Monday, November 6, 2017
Recently, as a result of a reporter asking me to explain the significance of "certifications" for elder law attorneys, I found myself digging fairly deeply in order to respond. The answers depend on definitions to three different, but related concepts: expertise, specialization, and certification.
I know that when I'm looking in a region of the U.S. where I don't personally know someone, I often start with the National Academy of Elder Law Attorneys' (NAELA) webpage that allows me to do a state or zip code search for member lawyers who identify as "elder law attorneys." Also, depending on the issue, I look at numbers of years in practice, as well as areas within "elder law" that the individuals choose to identify as their areas of experience. For example, are they more interested in retirement planning than, say, handling guardianships or conservatorships that might require litigation? The NAELA attorney search engine allows members to provide this kind of information.
I also look to see if that attorney is a "Certified Elder Law Attorney" or CELA. Or, because there are only about 500 CELAs in the United States, if I'm willing to consider a younger attorney, perhaps there is a CELA working in the same law firm or community, someone for a younger attorney to call for guidance.
The CELA designation, which is usually listed on the NAELA website if a member holds such a designation, actually is earned from the National Elder Law Foundation or NELF, rather than NAELA. It requires specific years of relevant experience handling elder law matters (at least 5 years), peer recommendations, participation in at least 3 years of continuing legal education focused on elder law, and passage of a day-long exam that covers the waterfront on elder practice-related issues. The exam includes both essay and multiple-choice questions, addressing 5 "core" areas and 7 additional areas. A very seasoned attorney I know well and would recommend regardless of any "certification," once told me he didn't pass the CELA exam on the first attempt. He studied harder and passed it the next time and he likes to see lawyers in his firm seek the certification.
NAELA is a membership organization and NELF is a certifying organization, and each have relevant information to offer consumers about elder law practitioners. (Historically, a group of NAELA lawyers helped to start the NELF organization, but the two entities have separate missions now.) Thus, I use NAELA to identify attorneys with experience and interest in elder law, and look for the Foundation's CELA designation as a way to measure "expertise," as it requires a mixture of objective information and testing and more subjective, but still important information from peers, to show engagement in the specialized field.
In many states, the CELA certification also allows individuals to hold themselves out as "specialists" in elder law in advertising and communications with the public, because pursuant to professional conduct rules (e.g., Model Rule of Professional Conduct 7.4), that state has "approved" NELF as a "certifying" organization. Each state decides for itself what certification or other measures of experience and expertise to use in deciding whether an attorney can advertise any particular "specialization."
But what about a consumer who is trying to make an informed choice about an elder law attorney without first being aware of those organizations? I suspect the consumer might turn to the state's Bar Association or Supreme Court websites for information. While bar associations don't "recommend" attorneys, states do have regulatory bodies for lawyers that set standards for when and how lawyers can call themselves "specialists" in elder law or in any field of law.
Wednesday, November 1, 2017
This week, the last session I was able to attend at LeadingAge's annual meeting was a panel talk on "Legal Perspectives from In-House Counsel." As expected, some of the time was spent on questions about "billing" by outside law firms, whether hourly, flat-fee or "value" billing was preferred by the corporate clients.
But the panelists, including Jodi Hirsch, Vice President and General Counsel for Lifespace Communities with headquarters in Des Moines, Iowa; Ken Young, Executive VP and General Counsel for United Church Homes, headquartered in Ohio; and "outhouse" counsel Aric Martin, managing partner at the Cleveland, Ohio law firm of Rolf, Goffman, Martin & Long, offered a Jeopardy-style screen, with a wide array of legal issues they have encountered in their positions. I'm sorry I did not have time to stay longer after the program, before heading to the airport. They were very clear and interesting speakers, with healthy senses of humor.
The topics included responding to government investigations and litigation; vetting compliance and ethics programs to reduce the likelihood of investigations or litigation; cybersecurity (including the need for encryption of lap tops and cell phones which inevitably go missing); mergers and acquisitions; contract and vendor management; labor and employment; social media policies; automated external defibrillators (AEDs); residency agreements; attorney-client privilege; social accountability and benevolent care (LeadingAge members are nonprofit operators); ACO/Managed Care issues; Fair Housing rules that affect admissions, transfers, dining, rooms and "assistance animals"; tax exemption issues (including property and sale tax exemptions); medical and recreational marijuana; governance issues (including residents on board of directors); and entertainment licensing.
Whew! Wouldn't this be a great list to offer law students thinking about their own career opportunities in law, to help them see the range of topics that can come up in this intersection of health care and housing? The law firm's representative on the panel has more than 20 lawyers in the firm who work solely on senior housing market legal issues.
On that last issue, entertainment licensing, I was chatting after the program with a non-lawyer administrator of a nursing and rehab center in New York, who had asked the panel about whether nonprofits "have" to pay licensing fees when they play music and movies for residents. The panelists did not have time to go into detail, but they said their own clients have decided it was often wisest to "pay to play" for movies and videos. Copyright rules and the growing efforts to ensure payments are the reasons.
The administrator and I chatted more, and she said her business has been bombarded lately by letters from various sources seeking to "help" her company obtain licenses, but she wanted to know more about why. For the most part, the exceptions to licensing requirements depend on the fairly broad definition of "public" performances, and not on whether the provider is for-profit or nonprofit.
It turns out that LeadingAge, along with other leading industry associations, negotiated a comprehensive licensing agreement for showing movies and videos in "Senior Living and Health Care Communities" in 2016. Details, including discussion of copyright coverage issues for entertainment in various kinds of care settings, are here.
November 1, 2017 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, October 27, 2017
Washington DC, Oakland, or Los Angeles Office
Justice in Aging seeks a part-time attorney with a strong commitment to and experience providing legal services for older adults to join our organization. The successful candidate will strengthen legal services delivery to older Americans as part of the National Center on Law and Elder Rights (NCLER), which Justice in Aging administers under a contract with the Administration for Community Living. The attorney will work closely with the Project Manager, Directing Attorney and the entire NCLER team to provide technical assistance, training, and resource support to legal assistance developers, legal services attorneys, and the aging and disability network. The location for this position is Washington, D.C., Los Angeles, or Oakland, CA. Exceptional candidates in other locations will also be considered.
For more information, see the continued job description here. Review of applications will begin on November 15, 2017.
Thursday, April 27, 2017
May is the time of many things. Spring is in full swing, flowers are blooming, we celebrate mothers, the school year is ending, and more. Not only that, May is also Older Americans month and National Elder Law month. The Administration for Community Living (ACL) has a website dedicated to older Americans month. The theme for 2017 is Age Out Loud. Need ideas for events? ACL offers that here. Helpful hints for using social media are offered as well.
Elder Law attorneys... are you considering an event or activity? Need ideas? Take a look at NAELA's toolkit for National Elder Law month. Although it's the end of the academic year, consider involving your students in planning and offering events.
If you have something planned, share it with the rest of us?
Friday, February 24, 2017
Washington State Discusses Expansion of Limited License Legal Technicians to Estate & Health Care Law
In 2012, the Washington Supreme Court approved Admission to Practice Rule 28, which created a new program for authorization of "limited license legal technicians," also known as LLLTs or "Triple L-Ts." The express purpose of the program was to meet the legal needs of under-served members of the public with qualified, affordable legal professionals, and the first area of practice chosen was domestic relations. With that first experience in hand, in January 2017, the Washington State Bar Association has formally proposed expansion of the LLLT program to enable service to clients on "estate and health law."
As described in the Washington State Bar Association materials, this expansion will include "aspects of estate planning, probate, guardianship, health care law, and government benefits. LLLTs licensed to practice in this area will be able to provide a wide range of services to those grappling with issues that disproportionately affect seniors but also touch people of all ages who are disabled, planning ahead for major life changes, or dealing with the death of a relative." The comment period is now open on the proposed expansion.
For more about this important innovation, there was an excellent 90 minute-long webinar hosted by the Washington Bar in February 2017, with members of the Limited License Legal Technician Board explaining the ethical rules (including mandatory malpractice insurance), three years of education and 3000 hours of experience required for LLLTs to qualify. Now available as a recording, the comments from the Webinar audience, including lawyers concerned about the potential impact on their own practice areas, are especially interesting.
Many thanks to modern practice-trends guru, Professor Laurel Terry at Dickinson Law, for helping us to keep abreast of the Washington state innovation.
February 24, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Tuesday, February 7, 2017
Robert Fleming sent out some info on a listserv about a series of videos his firm has created and placed on You Tube to educate clients about specific substantive areas of law as well as answers to practical questions. That got me thinking about the value of such a service to clients and how you could even have a video on what to expect when you go to your lawyer's office for the first time. I wondered if any of our readers also have videos on You Tube (or on your firm's webpage) along these lines. Let us know?
BTW, the Fleming and Curti videos are just the first batch in a series. If you want to be kept apprised of new videos, you can subscribe to the Fleming and Curti You Tube channel (click on the red subscribe button-mine is on the top right hand of the screen).
Monday, December 5, 2016
The 1st Annual Report of the White House Legal Aid Interagency Roundtable (WH-LAIR), Expanding Access to Justice, Strengthening Federal Programs was released last month. A fact sheet accompanying the report is available here. According to the DOJ website, the reason for WH-LAIR is
to raise federal agencies’ awareness of how civil legal aid can help advance a wide range of federal objectives including improved access to health and housing, education and employment, family stability and public safety. The Legal Aid Interagency Roundtable’s message included that providing legal assistance to people who cannot afford it can also have substantial economic benefits by preventing outcomes that are harmful to them and expensive for the communities.
WH-LAIR is made up of a number of federal agencies. The fact sheet highlights some of the accomplishments, including an ElderJustice AmeriCorp which provides teams of attorneys and paralegals to help elder abuse victims. This first report covers the 4 years of operation of WH-LAIR. The report highlights the participating agencies' efforts to incorporate legal aid into their programs. policy recommendations to improve access to justice, furthering strategic partnerships, furthering data collection, evidence-based research, and concomitant analysis. The full report has 3 sections: (1) legal aid overview and its correlation to advancing federal priorities, (2) how the agencies have incorporated legal aid into their programs and (3) future opportunities to continue and expand their work.
December 5, 2016 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management | Permalink | Comments (0)
Friday, October 21, 2016
LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October. This year's theme is "Be the Difference," a call for changing the conversation about aging. I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns. For example, this year's line up of workshops and topics includes:
- General sessions featuring Pulitzer Prize winning journalist Charles Duhigg on the "The Science of Productivity," 2013 MacArthur Fellow and psychologist Angela Duckworth on the the importance of grit and perservance for successful leadership, and famed neurosurgeon and speaker Sanjay Gupta on "Medicine and the Media."
- Hundreds of sessions, organized by "interest groups":
October 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (2)
Wednesday, September 7, 2016
As Baby Boomer partners retire, law firms face increasing costs and client issues was published in the ABA Journal. The article focuses on the upcoming retirement of law partners from the Baby Boomer and Silent Generations cohorts. "Nearly half of the partners in the nation’s top 200 law firms are Baby Boomers or members of the older Silent Generation. And that means there will be a wave of upcoming retirements that will be the most ever experienced by BigLaw...Sixteen percent of partners will retire in the next five years and 38 percent will retire in the next decade, the American Lawyer (sub. req.) reports...."
The impact of these potential retirements will ripple across law firms, including leadership, client relations, and revenues. The firms will also face other costs-the actual costs of paying for retirements from pensions, revenues, return of capital, etc. The article also notes that some firms are taking specific steps to weather this retirement wave by "trying to reduce retirement costs by raising the retirement age; capping the annual payout from annual earnings; or changing the payout formula, and switching to defined contribution plans in which the lawyers carry the risk of a declining market."
Friday, September 2, 2016
I'm frequently asked by current students or recent graduates to serve as a reference and usually I'm happy to do so. I like it when students provide me with basic information, reminding me what classes they took with me, giving me their most recent resume and a copy of their transcript. Students who have taken the time to chat with me outside of class over the course of their law school careers help me provide relevant information to prospective employers about their strengths and plans.
Students who showed initiative in their studies earn strong references. Did the student "coast" with "easy A" courses, or did they seek out the courses truly relevant to their goal positions? Do they have a polished writing sample? Have they taken appropriate leadership roles in organizations? Are they hard working, punctual, willing to do second (third?) drafts?
What skills are you looking for from prospective lawyers?
Tuesday, August 30, 2016
Stuart Bear, a practicing attorney and member of the Minnesota State Bar Association's Elder Law Section, has written an interesting first-person account of "The Practice of Elder Law" for a 2016 issue of the Mitchell-Hamline Law Review. It turns out the 2016 piece is an updated version of a similar article he wrote for the William Mitchell Law Review in 2002, with the same title.
In both versions Bear begins with a narrative about a family member's call to ask him legal advice on how to handle care issues following an emergency hospital admission for the caller's mother. Many of the events Bear relates will resonate, both with the public (especially those of a certain age) and lawyers.
At the same time, I find that some of Bear's words -- in both versions -- could be a springboard for a broader discussion with law students and elder law specialists. For example, he chooses to label the family member initiating the contact as "Responsible Daughter," and he refers to other siblings as "responsible sons." What is the meaning behind this phrase? Is he referring to "morally responsible," "financially responsible," or just generically a "good" person?
Further, in both versions, he offers an important discussion of how he handles potential conflict of interest issues in representing the elder parent where offspring are involved in client meetings and decisions. In the 2002 version, Mr. Bear writes about alternative choices in identifying his client:
This rule [referring to Rule 1.7 of the ABA Rules of Professional Conduct as adopted in Minnesota] is clear that should I choose Mom as my client; it is she whom I serve and no other family member. I take my marching orders based upon Mom’s goals and objectives, serving her sole interests.
Suppose, however, that Mom is not so definitive in articulating her goals and objectives. It may be possible for me to represent the entire family, in light of rule 2.2 of the Minnesota Rules of Professional Conduct, which addresses the lawyer as intermediary.
In the more recent 2016 version of the essay, which is the version I first encountered on Westlaw, Mr. Bear cites a different rule for his authority to represent "the family." He points to Rule 1.14 on representation of a client with "diminished capacity." He writes:
Suppose, however, that Mom was not so definitive in articulating her goals and objectives. It may be possible for me to represent the entire family, in light of Rule 1.14 of the Minnesota Rules of Professional Conduct, which addresses clients with diminished capacity. A comment to the rule provides in pertinent part:The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client's interests foremost and . . . must look to the client, and not family members, to make decisions on the client's behalf.
In the situation involving Mom and Responsible Daughter, and reading the conflict of interest rule together with Rule 1.14, I may act as the lawyer for this situation, provided that no conflict of interest develops
Thursday, August 25, 2016
The Washington Post has a fascinating piece about Wanda Witter's decades-long battle with the Social Security Administration. At the age of 80, Wanda's story appears to be one of success, after many years of living in shelters and on the streets of D.C..
At the shelters all those years, Witter tried to get someone to listen to her. She explained at different offices providing homeless services that those suitcases contained the evidence. She was owed money, lots of money, and she could prove it.
Witter is not a particularly warm or outgoing person. She isn’t rude, just direct. And suspicious of just about everyone. And obsessed with Social Security.
“They kept sending me to mental counselors. I wasn’t crazy. I wasn’t mentally ill,” she said.
With the help of the Washington Legal Clinic for the Homeless, Legal Counsel for the Elderly (LCE) and a dedicated, patient and persistent social worker, Julie Turner, it appears that Ms. Witter is now in her own apartment and will receive some $100,000 in back Social Security payments.
For the full story, read "'I Wasn't Crazy.' A Homeless Woman's Long War to Prove the Feds Owe Her $100,000."
Wednesday, August 17, 2016
Earlier this week, I wrote about a new publication drawing attention to "six" specific areas of need that can helped by a health/law partnership to provide more comprehensive services for the older client or patient. That post inspired one of our regular readers to write about her experiences with an important Consortium effort between the law school at UC Hastings and the medical program at UC San Francisco. Their Medical-Legal Partnership for Seniors Clinic (MLPS Clinic) sounds terrific and, not surprisingly, it attracted the attention of the New York Times from its inception:
Consider the geriatricians working at the Lakeside Senior Medical Center, an outpatient clinic at the University of California, San Francisco. Many of their patients, despite multiple chronic diseases and advanced age, have never filled out power-of-attorney documents or appointed someone to make health care decisions if they are unable to.
Sometimes, the doctors suspect their patients might qualify for public benefits they are not getting, like food stamps or MediCal, the state’s version of Medicaid. Perhaps they face problems with landlords or appear to be victims of financial abuse, or they ought to have a simple will.
In other words, they need lawyers. But trying to get frail, low-income seniors to consult an elder attorney can seem an insurmountable problem. How will they travel to a law office? Or pay a fee that can reach $300 an hour? Even if the doctors can refer them to a legal aid office, will their elderly patients actually make an appointment? Then remember to go?
At Lakeside there is a simpler solution, said Sarah Hooper, who teaches at the University of California Hastings College of the Law. “The physicians do the initial screenings, hear what their patients’ problems are, take the history — and they essentially write a prescription: ‘Go down the hall and see my friends at U.C. Hastings for help with this housing issue,’ ” she said.
Sarah Hooper, Executive Director for the clinic, provided an update, explaining, "We’ve done quite a bit of outreach within MLP and in the healthcare system, but are increasingly realizing that we need to get more elder law attorneys and legal aid advocates energized around this idea." Sarah reports that she'll be attending and presenting at the National Aging and Law Conference in D.C. in October, 2016 and hopes to inspire others to develop similar partnerships.
For more on the UC Hastings-San Francisco MLPS Clinic, read the full New York Times article (first published in 2013) by Paula Spahn, "The Doctor's New Prescription: A Lawyer." For more on the Medical-Legal Partnership concept, visit the website for the National Center for Medical Legal Partnerships.
Monday, August 15, 2016
In July, I drove some 2500 miles, from Pennsylvania to Arizona, to begin an exciting sabbatical opportunity. I enjoy this drive (especially since I tend to do it fairly rarely, perhaps once every seven years). I frequently visit friends along the way, and this summer I was struck by how many friends had saved up tough elder law stories for me.
A theme emerged from their stories. They would tell me, "I have an aging friend (or sometimes a family member or neighbor) who is in serious danger of physical or financial harm, but refuses to cooperate with reasonable plans to solve the problems. What are my options to help this person I care about?"
In one instance, it seemed clear the at-risk individual was affected by some level of cognitive impairment. But how to know for sure? Was the refusal to cooperate with a "better plan" the product of a sound, if somewhat eccentric mind? A neurocognitive assessment seemed warranted. We tried to arrange one. But the earliest appointment available was more than 60 days away and the potential for harm was immediate.
Thus, it was with great interest I read a preview of an article in the upcoming issue of the ABA publication, Bifocal. Professors Marshall Kapp, Shenifa Taite and Gregory Turner outline "Six Situations in Which Elder Law Attorneys and Physicians Caring for Older Patients Need Each Other." They are writing about a critical need for Medical-Legal Partnerships designed specifically to assist older persons and their family members. For example, on the topic of "self-neglect," the authors explain:
Mistreatment of older persons by others is a serious problem. Both the medical and legal conundrums became more complicated, and thus even more amenable to interprofessional collaboration, when self-neglect is entailed. A significant percentage of older adults, mainly living alone, do not regularly attend to their own needs or well-being regarding health care, hygiene, nutrition, and other matters. The majority of cases reported to APS agencies by health and social service professionals and family members are triggered by suspected self-neglect. The health care system expends considerable efforts trying to intervene in these situations to prevent increased rates of hospitalization, nursing home placement, and even death.
In situations involving suspected elder self-neglect, the physician’s role is vital in recognizing the potential problem, characterizing the nature and seriousness of the risk posed, and trying to identify clinically and socially viable intervention strategies. Among other concerns, decisional capacity issues almost always arise in these cases. The physician may look to an attorney for advice about legal reporting requirements or options, as well as the legal boundaries within which interventions may be designed and implemented in a manner that best respects the older person’s dignity and autonomy while protecting the vulnerable at-risk individual from undue foreseeable, preventable self-generated harm.
A growing number of law schools (including Penn State's Dickinson Law) have established Medical-Legal Partnership Clinics, where the collaborative relationship between attorneys and physicians is established in advance of need by clients. Often such clinics focus on younger clients, especially children. Elder-specific services are an important subset of the services that can be provided in a timely and professional setting. For more, read the full Bifocal article published in the-August 2016 issue -- and ask whether such services are available in your community.
August 15, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Housing, Legal Practice/Practice Management | Permalink | Comments (0)
Tuesday, July 5, 2016
Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania
In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute. This year the program, in its 19th year, will take place on July 21-22. It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event. Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida. He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.
Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level. The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars."
I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues. So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.
Here is a link to pricing and registration information. Just two weeks away!
July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Tuesday, May 17, 2016
I've reached that annual ritual known as "let's clean off my desk because that is more fun than grading exams." Always a good opportunity to find a few treasures that escaped my closer attention during the academic year. And along that line, I was intrigued to find the two-part series on "Alternative Litigation Finance," written by Holland and Knight attorneys Robert Barton and Wendy Walker.
What Is Alternative Litigation Finance? The structure of a litigation finance deal can vary significantly depending on the type of case, the company involved, the stage of the case when funding is sought, the amount of money requested, and many other factors. At its core, though, ALF is the advancement of funds to attorneys or clients by a thirdparty company to pay legal fees and costs related to litigation. In general, a litigation funder makes a return on the funds, whether through interest earned over the life of the advance, a multiple of the advanced amount, or a percentage of the recovery paid to the client at the conclusion of the matter. The transaction is typically nonrecourse, meaning the company only recovers to the extent that the client recovers. The funder does not look to the client’s other assets, beyond the settlement or judgment, to satisfy the repayment of the funds. In some circumstances, however, the client may offer additional collateral to secure the amount needed.
To provide maximum protection for the client, at the outset of a new matter, an attorney should request a written confidentiality agreement among the funder, the client, and the attorney. The agreement should provide the express recognition that any nonprivileged, but confidential, information that is shared is done so with the intent to maintain its confidential nature. Although not a full guarantee against future disclosure, such an agreement does demonstrate the intention of the parties and has been a persuasive argument to courts evaluating disputed discovery issues.
These articles originally appeared in the ABA's publication, Probate and Property, with the second of the two articles published in the November/December 2015 issue. (The good news is that by waiting a bit, both of these articles are now available on the web, and not just through the ABA subscription.)
Friday, April 29, 2016
It seems nursing home operators are calling upon some of the same "trade practice" laws they are sometimes accused of violating, in an effort to thwart what the operators see as misleading advertising by personal injury attorneys.
One of the latest suits has reached the Georgia Supreme court, where the Mississippi-based law firm of McHugh Fuller Group is seeking to overturn a lower court's injunction preventing it from running a statewide ad campaign, including full-page color ads, seeking potential clients who "suspect that a loved one was NEGLECTED or ABUSED" by a nursing home run by PruittHealth, Inc. From an April 27, 2016 Georgia Courts' summary of parties' arguments before the high court:
PruittHealth sued the law firm under the Georgia Deceptive Trade Practices Act, which authorizes a court to issue an injunction (a court order requiring a certain action be halted) against anyone who uses someone’s trade name without permission if there is even a “likelihood” that the use will injure the business reputation of the owner or dilute its trade name or mark. The trial court entered a temporary restraining order against the law group, scheduled a hearing and notified the parties that it intended to consider PruittHealth’s request for a permanent injunction. The trial court issued another order on June 1, 2015, permanently stopping the law group from running ads that used PruittHealth’s trade names, service marks, or other trade styles. The law group filed a motion for reconsideration, which the trial court denied. The law firm is now appealing to the Georgia Supreme Court....
The law group argues, among other things, that the court erred in determining the ads violated Georgia Code section 10-1-451(b), which is called Georgia’s “antidilution statute.” That statute says dilution occurs “where the use of the trademark by the subsequent user will lessen the uniqueness of the prior user’s mark with the possible future result that a strong mark may become a weak mark.” The law firm argues that it is not eroding the strength of PruittHealth’s mark, but is only identifying specific nursing homes against which it is accepting cases, and that PruittHealth failed to demonstrate that actual injury occurred as a result of the ads.
This isn't the first time that the McHugh Fuller Law Group has been on the receiving end of a lawsuit by a nursing home company. In February 2015, Heartland of Portsmouth in Ohio and McHugh Fuller Law Group were in federal court arguing about diversity jurisdiction over Heartland's claim the law firm was using "false and misleading advertising in order to encourage tort litigation" against the nursing home's operations in Ohio. Similar litigation, seeking injunctive relief, was underway by Genesis Healthcare Corporation against the McHugh Fuller firm in West Virginia in 2007, although it is unclear from my research whether either of those cases reached a final resolutions.
My thanks to Professor Laurel Terry, Dickinson Law, for pointing me to this ABA Journal post that encouraged my search for more about these cases.
Wednesday, April 27, 2016
Southern California attorney and mediator Jill Switzer, who writes columns for Above the Law as "Old Lady Lawyer," uses lyrics from Kenny Rodger's The Gambler as part of her theme in a recent essay. She asks whether lawyers prepare themselves, not just financially, but emotionally, to retire at the right time. Suggesting the answer is "probably not," Switzer draws on data from a recent California State Bar survey:
On its website, the State Bar of California recently asked its lawyers “how long do you plan to keep practicing law?” The poll was completely unscientific, as it didn’t tally the results by age, years in practice, or any other criteria whatsoever. However, the result was not surprising, at least to this dinosaur: more than fifty percent of the responding lawyers said they would continue to practice as long as they are able. (Ten percent or so said they were looking to switch careers as soon as possible, approximately twenty percent said that they hoped to take early retirement, and approximately fifteen percent said they’d practice until they turned sixty-five. Note to millennials: the retirement age at which you can start receiving full Social Security benefits is creeping upward.)
And speaking of "farewell," did you notice that Above the Law recently terminated the "comments" option for readers of the frequently sharp-tongued blog? Details here, and I suspect a few readers might view this change as somewhat ironic.
Monday, April 25, 2016
Last week 12 lawyers who are deaf or hard of hearing were sworn into the Supreme Court Bar. That in and of itself is very special. It was made more so by the actions of Chief Justice Roberts. Chief Justice Roberts learned some sign language for the occasion; "[a]fter they were presented to the court for admission, Roberts signed in American Sign Language: 'Your motion is granted.'” Well done Chief Justice.
Tuesday, March 22, 2016
Legal Service programs around the country have constant challenges in securing adequate funding for operations and I'm often struck by the ingenuity needed to keep programs afloat. I was struck by a recent "Access to Justice" panel report in Montana that highlighted the needs of rural persons, including older persons at or near the poverty line, living in isolated circumstances. Even with pro bono hours contributed by law firms, under-funding remains a serious problem. KTVQ.com from Billings, Montana reported:
One witness, identified only as Vicky, said she fought a two-year battle with Medicare before obtaining a $3,000 scooter that helps her carry on daily life while coping with cerebral palsy. “I didn’t know where to go or what to do,” she said. Vicky was among the lucky few Montanans who get legal help through the Montana Legal Services Association, said Alison Paul, director of the association....
Elderly Montanans face similar problems, said Todd Wood, director of the Area II Agency on Aging, which provides services over an area larger than West Virginia. Federal funding for the program has declined in recent years while state funding has slowly increased so that the agency now gets about two-thirds of its funds from the federal government and a third from state government.
But those sources account for only $5 million of the agency’s $9 million budget. The rest comes from contributions by clients for such services as meals and transportation. Without those contributions, the program probably would fold within five months, Wood said. He noted that many elderly residents live in deep rural areas, some without electricity or telephones. They often need help with such legal matters as wills, power of attorney and guardianship problems, he said, but they often are unaware of their rights or unable to find help.
“Their mailman might be the No. 1 contact in the course of the day,” he said.
Providing legal help for seniors is especially critical in Montana, which faces a coming tidal wave of elder care needs, said Gary Connelley, a fulltime pro bono attorney for the Crowley Fleck law firm. By 2020, Montana is expected to be third in the nation in the number of people per capita age 65 or older, he said. But even though Crowley Fleck donated nearly 5,000 hours of free legal help in 2015, Connelley said, it turns away eight or nine of every 10 requests it gets for free legal assistance.
For more read, "Legal Help for Poor, Disabled Often Hard to Come By."
For another perspective on the intense consequences for entire families from under-funding of legal services, this time on the criminal justice side of the bar, see the New York Times' recent article, "In Louisiana, the Poor Lack Legal Defense." Are you getting a tax refund this year? An opportunity to make a tax-deductible contribution to a Legal Aid or Service program near you!