News

2501, 2018

Legal and Ethical Challenges Associated with Mental Health in the Last Frontier: A Primer for Alaskan Families

January 25th, 2018|

Written by:  Aaron Sperbeck

Alaska is home to over 739,000 people from many different and unique walks of life.[1] Mental health continues to be a matter of public concern in Alaska’s ever-growing and aging population.  In 2014 alone, more than 33,000 Alaskans self-reported suffering from a Serious Mental Illness (“SMI”).[2] It is estimated that one in five Alaskans continue to silently suffer from other less severe forms of mental illness which go unreported.[3] The Alaska Department of Labor predicts that the number of Alaska residents aged 65 and older will more than double from 63,832 in 2012 to 140,340 in 2042.[4] An increase in Alaska’s elderly population will mean a dramatic expansion of the number of residents requiring medical and other health-related services, such as informal caregiving and assistance with daily living activities.[5] This increase also translates into a surge of mental illness and mental health related issues that Alaskans and their families will likely encounter.

Proper diagnosis of mental illness or dementia, including Alzheimer’s disease, in the elderly is vital in order to ensure that appropriate treatment is provided as soon as possible. Misdiagnosis of mental illness in seniors can easily occur since symptoms are so similar to dementia, such as confusion and erratic behavior. While dementia does affect mental health, it is not classified as a mental illness, but rather a disorder of the brain that causes memory loss and trouble communicating.

Most people are not comfortable making plans for a time when they will be unable to make decisions and not have control of their own lives. Discussing personal values in relation to illness and death, finances and living arrangements, for example, is difficult. It is critical to remember how important decision-making can be to maintain a person’s confidence and self-esteem. As a person loses the ability to make decisions, decision-making will involve others, such as family members, substitute decision-makers and health-care professionals. Making decisions on another person’s behalf can be difficult and highly stressful, especially when the values and wishes of the person with the mental health issue are unknown, unclear, or impossible to follow.

More often than might be expected, lawyers encounter mental health issues in their everyday practices. In some instances, lawyers work directly with clients who suffer from mental health disabilities or with the family of a loved one who suffers the misfortune of age-related mental health decline. Lawyers are often responsible for drafting important legal documents which authorize individuals to act on another’s behalf with regard to an individual’s private or business affairs. It is not only fundamental, but critical, that lawyers understand the legal and ethical challenges faced when working with mentally ill clients and their families. The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters.  The fact that a client suffers impairment does not diminish the lawyer’s obligation to treat the client with attention and respect, protecting the confidences and secrets of that client pursuant to the professional rules of conduct.

If you have questions regarding how to address mental health issues in your life, or the life of a loved one, please take time to understand the issues involved and seek the advice and counsel of medical and legal professionals for further resources.

_____________________

[1]           United States Census 2016

[2]           National Survey on Drug Use and Health – Alaska Mental Health Board (2015)

[3]           Alaska Behavioral Health System Assessment 2016

[4]           Alaska Department of Labor and Workforce Development, Research and Analysis Section. Alaska population projections: 2012 to 2042. 2014. [cited 2015 Dec 29].

[5]           RM Rosich and SR Thompson, Gerontological Knowledge and Elderly Health Care Services in Alaska: Aging in the Last Frontier. Educational Gerontology 1997; 23:443–52

501, 2018

Business Entity Formation 101

January 5th, 2018|

Written By:  Kristy Garrett

A reoccurring question that commonly arises in the area of commercial transactions is, “What type of legal entity should I form for my business?”  The answer to that question depends on, among other factors, the type, the size, the management, and the intended purpose of the business.  There are many important considerations when deciding which type of entity will suit a client’s business objectives.  It is most advantageous for these considerations to be made prior to any business action or operations being taken.  This article will discuss the questions that should be answered prior to picking an entity type for a business operation and a brief description of three (3) of the most popular entities utilized.  The information below is to provide a general framework only and a complete legal and tax consultation is recommended prior to taking any formal steps in the corporate formation process to ensure that the entity is properly formed and structured and in order to realize the intended advantages.

Considerations For Choosing An Entity Type

  • Management: Will this business be run by a single manager?  Will there be a board of directors?  Will it need to have officers?  Will it be run by its sole member or members?  Will decisions be made by a majority vote of the owners?  Will certain decisions require unanimous consent?
  • Size: Will this company be a closely held company?  Will there be just one or two owners?  Does the structure need to accommodate several owners?
  • Tax Considerations: There are important tax reasons and implications for choosing an entity structure for a particular type of business.  A consultation and analysis by an accountant is an important step in the business formation process.
  • Future Growth and Changes: Are there plans for growth and expansion or is the company’s purpose limited and distinct?
  • Capitalization: How will the company be capitalized?  Is there a need for investors now or potentially in the future?  Will the company need to obtain financing?

 Common Entity Types

  • Limited Liability Company or “LLC”:  The LLC is a business structure that generally combines the pass-through taxation of a partnership or sole proprietorship, with the limited liability of a corporation.  An LLC is not a corporation in itself; it is a legal form of a company that provides limited liability to its owners, when properly structured and capitalized, and under certain circumstances.  It is often more flexible than a corporation, and it is well-suited for companies with a single owner or a closely held organization.  LLCs have less corporate formalities than corporations.  Additionally, ownership in an LLC is represented by a “membership interest” or an “LLC interest”.   An LLC can be managed by a manager or managed by its members.  A member managed LLC is most common.  An LLC is formed in Alaska, among other requirements, by the filing of Articles of Organization with the Division of Corporations and the management of the entity is structured by its Operating Agreement.
  • C-Corporation: A C corporation, similar to an LLC, generally limits the owners’ personal liability for business debts and court judgments against the business.  A C corporation is an independent legal and tax entity, separate from the people who own, control, and manage it.  Additionally, ownership in a corporation is represented by shares of stock that can be issued to several owners, called shareholders.  Corporations in Alaska must have a President, Secretary, and Treasurer.  Corporations are better suited for operations with several owners and a structure that supports having officers, a board of directors, and regular board and shareholder meetings.  A C corporation is formed in Alaska, among other requirements, by the filing of Articles of Incorporation with the Division of Corporations and the management of the entity is structured by its Bylaws.
  • S-Corporation: An S corporation is a regular corporation that has elected “S corporation” tax status, which means that the corporation is not a separate taxable entity like a C corporation.  Basically, owners pay income taxes as if they were sole proprietors or partners. S corporations are very similar to LLCs, but there are a few key differences and certain restrictions on S corporations.  S corporations have several limitations that LLCs do not and include the following:  (a)  Each S corporation shareholder must be a U.S. citizen or resident; (b) S corporations may not have more than 100 shareholders; and (c) S corporation profits and losses may be allocated only in proportion to each shareholder’s interest in the business.  Like regular C corporations, S corporation owners have to issue stock, hold regular board of directors’ and shareholders’ meetings, and keep corporate minutes of all meetings.

 

2112, 2017

Repealing Alaska’s Civil Case Reporting Requirement

December 21st, 2017|

Written by:  Sarah A. Badten

After practicing law in Alaska for about a year, I began to question the requirements of AS 09.68.130, Alaska Civil Rule 41(a)(3) and Appellate Rule 511(e), all of which required the submission of information about the resolution of civil cases to the Alaska Judicial Counsel when a case was dismissed.  My entire practice involved civil cases, which meant that for every single case I dismissed, I had to log on and enter information about each case into the required database.  Because I filed many lawsuits that tended to resolve quickly, I was continually entering information into this database and billing clients to do so.

After filling these forms out for about seven years, I started to question why was this form required?  Who looks at the information on this form?  What are they doing with the information?  I did not like the answers I received as it turned out that NO ONE was doing anything with the information. NO ONE was even looking at the information.

I felt compelled to take action.  One of my partners at the time told me that the Anchorage Bar Association had attempted to repeal the reporting requirement, but nothing came of it.  After hearing this news I did a little research of my own and found Resolution 2007-1 by the Anchorage Bar Association, passed in 2007 that encouraged the Alaska Bar Association to work with the Alaska Judicial Council and the Alaska Legislature to secure the repeal of AS 09.68.130, Alaska Civil Rule 41(a)(3), and Appellate Rule 511(e).

After discovering the resolution in June, 2014, I emailed Susanne DiPietro at the Alaska Judicial Counsel and asked her about the history of Resolution 2007-1. Susanne related:

The legislature passed the civil case reporting requirement in 1997 to help gauge the consequences of tort reform enacted that same year. The Council then began collecting the civil case information as directed. We issued analyses of the data in 2000 and 2001. In our 2001 report we recommended that the legislature eliminate the automatic reporting requirement and substitute a requirement that information be provided only in response to a specific request from the Council. The idea was to provide a more targeted and less burdensome method of compiling information about the compromise or other resolution of civil cases. We followed up on that recommendation in 2010 with a specific request to the chairs of the House and Senate Judiciary Committees to repeal AS 9.68.130; however, the law was not changed.

I felt defeated but what could I do?  It seemed like a lost cause.  I continued to fill out the form.

Out of the blue in February of 2015, I received an email from Susanne DiPietro to tell me that House Bill 83 was in front of the legislature to repeal the reporting requirement and that the legislature was hearing public testimony that coming Friday!  If someone was going to listen, I was going to tell them about this ridiculous reporting requirement which never got reviewed and the data never utilized.

I showed up that Friday and testified in front of the legislature for the first of many times.  I informed the legislators about how the purported purpose of this requirement was to assess tort reform, but that I practiced contract law, therefore any data I entered would skew any tort reform analysis.  I testified about how no one looks at the data, and that if the information is not used, then it is a complete waste of time and our clients’ money to fulfill this requirement.  I testified that this requirement served no purpose and should be repealed.  I was doing the best I could to get the legislators to FEEL MY PAIN.  I’m not sure it worked.

During that time I learned a lot about the legislative process.  Did you know that if a bill does not get passed during the specific two-year legislative session in which it was raised, that it is automatically quashed and you have to start all over again with a new bill for the next session?  That lesson was learned the hard way.  After testifying over and over to various House and Senate committees, the bill got all the way to the final vote required for it to pass the legislature in 2016… but then it was never put on the schedule for the final vote (I’m told for political reasons involving a squabble between legislators).  The session was up.  The bill was quashed.  We would have to start over.

Luckily, at that first legislative hearing, I met Ken Jacobus, a fellow attorney in town who had similar concerns about the reporting requirement.   Ken had been working to get it repealed almost since the day it took effect.  (The Alaska Bar Rag published an article written by Ken regarding the requirement in its January-March 2017 issue.)  We became friends over our mutual dislike for this reporting requirement.  He told me not to lose heart, and that we would continue the good fight.  Luckily, we did.

Before the start of the 2017 legislative session, Ken sent a letter to several legislators regarding the reporting requirement, and this time he got the entire House Judiciary Committee to sponsor the bill.  Miraculously, the bill sped through the House and Senate committees in one year!  Ken and I testified at every single public hearing and then waited to see what would happen. The bill had met all the requirements for passing the legislature, but it still had to be signed by the Governor before it would be enacted into law.

Almost a month passed and nothing happened.  We were starting to fret.  Ken made some calls.  It turned out that it is a small tradition for the Governor to sign bills into law at the annual bar convention, which was being held this year in Juneau.  Ken spoke with the Governor’s office and hinted that it would be great if the Governor signed this bill into law at the convention.  It worked!  The bill was transferred to the Governor and on May 12, 2017, at the annual bar convention, the Governor signed HB 104 into law and just like that… the reporting requirement was repealed.

Mission accomplished.  Life is good.

 

1212, 2017

Leslie Wheelock Joins BHBC’s Washington DC Office

December 12th, 2017|

Birch Horton Bittner & Cherot is pleased to announce that Leslie Wheelock has joined the firm as Of Counsel, focusing on Tribal Business and Community Development, 8(a) matters, Government Contracting, Telecommunications/Technology and related Tribal Federal Policy in its Washington, DC office.

Most recently Leslie served at the US Department of Agriculture as a Departmental Officer, Senior Advisor to the Secretary, and Director of the Office of Tribal Relations. During her term at USDA Leslie served as the principal advisor to the Secretary and other USDA executives on USDA policy, regulations and programs affecting American Indian and Alaska Native Tribes, tribal organizations and businesses, tribal colleges and universities tribal lands and tribal citizens. At USDA, Leslie worked closely with the Forest Service, Animal and Plant Health Inspection Service (APHIS), Natural Resources Conservation Service (NRCS) and the Rural Development agencies. Additionally, Leslie worked on Tribal priorities across other departments and agencies, covering key areas prioritized by Tribes nationwide, including self-determination, economic and infrastructure development, business and broadband support, education, employment development, housing, sacred places, climate change, energy, conservation and natural resources.

Ms. Wheelock previously served as Director of Economic Policy at the National Congress of American Indians. During her tenure at NCAI, she worked on a variety of economic development initiatives involving small business, financial literacy, rural infrastructure, access to capital, expansion of broadband to Indian Country and agriculture. She also previously served at the Smithsonian National Museum of the American Indian in Washington, DC as the Rights and Permissions Manager on the National Mall transition team and as a strategic planning consultant on cultural and intellectual property. Leslie currently serves on the National Council for the Museum as well as the board of directors for the Smithsonian Indian Museum in New York.

Prior to her move into public service, Leslie accumulated more than 20 years of executive legal and management experience in US and international corporate technology and telecommunications corporations. Her most recent corporate experience was as sector counsel for NANA Corporation’s government contracting businesses. Leslie’s corporate legal career has included leadership positions at IBM, MCI Telecommunications (including Concert Communications – MCI’s international joint venture with British Telecommunications) and Euronet Worldwide.

Leslie is a member of the bar in New York, Connecticut and Washington, DC as well as the US Court of International Trade and US Court of Appeals for the Federal Circuit. Ms. Wheelock earned both her JD from the Cornell Law School and MBA from the Johnson School of Graduate Management in 1984. Leslie’s undergraduate degree is from DePauw University. Ms. Wheelock was born and raised in Indiana, and her home and family are on the Oneida Reservation in Oneida, Wisconsin. Leslie is a member of the Oneida Nation.

1112, 2017

Elections May Have Consequences in Regard to Labor Law

December 11th, 2017|

Written by:  William A. Earnhart

The newly appointed General Counsel to the NLRB, Peter B. Robb, issued a memorandum of “Mandatory Submission to Advice” on December 1, 2017, rescinding several of his predecessor’s policy memoranda and indicating a second look at a number of policy positions advanced under the Obama administration.

The relatively short memorandum addresses a broad range of policy issues promoted by the Board under the Obama administration, from employee classification to intermittent and partial strikes.  Of particular interest to both union and non-union employers is the rescission of GC 15-04 (Report of the General Counsel Concerning Employer Rules) and the General Counsel’s intention to take a new direction in regard to concerted activity for mutual aid and protection.  Lately, the Board has found facially neutral employer handbook rules and policies against obscene or inappropriate conduct, as well as electronic media, confidentiality and security policies, to violate the Act.  This memorandum suggests a willingness to overrule recent precedents on these issues.

It should be noted that the memorandum makes clear that these policy decisions will need to be implemented by the Board and that the Office of the General Counsel will “not be offering new views on cases pending in the courts, unless directed to by the Board or courts.”  Thus, any change will likely happen slowly as the NLRB processes cases. This is certainly not a win for labor unions; many of the proposed policy changes could ultimately be beneficial to all involved in employer relations by tempering some of the excesses of prior Board decisions. It has been argued that the Board has undermined its legitimacy by making decisions that, although legitimate in respect to union organization, seriously undermine the rights of coworkers in having a safe and respectful work environment.  Recognizing that the Board’s role is often to interpret the scope of “protected activities,” employer/management advocates have repeatedly questioned the rationality of finding employer policies against obscenity and disrespect unlawful.

512, 2017

Jason Brandeis To Speak At Marijuana Business Law Seminar

December 5th, 2017|

Written byJason Brandeis

The commercial marijuana industry in Alaska continues to grow. As this recent Anchorage Daily News article reported, the state collected nearly $1 million in marijuana tax revenue in October, and the industry has generated nearly $5 million in taxes during its first year of existence.

The interest in this industry and its quick expansion has led to many unexpected legal issues and controversies, most of which stem from the ongoing tension between state marijuana legalization and federal marijuana prohibition. Keeping up with these matters can be challenging. In my practice, I regularly work with businesses and government regulators to help them understand, comply with, and remain up-to-date on rapidly-evolving marijuana laws and policies. On Friday, December 8, 2017, I will join a group of other industry professionals in speaking about current marijuana business law topics at the National Business Institute’s day-long seminar titled Recreational Marijuana Business Law In Alaska.

My first presentation will be on how federal law impacts the Alaska marijuana industry and will include a discussion of preemption and the Controlled Substances Act, the contradictory messages found in federal policy memos, current federal marijuana enforcement priorities, possible legal consequences for marijuana consumers under federal law, and how marijuana legalization affects state agencies and federal funding. My second presentation looks at the ethical issues marijuana legalization poses for attorneys who work with marijuana clients. Other presenters at the seminar will discuss banking, business formation, licensing, product packaging, testing methods, and taxation.

This continuing legal education (CLE) event is relevant for many people working with marijuana clients, including attorneys, accountants and CPAs, bankers and commercial lenders, financial advisors, and paralegals. For more details and for information on how to register, visit the NBI website.