Joe,
So, just what exactly is it that you do that makes people confuse you with a lawyer? 
I agree, again, good thread Tom. I think this dicussion has benefited me.
Am I right to say, that even though the waiver appears to protect me and holds me harmless, wouldnât I have to be included in a suit and have to defend. If an attorney would fail to include me couldnât there be a possibility of malpractice?
Bob,
Arenât you Louisiana? Although I may have become the âhypothetical Lawyer,â I know absolutely nothing about the Napoleonic Code!
OK, if this happened in my jurisdiction and if I was handling the case, and if the there was a breech of a duty amounting to negligence, and if that negligence caused a foreseeable injury;, then, I may consider challenging the waiver and including you in the suit. Please remember though that there are a myriad of factors, that the public rarely sees, that goes into the analysis including facts, strategy, personality, law, jurisdiction, hunches, etc.
Legal malpractice (there is a lot of it out there - in fact I see it as a next big wave) like medical malpractice is not based the exercise of judgment where that judgment used was a reasonable choice. It is based on a deviation from an accepted standard of care based on the facts as presented i.e. there must be negligence. For example, if there are three reasonable choices, but you happen, using best judgment, to pick one that doesnât work out, that is not a deviation.
I have tried to avoid telling you how to âbuild a watchâ every time I am asked âwhat time it is;â but, maybe this helps to illustrate that the law is never quite as clear cut as one might think, nor should it be (Iâll save the explanation for later).
Boy, I canât wait for Gregâs insurance article!
PS The edit note below is b/c I had to correct early morning typos!
David, in Louisiana, they have legislated out the broad form contractural provisions which the oil companies used. They provided that the negligence of the contractor, subcontractors and owners were all the responsibility of the contractor. I donât know if this would apply to the contract in the tri application. I believe we have adopted the Uniform Commercial Code for contracts as of a couple of years ago, by the way.
In your experience, would a court in your jurisdiction impute a different standard of care in the case of a for profit vs. a non-profit, charitable event, m-dot vs. Duke blue devil, for example?
Bob Sigerson
In your experience, would a court in your jurisdiction impute a different standard of care in the case of a for profit vs. a non-profit, charitable event, m-dot vs. Duke blue devil, for example?
Bob,
Assuming all of the âifsâ above, I believe that the law of âcharitable immunityâ was abolished here and in most jurisdictions quite some time ago. Further, in most all immunity situations (governmental immunity for example) the immunity is waived (thereâs that word) by the purchase of insurance.
Also, note that many âCharitableâ events, Duke Blue Devil for example, are actually run by for profit organizations. You know I like examples; so, if I am delivering a donation check to Hospice and run a stop sign on the way it is not a âcharitable eventâ although there is certainly a charitable purpose in the tripâŚmake sense?
Remember, free legal advice is worth what you pay for it!
David
That an easy question⌠Iâm what some refer to me as a Money ManagerâŚHowever, MOST recently they have been referring to me as a Mis-Manager of Funds. Crazy thing about Markets⌠they donât always go up. So, O.K. let me have it - I can take the jokes.
I usually handle monies for High Net Worth indivuals/familes, Private, Public and Corporate Retirment Plans (btw, including law firms) and Structured settlments/contracts. Also, have been know to dabble in Underwriting. âŚBeen doing the âretail investmentâ dance for about 18 yrs. now.
Joe Moya
BTW, the most common and less accurate description of my profession is Stock Broker = reptile. Most of my clients Stock transactions are handle by private money mangers I hire/rent.
Funny thing⌠when I was in my accounting years (as brief at they were), I was never confused with lawyers.
Joe,
Sounds interesting, particularly in these times. SoâŚI take it that you have never been in front of a jury, at least not often. IMHO, having been there many times (and not really meaning to digress), the impressions that you state as facts way up above are not consistent with what i have experienced over the many years of doing this. I HAVE experienced that this is a very common public perception by those who have not been there. Some due to media and political influence, some due to the âglamorâ cases that everyone hears about, some due to bad personal experience, and some who just donât understand our system. Probably some just donât understand why stock brokers have been in so many scandals lately, etc.
Peace,
David
Itâs funny how we see things about the legal system from a different point of view because we are in more contact with different aspects of the legal system⌠I think the points we made are probably not that different in the end⌠I tried to describe the judicial system from a business standpoint. And like all businesses, law and itâs settlements have a price system (albeit, unwritten). How far from the norm this âcost/awardâ occurs seems to be determined by the facts regarding the case and the willingness of the lawyer to present the case.
Every business has itâs version of cost to reward restrictions. IMHO, typically people defend against financial loss not moral reasoning. The cost of protecting yourselve from losses is weighed against the reward you may have to pay. Most attorneyâs determine the risk of winning/losing vs. the cost of fighting. This is good⌠this is why settlements occur out of court. This is where judicial decisions are made a lot times. It is where the risks are removed because juries are less predictable. This is why the legal system works more âefficientlyâ (although âeffectivelyâ may be debatable).
This is what business is about - weighing risks. As best I can tell (this from watch/knowing over 60 attorneys for many years), there is nothing glamorous about everyday legal work. The work is hard and difficult since probabilites and risks are so subjective. IMHO, I simply wish settlements were more about being fair and less about being right. Until that happens, Iâll be doing my best to clean up after the fights.
Joe Moya
BTW, Iâm at a lossâŚwhat recent stock broker scandalsâŚMaybe your confusing the Corporate executive scandals of EnronâŚWorld CommâŚetc. I donât believe financial consultants were involved (how we miss that one is beyond me?). Although, I do believe a few accountants (as well as, corp. execs.) will be someoneâs bit$# in prison. Oh wait!, Martha Stewart⌠that may be one your referring to⌠I knew someone in my profession would have to be some part of the sh*# that hit the fan.
BTW, Iâm at a lossâŚwhat recent stock broker scandalsâŚMaybe your confusing the Corporate executive scandals of EnronâŚWorld CommâŚetc. I donât believe financial consultants were involved (how we miss that one is beyond me?).
The recent merrill lynch thing, the bald guy w/ the toopee - was it millican, all the lawsuits on churning, breach of fiduciar duty, bilking little old ladys, the other brokerage houses that have been in trouble. Iâd say there has been plenty. A lot of my friends that do your type work are pretty upset by all this b/c of the implications to them.
david
What your referring to was the junk bond scandal in the mid-eighties (not Merrill-Lynch, it was Ivan Boesky and Michael Milkin of Drexel Burnham Lambert - now bankrupt). Yep, that scandal was directly related to the securities industry. That scandal also had more of an impact on the US economy than the current CEO/corporate exec. scandal involve Enron, World Com (and few others). Afterall, it basicly destroyed the Savings and Loan Industry (itâs this S&L association where widows and orphans money became involved).
However I donât consider the Junk bond trader scandal as recent (17 yrs ago is a long time). On the other hand, the more recent Analyst - âconflict of interest and IPOâsâ problem during the internet bubble does strike closer to home. The Enron - World Com problem was more about a corrupt accounting system and Accountants.
As best I can remember, the only current noteable scandal that does reflect on my profession was the âinsider tradingâ problem involving Martha Steward (In money terms itâs pretty insignificant). My profession seems to have dodge the bigger bullet (so far) which is pretty amazing considering the recent overall market situation.
Joe Moya
BTW, I am constantly helping (not officially, of course) lawyers on financial issues that usually help their cases. In fact, Iâm most proud of helping a friend/lawyer shut down a corrupt nursing home operation in Texas⌠at that time is was the largest financial settlement in the history of Texas. Accounting fraud is just a thief with a pedicure.
No, the Merrill Lynch settlement was just last month. Thatâs not what I follow, but there are currently lots of lawsuits!
Oh yes, that settlement (besides Merrill) also include a few other Wall Street firms (luckily not mine)âŚand there is also pending new SEC regulations. That was what I referred to as the IPO-Analyst conflict of Interest situation I referred to in my previous post. Sorry I wasnât very clear on that issue.
That didnât involve Brokers (that I know of)⌠In fact, the brokers in the retail trenches were about as much of a victum as the clients. Many lost money along with their clients. Luckily, I and 95% of my clients - not being one⌠mostly because I could see through that crap⌠I use to work on Wall Street but gave up that rat race some 17-18 yrs. ago.
I have also involved in the Financial Analysis (CFA) world of finance - but donât practice analysis of companies - pays not as good and they are many times forced to compromise their ethics. This conflict of interest between the underwriters and analyst has been going on for many decades. Most analysts hate it but conform to keep their jobs. Letâs face it, analysts have such a conflict of ethical behaviour is because the underwriting makes all the money (they are on the asset side of the balance sheet) and analysts are just expenses (they are on the liability/expense side of the balance sheet). Invariably, the income side of the firm dominates the firmâs decision making process.
Personally, I think the fines were 1) not enough 2) wonât solve the problem. In this case, what needs to be done is to totally separated the Analysis side of the process from the Underwriting side of the process - Period. Pay checks should come from two seperate sources. However, you wonât see that happen - favors the investor too much (now thatâs not right). Thatâs but one reason why I am useful - Iâm experienced at dealing with those sharks and the many unwritten rules of investing.
FWIW Joe Moya
Joe,
Maybe we could start our own little SlowTwitch investing club w/ you handling itâŚany other takers? Now that Joe and I are buddies, Iâm in!
Well David, The investment club idea may look good at first glance but not practical. I am only licensed to practice in about 14 states and 3 countries (and, that is no easy feat in itself). The problem with the internet is that it is restricted by states (or countries for that matter). So, if one of the members is a resident of Alaska (where I am not licensed) then 1) that member could not be a part of club or 2) I couldnât execute the trades. Basicly, itâs not feasible.
What we currently have are SEC laws and NASD regulations that are 30 to 80 yrs. old. Those laws and regulations did not take into account todays technolgy and the communications system we now use. Until those rules changed, Iâm pretty restricted. In fact, I could not use the internet as a median to communicate, advertise or solicite without special permission and reviews from compliance (code word for lawyers). Special note to big brother - I have not and did not solicite.
I have had only had two investment clubs in my career. They consisted of a group of doctors (min. initial investment was about $10,000 - monthly cost $1000 per member). The other consisted of a group of Ranchers in the middle of no where. When I received the account from another firm, it already accumulated about $250,000 with a monthly cost of $500 per member. In retrospect, the doctors were a real pain⌠they could never get along or come to a conclusive decision. When they did, they did really dumb things - alot. The ranchers just used the investment club as an excuse to get together every month and have a big barbeque. Now, that was a nice group of people. What happen to them is simple. The doctors eventually split the group up. The Rancherâs divided the assets up when 4 of the key members died of natural causes (there were only 7 to start with).
I guess the point Iâm trying to make is investing from my standpoint is a serious business. Whether itâs $100 or a few Million, the investment of funds is work and not entertainment. A lot of people have the wrong idea about my profession. And, a lot of the misperceptions is actually a fault of my own profession. Those who have been in the profession as long as I have (btw, there isnât that many) usually begin to specialize. Unfortunately, I donât specialize in Investment groups. I try to stick with structured settlements, high net worth individiuls/familys/trust and Business Retirement plans (which would include Rollovers). (note: no solicitation - just the facts).
If you like, I can e-mail my business sight⌠Rules prohibit me from posting a reference to my sight on ng. In fact, rules prohibit me from discussing much about my business on the internet without review. Heck, I do a TV show on a local NBC affiliate and I have to be audited on everything I say. They are recorded and reviewed - what a pain. In fact, Iâm very lucky I work for a firm that even allows me to do such a thing (most donât).
Sorry, but Iâll have to pass on the investment club/group idea. But, thanks.
Joe Moya