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1747 E. Morten Avenue, Suite 205
Phoenix, AZ 85020
United States

(602 ) 449 7980

If you are looking for a reputable and experienced Phoenix criminal, divorce or custody attorney, contact Gregg R. Woodnick, PLLC, at 602-449-7980.

Publications

Special Divorce Considerations for Dentists

Gregg R. Woodnick

Gregg R. Woodnick

Gregg R. Woodnick

After representing a number of dental professionals and spouses in divorce proceedings in Arizona, we identified several issues that are somewhat unique to dentists and their practices. As with physicians, dentists who divorce have to address student loans, division of higher incomes, division of assets, and spousal maintenance. However, the division of the largest community asset, the dental practice itself, is where much of the complication occurs. Engaging an attorney who has dealt with these issues may be helpful.

What makes dental practices different from other medical practices is the salability factor. There are a number of dental practice brokers around the country who are in the business of selling dental practices (frequently, they are marketed to newer dentists out of school). In theory, this common market should make valuing the practice easier. After all, isn’t it worth what someone would pay for it, like the value of a used car? Not in the realm of divorce. The reality is, the practice may be worth significantly more than the broker’s value, which was based on different factors than those used by courts. This distinction, and an attorney with the ability to explain the same to the court, may make a difference of hundreds of thousands of dollars!

Dentists, perhaps more than any other group of medical professionals, rely on their reputation in order to secure business. This is often referred to as “goodwill.” Because so many people fear visiting the dentist, a pleasant experience is both a relief and a high likelihood that the patient will return to the same office, or dentist, for future care. Goodwill may be attached to the dental office or to the individual practitioner, such that even dentists who do not operate their own practices may have their goodwill with the community assigned a value and divided as an asset.

Evaluators may consider the practice’s assets and income, which can include contractual agreements with insurance providers, relationships with current patients (particularly when patients require long-term care for endodontic implants, etc.), the average number of new patients that the office treats each month, and several other factors.

In addition, the value of a dental practice may be subject to adjustment because of its locality and the rates of recent sales of similarly situated practices. This means that a practice located in Cave Creek or North Scottsdale may be treated as being more valuable than similar practices in Flagstaff, Sedona, or Tucson because nearby practices—and the property on which the office is built—are more valuable, with less regard for the prac- tice’s actual income.

Even standing ‘non-competition’ agreements with past partners or employees of the practice may be assigned a value for property division purposes. Evaluating a dental practice is simply more complex than evaluating many other types of businesses.

While we have seen divorces where the focus of the business evaluation is mostly on the income stream, the business might also have actual assets that are of significant value. If x-ray equipment or other medical devices are owned (as opposed to leased), that equipment needs to be valued. Even a small dental practice often has in excess of $100,000 in equipment, from specialized handheld tools to dental furniture. If the practice is specialized, such as orthodontics, periodontics, or oral and maxillofacial surgery, the equipment value may be even more significant.

Although dentists are held to the same Title 25 Divorce laws as everyone else, navigating the valuation of the practice is key to establishing the community interest and negotiating spousal support. However, the lesson to be learned is that the broker’s value of the practice cannot be substituted for a true evaluation for purposes of the divorce matter. Hiring the right expert to value the practice is an expense, but, especially for the spouse attempting to maximize the value in the business, it is not a step that should be avoided.

I have this phone recording that I would like to use in Court

Arthur Stobbelaar

In family law, I often have clients tell me they have recorded phone conversations with their soon-to-be ex that will surely prove their case. As you may imagine, this “smoking gun” rarely turns out as favorably as expected. If the client’s recorded phone calls occurred between the client and opposing party in Arizona, then there should be no need to further counsel the client as to the practice of recording phone calls (though you may have practical reasons why they should focus their energy on other efforts). However, if you learn that the taped phone calls are occurring with a party across state lines, or that your client is not a party to the conversation at all, then you have a completely different issue at hand, and you will need to advise them of their potential liability under both Federal and State wiretapping laws.

Many states derive their wiretapping laws from the federal wiretapping statutes. The Wire and Electronic Communications Interception and Interception of Oral Communications Act (18 USC §§ 2510 to 2521) governs all interstate calls and includes authority for electronic surveillance. Thus, wiretapping includes both interception of a telephone call via the telephone signal itself, as well as eavesdropping. The Federal law, with certain exceptions, prohibits the interception, use and disclosure of protected communications (see 18 USC § 2511). A notable exception to the interception, use and disclosure of protected communication is the “one party consent” – meaning, generally, that if one party of a conversation (including the person recording who is part of the conversation) is aware of the interception/recording, then there is no violation of the Federal law. Penalties for violating this Federal law include excluding the evidence obtained and criminal conviction and civil damages, among other things.

The applicable Arizona statute, ARS § 13-3005, provides that, with exceptions, “a person is guilty of a class 5 felony who either: 1. Intentionally intercepts a wire or electronic communication to which he is not a party, or aids, authorizes, employs, procures or permits another to so do, without the consent of either a sender or receiver thereof. 2. Intentionally intercepts a conversation or discussion at which he is not present, or aids, authorizes, employs, procures or permits another to so do, without the consent of a party to such conversation or discussion. 3. Intentionally intercepts the deliberations of a jury or aids, authorizes, employs, procures or permits another to so do.” Furthermore, “[e]xcept as provided in sections 13-3012 and 13-3017, a person who intentionally and without lawful authority installs or uses a pen register or trap and trace device on the telephone lines or communications facilities of another person which are utilized for wire or electronic communication is guilty of a class 6 felony.”

The Arizona statute is similar to the Federal law in that someone can lawfully record a conversation so long as one party consents to the conversation. Thirty eight (38) other states (plus the District of Columbia) have adopted similar statutes requiring only one party consent to record conversations; however, twelve states have adopted statutes that generally require all parties to consent to the recording (such as California, Florida and Nevada).

So, what do you do if your client tells you they have recorded phone calls?

First, ask your client if they were part of the conversation. If they were, then the one-party consent was definitely satisfied and so long as the recordings only involved people in Arizona there likely is not a problem with the recordings.

Second, if your client was not part of the conversation, see who else was. For example, perhaps the client tells you that they were not part of the conversation, but that the conversation was between their child and the ex (the other parent). Arizona has held that “If the parent has a good faith, objectively reasonable basis for believing that the recording of a child's telephone conversations is necessary and in the best interest of the minor, the guardian may vicariously consent on behalf of the child to the recording without violating [Federal law]" (emphasis added). Arizona v. Morrison, 203 Ariz. 489, 56. P.3d 63 (2002). The Morrison case was a criminal case involving sexual molestation charges and thus simply touting the recording as necessary for the “best interests of the child” is likely not enough.

But, if your client tells you that they installed a recording device on their spouse’s phone to prove they were cheating, well then, under the Federal law, courts have consistently held that there is no inter- spousal immunity. Thus, it is improper for one spouse to record or intercept phone calls of the other spouse if there is no consent. Wiretapping laws apply even in the marital context.

Third, even if you have one party consent, you need to know where the people being recorded were physically located at the time of the recorded call. Remember that one party consent is the rule for Federal as well as a majority of states, but not all states. If your client recorded someone in California, then you may need to deal with the California statute on recordings which requires all parties to consent.

Fourth, if you have determined that the recording was wrongfully obtained, then be very careful with what you do with it. Remember that the Federal law prohibits the “use” of intercepted communications. Under the Federal law, there is likely no violation for simply listening to the recording, but there could be liability with any effort to introduce or describe the illegally intercepted communication in court.

So next time your clients tells you about that recorded call “that would be GREAT to use in Court,” or asks you if they should record phone calls to help build up their case, remember to ask some important foundational questions first before your case turns into a criminal or federal case...

Technology for Young Lawyers

Arthur Stobbelaar

Technology is a part of our lives -- there is no getting around it these days. In fact, at the ABA Annual Meeting in Chicago this last August, one of the proposed resolutions centered on mandating a certain amount of CLE to include technology related topics such as instruction on preservation, recovery and discovery of electronically stored information. While attendees generally thought such CLE was a good idea, the resolution ultimately failed because as one opponent stated “Lawyers HATE mandates.”

Regardless, as Young Lawyers we should embrace technology and make a concerted effort to take advantage of those technologies that can enhance our services and make our practices more efficient. 

Below, you’ll find some worthy Apps as well as a CLE opportunity to incorporate or improve the use of social media in your practice. 

Five Apps for Attorneys 

I am admittedly pretty low-tech...for example, I still use a Blackberry... But word on the street is that there are a number of Apps and programs that are quite helpful to those with smart phones, iPads, droids, and the like. Here is a list of five cool Apps you may want to check out: 

  1. Dragon Dictation (Free) - Purported to be an easy-to-use voice recognition application. With this app, you can easily speak and instantly see your text content for everything from email messages to blog posts on your iPad, iPhone or iPod touch. Supposedly it is up to five times faster than typing on the keyboard. 
  2. Dropbox (Free) - Dropbox is a cloud storage service. The Dropbox app allows you to use your iPad to access Word, Excel, PDF, and other documents that have been stored "in the cloud." 
  3. GoodReader ($4.99) - GoodReader is great because it allows you to handle huge PDF and TXT files, manuals, large books, magazines, and renderings of 100 mb and more. You can use GoodReader to mark-up PDF and use typewriter text boxes, sticky notes, lines, arrows, and freehand drawings on top of a PDF file. 
  4. Note Taker HD ($4.99) - While Note Taker has some similar functions as Goodreader, Note Taker lets you create pages by writing on the screen with your finger or an iPad-compatible stylus. You can either write directly on the page for large drawings, or have the "ink" you write shrunk down. You can write in large letters on the screen rather than trying to make tiny motions like a pencil. You just keep writing and Note Taker automatically adds new writing next to the old. 
  5. TrialPad ($89.99)- This document management and presentation tool was developed for the legal profession for use in a trial, hearing, or ADR setting. TrialPad allows you to organize, manage, annotate, and store your documents and video while leveraging the portability of your iPad.