride. The entire Law Firm team takes pride in the quality of our work. We understand that each of us must perform at the highest level of excellence if we truly are to serve our clients. But we never rest on our accomplishments: we continually learn and improve, always striving higher, seeking to get as close to perfection as possible.

Teamwork. We are committed to the mission and values of the Law Firm. This is more than a job. It’s a spirit, an attitude, a way of being. It shows in how we work together and on our own. We are ever mindful of the impact of our words and actions on our clients and each other. We respect and care about each other. We support one another in our jobs and lives.