But what about contracts online? When navigating through Web sites, you very rarely meet the person or company you are dealing with and certainly signatures are often not exchanged.

This does not mean, however, that contracts are not formed all the time by your online activities.  When signing up for a Web site, very often you will be presented with a big long text box entitled “Licensing Agreement” or “Terms and Conditions. If printed out, it would likely be dozens of pages and yet you are expected to read through all of that before you can buy a Pez dispenser or sign up for a new Web site.

Though most people do not read through these forms, they can, in fact, be legally binding documents. If at the bottom of the form you have to select a box, entitled, for example, “Accept Licensing Agreement” and then click a “Next” button, this is referred to as a click-through.

Under federal and state law, this can be interpreted as the same as a signature on a contract, creating a legally binding agreement. For this reason, it is important to read through the main points of the agreement, particularly if it involves a major transaction.
Another system commonly used online is an “opt-out.” This means that the box for acceptance is already selected and that you have to unclick the button to show you are not agreeing. Some laws do limit when this is method is appropriate.

However, you often see click-throughs when downloading software to install additional add-ons and tools – and potentially spyware or malicious programs – and also when signing up for mailing lists or listservs.

Though the degree to which we now live online makes it easy to be cavalier about our activities and acceptance of these licensing agreements or terms and conditions, construes should be aware. Recent changes with the Facebook Web site, where the popular social networking company attempted to institute changes allowing them to use any photo posted on the Web site, caused a backlash from its users, which required them to change its policies. This would not have happened if some people were not reading the fine print. Of course, these issues are even more important in e-commerce and business to business transactions.

Now, the Wall Street Journal’s Law Blog has published a post entitled FCPA Roundup: Swiss Bank Accounts, Ferraris and “Foreign Officials.  It includes news about FCPA prosecutions involving a Japanese company accused of bribery in Nigeria and a California company accused of bribing Mexican officials with a Ferrari (and other gifts).

Hi LibOC Readers and Others,

Thanks for checking out my law firm site.  I’m Todd Gallinger, an attorney and consultant from Irvine, CA.  Many of you may recognize my name from my run for Irvine City Council in 2008.  I didn’t beat the incumbents, but I did get almost 22,500 votes.

For work, I mainly serve small and new businesses, owners, executives, and professionals with business transactions, litigation, immigration, and personal estate planning.  Most of my clients are technology or service companies.  I also help professions (like doctors, attorneys or accountants) with implementing technology, improving workflow, and strengthening communications.

I just so happen to be an American Muslim (a fact which became an issue in my campaign) and do represent a lot of Muslim non-profit organizations and community leaders (of course I also represent non-Muslim religious groups and non-profits too).  A few years back I filed two class action with the ACLU while representing the Council on American Islamic Relations – California.

I’m currently president of the CAIR-CA PAC, the largest PAC representing the American Muslim community; I also host a show OneLegacyRadio.com called Consensus, which covers National and International Politics from a Unique American Muslim Perspective;  I’m also on the board of the New Horizons School Irvine; I also worked with some other American Muslims in the business sector to start AML Management, where we are currently holding a Business Plan Competition with two $5,000 prizes.

On the web, I’m most places.  You can follow me on Twitter, friend me on Facebook, connect to me on LinkedIn, read my blog, etc., etc.

Please let me know if you have any questions, or if you’d like to ask about my services.

Thanks,

Todd

It is not rare for an immigrant with a green card or someone with a visa to be charged with a crime.  These crimes, be they misdemeanor or felony, can have harsh immigration consequences for the defendant.  Criminal attorneys and criminal defendants should understand the immigration consequences for noncitizens before going to trial or accepting a plead deal.  The penalties for a criminal charged immigrant or nonimmigrant visa holder are complex and consultation with an immigration attorney may be necessary.

Approximately one in six California criminal defendants is a noncitizen.  If you are a noncitizen and charged with a crime, you should always consider not only the criminal consequences involved, but also the immigration consequences.  Any noncitizen, including a lawful permanent resident (“green card” holder) is vulnerable to “removal” (deportation), if he or she is convicted of the wrong offense.

If there is a conviction for some crimes, the immigration system works to force the person to accept removal.  If an immigrant or visa holder attempts to contest being removed based on a conviction, they may be detained for the duration of the removal proceedings. This could take from several months to a few years, depending upon appeals.  In addition, cases involving noncitizens who are not lawful permanent residents will be placed in removal proceedings which have very little due process.  Furthermore, there is no court-appointed counsel to assist the immigrant in these proceedings.  The vast majority of noncitizens in removal proceedings are unrepresented with no advice or support.  Any noncitizen should have a name of an immigration attorney ready in case they are ever charged with a crime or approached by Immigration Enforcement.

Criminal Offenses Under the Immigration Code

The Immigration and Nationality Act (INA) contains three main categories of offenses that damage immigration status or potential status.  These are deportable offenses, offenses which make a noncitizen inadmissible, and aggravated felonies.  There is a long list of crimes which fall within these three categories and any noncitizen charged with any crime should consult an immigration attorney.

A quick reference chart for determining immigration consequences of various California offenses can be found at

http://www.nationalimmigrationproject.org/legalresources/cd_so_Chart%20-%20California%20Offenses%20-%202010.pdf

Criminal Defense Counsel’s Duties in Representing an Immigrant Defendant

On March 31, 2010 the Supreme Court issued a momentous decision regarding immigrants’ rights to counsel in Padilla v. Kentucky.  The Court held that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.  The standards put forth by the court provide that competent defense counsel must take immigration consequences into account at all stages of the legal process.

Some duties of defense counsel include:

• Duty to inquire about citizenship / immigration status at the initial interview stage.
• Duty to investigate and advise about immigration consequences of plea alternatives.
• Duty to investigate and advise about immigration consequences of sentencing alternatives.

The Supreme Court in Padilla urged criminal defense attorneys to be “active, rather than passive, taking the initiative to learn about rules in this area rather than waiting for questions from the defendant.”  It is of utmost importance when defending any client, you are aware of any possible immigration consequences that may arise.  There are several resources available online to help.  Such links include www.ilrc.org/criminal.php and www.defendingimmigrants.org.  No matter what resource you are using, be cautious since laws, especially administrative laws such as immigration, are always changing.

Obtaining Successful Immigration Outcomes

For noncitizens that are charged with a crime, one should always consider not only the criminal consequences involved, but also the immigration consequences.  For some, they are going to care much more about the possible criminal penalties than any immigration consequences.  But for others desperate to remain in the U.S., they would sacrifice almost any other consideration in order to avoid removal.

If they are in the latter category, there are many cases where it is possible to identify a plea that is roughly equivalent to the one charged but is safer for immigration purposes.  A few examples of successful immigration plea strategies are:

• For some offenses, they become aggravated felonies only if a sentence of a year or more is imposed.  Successfully deployed strategies include:
  • Defense counsel negotiated a sentence of 364 days rather than 365.  The conviction for a crime of violence was not an “aggravated felony.”
  • Defense counsel declined to accept a 16 month sentence with credit for six months time served, and instead bargained for a sentence of 11 months with no credit for time served.  The conviction for theft had less than a year’s sentence and was not an “aggravated felony.”
  • Defense counsel, handling a probation violation, pled to a new offense, rather than adding time to the original offense that would cause the sentence to exceed 364 days.  The residential burglary conviction was not an “aggravated felony.”
  • Defense counsel negotiated a plea to possession for sale of a “controlled substance” rather than methamphetamines.  The conviction did not cause deportability and was not an aggravated felony as a drug trafficking offense.
  • Defense counsel pled to transportation rather than sale of heroin.  The conviction was not an “aggravated felony.”
  • Defense counsel pled to spousal battery and kept the conviction record clear of evidence that more than offensive touching had occurred.  The offense did not cause deportability as a crime of domestic violence.

Criminal defense attorneys and criminal defendants should research the immigration laws to see if one of these, or another, strategy would be successful.  Because of the complex and ever-changing nature of immigration regulations, consultation with an immigration attorney who has knowledge about the immigration consequences of criminal charges may be necessary.

Todd Gallinger is an attorney who works in the areas of business and immigration law.  He is available for consultation on the immigration consequences of criminal offenses.  Todd can be contacted via his websites, http://gallingerlaw.com and http://socalimmigration.com, or at (949) 862-0010. ]]> http://www.gallingerlaw.com/immigration-consequences-of-criminal-convictions-a-guide-for-criminal-defense-counsel-and-criminal-defendants/02/feed/ 0 http://www.gallingerlaw.com/top-ownership-issues-for-ca-medical-corporations/01/ http://www.gallingerlaw.com/top-ownership-issues-for-ca-medical-corporations/01/#comments Mon, 31 Jan 2011 15:18:13 +0000 Todd Gallinger http://www.gallingerlaw.com/?p=599 Who in California can own a medical corporation?

As specified in the California Business and Professional Code, the following people may be the shareholders, officers, directors, or professional employees of a medical corporation:

• Licensed doctors of podiatric medicine;
• Licensed psychologists;
• Registered nurses;
• Licensed optometrists;
• Licensed marriage and family therapists;
• Licensed clinical social workers;
• Licensed physician assistants;
• Licensed chiropractors;
• Licensed acupuncturists;
• Naturopathic doctors.

The California Medical Board and California Codes state that an unlicensed person cannot own any shares of a medical corporation. At least 51% of the shares must be owned by a licensed physician and surgeon. The remaining 49% can be owned by the individuals specified above.

What is a Medical Practice?

Since no corporation but a Medical or Professional Corporation can run a medical practice, it is important to understand the definition and scope of that under the law.  According to the California Business and Professional Code, section 2051, the practice of medicine is defined as the:

“use of drugs or devices in or upon human beings and to sever or penetrate the tissues of human beings and to use any and all methods in the treatment of diseases, injuries, deformities, and other physical and mental conditions.”

This is further supplemented by the various sections of the Business and Professions Code, and other California Laws, which delineate the scope of practice for each of the licensees listed above.

Are there any Federal Restrictions?  What is the Stark Law?

What is often called the Stark law is comprised of three separate provisions that regulate physician self-referral to Medicare and Medicaid patients because of the possible conflict of interest. This often limits physicians’ ownership of health care companies, because they cannot refer from their own medical practice.

For example, Physicians may not refer patients to any medical facilities in which they have financial interest including ownership, investment, and a structured compensation arrangement. A physician’s self-referral could possibly encourage over-utilization of services which would increase health care costs. Self-referral could also cause a captive referral system which would limit competition from other providers.

Physicians are also banned from referring patients to immediate family members who include spouses, parents, grandparents, children, grandchildren, brothers, sisters, mothers-in-law, fathers-in-law, brothers-in-law, sisters-in-law, daughters-in-law, sons-in-law, and also adopted and step members of their families. Referring to an immediate family member would also be another conflict of interest. There is no stated regulation in the Stark law against referring to more distant relatives. The physician referring to the distant relative however, still may not have any financial interest or gain from the referral.

What is the History of the Stark Law?

• Stark I- Congress included provisions in the Omnibus Budget Act of 1989 (OBRA 1989) which barred self-referrals for clinical laboratory services under the Medicare program effective January 1, 1992. This provision also included a series of exceptions to the ban in order to accommodate legitimate business arrangements.
• Stark II- (OBRA 1993) expanded restriction to a range of additional health services and applied it to Medicare and Medicaid. This provision also contained some clarifications and modifications to the original law. The Social Security Amendments of 1994 also contained minor technical corrections to these provisions.
• Phase III- The final rule was published on September 5, 2007 and it became effective December 4, 2007. This contains two major changes which are the repeal of the prohibitions based on compensation arrangements and the reduction in the list of services subject to the ban.

This program will address avoiding cultural missteps when working with clients and lawyers in the Middle East, Asia, including China and India, and Europe. The speakers will address their experiences and describe how cross-cultural differences affect the practice of law and business relationships. Drawing on their experiences in international trade, in a Fortune 500 company, and with Sharia law, the speakers will illustrate some of the cultural differences practitioners may come across when working with international clients, partners, and opposing counsel. From this, participants will learn to recognize some potential cultural pitfalls.  Todd Gallinger will talk about his experience working with the Middle East.

The FCPA “prohibits US companies and companies whose securities are traded on US stock exchanges from paying or offering anything of value to foreign officials for the purpose of obtaining or retaining business.’ The FCPA applies to a broad scope of people, including the individual, firm, officer, director, employee, agent of the firm, and even any stockholder acting on behalf of the firm. The definition of “foreign official” is expansive as well, as it is not restricted to government representatives, but also includes any employees of foreign departments, agencies, or instrumentalities of the government.

Nontraditional investment ventures have further expanded the influence that foreign officials can exert on United States finances. Opportunities like the Sovereign Wealth Fund can directly involve foreign officials within the United States, thus heightening the potential for bribery to occur. What’s more – given the fact that foreign governments have also made investments in a wide scope of companies and organizations, this widens the sphere of influence that foreign officials hold, in that such companies have then become dubbed as instrumentalities of foreign government, and thus subject to FCPA regulations.

The cost of violating the FCPA is high, as for corporations who conduct bribes, the fine is $2 million, and the fine for individual officers and shareholders is $100,000 with imprisonment for up to five years. With the penalties so high, it is imperative that United States companies act within the bounds of the FCPA and refrain from illegal bribes so as to protect not only themselves, but the integrity and ethics of the global economy.

The California Latino Psychological Association (CLPA) is dedicated to advocating and serving the mental health needs of the Latino community. CLPA is invested in the clinical, research and academic issues related to Latino Psychology. The CLPA advocates for social justice on issues affecting the mental health of Latino communities; and the quality of education, training and work environments of Latino Psychologists.

Get Inspired! believes that the loss of arts programs in our schools has created a need for curricula that encourage imaginative thinking and that allows students to explore their creative talents.It runs programs designed to inspire creativity while allowing children to discover the world of science.

Gallinger Law’s clients cooperation, and that of other victims, recently resulted in a federal indictment issued by a grand jury in Honolulu.  The indictment charges six individuals with conspiracy to commit forced labor and document servitude, relating to approximately 400 Thai workers who were abused.  If convicted, the individuals face up to 70 years in federal prison.

More information about the indictment can be found here.

Todd Gallinger’s was part of a panel presentation on Engaging Media and Government Officials to Expand Projects in Afghanistan. His presentation focused on how to directly engage with legislative officers to advocate or lobby for a specific cause. It covered the basics of how to set up a visit in a district office, or D.C. office, of congresspeople or senators, what to prepare for the meetings, and the best ways to conduct one’s self during these meetings.  For more information on the presentation, or government advocacy generally, please contact Todd Gallinger directly.