Tuesday, September 29, 2015

Does LegalZoom Compete with Law Firms? Co-Founder Brian Liu Says "No"

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

New York Ethics Opinion Addresses Potential Conflicts in Elder Law Practice

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). 

September 10, 2015 in Books, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, August 26, 2015

LegalZoom Touts "Legal Advice"

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 CommissionLegalZoom 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)

Friday, August 14, 2015

Should "Springing" Powers of Attorney (Once Again) Be the Norm?

In a recent article for the University of Baltimore Law Review, John C. Craft, a clinical professor at Faulkner University Law, draws upon the history of legislation governing powers of attorney to advocate a return to effectiveness of the POA being conditioned by an event, such as proof of incapacity. Professor Craft, who is the director of his law school's Elder Law Clinic, writes:

Section 109 in the Uniform Power of Attorney Act should be revised making springing effectiveness of an agent's powers the default rule. Springing powers of attorney provide a type of protection that may actually prevent power of attorney abuse. The current protective provisions in the UPOAA focus in large part on the types of abuse that occur after an agent has begun acting for the principal. As opposed to arguably ineffective “harm rules” intended to punish an unscrupulous agent, springing powers of attorney are a type of “power rule” intended to limit an agent's “ability to accumulate power . . . in the first place.” The event triggering an agent's accumulation of power -- the principal's incapacity -- may never occur. A financial institution may prevent an unscrupulous agent from activating his or her power and conducting an abusive transaction simply by asking for proof that the principal is incapacitated. In addition, making springing effectiveness the standard serves the goal of enhancing a principal's autonomy.

For his complete analysis, read Preventing Exploitation and Preserving Autonomy: Making Springing Powers of Attorney the Standard.

August 14, 2015 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, August 12, 2015

Borchard Center Announces 2015-16 "Law and Aging Fellows"

Mary Jane Ciccarello, co-director of the Borchard  Center on Law and Aging, recently sent us the latest news on the fellowships announced for the 2015-16 grant year.  There is strong competition for these key sources of funding for recent law school graduates to engage in new or expanded initiatives in law and aging.  The new fellows include: 

  • Krista Granen, a 2015 University of California-Hastings graduate, who will partner with Bay Area Legal Aid in San Francisco to implement a multi-faceted project to provide direct services, establish a mobile “pop-up” clinic to accommodate seniors’ physical and capacity based impairments, and promulgate resource materials in the intersectional areas of consumer protection and Social Security. Her project will promote economic security for low-income seniors residing in Santa Clara County, a county that simultaneously experiences extreme class stratification and a dearth of necessary legal services. 
  • Jennifer Kye, a 2014 UVA graduate, at Community Legal Services of Philadelphia, who will implement a three-part project focused on increasing vulnerable seniors’ access to Medicaid home and community-based services. Her project will include: (1) systemic advocacy at the state level to expand the availability and improve the delivery of these critically needed home-based services; (2) development of a self-help manual that will allow seniors to advocate for themselves in accessing services in their own homes; and (3) direct representation of low-income older adults in obtaining and keeping home-based services and supports.


  • Stephanie Ridella Vittandsm, a 2014 Chicago-Kent graduate, who will continue her work at the Chicago Center for Disability and Elder Law, advocating for low-income seniors in housing matters, including eviction defense, public housing voucher termination defense, and representing seniors evicting tenants or family members from their homes. By prioritizing time-sensitive housing cases and conducting expedited intake interviews, she can continue to intervene in emergency housing cases.  She will continue to administer the Pro Se Guardianship Help Desk, which provides assistance to petitioners seeking guardianship over family members.   


  • Shana Wynn, a 22015 graduate of North Carolina Central Law School, who joins Justice in Aging (formerly the National Senior Citizens Law Center) and the Neighborhood Legal Services Program (NLSP) in Washington, DC.  Ms. Wynn will work closely with Justice in Aging attorneys to formulate policy recommendations to improve the Social Security Administration’s (SSA) representative payee program for Supplemental Security Income (SSI) recipients and Social Security beneficiaries. Ms. Wynn will partner with NLSP to provide pro bono services to low-income seniors and secure access to healthcare and public benefits such as SSI. The primary goal of the project is to identify and address problems relating to SSA’s representative payee program as a means to better protect our most vulnerable seniors from misuse of their modest incomes.
Congratulations to these hard working Fellows.  For law students or recent graduates thinking about applying for a future Borchard Law and Aging Fellowship grant, a reminder that the annual deadline is in mid-April.  Start your planning now!

August 12, 2015 in Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, Housing, Legal Practice/Practice Management | Permalink | Comments (1)

Wednesday, July 22, 2015

Comparative Law: Practice Guide for Representing Vulnerable Clients in England & Wales

Law Society England Wales

The Law Society of England and Wales recently issued a "Practice Note" for lawyers (or rather, "solicitors") on representing vulnerable clients, including but not limited to clients with dementia.  The guideline reflects research that demonstrated "solicitors need to adapt their practices to identify and meet the needs of vulnerable clients." The guide recognizes that "vulnerable" clients may include a range of persons, and may involve physical or mental capacity issues of varying degrees.

The guide warns that failure to "meet the needs of a vulnerable client" may trigger:

  • A discrimination claim or a claim for a failure to make reasonable adjustments under the Equality Act 2010, which could result in sanctions including damages.
  • A claim for damages or compensation against you or your firm if you act on the instructions of a client lacking capacity to make relevant decisions, having failed to satisfy yourself as to the client's capacity to instruct you or failing to document your assessment of the client's capacity, leaving the validity of the transaction open to challenge.
  • A complaint against you to the Legal Ombudsman, which could result in your name being published and/or you having to pay financial compensation. The ombudsman will refer complaints about discrimination to the SRA.
  • Reputational risk - your practice's reputation is inextricably linked to the way in which you treat your clients. Conversely, a practice with an inclusive ethos will not only attract a wider group of clients but also a more diverse workforce bringing benefits to the business.

The guide has a detailed discussion of mental capacity issues, including the attorney's need to consider the following four factors:

Continue reading

July 22, 2015 in Cognitive Impairment, Discrimination, Ethical Issues, International, Legal Practice/Practice Management | Permalink | Comments (0)

Friday, July 17, 2015

Friday Fun: Therapy Pets Make a Difference in LTC Settings

Miss Thelma LouElderLawGuy Jeff Marshall Esq. has a staffer who works with therapy dogs in nursing homes and Jeff posted Josephine Reviello's interesting essay on her experiences. She begins with a surprising history of the "case law" behind the nickname for dogs as "Man's Best Friend:"

The popularization of the phrase is actually said to have come from an attorney, George Graham Vest. In 1870, Vest was in the courtroom representing a farmer who was suing for damages after his dog “Old Drum” was shot by a neighbor. Toward the closing of the trial, Mr. Vest said, “A man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fiercely, if only he may be near his master’s side. He will kiss the hand that has no food to offer, he will lick the wounds and sores that come in encounters with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert, he remains. When riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens.” 


And later, the phrase shortened to “man’s best friend”.  Vest won the case and also won its appeal to the Missouri Supreme Court. A statue of the dog stands in front of the Warrensburg, Missouri courthouse.

The author's dog is an Old English Sheepdog, Hannah Bear.  I can just imagine how popular she would be! 

Here at Dickinson Law, my colleague Pam Knowlton has three experienced therapy dogs.  Pam commented how the experience of working with her dogs in the nursing home also helps her: Thelma Lou at the Beach

"Nothing makes me feel better inside than spending a couple of hours at a nursing home where people who want to pet our dogs. It totally lightens up the entire atmosphere -- for everyone."

Of course, occasionally Pam's critters have been known to go on vacation, especially at this time of the year when they sneak off to the beach for a little R & R.  Be careful, Thelma Lou; too much time in the sun can cause wrinkles!

July 17, 2015 in Consumer Information, Health Care/Long Term Care, Legal Practice/Practice Management | Permalink | Comments (1)

Thursday, July 16, 2015

Highlights from Upcoming Pennsylvania Elder Law Institute on July 23 & 24

Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg. 

Highlights include:

  • "The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;
  • How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);
  • Cross disciplinary discussions of end-of-life care with medical professionals and hospice providers;
  • LTC "provider" perspectives (Kimber Latsha and Jacqueline Shafer);
  • Latest on proposals to change Veterans' Pension Benefits (Dennis Pappas);
  • Implementation of the Pa Supreme Court's Elder Law Task Force Recommendations (Judges Lois Murphy, Paula Ott, Sheila Woods-Skipper & Christin Hamel);
  • A closing session opportunity, "Let's Ask the Department of Human Services Counsel" (with Addie Abelson, Mike Newell & Lesley Oakes)

There is still time to registration (you can attend one or both days; lunches are included and there is a reception the first evening).  

I think this is the first year I have missed this key opportunity for networking and updates; but I'm sending my research assistant!    

July 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Sunday, July 12, 2015

NYT: Specialists with Team Skills May Help with Planning

From the New York Times, Making Decisions about Elder Housing May Take a Team Effort, by John Wasik:

But for elderly people like Ms. Renninger, now 83, deciding what to do next can be an almost overwhelming task. Is it time to move to a nursing home or some other type of assisted living? Or will home care with a variety of support services work?


It is an issue millions of people — especially baby boomers and their parents — are grappling with now. The choices are so complex that more and more people are finding they cannot make the decisions alone. As a result, with the number of Americans age 85 and older growing faster than any other age group, as the Congressional Budget Office reports, so is the demand for elder care specialists.

Detailing what many Elder Law Attorneys also provide, the article gives several examples of professionals with multi-disciplinary skills, such as a geriatric care manager, or a doctor who is also a certified financial planner.  Thanks to Professor Laurel Terry for sending this timely link.

July 12, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management | Permalink | Comments (0)

Thursday, June 25, 2015

ABA Journal: Delaware is First State to Grant Access to Digital Assets for Fiduciaries

From the July issue of the ABA Journal, news that "Delaware Leads the Way in Adopting Legislation Allowing Estate Executors Access to Online Accounts."   The article details the use of model legislation in permitting "Fiduciary Access to Digital Assets," and related or pending legislation in other states. 

Hat tip to Professor Laurel Terry -- visiting in Hawaii -- for being the first to send this our way! 

June 25, 2015 in Current Affairs, Estates and Trusts, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (1)

Monday, June 8, 2015

2d Circuit Addresses Nursing Home Collection Practices in Cross-Border Dispute

In Eades v. Kennedy PC Law Offices, decided June 4, 2015, the Second Circuit ruled that a federal court in New York has personal jurisdiction to address alleged unfair debt collection practices of a Pennsylvania law firm in seeking to collect unpaid nursing home fees totaling $8,000.  The plaintiffs, New York residents -- the husband and adult daughter of a woman in a Pennsylvania nursing home -- challenged statements in correspondence and phone communications allegedly made by the Pennsylvania law firm.  The claims against the daughter were based on Pennsylvania's filial support law.

As reported on this Blog in December 2013, the United States District Court for the Western District of New York dismissed the suit, finding no personal jurisdiction and further rejecting application of the federal Fair Debt Collection Practices Act (FDCPA). The Second Circuit's ruling concludes, however, that the law firm's "three purposeful contacts with New York," of mailing a debt collection notice to the New York family members, engaging in a debt collection phone call with the daughter, and mailing a summons and complaint to both the daughter and the nursing home resident's husband, are enough to establish personal jurisdiction under New York's long-arm statute.  Further, the defendant law firm had not shown that exercise of such jurisdiction was unreasonable.

On the questions raised by the FDCPA claims, the Second Circuit rejected several key arguments by the plaintiffs, concluding that Pennsylvania's filial support law is not preempted by the Nursing Home Reform Act's prohibition on nursing homes requiring third party guarantees of payment:

Continue reading

June 8, 2015 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, May 20, 2015

Before there was "Elder Law"? Jeff Marshall, Esq. remembers...

ElderLawGuy Jeff Marshall has always been a bit ahead of his time, including being among the first to recognize that aging can carry with it a distinct set of legal issues.  Not every lawyer is equipped to deal with families facing dramatic changes, whether in terms of temperament or legal knowledge.  Jeff constantly stays on top of new developments, in both law and technology.  For example, read here how Jeff uses "tweeting" as a tool, to help him stay current on the law, and engaged with the wider world.  Jeff has often inspired me, from the moment of my first "big" meeting with him here in Pennsylvania almost 20 years ago, at a little conference on a very cold winter day in Wilkes Barre. It is hard to believe, but he's been a specialist in elder and estate law for 35 years! Here's part of the tale, from the Sun-Gazette.com:

When attorney Jeff Marshall returned home in 1980 his vision, according to a news release, was to found a law firm that would serve the needs of older adults. A native of Lock Haven, Marshall had graduated from Stanford Law School in 1972 and had remained in California for the rest of that decade. By 1980 he was ready to return to his roots in Pennsylvania.


At the time, there was no such thing as an "elder law firm." But Marshall recognized that his older clients faced a complicated array of legal, financial, and health care issues, the news release said. Their legal planning needed to be coordinated with non-legal concerns to best protect their dignity, comfort and self-determination. So he set about putting together a team of professionals with backgrounds in law, nursing, social work, and care management who were able to meet his client's broad needs.


Thirty-five years later the seeds he planted have grown into one of the most respected elder law and estate planning law firms in Pennsylvania with four offices in Williamsport, Jersey Shore, Wilkes-Barre and Scranton....  The firm celebrated its 35th anniversary at its 19th Annual Professional Updates held on May 6 in Williamsport and May 7 in Scranton.

Congratulations -- and thank you -- Jeff!

May 20, 2015 in Current Affairs, Estates and Trusts, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Thursday, April 30, 2015

Thinking About Fiduciary Duty As A Core Concept for "Elder Law"

I tend to think of "Elder Law" as a subset of "Laws and Policies of Aging."  Given what appears to me to be a steady increase in public concern about ways in which some older persons are exploited financially, it occurs to me that we may be at a point where "fiduciary duty" is becoming a central -- perhaps even the central -- concept for the future practice of Elder Law, overtaking even Medicaid planning and end-of-life health care planning. Seasoned practitioners already know that the "million dollar question" in Elder Law is "who is my client?" -- a question intimately tied to carrying out fiduciary duties as an attorney.

Along that line, I've been digging into my stack of "must read" books, a stack that is always a threat to my safety as it gets taller and taller no matter how fast and furiously I read. I'm very much enjoying a book by Boston University Law Professor Tamar Frankel titled, simply enough, Fiduciary Law (Oxford University Press, 2011). 

Early in the book, the author, whose teaching and research interests include corporation governance and regulation of financial systems, proposes a definition of "fiduciary relationships," which I find both intriguing and conducive to discussion.  I don't think it is taking too much away from her full book, to repeat the four features Professor Frankel proposes as triggering fiduciary duties.  She writes:

Continue reading

April 30, 2015 in Books, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Retirement | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 29, 2015

Systemic Concerns about Adult (Including Older Adult) Guardinships in Nevada

After my blog piece earlier this week about "elder guardianship" concerns in Florida, I've received communications about similar concerns in other states, including Nevada.

According to a report by Contact 13 (ABC affiliate), on April 21 Commissioners in Clark County (Las Vegas area) conducted a "first-of-its-kind" hearing on alleged guardianship abuses that were described by some as "appalling, frightening and plagued by problems." At the heart of the complaints by individuals and family members was frequent court appointment of "private guardians" rather than family members, and an alleged absence of notice to family members about court hearings. A "blue ribbon" panel or expert may be appointed to audit Clark County's court-supervised guardianships.  A recent statement by the Chief Judge for the district court, set forth in full on the Contact 13 website, pledges the court's commitment to "ensuring clarity and instilling public trust in the process of handling guardianship cases.

According to the Las Vegas Review-Journal, the Chief Judge's response follows a series of stories by the Review-Journal about "thousands of elderly and mentally ill in Clark County open to exploitation."

As reported by the Las Vegas media, the problems reported in Nevada are not unique to one county or even to one state, as demonstrated by an Associated Press series of articles in 1987 titled "Guardianships of the Elderly: An Ailing System."   See also the national Center for Elders and the Courts for more information on guardianship reforms in state courts.

April 29, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2015

Justice in Aging Is Hiring for Attorney to Join their Health Team in D.C.

Justice in Aging (a 40+ year-old organization, until recently known as the National Senior Citizens Law Center) is "seeking a strategic, dynamic attorney" to join their health team in the Washington D.C. office.  They are requesting applications by May 1, with a target start date of June 1. 

Requirements include: 

  • A J.D.
  • At least 7 years of experience working for a consumer, legal, association, or other non-profit in a similar capacity
  • Creative thinker with experience developing and implementing new advocacy projects to fill existing and emerging needs in underserved communities
  • Capacity to manage multiple projects and people simultaneously
  • Excellent interpersonal skills with demonstrated ability to lead, work as part of a team, and build external relationships
  • Thorough understanding of both national and state legislative and regulatory processes
  • Effective speaking, presentation, and writing skills

For more on the exciting opportunities in this position, see the full "job" posting  on Justice in Aging's website.

April 15, 2015 in Current Affairs, Grant Deadlines/Awards, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Sunday, April 12, 2015

A Trend in CLEs? Offering Sessions on Mental Health in the Practice of Law

The Washington D.C. Bar Association  has interesting CLE programs.  The D.C. Bar is offering a session this week on Breaking the Silence: Depressing in the Practice of Law:

"The program will discuss the statistics of depression and suicide in the legal profession, the effects of mental illness and what this may look like, how lawyer stress might contribute to depression and anxiety, the causes and symptoms of depression, and how you might support colleagues who are suffering from depression."
  • Denise Perme, LICSW, Manager, D.C. Bar Lawyer Assistance Program, moderator
  • Katherine Bender, PhD, NCC, Programming Director, The Dave Nee Foundation
  • Dan Lukasik, Managing Partner, Bernhardi & Lukasik, PLLC
  • Col. Brett Schneider, MD, Director of Behavioral Health Services, Walter Reed National Military Medical Center

The session is on Friday, April 17 from 4 p.m. to 5:30 p.m.  Details about registration and location here

It seems to me that I'm seeing more programming that explores mental health in the practice of law and that seems like a pro-active, healthy trend.

April 12, 2015 in Current Affairs, Legal Practice/Practice Management, Programs/CLEs | Permalink | Comments (1) | TrackBack (0)

Thursday, April 2, 2015

Must Lawyer Consult With "Agent" Before Complying With Elderly Client's Request to Terminate POA?

Here is a recent ruling (February 2015), based on a fact pattern that many elder law attorneys will appreciate as both familiar and challenging.

In Runge v. Disciplinary Board, the Supreme Court of North Dakota reversed a disciplinary board "admonishment" of an attorney for "violating" the Rules of Professional Conduct, Rule 1.14.  North Dakota's Rule 1.14, addressing representation of a "client with limited capacity," is similar to the ABA Model Rule 1.14 on clients with "diminished capacity."

At issue in the disciplinary proceeding was the lawyer's representation of a 79-year-old man who was residing in a "Care Center." The man wished to leave the nursing home, against "medical advice" and, apparently also in opposition to his daughter's apparent belief about what was best for him. The man had, before experiencing a heart attack, named his daughter as an agent under a durable POA. 

By the time the attorney met with the man, the man had been living in the care center for several months.  After meeting with the older man (and a female friend of the man), at the man's request the attorney prepared a revocation of the POA.  The lawyer explained to the care center that absent someone holding a guardianship or custodianship for the man, and as long as the lawyer was persuaded his client had sufficient capacity, the revocation of the POA was effective and neither the center nor the daughter had grounds to prevent him from leaving.

Unhappy with this outcome, the daughter filed a Disciplinary Board complaint against the attorney, asserting the lawyer had acted improperly by failing to consult with her as her father's named agent, and taking the position her father's "incapacity" for purposes of an earlier "emergency care" statement was conclusive of his incapacity.  The Court, however, observed:

"Here no guardianship or conservatorship existed that withdrew Franz's authority to act for himself. Rather, Franz shared his authority to act and he remained free to withdraw the authority conferred under that power of attorney, which, in any event, precluded anyone from making his medical decisions. This record reflects [Lawyer]Runge talked with Franz by telephone and in person to ascertain his wishes before Franz revoked the power of attorney. Runge's recitation of his conversations with Franz does not clearly and convincingly establish Franz was incapacitated in April 2013. This record does not reflect any subsequent attempt to obtain a court-ordered guardianship or conservatorship for Franz, which belies any suggestion that he was incapacitated in April 2013."

Therefore, the North Dakota Supreme Court dismissed the daughter's Disciplinary Board complaint.

Significantly, the Court observes that although the lawyer "could" have contacted the daughter before executing the revocation of the POA, the provisions of Rule 1.14 did not "require" him to do so. 

Lots of potential lessons here.  A key to the outcome seems to be the lawyer's persuasive testimony, showing the care he took in making the decision to represent the man and to prepare the revocation.  As the court observed, "[The lawyer's] assessment of [the man's] capacity was within the range of a lawyer's exercise of professional judgment."  This case is another demonstration that lawyers hold a lot of power -- and responsibility -- in matters involving client capacity.  

Many thanks to Professor Laurel Terry at Dickinson Law for sending this decision our way. 

April 2, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (2) | 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:

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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)