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  • WisBar News
    June 14, 2013

    Institute Insights: Top 7 Tidbits from the Real Estate and Business Law Institute

    Mark Yochum

    Law professor Mark D. Yochum, Duquesne, is the keynote luncheon speaker. Yochum presents The Bonehead Play.

    LLC panel

    James Phillips (right) makes point during a presentation with fellow panelists, (from left) Thomas Nichols and Joseph Masterson, during the Upcoming Changes in Wisconsin Partnership Law: The Revised Uniform Partnership Act session.

    NRLD members with Patrick Fiedler

    Pat Fiedler (center) stops in at the Nonresident Lawyers Division board meeting. Fiedler was sworn in as the 58th State Bar of Wisconsin President last evening. Fiedler's term begins on July 1.

    Brandon Evans, Jan Haapala, and James Dickinson

    Brandon Evans, Jan Haapala, and James Dickinson catch up between sessions.

    Visit the State Bar of Wisconsin on Facebook for more photos of this event, or click here.

    June 14, 2013 – Technology tools, real estate and business law developments, ethics and sports: lawyers got it all in one place at the State Bar's Real Estate and Business Law Institute in Middleton. If you missed it, we've got some helpful tidbits right here.

    Those include updates on major landlord-tenant legislation, and big initiatives to revise and improve both Wisconsin's partnership and LLC laws. But first, we start with some technology insight from a lawyer with more insight than is allowed in most states.

    1. iPad Basics for Lawyers

    Lawyers came from near and far to hear State Bar Practice Management Advisor Nerino Petro's presentation, "iPad Basics for Lawyers," and this technology guru did not disappoint. Petro explained how iPads can benefit lawyers, what lawyer-specific applications are out there, and what must-have accessories can make life easier.

    "The iPad allows lawyers to carry and access documents, supplement presentations, aid mediations, and find things rapidly," Petro said. "And if you're interested in using a tablet device for trial or mediation, the only option you have is the iPad right now."

    With the right applications, Petro says the iPad is a secure portal to access any and all information needed to work outside the office. His presentation highlighted some of these applications, including Dropbox. Must-have accessory? A keyboard.

    "If you're going to be productive with your iPad, you must have a keyboard," Petro said. He recommends the Logitech Keyboard Ultrathin, which doubles as a cover and stand.

    Attorney Chuck Stahmer, in from Bozeman, Mont., attended Petro's presentation. He says the iPad gives him great freedom to work outside the office. Recently, he used it to stay connected while scuba diving in Aruba. Of course, Stahmer didn't use it while under water, but is that really far-fetched? "The capability is amazing," Stahmer said. "And I'm a basic user, so a basic program like this was very helpful."

    Stay tuned for a full-day seminar on iPads for lawyers in August. Petro will be among the stellar cast of technology gurus summoned to help the non-guru among us.

    2. Changes to Wisconsin's LLC Act

    The groundwork has been laid for an overhaul of Wisconsin's Limited Liability Company Act, according to Milwaukee lawyer Adam Tutaj, co-chair of a State Bar Business Law Section subcommittee that has been working on this project the past four years.

    "This will be a pretty big change in a lot of respects from our current law, and since LLCs are one of the most widely used entities, both nationally and here in Wisconsin, it's a big deal for the business practitioner," Tutaj said.

    The proposal, currently being reviewed by the Department of Financial Institutions, would adopt a version of the Revised Uniform Limited Liability Company Act (RULLCA). Some version of RULLCA has been adopted in nine states, including California.

    "By having a uniform law, we can start to develop a greater body of law. It's helpful for the practitioner to have clarity in the statutes, and to have persuasive authority from other jurisdictions who are applying many of the same provisions," Tutaj said.

    One notable change? Recognition of oral or implied operating agreements. Currently, an oral agreement to create an LLC is not binding in Wisconsin. However, Tutaj says some provisions must still be in writing, under the current proposal.

    "The hope is that this will be regarded as a fairly noncontroversial and beneficial statute, not just for the practicing bar, but also for the business community," Tutaj says.

    3. The Merkle Story, the Bonehead Play

    Ever hear of Fred Merkle? He played baseball for the 1908 New York Giants and his "boneheaded" blunder, as it was called, led to tragedy both on and off the field.

    Duquesne University Law Professor Mark Yochum told Merkle's tragic story to suggest that sportsmanship isn't confined to sports. A master storyteller, Yochum inspires new perspectives on the Rules of Professional Conduct for Attorneys.

    As Yochum dramatically recounts, Merkle was on first base, another man on third, with two outs in the bottom of the ninth inning of the National League pennant game against the Chicago Cubs. The game was tied. Under baseball rules, a force out at second base would negate the winning runner at third, but Merkle didn't run to second. He ran to the dugout, thinking the game was over when the third-base runner was batted in.

    The debate ensued: Should the Giants have been declared the winner despite a technical baseball rule? Umpires had declared the game a tie.

    After litigation, the game was replayed. But the Giants lost. The Cubs went on to win the 1908 World Series. Merkle, a rookie, would never be the same.

    "A lot of ethical education that lawyers receive is dull and dry," said Yochum, who teaches professional responsibility. Yochum says Merkle's story is a springboard for new thoughts on ethical rules, considering the emotion that sports can evoke.

    4. Landlord-Tenant Law: Act 143 and Corrective Legislation

    2011 Wisconsin Act 143 substantially amended residential landlord-tenant laws in Wisconsin, codifying existing law and clarifying other rights and obligations. But there are some unintended consequences that lawyers must navigate.

    "From what I've gathered, the intent was to smooth out some wrinkles in landlord-tenant law," said Madison consumer litigator Briane Pagel of Krekeler Strother S.C. "Whether it did that was superceded by the fact that it opened litigation in the commercial context."

    Pagel's tip to get familiar with Act 143: Look at pre-Act 143 landlord-tenant cases and determine how new provisions would impact those cases.

    Pagel also says pending legislation, AB 183, could make corrective changes to Act 143 while making other substantive amendments, such speeding up evection processes. Read more about these changes in a recent article from the State Bar.

    5. Affordable Care Act's Impact on Businesses

    The federal Affordable Care Act, commonly known as Obamacare, doesn't just impact individuals. It impacts an employer's obligation to provide health care for employees, says Todd Cleary, an employee benefits lawyer at Godfrey & Kahn S.C.

    In general, employers with 50 or more full-time employees will become subject to penalties if they don't offer satisfactory health insurance.

    "The mandate is a new provision going into effect in 2014," Cleary said. "Lawyers should get this issue in front of their clients. Even though the law is three years old, there's still a tremendous amount of uncertainty and confusion."

    For attorneys who don't work in the employee benefits arena specifically, Cleary suggests contacting an employee benefits attorney to help them navigate, "at least with respect to those issues that are in gray areas. And there are a lot of gray areas."

    Cleary's Tip: Have a basic understanding of the mandate in order to have an intelligent "cocktail-party level discussion" with business clients.

    6. Changes to Wisconsin's Partnership Act

    If you're a business lawyer, you ought to know about draft legislation that could impact new and existing partnerships in the coming year or two.

    Like the ch. 183 subcommittee, Business Law Section lawyers are working on draft proposals to adopt an updated version of the Revised Uniform Partnership Act.

    "We're in the process of working with the Department of Financial Institutions and the Legislative Reference Bureau to get legislation introduced this year," said attorney Thomas Nichols, president of Meissner, Tierney, Fisher & Nichols S.C. in Milwaukee.

    Nichols says there are some fairly significant changes relating to non-competes, apparent authority, enforcement of liabilities and disassociation and dissolution.

    "To a certain extent, it would update what courts have already decided on some of these issues, but that's not all of it. I don’t think it will disrupt practice, but there will be some lawyers who will have to deal with changes, and that's why we're here today."

    Nichols says the legislation, if introduced and passed soon, could impact new partnerships formed after Jan. 1, 2014 and existing partnerships starting Jan. 1, 2015.

    7. Right to Cure Construction Defects

    Contractors have a right to cure construction defects before they can be sued for damages under Wis. Stat. section 895.07.

    Milwaukee attorney Carol Krigbaum reminds attorneys that notice of a right to cure must meet statutory requirements, including a requirement that it contain a description of the claim in sufficient detail "no later than 90 working days before commencing the action."

    Also, Krigbaum provides a tip: "Lawyers should not be advising clients to mitigate the damages or repair the defect before the contractor has been given the right to cure."

    Webcasts Replays, Upcoming Institute

    Select recorded sessions of the State Bar's Business and Real Estate Institute will be played via webcast for CLE credit in the fall. Those who attended the Institute have free access to the first two replay dates, which will be announced in coming months.

    Also, save the date for the Health, Labor & Employment Law Institute, Aug. 22-23 at the Kalahari Resort in Wisconsin Dells.

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