By: Elizabeth J. Fineman, Esquire

Social media use has become pervasive in modern culture.   More and more people regularly engage in social media activities across several platforms, including Facebook, LinkedIn, Twitter, SnapChat, Instagram and Google+.  Unfortunately, many people post to various social media sites without giving sufficient consideration to the possible consequences.  For those who are going through a divorce, engaged in a custody dispute or paying or receiving support, it is essential that you evaluate your social media habits and apply a higher level of discretion to your social media communications. 

Family Law cases are often tumultuous and there are a lot of emotions involved.  It is not uncommon for some to use social media as an outlet to vent their frustrations, conflicts, or interpersonal issues.  That is never a good idea.  Any time you post something to social media, you should ask yourself, "How would a court view this post?"  If this is not something that you would want raised at a future hearing, do not post.  For many, this kind of self-editing or “filtering” is difficult.  My strong advice to them is to take a break from social media, and develop some “rules” for posting before resuming social media activities.  A few good guidelines are; never post when you are angry or upset, give yourself a cool down period, don’t engage in a public debate or correction of others on the internet, stop and take a moment to think and re-read before posting. It’s important to remember, once you tweet, share or post, you have effectively put something out on the web that you can’t really take back.

For parents, if the other parent objects to the children's photographs being posted to social media sites, you should respect their wishes.  There are other ways to share photographs with family and friends other than social media which are much more secure.

It is important to understand that information posted on many of these sites can be obtained, even after posts are deleted.  Therefore, posting and later deleting may not be sufficient.  There have been too many instances where social media postings have negatively impacted results in domestic relations matters.  In custody, some people post photos and "check in" places during their periods of physical custody, making it clear the children are regularly left with a babysitter.  If seeking additional custodial time, this is never a good idea.  Some people involved in support litigation post information that makes it clear that their income is higher than they have disclosed.  These can all have a detrimental impact their results in court.

I hope the take away here is clear; you must use extreme discretion when utilizing social media when divorce, child custody and support are at issue. 

By William T. MacMinn, Esquire Reprinted with permission from the February 25, 2016 issue of The Legal Intelligencer. (c) 2016 ALM Media Properties. Further duplication without permission is prohibited.

Can organization attorneys represent their agents in an individual capacity? A recent Pennsylvania Superior Court decision said no.

The confidentiality of attorney-client communications is a long-standing privilege across the United States. The U.S. Supreme Court, in Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998), reasoned that full and frank disclosure is a prerequisite that attorneys need in order to give their clients the best legal advice available. "It is the most revered of the common law privileges," according to Commonwealth v. Chmiel, 738 A.2d 406, 414 (Pa. 1999).

There are exceptions to lawyer-client communications. Lawyers cannot hide knowledge that a future crime is going to be committed. The right to assert the privilege can be voided if the communication to the lawyer was also made to nonlawyers. Of current interest is a third exception¬—the client's right to waive the privilege.

People are often surprised to find out from their domestic relations attorneys that there are two different types of custody that have to be addressed: physical custody and legal custody.

Physical custody is simply which parent the children are with at a given time.  This is generally addressed in a custody agreement or custody order based upon three time periods.  First, who has the children on a regular weekly basis.  This is for both days and nights.  Second, how much vacation time does each of the parents have with the children.  Third, who has the children on holidays.  The parents can decide which holidays are important for them to address, and usually not every holiday is considered.  Primary physical custody occurs when one parent has the child or children more than half of the overnights each year.  The other parent is then considered the partial physical custodian.  Even if there is a primary and partial physical custodian, this custodial arrangement is still considered a form of shared physical custody.  Equal physical custody occurs when the parents each have half of the overnights in a calendar year.

Legal custody relates to legal decisions that impact the children.  The major areas of legal custody are education, religion and healthcare decisions.  In the vast majority of custody cases, the parents will share legal custody and therefore make these decisions jointly.   Parents with younger children will have to make more legal custody decisions as compared to those with older children, for whom many of these determinations have already been made.

Custody schedules can be structured many different ways based upon what is in the best interest of the children, and what works for the parents.  Parents are highly encouraged by the court to work out custody schedules.  If they are not able to, the court will make a determination and issue a custody order.

Custody is often the most emotional aspect of a divorce or separation.   We strongly recommend that parents facing custody issues contact an attorney to be sure they understand the process, and their rights under the law. 

The initial divorce consultation is your first meeting with the attorney.   It occurs before you retain the attorney and can be utilized to determine if you and the attorney can work effectively together.  Sometimes this meeting occurs because you want to have the knowledge and information if you foresee potential divorce, support or custody issues in the future or are considering a prenuptial agreement.  Other times, there may be issues which require you to hire a family law attorney immediately.

Prior to the first meeting, our office will ask you to be aware of relevant topics and materials to ensure a productive meeiting.  At the first meeting you are asked to bring information related to your income, assets and liabilities.  If you do not have access to this information, the meeting can go forward without the information, as it can be acquired from the other party during the divorce process.  Expect to be asked questions related to these areas as that will allow the attorney to provide you with a better overview of the anticipated range for a resolution of your case, whether by agreement or court order.  The asssessment made at the initial consultation is based on the financial data provided, and may change as more specific information is made available.  It's a good idea to make a list of your questions in advance of the initial consultation, so that the meeting will be more productive, and you do not forget to ask about your concerns.

The purpose of the first meeting with a domestic relations attorney is to gain information and have your questions answered.  Over the course of an hour you will be provided with an overview of aspects of family law that may affect you: divorce, support (child support, spousal support, alimony pendente lite and alimony), custody and/or a prenuptial agreement.  You may be provided with the anticipated range of outcomes for your case based upon the information provided at the consultation.  Most importantly, you will have an opportunity to have your questions answered.  Having a general understanding of the process and answers to your questions is important at a stressful time like this.

While this is a difficult meeting for many clients, it is important to remember that the attorney is the one who is providing information and answering questions.  Family Law practitioners are well aware that clients are going through a very emotional process, and it the attorney's responsibility to put the client at ease, and help to navigate this unfamiliar and emotionally fraught territory as painlessly as possible.

The issuer is permitted to communicate with potential crowdfunding investors if the communications occur through the platform but, in spite of the use of the platform or a website link, the final rules limit the ability of the issuer, as well as the ability of others acting on the issuer’s behalf, to advertise.  Pursuant to Rule 204, the issuer-company is permitted to advertise the Section 4(a)(6) exempt offering by releasing an offering notice (similar to tombstone ads permitted under Securities Act Rule 134) that contains only the following information:
 
• a statement that the issuer is conducting an offering;
• the name of the intermediary and a link to the intermediary’s offering page;
• the amount of securities offered (target and maximum);
• the nature of the securities;
• the price of the securities;
• the closing date for the offering;
• the name, address, phone number and website of the issuer;
• the email address of a representative of the issuer; and
• a brief factual description of the issuer’s business.

Will compliance with all of these crowdfunding rules be easier than the traditional Regulation D private placement (without general solicitation)?  Certainly the hope was that the crowdfunding rules would allow smaller issuers (and smaller investors) greater opportunities to access capital markets.  But the procedural and informational requirements justifiably deemed necessary to protect investors and reduce the risk of fraud make crowdfunding far less accessible than hoped.  Only the passage of time will determine which of the recent SEC initiatives prove most popular and affordable to small issuers with limited budgets.

The crowdfunding offering must be conducted through a registered broker-dealer or a funding portal with a “platform”. A “platform” is defined as “a program or application accessible via the Internet or other similar electronic communication medium through which a registered broker or a registered funding portal acts as an intermediary.…”  No more than one intermediary can be used for an offering, and the issuer-company is required to make certain disclosures to the SEC, investors and the intermediary facilitating the offering, including:

• A discussion about the size and scope of the offering.
• The specific use or range of possible uses for the offering proceeds, as well as the factors impacting the selection by the issuer of each such use.
• Information about the securities being sold to the public.
• A description of the company’s business operations.
• Information about the company’s officers and directors during the prior three years, including how long they have held those positions and their respective business experience.
• Information about the holders of 20% or more of the company’s outstanding voting securities, as well as a description of the capital structure and any special voting rights or investor rights.
• Identification of Rule 501 and any issuer-company imposed transfer restrictions on the securities offered.
• A discussion of risks associated with an investment in the securities and with participation in a crowdfunded offering.
• A discussion of the financial condition and financial statements of the company, tiered in accordance with the size of the offering such that:

1. Offerings of $100,000 or less require financial statements certified by the company’s principal financial officer.
2. Offerings of more than $100,000 but less than $500,001 require audited financial statements if available or, if a first time crowdfunding exemption user, financial statements reviewed by an outside auditor.
3. Offerings of more than $500,000 up to the $1,000,000 limit require audited financial statements

The offering materials must also include a description of the offering or subscription process and a disclosure of the investor’s right to cancel his/her investment up to 48 hours prior to the deadline identified in the offering materials.  

The issuer must complete Form C, which includes details of the initial disclosure about the offering. The completed Form C must be filed with the SEC and either posted by the intermediary on its platform or viewable by investors through a link.   The issuer-company must report material changes on Form C-A,  periodic updates on Form C-U and ongoing annual filings on From C-AR until the filing obligation is terminated on Form C-TR.

The new rules allow the issuer to engage in limited advertisement of the offering, but there are traps for the unwary. These rules are discussed in the next installment of this blog.