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!
Wednesday, March 16, 2016
A recent opinion in Matter of L.H (M. H.), a contested guardianship matter that was eventually settled, provides a window into legal fees. In this New York case, following a settlement, the court was asked by the parties to determine reasonable fees to be paid to the attorney who served as the "court evaluator" and the attorney who successfully represented the Alleged Incapacitated Person (AIP) in resisting the guardianship.
The court noted the guardianship was part of larger family disputes following a divorce. As part of the settlement, the petitioner, a family member of the AIP, withdrew the petition for appointment of a guardian. The parties stipulated that the fees could not exceed $50,000. That amount was set aside for any payments ordered by the court, funded by a trust held by the petitioner (not the AIP).
The court considered this withdrawal to be the "functional equivalent" of a dismissal, giving the court discretion under the statute to allocate fees in such proportions as it deemed just.
As required by New York Law, the court made detailed findings. The court concluded:
- "[The evaluator] performed in an extraordinary manner under difficult circumstances ... [and her] report focused a spotlight on the amended petition's lack of merit, and was instrumental in resolving this proceeding." The court awarded the evaluator $22,748 for 82.75 hours of professional services at $275 per hour.
- "[T]he efforts [of the attorney for the AIP] led to a positive outcome for the AIP, with her civil liberties fully intact, there being no need for a guardian for her. Attorneys who have similar experience and status within the guardianship bar charge between $400 and $600 dollars per hour for their services. However, in view of the agreed upon $50,000 cap on the possible awards for the feeds incurred... [the attorney for the AIP] is awarded $27,051.25... as reasonable compensation (at $335.00 per hour) for 80.75 hours of legal services."
The court observed that the lawyer for the AIP "is one of the preeminent guardianship and elder law attorneys [in] New York State."
Tuesday, February 9, 2016
As someone who developed and led an Elder Protection Clinic staffed by law students for more than a decade, I was interested to see that the latest issue of ABA's Bifocal publication includes an article titled "Ethical Challenges of Using Law Student Interns/Externs to Expand Services to Low-Income Older Adults." The article was earlier used as presentation materials for the 2015 National Law and Aging Conference in Washington, D.C., in October of 2015.
The writers outline the potential for students and recent graduates to serve identified legal service needs and use the experience of Elder Law of Michigan,Inc. to demonstrate how one model, with a Legal Hotline, has evolved over time:
In 2013, we switched to a model that placed the law students directly on the front lines answering calls to the legal hotline. In 2014, almost 25% of the calls handled by the hotline were done by either a law student or recent college graduate. This means that without this resource, almost 1,500 seniors would not have received service in 2014.
At first glance, you would wonder why we didn’t just use more law students to help more clients. After all, if 25% of the cases is great, wouldn’t 50% of the cases be better? Not really. Here are a few of the unintended consequences that resulted from our increased use of law students.
The amount of staff time needed to train and supervise law students increases considerably. For each student who works on the legal hotline, we need a third of a full-time employee's time for supervision. There was a diminishing need for more supervision once we had three students working at the same time. So, for us to minimize the additional staff time needed, we scheduled at least three law students at the same time.
Client donations dropped. After careful research, we found that clients who called and were assisted by a law student didn’t feel the need to donate to the organization because ELM was getting free help and the service provided was part of the law school experience. So clients were less likely to donate to us if they were assisted by a law student.
More staff wanted to be involved with the law students. We found that as our law student program grew, more of our staff wanted to be involved with the program. They liked the energy that was created by this group each day. (We had 11 law students each semester, so there was always a lot of activity.) Not everyone can work with the law students every day. They have to share!
Monday, February 8, 2016
As described recently by the ABA Journal, Avvo, founded in Seattle by a self-described "tech-savvy lawyer," Mark Britton, in order "to make legal easier and help people find a lawyer," is expanding its offerings of "fixed-fee, limited-scope" legal services. The ABA Journal reports:
Avvo first got into the business of offering legal advice last year when it launched Avvo Advisor, a service that provides on-demand legal advice by phone for a fixed fee of $39 for 15 minutes. With this new service, Avvo will determine the types of services to be provided and the prices. Attorneys who sign up will be able to select which services they want to offer. When a client buys a service, Avvo sends the client’s information to the attorney. The attorney then contacts the client directly and completes the service.
Clients will be able to choose the attorney they want from a list of those within their geographic area who have registered to participate. Clients pay the full price for the service up front.
After the service is completed, Avvo sends the attorney the full legal fee, paid once a month for fees earned the prior month. As a separate transaction, the attorney pays Avvo a per-service marketing fee. This is done as a separate transaction to avoid fee-splitting, according to Avvo. Attorneys pay nothing to participate except for the per-case marketing fee.
Some practitioners undoubtedly are nervous about the effects of this format, expressing concern about quality and "price-point" effects. Others see this as an option for the known, huge number of low and modest income persons, who never communicate with attorneys, for a host of reasons including concerns about price.
Will older clients and their families, facing a range of transactions that could benefit from legal assistance, from POAs to contracts for care, use Avvo?
Sunday, January 3, 2016
ElderCounsel CEO Valerie Peterson and practitioner Cary Moss are offering what looks to be a free 30 minute webinar on Wednesday, January 6 on "Debunking Myths: What It Really Means to Practice Elder Law."
Intriguing and perhaps a good introductory assignment for law students taking an elder law course?
Monday, December 28, 2015
Sad news about manipulation by attorneys of older clients, and about specific individuals who have been sanctioned recently for their abuse:
- Florida Supreme Court "permanently disbarred" Cape Coral Florida attorney William Edy for theft from his clients. Before being charged with second degree grant theft from clients, Edy apparently held himself out as a trustworthy elder law attorney, writing a newspaper column and even commenting on financial abuse of the elderly.
- New Jersey Supreme Court suspended New Jersey attorney William Torre for one year, while sanctioning his conduct in "borrowing" money from a "vulnerable" 86 year old client, acting in his own self-interest and failing to repay her in a timely and appropriate manner.
The New Jersey court, writing unanimously, observed:
The Court considers respondent’s conduct against the backdrop of the serious and growing problem of elder abuse. As the population ages, and more people suffer health problems, it is not uncommon for family members to seek the appointment of a guardian to oversee the finances of an incapacitated loved one. Others, like M.D., turn to family or professionals for help and execute powers of attorney in favor of a relative, friend, or trusted lawyer. In those situations, the vast majority of attorneys perform honorably and act in a manner consistent with the highest ethical standards. But regrettably, as more seniors have needed help to manage their affairs, allegations of physical and financial abuse have also increased.
In a News-Press article about the Florida disbarment, Professor Geoffrey Hazard (Emeritus at Penn Law, Southern California Law and Yale Law) is quoted as noting that places with large numbers of retirees, such as Southern California, Florida and Arizona, have a "greater risk of attorney misbehavior," in part because of isolation from children and friends with whom they can discuss situations.
Along the same lines of financial misconduct by "professionals," a Texas psychiatrist, Dr. Robert Hadley Gross, was recently sentenced to "nearly six years in prison" for submitting false claims for services to residents at a nursing home, individuals who were shown to be either dead or discharged.
Monday, December 21, 2015
The November/December 2015 issue of the ABA magazine (Volume 32, Issue 2) GPSOLO, the publication for members of the Solo, Small Firm and General Practice division of the American Bar Association, is devoted to Elder Law. The issue can be found on-line (and viewing does not seem to be restricted to division members!). The articles are also available on Westlaw.
- How to Make Money Practicing Elder Law, by Andrea G. Van Leesten, who practices in California and who is the 2015-16 Diversity Director for the Division;
- Representing Elder Physical Abuse Victims, by California practitioner Mark Redmond, who has "focused primarily on representation of elders in cases of physical and financial abuse for the last 15 years;"
- Advocating for Elders Suffering Financial Abuse and Exploitation, by Nicole Le Hudson, who focuses her San Diego practice on disability and elder law and who is a "member of the court-appointed attorney panel for conservatorships;"
- The State of Age Discrimination Law: An Update, by Brian McCaffrey, who focuses his New York practice on employment litigation;
- Estate Planning for Old Age and Incapacity, by Sheila-Marie Finkelstein, who practices estate planning in Irvine, California;
- Counseling Clients about Health Care Toward the End of Life, by Sally Balch Hurme (who I just discovered while reading her article recently retired from 23 years of consumer advocacy with AARP -- but who is still clearly very active in elder law, thank goodness!);
- How to Fund Long-Term Care Without Medicaid, by Eileen Walsh, from Louisville, and I have to admit I read her article first - she explores Medicare, insurance, VA benefits and reverse mortgage options); and
- What Every Lawyer Needs to Know About Planning for Retirement, by Cynthia Sharp who "works with motivated lawyers seeking to generate additional income."
Charlie Sabatino brings to bear his 30 years of experience and careful thought to the question of whether having older clients automatically means you are practicing "elder law," in his column "GP Mentor: When Does Serving Older Clients Become Elder Law?" Hint? The answer may depend on whether you are working in the best interests of the senior.
In addition, there is a great Resource Guide of recent texts on Elder Law and the Division Chair's essay on recognizing Elder Abuse. PLUS, there's a detailed shoppers's guide to cameras, mobile phones ans more in the 2015 Tech Gift Guide -- for those of you still searching for gift ideas for your favorite elder law attorney!
Thursday, December 17, 2015
Is a Court-Appointed Guardianship, Using Paid, Private Guardian, "Worse Than Prison"? Latest from Nevada
As we've reported several times over the course of the last year, concerns about cost, misuse of authority, and lack of appropriate oversight of court-appointed guardians for adults in Clark County (Las Vegas), Nevada, have lead to a state-wide inquiry into how better to protect the civil rights of alleged incapacitated persons. According to news reports recent proceedings before the Nevada Supreme Court Guardianship Commission, one judge described past neglect of the alleged incapacitated individual's rights as being "worse than being sent to prison."
A frequent concern raised by family members has been the cost of court-appointed guardians, particularly for individuals or family members who disagree with either the need for a guardianship or the scope of the guardian's powers over the individual or the individual's assets. During the most recent proceedings addressing potential solutions, judges and others argued that a solution to some of the abuses was court-appointment of a lawyer at the outset of any guardianship proceeding to represent the interests of the individual. Thus, there is some irony, that an additional layer of potential costs -- the cost of the appointed counsel -- would be argued as part of the solution. On the other hand, limiting the amount of money such an attorney can charge (whether paid from the individual's estate or from public funds), can have the practical effect of what might be described as "de minimus" representation.
The Nevada proceedings have attracted considerable attention from media nationally -- and from family advocates challenging court-supervised guardianships in other states and who are sharing information about problems and potential solutions. My thanks to Rick Black for sharing news from Nevada.
December 17, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (4)
Monday, December 14, 2015
I have often been struck by how frequently attorneys I know began working in elder law after their personal struggles to find resources to help an aging member of their own family. A slightly different family-inspired path is behind the story of attorney Joy Solomon. She at first resisted.
In the midst of my raging adolescence in 1979, my mother was devoting most of her time to a Jewish nursing home in Baltimore where she was the board president.
I would come home after school, make instant mashed potatoes, settle into the comfort of our gray velour sofa and watch “General Hospital,” enraptured. Family dinner often included stories about Mom’s afternoon with the old people. In her mind, the elderly were to be revered as the bearers of history, lives lived and lessons learned; in my self-centered, adolescent thinking, old people were fragile, needy and dying. I felt more connected to soap stars like Luke and Laura than to aged Jewish grandmothers. I told myself that I’d never end up working in a nursing home like her. No way....
To continue reading how Joy found her mission and is now a part of the team at the Harry and Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home in Riverdale, the Bronx, read Coming Full Circle to Help Her Elders, from the New York Times.
Special thanks to Karen Miller, a former administrative law judge from New York, for sharing this story.
Thursday, December 10, 2015
While researching potential fact patterns to use in my Wills, Trusts and Estate exam (which the students have now taken, although I remain in the Valley of Doom, for those grading essay exams), I came across a recent American Law Institute-CLE course with a very useful outline of "hot" topics in estate, trust and conservator litigation, prepared by Los Angeles attorneys Terrence Franklin and Robert Sacks. Also available on Westlaw as SW037 ALI-CLE 923, from June 2015, their list of hot topics includes:
- Legal Standards for Lack of Mental Capacity: contrasting the standards used for assessment of capacity to make wills and revocable trusts, versus more immediate lifetime gifts, and pointing to the Commentary to Uniform Trust Code Section 601 that observes that "Given [the] primary use of the revocable trust as a device for disposing of property at death, the capacity standard for will rather than that for lifetime gifts should apply."
- Legal Standards regarding Undue Influence: noting that "will and trust contests rarely rely on either a lack of capacity or undue influence claim alone. Usually, these claims are filed together, on the theory that even if the testator had the minimum level of capacity necessary to execute a valid will, her capacity was so diminished that she was more susceptible to the undue influence alleged. And California cases for decades have shown the tough burden a contestant has in contests on grounds of lack of capacity and undue influence."
- Pre-Death Contests: discussing standards used for decision-making by appointed guardians or conservators, including "substituted judgment," as well as states that have adopted statutory procedures that "expressly allow for pre-death determination of the validity of a will or trust," including Arkansas, Alaska, North Dakota and Ohio. See e.g., Ohio Rev. Code Ann. Section 2107.081 to 085.
- Intentional Interference with Expected Inheritance: summarizing the influential 2012 case of Beckwith v. Dahl, recognizing the tort of IIEI in California.
In the outline linked above, the authors also addressed practical estate planning topics, such as the importance of asking "why" when crafting dispositive provisions in estate documents, whether to videotape execution of testamentary documents, and whether to use "no contest" clauses.
December 10, 2015 in Cognitive Impairment, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, November 5, 2015
Are There Limitations on Estate "Re-Planning" Following Adult Adoptions, Especially for Same-Sex Couples?
In my course on Wills, Trusts and Estates, students always seem to be intrigued by "adult adoptions." There can be a variety of reasons for an adult adoption, often tied to estate planning goals, including attempts to create statutory heirs that can nullify challenges by other family members to bequests in traditional estate documents, such as wills or trusts on the grounds of "undue influence." Sometimes the cases are connected to sad facts, such as the troubled life of tobacco heiress Doris Duke, who at age of 75 adopted a much younger woman, but came to regret that fact, leading to a mostly unsuccessful attempt at disinheritance. Robert Sitkoff's casebook on Wills Trusts & Estates has a fascinating profile of the Duke case, even though the original reasons for the adoption were not entirely clear.
In the news this week is a less unhappy, but still complicated case -- and I imagine there could be similar cases around the country -- where in 2012, after forty years as a same-sex couple, a retired teacher adopted his partner, a retired writer:
Now, they're trying to undo the adoption to get married and a state trial court judge has rejected their request, saying his ability to annul adoptions is generally limited to instances of fraud.
"We never thought we'd see the day" that same-sex marriage would be legal in Pennsylvania, Esposito, 78, told CNN in a telephone interview. The adoption "gave us the most legitimate thing available to us" at the time, said Bosee, 68.
Thursday, October 22, 2015
In one of those feature articles that The New York Times does so well, N.R. Kleinfeld reports The Lonely Death of George Bell. It is a sad story, as Mr. Bell died in his apartment at the age of 72 and no one "missed him," so his body was not discovered for days. You may have stopped reading precisely because it is such a sad story. But, at the same time, George's story is a surprising tale of the potential consequences of dying alone. The article lays out the layers of necessary decision-making, from the simplest of questions -- where will George be buried -- to the complex, where public authorities must hunt for an executor and for beneficiaries named in George's 30-year old will. Then, in turn they must hunt for their heirs, when it turns out that this modest man's death left behind almost a half million dollar estate and few living connections.
My thanks to Penn State law student Kevin Horne who shared with me the link to this interesting story. As he points out, this story gives another side to our course on Wills Trusts & Estates.
Wednesday, October 21, 2015
The ABA Section on Family Law has devoted the entire Fall 2015 issue of its Family Advocate magazine to "Crossing Paths with a Trust." The paper copy of the issue just appeared on my desk. The opening editorial advises family law attorneys advising clients considering divorce not to fear trusts:
Lawyers who simply take a deep breath and read the trust will often be surprised to learn that they have in their hands a road map for how assets will be managed, who gets what, when they get it, and under what terms.
The articles in the issue include a "plain English guide to trusts as a means of orchestrating assets in divorce cases," how trusts can interact with disclosure requirements for premarital agreements, how to address equitable division of interests assigned to trusts, the use of child support or alimony trusts, and the unique potential advantages for using trusts for "special needs" planning for disabled children. The issue ends with a bonus -- a primer on "will basics."
The articles underscore what I sometimes find myself saying to law students, that courses on "wills, trusts and estates" are about advanced family law issues, and that if families fail to address disputes among family members while they are still living, the issues may not be any less complicated when the asset-holding family member passes away.
The entire issue seems like a good resource for a wide audience, including law students. Unfortunately, the on-line version of Family Advocate issues is restricted to ABA Family Law Section members, at least during the first few weeks of publication. Apparently you can purchase paper copies (see for example the rates for the previous issue, for Summer 2015) , including bulk orders, although I find there is often a lag time for specific issues to become available to purchase. I guess you have to keep checking!
October 21, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, October 12, 2015
Last week was "Mental Illness Awareness Week," and in recognition of that fact, Maryland Attorney Michael E. McCabe, Jr. posted an important Blog item on representing clients with diminished capacity. I'm impressed that discussion of the need for lawyers to appreciate the potential for mental health to impact any aspect of the lawyer-client relationship is written for the IPethics & INsights blog, his law firm's " resource for intellectual property rights attorneys."
In other words, the topics of mental health and legal capacity are not exclusively the province of estate planners, elder law attorneys, disability law practitioners or poverty law experts.
He notes at the outset:
According to the leading mental health organization in the country, 1 in 5 adults in the United States suffers from some form of mental health condition or disorder. Thus, it is likely that at some point in your legal career, you will be representing an individual client or a representative of a corporate client, who suffers from some degree of mental illness.
Attorney McCabe points to ABA Model Rule of Professional Conduct 1.14 as guidance, while also suggesting:
A two-prong test may be useful when determining the existence and degree of a client's mental illness:
(1) "take reasonable steps to optimize capacity," and
(2) "perform a preliminary assessment of capacity."
Attorney McCabe also links (although not directly attributing his recommendation) to Charlie Sabatino's important 2000 article, "Representing a Client with Diminished Capacity: How Do You Know It And What Do You Do About It?"
I suppose I do have a small quarrel with the author, however. The title of his post is "What They Didn't Teach You in Law School: Representing Client with Diminished Capacity." Mr. McCabe graduated law school in 1992, and perhaps diminished capacity was not well addressed by law schools at that time. Although it could be my bias as an academic interested in aging policy, I believe law schools have changed with the times. Certainly I find myself teaching the importance of "capacity" issues and the attorney-client relationship, and I start this in my 1L course on Contracts, while digging deeper into the field of mental health impacts in Wills/Trusts/Estates and, of course, Elder Law. Other faculty members address mental health in a variety of other contexts, including courses on education law.
If Mr. McCabe is right that law schools are not currently addressing the complex concerns attached to mental health, then certainly the moral from his column is "we need to do better."
My thanks to Attorney McCabe, and to Dickinson Law Professor Laurel Terry for sharing his article.
October 12, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Property Management | Permalink | Comments (0)
Tuesday, September 29, 2015
Over the weekend I caught an interview with Brian Liu, co-founder of LegalZoom, broadcast on From Scratch, a radio show about "entrepreneurial life." The host, Jessica Harris, who has an interesting business background of her own, is a very good interviewer, encouraging guests to explore strengths and weaknesses of their ideas, moving from first inspiration to current goals. She also asks "work/life balance" questions, often getting candid admissions of the private struggles some have to achieve balance.
I was intrigued with Liu's central premise, that his company does not compete, at least not directly, with law firms for business. Rather, he believes that the vast majority of clients are drawn to his company precisely because they would never go to a lawyer, whether because of cost, unease about attorneys, or perceptions about value.
It was also interesting to hear that Legal Zoom's first ten clients, accessing the company's on-line document portal on a Friday night, were seeking "living wills." That fact tells us a lot about underserved legal and health care needs, doesn't it.
September 29, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Web/Tech | Permalink | Comments (0)
Thursday, September 10, 2015
A New York ethics opinion issued July 27, 2015 is a useful reminder of the possibility -- indeed probability -- that law firms well known for specializing in elder law or estate planning may be approached by successive generations of family members, thus creating potential issues of confidentiality (and more).
In the matter under consideration, involving a small law firm that practiced "primarily in the fields of estate planning and administration, trusts and elder law," two of the lawyers had a long relationship with a "father," including representation of the father in a contested adult guardianship case.
Later, a different lawyer in the firm met with a "son" of the father to discuss personal estate planning following a "public seminar" hosted by the firm. That lawyer did not conduct a "conflict check" before a first meeting, one on-one, with the son. (One can see how a law firm might be tempted to skip or delay a step in conflict-checking when organizing these kinds of business-generating efforts, a potential not directly addressed in the New York opinion. Would disclaimers or warnings about "client relationships" not forming immediately remedy potential problems -- or perhaps make them even more complicated?)
The law firm, upon discovering the potential for concerns, made the decision not to go forward with representation of the son, and then asked the New York State Bar Association's Committee on Professional Ethics for guidance on whether rules either "required" or "permitted" the law firm to disclose to the father the son's request for representation, or whether the firm was prohibited from further representation of the father.
For the New York ethics committee's interesting analysis, see New York Ethics Opinion 1067. For a contrasting "multi-generational" representation problem involving a husband's undisclosed "heir," see A. v. B., decided by the New Jersey Supreme Court in 1999, a case that is a good springboard for discussion of professional responsibilities for attorneys in the course on Wills, Trust & Estates (as I discovered in the Dukeminer/Sitkoff textbook).
Wednesday, August 26, 2015
Traditional estate practice attorneys are facing ever-increasing competition from commercial sites offering document preparation for set fees, usually through use of on-line templates for wills and similar estate planning documents. LegalZoom, Inc., the brainchild of attorneys, including Brian Lee and Robert Shapiro (of O.J. Simpson trial fame) and begun in 2001, is one of the biggest commercial document companies.
Traditional lawyers point out that they provide not just "documents" but core counseling and advice about the larger issues that may be involved in proper estate planning. Recently, however, I've noticed LegalZoom is also touting availability of "legal help" through its television commercials, with the tagline "Real Attorneys. Real Advice." Here's a link to one recent example.
The small print at the bottom of the page at the end includes full names and locations of the several attorneys who say "hi" during the television commercial, plus the following:
"This is an advertisement of a prepaid legal services plan, not for an individual attorney. This is not an attorney recommendation or legal advice. No comparative qualitative statements intended.... For the attorneys' full addresses, a list of non-appearing attorneys and more information, please visit legalzoom.com."
Earlier this year, LegalZoom filed an antitrust lawsuit against the North Carolina Bar, asserting that the organization was "unreasonable barring" the company from offering a prepaid legal services plan in its state. The suit cites the February 2015 decision by the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission. LegalZoom filed an amicus brief in that case outlining its theory that misuse of state bar regulatory authority to restrict access to legal advice harms consumers.
August 26, 2015 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (0)