Posts Tagged:COVID-19

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In response to the COVID-19 pandemic, the Oregon Legislature passed House Bill 4213 on June 26, 2020, which extended the statewide temporary eviction moratorium through the end of September 2020.

HB 4213 revolves around the “emergency period,” a timeframe that started April 1, 2020 and ended September 30, 2020. This law creates a six-month repayment grace period for Oregon commercial lease tenants until March 31, 2021 for amounts owed during that emergency period. Although Executive Order 20-56 extended protections for residential tenants until December 31, 2020, no such protections were granted for commercial tenants. Landlords and tenants with commercial leases who have been struggling with nonpayment of rent during the COVID-19 pandemic have several options, however, starting with the “notice of nonpayment.”

For Landlords: Notice of Nonpayment

As of October 1, 2020, a commercial landlord may send a commercial tenant a written notice with the following information:

• The emergency period ended September 30, 2020.
• The tenant’s nonpayment balance that accrued during the emergency period is still due and must be paid.
• The total nonpayment balance, along with a breakdown of the charges.
• The tenant will not owe late charges for the nonpayment balance and is entitled to a six-month grace period ending March 31, 2021 to repay the nonpayment balance that accrued during the emergency period.
• Within a specified date in the notice, no earlier than 14 days following delivery of the notice, the tenant must pay the nonpayment balance or notify the landlord that the tenant intends to pay the balance by the end of the grace period.
• The tenant’s failure to give notice to the landlord of utilization of the grace period may result in a penalty after the grace period, equal to 50% of one month’s rent.
• Rents and other charges or fees that come due after October 1, 2020 must be timely paid or the landlord may terminate the tenancy.

A landlord may also offer a payment plan for the outstanding balance, but the notice must state that the payment plan is voluntary. A tenant is not obligated to agree to a repayment plan.

Landlords seeking to send HB 4213-compliant notices should strongly consider working with a lawyer to do so. If a landlord sends a notice that violates HB 4213, the tenant is entitled to certain injunctive relief and may recover from the landlord up to three months’ rent plus actual damages.

For Commercial Tenants: Invoking the Grace Period

While nothing in HB 4213 relieves tenants of liability for unpaid rent, tenants with nonpayment balances from the emergency period are entitled to a six-month grace period ending March 31, 2020 during which they can pay off the balance. Landlords may not charge late fees, terminate tenancy, or assess any other penalty on a tenant for nonpayment during the emergency period or for invoking the grace period.

If a landlord sends a legally compliant notice as described above, a tenant with an outstanding nonpayment balance must notify the landlord of the tenant’s intent to use the six-month repayment grace period by the date stated in the notice. The tenant does not have to provide documentation of loss of income and may notify the landlord by mail or email that they wish to use the repayment grace period.

Again, tenants who receive any communications from landlords related to unpaid rent should contact an experienced business or litigation lawyer to assess their options going forward. If the tenant does not notify the landlord of their intent to invoke the repayment period by the date in the notice, this could result in a penalty to the tenant equal to 50% of one month’s rent. But if a landlord sends a notice that is not compliant with HB 4213 or takes other actions that interfere with the tenant’s rental rights based upon nonpayment during the emergency period, the landlord could owe the tenant up to three months’ rent plus actual damages.

Other Options

Negotiating a mutually beneficial deal is often the best solution. And to negotiate the best deal, it is important to understand the commercial lease itself in addition to the other legal options at your disposal. Finding an attorney to review your lease and explore your landlord-tenant rights and remedies is always important, but even more so with new laws such as HB 4213. Notices of nonpayment carry financial risks for both tenants and landlords alike, making it important to check in with an attorney to ensure that you are adequately protected. Some disputes over nonpayment of rent may also be more complex, such as situations where nonpayment occurred before the emergency period, or where a landlord wants to take other actions against a tenant to recover unpaid rent or terminate the tenancy. Landlords and tenants seeking to remain compliant with HB 4213 and seeking to explore their options to resolve commercial lease issues should contact the experienced business and litigation attorneys at Emerge Law Group for any such disputes.

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On April 24, 2020, President Trump signed the new “phase 3.5” emergency coronavirus relief package into law (the “Bill”). The Bill includes an additional $310 billion for the Paycheck Protection Program (the “PPP”). The PPP is a federal loan forgiveness program created under the CARES Act to assist small businesses struggling with payroll and operating expenses due to the economic fallout from the global COVID-19 pandemic. Though initially funded with an unprecedented $350 billion, the PPP is a “first come, first served” lending program and quickly ran out of funds within a matter of two weeks.

Banks may begin accepting PPP applications again as early as next week and if you missed out on the initial round of funding, it is crucial that you prepare for the new round of funding before the well runs dry. Notably, the Bill has specifically earmarked $60 billion of the new PPP funds for distribution by small credit unions and community banks. This is good news for the smallest of small businesses that struggled to obtain loan proceeds through big banks during the first round of funding.

For more information about whether your business qualifies for financial assistance under the PPP, see our previous blog on the topic or reach out to one of our business law experts for advice.

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The federal Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) was signed into law on March 27, 2020 to provide assistance to individuals and businesses affected by the global COVID-19 pandemic.  Under Sections 1102 and 1006 of the CARES Act, the Small Business Administration (the “SBA”) is authorized to establish a new loan program known as the “Paycheck Protection Program” (the “PPP”) with $350 billion in funding and a goal to disburse loans as quickly as possible to small businesses to cover payroll and other operating expenses.  Importantly, the principal amount of PPP loans may qualify for forgiveness so long as certain requirements are met.  Because PPP loans are issued on a “first come, first served” basis, it’s crucial that eligible businesses apply now.

The PPP went “live” on April 3 and that same day, the SBA published its interim final rule implementing the program (the “Rule”).  The Rule is subject to a 30-day public comment period and subsequent amendments may follow.  If COVID-19 has affected your business, read our summary below to better understand the SBA PPP loan eligibility requirements and application process.

Is my business eligible for a PPP loan?

“Small business concerns” or certain tax-exempt nonprofit organizations that were in operation on February 15, 2020 and had 500 or fewer employees are eligible for a PPP loan.  A “small business concern” is a business that is independently owned and operated, not dominant in its field of operation, and does not exceed small business size standards listed in the North American Industry Classification System (“NAICS”).  The SBA has a webpage with a table of small business size standards that matches the NAICS codes.

Sole proprietors, individual contractors, or certain self-employed individuals operating as of February 15, 2020 are also eligible for a PPP loan on and after April 10, 2020.

Although these requirements are easy to meet for many small businesses, the SBA has a host of eligibility disqualifiers.  Ineligible types of businesses are listed in the SBA’s Standard Operating Procedure 50 10 5(K) published on April 1, 2019 (the “SOP”) and include, among others, businesses engaged in any illegal activity.

Despite most states with shelter-in-place orders deeming marijuana businesses as “essential” during this pandemic, marijuana is still classified as a Schedule 1 drug under federal law and the SBA specifically identifies “marijuana-related businesses” as engaged in illegal activity.  Both “direct marijuana businesses” (e.g.. businesses that grow, produce, process, distribute, or sell recreational or medical marijuana or marijuana products) and “indirect marijuana businesses” (e.g. businesses that derive any of their gross revenue from sales to direct marijuana businesses of products or services that could reasonably be determined to aid in the use, cultivation, or distribution of marijuana) are considered ineligible to receive a PPP loan.  However, businesses engaged in hemp-related activities consistent with the 2018 Farm Bill are eligible for a PPP loan.  We can advise on the eligibility of your business if you are unsure whether you qualify for the program.

How much can I borrow and what are the loan terms?

The maximum loan amount available to borrowers under the PPP is the lesser of $10 million or an amount determined using the payroll-based formula specified in the CARES Act.  The Rule contains an easy-to-use guideline for the payroll-based formula, but we recommend working with your accountant to aggregate payroll costs and determine the appropriate PPP loan amount.

The interest rate on a PPP loan is 1% and although loan payments are deferred for 6 months, interest accrues on the principal amount borrowed including during the deferment period.  If your business does not qualify for loan forgiveness, the maturity date for the loan is two years.

Do I qualify for forgiveness under the PPP?

The full principal and accrued interest on the PPP loan is forgivable so long as you use the loan proceeds for authorized purposes and maintain employees at their current compensation levels.  You can use the PPP loan proceeds to pay for payroll costs, costs related to group health care benefits and insurance premiums, mortgage interest obligations, rent payments, utility payments, and interest payments on debt obligations.  However, only up to 25% of the loan forgiveness amount can be attributable to non-payroll costs.

To apply for forgiveness, you must document the proceeds used for payroll costs and other non-payroll expenses during the 8-week period following the loan issuance.  If you use PPP loan proceeds for unauthorized purposes, the loan amounts will not be forgiven and must be repaid.  Furthermore, if you knowingly use the loan proceeds for unauthorized purposes, you may be subject to additional liability such as fraud charges.

Can I apply for a PPP loan if I already received an SBA EIDL loan?

You can still apply for a PPP loan if you already received an SBA Economic Injury Disaster Loan (“EIDL”). However, if you used your EIDL loan to cover payroll costs, your PPP loan must be used to refinance your EIDL loan.  Also, the $10,000 grant issued in connection with the EIDL will be deducted from the loan forgiveness amount on the PPP loan.

When and where should I apply for a PPP loan?

You have until June 30, 2020 to apply for a PPP loan.  However, PPP loans are “first come, first served” and lenders have been inundated with PPP loan applications since the program went “live.”  Therefore, we urge you to apply as soon as possible.

The Rule does not require a borrower to apply with the borrower’s current bank.  However, to prioritize applications, many banks are only lending to businesses with a pre-existing business banking relationship.  If your bank is not servicing PPP loans or you do not have a pre-existing business banking relationship at a bank, there are third-party loan marketplaces that route PPP loan applications to SBA lenders.  The SBA also has a helpful webpage listing participating PPP lenders.

If you do not qualify for a PPP loan, there may be state and local options available to you.  At Emerge Law Group, we strive to provide you with the important information you need to safeguard your business during the COVID-19 pandemic.  Please don’t hesitate to reach out for all of your business-related legal needs.

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By Sean Clancy and Kaci Hohmann

As the coronavirus (COVID-19) pandemic rips across the planet, relationships between the environment, governments, businesses, employers, property owners, and individuals are suddenly much more uncertain than usual. Information, guidance, and directives from authorities are changing daily and will continue to change. The total economic and human cost of this virus will not be known for a while, if ever. It is extremely difficult, if not impossible, to accurately predict what will happen next with our most important relationships.

Ordinarily, contracts help establish certainty in relationships, clarifying what’s supposed to happen and what’s expected from the parties. But what happens during a global health crisis when the parties are faced with unprecedented predicaments that hinder their ability to fulfill the commitments they made or intend to make?

The specific facts of each situation affect whether or not contracts are legally enforceable. Although every situation is different, there are a few legal principles that can shape what happens next.

A force majeure clause in a contract might provide a defense to breach or non-performance when “acts of God,” “acts of Nature,” extreme events, or other circumstances occur that are unforeseeable and beyond a party’s control. Force majeure clauses vary in scope depending upon negotiations between parties or, more commonly (until now maybe), whatever boilerplate language the contract drafter happened to include. Some force majeure clauses contain only broad catch-all language, while others are more specific. Such clauses usually identify a laundry list of catastrophic events that may include earthquakes, volcanoes, riots, declared war, acts of terrorism, and, sometimes, pandemics.

A party seeking to excuse its performance under a force majeure clause must demonstrate that its performance is delayed or made impractical or impossible because of the uncontrollable event. Financial burdens or mere difficulties in meeting obligations are insufficient by themselves to excuse performance under a force majeure clause. Courts typically consider whether: (1) the uncontrollable event fits within the definition of a force majeure event under the contract; (2) the risk of nonperformance was unforeseeable and unable to be mitigated; and (3) performance is truly impossible because of the event.

Specific references to an “epidemic” or “pandemic” in a force majeure clause probably cover COVID-19 depending on the circumstances contemplated for performance under the contract. Force majeure clauses that do not specifically mention “epidemic,” “pandemic,” or similar language, may still include COVID-19, depending upon how broad or narrow the language is. By now, COVID-19 almost certainly fits within a broad term like “act of Nature.”

Foreseeability is also crucial in determining what is excusable when an “act of Nature” occurs. Courts and legal experts might disagree about what was foreseeable by parties who formed contracts while the outbreak was in its earlier stages, outside the parties’ jurisdiction. But contracts currently formed during the pandemic that do not specifically address COVID-19 might not allow for excused performance because the parties now have knowledge of the pandemic. Virtually everyone on the planet is affected by COVID-19, so the existence of the virus itself is no longer unforeseeable. That said, it is difficult to know what additional consequences of COVID-19 may still be unforeseeable.

Additionally, if a party wants to be excused, it must prove that performance is an “impossibility.” Even if there isn’t a force majeure clause in a contract, sometimes contractual performance can still be excused based upon common law legal concepts of “impracticability” or “impossibility.” These legal concepts are heavily fact dependent, based upon the circumstances of the deal and the parties’ respective situations. As governments and businesses continue expanding limitations on travel, work, and gatherings of humans, contractual obligations might or might not be deemed legally impracticable or impossible.

There aren’t easy answers regarding what to do next. We recommend reviewing important existing contracts closely to understand rights, obligations, and exit strategies in light of the current COVID-19 pandemic; specifically, take a close look to determine if your contract contains a force majeure clause and ask what that clause does or doesn’t allow. Consider your options and available remedies if a party to the contract wants to excuse or delay their performance.

If you are entering a new deal and forming a new contract, you should consider the existence of COVID-19 during the contract’s formation and its potential effects on the deal later. If you want the counterparty to perform no matter what, consider an “anti-force majeure clause” or negotiating terms that explicitly prevent COVID-19 from being an excuse for nonperformance. If you are apprehensive about either party’s ability to perform, consider the advantages and disadvantages of addressing “pandemic” and COVID-19 specifically as a force majeure event.

Don’t hesitate to contact an attorney if you are concerned about what to do next. Our job is to develop creative solutions for difficult situations to help protect your goals, especially during times of uncertainty.

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Franchise law is a heavily regulated area of law.  We help clients expand their businesses through franchising and other distribution methods. We have experience in many industries including, restaurants, health, and beauty, alcohol, and cannabis among others. Our representative services include the following:


We also help potential franchisees interested in buying a franchise. We are able to assist with evaluation of franchise opportunities with respect to:

Alternative Structures

However, not all businesses are suited to franchise. We are also experienced with helping clients structure alternative distribution methods to prevent classification as a franchise.


Our M&A attorneys are highly experienced in counseling clients who are considering acquisitions or exit strategies.  We have many years of experience handling deals of various types and sizes, ranging from sales of small closely-held business, private companies, and publicly-traded corporations.  We have represented business owners, private equity firms and investment banks in a wide range of industries. 

We have a deep business bench, and Emerge attorneys have handled transactions of all shapes and sizes.  Whether your deal is valued at $100,000 or $100,000,000, our experienced attorneys will guide you through the deal process.

We understand the intensity, technical skill and judgment needed to get deals done, and we provide our clients with timely, practical and cost-effective legal advice.  We are highly capable in all aspects of M&A, including the following:


Emerge Law Group is highly experienced in the cannabis industry.  We have helped many clients obtain state licenses and local permits to operate cannabis businesses throughout California, Oregon, and Washington.

Emerge attorneys were instrumental in the drafting and passage of Oregon Measure 91, legalizing marijuana in the State of Oregon, and have represented cannabis businesses well before many law firms were willing to enter the cannabis industry. As a firm that has provided legal services in the cannabis space for many years, we are familiar with the unique and complex issues businesses and individuals face in an emerging and highly regulated industry.

We regularly help clients with:

Cannabis laws and rules are also regularly changing.  Members of our team are dedicated to attending legislative hearings, state agency and local city and county meetings to stay up-to-date on any new changes and how to adjust to any new changes.

See our Cannabis Industry page for more information.


There is tremendous excitement about the potential for psychedelic drugs to benefit a wide variety of populations, including terminally ill patients suffering with anxiety and depression. Until recently, psychedelic substances have been accessible only in the illicit market and are illegal under federal and state to manufacture, distribute, or possess. These substances have, since 1970, been treated as having no legitimate medical use, and no commercial application. As such, no one invested in this area or required legal services, outside of the criminal context.

Today, researchers in a multitude of clinical studies are proving the medical safety and efficacy of these medicines, with the objective of changing the treatment of these substances under the Controlled Substances Act. Companies are now actively raising money to develop intellectual property and seize market opportunities associated with psychedelic drugs.

In addition, advocates at the state and local levels are not waiting for the rescheduling of these substances and are active in undertaking efforts to decriminalize these substances and/or make them affirmatively legal under state and/or municipal law. Decriminalization already has occurred in cities including Denver, Oakland, Santa Cruz, and Ann Arbor. Oregon is poised to be the first state to make psilocybin therapy affirmatively legal. Emerge Law Group is working with a wide array of clients pushing forward in this emerging area.

See our Psychedelics Practice Group page for more information.



Businesses of all kinds benefit from a customized but systematic approach to structuring legal relationships. Emerge Law Group helps businesses and business owners with a variety of tax planning matters.

Representative client services include:


Estate planning encompasses everything from a will and power of attorney to combined estate and business succession planning. In almost all cases, the purpose of the plan is to help the client protect those they care about most in the event they can no longer be there for them.

Emerge Law Group has experience with a wide range of tools used in estate planning, including wills, trusts, and family business entity planning.


Emerge Law Group can assist with the resolution of difficult tax controversies. Our areas of emphasis and experience include:


Emerge Law Group assists clients with a wide range of real estate transactional matters.  We regularly help clients with:


Emerge Law Group also assists clients with all aspects of local government land use and development processes, ranging from preliminary property analyses and building permit issues to complex land use reviews and hearings. Our attorneys are experienced in obtaining land use entitlements and development permits for a wide range of uses.

We regularly help clients with:

Above all, we understand the value of working with cities and counties to enhance communities while developing the land to its potential. We strive to create solutions to land use issues that serve to better our clients and the communities in which they live and work.


The attorneys in Emerge Law Group’s Litigation and Alternative Dispute Resolution practice group litigate commercial, intellectual property, and public interest matters in state and federal courts, as well as private mediation and arbitration proceedings.  Our lawyers have represented national and regional financial institutions, major media, entertainment and technology companies, and other Fortune 500 companies in a broad array of high-stakes disputes.  Our team of litigators has handled leading cases that have shaped the law in cutting-edge business, technology, free speech, and public interest impact lawsuits in trial and the courts of appeal.

We have particular expertise in handling civil litigation and regulatory enforcement matters in the cannabis and psychedelic industries.  While many firms claim expertise in the these industries, few have our depth of experience successfully litigating contract, trademark, partnership, shareholder, land use, and real estate disputes in court and arbitration.  Even fewer firms have our level of experience handling writ of mandate proceedings against the government regulators.

Our litigators practice in California, Oregon, and Washington, but have appeared in state and federal courts nationwide.  Our knowledge of our clients’ businesses, goals and concerns, and our experience litigating at the highest levels, give us unique insight into possible outcomes and pitfalls as we continuously confront issues of new impression.

No matter what the industry, we pride ourselves in achieving our clients’ objectives through efficient and creative solutions primarily designed to avoid disputes in the first place—which is always the best litigation strategy.  Many times, our clients obtain excellent outcomes before or at the earliest stages of litigation because our adversaries quickly recognize the challenges they will face in litigating against us.  When litigation is unavoidable, however, we work hard to provide our clients with both cost-efficient and “big firm” quality representation.



Your intellectual property (or “IP”) strategy can harness your most valuable information and intangible assets including your name, your brand, your designs, your content, your services, and your products — what makes your business stand apart in a competitive world.  We can help you evaluate and build your IP portfolio, then secure it, monetize it, and protect it.

IP encompasses multiple areas of law and different types of information or material.

Our Intellectual Property practice focuses on:


Trademarks include names, signs, logos, designs, phrases, slogans, expressions, and sometimes even colors, sounds, or smells that identify or distinguish one business compared to others.  Trademark protection is fundamental in securing your “brand.”


Copyright covers original works of creative authorship fixed in a tangible medium of expression.  This includes literary, dramatic, musical, and artistic works, such as poetry, novels, designs, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.  Depending upon the type of work, “moral rights” (such as the right of attribution) may be implicated as well.


Trade secret laws can vary somewhat between states, but generally trade secrets cover information, including drawings, cost data, customer lists, formulas, recipes, patterns, compilations, programs, devices, methods, techniques or processes that derive economic value from not being generally known and are the subject of efforts that are “reasonable under the circumstances” to maintain secrecy.


Depending upon where you live or operate, there is a special patchwork of laws and regulations that protect and regulate personal information.  If you are handling or giving out personal or potentially sensitive information, you may be implicating privacy laws.


Publicity rights address the commercial use of an individual’s face, name, image, or likeness.  These rights vary state-to-state.  Marilyn Monroe, for example, lived in multiple states which created complex questions about her publicity rights.

Our Intellectual Property services include:


In states where new cannabis banking opportunities exist, Emerge Law Group has the proven expertise in creating canna-banking programs to efficiently capitalize on those opportunities. Our Banking Practice Group specializes in working with banks and credit unions to develop regulatory compliant programs and operational best practices. We also train banking staff to become experts in canna-banking so they can effective understand and manage the risk affiliated with canna-banking.

We regularly help clients with:


At Emerge Law Group, we recognize that employees are the heart and soul of any successful business.  Our Employment Law Practice Group works with employers to help them effectively manage their workforce, navigate the complex web of federal, state and local employment laws and, if necessary, defend against claims before administrative agencies and in court.

We regularly help clients with:


Our corporate finance and securities lawyers are experienced attorneys who have practiced at large law firms, worked as in-house counsel for public companies and investment banks, and owned and operated start-up companies. We work with clients to help achieve their financing goals while safely navigating the highly technical securities law landscape. 

In addition to representing issuers, we also routinely represent institutional and individual investors, including in connection with fund formation and investments.

Our expertise includes:

We have a deep understanding of the financing options available to businesses, including simple unsecured loans, asset-backed financing, convertible debt, common and preferred equity, crowdfunding and various other structures.  We work closely with our clients to understand their business and financing needs, ensure they are prepared to approach investors and choose the right partners, structure and negotiate terms, navigate the due diligence process and successfully close the deal.



Emerge attorneys have represented businesses in the alcohol and beverage industry, including wineries, breweries, distilleries, restaurants, bars, movie theaters, golf courses, and gas stations.  We can help you vet new locations, acquire existing locations, and apply for the appropriate liquor license.  We also provide training to comply with applicable rules and regulations, prepare operating procedures, submit renewals, and keep clients protected in the event of any potential violations or administrative hearings.


Emerge Law Group is highly experienced in the cannabis industry.  We have helped many clients obtain state licenses and local permits to operate cannabis businesses throughout California, Oregon, and Washington.  We regularly help clients with:

Cannabis laws and rules are also regularly changing.  Members of our team are dedicated to attending legislative hearings, state agency and local city and county meetings to stay up-to-date on any new changes and how to adjust to any new changes.

See our Cannabis Industry page for more information.


Emerge Law Group is a leader in the psychedelics industry.  There is tremendous excitement about the potential for psychedelic drugs to benefit a wide variety of populations, including veterans struggling with PTSD and terminally ill patients suffering with anxiety and depression.  Until recently, psychedelic substances have been accessible only in the underground; they are illegal under state and federal law to manufacture, distribute, or possess.  These substances have, since 1970, been treated as having no legitimate medical use, and no commercial application.  As such, businesses have not invested in this area or required legal services, outside of the criminal context.

Today, psychedelics are proceeding toward legalization on multiple paths.  Researchers in a multitude of clinical studies are proving the medical safety and efficacy of these medicines, with the objective of changing the treatment of these substances under the federal Controlled Substances Act, opening legal access to them.  Private and public companies are now actively raising money to develop intellectual property and capitalize on the market opportunities associated with psychedelic drugs.  Opportunities to be early actors in this new arena are tremendous.

See our Psychedelics Practice Group page for more information.


Our business transactions team is made up of highly experienced transactional attorneys who have practiced at large law and accounting firms, worked as in-house counsel for public companies and investment banks, and owned and operated start-up companies. We understand complex legal matters and provide high quality legal services in a cost-effective manner.  Our clients value our experience, knowledge and judgment.


Our team routinely advises clients regarding:


Emerge attorneys also advise on-going concerns with: