Wednesday, September 7, 2016

Boomer Law Partner Retirement?

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."

September 7, 2016 in Consumer Information, Current Affairs, Legal Practice/Practice Management, Retirement | Permalink | Comments (0)

Friday, September 2, 2016

Thinking About References for Current and Recent Law Students

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?  

 

September 2, 2016 in Current Affairs, Legal Practice/Practice Management | Permalink | Comments (0)

Tuesday, August 30, 2016

One Practitioner's Perspectives on "The Practice of Elder Law"

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
 
Perhaps the question is whether either rule, 1.7 or 1.14, clearly authorizes the concept of "family representation" where the older client has capacity issues. While many attorneys, including elder law attorneys, do take the position this approach is appropriate, others would take the position that the daughter is acting in the role of agent or alternative decision-maker for the mother, and thus the mother is always the real party in interest, not the daughter. Neither approach eliminates the potential for conflict of interest issues for the attorney. Either way, I think the question of client identity is key to most representational roles for elder law attorneys, especially in the context of family members serving as de facto agents for their loved ones. Stuart Bear's 2002 and 2016 essays should be good food for additional thought and analysis.
 
Editing Note:  The above Blog post was edited to refer to the correct name for the Mitchell-Hamline Law Review (rather than the "Marshall-Hamline Law Review").  Our thanks to readers for catching my error! KCP

August 30, 2016 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management | Permalink | Comments (1)

Thursday, August 25, 2016

Washington Post: Legal Counsel for the Elderly Is Part of One Woman's Story

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."  

August 25, 2016 in Ethical Issues, Federal Statutes/Regulations, Housing, Legal Practice/Practice Management, Social Security | Permalink | Comments (0)

Wednesday, August 17, 2016

Spotlight: UC Hastings' and UC San Francisco's Medical-Legal Partnership for Seniors Clinic

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.

August 17, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Legal Practice/Practice Management | Permalink | Comments (0)

Monday, August 15, 2016

Medical-Legal Partnerships Are Needed For Elder Advocacy and Protection

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

The Economics of Fiduciary Litigation (in 2 parts)

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.

Part 1:  The Waiting Game -- The Economics of a Fiduciary Litigation Practice. Here's an excerpt:

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.

Part 2:  The Ethical Do's and Don'ts: Best Practices when Clients Finance Fiduciary Litigation. To whet your appetite:

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.) 

May 17, 2016 in Current Affairs, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management | Permalink | Comments (0)

Friday, April 29, 2016

Is Nursing Home Operator Entitled to Bar Plaintiff Firm's Use of Finger-Pointing Ads?

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.

April 29, 2016 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management | Permalink | Comments (0)

Wednesday, April 27, 2016

Know when to hold 'em, fold 'em . . . and (the tough one for lawyers?), know when to walk away

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.)

For more, see Old Lady Lawyer: Is There a Farewell Victory Lap for Lawyers? 

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. 

April 27, 2016 in Discrimination, Ethical Issues, Legal Practice/Practice Management, Retirement | Permalink | Comments (0)

Monday, April 25, 2016

Kudos to the Chief Justice

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.

April 25, 2016 in Consumer Information, Current Affairs, Federal Cases, Legal Practice/Practice Management, Other | Permalink | Comments (0)

Tuesday, March 22, 2016

Panel on Access to Justice in Montana Highlights Legal Needs of Rural Elders

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!

March 22, 2016 in Consumer Information, Ethical Issues, Legal Practice/Practice Management, Statistics | Permalink | Comments (0)

Wednesday, March 16, 2016

A Window Into New York Legal Fees For Guardianship Proceedings

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."

March 16, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases | Permalink | Comments (0)

Tuesday, February 9, 2016

Examining Ethical Issues in Expansion of Legal Services to Low-Income Older Adults

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!

February 9, 2016 in Consumer Information, Current Affairs, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0)

Monday, February 8, 2016

Will Avvo Fixed-Fee Legal Services Help or Hurt the Practice of "Elder Law"?

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?  

 

February 8, 2016 in Consumer Information, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0)

Sunday, January 3, 2016

Webinar: "What It Really Means to Practice Elder Law"

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?  

January 3, 2016 in Legal Practice/Practice Management | Permalink | Comments (0)

Monday, December 28, 2015

Bad Behavior by so-called "Professionals"

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. 

December 28, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases | Permalink | Comments (0)

Monday, December 21, 2015

If Your Clients are Mostly "Older," Are You Practicing Elder Law?

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.

Articles include:

  • 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!  

December 21, 2015 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Retirement | Permalink | Comments (0)

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

When a Caring Family Tradition Comes Full Circle...

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.

December 14, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management | Permalink