General

Michigan has passed a new law that allows a registered sex offender to petition the Circuit Court in which he or she lives for removal from the registry maintained by the Michigan State Police. MCL 28.728, dubbed in other states as the "Romeo Law," allows offenders who meet a specific list of criteria to seek for the early removal of their names and photos from the registry.

The law requires that the victim be a certain age during the perpetration of the crime and that the offender not be older than 19 years at the time of the offense. The instances of this type of offense are narrow, but it allows for a person so convicted at an early age to live free from the stigma of the sex offender registry.

Restoring a driver's license can be a difficult and long road. If the driver has lost the license from multiple alcohol related offenses, which usually is accompanied by repeated driving while license suspended offenses, the suspension period may be long.

Many drivers do not approach the restoration during their suspension period with the proper logic and attention. To make matters worse, a driver will often attend the first restoration hearing completely unprepared for the questions that are inevitably asked.

A Living Will should be an integral part of your estate plan.  Managing your estate not only means planning for the disposition of your assets after your death, but also means creating a plan for your treatment should you become incompetent and need medical care. A Living Will is a written document that lets your family and doctors know what kind of medical care you want to receive when you are not able to direct your care on your own.

1.  Your Medical Treatment Options. When you are a competent adult, you are responsible and able to make all the medical decisions for your care.  This means that you are able to agree to and refuse any testing, medical procedures or medication you do not wish to have.  This includes any procedures or medication that may extend your life, even if your family or doctor thinks it would be to your benefit.

You have the right to remain silent.  Anything you say can and will be used against you in a court of law. You have the right to an attorney.  If you cannot afford one, an attorney will be provided to you.

Everyone is familiar with the Miranda warning - it is a staple in television police procedurals.  We all understand that you do not have to speak to officers questioning you.  But included in your Miranda warning is your right to an attorney in a criminal case. This right is sometimes less clear, but it is of paramount importance.  Your right to counsel is provided to you by both the Fifth and Sixth Amendments to the Constitution.

Claims against the estate affect your estate plan.  It is important to be sure that if you have a claim against a decedent's estate that you file it in a timely manner.  If you are creating an estate plan, it is in your heirs' best interests that you create a plan that deals with many of the usual claims against a decedent's estate.

1. Determining Business Ownership. In Michigan, property acquired during the marriage is considered marital property. What does this mean for a business? If you or your spouse started the business during your marriage, the entire business is considered marital property. This not only includes a business where both spouses are directly involved but also includes a business where one spouse runs the business and the other stays at home and raises the children. In almost all circumstances, the court will conclude that each spouse owns half the business.

Gramm-Leach-Bliley Act , 15 U.S.C.A. § 6802(e) (8) allows an adverse party open access to another party's nonpublic financial information held by a financial institution by "judicial process".  Frequently, this is attempted by a "documents only subpoena" which does not require appearance before a court, but frequently appearance before the adverse party's attorney. Banks are genuinely concerned for their own liability to their customers, because the statute does not tell us if such a subpoena is "judicial process".

The issue is simple but the law is not. Without a court order or the consent of the customer, the Bank may be prohibited from disclosing non-public information as a financial institution to a private plaintiff in a civil case without further "judicial process" under the Gramm-Leach-Bliley Act, 15 USC § 6802(e)(8).  The relevant text of the statute is as follows:
Sec. 6802. Obligations with respect to disclosures of personal information

(a) Notice requirements
Except as otherwise provided in this subchapter, a financial institution may not, directly or through any affiliate, disclose to a nonaffiliated third party any nonpublic personal information, unless such financial institution provides or has provided to the consumer a notice that complies with section 6803 of this title.
......

(e) General exceptions
Subsections (a) and (b) of this section shall not prohibit the disclosure of nonpublic personal information -
..........
(8) to comply with Federal, State, or local laws, rules, and other applicable legal requirements; to comply with a properly authorized civil, criminal, or regulatory investigation or subpoena or summons by Federal, State, or local authorities; or to respond to judicial process or government regulatory authorities having jurisdiction over the financial institution for examination, compliance, or other purposes as authorized by law. [emphasis added].

The language of the exception is in the disjunctive: the exception applies to (1) properly authorized ... subpoena ... by Federal, State or local authorities or (2)  to respond to judicial process or (3) [to] government regulatory authorities having jurisdiction over the institution.

The first and the third exceptions do not apply.  Is a  civil subpoena signed by an attorney alone without the customer's consent or an accompanying court order "judicial process." But it may be inferred as such. There is no authoritative precedent in Michigan that a documents only subpoena is "judicial process" under 15 USC § 6802 (e)(8).

Parties to a divorce or other contentious litigation frequently spare over a subpoena of records and place a bank between them.  One party demands production, the other refuses, the bank requests a consent from its customer and that is refused.   Then neither party seeks the intervention of the court and dig in their heels.

Like almost all other such disputes, the parties usually settle, because either one could go to court and obtain an order.   Parties could simply use other discovery means to obtain the bank records, such as a request to produce records, but they like the emotional effect of a "subpoena for your bank account."   However, where one party insists on a documents only subpoena and the other refuses consent, the Bank is damned if it does and damned if it doesn't.  Moreover, there are the financial, public relations, and management impacts of having to deal with these questions.

The prohibitions mandated by the GLBA are quite simple. The Act unequivocally states that a financial institution simply cannot disclose nonpublic personal information of its consumers to a non-affiliated third party UNLESS:(1) the financial institution clearly and conspicuously discloses to the consumer that such information may be disclosed; (2) the consumer is given the opportunity before the time of disclosure to direct that such information not be disclosed; and (3) the consumer is given an explanation of how he/she can exercise that non-disclosure option. See 15 U.S.C. §6802 (b). When the bank give its customer notice of the subpoena, the customer can decided to exercise the non-disclosure option.

The Michigan Bankers Association has advised its members that a documents only subpoena is really a request for production, and that there is a duty of confidentiality which requires notice by the Bank and a right objection by the customer to protect the customers' accounts.  However, the courts in Michigan have not fleshed out the process or rights after notice of such rights is given.

Counsel in other States suggest that while there is a duty of comply with civil subpoena, banks run the risk of sanctions from their customers Gramm-Leach-Bliley Act.

The Courts in the few States to pass on these disputes, never reach the issue, since by the time the matter is on appeal, the trial court has already issued the needed order for production, nullifying the issue of the initial response of the financial institution

Banks are threatened repeatedly by parties in litigation with claims for sanctions and damages.  When necessary a bank should seek a protective order from the court to quash or enforce the subpoena, but protect the Bank from further liability and costs.

In the ideal circumstance, every child would be connected in some way to supportive parents who are able to provide emotionally and financially for them. But life is rarely so straight-forward and many families are faced with issues of unclear paternity or even disputed paternity.

The need to legally establish paternity might be particularly great in instances of contested child custody or child support in Michigan. In cases like that, you may need the assistance of a Chelsea family law attorney.

1. I don't have enough assets to need a Will.

Even if you don't have many assets, it is probable that you still need a Will. A Will is an important estate planning document that appoints a person to act as your executor/personal representative upon your death and ensures your assets are divided according to your wishes. It also establishes a guardian for any minor children. If you die without a valid Will, the court will appoint a personal representative for you and state law will dictate how your assets are divided among those you leave behind.

2. If I have a Will, I can avoid Probate.

Having a valid Will does not mean your estate can skip Probate. Upon your death, your Will must be filed with the probate court. Probate is an administrative process that appoints a Personal Representative to ensure your assets are gathered, all your debts are paid, and your remaining assets are distributed to your beneficiaries. Without written approval from the court, your personal representative will not have the power to act on behalf of your estate.

3. Establishing a Trust is better than having a Will.

While there are many benefits to establishing a Trust (including: potential tax savings and the avoidance of probate), doing so may not be suitable in all cases. Setting up and maintaining a Trust can be time consuming and may be more expensive than the traditional probate process. A qualified estate planning attorney can discuss the benefits and costs associated with a trust and help you decide whether one is right for you.

For additional information regarding Wills or Probate, contact the Michigan estate planning and elder law attorneys at Keusch, Flintoft & Conlin, P.C. today.

The "Super Drunk" bill, a new drunk driving law, is scheduled to go into effect on October 31, 2010.

Following country wide crackdowns on drunk drivers, the Michigan bill creates a new classification of drunk driver, known as the "Super Drunk," and includes any driver with a bodily alcohol content (BAC) of equal to or greater than 0.17, which is over twice the legal limit of 0.08.

After October 31, "Super Drunk" drivers will face harsher penalties than they do under current Michigan law, including:

• A one-year driver license suspension for a first offense, the first 45 days of which is a "hard suspension," meaning that no driving at all is allowed;
• Placement of a breath alcohol ignition interlock device (BAIID) on his/her vehicle at the expensive of the driver;
• Increased fines;
• Increased jail time; and
• Possible placement in a mandatory one-year-minimum alcohol treatment program.

With such an increase in penalties, it is more important than ever to obtain experienced criminal defense representation. If you have been arrested for drunk driving in Michigan and your BAC was over 0.17, you could face severe financial and legal consequences. For help, contact the Chelsea, Michigan criminal defense attorneys at Keusch, Flintoft & Conlin, P.C. today.