Thanks to writers Marc Davis & Juliette Fairley for interviewing & quoting me in their articles. Each article is exclusive to the other. That is, I know of no correlation between marijuana legalization & client billing other than me.
August 1, 2017 12:55 AM CDT
BY MARC DAVIS
After many attempts to get a client to pay a bill seriously in arrears, attorney Charles Krugel showed up at the client’s place of business and asked for the money.
“It was the most extreme thing I’ve ever done to be paid,” says Krugel, a Chicago-based labor and employment lawyer. “It was very effective. The client was embarrassed, he apologized for the slow payment and explained why the bill wasn’t paid on time.”
Getting slow-pay or no-pay clients to pony up can usually (but not always) be assured with some simple steps in advance of taking them on, according to Krugel.
“Before I take on a client, I do some due diligence, which usually takes an hour,” he says. “I use the internet and [databases] to see if the prospective client has the ability to pay or has been sued or has a suit pending against them.”
Krugel also requires a retainer of 50 percent of the highest estimate of the potential cost. “That way, I’m pretty certain they’ll pay in full, sooner or later,” he says.
Although Krugel doesn’t have a client contract, he sends an email that spells out terms and costs of his services to prospects, asking whether they agree to the specifics. If the email response is yes, it constitutes a binding legal contract, according to Krugel.
PARTNERS AND PIT BULLS
Heidi Machen of San Francisco, who practices employment, government regulatory, contract and landlord-tenant law, has had slow-pay clients. But she also has “a tenacious assistant who is a very effective collector,” she says.
“I usually don’t have trouble,” Machen says. “I regard the client as a business partner, and I explain this, saying ‘I’ll do my part, and I expect you to do your part, which includes timely payment of my bill.’ ”
Machen has brought only one lawsuit for nonpayment in eight years of solo practice. “I filed a claim in small claims court,” she says. “But before the case was heard, a third party paid the bill.”
Discussing payment terms and strategies with a prospective client is an effective way of avoiding problems, according to Machen. She requires a retainer fee and provides an installment plan for payment but does not accept credit cards. As a client incentive to pay promptly, Machen will sometimes waive a few hours of billable time.
“If I have to send a second bill to a late payer, I add a late fee, which is specified in the contract,” she says. “If the bill is paid within a week, I drop the late fee.”
Sometimes, however, a client can’t pay. In lieu of payment from one delinquent client, Machen accepted a valuable sculpture.
Chad Ruback, a Dallas appellate lawyer, once accepted a lien on a Humvee as collateral for an unpaid client debt. Ruback says he knew the client would pay because “he loved that car and didn’t want to lose it.”
“I send bills often, rather than waiting to bill monthly,” Ruback says, suggesting that a billing cycle of every two weeks is a good idea. “That way, clients won’t be socked with a large bill at the end of the month, which may be difficult to pay.”
A big law firm probably wouldn’t allow billing that frequently, according to Ruback, who previously worked for a larger firm. “That’s why I like being in solo practice. I have flexibility, and I can choose who I represent.”
One longtime client of Ruback’s was a “notorious slow payer,” he says. “To get paid promptly, I arranged a plan with the client’s agreement to bill daily. The following day, the client’s assistant shows up at my office with a check.”
Ruback also provides an installment plan for payment and has never turned over a delinquent account to a collection agency.
“Some lawyers I know who have done that have been sued for malpractice or had grievances filed against them,” he says.
This article appeared in the August 2017 issue of the ABA Journal with the headline “Right on the Money: Tips on how to get your clients to pay the bill.”
State Medical Cannabis Laws Stoke Workplace Litigation
Conflict with federal law puts users’ jobs in jeopardy
Hoping to ease frequent headaches, Christine Callaghan participated in Rhode Island’s medical marijuana program. However, she soon found the legal issues surrounding use of the plant would lead to another kind of headache.
The problems started when Ms. Callaghan was offered a paid internship by the Darlington Fabrics Co. while pursuing a master’s degree at the University of Rhode Island. The company reversed its decision after she informed the Westerly-based textile firm that she was a card-carrying member of the state’s medical cannabis program.
“Ms. Callaghan’s complaint greatly concerned us,” said Steven Brown, executive director of the American Civil Liberties Union (ACLU) in Rhode Island.
The nonpartisan nonprofit filed a lawsuit on her behalf in 2014, alleging a potential employer’s failure to hire a medical marijuana patient because of, or related to, his or her status as a user and/or cardholder constitutes disability discrimination in violation of not only the Rhode Island Civil Rights Act (RICRA) but also the medical marijuana law, which protects cardholders from discrimination in employment.
The ACLU’s argument in Christine Callaghan v. Darlington Fabrics Corporation was that if employers are able to disqualify a candidate who is lawfully participating in the state’s medical marijuana program, then the medical program is undermined because it gives employers the ability to discriminate against job applicants and employees based on their
medical condition.
“The case put to the test the state and federal divide underlying legalization and whether medical marijuana is permissible in the workplace under any circumstance and under what circumstances” said Charles Krugel, an employment lawyer and human resources counselor in Chicago.
The marijuana plant was classified as a Schedule 1 drug after Congress passed the Controlled Substances Act of 1970 (CSA), which makes its consumption criminal and punishable. As a result, whether a federal court will uphold a state’s decision to pass a discrimination law and apply it in such a way that it is in direct conflict with federal law implicates the Supremacy Clause of the U.S. Constitution. Glenmont Hills Associates, a multi-unit apartment complex, invoked the preemption clause against Montgomery County, Maryland’s fair housing law in 2007.
“Legalization of marijuana at the state level conflicts with congressional objectives and congressional methodology under the preemption doctrine’s Obstacle to Federal Purpose prong, which could require state laws legalizing marijuana to cede to the federal Controlled Substances Act,” said Brian Markovitz, a Maryland based attorney who represents employees in discrimination lawsuits.
Under the U.S. Constitution’s Article VI, Paragraph 2, federal preemption provides for the U.S. Constitution and federal law to reign supreme over a state constitution and conflicting state laws that come from legislatures, courts and administrative agencies.
While consumption of the plant’s flower is still illegal federally, the U.S. government has recognized that states should be able to adopt their own programs when it comes to medicinal consumption. Cannabis was legalized for recreational use in 2014 in Colorado and medicinally in the state of Rhode Island in 2006.
To that end, the ACLU’s lawsuit in support of Ms. Callaghan challenged whether there’s a legitimate basis for distinguishing medical marijuana from
the use of any other medication that a physician prescribes.
On May 23, 2017, Rhode Island Superior Court Justice Richard Licht held that the state’s medical marijuana act outlaws discrimination in employment against cardholders and rejected Darlington’s argument that Ms. Callaghan was not discriminated against on the basis of disability but solely because of her marijuana use.
In his opinion, Justice Licht wrote that this distinction breaks down upon further examination.
“Defendants essentially ask this Court to completely separate the medical condition from the treatment, which would circumvent the broad intent of RICRA,” Licht wrote. “However, the only reason a given patient cardholder uses marijuana is to treat his or her disability. This policy prevents the hiring of individuals suffering disabilities best treated by medical marijuana.”
ACLU attorney Carly Iafrate, who defended Ms. Callaghan, stated in a press release online that Judge Licht’s decision sends a strong message that people with disabilities simply cannot be denied equal employment opportunities because of the medication they take.
Until a Rhode Island Court of Appeals reverses the lower court’s ruling in Callaghan v Darlington, Licht’s decision is providing hope for those that are similarly situated nationwide because they now have a precedent to turn to when pursuing legal action against employers. The recent legal development in Rhode Island puts the onus on business owners and CEOs nationwide to be prepared.
If an employee is in a state where medical or recreational marijuana is legal, the employer can protect itself from lawsuits by putting staffers on notice that they can be drug tested for any type of marijuana.
“Without this documentation, businesses run the risk of being accused of discrimination and invasion of privacy when they do test and want to terminate an employee who was stoned at work,” said Todd R. Wulffson, partner at the employment and labor law firm Carothers DiSante & Freudenberger LLP (CDF) in Los Angeles.
“Other litigants and state courts may also look to Judge Licht’s decision for guidance because medical marijuana could potentially be protected under state disability rights laws,” said Danielle Urban, a partner and employment attorney with Fisher Phillips in Denver.
Although there is no impediment under federal law preventing employers from asking applicants if they have been convicted for marijuana violations or testing them for marijuana use, Mr. Wulffson told PacerMonitor that “it could still be considered disability discrimination under the ADA to refuse to hire cardholders or to ask if employees use marijuana outside of the workplace.”
That’s because if a cardholder admits to using medical marijuana, they are disclosing that they have a medical condition or disability, which is being treated with medical marijuana and if an employer chooses not to hire the cardholder, they are doing so after learning that the applicant has a disability and/or condition, which is where a potential ADA discrimination claim lies in wait.
Proponents for medical marijuana are still concerned with whether state disability laws would hold up in a different state because marijuana legal claims, whether medical or recreational, remain unprotected under the ADA.
“A test lawsuit in the state courts of Colorado has already been defeated because the West Coast doesn’t include East Coast-style antidiscrimination provisions aimed at employers,” said Brian Vicente, an attorney and founding partner of Vicente Sederberg, a law firm in Denver that specializes in marijuana law, Brandon Coats, a quadriplegic, worked for Dish Network as a telephone customer service representative for three years. After testing positive for a component of the cannabis plant during a random drug test, Mr. Coats informed Dish that he was a registered medical marijuana patient and planned to continue using medical marijuana. On June 7, 2010, Dish fired Mr. Coats for violating the company’s drug policy. In a wrongful termination claim against Dish, Mr. Coats cited the Lawful Activities Statute of the state’s Medical Marijuana Amendment, which generally prohibits employers from discharging a worker based on his engagement in lawful activities off the job premises during nonworking hours. Although Coats allegedly used cannabis to control muscle spasms, the Colorado Supreme Court ruled in favor of Coat’s former employer, Dish Network.
In the first paragraph of their decision, the Colorado justices wrote that the term lawful refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana treatment that is permitted by state law but unlawful under federal law are not protected by the statute.
While providing registered patients an affirmative defense against state criminal prosecution without making their consumption of medical marijuana a lawful activity, the Supreme Court affirmed the Appellate Court’s decision to dismiss Mr. Coat’s claim without examining the federal law issue because Colorado’s medical marijuana law contains no solid or specific language which would support the Supreme Court had it ruled differently.
“The reason California and Colorado don’t include anti-discrimination provisions is partly because of the era in which those laws were enacted,” said Mr. Vicente.
California’s Compassionate Use Act of 1996 allowed for the medicinal use of cannabis while in Colorado the first medical marijuana law was a Constitutional amendment passed by voters in the year 2000. Colorado’s second medical marijuana law was enacted in 2010 to establish the Colorado Medical Marijuana Code C.R.S. 12-43.3-101 et seq.
Although these laws recognized the medicinal value of cannabis, Mr. Vicente claims they expressly avoided language addressing workplace discrimination in order to expedite the legalization process.
Rhode Island is among the East Coast states like New York that recently passed medical marijuana laws, which include antidiscrimination provisions.
In 2014, New York State’s Compassionate Care Act set forth a certification process for patients, practitioners and other organizations to obtain medical marijuana and to identify covered medical conditions, according to the Epstein Becker & Green law firm.
It also protects users who are participants by deeming them disabled under the New York State Human Rights Law (NYSHRL).
Despite their liberal bent, New York and Rhode Island’s laws do not exempt or protect participants who consume at work or are high on the job.
“All states allow employers to fire staff who show up to work under the influence,” said Mr. Wulffson.
The distinction lies in a worker who is merely a cardholder versus an employee who is under the influence while working.
Darlington Fabrics’ attorney has said in media interviews that the
company will appeal to the state’s highest court but for now, at least, Ms. Callaghan and other medical marijuana program participants in Rhode Island can swallow or smoke their medicine without fear of losing or being denied a job.
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