Contra Costa Lawyer. Elder Law. What is your opinion about a mandatory retirement age? See what your fellow readers have to say!

Transcription

1 Contra Costa Lawyer Volume 22, Number 5 May 2009 The official publication of the B A R A S S O C I A T I O N Elder Law What is your opinion about a mandatory retirement age? See what your fellow readers have to say!

2 is pleased to announce the fourth never annual Trivia Bowl for Access to Justice in support of The BAR FUND Friday, October 2, :00 9:30pm Blackhawk Museum (a.k.a. Behring Auto Museum) Master of Ceremonies Tom Beatty Judge Hon. Norm Spellberg (ret.) Game Show Host Brian Bonney $75 per person - $750 reserved table for 10 ~ or ~ $100 per person for Sponsors / $1,000 Patron table for 10 (includes recognition in event program) $500 to enter a team of 3 (100% of team entrance fees may be taken as charitable tax deduction 1 ) Enter a team to compete against law firms and retired judges, or put together an All Star team of your trivia-savvy colleagues to compete for the perpetual trophy. Trivia categories will include: literature, science & technology, history & geography, arts & entertainment, sports, local legal lore, and obscure legal questions. This year we also have a special category of questions in keeping with our Auto themed venue. Deadline to enter team September 1! Even if you don t compete in the Trivia Bowl, support The BAR FUND and cheer on your favorite team by signing up as an individual or purchasing a table of 10! Don t miss this unique, entertaining and fun-filled event. Co-Sponsored by JAMS Carroll, Burdick & McDonough, LLP Certified Reporting Services The Recorder To Register: Call Michele Vasta at with your Visa, MasterCard, American Express, or Discovery Card, her at mvasta@cccba.org, or send your check, payable to CCCBA, to 704 Main Street, Martinez For further information, or to receive a complete set of Trivia Bowl rules: Contact Lisa Reep at or lgreep@cccba.org Space limited - Sign up now! 1 East Bay Community Foundation (EBCF), a tax-exempt 501(C)(3) charitable organization, administers the CCCBA s The BAR FUND. However, ECBF is not coordinating or sponsoring this event. For the purpose of tax-exempt charitable contributions to The BAR FUND, including the team entrance fee, EBCF s tax identification number is

3 Contra Costa Lawyer Volume 22, Number 5 May 2009 B A R A S S O C I A T I O N c o n t e n t s features 10 MCLE Self-Study client capacity judgments and LEGAL practice Earn some valuable Ethics MCLE credit while learning how to assess a prospective elderly client s capacity. Virginia George 16 Stopping Medi-Cal eligibility rip-offs a new tool for protecting elders There is no end to the scams targeting seniors, as reported by an attorney who has authored some of our most recent legislative changes. Steven Riess 18 Attacking the predators Using class actions to fight financial elder abuse A look at some common issues of financial abuse and predatory lending from the perspective of class actions. Kathryn Schofield 20 No (easy) exit When conservatorship and MArital dissolution procedures collide The similarity and differences of two cases are examined; one case difficult to commence, while the other difficult to conclude. Andrew Ross departments 4 Inside Arlene Segal 6 president's message Larry E. Cook 8 Bench Talk Elder Court Hon. Joyce Cram 22 pro bono spotlight Verna Haas and Geoffrey Robinson Craig Nevin 24 ethics Corner Carol M. Langford 26 New Members 28 Local Civil jury verdicts Matthew P. Guichard 30 Classifieds 14 Question Man What is your opinion about a mandatory retirement age?

4 inside 2009 BOARD of DIRECTORS Larry Cook President Ron Mullin President-Elect Kathy Schofield Secretary Audrey Gee Treasurer Robin Pearson Ex Officio Christopher Bowen Oliver Bray Mike Brewer Jay Chafetz Virginia George Peter Hass Leigh Johnson Kristen Thall Peters Ron Rives Dana Santos Stephen Steinberg Candice Stoddard CCCBA EXECUTIVE DIRECTOR Lisa Reep: CCCBA main office: Jennifer Comages Membership Coordinator Emily Day Systems Administrator and Fee Arbitration Coordinator Manny Gutierrez Administrative Assistant and Legal Interviewer EDITOR Candice Stoddard ASSOCIATE EDITOR Nancy J. Young BENCH LIAISON Hon. Mary Ann O'Malley BOARD LIAISON Candice Stoddard COURT LIAISON Kiri Torre ADVERTISING/DESIGN Young Design & Production PRINTING Excel Graphics Contra COSTA Lawyer PHOTOGRAPHER Moya Fotografx Maria Navarrete LRIS Coordinator Barbara Tillson Moderate Means Program Coordinator Michele Vasta Section Liaison / Education & Programs Coordinator EDITORIAL BOARD Kate Bekins Mark Ericsson Matthew P. Guichard Local Civil Jury Verdicts Nicole Mills Craig Nevin David Pearson Erika Portillo Andy Ross Kathy Schofield Audrey Smith, JFK Liaison Harvey Sohnen Marlene Weinstein The Contra Costa Lawyer (ISSN ) is published monthly by the Contra Costa County Bar Association (CCCBA), 704 Main Street, Martinez, CA Annual subscription of $25 is included in the membership dues. Second-class postage paid at Martinez, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 704 Main Street, Martinez, CA The Lawyer welcomes and encourages articles and letters from readers. Please send them to Nancy J. Young, Associate Editor, Contra Costa Lawyer, P.O. Box 1867, Benicia, CA The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement. by Arlene Segal It looks like elder law has come of age. More attorneys are recognizing and working on elder law cases much of it pro bono. Legislative changes have increased the tools available to help elderly victims and, since November, Contra Costa County has a dedicated Elder Law Court. The demographics driving these changes are compelling. The fastest growing segment of our county s population is the 85-and-older group. According to a Contra Costa County grand jury report, in the next decade the 85-plus population will grow by 55%, and the 65-and-older segment will grow by 37% (the Contra Costa Times, March 17, 2009, page A5). Sadly, the golden years are not all glitter. Also according to the Times, Adult Protective Services reportedly received 3500 reports of elder abuse in the last two years. Many in our aging population will continue to look to our public services, our legal system, and our bar for assistance. Hence the need to raise our members consciousness and better prepare our bar to deal with elder law issues: the need for a basic assessment of an elder s capacity; the need to protect seniors from scams; the need to sort out financial, mental and physical health and welfare issues in the context of civil and criminal cases these issues are varied and complex. Our authors this month bring varied backgrounds and considerable knowledge to bear on their subjects. Virginia George, director of the John F. Kennedy University Elder Law Clinic, alerts us to the need to assess a prospective elderly client s capacity. (She also gives us an MCLE opportunity, so don t forget to take the test and send it in.) Steven Riess, a San Francisco attorney and author of some of our most recent legislative changes, reminds us that there is no end to the scams targeting seniors. Even seniors with full capacity fall prey to them, including the Medi-Cal eligibility rip-offs he reports to us. Kathy Schofield, a Walnut Creek attorney, looks at the broader picture. Her article focuses on common issues of financial abuse and predatory lending, and does so from the perspective of class actions. Elder law issues intersect just about every area of the law, and family law is no exception. Family law attorney Andy Ross walks us through two such cases, examines the similarities and differences, alerts us to the problems, and wishes us luck! The Honorable Joyce Cram, presiding in the new Elder Law Court, is now dealing with all of the above and more. Her article helps us understand the how, when, where and why of the new court, and welcomes our assistance going forward. I hope you find these articles worthwhile. I appreciate the efforts of all of our contributors and thank them. I also thank you, our readers, for your interest. u Arlene Segal is the president of CCCBA s Elder Law Section. Her litigation and mediation practice focuses on real property issues, trust/estate disputes, and financial abuse of elders. 4 May 2009

5 LAW DAY FOR LAWYERS IV: How to Keep Your Profits Up When the Economy is Down... June 5, 2009 JFK University School of Law 100 Ellinwood Way, Pleasant Hill Program Moderator: Jay Chafetz, Law Office of Jay Chafetz Earn up to 6 MCLE Credits at this daylong series of lectures and roundtable discussions, which will focus on running a profitable law practice, even during an economic downturn. 8:00 8:30am Registration (coffee, tea & pastries included) 8:30-9:30am Getting and Keeping Clients Rick Norris, Principal Archer Norris 9:40-10:40am Maximizing Profits, Part I Getting Paid Andy Ross Whiting, Fallon, Ross & Abel Dealing with Potentially Insolvent Clients David Katzen, Katzen & Schuricht 10:50-11:50am Maximizing Profits, Part II Profitability Levers and Calculations Kristen Stark Hildebrant & Associates Noon 12:50pm Information Technology Computer Systems and Office Equipment David Pearson Law Offices of David S. Pearson Includes Boxed Lunch Concurrent Seminars: 1:00 1:50pm I. How to provide big employee benefits, even if you are a small firm Vic Tanon, Emplicity II. Getting a loan/line of credit from a bank and other banking issues Rick Wise Scott Valley Bank 2:00 2:50pm III. When to hire your first employee Jay Chafetz Law Office of Jay Chafetz IV. Business plans & strategic planning, even for the solo Richard Frankel Frankel & Goldware, LLP C O S T : All Day - Members: $75 / Non-members** $175 Includes coffee, tea & pastries, lunch & up to 6 Hours MCLE Credit 1-hour Sessions Members: $15 / Non-members: $30 Includes 1 hour MCLE Credit per session Lunch Session Members: $25 / Non-members: $50 Includes 1 hour MCLE Credit and a boxed lunch **Non member attendees may apply the difference between the member and non-member rate towards CCCBA membership. R E G I S T R A T I O N : Return via fax: 925/ , or mail to: CCCBA, 704 Main Street, Martinez, CA (See prices above) Name: Address: Phone: I/we would like to attend: All Day or Getting & Keeping Clients Maximizing Profits, Part I Maximizing Profits, Part II Lunch Session Information Technology Please select I or II: I. How to provide employee benefits... II. Getting a loan / line of credit from a bank... Please select III. or IV.: III. When to hire your first employee IV. Business plans & strategic planning... Payment: $ Check enclosed; Visa; MC; AMEX; Discovery # Exp. Date: Signature For further information, contact Lisa Reep at 925/ MCLE: The CCCBA certifies that these activities have been approved approved for for MCLE Credit by by the State Bar of of California (Provider #393). #393). Contra Costa Lawyer 5

6 president s message by Larry E. Cook I am delighted to take this opportunity to bring everyone up to speed on some of our major accomplishments so far this year, and to remind all members to keep an eye out for some exciting things that are in the works. We started off the year by making our annual Bar Fund grants. Our dedicated Bar Fund committee evaluated grant proposals from several worthy organizations. We were pleased and proud to be able to make the following grants: $10k Bay Area Legal Aid 10k 4k CASA 5k Deer Valley High School Law Academy 5k Senior Legal Services 5k JFKU Elder Law Clinic 1k The Hawkins Center 4k The Law Center $34k Total In addition to the $34,000 in direct cash grants, the Bar Association will make its first installment on a two-year $35,000 grant to an Equal Justice Works fellowship, which will provide a full time attorney to the Hawkins Center. We are especially pleased to be involved on the ground floor of the establishment of the Deer Valley High School Law Academy. In response to an unacceptable dropout rate of nearly 30% and with only 25% of graduating seniors eligible to enter college the Antioch Unified School District has joined forces with community groups, including the CCCBA and educational foundations, to establish a law academy at Deer Valley High School in Antioch. Starting this fall, the law academy will admit 100 freshmen to begin a four-year course of study based on the law and many aspects of law-related careers. For these fortunate students, legal education will be embedded into the broad curriculum. Students will emphasize legal studies as they meet all of the requirements for high school graduation and for college, university, or vocational school admission. The CCCBA has committed money as well as attorney and staff time to help this program become a success. To find out how you can get involved in the effort, contact Lisa Reep at our CCCBA offices. The financial commitment of our membership to the above causes at a time when the down economy affects us all is truly outstanding. To all of those who support the Bar s charitable giving effort, I extend a heartfelt thank you. With regard to bench/bar relations, I am extremely happy to report that our working relationship with the bench has never been better. In February, we held a very successful Get to Know Your Local Judges reception at Casper, Meadows, Schwartz & Cook. The event featured Judges Barbara Hinton, Jill Fannin, and Barry Goode, and was very well attended. The next reception will be held at Carroll Burdick & McDonough on June 11, featuring Judges Craddick, Cram, and Austin. Then we wrap up the year with a final reception for Judge Fenstermacher and Commissioners Green and Huffacker on September 24 at Whiting, Fallon, Ross & Abel. Please come out to meet and greet our fabulous bench officers. LAW OFFICES OF DOUGLAS A. PRUTTON Representing employees only in all types of labor and employment matters, including wrongful termination and overtime claims. Free consultation, contingency fees, costs advanced, 26 years experience info@amllp.com Clayton Road Suite 211 Concord (925) pruttonlaw@earthlink.net 6 May 2009

7 On March 20, the CCCBA sponsored our annual State of the Court Address. A record-breaking 28 judges (and more than 100 people overall) attended the event. Pre siding Judge Mary Ann O Malley, along with other judges who head up the various court divisions, spoke to the membership about the day-to-day workings of the court, and the ominous challenges presented by unprecedented cutbacks in state funding for trial courts. It is plain to see that the very survival of our justice system depends now more than ever on creative court management, hard working judges and a cooperative working relationship between the courts and the CCCBA. We have exciting news on the redesign of the CCCBA website. Based on input from our website redesign committee, chaired by board member Steve Steinberg, the project is now out for bid to several well-qualified designers. We hope to launch the new site by summer s end, with the goal of updating its look and feel, and to greatly improve its functionality. Lastly, on the education and professional development front, please save the date of June 5 for our Law Day for Lawyers at JFK University. Under the direction of CCCBA board member Jay Chafetz and his dedicated committee, a superb program has been fashioned to help members become and remain profitable during hard economic times. For solo practitioners, small and large firm members, this day-long seminar is not to be missed. These are merely some of the highlights of our Bar activities so far this year. Our strong and faithful membership provides for a healthy organization committed to our members and to our community. u Larry Cook, CCCBA s 2009 president, is a partner with Casper Meadows Schwartz & Cook in Walnut Creek. The firm represents plaintiffs in personal injury cases. Elder Law is Alzheimer s Planning A unique and effective style - a great mediator Please note new Address - Effective June 1 - Candice Stoddard The average survival rate is eight years after being diagnosed with Alzheimer s some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer s don t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall. Until there s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer s Association, approximately one in ten families has a relative with this disease. Of the four million people living in the U.S. with Alzheimer s disease, the majority live at home often receiving care from family members. If the diagnosis is Alzheimer s, call elder law attorney Michael J. Young Estate Planning, Disability, Medi-Cal, Long-term Care & VA Planning Protect your loved ones, home and independence. n San Miguel Drive, Suite 220 Walnut Creek, California and Mediation Center Ron Mullin Willows Office Park p 1355 Willow Way, Suite 110 Concord, California Telephone (925) p Facsimile (925) ronald@mullinlaw.com Contra Costa Lawyer 7

8 bench talk Elder Court by Hon. Joyce Cram In a criminal action, a son is charged with elder financial abuse for obtaining title to his mother s home, then borrowing heavily against it. Unable to pay these loans, the house goes into foreclosure, and the mother is facing eviction. In a conservatorship hearing, a daughter requests conservatorship of her mother, who was spending her life s savings on lottery scams. On the restraining order calendar, a grandmother seeks protection from her grandson, who has moved into her home, steals her personal property to sell it for drugs, and threatens her if she complains. These are the types of cases that are heard every Tuesday in Elder Court, Department 22, in the Spinetta Family Law Center. Launched on November 4, 2008 in Contra Costa Superior Court, Elder Court hears cases alleging that a senior has been a victim of physical, financial or emotional abuse. The goal of the court is to ensure that these types of cases receive comprehensive attention by assigning them to one judge. Elders can be the victim of physical or psychological abuse. An elder can be exploited financially, or be physically or emotionally neglected. Perpetrators can include care providers such as nursing homes or residential care facilities, financial advisors and managers, and even the elder s own family members. Cases involving seniors can be more complicated than other types of cases. The victim may not want to be involved in litigation against a person he or she had previously trusted, may not have a clear memory or understanding of what happened, or may be too frail to withstand the rigors of the courtroom. The need for a specialized court to address the needs of our aging population was recognized by the court leadership and a task force headed by Presiding Judge Mary Ann O Malley was created to develop this program. Our task force partners included the public defender, district attorney, county administration, and many community-based organizations, such as the Area Agency on Aging, JFKU Law School Elder Law Clinic, and Contra Costa Senior Legal Services. Despite recent reductions in state funding, the Contra Costa County Superior Court is committed to providing the maximum level of service to the public consistent with available resources. Since its inception, the goal of the Elder Court has been to fashion solutions to the complex problems a senior citizen faces when s/he is involved in the legal system. For example, an elderly victim of financial abuse may not have the resources or resilience that a younger person might have to recover from a financial loss. In such a case, more important than jail time is a sentence that includes full and early restitution. A senior victim of domestic violence may find a shelter unable to accommodate his or her physical limitations. The solution may be to work with the community to find alternative, safe housing. Elder Court works with all parties to find a resolution tailored to the specific needs of the affected senior. Elder Court could not succeed in these efforts if it weren t for the assistance of its partner agencies. The elder may be referred to mediation through Elder Mediation Services. S/he may be referred to the Senior Self Help Clinic for assistance. Senior Peer Counseling has a member in court at every session. All of these organizations work collaboratively for the benefit of the senior. In a recent case, for example, a woman was seeking an elder abuse restraining order against her son, who had moved her against her will into an assisted living facility. There were several family members present, and they were divided over this move. The mother was adamant she could continue to care for herself, yet some of the adult children felt she could no longer live alone. What was really needed, as the judge suggested, was a family meeting to determine a plan for the mother s care. The Peer counselor met with the senior, then with the entire family. By the end of the morning, they had arranged to go to mediation. Not only was the senior protected, but an issue 8 May 2009

9 that could have divided a family was on its way to resolution. Seniors face many hurdles as they try to navigate the legal system. Elder Court has tried to minimize these. Restraining order hearings are calendared at 10:00 and evidentiary hearings are set at 10:30. Not only do the victims have sufficient time to get to court, but they also have the chance to testify when they are most alert. A wheelchair is available, as are assisted listening devices. There are also emotional barriers that must be overcome. Many who have appeared in Elder Court are uncertain as to whom they can trust. The court can, in appropriate cases, appoint a guardian ad litem or an attorney to represent the elder victim. In one case, noting the victim s unwillingness to testify, the judge asked if he would talk with her if she came off the bench. He agreed, and willingly testified once he no longer had to go alone to the witness stand. Cases are assigned to Elder Court from many sources. Elder abuse restraining order hearings are calendared by Commissioner Judith Sanders and the branch courts directly to Department 22. Civil cases may be assigned at the first case management conference, or earlier, by stipulation. Criminal cases are assigned at the first appearance by the defendant. Conservatorship cases are referred by Commissioner Don Green. Many of these cases overlap, and Elder Court cases often entail a global settlement of these disparate issues. Our Elder Court continues to be a work in progress. Its ultimate form will develop from feedback from attorneys and the public. We hope that those of you who have cases involving the elderly will make use of the resource and help us improve. For additional information or periodic updates, please check the court s website at u Judge Joyce Cram was assigned to Elder Court last November. She has specialized training, and is experienced in the dynamics of elder law issues. Senior Self-Help Clinic by Verna Haas Imagine you are a senior in Contra Costa County. You have been sued by a credit card company that claims you owe them money. You are convinced that the company has made a mistake and you want to represent yourself in court. Where would you turn for information and advice? The answer could be the new Senior Self-Help Clinic (which opened in March) located in the Peter L. Spinetta Family Law Center in Martinez. The Senior Self-Help Clinic is the first of its kind, dedicated to helping seniors represent themselves in court. The clinic provides assistance with civil matters, particularly affecting the senior population, including elder abuse temporary restraining orders, landlord-tenant matters, and debtor-creditor cases. Staff at the clinic will be available on a drop-in basis to provide legal infor mation about court procedures, to assist with forms and pleadings, and to provide referrals to other legal, consumer and support services for seniors. The goal is to provide individual support for seniors so they can better help themselves present their case in court. The Senior Self-Help Clinic is a joint project of the Contra Costa County Superior Court and Contra Costa Senior Legal Services (CCSLS). It is funded in part by a partnership grant from the Equal Access Fund, administered by the California Bar Association. The court, in its continuing effort to assist self-help litigants, has agreed to provide space and facilities to support this innovative effort. CCSLS will provide the staffing and administration for the clinic. The Senior Self-Help Clinic will be open on a drop-in basis Tuesday mornings from 9am until noon. Those seeking assistance with an elder abuse temporary restraining order are advised to arrive before 10am to give adequate time to prepare the documents. Additional information about the clinic, as well as information on the court s other services for self-help litigants, can be found on the court s website at CCSLS is a private, non-profit agency located in Richmond. It has provided over two decades of free legal services to Contra Costa County residents who are 60 and older, with an emphasis on those who have the greatest social and economic need. CCSLS is available to advise and assist clients in such matters as housing, income maintenance, elder abuse, and consumer matters. Additionally, CCSLS provides a free wills program for simple wills, and sponsors a free legal consultation program at many local senior centers county wide. More information about the organization may be found on its website, Mediation Solutions Specializing in Tax, Probate, Wills, Trust & Business LL.M Taxation Over 25 years legal experience AV rated attorney with mediation training Experienced mediator since 1992 Nancy A. Gibbons naglawfirm@aol.com Contra Costa Lawyer 9

10 Client Capacity Judgments and Legal Practice by Virginia George MCLE SELF-STUDY Although attorneys seldom RECEive formal training in client CAPACity ASSESSMENt, they make capacity judgments on a regular basis. In the context of litigation, capacity may be the sole issue in controversy, such as in a conservatorship case or a challenge to a will, trust or donative transfer based upon an allegation of legal incapacity. Additionally, in the growing area of elder law, attorneys are frequently in need of assessing a client s capacity, not just for representation purposes, but to determine causes of action, case viability and trial strategies. An informal assessment of capacity must begin with the assumption that the client has the capacity to make decisions and engage in legal acts or transactions regardless of the client s age, the decision proposed, or previously diagnosed medical conditions. This assessment should blend in with the initial consultation. It should not be announced to the client, as such notice may cause the client to become uncom fortable and may impact the client s behavior during the meeting. During and immediately after consultation, the attorney should document any signs of incapacity. These notes may be used to analyze specific signs under the appropriate capacity standard, establish a baseline of signs for comparison in future assessments, and to defend against possible future challenges that the client did or did not have the requisite capacity to engage in the decision, act, or transaction. If possible, a team of two persons should perform the informal assessment for both note-taking accuracy and providing better opportunities to observe subtle signs of incapacity. In non-adversarial situations, such as estate planning or the handling of specific transactions, issues of capacity are confronted more informally in the daily practice setting. In this arena, attorneys by necessity make determinations of a client s capacity by assessing at least two points: First, the lawyer must determine whether a prospective client has sufficient legal capacity to enter into a contract for the lawyer s services. Failing this, representation cannot proceed. California Civil Code 38 holds that A person entirely without understanding has no power to make a contract of any kind... The phrase entirely without understanding means a want of capacity to understand or comprehend contractual transactions of the type involved. Second, the lawyer must evaluate the client s legal capacity to carry out the specific legal transactions desired as part of the representation such as making a will, buying real estate, executing a trust, and bestowing a gift. Depending upon one s practice, the presence of adequate capacity for the typical adult client is usually fairly obvious. However, with the growing number of Americans entering their 60s and beyond, capacity evaluations will be on the rise in the coming years. The Increasing Prevalence of Capacity Questions Due to the aging demographic bubble, the increase of longevity due to a number of factors and the greater incidence of dementia that accompanies the aging process, the incidence of cases in which capacity is an issue will substantially increase in the future. The term dementia implies no specific cause, nor does it represent an inevitable part of normal aging. However, the prevalence of dementia is estimated to double every five years in the elderly; growing from a disorder that affects 1 percent of persons age 60 and older, to a condition afflicting approximately 30 to 45 percent of persons age 85 years and older. Alzheimer s disease is the most common affliction affecting the brain, accounting for 60 to 70 percent of dementia cases. While new drug therapies are emerging to slow the progress of Alzheimer s, the disease continues to remain incurable and irreversible. American Bar Association s Model Rules of Professional Conduct The ABA s Model Rules of Professional Conduct (MRPC), as revised in 2002, acknowledge a lawyer s assessment functions, and even suggest a duty to make informal capacity judgments in certain cases. For the first time, the revised rule attempts to give some guidance to lawyers faced with this particular task. MRPC 1.14: Clients with Diminished Capacity, recognizes: first, the goal of maintaining a normal attorney-client relationship; second, the discretion to take protective action in the face of diminished capacity; third, the discretion to reveal confidential information to the extent necessary to protect the client s interests. Lawyer Assessment of Capacity While California has not yet adopted any rule or guideline clarifying how an attorney can make an informal capacity assessment, 10 May 2009

11 California courts and ethics committees have turned in the past to the ABA Model Code on questions about which of the California rules are silent or obscure. As such, attorneys may take into account the factors set forth below when assessing the capacity of a client: Ability to articulate reasoning behind the decision Variability of state of mind Ability to appreciate consequences of the decision Irreversibility of the decision Substantive fairness of the decision Consistency with lifetime commitments These factors appear in the Comment section to Rule 1.14 as a general guide. They derive from recommendations of a 1993 National Conference on Ethical Issues in Representing Older Clients, and in particular, from an article on representing clients with questionable capacity prepared for the conference by Professor Peter S. Margulies. Additionally, a collaborative effort between the American Bar Association and the American Psychological Association culminated in the publication of a highly informative guide entitled Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers. The handbook offers ideas for effective and ethical practices for attorneys who are in need of balancing the sometimes-competing interests between goals of client autonomy and legal protection, particularly when confronting the challenging work with older adults with diminished capacity. Observing Signs of Possible Diminished Capacity There is no single indicator that provides a consistent, clear signal that an older adult is functioning with diminished capacity. However, there are markers that, when considered together, may reflect diminished capacity. While any signs should not be taken in and of them- u Nursing Home Neglect Elder Abuse Referral Fees Paid According to State Bar Guidelines NURSING HOME & ELDER ABUSE LAW CENTER 1600 S. Main Street, Suite 185 Walnut Creek, California The Law Offices of David M. Lederman David M. Lederman Certified Family Law Specialist State Bar Board of Legal Specialization Walnut Creek: (925) Oakland: (510) Toll Free: (877) Tom Smith Associate Attorney Practicing exclusively in all aspects of Family Law in Walnut Creek and Antioch 3432 Hillcrest Avenue Suite 100 Antioch, California Lennon Lane Suite 102 Walnut Creek, California Phone Fax Contra Costa Lawyer 11

12 selves to be proof of a lack of capacity, they may indicate a need for further evaluation of capacity by an independent professional if the signs are present in sufficient number and/or severity. In noting potential signs of incapacity, it is critical to keep in mind that the focus is on decisional abilities rather than on client cooperativeness or affability. It may, at times, be challenging to disentangle one s reactions to a client s interpersonal style from observations of the client s cognitive, emotional and/or behavioral problems. Additionally, it is useful to be sensitive to societal stereotypes about aging (commonly termed ageism ). Aging stereotypes may be positive, idealizing old age; or negative, including the assumption that aging and diminished capacity are synonymous. While such beliefs could influence an accurate appraisal of capacity, awareness of the possible signs of incapacity will hopefully help the lawyer to be more objective. During the interview, the attorney should be aware of specific cognitive, emotional or behavioral anomalies that serve as potential red flags (which may indicate possible neurological or psychiatric illnesses) that could diminish a client s capacity. These signs and their severity should be documented during and immediately after a client interview. The following overview, with illustrative examples, will assist in observing possible signs of diminished capacity: Possible CognITIve Signs of Incapacity Short-term memory loss: Client forgets information discussed in the interview, repeating the same statements or asking the same question multiple times with no indication that s/he has done so more than once. Communication problems: Client is asked a direct question and has trouble staying on topic, frequently shifting to discussion of unrelated issues, or moving erratically or nonsensically between topics. Comprehension problems: Client has difficulty in repeating back or paraphrasing simple concepts. Lack of mental flexibility: Distinguished from being stubborn, a client may lack the capacity to understand or even acknowledge multiple alternatives or viewpoints other than his/her own, or have difficulty comprehending and adjusting to changes. Calculation problems: Client has very basic difficulties with simple math problems that are far worse than expected given his/her level of education. For example, someone with a college degree who lines up columns of numbers incorrectly while adding or subtracting. Disorientation: Client can become disoriented relative to space, time or location. For example a long-time client may have difficulty navi gating through the attorney s office building spatially or get lost driving to the office even if s/he has been there several times over many years. Or, the client may make reference to events from several years ago as if the events were current. Possible Emotional Signs of Incapacity Significant emotional distress: Client may appear anxious, tearful, or seem depressed and appear to have no energy and respond very slowly to questions. Emotional liability/inappropriateness: Client may show an extremely wide range of emotions during an interview (such as moving quickly from laughter to tears). Alternatively, client may express feelings that appear highly inconsistent with what s/he is discussing (such as laughter when discussing death of a spouse or tears of distress while professing to be happy). Possible Behavioral Signs of Incapacity Delusions: Client holds beliefs that are unlikely to be true; such as a belief that s/he is being spied on by neighbors or the government. This may also manifest more generally in expressions of feeling frightened or unsafe. However, apparent delusions that seem more reality-based may warrant further exploration; such as concerns about relatives or nursing home facility staff stealing money or possessions from the client, which may be more reality-based. Hallucinations: Client can have auditory or visual experiences, such as hearing voices that no one else can hear. An example is an older adult who seems to be having a conversation with another person who is not there. May also involve other senses such as smell, touch or taste. Poor grooming/hygiene: Along with irregular bathing or shaving, for example, a relatively common behavior among older adults with dementia is to wear multiple layers of clothing, such as several shirts or pairs of pants. Mitigating Factors In addition to noting potential signs of incapacity, attorneys should be aware of a number of mitigating factors that may influence observed signs. If found, these factors may indicate a need for alternative action: such as referral to a physician, adjusting the approach to communication, or waiting until another time when the client is functioning better. Those factors include: Stress, grief, depression or recent stressful events Reversible medical factors Normal fluctuations in mental ability in older adults Hearing and/or vision loss Individual differences and variability considerations such as socio-economic back ground or cultural and ethnic traditions Conclusion In the coming years, the senior population will increase exponentially. Attorneys will need to be versed in evaluating their clients capacities both initially and potentially throughout the course of their representation. Awareness of how to generally assess capacity and the need to do so will result in improved representation as well as increased sensitivity to this important and respected segment of our population. u Virginia M. George, supervising attorney and director of the John F. Kennedy University Elder Law Clinic, is also a board member of the Contra Costa County Bar Association. 12 May 2009

13 Ethics MCLE Test May 2009 Contra Costa Lawyer MCLE Self-Study 1. In litigation, the issue of client capacity may be the sole matter in controversy. T or F 2. The concept of ageism refers only to negative stereotypes about aging. T or F 3. The assessment of capacity must begin with the assumption that the client has the capacity to make decisions and engage in legal acts, regardless of the client s age. T or F 4. The attorney should document any signs of potential client incapacity both during and immediately after the client interview. T or F 5. It is advisable for a team of two persons, including the attorney, to do the initial client capacity assessment. T or F 6. California Civil Code 38 holds that A person entirely without understanding has no power to make a contract of any kind... T or F 7. The prevalence of dementia in the elderly population appears to be on the decline. T or F 8. In 2002, the ABA s Model Rules of Professional Conduct were revised to acknowl edge a lawyer s assessment functions and suggested a duty to make informal capacity judgements in certain cases. T or F 9. According to the ABA Model Code, one factor attorneys may consider when assessing the capacity of a client is the client s ability to appreciate the consequences of his or her decision. T or F 10. A recent collaboration between the American Bar Association and the American Psychological Association resulted in the publication of a guide entitled Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers. T or F 11. Only one indicator exists that provides a clear signal that an older adult is functioning with diminished capacity. T or F 12. When assessing a client s capacity, attorneys must take care to focus on decisional abilities rather than on client cooperativeness or affability. T or F 13. Possible cognitive signs of incapacity include short-term memory loss and disorientation. T or F 14. A client who appears anxious or tearful may be exhibiting signs of significant emotional distress. T or F 15. Possible behavioral signs of inca - pacity could include poor grooming or hygiene. T or F 16. Delusions that are more reality-based warrant further exploration, such as the client s concerns about relatives stealing his/her money or possessions. T or F 17. If mitigating factors are present during the interview, one alternative would be to postpone the interview until the client is functioning better. T or F 18. Stress and grief play no role in assessing a client s capacity or lack thereof. T or F 19. If the signs of potential client incapacity are present in sufficient number and/or severity, they may indicate a need for further evaluation of capacity by an independent professional. T or F 20. Depending upon an attorney s contact and nature of representation of a client, capacity assessment may be an ongoing concern as the client ages. T or F Contra Costa Lawyer 13 Name Law Firm Address City & Zip Telephone State Bar # 1. True False 2. True False 3. True False 4. True False 5. True False 6. True False 7. True False 8. True False 9. True False 10. True False 11. True False 12. True False 13. True False 14. True False 15. True False 16. True False 17. True False 18. True False 19. True False 20. True False Mail this completed form and the $20 testing fee (checks made pay able to CCCBA) to: Michele Vasta, CCCBA, 704 Main Street, Martinez, CA The Contra Costa County Bar Association certifies that this activity has been approved for one hour of Ethics MCLE credit by the State Bar of California (Provider #393). ^

14 Question man What is your opinion about a mandatory retirement age? In my opinion, there should not be a mandatory retirement age. Instead, retirement should be based on an individual s choice depending on his / her health and mental abilities which today are ageless. Jessica A. Braverman Braverman Mediation & Consulting Those who have the mental and physical ability to work and want to work should be allowed to. The government should not dictate mandatory retirement ages. Of course that leaves open the question, Does the individual have the mental and physical ability to perform the job to expectations? Overall, less government is better government. Charles F. Schreiber, Jr., CPA Affiliate Member Given the poor economy, fewer people will be able to retire, and a mandatory retirement age may turn out to be a luxury we cannot afford. D. Alexander Floum The Williams Firm Artificial barriers to anyone being productive in our society (like age, gender, race, religion, sexual preference) are examples of bias and prejudice. Anyone who feels that they are competent should be allowed to compete. Let the best person win. Anthony Ashe Law Office of Anthony Guy Ashe Bad idea. Chesley Sullenberger shows that airline pilots, like lawyers, only improve with time. Joseph Nykodym Ryan & Lifter It depends on the definition of retirement and who or what is mandating it. Jim Arnold The Arnold Law Practice I think mandatory retirement age rules (like most rules based solely on the existence of one immutable characteristic) are discriminatory and ridiculous. Consider Arthur Winston, leader of 11 employees in the Los Angeles County Metropolitan Transportation Authority, who retired on his 100 th birthday (and died one month later). Consider Warren Buffet, age 79, Chairman & CEO of Berkshire Hathaway. Chester Reed, 93, was the oldest postal employee still working in the nation in And last, but not least, my grandmother, Marian at 86, a file clerk at a busy industrial medical clinic. All of these individuals have impressive attendance records, only missing work a handful of times in their entire lives. Of course individual employees often have to leave or be terminated for a range of reasons. But age is a characteristic that often enriches rather than undermines performance. If it must be considered at all, it should be respected as an asset, not prejudged as a liability. Heather Holbrooks-Kuratek Law Offices of John F. Martin I think it is an inappropriately easy way to make an otherwise tough decision about an individual s slipping performance. I believe that we each should be judged on our performance not on the number of miles we have on our odometer. Michael Patrick Durkee Solo, Walnut Creek The boomers cannot afford to retire now, if they ever could. Generations X and Y want the boomers who have already saddled them with a huge legacy of debt to get out of the way so they can advance. Some businesses may not be able to find everyone they need to replace boomers in certain jobs. This is a major problem already manifesting itself, and it will get worse. John Barnard Law Offices of John Barnard The best person to answer this question is Judge Richard Arnason, who is still working energetically in his 80s. I hope I can but I hope I do not need to. Pieter Williams Law Offices of Pieter K. Williams Our firm is committed to a mandatory retirement age. The Nevin, Ramos & Steele partnership agreement requires retirement at age 97. Alan Ramos Nevin, Ramos & Steele 14 May 2009

15 If we are talking about attorneys, I know some excellent attorneys who are well past medicare age. If we are talking about other professions, probably Sully would be gone before long. I think it is an individual matter, whether or not the person could still do the job and still wanted to. If it were mandatory, who is going to decide on that age? Hopefully not someone under 30. Dorothy Henson Henson & Henson Being forced to retire at a certain age would have harsh quality of life effects on a lot of older people who are still quite capable of contributing to society. Working, especially in a job one enjoys, gives many people a purpose for living. Directly addressing capacity issues, perhaps through mandatory physicals each year after a certain age, might be a better idea. Dess Benedetto Family Trust Law Center Poppycock and Balderdash! When a person is ready to quit, he or she knows it not you. But for judges, it is different. We need to make room for more younger judges and that might not occur without mandatory retirement. But judges really don t retire anyway they go to JAMS or ADR or pro tem. So mandatory retirement is good for judges and other jobs where you can be hired back under a different title to do the same type of things. Wayne V. R. Smith Attorney and Mediator What? And lose all that experience and (so-called) wisdom? Tom Cain Solo, Walnut Creek I think it is an outdated, stereotypical concept which does not correspond to the real world. As AARP says, 60 is the new 30. I think 65 is the new 35. There are all kinds of economic and social factors driving people to want to work later in life and I do not believe the arguments for preventing them from doing so are persuasive. People are getting married later in life, having children later in life and may have several marriages. The demographic dominance of the babyboomer generation, coupled with medical advances and healthy lifestyles, means so many seniors remain important assets to their employers. Instead of a mandatory retirement age, I would advocate incentives to encourage employers to create flexible jobs to adapt to the real world needs of the workforce today: e.g., parents, seniors, those with health issues, those responsible for taking care of their elder parents and those wanting some time to smell the roses. Marjorie Wallace Nancy Balles, APLC I like the Benjamin Button concept: Retire at 21 for 10 years while you can really enjoy it. Then work until you die with your boots on. David L. Roth Real Estate Law Offices of David L. Roth I think most people today feel increasingly enthusiastic towards working as long as they can for monetary reasons, for health and social considerations, even for purely personal reasons. Employers also want to retain their most valuable, experienced and talented people a lot more than even a decade ago. By contrast, in India the cutoff is at 58, so by 2010, onefifth of the workforce is out of work. Marc Bouret Bouret ADR & Mediation Firm Don t do it! I have a six and a seven year old. I don t think they can hold down full time jobs yet. But I can ask them if you insist. Matt Guichard Guichard, Teng & Portello I believe I am the perfect example of why there should not be a mandatory retirement age. I am 75-plus years old. I practiced law for 50 years straight, retiring from the active practice of law at the end of After six months, I was bored and am now the foreperson of the San Francisco Civil Grand Jury. I will be looking for another position at the end of my one-year term. If you have your health, just stay active, travel and keep going. Leonard A. Kully No longer bored in San Francisco With age comes wisdom Just ask Maurice (Moyal) or Seymour (Rose). Merritt Weisinger Walnut Creek Family Law Center I do not think there should be a mandatory retirement age. Retirement should be based upon an individual s performance in a specific occupation and the required duties and not chronological age. Unfortunately, as we age, some of our senses may deteriorate as well as some of our physical abilities. If a person is able to adequately function in his or her occupation both physically and mentally without causing injury to anyone, I do not see why a mandatory age for retirement is indicated, especially with the current economic climate. Patricia Timm Galloway, Lucchese, Everson & Picchi Am I there yet? David A. Brown Law Office of David A. Brown Contra Costa Lawyer 15

16 Stopping Medi-Cal Eligibility Rip-Offs: A new tool for protecting elders by Steven Riess Understanding MEDI-Cal ELIGIBILITY is daunting, regardless of one s sophistication, competence, or professional experience. For the elder who is physically or mentally infirm and who may be anxious about institutionalization or other end-oflife issues it can be an impossibility. For years, predators have exploited this combination of ignorance and fear by selling elders so-called Medi-Cal eligibility planning services at exorbitant prices. These plans often guarantee eligibility although, in most instances, such guarantees are merely empty promises. Regardless of their circumstances, plans are aggressively pitched to: elders who are in good health and who may never need services covered by Medi-Cal; elders who are nearly impoverished and who would qualify for benefits merely by applying; couples with assets well within the commu nity spouse resource allowance; elders who have sufficient assets to pay for anticipated needs; some people in their 50s and in good health. In other words, these plans are sold to any one who will buy them. Prices charged for these plans vary considerably, from a low of about $10,000 to a reported high of $65,000; most are in the $15,000 to $25,000 range. The actual price seems to depend largely on what the elder is able or willing to pay. Thus, although the services offered are typically the same, the price charged may be $15,000, $17,500, $19,995, $21,995, or $23,500. In many instances, if the elder shows resistance, the sales representative will call the supervisor and get permission to reduce the price for that day only. In one instance, the elder told the sales representative that her funds were invested in a certificate of deposit subject to a penalty for early withdrawal. The sales representative received permission to reduce the price by the amount of the penalty if the elder would immediately agree to the plan. If the elder does not have sufficient funds, s/he is often encouraged to borrow the money from relatives. The services provided to purchasers of such plans typically follow a pattern. After the check is cashed, the account representative visits the elder s home with a portable photocopier, and copies all of the elder s financial and estate planning records. Thereafter, a crude accounting is created. Regardless of whether the elder has an existing estate plan, s/he is usually referred to an associated attorney for creation or revision of estate planning documents. The fee already paid does not cover such legal services, and the elder typically pays an additional fee of between $1,500 and $3,000. Although the elder may have a variety of health issues and concerns, placement at a skilled nursing facility is typically not imminent. Accordingly, if the elder would then qualify for Medi-Cal, nothing further is done. If the elder later needs Medi-Cal covered services, the service may or may not assist the elder in completing an application. If the elder has assets, the service typically advises gifting. At this point, many elders balk at the advice to impoverish themselves so that they might someday become eligible for benefits. In one instance, a couple in their mid 60s, in good health and with an estate in excess of $3 million, were advised to gift all of their assets to relatives. At this point, many elders realize that they have been cheated. Few attorneys have been willing to represent elders exploited by such pred ators, primarily because the amounts involved are relatively small, and proving fraud or similar causes of action can be difficult. During 2008, the Legislature addressed this problem in Senate Bill 1136 (Elaine Alquist Santa Clara County). This bill which passed both the Senate and Assembly unanimously and was signed by the Governor on September 28, 2008 revises the Consumers Legal Remedies Act (CLRA) [Civil Code 1770 et seq.]. The CLRA protects consumers from 23 enumerated unfair or deceptive acts or practices. A plaintiff who proves conduct in violation of the CLRA may recover actual damages, an injunction against continuing violations, restitution of property, punitive damages, 16 May 2009

17 reasonable attorney fees, and costs. Senate Bill 1136 supplements this list of deceptive practices with a new prohibition: charging or receiving an unreasonable fee to prepare, aid, or advise any prospective applicant for public social service benefits. The statute defines an unreasonable fee as an amount that is exorbitant and disproportionate to the services performed. In determining the reasonableness of the fee, the court is to consider factors such as: the time and effort required; the novelty and difficulty of the services; the skill required to perform the services; the nature and length of the professional relationship; the experience, reputation, and ability of the person providing the services; and any other relevant circumstance. A plaintiff who proves a violation of this new prohibition is entitled to all of the CLRA s existing remedies: damages, injunctive relief, restitution, punitive damages, attorney fees, and costs. In addition, the court is required to award the plaintiff treble actual damages. The practical effect of this new provision is clear: any person (an elder or a younger) who is exploited by a Medi-Cal eligibility planning service need only prove that the fee charged was unreasonable and dis proportionate to the services provided. Proving that the fee is unreasonable results in a mandatory award of treble actual damages and attorney fees. This new remedy significantly alters the economics of these predatory practices for both the elder and the predator; a $25,000 service fee will result in an award of $75,000 plus reasonable attorney fees. For rip-offs occurring this year (the new law went into effect January 1, 2009), the elder should have considerably more success in finding an attorney who will take the case; for the predator, the cost of doing business suddenly went up. u Roger F. Allen Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Inc. 155 Grand Avenue, Suite 1050 Oakland, CA rallen@eakdl.com Standards Strategies Strength Solutions WELL PREPARED to handle your complex business transactions Doug Maggi, SVP ext. 209 Bob Kouba, VP ext. 212 Northern California Mediator / Arbitrator Colleen Benatar, VP ext years as Mediator 20 years as Arbitrator 28 years in Civil Practice Training includes Mediation Course at Pepperdine University 1995 Serving on Kaiser Medical Malpractice Neutral Arbitrators Panel Settlement Commissioner, Alameda and Contra Costa Counties Pro Tem Judge, Small Claims, Alameda County Experienced in all areas of Tort Litigation, including injury, property damage, fire loss, malpractice, construction defect Rick Wise, EVP ext. 216 California s Oldest Independent Bank WALNUT CREEK 1500 N. California Blvd Oakland, 1111 Broadway, Santa Clara 5201 Great America Pkwy., Steven Riess is a San Francisco attorney specializing in elder financial abuse. In 2007, he wrote Senate Bill 611 (authorizing attachment in elder financial abuse); in 2008, he wrote Senate Bill 1140 (expanding financial abuse laws) and Senate Bill 1136 (revising the Consumers Legal Remedies Act to prohibit the sale of exorbitantly priced Medi-Cal eligibility planning to seniors). Take advantage of one of the many CCCBA membership benefits! To schedule an appointment with a CCCBA notary, please call Barbara Tillson, (925) Main Street Martinez Free Notary Services Contra Costa Lawyer 17

18 Attacking the predators Using Class Actions to Fight Financial Elder Abuse by Kathryn Schofield Mr. Smith, a 70-year-old retiree, purchased a deferred annuity from an Annuities R Us sales representative who came to his house. His new annuity will mature in 30 years, if Mr. Smith is lucky enough to reach the age of 100. Mr. Smith will incur substantial penalties if he withdraws any of the funds early. Annuities R Us markets its annuities almost exclusively to seniors. Its representatives are carefully trained and controlled by corporate headquarters. The representatives sales materials are all carefully crafted and supplied by headquarters. The representatives are on commission, and receive bonuses for selling the type of deferred annuity Mr. Smith purchased, whether or not it is an appropriate financial vehicle for a senior. The picture of financial elder abuse people envision is that of the ungrateful adult child, siphoning money from the unwitting parent. However, an entirely different subset of elder abuse exists where businesses set out to profit from the elderly s particular vulnerabilities. This country s wealth is concentrated in the elderly: over 70% of American s net worth is held by those 50 and older. 1 Much of that net worth is held in seniors homes. Seniors are often isolated, anxious about their finances, and financially unsophisti cated. It is no wonder they are a tantalizing target for the unscrupulous. Historically, institutional financial elder abuse like the annuity sale above, reverse mortgages, Medi-Cal scams, etc. have been challenging to pursue in a court of law. Often the senior does not know or admit that something bad has happened; it is estimated that only 1 in 100 financial elder abuse claims are ever reported. The money taken from seniors is often too small of an amount to justify an individual legal action. Litigation can take so long, and the stress generated so intense, that the senior could die before s/he would ever see the fruits of the attorney s labor. Financial predators know these challenges prevent people from pursuing claims against them, and are all too willing to exploit the legal system s limitations to their advantage. Fortunately, tools are available that make it possible to pursue these predators. In particular, combined with new changes in the financial elder abuse statutes, the class action is becoming a very powerful tool in the fight against financial elder abuse. Financial elder abuse class actions are an emerging area of law, with very few published cases on the books. However, there are currently dozens of such class actions winding their way through the courts. They include allegations of the selling of inappropriate annuities like that described above, and other abusive schemes ranging from reverse mortgages, predatory lending, exorbitantly priced Medi-Cal planning services, trust mills, and the unauthorized practice of law. The new amendments of the Elder Abuse and Dependent Adult Civil Protection Act ( EADACPA ) and the Consumer Legal Remedies Act ( CLRA ), operative as of January 1, 2009, are particularly useful in the class action context. Individual issues raised by class members specific circumstances can often derail a case; the revisions allow for stronger arguments that class treatment of these claims is appropriate and, in fact, superior to the alternatives. Financial elder abuse occurs when a person or entity takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [Cal. Welf. & Inst. Code (a)(1).] Financial elder abuse also occurs when someone assists in any of the above, or does any of the above through undue influence. [ (a)(2)-(3).] Wrongful use is defined as when the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult. [ (b).] Intent to defraud is different from fraud in an important way; each victim does not have to show that s/he reasonably relied on misrepresentations made by the defendant. This definition allows a plaintiff class to argue more effectively that common issues predominate. For example, in the hypothetical above, one predominant common issue under the new definition of financial elder abuse is whether Annuities R Us should have known that such deferred annuities were harmful to seniors, just by virtue of the seniors ages and the maturity dates of the annuities. In contrast, whether Mr. Smith reasonably relied on any misrepresentations made by Annuities R Us when he purchased the annuity is not likely to be an element of the elder abuse claim at all. There is no published opinion yet on this commonality issue, but based on the new language, it is a strong new argument to make at class certification. As a result of this new statutory language, attorneys may now pursue class claims against predators who otherwise face no serious threat to their ongoing business plans. Similarly, the CLRA has been amended to include a new tool in the fight against elder abuse. The CLRA now prohibits 18 May 2009

19 charging or receiving an unreasonable fee to prepare, aid, or advise any prospective applicant, applicant, or recipient in the procurement, maintenance, or securing of public social services. [Civ. Code 1770(a)(24)(A).] Unreasonable fee is defined as a fee that is exorbitant and disproportionate to the services performed based on several enumerated factors. [Civ. Code 1770(a)(24)(B)(ii).] Like the definition of financial elder abuse, this definition lends itself to common issues of fact and may be appropriate for class treatment. Determination of whether a fee is reasonable does not require an inquiry into each senior s situation, especially when the defendant charges a flat rate. Add these statutory changes to the existing framework of elder abuse statutory penalties and damages, and the power of the elder abuse statutes are apparent. The statutory penalties in financial elder abuse and CLRA cases are substantial, including attorney fees [Welf. & Inst. Code (a)] treble damages [Civ. Code 3345] and punitive damages [Civ. Code (CLRA attorneys fees, punitive damages and penalties provisions)]. Combined with the new standards for elder abuse, these damages are a powerful tool to both combat and deter predatory behavior. There isn t enough space here to go into the intricacies of what makes a case suitable for a financial elder abuse class action. There are pragmatic issues like whether the defendant is solvent. There are complex legal issues like federal preemption. Suffice it to say, when the right facts present themselves, a class action offers a unique opportunity to effect positive change, protect a population that sorely needs protecting, and to actually get paid for doing a public good. u Kathryn Schofield, who practices elder law in Walnut Creek, can be reached at kathy@ schofieldlawgroup.com. Effective Neutrals At Competitive Rates! Hon. Alfred Chiantelli (Ret.) Hon. M.O. Sabraw (Ret.) Walnut Creek Oakland San Francisco Sacramento MEMBER FDIC Hon. Richard Flier (Ret.) Hon. Douglas Swager (Ret.) Dorene Kanoh, VP 50 Fremont St., Ste San Francisco, CA Hon. Stephen Foland, Comm. (Ret.) Hon. James Trembath (Ret.) Hon. Richard Hodge (Ret.) Michael Carbone, Esq. Business Escrow Services at Mechanics Bank. Mechanics Bank Business Escrow Services Department offers a wide range of escrow services for attorneys. We are the experienced, neutral third party you need to manage your client s business transactions in accordance with the terms of the escrow agreement. Call us today to learn how we can help you with: Stock Transfers and Merger Acquisitions Subscription Offerings Professional Practice Sales Holding Escrows Bulk Sales Hon. Joanne Parrilli (Ret.) Eric Ivary, Esq. Depository for 1031 Exchanges Contractor Retention/Construction Contract Controlled Disbursement Accounts Hon. Bonnie Sabraw (Ret.) Michael McCabe, Esq. tel fax All of the statistics in this article were cited in: Betty Malks, M.S.W., CSW, Santa Clara County, Director of Aging and Adult Services, Social Services Agency, 2006 Senior Summit, May 12, 2006 ( summit.ca.gov/materials/betty_malks.pdf). Business Banking Corporate Banking Wealth Management Personal Banking Contra Costa Lawyer 19

20 ^ Easy When Conservatorship and Marital Dissolution Procedures Collide by Andrew Ross As medical science and technology prolong lives and in some cases resuscitate individuals after a debilitating medical event such as a stroke it is more likely that a person will become involved in concurrent marital dissolution and conservatorship proceedings. In two recent cases, a spouse was brought to probate court for conservatorship proceedings and concurrently (or shortly after) was required to initiate or respond to a marriage dissolution petition filed in the family court. Each case presented unique problems, both legal and practical. Both of the marriage disso lution proceedings were in Contra Costa County, although they were in different family law departments. One of the conservatorship proceedings was venued in Alameda County; the other in a court in Southern California. The judicial philosophy of the probate court judges heavily influenced the outcome of both cases. One case was difficult to commence; the other was difficult to conclude. Conservatorship-Dissolution Facts Patterns If you have not seen a case of this type, you will: A 60-something year old, once divorced, well-heeled fellow married a younger woman whose financial situation is not as comfortable or established as his. There is no pre-marital agreement. He has adult children from his first marriage. Shortly after a round-the-world trip, they acquire a multi-million dollar home in joint tenancy. He makes a $1 million-plus down payment on the property. Not long after the purchase, he suffers a significant stroke and is substantially incapacitated. His children and siblings take an interest in his health care and his property. In this first case, the gentleman s new wife began to quarrel with his siblings and children about care and maintenance and the management and disposition of his property. The wife filed a conservatorship proceeding. Legal counsel was contacted by one of the gentleman s siblings. Should the new wife be her husband s conservator, and is undue influence being exercised by the new wife on her husband? There were two matters of immediate concern. First, federal law requires that the new wife must be the beneficiary of her husband s 401(k) plan. The balance in that account exceeded $2 million. Second, the house was held in joint tenancy. If the prospective conservatee died prior to the commencement of a marriage dissolution proceeding in which his appointed authorized agent could terminate the joint tenancy and establish his separate property contribution, the house would devolve to his spouse by right of survivorship. If he died before a judgment terminating the parties marital status was entered, his 401(k) would pass to her as well. The probate court was urged to authorize the filing of the dissolution proceeding on behalf of the conservatee, to protect the conservatee s property and avoid dissipation of his estate. The probate judge was clearly more interested in protecting the health and well being of the conservatee than in the ultimate disposition of his property. It indicated that the property issues were of no particular concern to the court; it wanted to ensure the conservatee s health, safety and comfort. How Does the Dissolution Case Begin? The leading cases in this area are In Re Marriage of Higgason (1973) 10 Cal.3d 476, disapproved on other grounds; In Re Marriage of Dawley (1976) 17 Cal.3d 342; and In Re Marriage of Caballero (1994) 27 Cal.App.4 th In Caballero, an incapacitated spouse had an institutional conservator to manage her financial affairs. Her son from a prior marriage attempted to initiate a legal separation proceeding in the family court on her behalf. He filed a petition to be appointed her guardian ad litem in the to-be-filed marriage dissolution proceeding. The family court granted the husband s motion to quash the service of the summons and dismissed the action. The Court of Appeal held that the wife s 20 May 2009

21 son, who was her attorney-in-fact and her nominee as conservator, established his entitlement to be appointed guardian ad litem and to seek that designation in the family court for the purpose of filing a legal separation proceeding. Anyone who has the conservatee/ dissolution case should read Caballero carefully. Starting at page 1152 of its decision, the Court of Appeal enumerated many of the remedies available to a conservatee in a dissolution proceeding that would otherwise not be available to her in a conservatorship proceeding. Some remedies available to the incapacitated spouse are: Immediate temporary support consistent with parties marital standard of living and the avoidance of a situation where the incapacitated spouse is required to support herself/himself out of separate property. The potential to recover legal fees and costs. The jurisdiction and power to issue restraining orders to preclude conduct contrary to her rights (now embodied in the standard family law restraining orders). An accounting of assets and obligations incident to marriage and the ability to require cooperation and complete disclosure within a relatively short period of time. It was important to file the petition in the family court, after which the first steps taken would be to terminate the joint tenancy and perfect the incapacitated husband s separate property interest in the family residence, and terminate marital status for the purpose of ensuring the incapacitated spouse could lawfully redesignate a beneficiary of his 401(k). Under the Caballero guidelines, an Order to Show Cause was filed in the family court, requesting that one of the siblings of the proposed conservatee be appointed as his guardian ad litem and be given permission to file suit for legal separation. 1 This caused difficulty in the family court: under standard rules, all petitions are required to be filed. The petition was not held, as counsel had requested, for delivery to the judge for the purpose of his conducting a hearing on whether a guardian ad litem should be appointed and the petition for legal separation filed. The petition was filed before the guardian ad litem was appointed. On the wife s motion to strike the petition on the grounds that the guardian ad litem had not been appointed, the court issued a tentative ruling that indicated it would grant the motion to strike; and thereafter the hearing was put over at the parties joint request so a property agreement could be negotiated. How Does the Dissolution Case End? A complete property agreement was quickly reached. Wife was represented by an experienced family law practitioner who understood that it was inevitable and in the best interests of all parties to resolve the case on the best terms that could be negotiated under the circumstances. Given the husband s condition, the parties could no longer live as man and wife. Once the terms of the formal agreement were put together, the legal separation proceeding was converted to a dissolution proceeding, the family court entered a judgment into which the terms of the parties agreement were incorporated, and the marriage was terminated. The probate court played no role in the approval of the terms of the judgment that divided the parties property. The husband s heirs at law were fully apprised of the terms and conditions of the settlement and approved them in advance. The facts and circumstances of the other case were different. The husband resided in, and was being treated at, a Southern California facility. The facility was the best in the state to provide continuing 24-hour care to him, which he needed by reason of the effects of his stroke. Unlike the first case, the parties had been married for a long time, approximately 20 years at the time of the debilitating event. They remained married for a period of about nine years thereafter. At that time, the conservatee s brothers took an interest in what they perceived to be his wealth and attempted to cut off his spouse from the financial benefits that derived from generous disability payments he was receiving from policies that had been acquired during the marriage. This precipitated the wife s filing a marriage dissolution pro ceeding. A valuable home and 401(k) were also the major assets in this marriage. A global settlement ultimately was reached with guidance from a proactive Southern California probate court. In the latter case, the conservator also acted as the guardian ad litem for the conservatee/respondent in the marriage dissolution proceeding. The probate court prodded him into settlement negotiations with the wife; then it conducted hearings on the terms of the settlement proposals, which were being exchanged between the parties to the family court proceedings. In the end, the probate court required all of the interested parties in the probate proceeding to authorize and approve the terms of the settlement in a formal stipulation and order. The probate court judge required that he sign the Judgment of Dissolution on its face, indicating his approval of the document, after which it was approved by Contra Costa County s family court judge. In the latter case, the settlement process took four months to conclude after the deal was struck. In the first case, the transaction was closed in four days after the deal was made. Conclusion There is little science to this practice. Similar cases have different stories, different endings. Know your judge. Know your local rules. Wage your battle in the proper arena. Be prepared. Work hard. Hope for a little luck. u Andy Ross, managing partner of Whiting, Fallon, Ross & Abel, is a certified family law specialist whose family law practice is located in Walnut Creek. 1 CCP 372 requires an incompetent person, including a conservatee, to appear through a guardian ad litem appointed by the court in which the action is pending or by his conservator. A guardian ad litem may be appointed upon application of a friend or a relative, CCP 373. Contra Costa Lawyer 21

22 Pro Bono Spotlight by Craig Nevin Verna Haas and Geoffrey Robinson We have two silent heroes in our midst: Verna Haas and Geoffrey Robinson. Our readers are likely to know Geoff as one of the county s eminent attorneys, whose practice focuses on land use, development, and real estate litigation. Geoff, a longstanding (and now managing) partner of Bingham McCutchen, has been with the firm for 22 years. Verna may be less well known, as she took a hiatus to raise three girls before returning to the practice of law. She currently works as a staff attorney with Contra Costa Senior Legal Services; she formerly worked as an assistant district attorney in Sacramento, and then later in private practice doing primarily business litigation. Those who are well acquainted with Geoff and Verna know they are married to each other have three daughters, several dogs and cats, five chickens, and roughly 20,000 bees and are both avid bridge players. Both are also active members of the CCCBA and share an important and sincere dedication to worthy causes. Over the past 18 years, Geoff has been a board member of Contra Costa Senior Legal Services (CCSLS). He, like many others at Bingham McCutchen (including Sandy Skaggs and current board president Camarin Madigan), has made a profound difference in the lives of countless seniors. With his support, guidance and direction, CCSLS has fulfilled its mission to provide free legal services for seniors who could not otherwise afford any representation at all. This ongoing work (amazing in and of itself) is only a part of Geoff s larger commitment: he has also been an active participant in his firm s pro bono program, representing individuals, non-profits and public agencies before state and federal courts, including several matters in the California Supreme Court. Former co-chair of the California Commission on Access to Justice and current board member of the Public Interest Clearinghouse, he is the recipient of the firm s first John J. Curtin Public Service Award and the California State Bar s President s Pro Bono Award. While at home, Verna was involved in numerous school and community-based volunteer activities, including leading a girl scout troop for many years, driving for Meals on Wheels, and working in the Career and Counseling Center at Acalanes High School. Two years ago, she joined CCSLS as a staff attorney, and has handled a diverse array of cases ranging from elder abuse and consumer credit matters to adverse possession. In the fall of 2007, Verna began working on a special CCSLS project. She wrote a grant proposal that was accepted by the California Bar Association s Legal Services Trust Fund Program. In addition, she has instituted a pilot program: The Senior Self-Help Clinic (which is a collaboration between the Contra Costa Superior Court and CCSLS see article on page 9). Available on a weekly basis, this program helps seniors in our county who are representing themselves in court. Staff at the clinic are available to help with elder abuse temporary restraining orders, to assist pro per clients with forms and procedures, and to make referrals to legal or other support service providers. The clinic is the most recent program at the court designed to assist this traditionally under-served population. Earlier this year, the Elder Court debuted in Department 22 of the Contra Costa Superior Court (see Bench Talk on page 8 for more information). Many self-represented seniors who have been the victims of elder financial, physical or emotional abuse appear before Judge Cram seeking protective orders. Verna s pilot project provides assistance to seniors who need a protective order and aren t otherwise represented by counsel. When asked about this program, Judge Cram reported: It was great to see how well this program worked from day one. To see a senior getting this help is fantastic. Geoff and Verna have contributed so much, it is hard not to be amazed. For those readers who have not yet made or fulfilled their own pro-bono commitment for 2009, these two help us recognize some of the many ways in which attorneys can assist indigent parties, assist the court in processing its cases and increase access to justice. For further information on how you can become involved, please contact Craig Nevin at cnevin@lawnrs.com. u 22 May 2009

23 got coverage? We can provide coverage for you and your employees: Medical Dental Vision Life Disability 401 K Flex Plan Individual / Family Plans Myers Stevens Mello can also: r Market your current group plans r Resolve issues on all plans on a day-to-day basis r Provide open enrollment meetings r Assist with employee communication pieces r Interact with insurance companies Myers-Stevens-Mello & Co., Insurance Services 1111 Bayhill Drive, #275 San Bruno, CA fax Specializing in employee benefits since 1946 License # 0F04106 vcall us today for a free quote! Legal Solutions for the Busy Practice Contra Costa Lawyer 23

24 ethics corner by Carol M. Langford We all know that economic times are bad. What you may not know is how creative lawyers can be in an effort to create an income stream where the well has run dry. This is reflected in the calls and s I am getting about various schemes (cough business ventures cough) lawyers are cooking up to survive the financial crisis. A call to the State Bar uncovered that they too are getting an unprecedented number of calls from lawyers about going into business with brokers, financial planners, and others wanting to join forces to stem their losses. The complaint intake telephone line at the Bar is getting at least 50 calls a day from lawyers across California about this issue. The most common pairing the Bar is getting calls about is a lawyer and a broker who decide to engage in loan modification services. Brokers first call attorneys they know to solicit them to form a joint venture to process loan modifications for people with foreclosure problems. The homeowner pays them upfront, with no guarantee that s/he will get the modification. You can guess the rest: the loan modification does not come through, and the homeowner files a State Bar complaint. Lawyers initially do not worry about the Bar and legal malpractice implications. They believe that the client s credit is damaged in the first place, so it is the client s fault that the loan fell through. But wait. Isn t that what caused the financial meltdown in the first place people with bad credit obtaining loans? And can lawyers charge people to do work that likely will never result in any benefit to the client by selling the possibility of obtaining a loan? There are no easy answers for a homeowner who is on the edge of the economic abyss but has not yet fallen in. The Rules of Professional Conduct on fee splitting (1-310 and 1-320) come into the picture any time lawyers get involved with non-lawyers in a business partnership. Rule is also implicated since the lawyer is getting into a legal as well as a business relationship with a client. COPRAC Ethics Opinion is right on point and you can get it online at the State Bar website. It describes all the ways lawyers can fall into an ethics pit with these deals and should be read by everyone contem plating an arrangement with a non-lawyer. These work around ventures (as the Bar calls them i.e. trying to form a partnership with a non-lawyer to work around the Rules of Professional Conduct) are most often too problematic to be lucrative to lawyers. Perhaps that is because financial advice is a much different concept than legal advice. People know that someone has to lose a case, and that they may have to settle for less than they hoped to receive. But people cannot wrap their mind around a financial loss as easily. The lawyer who is targeted by the broker, financial planner, etc., is usually struggling financially, or is a new lawyer who hasn t yet cemented his or her role in the legal community. The broker tells the lawyer of the money to be made if they Julie Schumer Certified Appellate Specialist Certified by the State Bar of California Board of Legal Specialization Motions, Appeals & Writs 30 years experience juliesch@ix.netcom.com Wanted Conservatorships think Matt Toth as in Pedder, Hesseltine, Walker & Toth, LLP oldest partnership in Contra Costa County (52 years) p f Golden Gate Way, P.O. Box 479 Lafayette, CA AV Martindale-Hubbell 24 May 2009

25 work together, and stresses that together they will help people in distress, appealing to the nobler motives of the young lawyer. But the broker has a real monetary incentive to partner with a lawyer which has nothing to do with helping the homeowner because by law a broker can t accept money until the end of the transaction. Lawyers are not so bound and can take money upfront, handing over the broker s share early, before the deal is done. The folks who don t get approved for a loan (or who fail to make money) complain to the Bar, forcing an already-struggling lawyer to be in serious trouble. Least any of you think law firms are immune to this, they are not. I get calls from firms seeking to get into ventures with lobbyists and developers, too. They bring in non-lawyers as part of the firm and then seek to get advance conflicts waivers from their clients who may be affected by the work the nonlawyer will do. There are ways this type of thing can work, but you need to consult with someone before trying it. Try to hang on and not do something that could get you in trouble. This financial crisis shall pass, probably by the end of the year. u Carol M. Langford is a lawyer specializing in attorney conduct matters in Walnut Creek. She is a past chair of the California State Bar Ethics Committee and an adjunct professor of ethics at U.C. Hastings College of the Law. Please submit your ethics questions to langford@usfca.edu. Real Estate Lawyer Over 25 years experience in the real property business! Commercial/Residential Title Matters Probate/Trusts Dispute Resolution (International) Law Offices of Magany Abbass 3445 Golden Gate Way Lafayette, CA Arlene Segal Law Offices of Arlene Segal Litigation - Mediation Trust and Estate Disputes Financial Abuse 100 Pringle Avenue, Suite 780 Walnut Creek, CA telephone (925) fax (925) note new Address! Contra Costa Lawyer 25

26 Glenn & Dawson LLP Certified Public Accountants new members Donald A. Glenn CPA, ABV, CVA, CFE Leslie O. Dawson CPA, ABV, CVA Specializing in Litigation Support family law Business Valuations Probate and Estates Financial Investigations Audit Tax and Accounting Services for individuals and privately owned companies. 323 Lennon Lane, First Floor Walnut Creek, CA Telephone (925) Facsimile (925) Mark V. Murphy Personal Injury Referrals Requested Over 25 years experience representing injury victims. Practice dedicated solely to Personal Injury. Each client given prompt, courteous attention. Antioch and San Ramon Offices Ericka L. Ackeret McNamara Law Firm John C. Adams McNamara Law Firm Ara Alikian McNamara Law Firm Amy L. Alvis Living Trusts by Amy Daniel Arsenault Bardellini, Straw, Cavin & Bupp, LLP Verne Ball Bingham McCutchen Edna V. Basa Tenax Law Group, P.C Robin M. Birnbaum Law Student Robert G. Boden, II Sarah F. Burke Burke ADR Patricia L. Crumpley Law Offices of Patricia L. Crumpley Gregory D. Delee Law Offices of Greg Delee Konstantine Demiris Contra Costa County Counsel JoAnne L. Dunec Miller Starr Regalia Derek M. Duarte McNamara Law Firm Cheryl Fabio Law Student Tom Fama Bardellini, Straw, Cavin & Bupp, LLP Crystal A. Fernandes Constance H. Figuers Perkins & Grohs Juliana K. N. Fiske Jenny Elizabeth Hughes Fitzgerald Van De Poel, Levy & Allen, LLP Denise M. B. Foster Law Offices of Michael N. Gendelman Stephen J. Fowler Miller Starr Regalia Corinne N. Fratini Morrison & Foerster, LLP Erin M. Gallagher Archer Norris Selam S. Gezahegn Law Student Peter Goetsch Cecily E. Gray Brian H. Gunn Wolfe & Wyman, LLP Andrea M. Hicks Whiting, Fallon, Ross & Abel, LLP Christy L. Hunsberger Law Student Jessica L. Hunter Tatum Hunter Filice Brown Eassa & McLeod, LLP Linda Boi Huynh JAMS Edward C. Hsu Morison Ansa Holden Assuncao & Prough, LLP Greogory Iskander Littler Mendelson Benjamin A. Johnson Law Office of Benjamin A. Johnson Meredith Johnson Perseus Wealth Rhett R. Johnson Edrington, Schirmer & Edrington May 2009

27 Rachael G. Jung Basham Parker, LLP Ali A. Karaouni Miller Starr Regalia Tara Kim Filice Brown Eassa & McLeod, LLP Craig A. Kroner Locak Angelo Lagorio Law Student Jonathan D. Larose Law Offices of Jonathan D. Larose APC Virgil A. Lawrence Rome Investments Sherolyn H. Lee Morison Ansa Holden Assuncao & Prough, LLP Mark D. Lipton Office of the City Attorney San Francisco Cristin M. Lowe Cummins, Holmes & Geraldi Laura S. Lowe Miller Starr Regalia Rodman Martin Julie Martucci McNamara Law Firm Robert A. McFarlane Townsend, Townsend & Crew, LLP Lauren E. Montana Luis M. Montes Law Offices of Luis M. Montes John T. Nejedly Law Offices of John T. Nejedly Courtney O Brien Brian O Toole Michael C. Osborne Archer Norris Ryan J. Otis Farrowe Pan Kate Petersen McNamara Law Firm Warren R. Peterson Law Office of W. R. Peterson Sara Pfeffer West & Associates Alissa Pleau-Fuller Archer Norris Kenneth W. Pritikin Patricia S. Raysik FindLaw, Thomson Reuters Annette M. Rittmuller Allen Matkins Leck Gamble Mallory & Natsis, LLP Rainy Robinson 8 th Amendment Bail Bonds Hussein Saffouri Ramsey Law Group Joseph Salama Tenax Law Group, P. C Jay A. Sayles Paladin Law Group, LLP Hideaki Sano Miller Starr Regalia Peter W. Sekelick McNamara Law Firm S. Samantha Sepehr JFKU Elder Law Clinic Brian D. Shaffer Miller Starr Regalia Brent J. Slonecker Miller Starr Regalia April Sommer Jenny L. Tuffnell Law Office of Spunaugle & Tuffnell Arati Vasan Sigrid R. Waggener Stoel Rives, LLP Kirsten L. Wallace Archer Norris Benjamin W. White Law Offices of Benjamin W. White J. Todd Wulfsberg Wulfsberg Reese Colvig & Firstman Complete ADR Services ADR PROFESSIONALS JUDGE MICHAEL J. BERGER JUDGE RICHARD H. BREINER HON JEANNE MARTIN BUCKLEY JUDGE VICTOR CAMPILONGO JUDGE JOHN J. GALLAGHER JUDGE ISABELLA H. GRANT JUDGE RONALD GREENBERG JUDGE INA LEVIN GYEMANT JUDGE HADDEN ROTH JUDGE VERNON F. SMITH PATRICK M. BRODERICK CLAYTON E. CLEMENT W. GREGORY ENGEL HOWARD M. GARFIELD PERRY D. LITCHFIELD GARY T. RAGGHIANTI PAMELA M. SAYAD MICHAEL D. SENNEFF ERIC STERNBERGER MATTHEW N. WHITE RICHARD S. WHITMORE W. BRUCE WOLD Look for us on the Web Famous ResRem Lunches Diane Levinson-Fass, President Diane Story, Vice President Tel: (800) Contra Costa Lawyer 27

28 local civil jury verdicts by Matthew P. Guichard The year 2008 witnessed a total of 18 jury verdicts in Contra Costa County Superior Courts. Plaintiffs prevailed in but 3 of those jury verdicts, and defendants in was a bit kinder to plaintiffs, with 14 jury verdicts out of a total of 25 jury trials saw 25 total jury trial verdicts had 28 total jury trial verdicts. This year started with a whimper, witnessing no jury trials to verdict, and one court trial. For those who are counting, at least the plaintiff won that lone court trial. February had two jury verdicts and two court trial verdicts. Plaintiffs took both jury verdicts, and defendants took both court trial verdicts. Our first case report is Kretchmer/Chavez v. East Contra Costa Fire Protection District, et al., Case #C The Honorable Barbara Zuniga presided. The plaintiffs Diana Quaintance, Carol Kretchmer, Sinette Chavez and the Macaranas family were represented by Jim Larsen, Charles Custer, Scott Bonzell, and Mark S. Castillo/ Gina Acosta respectively. The defendant was represented by Timothy J. Ryan. Ms. Quaintance settled her claims just before trial for the sum of $1.2 million. The Macaranas family also settled (for an undisclosed amount) before trial. This case was a personal injury action arising out of a multi-vehicle intersection accident at Camino Diablo and Vasco Roads on the afternoon of June 5, 2005, involving a fire engine en route to a fire, with emergency lights and siren activated. Fifty-five-year-old Carol Kretchmer was driving her Toyota Corolla northbound on Vasco Road. Fortyyear-old Sinette Chavez was in the rear seat. The engine driver testified that the signal light on Camino Diablo was red for his direction as he approached the intersection. He slowed to 15 mph before entering, after checking for traffic on Vasco Road and failing to see the northbound Toyota. The fire engine was struck broadside by Kretchmer s Toyota in the number one northbound lane. Kretchmer also failed to see the fire engine and she neither braked nor took any evasive action before the impact. The CHP witness statements corroborated the fire engine driver s testimony that he slowed to 15 mph before entering the intersection. But these same witnesses, and later-identified witnesses, all testified that the fire engine was traveling between 35 to 50 mph and did not slow as it entered the intersection against a red light. Kretchmer suffered significant internal injuries including blunt trauma to her left side, a collapsed lung, air in lung, multiple displaced rib fractures, and a broken clavicle. She was hospitalized for nearly two months. Her past medical expenses totaled $460,000. She worked with a respiratory therapist who had a 30-year work history. She claimed that she was unable to return to her previous occupation and could only work part-time in a new, less physically demanding occupation. She claimed a past and future wage loss of nearly $500,000. Kretchmer s lowest settlement demand was $740,000. The Fire District raised its settlement offer to $425,000 during trial and then made a high/low offer of $200,000/ $700,000 while the jury was deliberating. Following one day of deliberations, the jury returned a verdict in favor of Kretchmer in the gross amount of $759, (economic damages of $709, and noneconomic damages of $50,000.00). The jury assigned 30% fault to Kretchmer and 70% fault to the fire engine driver. The net award to Kretchmer was $531,896, plus costs. Plaintiff Sinette Chavez was hospitalized for two months and suffered significant injuries, including a displaced neck fracture (C-2), which required several surgeries, pins and screws. She suffered broken ribs, a broken clavicle and a leg gash. Her past medical expenses totaled $730,000. She also suffered significant and permanent limitations in her neck range-of-motion, which precluded her from returning to her previous part-time occupations as waitress and home health aid worker. She claimed she was only able to return to work in a more sedentary position (e.g. a receptionist). The defense did not contest her medical claim. Chavez claimed past and future wage losses of $65,000 to $93,000, plus $90,000 in future medical care expenses. In its defense, the Fire District asserted that Chavez failed to present a timely tort claim within six months of the discovery of her cause of action for personal injuries. Chavez did not present her tort claim until more than one year after the accident. No settlement negotiations of any consequence ever occurred between Chavez and the Fire District due to the issue of the tort claim defense. The jury returned a verdict in favor of the Fire District and against Chavez on the tort claim defense. 28 May 2009

29 Tiller v. John Muir Medical Center, et al., Case #C , was tried before the Honorable Joyce Cram. Jay G. Chafetz of Walnut Creek represented the plaintiff, while Martin J. Everson, also of Walnut Creek, represented John Muir Medical Center. David Walker of Danville represented the defendant medical doctor. On January 8, 2007, decedent Roy Gustavson, 91, died as a result of respiratory failure. The day before, Gustavson who had a history of chronic obstructive pulmonary disease (COPD) sustained the acute onset of chest pain and shortness of breath while at home. He was taken by ambulance to the ER at Concord s John Muir Medical Center. While en route to the hospital, he was treated with a cardiac protocol of oxygen, nitroglycerine, and aspirin. Gustavson arrived at the ER at 3:55pm. Upon arrival, his complaint of chest pain had resolved, although he remained short of breath. He was triaged as a level two, and placed in a bed where he was put on continuous monitoring of his vital signs. Shortly after arrival in the ER, he was seen by Dr. Leland Mew, who ordered diagnostic testing that included a chest x-ray, EKG, and blood work. Dr. Mew also ordered a nebulizer treatment to improve respirations, and interpreted the test results to be negative. The doctor ordered Gustavson to be discharged approximately two-and-a-half hours after Gustavson s arrival at the ER. Gustavson was prepared for discharge by a nurse, who noted that he became short of breath while moving from the bed to a wheelchair. Shortly thereafter, another nurse wheeled him out to his car and saw him become short of breath when moving from the wheelchair to his car. Gustavson was then transported home by a family member. His condition worsened, and he was brought back to the hospital by ambulance six hours later in critical condition. He died later that morning as a result of respiratory failure. By CCP 998, the plaintiff demanded $30,000 from John Muir and $50,000 from the doctor. John Muir offered to waive costs. Defendant doctor offered $5,000. The jury returned a defense verdict on behalf of John Muir and the doctor. Steven E. Hall and Carole Hall v. Birdsall, et al., Case #CIVMSC , was presided by the Honorable Judith Craddick. Edward Nevin of San Francisco represented the plaintiffs, and G. Patrick Galloway and Shelley Smith of Walnut Creek represented the defendants. This was a medical action brought by Steven and Carol Hall, residents of Lexington, Kentucky. Dr. Birdsall was dismissed in exchange for a cost waiver. The case went to trial against emergency physician Daniel Libke, MD and California Emergency Physicians, and was centered around the treatment rendered in the Mt. Diablo ER on May 18, Mr. Hall, staying in a Concord hotel while visiting with his wife from Kentucky, was seen in the ER. He had an acute onset of nausea, vomiting and an EKG that showed poor R wave progression. The following morning, at approximately 7:00 am, Mr. Hall (then staying with his wife in San Francisco) woke up with shortness of breath and gasping for air. He returned to Lexington that same day, where he was diagnosed as having had a heart attack. The defense conceded that Mr. Hall did in fact have a heart attack. However, expert testimony by the defense opined that the heart attack occurred after he was discharged from the Mt. Diablo ER, and most likely, when he woke up the following morning in San Francisco with shortness of breath and gasping for air. Mr. Hall elected not to return to the emergency room. Rather, he returned home to Kentucky and did not seek medical treatment for more than 24 hours. According to the defense experts, Mr. Hall s EKG taken when he returned home revealed he had an ongoing heart attack, as contracted with the EKG from the Mt. Diablo ER. In Kentucky, Mr. Hall was diagnosed as having significant cardiac damage and a reduced ejection fraction, and required implantation of a defribulator requiring the need for life-time cardiac medications/care, as well as signifi cant limitations to his activities of daily living. Prior to trial, plaintiffs made no firm settlement demand. In closing argument, plaintiffs counsel asked the jury to award $933,702. Defendants offered to waive costs. The jury returned a defense verdict. u Matthew P. Guichard is a principal in Guichard, Teng & Portello, APC. Send case information to: 1800 Sutter Street, Suite 730, Concord or contact Matt at or mattg@gtlaw.net. Young Design & Production D E S I G N W R I T I N G E D I T I N G Young Design & Production is the designer for the Contra Costa County Bar Association Specializing in law firm brochures and newsletters Nancy Young Owner P.O. Box 1867 Benicia, CA (925) or (707) young-design@prodigy.net Contra Costa Lawyer 29

30 advertisers index ADR Services, Inc Maureen E. Ahlf Roger F. Allen Armanino McKenna LLP Barr & Barr Attorneys Diablo Valley Reporting Services Nancy Gibbons Glenn & Dawson LLP JAMS Law Offices of Arlene Segal Law Offices of David M. Lederman Law Offices of Douglas A. Prutton Law Offices of Magany Abbass Mechanics Bank Mullin Law Firm Mark V. Murphy Myers-Stevens-Mello & Co Nursing Home & Elder Abuse Law Center..11 One Hour Legal Services Pedder, Hesseltine, Walker & Toth, LLP.. 24,30 Resolution Remedies Julie Schumer Scott Valley Bank Young Design & Production Michael J. Young Youngman, Ericsson & Low, LLP Zandonella Reporting Service offices for rent... contract attorneys... job opportunities... classifieds Walnut Creek Window Office Lease a fully furnished window office w/sec station and tons of amenities. On-site conf rooms, receptionist service, law library, telephone system, voice mail, notary (onsite), copy machines, postage machines, and mail-handling. Professional Class A bldg. w/plenty of parking, great location, and easy access to freeway and BART. Call Kristie, , x224. Lafayette Transit Village Office Space Office in business law firm next to BART in Lafayette (27 min. to Montgomery Street BART station). Receptionist, conf. room, parking, ground floor, only one block from post office and Lafayette s restaurant row. Call Jim or Michelle at Ygnacio Valley Road, Walnut Creek Share building with 7 solos. One office available. All amenities Walnut Creek shadelands area $795/month. Window office (approx. 154sf) and sec space (approx 64sf) in quiet setting off walking trail in the Shadelands (end of Lennon Lane, off Ygnacio). Single story bldg. Shared kitchen, receptionist, conf rooms and library included. Please contact Christine, , x13. Window Office Walnut CREEk Treat Blvd near BART. Conf room, fax, copier, good freeway access. Parking. What a deal only $450/mo CONFERENCE ROOMS FOR RENT Two conference rooms conveniently located near the courthouse in downtown Martinez (CCCBA office, 704 Main Street). Reasonable rates (hourly, half-day, fullday). Full catering service available. Call Manny, professional announcements Probate paralegal TO attorneys Joanne C. McCarthy Concord Blvd. Concord, CA Call Private Investigator Bob Bailie Investigations can help to find that witness and confirm facts. Over 30 years of experience. Call or bailiepi@aol.com for a seasoned professional. Lic. #2328. Get it done right! To place a display or classified ad, please call Young Design & Production ( ). Display ads start as low as $80 per month; classifieds run as little as $36 per ad. Youngman, Ericsson & Low, LLP 1981 North Broadway Suite 300 Walnut Creek, CA Tax Lawyers. (925) May 2009

31 Will & Trust Litigation Elder Abuse Litigation Conservatorships B A R R & B A R R A T T O R N E Y S 101 Gregory Lane, Suite 42 Pleasant Hill, CA (925) Edward E. Barr Christopher M. Moore Loren L. Barr* John Milgate, Of Counsel Joseph M. Morrill Tracey McDonald, Paralegal *Certified Specialist, Estate Planning, Trust and Probate Law, The State Bar of California Board of Legal Specialization Contra Costa Lawyer 31

32