Protecting Yourself from a Breach of Fiduciary Duty
Fiduciary duty means that an individual has a legal obligation to act in the best interest of another party. In most cases, this involves the management of another person’s money, property, or other assets. A breach of fiduciary duty occurs when the executor, or the fiduciary, behaves in a way that contradicts their duty. Depending on the circumstances, this can have serious legal consequences. To avoid a breach of fiduciary duty, it is important to understand some of the potential conflicts and take immediate action to resolve any conflicts that may arise.
Examples of fiduciary relationships include a board member who has a fiduciary duty to a company’s shareholders, a trustee who has a fiduciary duty to beneficiaries of a trust, or an attorney who has a fiduciary duty to a client. Both parties involved in the fiduciary relationships must sign a contract for the duty to be legally binding. The fiduciary is expected to be dependable, trustworthy, and discrete on behalf of their client and may not benefit personally at the expense of the other party.
Under no circumstances may a fiduciary act in their own best interest, or use corporate assets or an individual’s inheritance for their own personal advantage. If a fiduciary behaves in a way that has a negative impact on the client’s finances, or their reputation, the wronged individual may sue for damages, as well as any profits the fiduciary made as a result of the breach.
How to Avoid a Breach in Fiduciary Duty
One way to avoid a breach in fiduciary duties is to have a thorough understanding of the transactions that are prohibited, so that you can avoid them. After the legally binding contract has been signed by both parties, make sure that the document is modified or updated any time a decision has been made that impacts the details of the contract. This will help prevent a breach of duty.
If an individual failed to uphold their fiduciary duty, either by withholding information, misappropriating funds, or abusing their position of power, the wronged person may pursue legal action against the fiduciary. They will need to provide proof that there was a fiduciary relationship, and the fiduciary did not act in their best interest. If the fiduciary benefited financially from the breach of duty, their financial records will help prove the breach. Depending on the circumstances, fraud may also be an issue, but the breach of fiduciary duty is much easier to prove than fraud.
If you have questions about a fiduciary relationship with another party, you are urged to contact our business lawyers at MacMain, Connell & Leinhauser. To schedule a confidential consultation, call us today at 484-318-7106 or contact us online. Our office is conveniently located in West Chester, Pennsylvania, where we serve clients throughout Philadelphia and Chester County.
Small Businesses and Debt Collection
Small business owners wear many hats. Besides maintaining the primary business, owners must keep up with several tasks to keep the company running. One of the least pleasant tasks is to collect overdue debts owed by customers. While unpleasant, the task of debt collection is a necessary evil that is essential to the survival of the business. In fact, according to a recent poll conducted by American Express’s OPEN Small Business Network, the number one cash-flow concern of small business owners is the issue of accounts receivables.
As a vital element of a business’s success, it is important that the issue be handled with tact. After all, it is not just the payment at stake, but also repeat business and ultimately, the reputation of your business. Your attitude and patience with non-paying customers will have consequences on your image and on your chances of having the debt repaid.
New and Old Customers
It is important to keep this mindset when collecting a debt from a new customer. It is possible that the whole issue was just an oversight. Coming on too strong with a fight to claim a debt could damage a business relationship that could have great potential. If the debt owed is from an established customer, the best option is to evaluate their payment history. If they had trouble in the past with providing prompt payment, that is a fact worth considering.
Typically, non-paying customers fall into one of three categories:
- Customers who normally pay, but are having unusual issues
- Customers who are repeat late-payment offenders, but eventually pay
- Customers who habitually avoid paying their debts
If reaching out with a gentle reminder does not produce results, it is necessary to become more assertive. It is a good idea to build up your efforts gradually, but to also be frequent with your requests. Keep in mind that the longer a debt goes unpaid, the less likely payment becomes. Varying communication methods are one way to keep the reminders coming, while leaving the working relationship intact. Requests can be made through email, over the phone, or by certified letter.
Be sure to document all exchanges you have with your customer. These notes may come in handy if you need to refer to them in the future. For example, if a customer makes a promise and then reneges, detailed notes on the agreement would be helpful. Above all, avoid harassing or demeaning a customer over payment. Such an approach works against your efforts to come to an agreement and there are other avenues a business can take to achieve the goal of eventual payment.
Once it has been determined that a customer is unlikely to pay their debt in full, small businesses can offer to settle the issue for less than the amount owed. This may be enough to appeal to the customer and make them pay. If not, the account can be turned over to a collection agency. As a last resort, a small business may decide its best course of action is to address the matter in small claims court.
Small Businesses who need representation in debt collection proceedings should reach out to the experienced small business lawyers at MacMain, Connell & Leinhauser. Call us at 484-318-7106 or fill out an online contact form today. We represent clients throughout Philadelphia and Chester County from our office in West Chester, Pennsylvania.
Effective Documentation of Employee Issues
It is the rare employer that does not have disciplinary issues with their employees from time to time. Most human resources departments realize that these issues need to be documented. However, truly effective documentation can be challenging.
There are many steps an employer can take to ensure that they can defend any disciplinary actions taken should the need arise. Thorough written documentation can end up being the key to a jury deciding in favor of the employer.
Four Aspects of Effective Documentation
When documenting a workplace problem, be clear about stating exactly what the problem is and what that means for both the employer and employee. Then outline how the problem should be corrected, so that the employee understands both exactly what is expected and the consequences of failing to meet those expectations.
Effective documentation should use these four guidelines:
Consistency: Disciplinary actions must be applied objectively and consistently. It is not fair to write up some but not all employees who violate the same rules.
Detailed and thorough language: When documenting performance issues, language must be precise and objective. A detailed explanation of the issue will provide a clear picture of what the problem was and why disciplinary action was needed.
For example, it is not enough to write only that the employee failed to follow procedures. Good documentation outlines what the procedure is, how the employee deviated from procedure, and the consequences of failing to follow procedure. Use clear and common language and avoid using legal jargon.
Remove emotion from the equation: Anger and sarcasm have no place in a disciplinary write-up and can be counterproductive. Effective documentation should be free of emotional commentary regardless of the problem being addressed.
Thorough analysis of the problem: In order for an employee to improve their job performance, the employer’s expectations must be clearly written out in a way that is easily understood. Analyze all aspects of the work problem, such as training, equipment, and supervision, to see what can be done to help the employee succeed.
Additionally, this analysis should show how the employee’s performance impacts their immediate colleagues, the rest of their department, and the company itself. A thorough examination of the performance problem can help reveal the path to correcting it quickly.
The Time Factor
Effective documentation must be done in a timely fashion as matters occur. It is important to show that the situation was recognized immediately and addressed. However, where this is not the case, do not attempt to backdate documents. Instead document why there was a delay and explain it. Backdating can be extremely damaging to employer credibility.
When a problem occurs and is being documented, this can be an opportunity to include prior warnings or conversations that were not written down. Including this information demonstrates that the problem was acknowledged, and all of the steps taken to deal with it.
Verbal warnings can and should be documented, even if a written warning has not yet been issued. Documenting a verbal discussion as a simple note can support any future written warnings by showing the problem existed and was previously addressed.
Proper Documentation Protects Employers
Unfortunately, most every employer will encounter an employee that needs to be terminated. Proper documentation shows clearly the circumstances that led to termination and is the easiest way to defend from litigation. If you have employment documentation questions or concerns, contact an employment lawyer from MacMain, Connell & Leinhauser at 484-318-7106 or complete our online form. From our office in West Chester, Pennsylvania, we serve clients in Philadelphia, Chester County and throughout the state.
Open Data Benefits Law Enforcement
Most of us are not statisticians. Yet we largely understand that findings based on data analysis can be as much a matter of opinion as a matter of fact. Data analysis is simply not the same as raw data. It involves selecting data sets, choosing methods to analyze the data, and interpreting results.
Law enforcement agencies gather a great deal of data regarding crimes. They regularly analyze that data looking for trends and developing ideas on better policing and public safety strategies, in order to reduce and prevent crime.
To date, most police agencies have typically only provided summaries of their findings to the community-at-large. Access to the underlying data the police use to develop surveillance and enforcement activities has not traditionally been made available to the public.
The question is, without specific knowledge and skills on how to analyze data, can a layperson understand a situation by looking at data in its raw form? As for data on crime, we are about to find out.
What is Open Data?
Open data is incident-specific information, based on individual incidents rather than aggregates or summaries, that is in a downloadable digital format made available at no cost online. It is machine readable, i.e. not an image or locked file. It is offered as non-proprietary and without restriction as to use. Open data allows anyone to access, download, and independently analyze data.
Before open data can be released the need to preserve privacy must be adequately addressed. Accordingly, release of open data must be done in a manner in which personally identifiable information is not disclosed and cannot be uncovered.
Another important consideration is the form of the data. It will be necessary for police agencies to present the data in relatable data fields so that the data can be easily understood.
Benefits of Access to Open Data
As concerns regarding police actions have mounted amid news of police-involved shootings and in-custody deaths, police agencies are seeking ways to build trust and better engage communities. The release of open data is an effort to do so through improved transparency and leveraging community insights.
A number of police agencies are interested in offering open data to their communities. To that end, the U.S. Department of Justice houses the Office of Community Oriented Policing Services (COPS Office), which provides grants and other support to law enforcement agencies.
The office has been awarding grants to law enforcement agencies to hire community policing professionals and to develop and test innovative policing strategies. It is also providing training and technical assistance to community members and local government leaders.
Police Data Initiative
The COPS Office has established the Police Data Initiative to promote use of open data. The hope is that sharing open data will encourage joint problem solving and innovation in reducing and eliminating crime. The office hopes that sharing open data will promote enhanced understanding and accountability between communities and the law enforcement agencies that serve them.
To date, over 130 local law enforcement agencies have participated in the initiative and have either provided or will soon provide open data in support of the project.
The civil rights defense attorneys at MacMain, Connell & Leinhauser serve as counsel to a number of law enforcement agencies and local governments. Our services include preparing internal policies, developing best practices, and providing training. We can be reached by calling 484-318-7106 or completing an online form. Our West Chester, Pennsylvania office serves Chester County and the Philadelphia metropolitan area.