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Article by Andrew T. Smith published in Cherokee Tribune

From the December 6, 2015 edition of the Cherokee Tribune.

Buyers in the market to purchase a home in the near future should know that the traditional real estate closing process has recently been revolutionized by the Consumer Financial Protection Bureau ("CFPB"). While these changes may not be apparent to first-time homebuyers, individuals who have purchased homes in the past should not expect to have similar experiences in the future. There is a myriad of new rules and regulations that will affect buyers, sellers, closing attorneys, agents, and lenders going forward, and the Flint, Connolly & Walker, LLP team thought it prudent to inform prospective buyers on what to expect as the closing day approaches.

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CFPB “Know before you owe” rules

 A quick reference guide for real estate professionals

By now, most professionals in the real estate industry know that the Consumer Financial Protection Bureau ("CFPB") has implemented sweeping changes to the real estate industry. But for many realtors the question still remains, "How will it impact me?" With these changes upon us, the Flint, Connolly & Walker, LLP team wants to work with you to make sure everyone is aware of the changes.

Any residential loan originated on or after October 3, 2015 is subject to the new rules and forms set forth by the CFPB. These rules replace the Good Faith Estimate ("GFE") and early Truth-In-Lending Act (TILA) Disclosure with the new Loan Estimate form. The familiar HUD-1 Settlement Statement and final TILA form will also be replaced by the new Closing Disclosure form. By consolidating these various forms into just two instruments, the CFPB's alleged goal is to ensure that borrowers who are purchasing homes truly understand the financing involved with purchasing a home.

Additionally, the new rules implement strict timing requirements with regard to these forms. The CFPB determined that borrowers would be better served by having time to review the new Closing Disclosure prior to signing their loan documents. As a result, these rules require that borrowers have three business days after receipt of the Closing Disclosure to review the form and its contents prior to signing loan documents at the closing table. However, this three day review period only starts upon "confirmed receipt" by the borrowers. In theory, long gone will be the days where you and your clients anxiously wait in a closing attorney's lobby without HUD-1 approval, wondering if the transaction will be approved by the bank and the closing will proceed. With these new rules, you should know at least three days ahead of time whether or not the closing will occur on the date stipulated on the Purchase and Sale Agreement.

So what do you need to do? First and foremost, as with any new federal government program, you should certainly anticipate an adjustment process where administrative errors and other issues may need to be addressed. Secondly, remember that these rules are new to everyone – including lenders! Buyers should be provided ample time in the contract to close the purchase of the home they are buying and/or selling. Real estate professionals seem to agree that an additional 14 days from previous time frames to close upon execution of the Purchase and Sale Agreement may be best. Thirdly, borrowers must confirm receipt of the Closing Disclosure form. Without that confirmation, closings will only continue to be delayed. Lastly, and most importantly, make sure you are well versed to explain these new changes to your clients to ensure their lender is acting in accordance therewith.

If you have any questions, thoughts, or concerns, please call us at 770-720-4411. Our team is here to help you and your clients through successful and worry-free closings.

Andrew T. Smith is an associate attorney in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he conducts residential real estate closings.

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Another successful seminar hosted by FCW

 On September 10th, Flint, Connolly and Walker, LLP hosted a second continuing education seminar for Georgia realtors. Thanks for a wonderful group of attendees, and to Downtown Kitchen for delicious food and drink! If you have any questions about the upcoming real estate closing procedures required by the new Consumer Financial Protection Bureau ("CFPB") regulations, please contact us for more information.

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Second real estate seminar coming up soon

 Flint, Connolly and Walker, LLP will host a second, free continuing education seminar for Georgia realtors on September 10, 2015. Changes to real estate closing procedures required by the new Consumer Financial Protection Bureau ("CFPB") regulations that go into effect on October 3, 2015 will be revealed. Register through the Cherokee Association of Realtors, or contact us for more information.

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FCW Realtor’s Continuing Education Seminar

Partner Douglas Flint discussing changes to real estate law

 Last week Flint, Connolly and Walker, LLP held a continuing education seminar for Georgia realtors. Its purpose was to provide insight into the changes to real estate closing procedures required by the new Consumer Financial Protection Bureau regulations that go into effect on August 1, 2015. Our speakers included attorneys Douglas Flint, David Walker, and Andrew Smith.

We thoroughly enjoyed meeting and speaking with all of our attendees.
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Building Blocks for Starting a New Business

The prospect of starting a new business can be viewed as both a daunting and exciting task. Any entrepreneur who decides to embark on such a journey must first make several decisions about what type of business is best for his or her particular situation and needs: whether to organize the business as a sole-proprietorship or one of the many types of corporate entities available under the law. It is a rare occasion when it is advisable to operate as a sole proprietorship, because such an election poses the greatest exposure for potential personal liability and offers the fewest opportunities for beneficial tax treatment of the business income and expenses. Many small businesses benefit by being organized as either a Subchapter-S corporation or Limited Liability Company, and determining which entity will best fit one's needs will be based largely upon individual circumstances and business pursuits.


Almost any business involves some kinds (even if not formalized) of contractual engagements with customers and vendors. While many entrepreneurs are eager to "hit the ground running," a business owner who fails to use well-crafted written contracts may create significant unintended problems and liabilities for the business, as well as unrealistic expectations from its customers. Drafting and incorporating customized contracts into the new business operations from the outset is an inexpensive way to ensure that both the business and its customers or vendors have a clear understanding – or at least a clear framework for understanding – of the terms and conditions that will govern their business relationship.


Unfortunately , some individuals, even those having the greatest entrepreneurial ambitions, are frequently deterred from their pursuits by the mountain of municipal, county, state, and federal rules and regulations that directly influence their business and the viability of their business model. A new business owner must be acutely familiar with Workers Compensation rules, Department of Labor Standards, EPA requirements, healthcare mandates, IRS restrictions, and a host of other regulations which are adopted and expanded on a daily basis. Ignorance of the law – even law that is counter-intuitive to the basics of logic – is almost never an excuse for failing to abide by it. It is therefore critical for a new business owner to comprehend the legal landscape that will affect his or her business.

For individuals who intend to partner with others in a new business, it is imperative to establish a well-drafted set of rules – either in the form of bylaws, an operating agreement, or a partnership agreement – to clearly and explicitly govern the company's operations and each partner's respective rights and obligations. Too often people go into business with each other on a wave of optimism, making unreasonable assumptions about the plans and expectations of their partners or co-owners. These misplaced assumptions can result in dissent, disagreement, even strife, and potentially the demise of the business. Nonetheless, in many cases, these problems may be avoided by simply establishing ground rules on the front end that will explicitly govern the roles, rights, liabilities, and benefits each owner of the business will be expected to bear. While optimism is a necessary element to starting a successful business, it is also critical to have contingencies in place to confront the possibility that things will not go as planned.

Yet another consideration for an aspiring business owner is to determine what will happen to the business if he or she dies, or becomes disabled. Too often entrepreneurs fail to account for such a possibility, and such an oversight can result in an unnecessary waste of business assets and heartache for remaining family members if the business owner(s) has not established an adequate succession plan. The need for such a plan is even greater when the business has multiple owners, because an ownership interest in a business will pass through probate like any other personal asset unless a pre-existing contractual agreement binds the parties to a separate course. Accordingly, without a well-organized succession plan, co-owners of a business could find themselves as joint owners of a business with complete strangers overnight. Such an outcome rarely benefits any of the parties.

While this is by no means an exhaustive list of the legal issues that confront a business owner, it serves to highlight just some of the considerations which must be accounted for in order to responsibly and successfully establish a profitable and valuable business.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal matters.
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Civil Case Preview–What to Expect in a Civil Action

 The average person does not have direct experience with our nation's legal system—especially the processes and procedures by which civil cases are handled in our courts. Uncertainty and a lack of understanding can cause unnecessary stress and anxiety for people. It is for this reason that Flint, Connolly & Walker, LLP seeks to inform its clients who find themselves involved in a civil case in our courts.


There are many various exceptions to the generalized summary offered here and this article is provided to explain the civil procedure part of the legal system to non-lawyers. Should you be interested in more specificity about exactly what to expect in your case, please directly consult your lawyer. If you do not have a lawyer you can get one at https://deanhineslawyer.com/family-law-attorney-dayton-ohio/.

A civil case begins with a Complaint, which is what many people call a lawsuit. In the Complaint, a plaintiff (the person who filed the suit) states his or her problem or case against one or more defendants (the person whom the plaintiff claims did something wrong). A Complaint will describe the factual and legal grounds that the plaintiff has for bringing a lawsuit against the defendant.


After filing, the Complaint is then served on the defendant, usually by hand-delivering a copy of the Complaint to the defendant at his or her residence. This is normally done by the sheriff's office or a county marshal. In the State Court system the defendant usually has 30 days to file an Answer. He/she will admit or deny the allegations made by the plaintiff and assert defenses (such as prior payment, or that the claim is legally barred by some other legal doctrine). If no Answer is filed, the plaintiff is entitled to a judgment by default.

With the Answer, the defendant is also allowed to file a Counterclaim against the plaintiff. In other words, the defendant can sue back against the plaintiff by stating that it was the plaintiff who did something wrong. Counterclaims take many forms, depending on what kind of liability the defendant claims the plaintiff has.

Sometimes after the Complaint and Answer, it will become evident that other persons or parties should be present in the case. An example might be an instance where there was a three-car auto accident and two drivers operated their cars negligently, but only one was sued. In such a case, the defendant may file documents to add other parties to the case. Once the Complaint and Answer are filed, the issues for the case are formed. The issues that are disputed between the parties are the ones that are decided by the court.

When the issues are formed, the parties will typically engage in discovery. Each party has a right to ask written and oral questions and request information from the other side. The purpose of this exercise is so that each party may attempt to learn more about the facts and theories relied upon by the opposite party, the evidence and documents that support their case, and the names of witnesses who might have seen or heard important events relating to the case. Discovery can sometimes be a complex and lengthy process—usually dependent on the intricacies of the case. Likewise, extensive discovery is often a very expensive aspect to the litigation of a case. The lawyer and legal staff time involved can be quite considerable and other costs, such as travel and the expense of court reporters to take down depositions, can drive the costs of litigation up.

In addition, the parties to a lawsuit are able to obtain information from others in the discovery process (such as a doctor who treated the plaintiff's injuries, or a witness to an agreement). This is typically achieved through the use of the subpoena power of the courts.

Discovery usually continues for six months from the time that the Answer is filed, but is sometimes extended to a longer period when there is difficulty getting the necessary discovery completed within the initial six-month period. Cases in federal court proceed on a slightly different and usually shorter schedule.

Sometimes lawyers file motions with the court in order to have the case decided without a trial. There are several different types of motions that can accomplish this result but all of them seek to force an early end to the litigation. Not all cases are suited to having motions of this nature filed. Usually, these motions are filed when one party contends that it is entitled to prevail in the case no matter what a judge or jury might conclude about the facts. An example of this might be a Motion for Summary Judgment filed in a contract case where one party is able to show that a contract was never officially entered between the parties.

Often, the court will insist that the parties participate in a supervised effort to settle their case without a trial. This is usually done with a mediator who will act as a neutral third party to try to help the sides come to a compromise agreement. The mediation process is often very helpful even if the matter is not completely settled at mediation (mediations do have a high success rate for settling civil cases). Often, even if a case is not settled at mediation, the parties are able to settle part of their case or narrow the issues that will need to be eventually tried in court.

If the case is not settled or ruled on by the court prior to trial, the case may proceed to the trial stage. Trials may be held before a judge or a jury. Either party in a civil case is entitled to demand a jury trial and if such a demand is made by anyone, the case must be tried by a jury.

The court will usually require that the parties submit a Pre-Trial Order which identifies certain basic aspects of the trial that will take place. It serves as a sort of road map for the trial so the court and all parties will have the basics available to them: witnesses, the evidence to be used at trial, the lawyers who will try the case, and a basic summary of the factual and legal issues for the trial.

At the trial, each side will present its case to the judge or jury. If the plaintiff fails to show all of the necessary facts to prove his or her case, the defendant will be entitled to a ruling, or a Directed Verdict, in his or her favor. Likewise, if the defendant fails to set up sound defenses or legitimate facts to controvert the case presented by the plaintiff, then the plaintiff may be entitled to a Directed Verdict.

If neither party is granted a Directed Verdict by the judge, then the case will be submitted to the jury (or the judge if the case is a non-jury trial) and the facts will be decided based on a preponderance of the evidence—which means that there is more evidence in favor of the person receiving the verdict than the opposite party. This burden of evidence is sometimes described as "which story is more likely" or "who proved at least 51 percent of the evidence that persuades the judge or jury."

Once the judge or jury returns its verdict, the verdict becomes the Judgment of the court. In general, all parties have a right to appeal a court's final judgment. Usually the only issues for an appellate court to decide are whether or not the trial court made any mistakes in its handling of the case. On appeal, the case will not be re-tried or started over. Only if the Appellate Court finds an error and remands the case will the case be re-tried, which would be back in the trial court.

Douglas H. Flint is senior partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents and assists both businesses and individuals with their legal matters.
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A Dragon in the Mist: Ill-prepared Employers Could Be Crushed by the Coming Obamacare Mandates

 Unless it is repealed, The Affordable Care Act ("Obamacare") will be fully implemented by January 1, 2014. That date is coming very soon. Regardless of your political persuasion, for a host of reasons including those cited below, if you own a small business you cannot afford to simply wait and hope that the law will change. Casting one's faith in "Hope and Change" is not a business plan – and business owners must act now to protect themselves.


1. Obamacare's Applicability to Small Businesses

The first question a business owner must address when analyzing how it may be affected by the "Affordable Care Act" is whether it is a "large employer" – as that term is defined under the Act – and thus subject to the Obamacare employer mandates.


Most media outlets have reported that under Obamacare employers who employ less than fifty (50) "full time" employees are not subject to the mandates of the law; however, that is an inaccurate and misleading characterization of the law. Under the law, "full time" does not mean a forty (40) hour workweek, but rather, under IRC § 4980H(c)(4)(A) , "the term 'full-time employee' means, with respect to any month, an employee who is employed an average of at least 30 hours of service per week."

Accordingly, using a 4 week period for rounding purposes, if a business has an employee who works 27 hours per week for 3 weeks of that period, and 40 hours during the 4th week, he or she would average 30.25 hours per week for the 4 week period and thus be deemed a "full time" employee under the Act. A business that has fifty (50) or more employees meeting these qualifications would be deemed a "large employer" and thus subject to Obamacare's mandates.

A business that has less than fifty (50) "full time" employees – as defined by the Act – may still be subject to the law if it also employs additional part-time employees. IRC § 4980H(c)(2)(E) creates a new classification of employees defined as "Full-time equivalents." It provides that, "in addition to the number of full-time employees for any month otherwise determined, [employers must] include for such month a number of full-time employees determined by dividing the aggregate number of hours of service of employees who are not full-time employees for the month by 120."

Again, using a 4 week period, an employer who has 20 employees, each of whom works 20 hours per week (80 hours per month per employee), would be deemed to have 13 "Full-time equivalent" employees. Such "Full-time equivalent" employees would be counted in addition to the businesses' other "Full-time employees" towards the threshold limit of 50 "full time employees" under the Act.

Mainstream media reports have pretty much ignored this provision of the law; however, it exists and inevitably it will trap some unwary employers. Using the statutory formula, it is easy to see how a business that does not employ a single employee who works more than thirty (30) hours per week could be deemed a "large employer" under the Act.

2. Additional Threats to Employers in the Construction Industry

An employer engaged in the construction industry faces a separate and perhaps greater peril under the Obamacare Act. Specifically, the law provides that its mandates shall apply to "any employer the substantial receipts of which are attributable to the construction industry [and who] employed an average of at least 5 full-time employees on business days during the preceding calendar year and whose annual payroll expenses exceeded $250,000 for such preceding calendar year."

Accordingly, a general contractor who employs five (5) full time employees and pays each such employee $50,000.00 or more in annual salary is deemed "a large employer" under Obamacare. This provision casts a broad net, likely to ensnare a host of unwary construction business owners who never considered the possibility that they could be subject to Obamacare's scope because they employed significantly less than 50 "full-time" employees.

3. Obamacare's Penalty Provisions and Administrative Requirements

Effective January 1, 2014, a business that is deemed a "large employer" is subject to significant penalties if it fails to provide "minimum essential coverage" to all of its full time employees.[1] Succinctly stated, an employer can be subject to a pre-tax penalty of "1/12 of $2,000.00 per month" (i.e., $2,000.00 per year) per full-time employee if it fails to provide the requisite health coverage.

These provisions will create significant administrative burdens for employers, because the Act requires that an employer must calculate its number of "full time" employees on a monthly basis. As such, an employer who does not qualify as a large employer in one month may find itself subject to the Act in the next month if it hires additional employees, or if its existing employees work varying hours from month to month.

A separate mandate of the Affordable Healthcare Act mandates that if an employer provides a health insurance plan that meets the definition of minimum essential coverage, but either: (a) any employee is required to contribute more than 9.5% of that employee's household income to the cost of the plan, or (b) the plan pays for less than 60% of the covered expenses for any employee, then for each such employee the employer will be subject to a $3,000.00 annual pre-tax penalty. Employers should be mindful that nothing in the statute limits Congress' ability to increase the annual penalties in future years.

4. Obamacare's Reporting Requirements for Employers

Beginning in the 2012 tax year, employers will be required to report the value of employee healthcare benefits provided to employees on their employees' W-2 Forms. Although the current version of the Act does not require employees to pay taxes on the value of such benefits, this provision obviously opens the door to opportunities for future tax increases upon workers who receive healthcare benefits from their employers.

The Act also requires Employers to provide written notices to employees about the employer and/or government sponsored medical coverage, which may be available to employees, and information about the employee's potential eligibility for government subsidies or benefits.

A Large Employer will also be required to file new returns with the IRS, disclosing (1) its name, address, and employer identification number; (2) a certification as to whether the employer offers its full-time employees (and dependents) the opportunity to enroll in a qualified medical coverage plan; (3) the length of any waiting period of its employees to enroll; (4) the months of the year in which coverage was available to each such employee; (5) the monthly costs of the lowest-cost option of coverage it provides; (6) the employer plan's share of covered healthcare expenses; (7) the number of full-time employees it employs; and (8) the name, tax identification number, and address of each full-time employee.

5. Conclusion

This article only addresses a few of the substantial number of new regulations and obligations cast upon employers by the Affordable Care Act; however, it operates to highlight some of the expenses Employers must expect to incur as a consequence of the new statutory regime. With the Act's penalty provisions set to take effect on January 1, 2014, employers who fail to educate themselves about its provisions and applicability to their businesses will likely suffer significant if not devastating economic injuries. Accordingly, the wary and prudent business owner must act now to ensure it is braced to absorb the impact of this coming storm.

[1] The term "minimum essential coverage" is defined at IRC § 5000A(f)(2). Several factors are contemplated by that statute in determining whether a health plan meets the "minimum essential coverage" requirements.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal matters.
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My loved one has passed away – what do I do now?

 As many of us know all too well, losing a close family member or friend is an absolutely gut-wrenching experience. The days that shortly follow a loved one's death often prove to be a whirlwind of confusion, despair, decision-making, and heartache; yet, as more days and weeks pass, survivors must confront the task of putting their lives back together and moving forward. When they are ready to take that step, one of the first processes they must become acquainted with is probate.


In Georgia, probate is the statutory mechanism for transferring property from a decedent's estate to his or her surviving heirs or beneficiaries. The first question that must be answered is whether the decedent had a valid Last Will and Testament. If so, he or she is deemed to have died "testate" and the Will's terms will most likely govern who are selected as the Executor and beneficiaries of the estate. If on the other hand the decedent died without a Will, he or she is deemed to have died "intestate" and Georgia law will determine who will be the administrator and heir(s) of the estate.


Whether the decedent died testate or intestate, the survivor(s) will need to file a petition with the probate court in the county where the decedent last resided. Among other things, the petitioner(s) must: (i) inform the Court whether the decedent died testate or intestate, (ii) provide a death certificate for the decedent, (iii) identify the lawful heirs of the estate, (iv) nominate an administrator for the estate, (v) and if the decedent died testate, the petitioner(s) must include a copy of the Will being offered for probate.

In addition to filing a petition with the Probate Court, the survivors must ensure that notice is provided to the lawful heirs of the estate, and that legal notice is issued for all potential creditors. The Court will appoint an attorney ad litem for any heirs who have not reached the age of majority, and determine whether the administrator will be required to post a bond for the estate. The Court will also conduct its own evaluation of the estate and determine, among other things, who is qualified to be its administrator. This process may or may not require a hearing and presentation of evidence to the Court.

Once an administrator has been appointed by the Court, he or she must take an inventory of the estate to identify and assemble its assets and liabilities. Depending upon the size and complexity of the estate the Administrator may be required to obtain assistance from attorney(s), accountant(s), appraiser(s), or other professionals to complete the administration. Once the liabilities of the estate have been satisfied, the Administrator will be required to distribute any remaining assets from the estate to the decedent's designated beneficiaries or heirs at law.

Although this article does not provide a comprehensive explanation of the intricacies of the probate process, it is nonetheless designed to give survivors of a decedent a "starting point" from which they can begin the task of recovering after tragedy has struck. If you or someone you know has been confronted with the need to probate an estate and you have additional questions regarding the process, please feel free to give one of the attorneys at Flint, Connolly & Walker, LLP a call to discuss your situation.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal matters.
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“We Built It”

 You may have noticed the banner hanging on our façade which states: "WE BUILT IT". You may have seen it in other businesses as well.

By way of explanation, the message is our rejection of the President's allegations that somehow Government is responsible for individual effort and success or failure. In particular, these are his remarks from a speech in Roanoke, Virginia:

Look, if you've been successful, you didn't get there on your own. You didn't get there on your own. I'm always struck by people who think, well, it must be because I was just so smart. There are a lot of smart people out there. It must be because I worked harder than everybody else. Let me tell you something — there are a whole bunch of hardworking people out there.

If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you've got a business — you didn't build that. Somebody else made that happen.

We reject Mr. Obama's accusations. We do not believe anybody other than the people who invest in this firm, work for this firm, and make the daily decisions that guide this firm are the people who built this firm. We do not owe our success or failure to any Administration – it rests solely upon the effort, intellect, and ingenuity of the people who own and work for this business. And we believe that is the case for almost any small business, including many small business owners who are our clients.

Furthermore, the notion that government or some other State-owned entity built roads, schools, bridges, and other infrastructure on its own is in and of itself ludicrous. Roads, schools, bridges and post offices – while in existence before our firm – were nonetheless ALSO built by other businesses and people who paid taxes. Roads and bridges don't just appear out of nowhere as a result of the largesse of government. Roads and bridges are themselves constructed by businesses and taxpayers and paid for by other businesses/taxpayers who preceded us.

It is for these reasons that we reject Mr. Obama's premise and assert that We Built This business.
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Business are people, and we are the solution, not the problem

 Excerpted from Job Creators Alliance, July 25, 2012, by Michael Leven and Richard Jackson

Lately, it seems that the only form of acceptable hate speech left in America is hostile invective heaped upon entrepreunuers and innovators by a vocal minority of pundits, and increasingly, political leaders who should know better. At the core of the great American experiment is the fundamental belief that the freedom to create and build businesses serves us all. The greatest of our founding fathers, George Washington, once wrote, "A people who are possessed of the spirit of commerce, who see, and who will pursue their advantages, may achieve almost anything." If there is a secret to America's success, it is this.

Alarmingly, the great ideas of our founders are being forgotten by some of our nation's most prominent leaders. Throughout American history, the enterprise of commerce, and those who practice it, have been celebrated as the engines of prosperity. Yet in today's national dialogue, they are too often vilified as the source of our ills. For those of us who have taken risks, put our family's financial well-being on the line, lived in near-poverty during the hard times so that our employees would be paid, or toiled on the frightening brink of failure fueled only by the hope of someday creating something great, this all comes as a painful slap in the face.
A case in point was Elizabeth Warren's introductory speech at a fundraiser for President Obama in Boston. "Corporations are NOT people," she pronounced. "People have hearts. They have kids. They get jobs. They get sick. They love and they cry and they dance. They live and they die. Learn the difference."

The audience ate it up.

Perhaps President Obama, a Harvard Law School graduate and former constitutional law professor who well knows the legal case for corporate personhood, would clear up Warren's condescending attack. But he didn't. And recently, he added to the insult, telling an audience in Roanoke, VA, "if you've got a business, you didn't build that. Somebody else made that happen."

The idea that businesses are people isn't a new concept. Indeed, it's been around for almost two hundred years as a matter of law.

As far back as 1819, in Dartmouth College v Woodward, the US Supreme Court has recognized corporations as having the same rights as every other American citizen to enter into and enforce contracts secured under the Fourteenth Amendment to the U.S. Constitution. Years later in a separate case, The Supreme Court returned to the corporate personhood well again, saying this:
"Under the designation of 'person' there is no doubt that a private corporation is included [in the Fourteenth Amendment]. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution."

But the concept of personhood for corporations isn't merely established law. It's common sense.

Who starts a corporation but people? Who started Apple and IBM and McDonalds and Dominos Pizza and Facebook but people. And who starts the local auto body shop and the local Italian restaurant and the local charitable organization or church but people.

Corporations hire people, and feed families, they do charity work and community service. Of course corporations are people.

So why did Warren say what she said? Is it inexperience? Is it a lack of substantive contact with American business? Or a deliberate attempt to somehow strip corporations of their humanity?
Any why didn't our President clear the air, and the record?

That is for others to decide.

But for the entrepreneurs who have built, run, and grown small businesses, we don't need more anti-corporate rhetoric these days. Instead, we need a better understanding from our nation's leaders of what makes businesses work and what doesn't. We need to recognize what inhibits growth and what stimulates it.
In the end, corporations – and the people who run them and work for them – are not the problem with our economy. We are the solution.
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Conservatorship

 In my previous blog I wrote about the problems that can occur for children and spouses of parents who die without a valid Will. Another issue that parents must address to protect their families in the event of such a tragedy is proper planning for their children who may be beneficiaries of life insurance policies, IRAs, 401(k)s, Certificates of Deposit, and other similar financial accounts.


Life insurance policies and many of the other types of accounts allow the policy or account owner(s) to designate primary and secondary beneficiaries to receive the funds in the event that the owner dies. Any funds traveling from such a policy or account do not pass through the owner's estate – and thus are not normally subject to attachment by creditors of the owner – but rather they are delivered directly to the beneficiary(s).

The intuitive decision for many individuals with young children is to designate their spouse as the primary beneficiary, and to name their child or children as secondary beneficiaries; however, this is an ill-advised strategy. For the reasons illustrated below, a nightmare scenario can occur if minor children become entitled to receive funds as beneficiaries of a life insurance policy or other account.


Georgia statute O.C.G.A. § 29-3-1, et. seq. requires that if a minor child inherits or otherwise receives any property – including cash money – in excess of $15,000.00 in value, the property must be delivered to an independent legal conservator who acts subject to the authority of the Probate Court. This is true even when one or both parents of the minor beneficiary are still alive, as could be the case for a child inheriting property from a grandparent or other friend or relative.

During the term of any such conservatorship, the Court will be the final authority on how conservatorship funds are managed. The procedures and hearings involved in appointing a conservator are time consuming and expensive, and they can substantially deplete the value of the property at issue. In addition, a court-appointed conservator charges fees and is often required to buy an insurance policy to guard against fraud – all costs that are charged to the money being held for the minor.

Perhaps the biggest problem of all is that by operation of law, when the child reaches eighteen (18) years of age the funds in a conservatorship will be delivered to the outright control of the child. Anyone who has ever spent any time with the average eighteen (18) year old knows that this is a "magic act" in the making, as a teenager has the supernatural ability to make money disappear in the blink of an eye.

To avoid these problems and bypass the risk that a conservatorship could be established for your child, you should establish a living trust that is separate from your Will to function as a beneficiary of life insurance policies, retirement accounts, and other financial accounts for the benefit of your child. A living trust empowers you to nominate a trustee to receive and control any funds intended for your child's benefit, and to hold and protect those funds while your child is too young to do so for him or herself.

Depending upon the terms and provisions that you incorporate into your trust, the trustee can have the discretion to spend the trust funds for the child's education, health, and welfare, and under Georgia law the trustee will always have a fiduciary obligation to act in the best interest of the child.

By establishing a trust, you can also select the age at which the child can acquire outright control of the trust funds. It does not have to be eighteen (18) years of age, but rather you are permitted to require that the funds remain in the trustee's control until the child reaches an older age as selected by you. The oldest age of distribution that I have personally been directed to draft into a trust was sixty-two (62) – which seemed a bit extreme – but it illustrates the point.

It is crucial that the trust for insurance policies, retirement accounts, and other financial account funds be separate from your testamentary trust and estate. You never want to make your estate the beneficiary of funds that would otherwise travel outside of your estate, e.g., life insurance, because that creates the risk that those funds would become subject to attachment by creditors of your estate. By establishing a separate trust and making its trustee the beneficiary of such policies and accounts you can protect the funds from creditors, avoid the mandatory conservatorship issues addressed above, and establish a plan of distribution that works for the best interest of your child.

Although death may be a depressing topic for many, the issues addressed in this blog are important for those parents with young children, and unfortunately, it has been my experience over the years that people have been misinformed about this area of the law.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal matters.
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558 Hits

A letter on the law

 Parents – you need to execute a Last Will and Testament. I recently represented an unfortunate client whose husband unexpectedly died of a heart attack while he was getting dressed for work. He was survived by my client (his wife) and their two young children, and he did not have a will. I write that she was unfortunate, not only because her husband tragically passed away, but also because his untimely death left his widow with a real legal nightmare.


My client and her departed husband didn't know that under Georgia law, if you are married with minor children and you die without a will your spouse is not your sole legal beneficiary. Instead, your spouse becomes a joint heir with your children. Generally speaking, this is not a good thing.

Effectively, this means that the ownership in all of the property of the deceased is split amongst the widow and the children. To make matters worse, if those children are minors, the law requires that a conservatorship be set up through the Probate Court (above and beyond what is typically required to handle the deceased person's estate). In most cases, the conservatorship requires that the guardian of the children (who is appointed by the Probate Court) must purchase a surety bond and file annual returns with the Court. Whenever the surviving spouse wants to take action with regard to the property that he or she inherited from their partner – such as selling or refinancing the marital residence – he or she will have to get permission from the Judge of the Probate Court to do so. Filing the motions and attending the hearings to obtain such permission is time-consuming, expensive, and an emotionally draining exercise.


On the other hand, if a spouse with minor children dies with a valid will, the estate will be administered in accordance with the terms of the will, and the aforementioned steps are avoided. By simply executing a valid Last Will and Testament, parents can control the disposition of their estate and avoid all of the hassles that my unfortunate client has been forced to endure.

It does not matter where you go to get a Will. Wills are inexpensive, but they can be an invaluable form of "cheap insurance" against hassles and expenses for your surviving family should you die. As long as your will meets the requirements of Georgia law, your family is protected.

So please, do your family a favor. Protect them, even after you die, with a Will.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal matters.
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406 Hits

“Don’t Tread On Me”

 Flint, Connolly & Walker, LLP, recently adorned the façade of its offices with a proud display of the U.S. Flag, the Georgia Flag, and the Gadsden Flag. While most members of our community are acquainted with all three banners, many do not know the precise history and meaning of the Gadsden Flag.


The Gadsden Flag depicts a coiled rattlesnake with thirteen rattles against a yellow background with the motto: "Don't Tread on Me". It was first commissioned by Navy Colonel Christopher Gadsden in 1775 who delivered it as a gift to Commodore Esek Hopkins, the Commander of the Continental Navy for the American colonies in the Revolutionary War. Shortly thereafter the flag flew on the mainmast during the Continental Navy's first mission against the British fleet, and it remained as the most prominent flag of the American colonies until the formal adoption of the Stars and Stripes.


As noted by one historical observer, "since the Revolution, the flag has been reintroduced as a symbol of American patriotism, disagreement with Government, or support for civil liberties." Its display at Flint, Connolly & Walker invokes our empathy with these concerns.

The rattlesnake itself was often used as a symbol of the American colonies during the Revolutionary era; however, its meaning was most succinctly described in an essay written by Benjamin Franklin – under the pseudonym of "the American Guesser" – in 1775:

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589 Hits

Georgia employers must act to protect themselves against allegations of workplace discrimination

 It is important for Georgia business owners to be familiar with federal employment regulations such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, The Age Discrimination Act of 1967, and Title I of the Americans with Disability Act of 1990.


Although business owners and managers may be familiar with the general requirements of these laws, which were originally designed under the auspices of limiting discrimination in the workplace, it is important to effectively institute workplace policies and procedures to avoid encountering unintended liabilities arising out of these and other state and federal regulations.


1. The Equal Employment Opportunity Commission

Created in 1965, the U.S. Equal Employment Opportunity Commission (EEOC) is the arm of the federal government primarily responsible for enforcing anti-discrimination laws and regulations in the workplace. Generally speaking, any employer who employees fifteen (15) or more employees is subject to EEOC enforcement.

The EEOC investigates allegations of discrimination by employees, and in certain instances it may institute civil proceedings and other sanctions against employers that it accuses of violating EEOC enforced laws or policy. In other instances, the EEOC may permit individual employees and their attorneys to seek damages from their employers – or former employers – by filing private lawsuits directly against the employer for alleged acts of discrimination.

2. Anti-Discrimination Policies in the Workplace

In order to avoid being subject to damaging allegations of workplace discrimination, it is important that employers adopt policies and procedures to deter discriminatory conduct within their business.

To avoid such liability, an employer must first be conscious of what types of conduct are prohibited. The EEOC prohibits discrimination based upon a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also prohibits discrimination against individuals who have complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

It is critical that all employers adopt and implement policies prohibiting discriminatory conduct. A company should conduct regular training of its managers and employees concerning their rights and obligations arising under anti-discrimination laws and the remedies that are available to any individual who believes they have been subjected to discrimination in the workplace. Likewise, an employer is well-advised to adopt internal procedures by which employees may report alleged acts of discrimination to management and/or ownership, and have those allegations properly investigated and addressed.

3. The Employee Handbook

As a general rule, an Employee Handbook is an important tool for employers to establish requirements, privileges, and expectations of workplace conduct for their employees. It is vital for any employer to have a well-drafted employee handbook to confront a host of potential work-related liabilities that can arise between employers and employees.

In the context of establishing EEOC compliant anti-discrimination policies, it is critical for owners and management to promulgate Employee Handbooks which advise managers and employees about a company's anti-discrimination policies and the remedies available to employees who believe they have been subjected to improper treatment. These handbooks operate as an indispensible first line of defense for any employer who is faced with an EEOC investigation.

Any Georgia business owner who does not already utilize a professionally drafted employee handbook is well-advised to consult with a qualified attorney to ensure that his or her company has exercised all available means to protect itself against EEOC scrutiny and charges of discrimination.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal matters.
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453 Hits

DUI Considerations

"First the man takes a drink, Then the drink takes a drink, Then the drink takes the man."

EDWARD R. SILL

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424 Hits

More on the subject of “Independent Contractors vs. Employees?” (using FLSA criteria)

 My previous article dealt with the standards used by the Internal Revenue Service at making a determination about the status of a worker as an employee versus an independent contractor. These standards are not, however, the only ones that apply to this critical question. The federal Fair Labor Standards Act (FLSA) also affects all employers and compliance with this sweeping law is essential to every employer.

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1205 Hits

Independent contractor vs. employee?

 For the unwary business owner, the terms "independent contractor" and "employee" may seem to be a question of whether the business owner or manager elects to issue a W-2 or 1099 to the worker in question. However, these words represent important distinctions that have been specifically defined by the Internal Revenue Service. A business owner who fails to properly classify its workers can suffer significant penalties and financial detriment.

Whether someone who works for you is an employee or an independent contractor is an important question. The answer determines your liability to pay and withhold Federal income tax, Social Security and Medicare taxes, and Federal unemployment tax. In general, someone who performs services for you is your employee if you can control what will be done and how it will be done.

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663 Hits

Georgia materialmen liens

 It is no secret that the past four years have been tumultuous, if not devastating, for the construction industry in Georgia. Commercial and residential contractors alike have suffered tremendous losses as the nationwide economic collapse brought projects to a literal halt across the State.

Recently, however, I have begun to hear encouraging news from several of my clients who work in the construction industry, who tell me that the building market is beginning to show signs of life. Although we are still months, if not years, away from a major recovery, many owners and developers are working hard to breathe life into this previously stagnate industry.

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690 Hits

Primary Issues in Divorce

Divorce is and should be a difficult decision. But, too often this difficulty has led many divorcing spouses to try to move through the process as fast as possible without properly considering all of the issues and pitfalls that must be addressed. The process to end a marriage is much more difficult than the one that began it. If divorce is where you must go, then you must carefully consider, among other things:

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442 Hits