LEGAL CORNER: My expungement may not have worked. What can I do? - KPLC 7 News, Lake Charles, Louisiana

LEGAL CORNER: My expungement may not have worked. What can I do?

(Source: KPLC) (Source: KPLC)
(KPLC) -

Submit your questions to news@kplctv.com. Civil matters only, please.

QUESTION: "My friend had an expungement filed about nine or ten years ago. But three years later when he did a background check, he was told by the Sheriff’s Department that something was on his record, but they later told him “everything was fine.” When he applied for a job, they did a background check and told him don’t bother applying again? Finally, when he went to follow up with the Sheriff’s Department to verify that nothing was on his record, they told him that “everything was fixed”, but deputy had an issue with “how expungements were handled back then.” So, my question is does my friend have any legal recourse?"

ANSWER: The question brings up two issues – malpractice and expungements. First, when asked about “legal recourse”, we must first consider whether this meets the definition of malpractice, which generally refers to carelessness or negligence below the standard legal practice. Second, any recourse maybe beyond the statute of limitations.

To bring a legal malpractice suit, the claim must be asserted either (1) one year from the action or inaction, or the discovery of the action/inaction, or (2) no later than three years from the incident.

Universal Citation: LA Rev Stat § 9:5605

§5605. Actions for legal malpractice

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

Secondly, understanding an expungement may offer some clarity. Despite a common belief, an expungement does not “destroy the file” of someone’s convictions or records. An expungement simply limits the access to your records to a select group of agencies, for example, law enforcement, the gaming industry, medical providers, and schools – they will always have access to records whether or not the records are considered “public”. So, depending on where your friend applied for work, the expungement may have done all that it was supposed to do. Hopefully, when meeting with an attorney to do an expungement, the attorney will make that clear to the client.

QUESTION: We have a dog that is caged but is allowed, under supervision, to occasionally run free. We live on a busy highway and worry should he venture on to the road and cause an accident, who has liability?

ANSWER: The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal's behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person's provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Art. 2321. Damage caused by animals

QUESTION: I quit my job, but have not been paid yet. I was told I could sue about that. Any truth to that rumor?

ANSWER: You are entitled to be paid in the regular pay cycle. You have no right to accelerated payment unless your contract dictates that. However, if within 3 days of a written demand payment has not been timely made to you, you are entitled to attorneys’ fees, a very rare statutory right in Louisiana:

Title 23:632

§632. Liability of employer for failure to pay; attorney fees

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee's daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

Put in more common language – when a paycheck is owed a former employee, the employer must pay the amount owed as in a normal cycle. Failure to do so can result in penalties – either full pay from the time the employee demands it until payment, or 90 days’ pay, whichever is lesser. If forced to sue, the employee can also recover attorneys’ fees, a rarity in Louisiana law. However, before being entitled to the attorneys’ fees, 3 days must lapse since the initial demand was made.

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.

Copyright 2018 KPLC. All rights reserved.

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