Sometimes, I use Google for Legal Research

I received an e-mail from a potential client this week that sort of confused me. Frankly, I didn’t know the answer.

The dispute related to a term I hadn’t seen before. The issue involved a check that his bank had returned, unpaid, to the other bank as “Return to Maker.” When I saw that, I went around the other bank lawyers. That’s my real “first step in researching weird legal issues”–asking the older bank lawyers if they’ve ever seen this.

When they either hadn’t (or weren’t at their desks), well, I consulted Google.

And, sure, you’re probably thinking that a lawyer shouldn’t admit to googling legal questions, but you’re wrong. Google is great to get general answers or concepts, before digging down on Westlaw.

In fact, I suspect Google is how the readers of this blog got here. But, Google can’t be entirely trusted, and you have to consider the legitimacy and trust-worthiness of the source when you click on the results.

So, yes, I found out that “return to maker” means, generally, that the payor bank has reason to deny the check due to a suspicion that the negotiable instrument has been forged, modified, or is generally unsure of the legitimacy. That note instructs the drawee bank to revisit the issue with their customer.

With that information (and before I gave out any legal advice), I did that deep dive on Westlaw  to confirm my analysis under Tennessee’s UCC adoption of Article 3.

So, there you have it. If a lawyer denies using Google, don’t believe them.

 

Presenting at 2017 Family Law Forum: The Life Cycle of a Divorce

As you all know, I regularly speak at Continuing Legal Education seminars for lawyers on topics related to foreclosure, bankruptcy, and other creditor rights issues in the law.

Well, to my surprise, the Tennessee Bar Association has asked me to talk about family law, at its annual Family Law Forum: The Life Cycle of a Divorce, on May 24, 2017.

Now, before you prepare your expert-level questions about parenting plans and in futuro alimony, please know that I’m speaking on Social Media legal issues in family law matters, including things that lawyers must warn their clients against.

I’m an expert on that, because I’ve been law tweeting actively for eight years at @creditorlaw, and my firm has only asked me to delete two tweets. That’s basically a perfect track record.

And, just in case one of you do that thing where you ask presenters weirdly complicated questions, I’ve enlisted Phil Newman, a great lawyer who I refer all family law matters, to serve as my co-presenter.

I’ll post more details later.

Lawyers Beware: New E-Mail Scams Using Fake E-mails Target (and Catch) Local Law Firm

I’ve talked about the new versions of the Nigerian e-mail scams targeting lawyers, but now there’s an even newer scam that lawyers need to be aware of.

This new threat, referred to as a “Business Email Compromise” scheme, entails a hacker breaking into the lawyer’s email account, monitoring the emails for some period of time, and waiting for a transaction involving a wire transfer to be discussed.

Once a transaction is identified, the scammer will then send a fake email (using a slightly modified e-mail address) that appears legitimate (at a glance) from one of the parties, but directs the party holding the funds to wire those funds to a different account than previously discussed. This new account is one controlled by the scammer.

If you think this can’t happen to you, then read this Complaint filed in Davidson County Chancery Court on April 26, 2016 (link here: 201604271031.). In that lawsuit, the scammers diverted nearly $900,000 from two property closings in March 2016 using emails that were slight variations of the real accounts.

Instead of “flippin@click1.net”, they used “flippin@cliick1.net”; Instead of “richardbacon50@comcast.net”, they used “richardbacon50@comcastt.co.”

Using these fake email accounts, the scammers sent the closing agent “follow-up” emails, presenting new wire recipient account information. By the time the fraud was discovered, the money was gone, and the only parties left to sue were–you guessed it–the closing attorneys who didn’t notice the changes in the emails.

Here are some red flags to watch for:

  • A last second change in wire instructions;
  • The change in wire instructions is made only via email;
  • A request that funds be released earlier or on an expedited basis;
  • The request uses broken English or bad grammar;
  • The new wire instructions uses an offshore institution or an institution you’ve never heard of; or
  • The new wire instructions involves payment to a person/party not previously in the transaction.

Some best practices in these situations are to:

  • Include wire instructions as part of, attached, and incorporated into the settlement statement personally executed by the parties; and
  • Before wiring any funds, verify the accuracy of the existing (or new) wire transfer instructions by a telephone call to the proper party receiving the funds (not the potentially fraudulent address on the e-mail or potentially fraudulent telephone number included in the e-mail).

As lawyers incorporate new technologies into their practices, so do the ways that scammers can use that technology against lawyers. Watch out.

Tennessee Supreme Court Considers Noisy Corn Maze in the Context of “Nuisance” Laws

In the fall, you’ll see corn mazes sprout up all over Tennessee. In fact, Memphis loves Marc Gasol so much that they made a corn maze mural of Big Spain. I’ve been to this corn maze, however, and I encourage you to not attend on the nights offering the “haunted” version. (It’s horribly terrifying.)

Ok, back to the legal talk. All this reminds me of a recent Tennessee Supreme Court opinion involving a corn maze, which is a great primer on the law surrounding “nuisance.” It’s at Shore v. Maple Lane Farms, dated August 19, 2013.

In the case, two neighboring landowners squared off in a dispute over the 225 acre farm’s noisy new side business. After years of raising cattle, corn, and other produce, Maple Lane Farms expanded to include an annual spring festival and, later, a fall festival and corn maze. The Plaintiff moved next door in 2003, and, over the next few years, the Farm’s side activities got louder. Beyond the quaint occasional pumpkin festivals, the Farm moved on to regular music festivals, ATV rides, fireworks, and even aerial tours of the corn maze via helicopter.

As you can imagine, music festivals and helicopter fly-overs can get loud, and the farm’s neighbor filed suit in Blount County Chancery Court for them to be quiet, citing local zoning laws.  The opinion has a long discussion of the procedural aspects, but I’ll talk about noisy neighbors here.

Citing the law that “directs landowners not to use their property in a way that injures the lawful rights of others,” the Court said a “nuisance is anything that annoys or disturbs the free use of one’s property or that renders the property’s ordinary use or physical occupation uncomfortable. It extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of the property.” “As long as an interference with the use or enjoyment of property is substantial and unreasonable enough to be offensive or inconvenient, virtually any disturbance of the use or enjoyment of the property may amount to a nuisance.”

The Court noted that the test is for a “reasonable person,” not for the “hypersensitive.” In judging a noise complaint, the Court noted “[a]mong the relevant circumstances are the locality, the character of the neighborhood, the nature of the use causing the noise, the extent and frequency of the injury, the time of day when the noise occurs, and the effects on the enjoyment of life, health, and property of those affected by the noise.” Remedies include damages and injunctive relief.

So, as you’re walking around a corn maze this fall, yelling for help or waiting for the fireworks to start, think of the angry neighbors next door.

The really interesting part of this opinion is actually later, in the Court’s interpretation of the Farm’s defense under the Tennessee Right to Farm Act. I’ll save that talk for another day.

New Lawsuit filed in Davidson County Challenges Nashville’s AirBNB Restrictions

An interesting case was filed yesterday in the Davidson County Circuit Court. The lawsuit, styled Rachel Anderson and P.J. Anderson v. The Metropolitan Government of Nashville and Davidson County, Davidson County Circuit Court No. 15C3212, attacks Nashville’s regulations on Airbnb.com listings.

A copy of the Complaint can be found here.

Essentially, the Plaintiffs allege that the ordinances violate their constitutional due process and equal protection rights by imposing an arbitrary interference and limits on their operation of their residence as a rental property on the short-term rental site Airbnb.com.

It’s a strange lawsuit, with a lot of details alleged. It was filed by the in-house counsel at the Beacon Center of Tennessee.

All Lawyer Jokes Aside, Lawyers are Great at Public Speaking

I attended a local comedy show called “That Time of the Month,” which featured regular people (not professional speakers or comedians) reading stories they’d prepared. The stories were funny anecdotes from their lives, read by people who may have never been on stage before in their lives. The people had typed up their stories, and, generally, read them verbatim from their text on stage.

They were introduced as “readers” to the audience, and the first two were terrified. The microphone stand was at the wrong height, the stool was awkwardly placed, and their written pages shook in their trembling hands.

It was then, watching that, that I realized how impressive a typical lawyer is at public speaking. Even a mediocre lawyer has stumbled through articulating some complex argument in front of an audience of impatient lawyers and a cranky judge. It’s not long before a skilled lawyer learns the value of a 3 second pause, a glance up at the Judge, and some well timed vocal inflection.

I remember my first ever hearing. It was in Bankruptcy Court in 1999. It was also the Bankruptcy Judge’s first hearing. It was awful. But, now, 5,000 court appearances later, it’s second nature. I make jokes. I exude confidence. Sometimes, I hope that my case is called first so that I can dazzle the lawyers stuck behind me on the docket. When I watch Saul Goodman stare into the courthouse mirror and say “It’s Showtime!” before a hearing, I see a little bit of that in my colleagues.

So, yes, being a lawyer can be fun. Of course, 99% of the time, it’s paperwork, e-mails, deadlines, and anxiety. Lawyers get made fun of a lot, and people love lawyer jokes for a reason.

But, at this comedy show, watching people who never speak in public, I realized that, yes, lawyers really are a special breed, with a special gift.

Beware Email Scams Targeting Lawyers: Tune in to My CLE and Save yourself $500,000

One of the reasons I have this blog is for people like you, potential client, to find me online and hire me for your Nashville and Tennessee legal needs. I cast a wide net and hope Google notices, and so it’s no surprise when I get calls from remote parts of the country–or world–asking me for help.

Many of the inquires I receive are not relevant–people looking to me to help them stop foreclosures. Many are potential scams from fake overseas clients. What I’ve noticed in the 5 years that I’ve kept this blog is the increasing sophistication of these scam client inquiries. No longer are they in broken English and as transparent as a glass of water.

Nowadays, the scammers are pretending to be part of real companies (or elaborately created fake companies), in deals that are designed to trick and trap lawyers into falling victim and processing forged cashiers checks.

If you think this can’t happen to you, as a simple Nashville lawyer, well, I’ve got just the CLE for you.

Working with OutkickCLE (the lawyer CLE arm of the Clay Travis sports media empire), I’ve presented a course called Most Distinguished Sir or Madam: This CLE Will Make You Rich!  In the CLE, I discuss actual e-mail scam referrals that I’ve received, the red flags I’ve learned to look for in dealing with these scammer clients, and what to do when a suspicious client emails you.

It’s a fun CLE, discussing the history of these scams, but it’s also a dead serious CLE, discussing how these scammers have stepped up their game, to the point to where lawyers are increasingly falling for the tricks. This may be the most useful CLE you’ve listened to in years.