Kimmage unleashes hell, counter-sues Verbruggen & McQuaid

[thirteen]

The many questions about the Kimmage defence fund

 

[martinvickers]

You're doing that lawyer thing here, and that isn't what RR is talking about. He is addressing the concerns of the general public, not the legal concerns. He is fully aware there are legal implications to forming partnerships and the like. Nobody is taking issue with the legal issues related to their undertaking. He (and I) am taking issue with the suggestion by some here that legal responsibility = personal condemnation of those who are legally implicated in something that they started having ONLY good intentions.

Unfortunately, one of the people involved appears to have had mixed intentions at best.

There are two realities here:

1. You should never undertake something like that without fully addressing the legal issues upfront. If I remember correctly, I was asked for a legal opinion about what to do when the fund was being created, and my answer was "I am a law student, you need to talk to an attorney" or some answer along those lines. I wish they had consulted a real attorney.

2. There is also the reality that some really good people decided to help out someone who needed help because they were being maliciously sued by an entity with significant financial backing. No good deed goes unpunished indeed. That they did not proceed in a legally advisable manner is not too surprising because navigating those issues is a complex thing best left to attorneys, but I can't say they deserve condemnation for that. Looking at the money they had initially, I don't think hiring an attorney was a real option. I do wish some attorney had volunteered to help, but nobody did.

Lastly, attorneys get hammered all the time for being useless scum-suckers devoid of any redeeming value. While that may be true, they can also be useful sometimes.

I don't really disagree with any of this. I was not aiming for condemnatory, because I'm not - as I said, depression and sadness are really what I'm trying to infer. and maybe a mild "hey, let's stop pointing fingers, and just learn any lesson we can for the future, m'kay?"

As for scum sucking lawyers - there are some, of course, as in any profession. but the truth is law is one of the VERY few professions where someone is trained and then paid to deliberately try and beat you. and usually in a matter or subject you care deeply about, else you wouldn't have gone to court.

The adversarial nature of law means people will inevitably dislike the opposition, or even the idea of opposition. and in the US, where you have 'extreme client identification', it becomes very difficult not to 'transfer' the sins of the client unto the lawyer.

In my experience, most people who win their case quickly conclude they won because they were in the right all along - even when that's patently absurd. Likewise, many people who lose cases tend to immediately think their own lawyer incompetent, the other lawyer or the judge corrupt, or both.

Very few ever look up and say, actually i'd a pretty crap case, my fault really, my guy did his best with a bad case, and the other guy just did his professional duty. Even if it's true, it just not the way defeated clients think and feel.

You win, you want all the credit.
You lose, you want to shift all the blame.

And lawyers know this; it's part of the job.

Human nature.

 

[ChewbaccaD]

I don't really disagree with any of this. I was not aiming for condemnatory, because I'm not - as I said, depression and sadness are really what I'm trying to infer. and maybe a mild "hey, let's stop pointing fingers, and just learn any lesson we can for the future, m'kay?"

As for scum sucking lawyers - there are some, of course, as in any profession. but the truth is law is one of the VERY few professions where someone is trained and then paid to deliberately try and beat you. and usually in a matter or subject you care deeply about, else you wouldn't have gone to court.

The adversarial nature of law means people will inevitably dislike the opposition, or even the idea of opposition. and in the US, where you have 'extreme client identification', it becomes very difficult not to 'transfer' the sins of the client unto the lawyer.

In my experience, most people who win their case quickly conclude they won because they were in the right all along - even when that's patently absurd. Likewise, many people who lose cases tend to immediately think their own lawyer incompetent, the other lawyer or the judge corrupt, or both.

Very few ever look up and say, actually i'd a pretty crap case, my fault really, my guy did his best with a bad case, and the other guy just did his professional duty. Even if it's true, it just not the way defeated clients think and feel.

You win, you want all the credit.
You lose, you want to shift all the blame.

And lawyers know this; it's part of the job.

Human nature.

I was just making a joke. A year from now, god willing and the creek don't rise (it's a southern US saying), I will be an attorney.

 

[martinvickers]

I was just making a joke. A year from now, god willing and the creek don't rise (it's a southern US saying), I will be an attorney.

I know, I read elsewhere - I was kinda joining in - and good luck.

 

[Dr. Maserati]

No good deed…

What are the good intentions behind moving the money into a private account?

I am really annoyed at the way people laud Anna Zimmerman and her blog. It's reverse sexual discrimination. It's because she is good looking. And really reflects badly on us men.
There is hardly anything in the blog about the fund which is of any substance, merely conjecture.

I took the "no good deed..." as a comment on the other people not on Brown.

As for Annas piece - I didn't see anything particularly wrong with it as it stated some new 'facts' and is the first time I saw the screenshots, although I do not subscribe with the 'wait and see' until after it is all legally resolved part.
As for anything else she has written I don't know because I only ever read her stuff once or twice and whatever other opinions she had did not effect this piece.

 

[hiero2]

. . .
As for scum sucking lawyers - there are some, of course, as in any profession. but the truth is law is one of the VERY few professions where someone is trained and then paid to deliberately try and beat you. . . .

And lawyers know this; it's part of the job.

Human nature.

Well said. Lawyers and gunslingers, too. Paid guns, after a fashion.

 

[ChewbaccaD]

Well said. Lawyers and gunslingers, too. Paid guns, after a fashion.

...and professional cyclists

 

[Dr. Maserati]

You're doing that lawyer thing here, and that isn't what RR is talking about. He is addressing the concerns of the general public, not the legal concerns. He is fully aware there are legal implications to forming partnerships and the like. Nobody is taking issue with the legal issues related to their undertaking. He (and I) am taking issue with the suggestion by some here that legal responsibility = personal condemnation of those who are legally implicated in something that they started having ONLY good intentions.

Unfortunately, one of the people involved appears to have had mixed intentions at best.

There are two realities here:

1. You should never undertake something like that without fully addressing the legal issues upfront. If I remember correctly, I was asked for a legal opinion about what to do when the fund was being created, and my answer was "I am a law student, you need to talk to an attorney" or some answer along those lines. I wish they had consulted a real attorney.

2. There is also the reality that some really good people decided to help out someone who needed help because they were being maliciously sued by an entity with significant financial backing. No good deed goes unpunished indeed. That they did not proceed in a legally advisable manner is not too surprising because navigating those issues is a complex thing best left to attorneys, but I can't say they deserve condemnation for that. Looking at the money they had initially, I don't think hiring an attorney was a real option. I do wish some attorney had volunteered to help, but nobody did.

Lastly, attorneys get hammered all the time for being useless scum-suckers devoid of any redeeming value. While that may be true, they can also be useful sometimes.

Sure - but what Martin and you miss is this did not start out as a legal issue, but an accounting issue.

I have retained very good accountants and bookkeepers who would have no hesitation in charging me for merely thinking about them, but who have offered free advise when I have been involved in voluntary or charitable causes.
This was messy as funds were put in to an active business account, but a good accountant would have found a work around with minimal penalty because it is in their DNA to be adverse to paying any tax or liability.

However, as the financial statements that would reveal all have not been forthcoming it has now entered the legal side.

 

[thirteen]

The many questions about the Kimmage defence fund

quoting myself as the above is one of the most comprehensive articles written yet... but, no, still no answers.

 

[martinvickers]

...and professional cyclists

Exactly - and look what fans feel/think when someone else's team wins...

 

[martinvickers]

Sure - but what Martin and you miss is this did not start out as a legal issue, but an accounting issue.

I have retained very good accountants and bookkeepers who would have no hesitation in charging me for merely thinking about them, but who have offered free advise when I have been involved in voluntary or charitable causes.
This was messy as funds were put in to an active business account, but a good accountant would have found a work around with minimal penalty because it is in their DNA to be adverse to paying any tax or liability.

However, as the financial statements that would reveal all have not been forthcoming it has now entered the legal side.

All such accountancy issues are by nature simultaneously legal issues. Accountants work within, and are completely reliant on an understanding of, the applicable law.

Plus there are also clear issues here that aren't merely accounting. Most obviously fiduciary ones.

Or to put it most simply.

To make sure things go right, use an accountant. To make sure they don't go wrong. hire a lawyer.

 

[gooner]

The many questions about the Kimmage defence fund

This puts Brown in a very bad light.

The PayPal records show that payments from that account appear to have been made to Cyclismas staff on several occasions. These include transfers to Justin Pickens on February 16th and 20th. On his own PayPal statement, the sums are listed as coming from ‘Cyclismas International’ and correspond exactly with the amounts exiting the PayPal account used for the fund.

Pickens provides an additional detail which, if true, is troubling. He told VeloNation that last Saturday, after Brown and Kimmage had a heated exchange via phone in relation to the current situation, he was made aware of the situation by the former.

“You're in the middle of this buddy, because I paid you out of the Kimmage fund…” he says Brown told him. Pickens said he was shocked, and also demoralised by what happened. “This was extremely discouraging coming from someone who I saw as a friend and who called me family.”

VeloNation contacted Brown yesterday with two questions relating to this. The replies are as follows:

Q: Did you pay money to Justin or anyone else from that account?

Aaron Brown: Monies were paid out of the Cyclismas account to operate the business. Any further discussions on this are now in the realm of the business dissolution action and cannot be discussed.

Q: Did you tell Justin in recent days that he had been paid from the fund?

AB: I have not spoken to Justin for over 8 days. There were no such comments made.

Pickens confirms the conversation took place last Saturday, one week ago, and insists his representation of that is fully accurate.

He has a lot to answer for here. Good work by Shane Stokes in exposing this.

 

[Dr. Maserati]

All such accountancy issues are by nature simultaneously legal issues. Accountants work within, and are completely reliant on an understanding of, the applicable law.

Plus there are also clear issues here that aren't merely accounting. Most obviously fiduciary ones.

Or to put it most simply.

To make sure things go right, use an accountant. To make sure they don't go wrong. hire a lawyer.

Sure, but that is with the benefit of hindsight (and indeed best practice for anyone at the start).

But I am pointing out how things developed in this particular situation - if this was genuinely someone who panicked because they thought they were subject to a liability, then hand over all statements to an accountant.
It would be a relatively easy fix.

 

[ChewbaccaD]

Sure - but what Martin and you miss is this did not start out as a legal issue, but an accounting issue.

I have retained very good accountants and bookkeepers who would have no hesitation in charging me for merely thinking about them, but who have offered free advise when I have been involved in voluntary or charitable causes.
This was messy as funds were put in to an active business account, but a good accountant would have found a work around with minimal penalty because it is in their DNA to be adverse to paying any tax or liability.

However, as the financial statements that would reveal all have not been forthcoming it has now entered the legal side.

I'm not missing anything. If they'd consulted an attorney to help them set this up, the accounting issues would not be an issue now. There are several things I can think of as a student that could have been done to keep this from happening. If it had started out with a legal analysis, the accounting issue would have been much less likely/capable of arising.

You will have to excuse me if I don't find accountants to be all that great when you are dealing with legal issues surrounding things like this. I have personal experience with accountants not knowing how to apply federal tax statutes.

 

[ChewbaccaD]

All such accountancy issues are by nature simultaneously legal issues. Accountants work within, and are completely reliant on an understanding of, the applicable law.

Plus there are also clear issues here that aren't merely accounting. Most obviously fiduciary ones.

Or to put it most simply.

To make sure things go right, use an accountant. To make sure they don't go wrong. hire a lawyer.

Yes, very well put.

 

[Dr. Maserati]

I'm not missing anything. If they'd consulted an attorney to help them set this up, the accounting issues would not be an issue now. There are several things I can think of as a student that could have been done to keep this from happening. If it had started out with a legal analysis, the accounting issue would have been much less likely/capable of arising.

You will have to excuse me if I don't find accountants to be all that great when you are dealing with legal issues surrounding things like this. I have personal experience with accountants not knowing how to apply federal tax statutes.

But you are missing it. I am not discussing the start as in when this was setup. As I stated already, a prudent step would be to get advise of a lawyer or accountant, or preferably both.

I am discussing when it came to light that there was problem - if genuine then it needed an accountant.
But that it now needs lawyers, suggests it is not just a simple accounting or financial problem.

 

[ChewbaccaD]

But you are missing it. I am not discussing the start as in when this was setup. As I stated already, a prudent step would be to get advise of a lawyer or accountant, or preferably both.

I am discussing when it came to light that there was problem - if genuine then it needed an accountant.
But that it now needs lawyers, suggests it is not just a simple accounting or financial problem.

I was not addressing that aspect and you decided to tell me I was missing the point. I wasn't. I did't write a post in response to you, you wrote a response to one of my posts. As such, you need to continue in context of my post as that is the context of the discussion I was having before you became involved.

The context of that was that an attorney should have been consulted in the beginning, and that would have helped avoid the accounting problems you are discussing now.

Trying to shoehorn me into your context, and then telling me I am missing the point is kind of bizarre.

 

[ChewbaccaD]

You're doing that lawyer thing here, and that isn't what RR is talking about. He is addressing the concerns of the general public, not the legal concerns. He is fully aware there are legal implications to forming partnerships and the like. Nobody is taking issue with the legal issues related to their undertaking. He (and I) am taking issue with the suggestion by some here that legal responsibility = personal condemnation of those who are legally implicated in something that they started having ONLY good intentions.

Unfortunately, one of the people involved appears to have had mixed intentions at best.

There are two realities here:

1. You should never undertake something like that without fully addressing the legal issues upfront. If I remember correctly, I was asked for a legal opinion about what to do when the fund was being created, and my answer was "I am a law student, you need to talk to an attorney" or some answer along those lines. I wish they had consulted a real attorney.

2. There is also the reality that some really good people decided to help out someone who needed help because they were being maliciously sued by an entity with significant financial backing. No good deed goes unpunished indeed. That they did not proceed in a legally advisable manner is not too surprising because navigating those issues is a complex thing best left to attorneys, but I can't say they deserve condemnation for that. Looking at the money they had initially, I don't think hiring an attorney was a real option. I do wish some attorney had volunteered to help, but nobody did.

Lastly, attorneys get hammered all the time for being useless scum-suckers devoid of any redeeming value. While that may be true, they can also be useful sometimes.

Sure - but what Martin and you miss is this did not start out as a legal issue, but an accounting issue.

I have retained very good accountants and bookkeepers who would have no hesitation in charging me for merely thinking about them, but who have offered free advise when I have been involved in voluntary or charitable causes.
This was messy as funds were put in to an active business account, but a good accountant would have found a work around with minimal penalty because it is in their DNA to be adverse to paying any tax or liability.

However, as the financial statements that would reveal all have not been forthcoming it has now entered the legal side.

Context makes all the difference in the world. We can continue to discuss this, but lets do it in the correct context, not the context you want to begin to discuss now. Alternately, we can start discussing the context you want to use, but please recognize that I didn't miss anything in relation to that context as if I start discussing it, I will have made no direct responses or representations at all.

This started out as a legal issue that was not addressed. That it then became an accounting problem (or some other problem) is directly related to the fact that legal issues were not addressed from the beginning.

EDIT: I was also discussing the fact that legal liability does not connotate ethical failure.

 

[Dr. Maserati]

I was not addressing that aspect and you decided to tell me I was missing the point. I wasn't. I did't write a post in response to you, you wrote a response to one of my posts. As such, you need to continue in context of my post as that is the context of the discussion I was having before you became involved.

The context of that was that an attorney should have been consulted in the beginning, and that would have helped avoid the accounting problems you are discussing now.

Trying to shoehorn me into your context, and then telling me I am missing the point is kind of bizarre.

Relax.

This was my first line in response to you upthread.
"Sure - but what Martin and you miss is this did not start out as a legal issue, but an accounting issue."

 

[Hugh Januss]

Thanks for your unhelpful post. I have reported it as offensive!

 

[frenchfry]

But you are missing it. I am not discussing the start as in when this was setup. As I stated already, a prudent step would be to get advise of a lawyer or accountant, or preferably both.

I am discussing when it came to light that there was problem - if genuine then it needed an accountant.
But that it now needs lawyers, suggests it is not just a simple accounting or financial problem.

I think this is the key point.

In the beginning, this was a relatively simple project. Collect funds using modern tools (Paypal, Chipin etc.) for a fairly clear purpose being the costs of Paul Kimmage's defence against an injust lawsuit.

There appears to have been a need for some tax advice but I wouldn't think the situation is that complicated.

But the real problem appears to be elsewhere. It is not reassuring to see transfers to employees and unrelated business ventures connected to Mr. Brown. From what we see on blogs and elsewhere, Mr. Brown has a lot of explaining to do, and the fact he seems reluctant to do so isn't a good sign.

 

[Hugh Januss]

I think this is the key point.

Mr. Brown has a lot of explaining to do, and the fact he seems reluctant to do so isn't a good sign.

That is the key point, he's got himself into this, he needs to find a way to get himself out of it with out looking like a complete a-hole.
I give that long odds, based on his lack of response so far.

 

[MarkvW]

That is the key point, he's got himself into this, he needs to find a way to get himself out of it with out looking like a complete a-hole.
I give that long odds, based on his lack of response so far.

I suspect that Brown is hoping to find a way to get out of this without becoming a criminal defendant.

 

[martinvickers]

I think this is the key point.

In the beginning, this was a relatively simple project. Collect funds using modern tools (Paypal, Chipin etc.) for a fairly clear purpose being the costs of Paul Kimmage's defence against an injust lawsuit.

There appears to have been a need for some tax advice but I wouldn't think the situation is that complicated.

But the real problem appears to be elsewhere. It is not reassuring to see transfers to employees and unrelated business ventures connected to Mr. Brown. From what we see on blogs and elsewhere, Mr. Brown has a lot of explaining to do, and the fact he seems reluctant to do so isn't a good sign.

But this is what I'm trying to explain. It looks simple. But it's not simple. There are very important and intricate legal structures that arise without even realising it. Partnership. Trudt for purpose. Mingling and tracing through mixed funds. Fiduciary duty. Trustee mutual relationships. And that is before Aaron does a thing wrong. Before Mr taxman shows any interest.

I'm not scolding. It can happen anyone. I'm pleading for people to be aware going forward. Because life being life it will happen again.

 

[Dr. Maserati]

But this is what I'm trying to explain. It looks simple. But it's not simple. There are very important and intricate legal structures that arise without even realising it. Partnership. Trudt for purpose. Mingling and tracing through mixed funds. Fiduciary duty. Trustee mutual relationships. And that is before Aaron does a thing wrong. Before Mr taxman shows any interest.

I'm not scolding. It can happen anyone. I'm pleading for people to be aware going forward. Because life being life it will happen again.

But no-one is discussing "going forward" - we are on about the now in this instance. (Even though I agree it is prudent advise)
You are a lawyer, so all things in your view should be addressed as law and legalize- indeed you stated its "very important" - it isn't to anyone else, its boring law.
Everything to a lawyer is complicated but the fund should have been simple to set up properly and if Browns concerns about tax or liability were legitimate an accountant would find a way to fix it.

This was a fund, set up with best intentions by cyclists to support Kimmage who did not know what they were doing or realizing how big it could grow. The "could haves", "should haves' are all fair, but now its about where things are, not where they should have been.

And with that, I am off to shave my legs.