6 Delaware Attorneys Weigh in on Hot Legal Topics

Lewes-based attorney Rebecca Doyle./Photo by Angie Gray

From workers’ compensation to civil rights, these local lawyers are tackling big issues around the state. View our entire list of 2020 Top Lawyers here.

Rebecca Doyle • Baird Mandalas Brockstedt, LLC
Hot Topic: Estate Planning

Planning for death or incapacity might not be a popular topic to address, but it’s a necessary one, especially in the midst of a global pandemic. Generally, anyone who has children or assets (wealth or property) should have a comprehensive estate plan in place. “People usually wait until retirement age to start considering it,” says Lewes-based attorney Rebecca Doyle of Baird Mandalas Brockstedt. But what about potential emergencies?

For parents, it’s best to start the process early. “When you have a young child, the most important thing is to [decide] the guardian of that child if you and your spouse both pass away,” she explains. Other things to consider, she advises: “Do you want all your assets to go to the children? If so, are they going into trusts until they reach a certain age? Who will be the trustee to manage those funds, and how do you want your executor to handle your estate?” Doyle suggests picking three successive individuals who share similar values to your own, and take location into account.

Having the appropriate documents in place means largely avoiding court fees and delays in receiving assets that result from probate. Doyle recommends revisiting estate plans every three to five years, or more frequently if a major life event—such as a marriage, divorce or family relationship—occurs.

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Estate plans aren’t only for parents: They also play a significant role in an individual’s health and financial care in the event of incapacitation, as in a coma. “Your healthcare directive and your durable power of attorney are just as important—if not more important—than your will,” she says.

She’s also keeping an eye on estate exemption and capital gains. The current estate exemption is at $11.58 million per individual. That amount will sunset to $5.6 million on Jan. 1, 2026, if Congress doesn’t take action. Depending on the political party in control, it could change sooner. Similarly, capital gains—which apply to the sale of stock or property—might also change. Currently capped at 20 percent, Democratic presidential nominee and former Vice President Joe Biden plans to double it. “That’s really what I’m going to be watching,” Doyle says.

Frederick Freibott of Wilmington./Photo by Angie Gray

Frederick S. Freibott • The Freibott Law Firm, P.A.
Hot Topic: Workers’ Compensation–Employee

When employees are injured on the job, claims generally fall under workers’ compensation. “The first thing that you have to establish is whether that person was injured in the scope of his or her employment,” explains Frederick Freibott of Wilmington. An employee may be entitled to wage benefits, medical treatment benefits and, depending on the severity of the injury, permanent impairment benefits.

“Your wage benefit pays two-thirds of your average weekly wages, not to exceed a state limit,” he explains. This year’s average weekly wage entitles workers to a maximum payment of $747.66. In Delaware, employees have two years to file initial workers’ compensation claims.

To start a claim, an employee must report it with his or her employer, who should document the incident and file a workers’ compensation insurance claim. “An injured worker has to take some steps to move forward with this,” Freibott adds, noting that they might also need proof from a medical expert.

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Amid the pandemic, people are wondering if they’ll qualify for a claim should they contract COVID-19 on the job. “Workers’ comp is not designed to be a healthcare system,” Freibott explains. If someone is infected with the virus, proving where they contracted it, he adds, would be “nearly impossible to do.”

Nathan Gin, a partner at Wilmington’s Elzufon Austin & Mondell./Photo by Angie Gray

Nathan V. Gin • Elzufon Austin & Mondell, P.A.
Hot Topic: Workers’ Compensation–Employer

The advent of both the telephone and internet changed the workforce landscape. Employees suddenly had a new level of flexibility, and some jobs could now be done from virtually anywhere. The current pandemic again dramatically shifted the landscape for traditional office workers. Given social-distancing protocols, many offices went fully or partially remote, leaving employees and employers with a lot of unanswered questions.

On a traditional job site, employers have some control over the environment and its safety precautions. “There is an added risk that employers have once their [employees] are working from home,” says Nathan Gin, a partner at Wilmington’s Elzufon Austin & Mondell.

“For claimants, if they’re alleging an injury occurred at home, it is going to be their burden of proof to show whether it was in fact work-related,” Gin explains. So far he’s seen few, but adds, “I think we are definitely going to see a lot more cases where people are alleging injuries that could have taken place at home.”

There are case law precedents in place. Gin recommends that employers follow the same protocols they would if the injury happened on-site. “If there is some question as to the genesis of the injury,” he advises, “be willing to dig deeper. Request medical records. Look into [the employee’s] background to see if there are any conditions that they were treated for previously. The most successful cases are when the employer takes proactive steps to make sure that they have all the information that is possibly gleaned from all the people involved.”

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Wilmington-based civil rights attorney Thomas Neuberger./Photo by Angie Gray

Thomas S. Neuberger • The Neuberger Firm
Hot Topic: Civil Rights

Thomas Neuberger is no stranger to protecting individuals’ rights. The Wilmington-based civil rights attorney has been a pioneer in the field for more than four decades. Earlier this year, he called for the resignation of Delaware Attorney General Kathy Jennings following the handling of the shooting of Brandon Roberts by Milford police. Not one to shy away from police brutality cases, five years ago Neuberger represented Jeremy McDole’s family, winning a $1.5 million settlement after the 28-year-old paraplegic was fatally shot by police outside his home.

Neuberger has long called for reforms, insisting that police body camera footage be immediately released to the public. As part of the McDole settlement, Neuberger stipulated that the Wilmington Police Department update its use-of-force policy. “It’s only through the demands of the public and with the assistance of the media [that we’ll see] reform,” he says.

While police brutality is at the forefront of the national civil rights movement, Neuberger is also focused on rights in Delaware related to COVID-19, paying special attention to churches. On their behalf, he’s pursued legal action against Gov. John Carney for restrictive rules he says were an infringement on personal liberties. Among the prohibitions were church-related gatherings and celebrations, including baptisms and Communion.

“The very first article, the very first vision in the Delaware Constitution, says that the governor shall have no power over religious worship,” Neuberger says. “It was only the threat of a federal injunction that made him back down.”

Neuberger sees all COVID-19 restrictions as unconstitutional, arguing that shutdowns have had an adverse effect on small businesses statewide. Restaurant owners estimated losses over a four-month period this year to be around $700 million. Neuberger likens the forced closures to eminent domain. “[Under] the Federal Constitution, the Fifth Amendment says that the government can’t take your property without compensation,” he explains. “If government limits the uses of your property, it’s got to pay you.”

Sara T. Toner • Richards, Layton & Finger, P.A.
Hot Topic: Real Estate

Delaware has long attracted industry with its proximity to roads and rails. Amazon, for example, announced earlier this year that it acquired 820,000 square feet of the former General Motors assembly plant in Newport, making it Delaware’s third fulfillment center.

This speaks to the value of the region as much as it does the boost in online shopping propelled by the pandemic. “[We’ll] continue to see the need for industrial space so they can have these big warehouses that facilitate this online Amazon sort of lifestyle,” says Sara Toner, department chair of the real estate group at Wilmington’s Richard, Layton & Finger.

Post-pandemic, Toner imagines a greater emphasis on grocery stories, pharmacies and medical facilities. “[We’re] already starting to see a redeployment of capital into those essential businesses,” she adds.

Over the last decade, the region has also seen consistent growth in multifamily living, with no signs of slowing down. Because more people are working from home, Toner believes amenities will become increasingly important. That could include more live-work-play environments, with on-site retail and dining, fitness centers, and shared lounges. These properties are so popular—thanks to baby boomers downsizing and the millennial lifestyle—more out-of-state purchasers are looking to get into the market. “Delaware has been viewed as a real strong value play,” Toner notes.

Office spaces are looking at a different future, though. “Businesses really seem to have adjusted quickly to the virtual workforce, and I think many local businesses are [discovering] that they can operate just as well without the overhead costs associated with owning and leasing physical space,” says Toner.

Some businesses have looked to sublet, negotiate an early lease termination or seek rent abatement. Because many office buildings are held with commercial mortgage-backed securities, landlords can’t simply agree to new terms. “Those types of requests may be much more complex to alter,” Toner explains.

Other landlords, however, may see increased demand to accommodate social distancing, Toner suggests. Office space is emptier now, but it’s likely to regain traction with companies opting for hybrid workforces. “Work-from-home setups do work and provide some real benefit in terms of life balance,” she points out. “The problem that organizations are discussing is the impact on the culture of the company.”

Open workspaces may become the norm, with employees simply grabbing space that’s available when in the office, rather than having their own dedicated desk—trends we’ve seen in bigger urban markets for some time.

Max Walton, a partner at Connolly Gallagher in Newark./Photo by Angie Gray

Max B. Walton • Connolly Gallagher, LLP
Hot Topic: Election Law

Most commonly used by people who can’t make it to their polling place on Election Day, absentee and vote by mail have long been safe, secure ways for individuals to participate in elections. Now, amid the pandemic, mail-in and absentee ballots are playing an even more crucial role, and the same election laws apply to all types of ballots. Eligible individuals “have a right to vote. And you have a right to vote once,” explains Max Walton, a partner at Connolly Gallagher in Newark. “It’s called ‘one person, one vote.’”

If you request a ballot by mail but don’t return it, you may still vote in person. According to the state Department of Elections, a poll worker will contact the department to void the unreturned mail ballot.

New safety procedures could mean longer lines at the polls this year, and party attorneys can seek action for such extenuating circumstances. “If there were extremely long lines at a particular polling place, if the polling machine didn’t work for some reason, or something like that, generally they have the ability to go into court” and quickly resolve the issue, explains Walton.

Though uncommon, if a voter suspects fraudulent behavior at a polling place or is barred from voting, Walton advises reporting it to the attorney general’s office “for investigation and prosecution.”

Around the election, political signage could also be contested. On public property, “The government has the ability to restrict the time, place and manner of certain signs,” Walton explains. On private property, generally, zoning ordinances or even deed restrictions can dictate sign usage and placement, but not the message (unless it’s obscene). “The government has to treat the signs without regard to the content of the message,” Walton adds. “It’s the sign that’s regulated, not the speech on the sign.”

Published as “Law of the Land” in the November 2020 issue of Delaware Today.

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