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Farm Succession Planning

By  Micheal A. Mulloy

Over the past few years I have represented a number of North Dakota farmers and ranchers in a variety ofphoto-micheal-a-mulloy-attorney-at-law different matters.  I always enjoy listening to my clients’ stories about how farming and ranching have changed over
the years – it has had its ups and certainly its downs.  However, one constant in the discussions is the hard work and dedication that is exhibited by North Dakota family farmers and ranchers.  Many clients from this sector of the population often visit my office to discuss land leases and how to go about purchasing more property.  However, in recent years, the one question that I am often asked is, “What happens to the farm if I end up in a nursing home?”  While many of my clients are busy running successful farm and ranch operations, something they always end up pushing to the side is their estate planning and what happens to the operation when they are no longer able to work the land.  As an estate planning attorney and a probate attorney, I cannot tell you how important it is to plan your estate while you are young and healthy so you can have a hand in devising your estate the way you intended to do so, even when you’re gone.

 

To better assist my farm and ranch clientele, I attended a farm succession program put on by the International Farm Transition Network on June 7-9, 2016.  This program was attended by various professionals including lawyers, bankers, accountants, financial advisors and extension agents from all over the state.  The purpose of this program was to learn about the various methods to collaboratively assist farmers and ranchers with how to properly transition their beloved operations to the next generation.  Following the completion of a few additional coursework items, I will be certified by the IFTN as a “Succession Coordinator.”

 

I look forward to assisting clients with not only their estate planning needs, but also in answering any questions they may have about succession planning.  After all, nothing is more important to the good of North Dakota than the continuation of our family farm and ranch operations.

June 1, 2016, Mile Marker One-Year

by Jackie M. Stebbins & Micheal A. Mulloy

Micheal Mulloy and Jackie Stebbins Headshots for Stebbins Mulloy-79

Pictured from left to right: Micheal A. Mulloy & Jackie M. Stebbins

Stebbins Mulloy wants to take this time to say, Happy One Year Anniversary!  Oh what a year it has been!  On June 1, 2015, Stebbins Mulloy opened its doors at the Logan’s on Third building in Bismarck.  Since that time, we have hired three new employees, expanded to another office suite, mentored two UND Law students, participated in various Bar functions, lectured on our practice areas to various groups, performed pro bono case work, and most importantly, served and advocated for our clients throughout the state of North Dakota.  Upon opening this firm, our mission was to serve individuals and families in some of the toughest times of their lives, and do so with competence, respect and compassion.  Our mission continues today and will continue through the years.  As lawyers, we stand by our motto, “Competent, Efficient, Effective.”  We also stand by you, our friends and colleagues, and thank you for standing with us this year.

An Apple a day keeps the FBI Away.

By Jackie M. Stebbinsphoto-jackie-m-stebbins-attorney-at-law

Unless you’ve had no access to any major news source in any medium, you’ve surely heard about the United States Magistrate in California ordering Apple to assist the FBI and the United States Department of Justice in unlocking the iPhone of San Bernardino shooter Syed Rizwan Farook.  The FBI sought information on Farook’s iPhone as it investigated the December 2, 2015, shootings in California that left 14 people dead in what was deemed a terrorist act.  The phone was password protected and law enforcement couldn’t get in to discover important information.

Those of us who were alive on and before September 11, 2001, know that that date changed the way the United States views, responds to and attempts to preempt, acts of terrorism on U.S. soil.  Those of us who were also alive before the advent of smartphones, the iPhone and tablets, also remember a world of land-line phones, car-phones that were in bags, or flip cell-phones with the only ability to quickly text by use of “t9” texting (which wasn’t that quick).  If you were used to a land-line phone and now have a smartphone, you can appreciate just how much smartphones have revolutionized the way our world works and the way we live.  You can search the internet, never have to memorize a phone number ago, talk-to-text, use Facebook, book an Uber ride, check your bank statements and so much more.  All good and lawful ways to use a cell phone, right?

Many of us password protect our smartphone for fear that we may drop it, lose it or allow it to fall into the hands of someone who would attempt ill-will against us.  Because so many of us store incredibly private and important information on our phones: passwords to our on-line accounts, apps linked to our financial information, information about our children, etc. we know how important it is to lock up that cell phone.  The type of private and confidential information stored on our smart phone is information that we used to tuck away in drawers at home and at work.  But now, it is all right there, on that tiny little cellular phone/computer, which is an incredible extension of our life and our privacy.  We like knowing that our smartphones are privacy protected, right?  But what about when “bad” people use smartphones for illegal activity, should they be protected?

When the FBI went knocking at Apple’s door with the court order for Apple’s compliance in helping to crack Farook’s phone, Apple took a hard-nosed approach to the Government and federal court order and said: no.  Apple did not take its opposition to the court order lightly and in a statement it issued on the matter, said: “While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.”

 Just think of the safety and privacy concerns into what the Government was asking Apple to do.  Furthermore, think of the Constitutional safeguards that citizens have against the government as it relates to our privacy in our homes and personal effects.  The Fourth Amendment to the United States Constitution is a bedrock principle of law in criminal defense practice and for the security of citizens against government intrusion.  The right for an individual to be secure from the government’s unlawful search and seizure of you and your things is a right we are fond of, even if we’ve never been prosecuted in a criminal action, but have only seen it on television or in the movies.

So why couldn’t the FBI just get a search warrant from that same Magistrate and move on?  Routinely, law enforcement will obtain a search warrant to “rip” a person’s cellular phone when the person has been arrested and the phone seized.  By law enforcement first obtaining the search warrant before looking for the incriminating information, the person is free from an unlawful search and seizure and there shouldn’t be any problems with the use of evidence obtained from the phone.  Or, if the person agrees, or is a cooperating witness/Defendant in the case, the person can just hand over the password and the phone can be ripped with consent.

But what happens in a case like this, where the phone is password protected and the phone owner is deceased or isn’t cooperating in the case?  Should a private corporation like Apple, with its own security concerns and business practices, be forced to develop the software, or give out their top-secret proprietary information, to unlock a password protected phone?  Was it in the United States’ best interest to move the Court to force an American corporation to divulge that type of information to the FBI in the name of the fight against terrorism?  If Apple had agreed, what would that have meant for all of us and our confidential information that we store on our phone – would there be hackers ready and waiting to emulate what Apple did to unlock the phone?  Would all of our smart phones then be at risk for hackers ready and waiting to steal our private information?  Or are we already susceptible to hackers who are out there ready and willing to crack the codes that companies like Apple invent and do we take daily risks storing sensitive information on our smartphones?

There are so many questions and probably no perfect answers as to what would have happened, had the FBI with the help of NSA and the CIA not been able to hack the phone on their own.  Apple had its story and stuck to it; defending its position and arguing that the Government never should have attempted to force it into a position that it found objectionable in the first place: “From the beginning, we objected to the FBI’s demand that Apple build a backdoor into the iPhone because we believed it was wrong and would set a dangerous precedent. As a result of the government’s dismissal, neither of these occurred. This case should never have been brought.”

Do you feel better today that Apple opposed the Court’s order – or worse?  Do you believe that Apple should have cooperated with the Government in the name of obtaining more information about terrorism – or do you believe Apple did the right thing and protected all of our interests in our sacred smartphones?  How about that the FBI, NSA and CIA didn’t even need Apple’s help, they did it on their own – are you happy or sad that the Government has incredible technology and power at its disposal in the fight against crime and terror?

What’s the right answer to the questions I posit?  As a typical lawyer, the best answer I can give is, “It is gray area.”  All we know is that no legal precedent was set for the scope of the Government’s power to compel an unwilling private company to cooperate in a criminal investigation.  Guess we’ll have to wait and see if the issue arises again.

As a Matter of law, the House is Haunted

By Micheal A. Mulloy

When I was thinking of a blog post to write this week, I was taken back to my first year of law school and back to one photo-micheal-a-mulloy-attorney-at-law
of my favorite classes of that year – Real Property.  While many of my classmates were uninterested in learning about springing interests in real estate, the dreaded Rule Against Perpetuities and contingent remainder interests in real property, I always was fascinated by this area of law and knew that one day I was going to practice it.  While we read many different cases that year, the one that sticks out in my mind had to do with ghosts.  Yes, ghosts.

“Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeist, reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years.”  These were the words that opened the case of Stambovsky v. Ackley, a case out of New York from 1991.  The Plaintiff had recently purchased a house and later found out that the former owners highly publicized the house as being a haunted one.  The homeowner requested that he should be allowed to rescind the purchase agreement because the sellers did not inform him of ghosts that were allegedly hanging around the house.  In an unusual opinion, the New York court decided that the nondisclosure of the poltergeists, which may have materially impaired the value of the home and was not a condition that would be discovered by the purchaser, warranted a rescission of the contract.

While I have not yet had any clients who discovered ghosts in their house, North Dakota law does provide that sellers of real property must make certain property disclosures to a prospective buyer.  With the recent trends in real estate sales here in Bismarck and in the surrounding areas, I have had many clients come to me seeking assistance to direct them through a real estate transaction.  While many North Dakotans have recently elected to personally sell their home without using a real estate agent or attorney, it is always wise to consult with a professional to know what rights and responsibilities you have as a seller or a buyer.  At Stebbins Mulloy, we assist clients with drafting deeds, purchase agreements, leases, contracts for deeds, and further assist in navigating clients through the somewhat difficult process of buying or selling a home.  If you have any questions regarding a real estate transaction, please do not hesitate to contact me.

Pro Bono Work

photo-jackie-m-stebbins-attorney-at-lawBy Jackie M. Stebbins

I went to law school for the same reason as I believe many of my colleagues did: to help people.  Many lawyers become lawyers because they see need in the world and want to help those who do not have a voice to help themselves.  As you go through law school and learn how to write like a lawyer, think like a lawyer and read case law like a lawyer, you are taught the fundamental skills to become a successful lawyer; but what you’re not taught, is how to balance your schedule, how to manage clients and how to run a business if you go into private practice.  Young lawyers are faced with learning how to practice law in substance (how to write a motion, how to read the Rules, how to go to trial, how to litigate, how to negotiate, how to work as a professional with your colleagues, etc.) and how to survive in a business world when you probably haven’t had much formal education in business, marketing or accounting.  On top of that, you need to balance in how to find the time to provide pro bono services.

 

The North Dakota Rules of Professional responsibility do not require North Dakota lawyers to provide pro bono service, rather Rule 6.1 states that, “A lawyer should render public interest legal service.”  The Rule notes that pro bono service isn’t just in the form of traditional legal services but can be rendered in other ways such as providing public service to charitable groups or organizations, too.

 

I just finished up a pro bono domestic case that I took-on about a year ago.  A person in great need was referred to me by another attorney who knew that this person needed competent legal representation, but could never afford to hire an attorney, even at a reduced fee.  I took the case and it went all the way through trial.

 

Working for someone in such great need is what lawyers do every day.  People with a lot of money or a little money can find themselves in need of legal representation.  We as lawyers take great pride in helping all of our clients to find successful resolution of their problems.  Something that’s satisfying in a way that is hard to even put into words, is to take-on a client on a pro bono basis and know that they’re eternally grateful to you for your work.  It takes you away from the drive for litigation, mediation and running a business, and allows you to remember exactly why you became a lawyer in the first place.  You wanted to help people no matter the form that they came to you in.

 

Through the course of my legal career I have taken traditional pro bono cases, mostly in the domestic realm, but in some other areas of practice as well and have sat on boards such as the Tobacco Free Coalition and Prevent Child Abuse North Dakota.  I am always proud to render public interest legal service.  At Stebbins Mulloy, Micheal and I are committed to providing the best service possible to all of our clients and to also meet our calling to render public interest legal services.

I Wish I Would Have Done this Years Ago…

photo-micheal-a-mulloy-attorney-at-lawBy Micheal A. Mulloy

I Wish I Would Have Done this Years Ago…

These are the words that I hear many times when I meet with new estate planning clients.  Last week I was reminded of the importance of proper estate planning when I presented at the Western Dakota Estate Planning Council.  Whether your estate is worth $1,000,000 or $100,000, it is prudent to plan yours.  It is of further utmost importance to plan your estate if you have minor children.

At Stebbins Mulloy, we have broad expertise in drafting wills, trusts, guardianships, special needs trusts, advanced directives (living wills) and power of attorney documents.  We work collaboratively with financial planners and tax professionals all across the state, to ensure that your goals are carried out.  While estate planning is something clients tend to put off, I encourage my clients to have the conversation before it is too late.

If you are interested in planning your estate or want to learn more about the estate planning process, please feel free to visit our Estate Planning page by clicking here  or  give us a call.  We look forward to working with you.

Sincerely –
Mike