Friday, April 17, 2015

Day 7 Report from the Iowa Sexual Assault/Dementia Trial

On  April 17, the trial continued in State of Iowa v. Henry Rayhons.  The evidence included:

  • Testimony by a Des Moines geriatrician, Robert Bender: Testified as an expert witness for the defense to explain that Alzheimer's patients often retain sexual desire, even after losing other brain functions such as speech or memory, and can make a "meaningful decision" to be intimate with the person.  According to the Des Moines Register, Dr. Bender testified that it would be a "medical mistake" for a doctor to draw an arbitrary line between allowing a patient to kiss and hug but not allowing her to have sex, unless there was evidence the patient was being harmed by the activity.

Further, the defendant Henry Rayhons testified, giving his memory of key events, stating he did not have "sexual intercourse" with his wife on the night in question, while also describing what he means by their "playing."  A  video segment of his trial testimony is available here. Additional print media coverage of the final day of testimony on Friday is available here

Additional audio-recording evidence was reportedly presented, from a care conference between Henry, his wife's daughters, and the nursing home staff at which the prosecution alleges Mr. Rayhons was advised of the doctor's conclusion about his wife's inability to consent to sexual activity.  Both parties rested their cases on Friday, and according to media reports, the trial is scheduled to resume on Monday, April 27, with closing arguments by both the prosecution and defense. 

As additional media reports from the trial today become available, I will supplement this post. 

Additional, more comprehensive coverage of the testimony of Henry Rayhons is provided by Bloomburg News' Brian Gruley in Sex with your Wife or Rape? Husband of Alzheimer's Patient Takes the Stand.

In addition, Bloomberg News has "Let's Talk About Sex ... in Nursing Homes," an infographic that charts state policies on sexual rights of nursing home residents and other relevant demographics on population aging.

April 17, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)

Thursday, April 16, 2015

Day 6 Report from Iowa Sexual Assault-Dementia Trial

April 16, 2015 was the sixth day of trial in the criminal prosecution for sexual abuse in the third degree, in State of Iowa v. Henry Rayhons.  The prosecution completed its case-in-chief, the trial judge denied defense counsel's motion for judgment of acquittal, and the defense counsel called several witnesses for Mr. Rayhons.  Today's evidence, as described by various media sources linked below, included:

  • Final Witness for the Prosecution:  The state called a state criminologist to explain testing on various items of physical evidence,from the night in question.  According to media coverage of the trial, the criminologist  testified that "she did not find any seminal fluid in the sexual assault kit [on swabs from Donna taken on the night in question] but says that is not uncommon." She testified there "appeared to be a seminal fluid stain in the inside of Donna’s underwear," the same underwear that was alleged to have been deposited in a laundry hamper by the defendant on the night in question. Tests on the stain "detected DNA from [the defendant]."
  • The First Witness for the Defense, the "Roommate:" The woman who shared Donna Rayhons' room in the nursing home the night on question, was reported as testifying that  "Donna had become a good friend. Someone who she could count on to go to activities and speak with."  She is reported to have testified she’s "uncomfortable talking about that day but says she does remember something happening, but only assumed that it was sex on the other side of the curtain."
  • A Clinical Physician (and Assistant Professor of Medicine from the University of Iowa):  The defendant's expert witness is reported as having given opinion testimony to the effect that based on review of evidence, ""I believe Donna would've been more likely to give consent than not."
  • Patricia Wright, a Daughter of Donna Rayhons (called by the Defense): Reported as saying her mother "lit up" whenever Henry Rayhons entered the room.
  • The Son and Daughter of Henry Rayhons:  Describing their relationship with their father, their  father's relationship with Donna, and their own respect for Donna.

As described by the Globe Gazette, there appeared to be especially poignant testimony from one of Donna's daughters, Patricia: 

In July, Donna Lou Rayhons asked her daughter, Patricia Wright, if she had seen Henry. “He can’t come anymore,” Wright remembered her mother saying.

 

“Mom was talking very softly. Much more softly than she usually did and she kept putting her hand to her head. My impression was she was very sad,” Wright told the jury. “Then she would say things like ‘I love him. I love my girls. I love him. I love my girls.’ And she would say that kind of repeatedly.”

As more reports are published from the 6th day of the Rayhons trial, I will try to capture them here with a supplement to this Blog Post. 

UPDATE: Here is a link to a more detailed account of the trial testimony on Thursday from The Des Moines Register, explaining that Donna Rayhons had three daughters, including Patricia, from a prior marriage.  One of the other daughters testified for the prosecution.

April 16, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2015

Day 5 (the actual fifth day) of the Iowa Sexual Assault-Dementia Trial

On April 15, the trial  proceedings in State of Iowa v. Henry Rayhons continued, after a day without courtroom proceedings. 

The day started with testimony from an "Iowa DCI Agent" about a secret recording, two hours in length, that the agent made of his interview with Henry Rayhons on June 12, 2014, during which they discussed the couple's relationship and events surrounding the night of May 23, 2014 (the date of the alleged sexual abuse).  Reading between the lines of early news reports, it appears the prosecution was planning or wanted to play excerpts from the recording as part of its case-in-chief, and the defense lawyer took the position that if anything comes in, the whole recording comes into evidence.

Here's a KIMT.com  link to a story about this recording, including Rayhon's emotional reaction to the playing of the recording in the courtroom.   Here's a link to KIMT's live twitter posts on the trial. 

The above was available from the morning session of court.  More updates on later  proceedings will be posted here, if additional information on today's session becomes available. 

Here is an "update" from news media in Iowa, focusing on alleged details from the tape-recorded interview by the DCI (Department of Criminal Investigations) Agent with Henry Rayhons a few days after the night in question.  The prosecution appears to be offering segments as evidence that Rayhons "confessed" during the interview, while other segments appear to show his confusion and lack of awareness (or perhaps understanding) about the doctor's diagnosis. 

I'm not clear whether this "interview" triggered Miranda warnings, or whether they were waived, but it appears the agent did not tell Rayhons it was being recorded.

More and more lessons seem to be emerging, regardless of the eventual verdict in this case.  The more I hear of details from the trial, the more it amazes me how a March 2014 admission to a care facility, that apparently followed the daughters' reasonable concerns about the behavior of the wife, can fail to involve deeper family counseling, discussion and support for both the wife and the husband. This was a dramatic change in their relationship. My head is spinning with all of the missed opportunities for counseling, and, if necessary, mediation.

I'm seeing far more time spent on a criminal investigation about the night of May 23, 2014, than on counseling a 78-year-old man about what it might mean to have a wife in a nursing home in Iowa, where there are Iowa-specific laws about sexual conduct between married partners no longer cohabiting. I'm thinking the wife's daughters could have been assisted by sensitive counseling as well, both before and after March 23. But, I also suspect that there is no Medicare or insurance "billing code" for counseling the family members in this scenario. 

And finally, here is late-day coverage by the Des Moines Register from the trial, also focusing on the investigator's recording: Rayhons told investigator he didn't force sex on wife.

April 15, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | TrackBack (0)

Tuesday, April 14, 2015

Day 5 Report on Iowa Sexual Assault-Dementia Trial

UPDATE:  The jury trial of  State of Iowa v. Henry Rayhons is scheduled to continue on Wednesday, April 15.  There were no proceedings on Tuesday, April 14.  In the meantime, here are additional relevant discussions, from several sources:

QUOTATION OF THE DAY

"So much of aging and so much of being in a long-term care facility is about loss, loss of independence, loss of friends, loss of ability to use your body. Why would we want to diminish that?"

DANIEL REINGOLD,   chief executive of the Hebrew Home in the Bronx, which pioneered a   "sexual rights policy" for residents in 1995.

 

  • From the Washington PostWhen the Mind Falters, is Sex A Choice? by Marie-Therese Connolly, a thoughtful opinion piece written in 2009, discussing several challenging scenarios, some involving more casual relationships, or arguably more "extreme" facts, such as a "Wisconsin minister who regularly came to the nursing home to have sex with his comatose wife."  

 

I'll supplement the "Trial Reports" as additional information becomes available. Check back on Wednesday.

April 14, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, April 13, 2015

Day 4 Report on Iowa Sexual Assault-Dementia Trial

On April 13, the fourth day of the trial of State of Iowa v. Henry Rayhons, the prosecution continued presenting evidence in the state's case-in-chief.  Here are links to news sources covering the day's events, including:

  • From KIMT.com: Testimony of a physician from the care facility regarding his opinion regarding  Donna's mental capacity, plus a description of video surveillance of the husband on the night in question, in which "you can see Donna being redirected to her room by Henry, after she had wandered through the halls.  Nearly  30 minutes later, Henry is seen leaving the room [and depositing her underwear in a hamper]."
  • From KIMT's Twitter feed: Excerpts of testimony from nurses and several staff members at the care center, including a report that a Care Center physician testified that "Just like an infant, a person can respond to stimuli. That doesn't involve any consent given."
  • From the Des Moines Register: Reporting that a total of three doctors testified today and that "Dr. John Brady, who is medical director of Concord Care Center, testified that Donna Rayhons had severe dementia caused by Alzheimer's disease. He said any positive reaction to her husband's affectionate advances could be termed a 'primal response,' not a conscious decision to reciprocate."

Further, from the Des Moines Register, an account of the testimony of one of the physicians, a neurologist: "One of the doctors, neurologist Alireza Yarahmadi, disputed any notion that such an Alzheimer's patient could vary greatly in her ability to understand what was going on around her. 'When they're severe, they're going to stay severe,' Yarahmadi testified." 

The trial is expected to continue on Wednesday, April 15 (corrected, after learning no proceedings on Tuesday).

April 13, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, April 10, 2015

Web-Cameras in Nursing Homes: Do They Invade Privacy (and Whose Privacy or Interests are Paramount)?

In Philadelphia, the decision of a nursing home to remove the compact video camera attached to a computer owned by a 59 year-old disabled resident has triggered a debate about legal issues associated with the resident's broadcasts.  On the one hand, the resident, who had lost the ability to speak and who had limited mobility associated with cerebral palsy, used the camera to facilitate communications with his family.  But, to the nursing home:

... where he has lived for decades, the camera was a watchful eye, scrutinizing its staff's every move and capturing images of people whose privacy they're responsible to protect.

 

Stu's computer equipment was abruptly removed in mid-December, and he was asked to write a note defending his access to it. Family members called it a "cruel hurdle" for a man with limited mobility who selects each letter by pushing the back of his head against a switch.

 

In another note pleading for his webcam to be returned, Stu, 59, wrote: "WE ARE NOT SPYING ON ANYBODY!" The Sandersons unwittingly became part of a splintered national debate about the role of video cameras in long-term care facilities.

Additional coverage, outlining the delicate case, and suggesting broader issues, is available here and here.  Part of the background for the current issues includes a 2012 investigation of suspected abuse of a resident in a different nursing home in Pennsylvania, where a web camera reportedly led to criminal charges against nursing home employees.

April 10, 2015 in Crimes, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, April 9, 2015

PA Governor's Executive Order Raises Questions re "Unionizing" Home Care Workers

On February 27, Pennsylvania's new governor, Tom Wolf, issued Executive Order 2015-05 regarding "participant-directed home care services."   

The order reportedly reflects the Governor's interest and support for home care for seniors and persons with disabilities, while also recognizing potential issues such as low wages or absence of benefits, high turnover, inconsistent quality or lack of standards.  The order:

  • Creates a Governor's Advisory Group to advise the administration on "ways to improve the quality of care delivered" through publically funded home care service programs;
  • Recognizes a "representative for Direct Care Workers for the purpose of discussing issues of mutual concern," while also authorizing a procedure for "election" of the representative; and
  • Establishes a "Direct Care Worker List" of all workers paid through state programs, and further permits "an employee organization that has as one of its primary purposes the representation of director care workers" to petition the state to represent a particular unit of direct care workers.

As set forth in recent media reports, the Executive Order has met with resistance from some quarters, including those who are challenging the order as unlawfully permitting "unionization" of home care workers.  On April 6, 2015, a complaint seeking injunctive relief from implementation of the executive order was filed in the Pennsylvania Commonwealth Court by a home care worker and his long-time client, a "quadriplegic adult with muscular dystrophy receiving care from the [state administered] Attendant Care Services Act.." The complainants are reportedly represented by "The Fairness Center, a conservative public-interest law firm."

April 9, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 8, 2015

Day 1 Report of Iowa Sexual Assault-Dementia Trial

Day one of the sexual abuse trial of State of Iowa v. Henry Rayhons was Wednesday, April 8.  News report of the first day here.  Coverage of pretrial motions here, with the husband's lawyer describing potential  expert testimony about how individuals with Alzheimer's could be capable of consent, while the prosecution argues consent is impossible as a matter of law, making an analogy to sexual contact with a minor or an individual who was unconscious or passed out.  More background here

April 8, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Sad Trial Begins in Iowa for Husband Charged with Sexual Abuse of Wife with Dementia

Today, April 8, is the scheduled day for jury selection to begin for the trial of State of Iowa v. Henry Rayhons.  We've written about the charges here and here, but to summarize, Mr. Rayhons, now age 79, was charged last year with "sexual abuse" of his wife, Donna Rayhons (78 at the time), who was residing in a nursing home with Alzheimer's.  Iowa law has several different ways in which a "sexual act without consent" between a "husband and wife" can constitute "sexual abuse in the third degree."  See Iowa Code Section 709.4(2).

Here, because the husband and wife were not "cohabitating," a conviction would appear to depend on the state's ability to prove that the sex act was with a person suffering from a "mental defect or incapacity which precludes giving consent." It appears the state takes the position that "consent" was impossible because Mrs. Rayhons had been diagnosed with a mental defect, the advanced stages of Alzheimer's.  Further, it appears the state expects to prove that her husband was aware of the diagnosis, and further, that at some point before the evening in question, he "agreed" she was incapable of giving consent because of her condition.  But at the core, isn't there still an essential question about whether, assuming the state can prove those statutory elements, the law is intended to prevent a married couple from having "consensual" relations because one partner has Alzheimer's? 

There apparently was no evidence of physical or emotional damage to Mrs. Rayhons, including no evidence of cries for help or protestations on her part. It appears there will be testimony about the close and loving relationship the couple had before the night in question.   It will be interesting -- and sad -- to hear whether there is evidence of a "sexual act."  

The Washington Post's Sarah Kaplan has drawn together a history on the case to this point, including details first reported by Bryan Gruley for Bloomberg News.  At one point the prosecution tried to get a change of venue for the trial -- a very unusual request from a prosecutor -- which the trial court denied. 

I've been hearing from a lot of folks lately about this case, including several medical professionals. I think that after the charges were first announced in August 2014, many people expected the case to quietly disappear, especially as Mrs. Rayhons has passed away, and her husband, then a state legislator, had retired from office. 

Yesterday, I had the interesting experience of being interviewed for a KABC radio show in Los Angeles by "Dr. Drew." It was pretty clear that with his background, board certified in internal medicine and a clinical professor of psychiatry at USC, Dr. Drew Pinsky was troubled by the possibility that a medical diagnosis could, without more, be treated as prohibiting legally effective consent to sexual relations. (A guardian was appointed for Mrs. Rayhons, but those proceedings were begun after the night in question.)  As Dr. Drew commented during the radio show, even in advanced dementia, there may be core functions that a person continues to be able to enjoy and therefore seek, including eating, drinking and ... intimacy.   

April 8, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 7, 2015

Health Care Reform, Transition & Transformation in LTC

Monday, April 6, 2015

Oregon A.G. Urges Lawmakers to Authorize Special Prosecutor for Elder Abuse

From KTVZ.COM news in Oregon, a report that the state's top prosecutor, joined by citizen groups, is calling for appointment (and funding) of a special prosecutor to pursue elder abuse cases:

"Ten organizations wrote letters or testified Monday before the Subcommittee on Public Safety of the Oregon Legislature’s Committee on Ways and Means in support of funding for the state's first statewide Elder Abuse Resource Prosecutor. The position would be housed within the Oregon Department of Justice’s Criminal Division, and would increase Oregon’s capacity to stop elder financial and physical abuse by providing training, technical assistance and legal expertise to district attorneys, law enforcement and others who work with seniors. 

 

If funded, Oregon would be the second state in the country with a statewide prosecutor devoted to elder abuse.

 

'Oregon has specific laws that criminalize the abuse, neglect and exploitation of older adults. However, these cases can be difficult to prosecute.  Many involve the victimization of older adults by family members or others with whom they have an ongoing relationship. Victims may also be slow to recognize and report abuse, and reluctant to cooperate with criminal justice professionals,' said Attorney General Ellen Rosenblum.

 

Elders in Action, the Office of the Long-term Care Ombudsman, AARP, Legal Aid Services of Oregon, the Oregon State Bar, Alzheimer’s Association, the Oregon Department of Veteran Affairs, the Governor’s Commission on Senior Services, Campaign for Oregon’s Seniors & People with Disabilities, and the Residential Facilities Advisory Committee all voiced their support for the new position."

If this position would be the "second" in the country, which state already has a special prosecutor for elder abuse?

April 6, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Saturday, April 4, 2015

"Informal" Arrangements for Home Care? What's the Downside? Here's One...

When it becomes impossible for a loved one to stay at home without help, one decision that families made need to face is whether to use an agency, or hire one or more individuals outright. Agencies are usually more expensive (at least on paper). But direct hires of home aides can raise other questions, including how to handle state and federal income taxes and documentation, insurance, transportation (read: more insurance questions), coverage for holidays, sick leave, overtime, and more.  You start off thinking this is short term help; the reality is it can last much longer....

But there is still one more question that may not be on the family's radar screen, until it is too late.

If the informal home care arrangements eventually don't suffice, perhaps because of increasing frailty and care needs, what happens when the individual's money is gone and there is a need for Medicaid-paid care?  

As explained in a recent Michigan Court of Appeals case, "informal" arrangements for home care may trigger ineligibility for Medicaid-paid care based on state rules or policies implementing federal law.

Continue reading

April 4, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | 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)

Wednesday, April 1, 2015

5-4 Supreme Court Decision Rejects Private Rights of Action on Medicaid Funding

On Tuesday, March 31, the Supreme Court in a 5-4 decision rejected "private" rights of action for services providers to challenge under-funding of Medicaid programs by states.  The ruling potentially impacts availability of services to all Medicaid-eligible beneficiaries, if doctors, home care agencies and similar private health care providers decline to participate in Medicaid funded service programs. The decision in Armstrong v. Exceptional Child Center, was delivered by Justice Scalia, joined in part by Justices Roberts, Thomas, Alito and Breyer.  Justice Sotomayor dissents, joined by Justices Kennedy, Ginsburg and Kagan.

This one is going to take a bit of time to digest. 

Here is the Washington Post coverage of the opinion.

Here is Kaiser Health's News Links to early reactions.

April 1, 2015 in Federal Statutes/Regulations, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 31, 2015

April Fools? (Unfortunately, Not So)

When I ask real or prospective law students what television programs they watch, I often get two answers:  "The Big Bang" or "Suits."  I have to admit I love to use Big Bang's "roommate contract" for my contracts class examples.  But, Suits is a bit more problematic -- until now.

The key character in Suits is "Mike Ross," a college dropout, and the back story is that he's brilliant, with a superb memory, and stumbled into being a "lawyer" after a life of petty crime that somehow included taking the LSAT exam for others.  I would like to think that the appeal of the program is the law, but I am realistic enough to suspect the "charm" is the idea that you can succeed in law without knowing the law, indeed without being a "real" lawyer. A little fantasy, right?

Now we have a report -- and I wish this wasn't true -- from my own state of Pennsylvania, of a 45-year-old woman who allegedly posed for 10 years as an estate planning lawyer, even making partner in a law firm, who may have faked her attendance at a specific law school.  In fact, she may have faked everything that should have happened afterward, such as being licensed to practice law.  

According to news reports, the individual has been charged with crimes.  To follow her defense, and the developing details, see here, here, and here

March 31, 2015 in Crimes, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, March 27, 2015

NOT Elder Law, But It Is CRIMINAL Law

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

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

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

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

Thursday, March 26, 2015

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

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

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

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

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

The key provisions of new Rule 5.8 provide:

Continue reading

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

Tuesday, March 24, 2015

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

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

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

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

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

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

Sunday, March 22, 2015

Aid In Dying Legislation

The New York Times ran an editorial on March 14, 2015 regarding efforts in states to pass aid in dying legislation.  Offering a Choice to the Terminally Ill reports that DC & 15 states are considering such legislation. The editorial describes two recent cases, reviews the opposition, and considers the safeguards provided in the Oregon statute as an example. It also describes situations where doctors provide patients with lethal dosages of medications despite laws to the contrary, noting that "these unregulated practices put patients and doctors on dangerous terrain." Referencing the case of radio host watching her husband who had stopped eating over a period of days, the editorial board says about that case "[h]er inability to help him die humanely is a situation no spouse should have to face."

March 22, 2015 in Advance Directives/End-of-Life, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, March 19, 2015

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

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

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

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

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