Sunday, March 29, 2015

The Importance of Memory and Storytelling: Looking Back at Integration in the North

Leonard Alexander It Takes a VillageImagine publishing your first book at age 86

Leonard M. Alexander, in conjunction with his son, my good friend and former Dickinson School of Law faculty colleague, Peter Alexander, is the author of It Takes A Village: The Integration of the Hillburn School System. The brief, inspiring book provides another timely look at the challenges of desegregation and demonstrates the important roles played by persistent local leaders in moving towards integration. Leonard Alexander also reminds us that opposition to change was not solely a "southern" problem:

"Hillburn, New York, has always been a simple, quiet community.  Part of its charm was the appearance that people of different races lived in harmony. The harmony, unfortunately, was attributable only to the social norms of the time.  The white men in the village controlled everything -- jobs, banks, land -- and the colored people, as we were known and referred to, would be taken care of as along as we stayed in our place.

 

'Our place' meant we should not be too vocal or too uppity.  Also, 'our place' meant that we would live on the colored side of town (with the dividing line being Route 17).  'Our place' also meant that we would attend a separate school from the main grammar school in the village.  Since 1889, four years before the village of Hillburn was chartered, the colored children attended grammar school that was set aside for us.  The school was situated alongside a babbling brook and it was known as Brook School.  Unofficially, it was the colored school." 

The book describes the efforts of Leonard Alexander's father, working with others in "the village," to obtain a key NAACP investigation and report in 1931 about the so-called "separate but equal" treatment of the town's two grammar schools. The evidence included the fact that new classroom texts were purchased only for the white school; the white's school's old books might then be sent to Brook School.  

Leonard's book is also a testament to the importance of memory and storytelling.  This is the story of multiple generations of the Alexander family's involvement with community action, education and civil rights.  

In reading the book in one sitting, I was intrigued by the role that jobs played in the ability -- or understandable reluctance -- of community members to challenge inequality.  Leonard's father worked for the New York City General Post Office, and that gave him the financial independence from the local factory owners to challenge their "Jim Crow" system. A small, poignant detail suggests the consequences of activism, as a white business owner and politico would attempt to curry favor (and, probably, votes) by passing out candy to local black children, unless he learned their last name was Alexander. 

Congratulations to Leonard Alexander, and to proud son and co-author, Peter. And, by the way, how many of us have parents with "unheard" stories to share? 

March 29, 2015 in Books, Discrimination, Ethical Issues, Housing | Permalink | Comments (0) | TrackBack (0)

Friday, March 27, 2015

NOT Elder Law, But It Is CRIMINAL Law

As reported in the ABA Journal, "A New Jersey lawyer has been sentenced for 10 years in prison for her part in a scheme to steal $3.8 million from 16 elderly victims:"

Prosecutors say the group took control of the finances of their victims by forging a power of attorney or obtaining one under false pretenses. They then added their names to the victims’ bank accounts and transferred the victims’ funds into accounts they controlled. As part of a plea deal with prosecutors, Lieberman has agreed to pay $3 million in restitution and testify against her co-defendants. 

Here are more details.  And here. And here. And here And according to one news source, the attorney actually served on the New Jersey Supreme Court's Ethics Committee while already engaged in misusing client funds.  Hat tip to retired New York Attorney Karen Miller, now living in Florida, for sharing a link to the ABA Journal article on this sad set of facts.

March 27, 2015 in Crimes, Current Affairs, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, March 26, 2015

Pennsylvania's New Pro Rep Rules Target Financial Accountability for Lawyers, Including Restrictions re Sales of "Investment Products"

New rules supplementing Pennsylvania's Rules for Professional Conduct, adopted by the Pennsylvania Supreme Court in late 2014, are intended to require greater accountability by lawyers for handling of client funds, including sums temporarily deposited in IOLTA accounts.  The rules became effective on March 1, 2015. As we reported on this blog earlier, including here and here, the changes were an important response to disturbing instances of individual attorneys who stole client funds -- in the aggregate amounting to millions of dollars -- that they had purported to "invest" for the clients. 

On March 25, I had the interesting task of serving as a moderator for a meeting hosted by the Elder Law Section of the Pennsylvania Bar Association to explore the implications of the new rules.  Panelists included attorneys Stephen K. Todd and David Fitzsimons who have each served on the Pennsylvania Disciplinary Board. They were involved in either the drafting or implementation stages for the new rules. Also helping to set the stage were two additional panelists, practicing elder law and estate planning attorneys, Linda Anderson from the east side of Pennsylvania and John Payne from the west side of the state. 

The audience included attorneys from a range of practice areas around the state, as well as Pennsylvania Supreme Court Justice Debra Todd.  The dialogue following the panelists' opening remarks was robust, demonstrating support for the increased standards for record-keeping and safe-keeping of property, as well as enhanced powers for the Disciplinary Board to investigate suspected misconduct and demand accountability and disciplinary compliance. 

Many of the comments and questions focused on a single new rule, reportedly the first in the nation, that addresses the role of lawyers with respect to "investment products," defined to include annuity contracts, life insurance contracts, commodities, investment funds, trust funds or securities. 

The key provisions of new Rule 5.8 provide:

Continue reading

March 26, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 25, 2015

What Does it Mean to Have Special Needs for Purposes of "Special Needs Planning?"

At Dickinson Law this week, we are lucky to have Massachusetts Attorney Stephen Spano visiting and presenting to our students in our "Law and Aging Policy" seminar.

In advance of his appearance and in preparation for his focus on "Special Needs Planning," Stephen Spano, who is board certified as an elder law attorney by the National Elder Law Foundation (NELF) and whose firm concentrates its practice on elder law, estate planning and special needs planning, asked the students to watch two very interesting -- indeed inspiring -- Ted Talk videos

Here is his first assignment -- and I look forward to seeing how he uses both videos with our students: 

 

 His second assigned video "homework" is from Aimee Mullins, who talks about "My 12 Pairs of Legs."  

March 25, 2015 in Discrimination, Ethical Issues, Federal Statutes/Regulations, Legal Practice/Practice Management, Social Security | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 24, 2015

Are Doctors Failing to Tell Patients of Diagnosis of Alzheimer's? And Why Not?

The Alzheimer's Association's 2015 Facts & Figures Report that many doctors fail to tell patients (or their family members) about a diagnosis of Alzheimer's is getting a lot of attention, including this Morning Edition story

Why aren't doctors revealing their diagnoses?  During my work in Northern Ireland on access to justice for older adults, we realized that the doctor's diagnosis is a key opportunity for families to receive early advice about "non-medical" planning, such as arranging for powers of attorney or other arrangements for financial management, while the patient has adequate cognition to help with decision-making.  If communication of the diagnosis is delayed, the window for effective participation in planning may also be lost.

March 24, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Has Acceptance of Same Sex Marriage Created Opportunities for Recognition of Other "Family Relationships?"

Columbia Law Professors Elizabeth S. Scott and Robert E. Scott have a new article, "From Contract to Status: Collaboration and the Evolution of Novel Family Relationships." They describe the successful movement to achieve marriage rights for LGBT couples as creating potential opportunities for recognition of other legal relationships that do not depend on "traditional" notions of marriage or family, such as "cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists."

In analyzing relationships that may gain greater legal recognition, the authors examine the possible influence of statutory obligations, including Pennsylvania's filial support laws used to impose care obligations on adult children, or more recent statutes granting visitation rights to grandparents:

"Probably the strongest candidate for full family status is the linear family group composed of grandparent(s), parent(s), and child(ren). It is clear that this familiar type of extended family can function satisfactorily to fulfill family functions. Further, the genetic bond among the members, together with well-defined family roles, reinforces already existing norms of commitment and caring. The primary challenge for these extended families may be the creation of networks with other similar families pursue their goals of increasing public support and attaining official family status.More complex multigenerational groups pose a greater challenge because they are less familiar to the public and less likely to be bound by family-commitment norms than are linear family groups. Partly for this reason, regulators may find it more difficult to verify the family functioning of these unconventional multigenerational groups."

The article was published in the Columbia Law Review, March 2015.

March 24, 2015 in Discrimination, Ethical Issues, Health Care/Long Term Care, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, March 19, 2015

Can an Attorney for a Nonprofit Disclose Info re Unlawful Diversion of Charitable Assets to Attorney General?

The Pennsylvania Supreme Court has agreed to consider an interesting legal ethics issue:

"When counsel for a nonprofit corporation believes that charitable assets are being unlawfully diverted, may counsel disclose this information to the Attorney General's office, as parens patriae for the public to whom the charity and its counsel owe a fiduciary duty?"

The case?  Well, that is a bit of a mystery, as the parties' names have been redacted, and the factual basis for the petition has been deleted from the publically available record. The court permits amicus briefs by 3/23/15.  If you wade past blank pages 2 through 11 of the Petition for Permission to Appeal, there are a few tantalizing clues about the context on pages 12 through 14. 

March 19, 2015 in Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2015

Asking Questions re What It Means to Have "The Talk" about Long-Term Care Planning

There is an interesting new YouTube video available, with charismatic, high-profile actors encouraging all of us to initiate "The Talk" about how we -- or our loved ones -- want to handle the possibility, indeed probability, that someday we will need long-term care.  Rob Lowe, Maria Shriver, Maggie Gyllenhaal, Angela Bassett, Zachary Quinto and Jim Nantz admit the difficulties of talking about growing old, often using vivid tidbits from their own lives or families to emphasize the importance of breaking past the barriers of denial. 

I like the video. It is simple, direct.  But, at the same time, I find the initial video, while interesting, to be a lacking in specifics about what it means to "talk" about long-term-care planning. The 2-minute video is actually part of a series created by Genworth, the major seller of long-term care insurance, and if you hit the right (wrong?) buttons you are directed to Genworth websites that offer more details, especially about  -- surprise, surprise -- buying long-term care insurance. 

I suspect that many people will panic if they hear "pay some money now" in order to buy LTC insurance, as even a part of the  "solution."  See what you think:

 

March 18, 2015 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Film, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 17, 2015

Promises of Confidentiality in Academic Research? Potential Lessons from The Belfast Project

Today is St. Patrick's Day, celebrated with greater fervor in many U.S. communities than it is in Ireland.  Indeed, as I learned during my 2010 sabbatical in Northern Ireland, while Belfast is home to a variety of dramatic "historical" parades and holidays, events on St. Patrick's Day are low key and mostly for children.  Signs of the Times in Belfast Candidate Gerry Adams

In the March 16 issue of The New Yorker magazine, writer (and Yale-educated lawyer) Patrick Radden Keefe digs into the history of Northern Ireland, looking at the late stages of the Troubles.  He examines possible roles played by Gerry Adams as an acknowledged leader of political party Sinn Fein versus his long-denied authority for certain violent actions of the IRA. 

Keefe provides a comprehensive analysis of the events before and after the Good Friday Agreement of 1998, offering details that are devastating if true about how violence was often at its most problematic when perpetrated within the ranks of extreme republican and loyalist factions. Central to the history is the lingering question of who was responsible for the December 1972 abduction and execution of Jean McConville, the widowed mother of 10 children, suspected of informing against the IRA.

In the article, Gerry Adams comes across as determined to be both charismatic and enigmatic, as hero and anti-hero, as deeply devoted to a "United Ireland," while also oddly enamored with trivial self-promotion. I came away from the article thinking it was a good reminder of how dangerous it can be -- in any country -- to believe absolutely in any single leader.

The article also presents ethical questions associated with efforts to document the Troubles through oral histories recorded under the auspices of Boston College:

Continue reading

March 17, 2015 in Books, Ethical Issues, International, Other | Permalink | Comments (0) | TrackBack (0)

Monday, March 16, 2015

Family Dynamics are Complicated, Particularly When We're Talking End-of-Life "Wealth" Transfers

GW Law Professor Naomi Cahn and Amy Zeittlow, affiliate scholar with the Institute of American Values, have collaborated on a new article that is fascinating.  In "Making Things Fair: An Empirical Study of How People Approach the Wealth Transmission System," to be published in a forthcoming issue of the Elder Law Journal, they ask fundamental questions about whether traditional laws governing testate and intestate wealth transmission reflect and serve the wishes of most Americans.  Professor Cahn previews the article as follows:

Based on an empirical study of intergenerational care for Baby Boomers, the article shows how the inheritance process actually works for many Americans.  Two fundamental questions about the wealth transfer system guided our analysis  of the data: 1) does the contemporary inheritance process respond to the changing structure of American families; and 2) does it reflect the needs of the non-elite, who have not traditionally been the focus of the system?    

Our study shows that the formal laws of the inheritance system are largely irrelevant to how property is  transferred at death. While the contemporary trusts and estates canon focuses on the importance of planning for  traditional forms of wealth in nuclear families, this study focuses on the transmission of wealth that has high emotional, but low financial, value. We illustrate how the logic of “making things fair” structured how families navigated the distribution process and accessed the law. Consequently, the article recommends that law reform should be guided by the needs of contemporary  families, where not only is wealth defined broadly but also family is defined broadly, through ties that are both formal and functional.  This means establishing default rules that maximize planning while also protecting familial relationships.

The article is part of a new book by the authors titled "Homeward Bound," with planned publication in 2016, and the authors welcome comments and suggestions. 

March 16, 2015 in Books, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Thursday, March 12, 2015

Academic Position a Window Into Wider World Of Aging Research

Colleagues in the U.K., Dr. Una Lynch in Northern Ireland and Dr. Karim Hadjri in Lancashire, England, shared information on an opening for a new academic position in aging research.  The listing nicely illustrates how global research into aging issues is multi-faceted, challenging and not solely focused on health care: 

The postholder will be an established researcher in Architecture or an Ageing related discipline, with demonstrable evidence of developing and promoting their cognate research or knowledge transfer/consultancy activity to high-level peers. The appointee will work closely with the Project Coordinator of ODESSA. ODESSA - Optimising care delivery models to support ageing-in-place: towards autonomy, affordability and financial sustainability, is a Europe-China initiative funded by China NSF and research funding agencies from four EU countries (UK, France, Germany and The Netherlands) under the Understanding Population Change theme. The project partners are Tsinghua University from Beijing, China, and Université Paris Dauphine and Université CNRS/Paris I-Panthéon Sorbonne from Paris, France. ESRC is the UK funding agency and the programme manager. The total value of the project is around GBP 1m and duration is 36 months starting on 1st March 2015.

 


The successful candidate will have an established international reputation in research (or knowledge transfer/consultancy), research project coordination and management, with demonstrable high impact areas that are supported and evidenced in leading peer-reviewed journals and extant literature. Educated with a PhD in architecture, built environment, or ageing related disciplines, and evidence of knowledge of architecture or ageing related disciplines research methods as well as a proven track record of meeting project deliverables and deadline is essential for this position.

Applicants can obtain further information and details here or by contacting the Project Coordinator, Professor Karim Hadjri, at University of Central Lancashire.

March 12, 2015 in Cognitive Impairment, Current Affairs, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, International, Retirement | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 11, 2015

U.S. Department of Justice Launches Elder Justice Website

Julie Childs, Project Manager for the U.S. Department of Justice's Elder Justice Website shared with us the resources now available to researchers, students and advocates.  Some of the highlights:

Here, victims and family members will find information about how to report elder abuse and financial exploitation in all 50 states and territories. Simply enter your zipcode to find local resources to assist you.

Federal, State, and local prosecutors will find three different databases containing sample pleadings and statutes.

Researchers in the elder abuse field may access a database containing bibliographic information for thousands of elder abuse and financial exploitation articles and reviews.

Practitioners -- including professionals of all types who work with elder abuse and its consequences -- will find information about resources available to help them prevent elder abuse and assist those who have already been abused, neglected or exploited.

This website is intended to be a living and dynamic resource. It will be updated often to reflect changes in the law, add new sample documents, and provide news in the rapidly evolving elder justice field.

It will be interesting to watch this site develop. 

March 11, 2015 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 10, 2015

New Study Tracks Physical Illness as a Risk Factor for Marital Dissolution in Later Life

Researchers Amelia Karraker, Department of Human Development and Family Studies at Iowa State University and Kenzie Latham, Department of Sociology at Indiana University and Purdue University, recently published "In Sickness and in Health? Physical Illness as a Risk Factor for Marital Dissolution in Later Life" in the Journal of Health and Social Behavior. From the abstract:

"The health consequences of marital dissolution are well known, but little work has examined the impact of health on the risk of marital dissolution. In this study we use a sample of 2,701 marriages from the Health and Retirement Study (1992–2010) to examine the role of serious physical illness onset (i.e., cancer, heart problems, lung disease, and/or stroke) in subsequent marital dissolution due to either divorce or widowhood. We use a series of discrete-time event history models with competing risks to estimate the impact of husband’s and wife’s physical illness onset on risk of divorce and widowhood.

 

We find that only wife’s illness onset is associated with elevated risk of divorce, while either husband’s or wife’s illness onset is associated with elevated risk of widowhood. These findings suggest the importance of health as a determinant of marital dissolution in later life via both biological and gendered social pathways."

The highlighted finding is generating lots of coverage in the popular press.  Thanks to Naomi Cahn, who is also a co-author of the similarly relevant book, Marriage Markets: How Inequality is Remaking the American Family, for sharing the study link.

March 10, 2015 in Books, Current Affairs, Ethical Issues, Health Care/Long Term Care, Television | Permalink | Comments (0) | TrackBack (0)

Monday, March 9, 2015

"The Originalist" Puts Justice Antonin Scalia on Center Stage

 

The Originalist On Sunday I had the interesting opportunity to be in the audience for the third performance of a new play, The Originalist, at Arena Stage in Washington D.C.  Playwright John Strand has given Justice Antonin Scalia center stage and the spotlight for close to two hours, in a play filled with opera, literary references, plenty of legal humor, a few card games, and lots of verbal boxing between the justice and his young, liberal "contra" clerk. 

The play makes deft use of Scalia's own words, drawn from opinions and public presentations, and actor Edward Gero wears the robes -- and wields Scalia's weapons -- with authority. Kerry Warren, holds her ground well, both as actress and antagonist in the role of the law clerk.  The play concludes in the recent past, as Justice Scalia debates with the clerk the words he will announce from the bench for his dissent on the Defense of Marriage Act (DOMA) case, United States v. Windsor

The play succeeds especially well in an important goal of the playwright, as identified in a lively post-production Q & A session with the audience. The play encourages serious discussion of what it means to "interpret" the Constitution. Through the voice of the clerk, it also asks whether there is any room for true solutions to emerge in the polarized world of left-right politics. 

The Originalist also proved to be surprisingly relevant to themes in this Blog. Scalia is depicted as the aging lion in winter, given to occasional moments of introspection and an intriguing episode of pique (hint: what career aspiration may he have pondered?). At one point he is seen as attempting to justify his intransigence with the observation that he's growing old, a condition for which there is "no cure."

The play -- set in the intimate black box space of the Arlene and Robert Kogod Cradle -- is scheduled to run until April 26. 

March 9, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Cases | Permalink | Comments (0) | TrackBack (0)

Friday, March 6, 2015

Pennsylvania Bar Association Program on New Rules of Professional Conduct & Disciplinary Enforcement

On Wednesday, March 25, 2015 (1:30 to 3:30 p.m.), the Pennsylvania Bar Association (PBA)'s Elder Law Section is hosting a panel session at the annual PBA Section/Committee Day to discuss important changes in the Pennsylvania Rules of Professional Conduct and the Disciplinary Enforcement Rules. 

Several of the recent changes, including rules mandating greater oversight for trust accounts, timelier handling of complaints, and specific new prohibitions or restrictions on attorney involvement in marketing of "investment products," were a response, at least in part, to serious cases of attorney misconduct resulting in tragic financial losses for individuals.  In some instances the clients were older persons who entrusted large retirement assets to the care of a small number of attorneys. 

In planning the program, Elder Law Section Chair Jacqui Shafer commented that the program reflects the continuing commitment of the Bar and the Section to take affirmative steps to address and prevent misappropriation of funds from any client, including vulnerable seniors and their families.

Panelists include experienced private practitioners in elder law or estate planning practices and representatives of the Disciplinary Board and PBA's Legal Ethics and Professional Responsibilities Section.  Several participants were members of the Pennsylvania's recent Supreme Court Elder Law Task Force. 

Here is the link for more details on the program, including the link for required registration (free, including lunch).  The deadline for on-line registration is March 20.

March 6, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, March 5, 2015

ABA Webinars on Domestc Asset Protection Trust Planning

Yesterday I wrote about the Utah Supreme Court decision rejecting application of Nevada law to determine the nature of an asset protection trust.   Would the same result occur if the claimant was an "ordinary" creditor, rather than a spouse and co-settlor? 

One way to get in on the discussion would be the ABA's "Jurisdiction Selection Series" on "Domestic Asset Protection Trusts."  And as luck would have it, the next in the series of 5 webinar sessions covers Arizona, Maryland, New Hampshire --- and Nevada law.  The program is Tuesday, April 14, 2015, and will be followed by a session on June 9, 2015 covering Hawaii, Kentucky, South Dakota and Utah.  Here are some of the topics to be addressed:

  • What is an inter vivos QTIP trust and how can it help my clients?
  • Will domestic self-settled asset protection trusts benefit my clients?
  • Do the costs of creating a trust in one state for creditor protection or taxation benefits really outweigh the creation of such a trust in another?
  • Is the trust really protected from creditors?
  • Can the trust be used to avoid the income tax in the grantor's state of residence?
  • Can a same sex couple benefit from the use of these trusts?
  • Is using an offshore trust better?

A number of states have laws governing "full blown self-settled asset protection trusts" or permit some form of similar trust.  Here is the link to the details about registration, cost and timing for all of the ABA sessions.

Hat Tip to Penn State Law Professor James Puckett for sharing the timely info on this series.

March 5, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 4, 2015

Utah Supreme Court Rejects Attempt to Specify Nevada Law as Controlling "Irrevocable" Trust

In Dahl v. Dahl, the Utah Supreme Court was asked to examine the effect of a choice-of-law clause in a trust that purported to be "irrevocable." The clause provided:

"Governing Law. The validity, construction and effect of the provisions of this Agreement in all respects shall be governed and regulated according to and by the laws of the State of Nevada. The administration of each Trust shall be governed by the laws of the state in which the Trust is being administered."

The first sentence of the provision was significant, because the trust granted husband-settlor continuing rights of control, even as he argued the "irrevocable" label was valid, prohibiting wife from claiming any marital interest in assets used to fund the trust.

Continue reading

March 4, 2015 in Books, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

How Many "Wrongs" in This Estate Dispute...?

The New York Times Ethicists take on an estate dispute.  Here's how it starts:

In order to decrease his net worth before beginning divorce proceedings, my brother invested $600,000 in an apartment in my father’s name. Years later, he had our mother co-sign a business loan. When the business failed, my mother was sued for $3 million she didn’t have. After she died of cancer, my father fought the suit for many years. At 93, he settled for a $1.1 million loss. Unable to live his accustomed lifestyle, he approached my brother with the expectation that my brother would supplement his income. When my brother refused, my father sold the apartment and kept the $600,000.

 

When my father died, he left his estate to be split between my two adult sons.... 

Perhaps you have already guessed that "brother" is asserting a claim against the estate to recover "his" $600,000.

For the full analysis, listen to the podcast or read the shortened discussion here

March 4, 2015 in Estates and Trusts, Ethical Issues, State Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2015

What Are the Dangers of Treating Legal Practice as a Commodity?

Heidi Rai Stewart, an attorney who concentrates her practice in "estate planning, estate and trust administration, special needs planning, elder law and Orphan's Court matters," has an interesting article in the March-April issue of The Pennsylvania Lawyer.  

In "A Hit Between the Eyes - The Danger of Treating Legal Practice as a Commodity," Ms. Stewart takes on the hot topic of nontraditional providers of legal documents or legal advice, including lower-cost sources such as LegalZoom's partnership with Sam's Club or Avvo Advisor, an "on-demand service providing legal advice at fixed rates." 

Ms. Stewart makes several points, including:

  • "A fill-in-the-blank document program simply cannot address the possible eventualities that a skilled attorney will bring to a client's attention.  Although attorneys use forms, a skilled lawyer does not simply fill in blanks."
  • "Commoditization of legal services and documents induces the mindset of the cheaper the better."
  • "There has long been a perception, reflected oftentimes in negative humor, that attorneys are solely concerned with making money.... That perception must change.... [A]ttorneys must better communicate the value of the breadth of their knowledge and wisdom if they want to remain competitive in the marketplace...."

Ms. Stewart asks "Are companies that provide DIY legal documents engaging in the unauthorized practice of law in Pennsylvania?" She observes that such a claim has not yet been heard in Pennsylvania.

Ms. Stewart outlines several recent cases from other states.  She concludes by encouraging lawyers to engage in introspection and to think deeply: 

"Do we distinguish ourselves by rising to the occasion with our integrity, skills, knowledge and wisdom?  Or do we just continue on the path already trod while the public continues to search for the cheapest way to deal with life's most important issues?" 

The issue containing the article is currently available only to members of the Pennsylvania Bar Association. Worth tracking down the full article!

March 3, 2015 in Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, March 2, 2015

The Economic Cost of Conflict of Interest for Advisors on Retirement Investments

The White House Council of Economic Advisors released "The Effects of Conflicted Investment Advice on Retirement Savings" in February 2015, and the report is a must-read for anyone teaching courses on aging policy. 

The major focus of the analysis is on evidence of  "conflicts of interest" for those advising individuals on roll-over investment of IRA accounts, but the findings undoubtedly have relevance beyond that window on retirement planning.

The decision whether to roll over one’s assets into an IRA can be confusing and the set of financial products that can be held in an IRA is vast, including savings accounts, money market accounts, mutual funds, exchange-traded funds, individual stocks and bonds, and annuities. Selecting and managing IRA investments can be a challenging and time-consuming task, frequently one of the most complex financial decisions in a person’s life, and many Americans turn to professional advisers for assistance. However, financial advisers are often compensated through fees and commissions that depend on their clients’ actions. Such fee structures generate acute conflicts of interest: the best recommendation for the saver may not be the best recommendation for the adviser’s bottom line.

The report focuses on the quantifiable cost from conflicted advice, concluding that savers receiving such advice "earn returns roughly 1 percentage point lower each year."  But isn't there also a deeper cost, as the large swath of middle-income Americans, who may have justified fears of being able to safely evaluate investment risk and their investment advisors, do nothing productive with their savings? 

The New York Times editorial board draws upon the White House Council's report to call for adoption of reality-based rules on fiduciary duties for the financial services industry.  See NYT's "Protecting Fragile Retirement Nest Eggs."   

March 2, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Property Management, Retirement | Permalink | Comments (0) | TrackBack (0)