Everything You Need To Know About Fiduciary Duty

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A fiduciary duty is the strictest duty of care recognized by the legal system. Because of this, it is incredibly important that fiduciaries fulfill their responsibilities correctly and faithfully. Many people would be surprised by how broadly fiduciary duty can be applied and how unintentional actions could cause a breach. Here is everything you need to know about fiduciary duty, whether you were appointed a fiduciary or principal (the party to whom the fiduciary owes a duty).

Defining Fiduciary Duty

Fiduciary duty is broadly defined as the legal duty of one with superior knowledge and/or power to act in the best interest of another party. It’s pretty easy to see how broadly this can be applied; however, there are a few parties commonly serving as fiduciaries in relationships with those they serve. These include:

  • Lawyers
  • Accountants
  • Doctors
  • Real Estate Brokers
  • Guardians
  • Trustees
  • Executors
  • Corporate Officers
  • Employers

One of the most common breaches of fiduciary duty has to do with conflicts of interest. You wouldn’t want your real estate broker making recommendations that also benefited him. This might make him more inclined to make recommendations that aren’t necessarily best for you, but are good for him. Any conflict of interest or self-dealing is not allowed in a fiduciary relationship.

When fiduciaries do not put their principals’ best interests first, they can be found responsible for breaching their fiduciary duties. Breaches are not always intentional. Sometimes, fiduciaries fail to do their due diligence before making a big decision. While this isn’t done maliciously, it still constitutes a breach. But, just because principals suffer damage from a fiduciary’s decision doesn’t mean a breach has occurred.

Breaches Are Complicated

Fiduciaries make many important decisions on behalf of their principals. Fiduciaries can’t always predict the outcome of a decision, but they are expected to exercise reasonable caution and to be fully informed before making any decisions. If a breach is suspected, it will require the help of an experienced breach of fiduciary duty lawyer. A lawyer will be able to investigate the circumstances surrounding the breach and determine if the fiduciary can be held responsible for any resulting damages.

Breach of Fiduciary Duty Attorneys

If you have been accused of breaching your fiduciary duty or if you believe your fiduciary’s actions constitute a breach, Feldman & Feldman can help. Contact us today to schedule an appointment with one of our dedicated breach of fiduciary duty attorneys.

Five Ways To Prevent Employment Litigation

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Running a business is no small feat. Whether you own a small mom and pop company or employ thousands of employees, you are going to face legal issues that can jeopardize your business. In addition to a wide variety of business litigation issues, companies can also face employment litigation. Employment litigation can be damaging in many ways. Not only can it be expensive, but it can also tarnish a company’s reputation and take a serious blow at the morale of current employees. However, there are many steps companies can take to prevent employment litigation.

Prevent Employment Litigation With These Five Strategies

Many businesses might be reluctant to spend time implementing employment litigation prevention strategies, but the reality is that without these strategies, they are opening themselves up to serious risk. These five tips can go a long way in preventing employment issues.

  1. Have written procedures for conduct. In light of the #MeToo movement, more victims of sexual harassment are empowered to share their experiences. Sexual harassment and discrimination of any kind have no place in the workplace. Companies should have written rules for conduct that not only forbids discriminatory behavior, but also provides consequences for employees that do discriminate against others. Companies should also have written procedures for clock-in and clock-out requirements and overtime regulations.
  2. Provide adequate training. There are numerous types of training that can help maintain a safe workplace. Things like safety training, sexual harassment and discrimination training, and wage and hour regulation training will go a long way toward preventing future litigation. While most companies only offer training to managers, a company can greatly benefit from offering this to every employee.
  3. Provide a method for employees to submit complaints. Employees should have an avenue to submit information about complaints, harassment, or violations so they can be resolved as quickly as possible. Some employees like to submit complaints anonymously, so employers should create a system that allows for anonymity.
  4. Establish dispute resolution procedures. Preparation is key to handling employment disputes. By defining processes before they are needed, companies can clear a pathway to resolution.
  5. Don’t wait to contact an attorney. No matter is too small for an attorney. If an employee submits a complaint, an attorney can help resolve the issue efficiently.

Employment Litigation Help

The employment litigation lawyers of Feldman & Feldman are experienced in working with businesses of all sizes. We can institute preventative measures or represent you if an issue has already occurred. Contact us today to schedule an appointment to discuss your situation.

Mechanic’s Liens In Texas

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On any construction site or project, there are a lot of moving parts. Projects can quickly fall to pieces when parties aren’t properly paid. Luckily, people working in the construction industry have specific legal actions they can take to help obtain their rightful paychecks. Mechanic’s liens are the most powerful legal tool contractors and other parties in the construction industry can use to receive the money they’ve earned on projects. Unfortunately, mechanic’s liens can be very complicated; and, if not filed correctly, a mechanic’s lien could invalidate the lien.

Who Can File A Mechanic’s Lien In Texas?

Texas law allows for three different types of parties to file mechanic’s liens. These include (1) any party who furnishes labor or materials, (2) parties who fabricate specialty materials, and (3) design professionals. With such a broad categorization, everyone from contractors to architects has the ability to file a mechanic’s lien if their work or materials go unpaid. Additionally, in Texas, there is no legal distinction between a contractor and a subcontractor when it comes to legal authority to file a lien.

Mechanic’s liens can be filed for work done on both commercial and private properties. Tasks including providing lumber, making custom cabinets, repairing a roof, painting, rental equipment, and labor can all be protected from nonpayment by a mechanic’s lien.

What Makes A Lien Enforceable?

In order for a lien to be valid and enforceable, certain procedures must be followed. Anyone seeking to file a mechanic’s lien must file a pre-lien notice. There are different kinds of pre-lien notices and there are strict timelines for filing a mechanic’s lien. Failure to follow the smallest procedure can leave contractors and others without the legal might of a lien to obtain rightful payment. Because of this, it is incredibly important that anyone seeking to file a mechanic’s lien do so with the help of an experienced construction lawyer.

Get Help With Your Mechanic’s Lien

At Feldman & Feldman, we have extensive experience working with the unique legal issues in the construction industry. If you have not been paid for your work or materials on a construction project, contact us today. We can help you file a mechanic’s lien and get you your rightful payment.

Common Bad Faith Tactics Used By Insurance Companies

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Nearly everyone has some kind of insurance policy. Whether it’s for your car, home, business, or yourself, insurance policies give us peace of mind knowing that if anything happens, we won’t be left in the dark and coming out of pocket financially. Insurance is a good thing, but only if insurance companies play by the rules. Unfortunately, many insurance companies utilize bad faith tactics to avoid paying out on claims.

Insurance Companies Are Businesses First

Despite what they may claim, insurance companies are businesses first. This means they put their own profits before their customers’ claims payouts. Insurance companies have no incentive to pay out on large claims; so, don’t be fooled by their claims about putting customers first. When any type of loss occurs, insurance companies often try to minimize the claim or find ways to completely deny claims by employing bad faith tactics.

The bad faith insurance lawyers at Feldman & Feldman have helped many policyholders get the compensation they are entitled to under their policies. Through decades of successful litigation experience, we have identified common bad faith tactics insurance companies use when adjusting claims:

  • They claim property damage is due to “normal wear and tear.” Property insurance policies do not cover normal wear and tear that occurs over time. Sometimes insurance companies will wrongfully assert property damage is normal wear and tear, and thus not covered under the policy.
  • Damage is caused by inadequate maintenance. All buildings require regular maintenance. Most policies do not cover damages caused by inadequate maintenance. Insurance companies try to avoid paying out on claims by claiming property damage is caused by inadequate maintenance.
  • Misrepresenting the policy. Oftentimes, insurance companies will completely and blatantly misrepresent policy terms to their policyholders. They might wrongfully claim certain damage isn’t covered, when in fact it is.
  • Undervaluing claims below the deductible. Sometimes insurance companies will accept certain damages, but value the damages at less than the policy deductible so the insurance companies don’t have to pay out on the claims.
  • Causing unnecessary delays. Insurance companies often drag out claims for months. This puts a serious strain on policyholders.
  • Not communicating with the insured. Many victims of bad faith insurance tactics report insurance companies do not timely return phone calls, emails, or other forms of communication, leaving policyholders in the dark about their claims.

All Policyholders Have Rights

Insurance companies count on policyholders being unaware of their rights. All policyholders have the right to a prompt, fair, and equitable settlement of a claim. When insurance companies violate these rights, policyholders will need experienced insurance lawyers by their side. At Feldman & Feldman we can help policyholders protect their rights and get the compensation they are rightfully owed under their insurance policies from bad faith insurance companies. Call us today to schedule an appointment with one of our experienced insurance lawyers.

Every Citizen Has The Right To Petition Their Government

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People are often unaware of all of the rights they possess. An important, but often overlooked, right is a citizen’s right to petition their government. Very few individuals exercise this right, but it is available to everyone and can make a significant impact on communities.

Your Right To Petition The Government

The right to petition the government is one of the oldest rights, not just in the United States, but throughout the western world. It dates as far bag as the Magna Carta, which was signed in 1215 to help limit the powers of the monarchy and give rights back to the people. The right to petition the government was then also included in the English Bill of Rights of 1689 before making its way into the First Amendment of the U.S. Constitution.

How Petitioning The Government Works

If a citizen wants to put a certain issue in front of voters, he or she will need to file a petition with the Texas Secretary of State or the local City Secretary’s office where they want the issue to be voted on. The petition must include a minimum number of signatures from eligible voters in order to be put on the ballot. While the number of signatures can vary from city to city, in Houston, citizens filing a petition need at least 20,000 signatures. Once a person or group has collected the requisite number of signatures, those signatures will need to be verified by the City Secretary or Secretary of State. Once verified, the issue is placed on the ballot in the next election.

Petitioning The Government Is Incredibly Important

It is incredibly important that citizens have their voices heard. Oftentimes, elected representatives and other officials ignore the issues most important to us. By petitioning the government, citizens can bring these important issues into the spotlight for voters to decide on. The ability to petition the government is a crucial part of our democracy and no one should infringe upon this right.

Feldman & Feldman Will Fight For Your Rights

Even though citizens are guaranteed the right to petition the government, some officials will get in the way of individuals and groups exercising this right. When this occurs, Feldman & Feldman can help you fight for your rights. We’ve worked with organizations to protect their right to petition the government and have extensive experience in election law. Contact us today to schedule an appointment to discuss how we can help.

Why You Need An Attorney To Draft Contracts

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Many people conduct business without the help of an attorney. Oftentimes business dealings like transactions and agreements seem straightforward and simple to the layperson, but the reality is these matters have serious legal implications. Whether you are conducting business without a contract or are using a contract that was not drafted by an experienced attorney, you need to be aware of the risks you are facing.

Contracts Are Legally Binding

One of the many benefits of a well written contract is that it is legally binding. This means both parties will be responsible for holding up their end of the contract. Imagine what would happen to a business if a supplier stopped supplying crucial parts? The business would come to a complete stop. Contracts give both parties legal recourse when a contract is broken. Unfairly or improperly drafted contracts can bind parties to unfair terms. People that sign contracts before reading or without fully understanding them put themselves at risk of serious financial jeopardy.

Poorly Written Contracts May Not Be Enforceable

Some people may choose to write their own contracts or use generic contracts they find online, but these are fraught with problems. One of the most common problems with poorly written contracts is vague language. Contracts need to written with a level of specificity, which means generic contracts found online simply won’t do because vague terms are difficult, if not impossible, to enforce.

Poorly written contracts also often lack crucial provisions such as details on how to terminate the contract, compensation for breach of contract, and many others. Depending on your business and industry, many specific circumstances must be addressed in the terms of your contracts. If these items are not addressed, you could find yourself tangled up in costly and expensive litigation.

Houston Contract Lawyers

The Houston contract lawyers at Feldman & Feldman have extensive experience drafting all types of contracts for businesses within a variety of different industries. We can make sure your contracts are legally enforceable, outlines fair terms, and protect you from litigation. To schedule an appointment with one of our contract attorneys, contact us today.

Attorney Spotlight: George Vie

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George W. Vie III is a partner at Feldman & Feldman with nearly three decades of trial and appellate experience. Clients have come to know George for his meticulous and dogged pursuit of their cases and his depth of legal proficiency. At Feldman & Feldman, George Vie handles complex appellate proceedings and other litigation matters.

Prior to joining Feldman & Feldman, George served as a city attorney. He has also served for over 20 years as General Counsel for the Galveston County Consolidated Drainage District. George has also represented other municipalities and counties in legal matters. In addition to working on behalf of the government, he has also successfully litigated against it. He has represented property owners, companies, and homeowners’ associations against state agencies and local government, such as the Texas Department of Transportation, the City of Houston, and the Port of Houston. This unique experience gives George insight into legal matters other attorneys simply don’t possess. His work both with and against governmental entities makes him an invaluable asset to the Feldman & Feldman team.

In addition to his experience with governmental entities, George has served as lead counsel in over 400 appeals and original proceedings. These appeals have varied in subject matter from employment litigation to estate planning. He is one of a very small percentage of lawyers to become Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. He has held this rare professional distinction since 1995.

George is an advocate with the Champion of Justice Society, a nonprofit program offered by the State Bar of Texas that provides legal assistance to the elderly, veterans, victims of domestic abuse, at-risk families facing issues such as home foreclosure, and victims of natural disasters.

George’s legal prowess has been recognized by numerous national organizations. He has been selected as a Texas Super Lawyer by Thomson Reuters for the past eight consecutive years, and has been recognized as one of Texas’ Top Rated Lawyers in appellate litigation by ALM. Additionally, George is one of a small selection of lawyers to be awarded the AV Preeminent Rating by Martindale-Hubbell® Peer Review Ratings™, which recognizes strong legal ability and high ethical standards.

Contact George Vie at Feldman & Feldman Today

If you would like to speak with George Vie or any of our skilled attorneys, contact Feldman & Feldman today. We can help you understand your legal options and protect your interests.

San Antonio Firefighters Win Placement for Ballot Initiative

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Feldman & Feldman is representing the San Antonio Professional Firefighters Association (SAPFA) with regard to the San Antonio First Initiative, successfully gaining placement for the initiative on the November ballot. Recently, the city had restricted SAPFA’s free speech in promoting the initiative, but despite this, SAPFA was successful in getting the initiative in front of voters this fall. On August 16th, 2018, the San Antonio City Council voted to put the San Antonio First Initiative on the November ballot for voters to decide its fate.

The San Antonio First Initiative

The San Antonio First Initiative supported by SAPFA is composed of several parts, all of which aim to help shift power back into the hands of voters. The initiative includes a salary cap and term limits for the position of city manager, allows for arbitration in collective bargaining, and lessens the prerequisites for proposing changes and actions against the city council and the city’s charter.

SAPFA faced incredible hardships when promoting the San Antonio first initiative because the city began to enforce a “free speech area” policy to hinder SAPFA’s efforts. Enforcement of this policy was found unconstitutional because the SAPFA and its members have the right to freedom of speech as guaranteed in both the U.S. and Texas constitutions. In response to the city’s enforcement of this policy, Feldman & Feldman filed a lawsuit on behalf of SAPFA to protect their free speech.

In addition to proving the unconstitutionality of the “free speech area” policy, Feldman & Feldman and SAPFA also overcame a last minute attempt by a political action committee to prevent the city council from voting on whether or not the initiative would appear on the November ballot. The political action committee filed a restraining order to prevent the issue from going before the city council, but the restraining order was denied the day before city council members met to determine ballot initiatives.

SAPFA is thrilled to officially have the initiative on the ballot, as its sole intention was to get the issue in front of voters so they can decide whether or not they believe the initiative will be good for the city and its inhabitants.

Protecting Your Rights Under The Constitution

At Feldman & Feldman, we fiercely advocate for clients whose constitutional rights have been infringed upon. We are honored to represent San Antonio firefighters and help them protect their constitutional rights as they work to make the city better. If you feel your rights have been violated, contact us today to see how we can help.

The Differences Between the Texas and U.S. Constitutions

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What’s The Difference Between The U.S. and Texas Constitutions?

While many people learn about the U.S. Constitution in school, few give it much thought outside of school, and even fewer give the Texas Constitution any thought at all. While the U.S. Constitution applies to the federal government with the states being subordinate, the Texas Constitution (and all state constitutions) sets in writing what the state government can and cannot do with the counties being subordinate.

While similar to the U.S Constitution, the Texas Constitution has some striking differences, many of which can make it more difficult to file constitutionally based lawsuits under Texas law. One of the most striking differences between the Texas and U.S. Constitutions is length. The U.S. Constitution is intentionally brief and vague, which allows the federal government to broadly interpret it. The Texas Constitution was written leaving little room for interpretation to ensure it cannot be interpreted in a manner inconsistent with the constitution’s ideals.

The Texas Constitution gets its length from going into great detail. While the Texas Constitution grants Texans similar rights to the U.S. Constitution, the Texas Constitution is much more specific regarding exactly when these rights are infringed upon. While it may seem like this specificity would make legal matters cut and dry, in practice it can greatly complicate things.

Filing a Lawsuit Under The Texas Constitution

There are generally two types of lawsuits filed under the Texas Constitution: facial challenges and “as applied” challenges. Facial challenges claim particular portions of the Texas Constitution are unconstitutional. In “as applied” challenges, plaintiffs argue constitutional statutes are being applied unconstitutionally in a way that discriminates against them because of their particular circumstances.

Because Texas has a very specific constitution, it can be difficult to understand whether or not a statute was applied wrongly in “as applied” challenges. Only experienced lawyers familiar with the nuances of the Texas Constitution will be able to determine if a violation has occurred and provide enough evidence to overcome the burden of proof associated with these cases.

Feldman & Feldman: Experts Constitutional Law

At Feldman & Feldman, our attorneys have extensive experience filing lawsuits under the Texas Constitution. We understand how complex these cases can be and are uniquely qualified to litigate and resolve these issues. If you believe your rights under the Texas Constitution have been infringed upon, contact us today.

Feldman & Feldman Obtains Restraining Order Against Mayor Turner On Behalf of Houston Firefighters

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Cris Feldman of Feldman & Feldman has successfully obtained a restraining order against Mayor Sylvester Turner on behalf of the Houston Professional Firefighters Association (HPFFA). Feldman & Feldman filed a lawsuit alleging a violation of Texas Election Law and the misuse of public funds for political advertising.

The HPFFA has been at odds with the city over an initiative they would like placed on the ballot this fall for Houston voters. The HPFFA is seeking a pay parity initiative that would establish pay parity between Houston firefighters and police officers based on comparable rank and seniority.

In a finance subcommittee meeting last week, Mayor Turner and another city council member campaigned against the pay parity initiative. A video recording of this meeting was then posted on to the City of Houston’s website. Houston firefighters allege the mayor’s actions constitute a direct violation of Texas Election Law. Elected officials such as Mayor Turner cannot use public funds to push their own political ideas. By including the video on the city’s website, Turner was effectively promoting his disapproval the initiative. A district judge granted Feldman & Feldman a restraining order against Mayor Turner on behalf of the HPFFA, ordering the video be removed from the city’s website.

The fight over the pay parity initiative began last year when the HPFFA filed a petition with 60,000 signatures in an attempt to get the initiative on the ballot and in front of voters. Several weeks ago, city council members tried to hold a special meeting to pass a resolution in support of the city’s firefighters while Mayor Turner was out of town, but the meeting failed when not enough council members showed up. Mayor Turner has stated the city council will decide whether or not the pay parity initiative will be on the November ballot at a meeting on August 8, 2018.

Feldman & Feldman Supports Our Firefighters

Feldman & Feldman is honored to support Houston firefighters. Our firm is representing firefighters across the state, in Dallas, Houston, and San Antonio. Our firm is highly experienced and uniquely qualified to handle issues related to Texas election law, public policy, and governmental agencies. If you need Feldman & Feldman to stand up for your rights, contact us today.