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LAWYER Volume 27, Number 3 | May 2014

Insuran ce: Are You Covered ? Why You Should Seriously Consider Structured Settlements Long-term Care Insurance vs. Medi-Cal Long-term Care Benefit

The Changing Landscape of Employer-provided Health Insurance 1 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Perry A. Novak Senior Vice President - Investments

UBS Financial Services, Inc. 2185 N. California Blvd., Suite 400 Walnut Creek, CA 94596 (925) 746-0245 perry.novak@ubs.com ubs.com/team/thenovakgroup

You know there are more questions you should be asking, but you're not sure what they are. You want to stop procrastinating and make a decision, but you don't feel well enough informed. You know where you want to be, but you don't have a plan that will get you there.

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Trusted advice, caring support, prudent financial solutions.

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Contra Costa  2014 BOARD OF DIRECTORS Stephen Steinberg President Nicholas Casper President-Elect Candice Stoddard Secretary Elva Harding Treasurer Jay Chafetz Ex Officio Philip Andersen Dean Barbieri Amanda Bevins Oliver Bray Denae Hildebrand Budde Mary Carey

Michelle Ferber Peter Hass Reneé Livingston Katherine Wenger James Wu

LAWYER Volume 27 Number 3 | May 2014

The official publication of the

B   A   R        A   S   S   O   C   I   A   T   I   O   N

FEATURES WHY YOU SHOULD SERIOUSLY CONSIDER STRUCTURED SETTLEMENTS by Richard L. Katz

INSURANCE AND PROBATE ISSUES IN PURSUING PERSONAL INJURY CLAIMS AGAINST DECEASED DEFENDANTS

CCCBA   EXECUTIVE   DIRECTOR Lisa Reep | 925.288.2555 | lgreep@cccba.org CCCBA main office 925.686.6900 | www.cccba.org

Emily Day Barbara Arsedo

HIPAA BUSINESS ASSOCIATE AGREEMENTS: DON’T TREAT THEM AS BOILERPLATE

Systems Administrator and LRIS Coordinator Fee Arbitration Coordinator

Dawnell Blaylock

THE CHANGING LANDSCAPE OF EMPLOYERPROVIDED HEALTH INSURANCE

CONTRA COSTA LAWYER Harvey Sohnen Suzanne Boucher 925.258.9300 925.933.1500

Nicole Mills Matthew Guichard

925.942.5100

925.957.5600

PRINTING Steven’s Printing 925.681.1774

PHOTOGRAPHER Moya Fotografx 510.847.8523

925.459.8440 Elva Harding 925.215.4577 Patricia Kelly 925.258.9300 David Pearson 925.287.0051 Samantha Sepehr 925.287.3540 Marlene Weinstein 925.942.5100 James Wu 925.658.0300

The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year - 6 times online-only - by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@cccba.org. 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.

Cover inspired by “Serviette,” a comedy act by Les Beaux Frères. You can view it online at: http://www.lesbeauxfreres.com/#!comedyacts/c9k0.

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by Colleen Callahan

CO-EDITORS EDITORIAL BOARD

COURT LIAISON Stephen Nash

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by Rebecca J. Kurland

Communications Coordinator

BOARD LIAISON Candice Stoddard

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by Ralph L. Jacobson

Jennifer Comages Theresa Hurley

Membership Coordinator Associate Executive Director

925.351.3171

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LONG-TERM CARE INSURANCE VS. MEDI-CAL LONG-TERM CARE BENEFIT

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LRIS IS GOOD FOR YOUR BUSINESS

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by Daniel H. Maloney

by Joe Wolch

DEPARTMENTS

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INSIDE | by Ron Mullin

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PRESIDENT’S MESSAGE | by Stephen Steinberg

20 CENTER | Women’s Section Annual Wine Tasting and Silent Auction [photos] Law Practice Management Series 2014 23

PRO BONO SPOTLIGHT | by Samantha Sepehr

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ETHICS CORNER | by Carol M. Langford

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INNS OF COURT | by Matthew Talbot

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COFFEE TALK: What’s your best memory of Mark Ericsson?

34 CALENDAR 38 CLASSIFIEDS

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inside

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n this issue, the Contra Costa Lawyer takes a look at insurance.

have signed up 7.1 million people for insurance under the Affordable Care Act.

Richard Katz extols the benefits of structured settlements both for our clients and for us. Initially, insurance companies liked the idea of structured settlements to increase the overall size of their offers for settlement.

With more options available to employers, even small employers of 1–50 employees, and shrinking physician networks, the need for some professional advice is paramount. Welcome to the Brave New World of health care!

Unfortunately, many clients with large personal injury awards frittered away their settlement funds, leaving themselves destitute. There had to be a better way. Structured settlements provided a vehicle to space the timing of receipt of settlement funds in amounts that were greater than a one-payment settlement offered. This was a benefit to the clients and also to the insurance companies. Attorneys found that they could take a portion of their fees and have them held and paid to an annuity company that would pay out the funds when that attorney was older and perhaps receiving less income than during the height of his/her career. Ralph L. Jacobson’s article is a look at the intricacies of filing a personal injury action against a decedent, or more accurately, their insurance carrier. He offers excellent tips on utilizing California Probate Code sections 550 et seq. to file an action directly against the insurer. He points out the limitations of this kind action—the plaintiff can only look to the limits of the policy and not to any assets of the decedent’s estate. The remaining articles in this issue deal with health care insurance matters. Rebecca Kurland explains the intricacies of the Health Insurance Portability and Accountability Act of 1996 which we often hear referred to as “HIPAA.” In the never-ending quest to secure private information, and in the case of HIPAA, to secure private health information, the requirements for businesses dealing with health information are complex and a trap for the unwary. Rebecca explores the need for business associate agreements and how they are applied not just to a health care entity but to subcontractors of those entities as well. Colleen Callahan, a certified life underwriter, delves into the changing landscape of employer-provided health insurance. Efforts by the federal government and key states such as California 4

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Daniel Maloney discusses the pros and cons of using long-term care insurance versus the long-term care benefit of Medi-Cal. He explains that this is a very technical area of law and can be a huge benefit for families, even those with a modicum of resources. Medi-Cal can pay for an ill person’s skilled nursing care and assets can be legally arranged and distributed so as to avoid a recovery lien for benefits actually used. And finally, Joe Wolch, committee chair of the Lawyer Referral and Information Service weighs in on the benefits of joining the LRIS, not only for your practice, but also for the benefit of the public in search of legal advice and a lawyer who can assist them. s Ron Mullin is a Past President of the CCCBA and the founder of the ADR Section. He is an Elder Law attorney and Mediator with a practice in Walnut Creek and Concord.

AND

MEDIATION CENTER

“A unique and effective style a great mediator” Candice Stoddard     Ron Mullin

Willows Office Park   p   1355 Willow Way, Suite 110 Concord, California 94520 Telephone (925) 798-3413   p   Facsimile (925) 798-3118 Email ronald@mullinlaw.com

president’s message Stephen Steinberg CCCBA Board President

P

eople often say that we have a great Bar Association, but over the past three months, I have seen it up close. At our semi-annual section leaders meeting in February, I announced to the leaders of our 20 (yes, 20!) sections my intention to attend at least one event held by each section over the next six months. My hope was to meet leaders and members of each section and get a better sense of what the rest of the Bar is up to and how to better assist our sections. So far, I have had the opportunity to attend events held by eight sections. I attended the Estate Planning & Probate Section’s Annual Probate Lunch at the Contra Costa Country Club in late January along with about two hundred other lawyers. Even more amazing than the attendance was the fact that: (a) the keynote speaker, Probate Judge Sugiyama, injured his leg the day before and had to have surgery which prevented him from attending, yet he found time to write an entertaining letter that was read at the event, and (b) a few members of the section put together a one-hour MCLE on the latest developments in probate law on less than 24-hours notice.

In February, I went to four section events. The first was a Tax Section lunch at Archer Norris on Section 1031 Exchanges, whereby an investor in property can exchange it for a similar property and thereby defer any taxes on the capital gains that would otherwise be due. It was standing room only and it was a fascinating topic, even for a non-tax attorney. Christina Ortega is doing a great job leading that section. Second, I went to a Juvenile Section event at the main courthouse in Martinez about domestic violence, the variety of contexts in which it arises, and how to recognize the context and tailor the response to the particular situation. The speaker was excellent. His insights about family dynamics would be useful to anyone, whether in dealing with your own family or trying to understand the background behind other people’s behaviors. Third, I attended the Real Estate Section’s monthly breakfast at Scott’s Seafood Restaurant, which included an informative presentation by Craig Nevin about mechanics liens. What was most impressive was how the event gradually transitioned into a collaborative discussion among the section members about specific issues they had encountered with mechanics liens and different strategies they had tried in the past. Lastly, I attended the Barristers Section’s semi-annual Bridging

the Gap program in Martinez. I was encouraged by the fact that unlike the past few years, most of the attendees already have jobs in a wide variety of practice areas, and are excited about the practice of law and the prospects for success. In March, I attended two section events. The first was a West County Section lunch at the venerable La Strada in San Pablo with a presentation by Jim Yu about personal injury law for non-PI specialists. Attendance was so unexpectedly large that the restaurant had to bring several additional tables to accommodate everyone. I was gratified to meet several other people who were not from West County— one person came all the way from San Ramon—and they agreed the food and Jim’s presentation were worth the trip. Then I attended an Intellectual Property Section breakfast at the offices of Brown, Church and Gee in Walnut Creek. Jaime Herren and Terry Church gave a thorough talk on the anatomy of a software license agreement, and led a discussion about related issues that our local IP practitioners have encountered. Most recently, I had the pleasure of attending the Women’s Section Annual Wine Tasting and Silent Auction, which is always one of the best events of the year. There was a great selection of wines from three wineries in various regions around California, and for the first time, beer tasting (rumor has it that Calicraft, the microbrewery that was pouring at the event,

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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President’s Message, cont. from page 5 will be opening a tasting room in the Shadelands in the next year or so). And best of all, the Women’s Section raised a bunch of money for its annual scholarship. There are high-quality programs being held by our Bar Association every week. If you are not reading our weekly emails or checking our calendar regularly, you are missing out. On a personal note, I have enjoyed meeting people from around the Bar Association at these programs. And best of all, attending events put on by sections that are outside my areas of practice (intellectual property and business litigation) has reignited my love of learning about all areas of the law. I encourage you to try it.

I learned something new about tax law from Mark at almost every meeting I attended. He always had a positive attitude, had a great sense of humor, and was always willing to step up and help out the Bar Association by editing an issue, writing articles, putting on MCLE programs or whatever else was needed. He will be missed by everyone in the CCCBA, and our condolences go out to his family and his colleagues at Youngman & Ericsson. s Stephen Steinberg works for Vasquez Benisek & Lindgren LLP in Lafayette. His practice focuses on intellectual property litigation, including patent and trademark infringement and misappropriation of trade secrets, and other kinds of complex business disputes.

I end this message on a sad note. As many of you read on our website, Mark Ericsson passed away on March 27, 2014. Mark was an incredible asset to the CCCBA and the local legal community. He served as president of the Bar in 2006 after being on the board for many years, and was a permanent fixture on the Contra Costa Lawyer magazine editorial board, on which I also served for a few years.

GET INVOLVED! Learn more about the CCCBA, its sections, committees and upcoming events at

www.cccba.org.

Acuña, Regli & Klein, LLP and

The Law Offices of Ronald C. Solow are pleased to announce the retirement of

Ronald C. Solow Mr. Solow has selected Acuña, Regli & Klein, LLP, to serve the continuing needs of his clients.

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estate planning· probate & trust administration inheritance litigation· business & bankruptcy conservatorship· special needs trusts

Why You Should Seriously Consider Structured Settlements by Richard L. Katz

Commissioner v. Banaitis, 543 U.S. 426 (2005). The Court ruled that attorneys do not have a property interest in the settlement recovery. This is a critical element enabling an attorney to defer fees.

The History Behind the Advice

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s experienced trial lawyers know, plaintiffs, in the aftermath of a large personal injury recovery, can waste away their money secured for them, and become destitute. A lawyer’s best advice includes proposing how to avoid these type of consequences. One way is a structured settlement. Initially, structured settlements were pushed by the insurance companies because they could present a settlement offer that, considering its present cash value, seemed larger than its true worth. Despite this motive, if structured correctly, it could be a win-win. The insurance companies could save money, but the clients would have settlements that gave them long-term security. For the past 25 years or so, I’ve strongly recommended to my clients that they take at least part of their settlements in a structured amount. Also, during this time, the law has evolved to allow attorneys to take all or part of their fees by way of a structure as well. It is not the purpose of this article to give tax advice, but rather to present some salient points to keep in mind if you want to partake in using structured settlement for your fees.

A Short Treatise on the Law Structured settlement annuities (SSAs) have been recognized by federal law since 1983. In Childs v. Commissioner, 103 T.C. 634 (1994), aff’d, 89 F.3d 856 (Table) (11th Cir. 1996), the Tax Court ruled in favor of an attorney fee deferral arrangement. The court determined that the attorney did not have constructive receipt of his fees because the attorney did not have any right to a fee until the settlement agreement was signed. The IRS acknowledged the holding in a discussion of construction receipt in FSA 200151003. Section 409A, which was added to the Code in 2004, deals with the requirements for deferred compensation arrangements. In January 2005, the Supreme Court issued a decision in the consolidated cases of Commissioner v. Banks and

How to Avoid Being Immediately Taxed on a Structured Fee You will be taxed at the time you start receiving the payments, but you can avoid being immediately taxed with a settlement agreement. The fee agreement should allow the lawyer to receive all or a portion of contingency fees in the form of periodic payments and this should be noted in the settlement agreement. There are other nuances that need to be met in order to ensure you qualify. Be sure you read the cases above, the Internal Revenue Code sections applicable and follow the requirements set out.

Advantages of the Structured Settlement for Both the Plaintiff and the Attorney Advantages for the client: 1. Ensured lifetime payments. I recommend a client take the structure with biannual or 5-year inflation kickers. This ensures an adequate amount of money will be there when needed, although it does reduce the initial amount of monthly payments. If there are specific anticipated needs, then the structure can allow for periodic lump sums to account for them. By way of example, if there are young children in the house or the client him/herself is planning to go to college, then the structure should be modified to provide for this by paying less initially and more during the college years. Conversely, the structure can be set up to pay more in the earlier years and less later when the children are grown. What to do with a client who has a spouse who is likely to outlive him/her? Make the payments dependent on the lives of both spouses. It will reduce the monthly amount, but will ensure the surviving spouse is taken care of. This can be done with children as well, however, using the life of a child in conjunction with the adult will severely reduce the monthly amount, because the child is likely to live much longer than the client.

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Structured Settlements, cont. from page 7

2. Postponing the initial payment. This is often done when the client is a child and doesn’t need the money immediately. By postponing the initial payment, the value of the settlement will increase as the annuity company will calculate an investment return on the present value of the settlement money, so that when payments begin, there will be a bigger pot from which to draw out the lifetime payments. Since some clients will continue to work after the settlement and won’t need the money immediately, postponing payments often allows a modest settlement to provide for much larger monthly payments if taken later. Advantages to the Law Firm: If you’re flexible in how you want the payment made, the following can be achieved: 1. It can replace or enhance retirement plans. 2. It can be used to buy out a retiring partner. 3. It can be used as a bonus for longevity in the firm. 4. It can be used to pay for a sabbatical. If the attorney postpones his fees until he retires or partially retires, he is likely to be in a lower tax bracket when he collects the fees. Also, the beauty of a structure is that it allows the money to grow tax-free during the years the fees are postponed (I’m referring here to the inferred interest the initial fee will earn during the years where no payments are made). This is a very important component of structured fees.

Problems to Keep in Mind The annuity company selected should be highly rated by the agencies, such as Best or Moody’s, and a backup company should be designated that insures the payments in the unlikely event the initial company fails.

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Another problem is that annuity companies will often write to you and/or your clients offering to buy out the annuity “in the event you have emergency needs.” The other major issue is the inferred interest rate the annuity company will pay. In times of low interest such as now, tying up large amounts of money for decades can be a bad idea. If interest rates rise dramatically, you can miss out on utilizing them to your advantage. Also, inflation, which usually comes along before interest rates rise, can outpace the client’s or your needs. There is no way of avoiding this problem. In conclusion, the structured settlement has many advantages and few disadvantages. The biggest advantage for the lawyer is that it postpones paying taxes. Furthermore, any implied interest earned is tax-free as well until receipt of the annuity payments. This is also an advantage for the client, but only for the implied interest earned as he/she will not have to pay any taxes on the initial amount. The other big advantage is that it allows an attorney to exceed any federal limitations on annual pension set aside and serves the same purpose. In short, a structured settlement should be seriously considered in any large case and some small ones. s Richard L. Katz, Esq., has participated in dozens of structured settlements over the years. He graduated from the University of Florida in 1960 and became a CPA until 1968, when he received his JD from Golden Gate Law School, Summa Cum Laude. Katz was a trial lawyer until 2012 with over 100 jury trials to verdict. Contact him at Dickkatz@aol.com or (415) 407-4693. This article was submitted on behalf of Richard L. Katz by Todd Friedman, a CCCBA Member-Only Benefits Provider. Financial Services Professional, MassMutual Financial Group, CA Insurance License #0H07141. A CCCBA resource for structured settlements, annuities, insurance (life, disability and long- term care) and investments.

Insurance and Probate Issues in Pursuing Personal Injury Claims Against Deceased Defendants by Ralph L. Jacobson, GJEL Accident Attorneys

A

typical personal injury claim against an individual defendant resolves in one of two ways: (1) settlement with the defendant, or his or her insurer, either before or during litigation; or (2) collection of a judgment post-trial. By definition, the second scenario requires the filing of a lawsuit. Usually, the first scenario will as well, since obtaining a meaningful settlement offer generally requires obtaining information during pre-trial discovery. But what happens when filing that lawsuit is not so straightforward, because the defendant is deceased, either as a result of the incident itself, or otherwise? Filing suit within the applicable statute of limitations, and thus preserving the plaintiff’s claim, requires a timely filing of a lawsuit against the appropriate defendant. In a case where the defendant is deceased, doing so requires compliance with applicable law. Two sets of California statutes control under these circumstances: Code of Civil Procedure sections 337.40377.42; and Probate Code sections 550-554. The latter sections outline a more streamlined course for filing a personal injury action against a deceased person, where the plaintiff seeks only to recover insurance proceeds. So they will be considered first. Generally, a personal injury plaintiff’s true “target” for the recovery of damages against a deceased person is that individual’s insurance coverage. The plaintiff may have no interest at all in determining if the deceased defendant’s estate has collectible assets, because the applicable insurance policy limits are adequate (or more than adequate) to pay his or her claim. These Probate Code sections provide a simplified means of filing suit,

and litigating the action, under such circumstances. Probate Code sections 550 and 552 provide that an action against a deceased person, where the plaintiff seeks recovery of insurance proceeds only, may be filed against the nomenclature “the Estate of [Decedent].” Summons shall then be served on the insurer, not any estate representative. In fact, this means of filing suit may be utilized even if there was no estate ever established for the decedent at all. The action is then pursued against the insurance carrier. The statute states that the litigation shall then “be conducted in the same manner as if the action were against the personal representative.” Section 550(b) indicates that this remedy is cumulative: It can be pursued in the alternative to other remedies available against the defendant. Probate Code Section 551 provides that, if the limitations period otherwise applicable to the action has not expired at the time of the decedent’s death, an action under this chapter may be commenced within one year after the expiration of the limitations period otherwise applicable. That statute thus protects the plaintiff who did not know at the time the action was filed that the defendant was deceased. In that circumstance, the plaintiff has a one-year “grace period” to file suit under this statutory scheme. Probate Code Section 553 provides that the insurer may deny or otherwise contest its liability in an action under this chapter, or by an independent action; and that the outcome of the action does not adjudicate the rights of the estate, unless it is joined as a party.

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Personal Injury Claims, cont. from page 9 The significant limitation, from the plaintiff’s perspective, of utilizing these Probate Code sections to proceed with a personal injury claim is set out in Probate Code Section 554, which requires that: “… either the damages sought in an action under this chapter shall be within the limits and coverage of the insurance, or recovery of damages outside the limits or coverage of the insurance shall be waived. A judgment in favor of the plaintiff in the action is enforceable only from the insurance coverage and not against property in the estate.” So proceeding solely under these statutes has this limitation. In summary, these Probate Code sections provide an easy procedural mechanism and template for timely pursuing a personal injury claim against a deceased defendant where the insurance proceeds are all that the plaintiff seeks to recover. In addition to (or instead of) proceeding in this manner, the plaintiff can seek to keep “in play” potential recovery of both the insurance proceeds and the estate’s assets by compliance with a second and separate set of statutes dealing with suing the decedent’s estate. Code of Civil Procedure Section 377.40 states: “… a cause of action against a decedent that survives may be asserted against the decedent’s personal representative

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or, to the extent provided by statute, against the decedent’s successor in interest.” That is the second means for a plaintiff to pursue his or her personal injury claims: By filing suit, in a proper manner, against the decedent’s estate, or successor in interest if there is none. In such cases, a one-year extension of the applicable statute of limitations, similar to that provided in Probate Code Section 551 as described above, appears in Code of Civil Procedure Section 366.2: Here too, that extension offers protection where the plaintiff was unaware that defendant has died. The “red flag” applicable to proceeding under this statutory scheme is that the plaintiff must file a timely creditor’s claim against the estate (if one exists), in order to preserve the right to proceed with an action for tort damages. Otherwise, the action is barred.1 Probate Code Section 377.42 notes that, when a personal injury or wrongful death plaintiff proceeds against the estate: “… all damages are recoverable that might have been recovered against the decedent had the decedent lived,” except for punitive or exemplary damages. So the compensable damages are the same as under Probate Code sections 550-554. What if the defendant dies during the pendency of litigation? Probate Code Section 377.41 permits substitution of the estate as a defendant, so long as the plaintiff complies with the creditor’s claims requirements of the Probate Code. A plaintiff could, under such circumstances, alternatively choose instead to seek only recovery of insurance proceeds, by amending the action to state a cause of action under Probate Code sections 550 and 552, as discussed above.

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• Probate, Trust & Estate litigation and administration • Elder Abuse Litigation • Conservatorship establishment and litigation • Fiduciary court accountings • Estate Planning Free case evaluations for referring attorneys *Certified Specialist in Estate Planning, Trust and Probate Law – State Bar of California Board of Legal Specialization *Selected to Northern California Super Lawyers each year since 2006

Complying with the procedural requirements of either or both of these cumulative statutory schemes permits potential recovery for personal injury damages. It is important for counsel to assess the applicable insurance policy limits, as well as the extent of plaintiff’s damages, to determine how best to proceed. s 1

See, Probate Code Section 9000 et seq.; and Probate Code Section 9390.

Ralph L. Jacobson is a founding partner of, and now of counsel to, the law firm of Gillin, Jacobson, Ellis, Larsen & Lucey in Orinda. http://www.gjel.com/firm/ralph.html http://www.gjel.com/

HIPAA

Business Associate Agreements: Don’t Treat Them as Boilerplate by Rebecca J. Kurland

S

ince its enactment, the Health Insurance Portability and Accountability Act of 1996 (HIPAA)1 has grown into a formidable and, for many, daunting tool to address the federal government’s goal of protecting the privacy of health information while encouraging electronic interchange of health records to improve the quality and efficiency of health care delivery.2 Changes to HIPAA in recent years have substantially expanded its application beyond the originally defined “covered entities,”3 to include “business associates,” i.e., contractors who provide services to covered entities that require access to or exchange of health information. Once major 2009 amendments to HIPAA known as the HITECH Act4 became effective in 2010, business associates along with covered entities became subject to investigation and enforcement action by the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) for possible HIPAA violations. As defined in HIPAA, a business associate is any person (in its broadest sense, to include companies) who “creates, receives, maintains, or transmits protected health information for a function or activity” performed on behalf of the covered entity.5 Examples of business associate activities include, as might be expected, claims processing, utilization review, quality assurance, billing, benefit management and practice management.

But under HIPAA, business associate activities extend as well to legal, accounting and consulting services that will require the contractor to have access to health information.6 Thus, a health care provider’s malpractice or business counsel fits within the definition of “business associate,” as do many entities that might not generate or process health information in their core business, such as gateways for transmission of electronic health information,7 document storage and destruction services and software installation and service. Given this broad definition, it becomes apparent that any single covered entity, such as a hospital or medical practice, likely will have dozens, even hundreds, of business associates, and HIPAA requires the covered entity to have a written agreement, known as a “business associate agreement” (BAA), with each and every one of them.8 Indeed, lack of a BAA with someone with whom health information is shared is a HIPAA violation in and of itself.9 Furthermore, subcontractors to business associates are considered business associates themselves, so the prime contractor business associate must have a HIPAA-compliant BAA in place with each subcontractor who will receive and use or disclose health information to perform their services.10 Thus, the need for a BAA must be

considered for every business relationship in which information from medical records may be accessed by someone who is not involved in the patient’s treatment and who is not part of the health care provider’s workforce. Since the BAA is usually a separate document and ancillary to the business relationship, it is easy to lose sight of it when negotiating key business terms. Yet the primary agreement’s own terms may not adequately cover the subject matter that HIPAA requires, nor adequately reflect the parties’ intentions in allocating the risks and costs of HIPAA compliance and responding to a possible violation. Nor is it sufficient just to state generally that each party will comply with HIPAA. The HIPAA Privacy Rule11 sets out the mandatory and optional clauses to be contained in each BAA. The BAA must first specify the permitted and required uses and disclosures of health information in

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11

HIPAA Business Associates, cont. from page 11

the business associate’s possession. This can be accomplished by cross reference to the underlying transactional agreement. In addition, the business associate must agree to do all of the following:12 • Not use or further disclose the information other than as permitted by the BAA. • Use appropriate safeguards and comply with the HIPAA Security Rule13 in order to prevent disclosure of the information other than as provided by the BAA. • Report to the covered entity any breaches of unsecured health information or other use or disclosure not provided for by the BAA. • Ensure that its subcontractors agree to the same restrictions and conditions that apply to the business associate under the BAA. • Make health information in its possession available for delivery to the patient or for amendments agreed to by the covered entity. • Maintain and make available information about the business associate’s disclosures of the information outside of its own workforce. • Agree to comply with any Privacy Rule requirements governing functions the business associate performs in the covered entity’s place, such as dealing directly with patients in administrative matters. • Make its internal practices, books and records relating to its use and disclosure of health information available for inspection by HHS. • At the termination of the underlying business contract, return or destroy all of the covered entity’s health information in its possession, except where it cannot feasibly do so. Finally, the BAA must explicitly allow the covered entity to terminate the contract under which the business associate receives health information, if the covered entity determines that the business associate has violated a material term of the BAA.14 Obviously, a general covenant for HIPAA compliance will not contain the required specificity. In addition, business associates should not broadly assume responsibility for HIPAA compliance without understanding the obligations and risks involved. Together, the Privacy Rule and the Security Rule dictate who may receive health information without the patient’s written authorization, and for what specific purposes, and what steps the covered entity or business

12

MAY 2014

associate must take to protect the information from loss and improper disclosure.15 To comply with the Privacy Rule and the Security Rule, simple common sense measures to avoid the release of health information to unauthorized persons are not enough. Rather, covered entities and business associates must prepare and implement detailed policies and procedures and workforce training to maintain the integrity and security of health information in their possession. Therefore, the BAA should allocate between the parties responsibility for avoiding unauthorized disclosures of health information and for mitigating the effects of unauthorized disclosures when they do occur. In terms of risk allocation, the stakes have increased greatly with the promulgation of the Breach Notification Rule,16 which mandates notification to individual patients when loss or improper disclosure of their information has occurred, as well as public notice and reporting to OCR if the breach involves the records of 500 or more patients.17 In addition to mandating public reporting, the HITECH Act substantially increased the penalties for HIPAA violations.18 Given the sheer number of business associate relationships existing in the health care industry and the associated volume of BAAs required, OCR has posted a “model” form of BAA on its website19 in the hopes of easing the administrative burden of getting them all prepared and executed.20 Business attorneys representing covered entities or business associates will, however, find the government’s model form frustratingly silent on important provisions such as indemnification, cure periods for breach, cooperation in investigations, remedies and the amount of direction a covered entity may exercise over the business associate’s HIPAA compliance activities. Furthermore, a covered entity can be held liable for a HIPAA violation resulting from acts or omissions of a business associate found to be the covered entity’s agent under the federal common law of agency,21 forcing the parties to consider whether their business relationship might create an agency where none is intended. Thus, a conscientious attorney cannot avoid identifying critical terms to negotiate in the BAA, separate and apart from the business relationship that makes the BAA necessary in the first place. Therefore, agreements dealing with HIPAA compliance should not be treated as mere boilerplate. The unfortunate result may be that an exchange of health information critical to an important business activity of the covered entity hangs in the balance while the parties wrestle with important BAA issues. In order to help clients avoid undue delays for lastminute BAA negotiations, counsel would do well to

familiarize themselves with HIPAA rules regarding the BAA and take into account the expense of HIPAA compliance and the exposure of each party in the context of the specific business associate activities to be performed.s 1

PL 104-191, 110 Stat. 1936 (1996), codified at 42 USC § 1320d et seq.

2

Recommendations with Respect to Privacy of Certain Health Information, 42 USC § 1320d-2 note. “A major goal of the [HIPAA] Privacy Rule is to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care and to protect the public’s health and well being.” http://www.hhs.gov/ ocr/privacy/hipaa/understanding/summary/index.html.

that no improper disclosure of patient information had occurred, “the investigation revealed that the pharmacy chain and the law firm had not entered into a Business Associate Agreement, as required by the Privacy Rule to ensure that [protected health information (PHI)] is appropriately safeguarded. Without a properly executed agreement, a covered entity may not disclose PHI to its law firm.”). 10

Privacy of Individually Identifiable Health Information, 45 CFR Part 164 Subpart E.

12

4 Health Information Technology for Economic and Clinical Health (HITECH) Act, Subtitle D of title XIII of division A and title IV of division B of the American Recovery and Reinvestment Act of 2009, PL 111–5 (February 17, 2009).

45 CFR § 164.504(e)(2).

13

Security Standards for the Protection of Electronic Protected Health Information, 45 CFR Part 164 Subpart C.

14

3

Health care providers, health plans and the health care clearinghouses who process electronic payment claims. 45 CFR § 160.103.

45 CFR § 164.502(e)(2).

11

45 CFR § 164.504(e)(2)(iii).

15

California has long had its own law protecting health information, the Confidentiality of Medical Information Act, Civil Code §§ 56 – 56.37, which is not preempted by HIPAA because its requirements are as protective or more protective of individuals’ rights and access to their information. See 42 USC § 1320d-2 note. 16

5

45 CFR § 160.103 (definition of business associate).

Notification in the Case of Breach of Unsecured Protected Health Information, 45 CFR Part 164 Subpart D.

6

Id., subsection (1)(ii).

17

7

Id., subsection (3)(i).

8

45 CFR § 164.502(e)(2).

9

45 CFR §§ 164.406-408. In 2013, 199 breaches of patient information reported to OCR affected over 7 million patient records. Redspin, Breach Report 2013: Protected Health Information (February 2014).

E.g., Pharmacy Chain Enters into Business Associate Agreement with Law Firm, http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/allcases.html#case20. (Even though OCR found

18

OCR investigates reported breaches and lists significant penalties and resolution agreements on its website, www.hhs.gov/ocr/ privacy/hipaa/enforcement/examples. In 2013, reported penalties

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

13

HIPAA Business Associates, cont. from page 13 ranged from $50,000 for a breach involving less than 500 patient records to $1.7 million for improper exposure of over 600,000 patient records. Id. 19

http://www.hhs.gov/ocr/privacy/hipaa/ understanding/coveredentities/contractprov.html.

20

In its comments to final regulations covering BAAs, OCR optimistically estimated that each BAA “will require, at most, one hour of a lawyer’s time ... “78 Fed. Reg. 5678 (Jan. 25, 2013). In the writer’s experience, this estimate is unrealistically low.

21

45 CFR § 160.402(c).

Rebecca J. Kurland has advised providers and companies in the health care industry on business and transactional matters for 25 years, structuring transactions and internal processes to comply with state and federal laws such as HIPAA, anti-kickback and physician self-referral. Inquiries may be directed to rjk@kurlandlaw.com.

Morrill Law Firm 1333 N. California Blvd., Ste 620 • Walnut Creek, CA 94596 Phone 925.322.8615 • Fax 925.357.3151

Will & Trust Litigation Financial Elder Abuse Conservatorships General Civil Litigation Probate & Civil Appeals Mediation Joseph Morrill Andrew R. Verriere

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MAY 2014

Nicole Morrill Paralegal

The Changing Landscape of Employer-provided Health Insurance by Colleen Callahan

B

eing an insurance agent in this new world of health insurance requires frequent disclaimers. Agents routinely say to clients, “This is what we know today.” Writing an article in April that will be published in May is cause for alarm, mostly because it is impossible to know if the federal government will issue new guidelines or if Covered California will make changes. The launch of Covered California was rocky; individuals and insurance agents experienced long wait times and the application process was slow and burdensome. The first open enrollment for individual plans has just ended and it is time to focus on the small group market. Many parts of the Affordable Care Act (ACA) have been implemented in stages. Plans have added the preventive benefits, dependent coverage to age 26 and unlimited lifetime maximums.

many do offer it as a way to attract employees and to remain competitive. Those who took advantage of the option to renew coverage in December 2013 as a strategy to delay moving to 2014 compliant plans must be wondering what 2014 has in store for you! Here is a sneak peek. Employers will need to provide more data to the agent who markets their plan. The new rating system for the premiums is called “member level.” That means that the agent needs to know the ages (dates of

some add the premium just to those with dependent children under age 19. The family cannot opt out. Group coverage is available directly with insurance companies or with the Covered California exchange/ marketplace called SHOP. If an employer purchases coverage in the SHOP, they select one metallic plan. Employees do not have the choice to select a different level, but they do have the choice to select any participating insurance company within the same metallic level. Companies that qualify for

“The changes this year relate to plan design, networks,

mandated benefits and how premiums are determined.” birth) for all people in the plan, including dependent spouses and children. Most likely, families will be surprised at the new premiums.

The changes this year relate to plan design, networks, mandated benefits and how premiums are determined. It is important for employers and employees to be educated and prepared for these changes, because 2014 compliant plans will replace non-grandfathered plans at the annual renewal.

Plans are standardized and described by their metallic levels, Bronze, Silver, Gold and Platinum, which also relates to their actuarial value. The plans must cover 60, 70, 80 or 90 percent of the expected cost to the beneficiary. Plans must also include coverage for 10 essential health benefits.

Small group is defined by the ACA as a business with 1-50 employees. There is no mandate that an employer in the small group market offer health insurance, but

Families with children under age 19 are required to have pediatric dental and vision as part of the coverage. Some insurance companies include a small fee for everyone;

the small business tax credit must purchase the coverage in the SHOP in order to obtain that credit. If an employer secures coverage through a private exchange or directly with an insurance company, there is a little more flexibility. An employer could select a Gold level plan and an employee might have the option to “buy up” to a Platinum level plan. Very small groups, partnerships or sole proprietors will be shocked to learn that they do not meet the requirements to qualify for group coverage. This big surprise will be for groups

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Changing Landscape, cont. from page 15 that are defined as “owner only,” meaning there is not a W-2 employee participating in the plan. Those groups will not be renewed, which means they will be cancelled and those owners will need to obtain coverage in the individual market. Unfortunately, moving from the group market to the individual market mid-year will mean a new deductible needs to be satisfied. Another surprise is that employers will be forced to reduce their waiting periods. California no longer permits a 90-day waiting period in the fully insured market; it has been reduced to 60 days, which, in most circumstances, means the first of the month following 30 days of employment. Of course, people will also be surprised to learn that many physician networks have shrunk. Some insurance companies are offering “skinny” networks as a method for controlling cost. Some doctors do not want to adjust (reduce) their contracted rates and some are saying they will not contract with any insurance companies or with Covered California.

ate which is best, the SHOP or direct with an insurance company. An agent, certified for both options, will be able to help with that analysis. Covered California has a “find an agent” tool on their website. If some of these provisions are displeasing, it is not too late to contact your legislators, state and federal. Make your opinions and concerns known; ask them when the “afford-

Employees will need detailed education. Employers will evalu16

MAY 2014

Colleen Callahan, CLU, LUTCF, CASL, is the owner of Colleen Callahan Insurance Services. She can be reached at ccallahan@callahaninsurance.com or (925) 363-5433.

JAY CHAFETZ Personal Injury Trust & Estate Disputes Medical Malpractice Mediation (PI and Med Mal) Law Offices of Jay Chafetz 2033 N. Main Street Suite750 Walnut Creek, CA 94596

Here for you when you need a trial attorney

925.933.5890 fax 925.933.5620 JayChafetz@JayChafetzLaw.com

Elder Law is

The new taxes will be an added surprise. The insurance companies are required to collect additional taxes and forward them to the government to help pay for the PPACA. It is estimated that these taxes increase the premiums by nearly 5 percent. It will be essential for employers to plan months in advance to make sure that the new compliant plan meets the needs of their employees. Although the plans are standardized, it is necessary to realize that it is not cookie cutter and it’s important to work with a professional agent to review the changes and all the available options.

able” part of the Affordable Care Act will be implemented! s

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.

Alzheimer’s Planning

n

925.256.0298 www.YoungElderLaw.com 1931 San Miguel Drive, Suite 220 Walnut Creek, California 94596

VS.

Long-term Care Insurance Medi-Cal Long-term Care Benefit

by Daniel H. Maloney

M

ost people, as they get older, must confront issues about assistance and care of a loved one. There is a spectrum of such issues. All it might entail is part-time, in-home assistance with day-to-day activities. It might also involve assisted living board and care, or sometimes full-time residence in a nursing home receiving skilled nursing. Sometimes, the level of care may move through the spectrum to a higher level of care. Alternatively, a stroke, fall or the onset of dementia may require immediate admission to a skilled nursing facility. In all cases, the question that naturally arises is how to pay for the necessary assistance. In California, there are three basic options: Private Pay, Long-Term Care Insurance (LTC) and Medi-Cal Long-Term Care Benefits (Medi-Cal). Private pay is the least desirable method because it means paying all the costs for care and assistance out-of-pocket, which greatly diminishes the patient’s estate and affects the family’s long-term wealth building potential. One alternative is purchasing LTC. Proponents of LTC often insist that LTC aids in protecting assets and “insuring your bequest to heirs.”1 As with all insurance, however, the protection comes at a continuing cost. LTC requires the payment of a periodic premium, the cost of which depends on your age and health.2 The younger

Youngman & Ericsson, LLP

1981 North Broadway • Suite 300 Walnut Creek, CA 94596

and healthier you are, the less expensive the initial premiums will be. While paying a lower premium is attractive, purchasing LTC too early comes with distinct risk because, as discussed further below, it is difficult to predict with any certainty what type of coverage will be needed. LTC is also touted for its flexibility in relation to Medi-Cal. LTC may be obtained by anyone that can afford to purchase it. Medi-Cal, on the other hand, is a needsbased program which means that people must qualify by demonstrating that they require custodial care in a skilled nursing facility and that their income and resources fall within the Medi-Cal limits.3 Also, LTC can pay for in-home care, assisted living or skilled nursing, while Medi-Cal pays only for custodial care in a skilled nursing facility. Although these statements about LTC are true, the perception of flexibility should be assessed in light of the types of available policies and the inherent risks involved. In California, there are three categories of LTC polices: (1) nursing facility and residential care facility only; (2) home care only; and (3) comprehensive longterm care.4 Choosing the right policy is the most essential ingredient in ensuring coverage. Risks abound in such an endeavor because predicting what your circumstances will be in five, 10 or 20 years in the future is difficult, if not impossible.

Tax Lawyers

Christina P. Ortega LL.M. in Taxation

Tax Collection and Tax Controversy www.youngman.com cortega@youngman.com

(925) 930-6000

For example, what if you purchase a home care-only policy at the age of 45, pay the premiums for 20 years, but by the age of 65, you require care in a facility or no longer own a home? Or the other way around— you decide to purchase an expensive, comprehensive policy that covers all scenarios, but ultimately do not require any assistance.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Long-Term Care, cont. from page 17 The only way to avoid losing all of your premiums would be to purchase (and pay for at a substantial cost) a non-forfeiture clause, which would allow you to recoup some of your money back if you have to cancel the policy in the future.5 Another LTC option in California is called a Partnership Policy (PP). The California Partnership for LongTerm Care is a program in which the California Department of Health Care Services (DHCS) partners with consumers, the State of California and a select number of insurance companies, plus the California Public Employees Retirement System (CALPERS).6 PPs include several interesting features such as asset disregard for purposes of Medi-Cal, inflation protection and certain qualified tax benefits. “Dollar-for-dollar” asset disregard or “spend down” protection means that individuals who purchase a PP ”earn” one dollar of Medi-Cal asset disregard for every dollar of insurance coverage paid on their behalf. The value of the disregard is based on the amount that the policy ultimately pays out and is also protected from post-death estate recovery.7 Typically, you run the risk of having inadequate coverage if you do not purchase inflation protection on a regular LTC policy; PPs are required to include inflation protection.8 Further, PPs have certain tax benefits—annual premiums and other out-of-pocket expenses in excess of 7.5 percent of adjusted gross income are tax-deductible.9 These PP features, particularly the asset disregard, sound great—in theory. The reality is that DHCS is banking on your insurance covering your care and that they will not have to pay any benefits on your behalf. In the end, you and your es18

MAY 2014

tate will likely bear the entire cost of your care.

spouse and/or other family members.

To summarize, LTC claims to protect your assets, insure your bequest to your heirs, pay for a wide array of services and even give you relief from Medi-Cal recovery claims along with tax benefits.

In other words, it is not necessary to simply spend all of your assets. You can qualify for Medi-Cal, protect your assets from estate recovery claims and truly transfer and preserve your estate for the benefit of your loved ones.

The catch is that there are significant risks involved with purchasing LTC and, ultimately, it is the individual that bears the burden of such risk in addition to the costs attendant thereto. Given the serious risks and costs involved with LTC, can you or your loved one qualify for Medi-Cal instead? The first myth to be dispelled is that only low-income individuals can qualify for Medi-Cal. Middle to higher income individuals can routinely qualify for Medi-Cal given the proper assistance and guidance. Although one is allowed only $2,000 in “countable assets”10 for purposes of qualifying for Medi-Cal, many of an individual’s largest assets, including their residence and retirement accounts11 are exempt and not counted towards the resource limitation. Secondly, even if non-exempt assets are in excess to the allowable resource limitation, there are ways to legally transfer assets to a well

In order to accomplish those goals, the single most important component is to ensure that you have the proper estate planning documentation, particularly a Durable Power of Attorney for Financial Decisions with strong language authorizing your agent to do what is necessary to enable your initial and continued eligibility for benefits. Unlike LTC, where you pay a lifetime for a gamble that you hope pays off, proper estate planning ahead of time can ensure that all the necessary tools are in the toolbox so they may be utilized if or when it becomes necessary. In the end, you are encouraged to do your homework, read the fine print and be proactive in planning for your future. s 1

See USNews.com article, “Should You Buy Long Term Care Insurance,” available online at: http://money.usnews.com/ money/retirement/articles/2012/02/08/ should-you-buy-long-term-care-insurance at page one, paragraph five .

2

See USNews.com article, “Should You Buy Long Term Care Insurance,” supra, at page one bottom, page two top.

3

Medi-Cal Eligibility criteria available online at: http://www. canhr.org/factsheets/medi-cal_fs/html/fs_medcal_overview. htm#B.

4

See California Department of Insurance discussion, “What is Long-Term Care Insurance?” available online at: http://www.insurance.ca.gov/0100-consumers/0060-information-guides/0050health/ltc-rate-history-guide/long-term-care-insurance.cfm. 5

See USNews.com article, “Should You Buy Long Term Care Insurance,” supra, at page two, paragraph three. 6

See California Department of Insurance discussion, “What is Long-Term Care Insurance?” supra. 7 See American Association for Long-Term Care Insurance discussion, “Added Protection Ideally Suited for Middle-Income Americans,” available online at http://www.aaltci.org/long-termcare-insurance/learning-center/long-term-care-insurance-partnership-plans.php. 8

See USNews.com article, “Should You Buy Long Term Care Insurance,” supra, at page three, paragraph one. 9

Id.

10 Medi-Cal Eligibility criteria available online at: http://www. canhr.org/factsheets/medi-cal_fs/html/fs_medcal_overview. htm#B. 11

Daniel H. Maloney is an Attorney at Mullin Law Firm in Concord practicing elder law and estate planning, with a strong focus on trust litigation. Mr. Maloney graduated from John F. Kennedy School of Law with honors and was the recipient of the 2010 Public Interest Advocate Award. Additional resources: California Department of Insurance: http://www.insurance.ca.gov/0100-consumers/0060information-guides/0050-health/ltc-rate-history-guide/ long-term-care-insurance.cfm. California Health Care Advocates: https://cahealthadvocates.org/long-term/items.html. California Advocates for Nursing Home Reform: http:// www.canhr.org/factsheets/medi-cal_fs/html/fs_medcal_overview.htm#B. American Association for Long-Term Care Insurance: http://www.aaltci.org/long-term-care-insurance/learning-center/long-term-care-insurance-partnership-plans. php#explain.

Id.

Tax & Estate Attorneys Individual & Business Tax Issues Tax Preparation • Tax Planning • Tax Controversy Sophisticated Estate Planning • Estate Administration Trust & Estate Litigation • Probate

YOUNGMAN & ERICSSON 1981 N. Broadway, Suite 300 | Walnut Creek, CA 94596 | (925) 930-6000 youngman.com

Walter C. Youngman, Jr., Attorney-CPA Christina P. Ortega, LL.M in Taxation Dani Altes, Paralegal

Chastity A. Schults, Partner Mayra Aviles, Paralegal

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Women’s Section Annual Wine Tasting & Silent Auction Thursday, April 3, 2014 Thank you to all our supporters in helping us exceed our $15,000 goal! Proceeds benefit the Hon. Patricia Herron and Hon. Ellen James Scholarship Fund. Gold Sponsors Casper Meadows Schwartz & Cook Gagen, McCoy, McMahon, Koss, Markowitz & Raines Hon. Ellen James (Ret.) Leydig, Voit & Mayer Mora Employment Law

Lily Eagle Dorman Colby (2013 scholarship recipient) and Crystal Van Der Putten Hon. Clare Maier & Hon. Ellen James

Silver Sponsors Berding Weil Miller Starr Regalia Bronze Sponsors Contra Costa District Attorney’s Association Frankel Goldware Ferber, LLP Linda DeBene McNamara, Ney, Beatty, Slattery, Borges & Ambacher Rains Lucia Stern, PC Sponsoring Spirits Bray Vineyard, Plymouth Calicraft Beer, Walnut Creek Retzlaff Winery, Livermore St. Anne’s Crossing, Sonoma

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MAY 2014

Avery Kerr and Wendy McGuire Coats

LAW PRACTICE MANAGEMENT SERIES 2014 3rd Tuesday of Each Month | 4:30 pm - 6 pm JFK University | 100 Ellinwood Way, Room S312 | Pleasant Hill DATE

TITLE

Contact Theresa Hurley for a recorded version.

Ethics of Social Media and Attorney Ratings Websites and Marketing Strategies

May 20 4:30-6 pm

June 17 4:30-6 pm

July 15 4:30-6 pm

Sept. 16 4:30-6 pm

DESCRIPTION Social media use has become pervasive in the practice of law. Part 1 will explore the intersection between social media use and attorney ethics. In Part 2, you will learn the three critical marketing secrets that every successful law practice knows. They are guaranteed to bring you higher value clients and increase revenue!

CREDIT 1 hr. Ethics

Speakers: Alison Buchanan, Shareholder, Hoge Fenton Jones & Appel | Carolyn Higgins, President, Fortune Marketing Company

The Virtual Law Office and Technology in Today’s Modern Law Firm

Topics to be covered include e-discovery, case and document management, data protection and security/breach issues.

Four Steps to Ethical and Empathic Client Relationships and Communications

1 hr. Ethics / Learn to overcome existing obstacles to clear communication, cut through to the real issues at stake, and increase your clients’ 0.5 hrs. and even opposing counsel’s willingness to cooperate with you. General

Financial Client Relationship Issues

Best practices on billing methods, engagement agreements and file storage, transfer and destruction.

Mindfulness and Substance Abuse Prevention

This program looks at what drives attorneys to abuse drugs, alcohol and other substances, and then offers concrete tools for successfully managing stress without resorting to substance abuse.

1.5 hrs. General

Speakers: Wrally Dutkiewicz, Fast Pepper Solutions | David Pearson, Law Offices of David Pearson| David Rosenbaum, McDowall Cotter

Speakers: Kamala Itzel Berrio, Wiseheart Lawyering | Marina Smerling, Wiseheart Lawyering 1.5 hrs. General

Speakers: Harry DeCourcy, Littler Mendelson | Renee Livingston, Livingston Law Firm 1 hr. Competence Issues (pending) / 0.5 hrs. General

Speaker: Jeena Cho, JC Law Group PC Oct. 21 4:30-6 pm

Transition Planning Valuation and succession strategies for lawyers. Join CPA Mike Eggers and Oliver Bray as they discuss strategies for determining for Law Firms the value of and selling law firms; and alternately, how to close shop in an orderly fashion, and what happens if you don’t!

1 hr. General / 0.5 hrs. Ethics

Speakers: Oliver Bray, Bray & Bray | Mike Eggers, CPA

Cost per session: $20 for CCCBA members | $30 for Non-Members | $10 for Law Students Discount for signing up for the entire series! Early registration is encouraged.

Please contact Theresa Hurley at thurley@cccba.org | (925) 370-2548. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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LRIS is Good for Your Business by Joe Wolch vice for their benefit without expectation of remuneration. Not only is this a good turn for the public, it enhances the reputation of our profession.

A

s a longtime panelist and committee chair of the Contra Costa County Bar Association Lawyer Referral and Information Service, I would like to offer a few thoughts about the LRIS. The LRIS is a service offered by the CCCBA to members of the public in need of legal advice and potential representation. For a $30 fee, the inquiring individual is scheduled for a consultation with a pre-qualified attorney/panelist whose practice area is tailored to the client’s legal issue. Our panelists generously provide the public with advice and counsel regarding their particular legal issue. The information helps those individuals evaluate their legal options, understand their legal rights and responsibilities and assist them in navigating the waters of the legal system in an informed manner. The LRIS staff does an admirable job of screening the phone calls and talking with people about their needs. Many callers are re-directed to resources in the community to assist with their issues. It is for this reason that this service includes the words “Information Service” in its name. LRIS is a tremendous resource for the community and may be the last real portal in providing access to justice. The individuals with whom we consult appreciate what we are doing. They understand that we are not being paid to meet with them and that we are performing a ser-

22

MAY 2014

Correspondingly, each consultation allows the panelist a chance to make a positive contact with a potential client and reinforce our availability to help them, their family or acquaintances, now or in the future. This is one of the best ways to market your firm and your practice. Many times, people just need to be able to discuss a legal problem with an understanding professional, and other times they need to retain a professional to handle their case. In either situation, they remember the attorney they spoke with

and may return with a different legal problem that really does need the services of an attorney, or they may refer the attorney to a friend or family member because they were impressed with that personal contact. Certainly, the desired outcome of the meeting for a panelist is to be retained to represent the individual with whom we consult. Though this may not always (or even frequently) be the result, engagements obtained through an LRIS consultation enhance the success of our practices. For more information on joining the LRIS, visit the CCCBA website at http://www.cccba.org/attorney/ lawyer-referral-network/index.php or contact Barbara Arsedo, LRIS Coordinator, at (925) 370-2544. s

effectiveness

Palmer Madden has conducted more than 1,000 mediations since 1981. One jurisdiction reported that he has over a 90% settlement rate.

experience His 25 years of experience as a trial attorney gives him an understanding about clients that has proven time and again to be critical in tough cases.

efficiency He does not carry the overhead of other mediation firms (no administrative fees) which means the price is always right!

palmer brown madden 925.838.8593 | WWW. ADRSERVICES.COM Over 25 years’ experience as an ADR neutral

pro bono spotlight Spring is in the Air at Contra Costa Senior Legal Services by Samantha Sepehr

A

s many of you may remember, Contra Costa Senior Legal Services (CCSLS) was the recipient of last year’s CCCBA Bar Fund proceeds. The Bar Fund Gala’s program included honoring Contra Costa County Probate Commissioner Don Green (ret.) and recognized CCSLS retiring attorney, Robert Ross. Robert was the managing attorney of CCSLS and dedicated 22 years of his legal career to representing hundreds of vulnerable seniors throughout our county. Recently, there have been more changes to report. In January 2014, Laine Lawrence, a dedicated elder advocate, paralegal and executive director of CCSLS, announced her retirement. Laine successfully directed CCSLS for seven years. We certainly wish her all the best in her retirement. In March 2014, Craig Nevin, president of the CCSLS Board of Directors, announced staff attorney Verna Haas as the new executive director. Verna began volunteering with CCSLS in 2007. In 2010, Verna joined CCSLS as a staff attorney and was responsible for a wide array of cases. Before joining CCSLS, Verna received a bachelor’s degree from the University of California, Berkeley, and earned her JD at Hastings College of Law. Verna has practiced as a civil litigator and as a deputy district attorney in Sacramento. One of her many new duties as executive director include managing the staff at CCSLS, which is comprised of three part-time staff attorneys and two support staff. Verna is thankful for all of the volunteer attorneys who dedicate dozens of hours each month to ensure that CCSLS assists as many vulnerable seniors as possible. In addition to offering services in their Richmond office, CCSLS, though its volunteers and staff, provides services at the Senior Self-Help Clinic and Conservatorship Workshops in Martinez and provides 14 “Consult-an-Attorney” and wills clinic programs at senior centers throughout the county. The services provided by CCSLS are critical to countless seniors. Verna shared a recent victory for 92-year-old CCSLS client, Mary Smith.1 Ms. Smith contacted Verna when a collection company was relentless in its attempt to collect payment on a defaulted loan that she co-signed with her grandson for the purchase of a long-haul trailer. Though Ms. Smith had minimal assets to satisfy the judgment, she was experiencing debilitating anxiety and stress from the situation.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

23

Spring is in the Air,

Youngman & Ericsson, LLP

cont. from page 23

1981 North Broadway • Suite 300 Walnut Creek, CA 94596

Tax Lawyers

Chastity A. Schults, Partner Tax Preparation, Tax Analysis, Tax & Estate Planning, Estate Litigation

www.youngman.com cschults@youngman.com

(925) 930-6000

Candice E. Stoddard Personal Injury Real Estate Litigation Trust and Estate Disputes Mediation

n

Law Offices of Candice E. Stoddard 1350 Treat Blvd., Suite 420 Walnut Creek, CA 94597

925.942.5100   •   fax 925.933.3801 cstoddard@stoddardlaw.com Practicing law in the East Bay for over 25 years

Northern California Mediator / Arbitrator 18 years as Mediator 27 years as Arbitrator 35 years in Civil Practice

Roger F. Allen 510.832-7770 Ericksen, Arbuthnot 155 Grand Avenue, Suite 1050 Oakland, CA 94612

rallen@ericksenarbuthnot.com

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MAY 2014

• Training includes Mediation Course at Pepperdine University 1995 • Serving on Kaiser Medical Malpractice Neutral Arbitrators Panel • Settlement Commissioner, Alameda and Contra Costa Counties • Experienced in all areas of Tort Litigation, including injury, property damage, fire loss, malpractice, construction defect

It was determined that her grandson voluntarily relinquished possession of the long-haul trailer, but that the dealership failed to mitigate their damages or provide Ms. Smith with the required notices regarding her rights and responsibilities as a co-signer. Although Verna identified these flaws to the opposing counsel, the plaintiff was determined to pursue a civil action against Ms. Smith. On the day of trial, Verna successfully argued pre-trial motions, which resulted in a judgment for the defendant. This is only one of the many success stories of work from CCSLS. Though there are many amazing volunteers at CCSLS, the elder population is growing exponentially, thereby creating a high demand for legal services to the thousands of seniors in our county who are struggling to make ends meet on their fixed incomes and who otherwise would not be able to afford an attorney. CCSLS has volunteer opportunities available throughout our county. For more information, please contact Staff Attorney Janice Fuhrman at (510) 374-3712. s 1 Name has been changed to protect client’s identity.

Samantha Sepehr, Former Director of the Elder Law Center, is a Partner at Steele, George, Schofield, and Ramos LLP located in Walnut Creek.

CALL FOR BOARD NOMINATIONS! Do you want to be a leader within our legal community as a Director on the CCCBA Board? The Board seeks candidates who agree to meet the following expectations: • To possess or acquire a basic understanding of the Contra Costa County Bar Association (CCCBA) and its activities. • To commit to the mission and values of the Association. • To represent the CCCBA in a manner consistent with Board decisions. • To prepare for and regularly attend monthly Board meetings. • To attend additional meetings and bar-sponsored events as needed. • To participate on at least one committee or task force. • To participate in the annual Board Orientation and Training program. • Directors are selected for their experience and personal attributes. Active participation on a CCCBA committee or section leadership is a plus.

Nomination Process: To be eligible, nominees must be active attorney members of the Association. Any attorney member of the Association may self-nominate by June 30, 2014 for consideration by the Directors’ Nominating Committee at the regular October Board meeting, for approval by the Board. The Board may accept or reject any or all of the Committee’s nominations. The Board’s decision on the candidates for election as Directors may be supplemented by additional nominations made in writing by any member and seconded by four members of the Association, with the concurrence of the nominee, by September 30, 2014.

If you are interested in serving on the 2014 Board of Directors (or to fill an existing vacancy), please submit your written nomination to: Lisa Reep, Executive Director 2300 Clayton Rd., Ste. 520 Concord, CA 94520 lgreep@cccba.org | (925) 288-2555

— WANTED — Will/Estate Contests Conservatorships

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p 925.283-6816 • f 925.283-3683 3445 Golden Gate Way, P.O. Box 479 Lafayette, CA 94549-0479 AV Martindale-Hubbell

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O F F I C E S

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Certified Specialist, Bankruptcy Law State Bar of California Board of Legal Specialization

David A. Arietta 20 years of experience 700 Ygnacio Valley Road Suite150 Walnut Creek, CA 94596

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(925) 472-8000 David @ AriettaLaw.com

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

25

ethics corner

Alternative Litigation Funders You have a general litigation practice and sometimes take a plaintiff’s case if it sounds like it might bring in some real money. One morning, a client walks in and says that he patented a precursor to the smartphone long ago that is very similar to the latest model that Apple sells.

by Carol M. Langford

You know that taking on a behemoth like Apple will take some real cash, but you are sure that you can recover enough to make it worth your while. You tell the client that there are litigation funders that can loan him money for the lawsuit. He is a scientist/inventor type, and has never litigated before. He listens with interest.

A

lternative litigation funders (ALFs) are not new; the idea originated in ancient Greece and eventually made its way to England and Australia. The funding concept came to America in the 1990s as a way to provide a few thousand dollars to plaintiffs in P.I. suits. Funding was not then used often for big lawsuits. But funding companies grew like mushrooms during the recession, when law firms needed quick cash to fund their cases.

In addition, funding is infested with potential conflicts of interest traps for the unwary lawyer. Among them are:

The problem with the funding industry is that it is completely unexamined and unregulated, with even hedge funds getting in on the action. Surprisingly, there is little to no real guidance to lawyers on the ethical issues that arise from working with ALFs in California. This is true despite the fact that a typical charge of 2.94 percent compounded monthly can end up costing the client around 40 percent or more a year.

• Where a lender wants to prolong the litigation to recover on their investment and refuse to allow the client to settle by forcing the settlement issue to arbitration.

In addition, opposing counsel can ask if a client was funded, and when he says “Yes,” they might claim the right to view all the documents he gave the funder. Few courts have opined on the confidentiality of the funding process, but Leader Technologies, Inc. v. Facebook, 719 F.Supp. 2nd 373,376 (D. Del. 2010) and ethics opinions from the New York City Bar Association (Formal Opinion 2011-2) and an ABA informational report issued by the Ethics 20/20 Commission suggest lawyers must be mindful of waiving the privilege.

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• When the attorney provides a letter of the worth of the claim. • When the client wants to settle for quick cash while the lawyer wants to negotiate further to get more, but the client pays the compounding interest rate.

• Where so much interest is owed that the lawyer simply cannot settle and has to try for more at trial. • Where funding is withdrawn and the attorney cannot afford to fund the discovery needed to prepare the case. • When the lawyer may recover his fee but the client could potentially recover nothing because of what the client owes in interest. Do these conflicts actually arise in a case? Yes, as they did in the Chevron/Ecuadorian lawsuit. There, the opposing counsel got the supposedly private funding documents, all 75 pages, and found there were eight tiers of funders. A verdict in favor of the plaintiffs was over-

turned, and Chevron plans to fight to the death that the original verdict is illegal. Do you think the Ecuadorians would benefit much from any judgment? Not after all the funders were paid. What are the arguments in favor of litigation funders? Well, they provide money to people who would not otherwise have the funds to prosecute a lawsuit. But they argue that they are not subject to the usurious interest rate laws because they are making an investment and not a loan. They argue that they are taking on a big risk so they are entitled to 40 percent interest. I question that argument. Buying 500 shares of Celgene stock at the opening of the market today was an investment, and definitely a risk (the market goes up and down). But when funders loan on an oil spill accident, they are going to recover. In truth, ALFs are giving non-recourse loans; they recover nothing if there is no recovery, but if there is any recovery, they take from it, and sometimes take a chunk. Litigation funders also argue that they are like insurance companies, but insurance companies are highly regulated, and funders are not regulated at all. Moreover, insurance companies don’t charge 40 percent a year.

With no real guidance, lawyers must conduct themselves with the utmost care when referring a client to a funder or when seeking funding themselves. The lawyer should explain to the client specifically what issues can arise with a compounding interest rate. Whether the client or the lawyer obtains the funding, potential discoverability of the statements and documents provided to the funder must be discussed along with the ramifications to the client’s case of discovery. In addition, conflicts must be explored and consented to well in advance of the case getting to the point that any settlement would be too low to square the bill with both the funder and the lawyer. Carol M. Langford is a lawyer who provides ethics advice and State Bar defense to lawyers in the Bay Area. She is a lecturer at U.C. Berkeley Boalt Hall School of Law and co-author of the textbook, Legal Ethics in the Practice of Law and The Moral Compass of the American Lawyer: Truth, Justice, Power and Greed.

Will & Trust Litigation Securities Litigation Elder Abuse Litigation BARR & YOUNG AT TO R N EY S 318-C Diablo Road • Danville, CA 94526-3443 (925) 314-9999 www.BarrYoungLaw.com

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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inns of court

Immigration

W

hen you think of “edutainment,” you most likely think of some middle school principal trying to “rap” with the kids about texting and Friendster and Snapchat. Judge Flier (ret.) and his pupilage group (starring Shivani Joshi, Flavio Carvalho, Delia Isvoranu, Marta Vanegas, Denae Budde, Clyde Long, John Hourihan, David Ginn and Robert Buzzard) re-defined “edutainment” with their March 13, 2014, presentation on the American immigration system. Based loosely on the true story of Marta’s immigration to America from her native Hungary, Judge Flier’s group took the Inns meeting through every immigration option imaginable. Yes, in a world where one woman wants to emigrate from Hungary, we all learned a lot about America’s complicated, fractured and extremely challenging immigration system. Actors directly addressed the audience, the plot was accentuated with musical numbers, and there was a critical perspective on the injustice of the immigration system. First, Marta entered folk-dancing to a traditional Hungarian tune. In the initial scene, Marta’s character (she was playing herself) was seeking political asylum. A passerby (Clyde Long) provided her with general information about political asylum, including the grim and sadly arbitrary numbers about approval.

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They noted that those represented by attorneys had a 30 percent better chance of success, and then broke out in song to the tune of “In America” from “West Side Story.”

by Matthew Talbot

Next, Marta met with Delia Isvoranu, known as Sierra Mist, to apply for political asylum. She described the time she spent in jail in Hungary as a domestic terrorist for merely criticizing the government.

Marta decided to stop listening to passers-by and con men and took matters into her own hands: She then married American citizen and all around heartthrob Corky Cola (Flavio Carvalho).

However, since she had no proof of her imprisonment and had waited longer than the deadline for application (one year from arrival in the U.S.), she was not able to secure political asylum. Marta had to return to Hungary.

John Hourihan, playing Mr. Pibbs, was an immigration agent, interviewing Marta to confirm that the marriage was in good faith and not just to obtain the visa. Marta confounded Mr. Pibbs by avoiding all his questions, and he left in a huff.

The next scene related to the Diversity Visa, better known as the Lottery. Under this system, people from countries deemed to have low rates of immigration can potentially immigrate to the U.S. Only people from certain countries are allowed to enter for the drawing and there is an annual maximum of 55,000 of these visas offered. In this scene, David Ginn, playing Dr. Pepper, conned Marta into giving him money to increase her chances of winning the lottery. Then, he took the money and ran. Luckily, Marta paid using her Hungarian forints, which, as of press time, were 226 for a single U.S. dollar. Sadly, the Diversity Visa lottery is a constant source of fraud for immigrants.

Then, 23 months later, Corky Cola decided to leave a now-pregnant Marta for Robert Buzzard, playing Monty Dew. Now a “conditional permanent resident,” Marta found herself in a tough situation. Her marriage dissolved before two or more years passed, so her application for unconditional permanent residency was denied. She returned to Hungary again to give birth to her child, Aquafina. In the next scene, Marta had returned to America, obtaining a job at Gurgle with a H-1B visa, thanks to her advanced engineering skills. H-1B visas allow for people with advanced science or engineering skills to come to America, if employed here. They can stay here for three to six years and bring in de-

pendants, so Marta brought Aquafina with her. However, her boss, Mellow Yellow (Shivani Joshi), threatened to fire Marta, report her and Aquafina to the police, and to check for her on E-Verify regularly (all of which could lead to her deportment) if she didn’t work double-triple overtime at Gurgle. This saddened Marta, and then the entire group sang the song “Don’t Cry For Me, Aquafina.” Retaliating or threatening to retaliate against employees using the immigration authorities, police or unlawfully using E-Verify are all wildly illegal actions. Judge Flier and the group discussed the various remedies available to a party if they bring such a lawsuit, which can include a 90-day suspension of all business licenses, plus attorney’s fees and costs. Despite that, Marta was again deported because she inadvertently registered to vote when at the DMV. I guess she shouldn’t have listened to Mayor Daley!

Judge Flier’s group discussed two more visa options before wrapping up the show. The first was the genius visa for extraordinary skill. Unfortunately, the group proved that anybody and everybody is a genius by noting that Piers Morgan and even a Playboy Bunny were somehow granted a genius visa. They also discussed the immigrant investment visa, which requires at least a $500,000 investment and the creation of at least 10 jobs within the U.S. The show ended with a heartwarming rendition of “So Long, Farewell” from “The Sound of Music.” That is really the way all Inns of Court presentations should end! The next Inns of Court meeting will be held on May 8, 2014. If you are interested in applying for RGMAIOC membership, please contact Scott Reep at Scott@Solanolawgroup.com. s

HISTORY CENTER An invaluable resource for the discovery, preservation and dissemination of knowledge about the history of Contra Costa County Naturalization Records Photographs Maps Books Superior Court Documents Newspapers Obituary Files

OPEN

T-W-Th 9am - 4pm 3rd Sat 10am - 2pm

724 Escobar Street Martinez, CA 94553-1129

Voice: (925) 229-1042 Fax: (925) 229-1772 E-mail: info@cocohistory.com www.cocohistory.com

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Thank you to our Mock Trial Volunteers! Volunteer Judges

Nancy Black, Law Office of Nancy Black

Hon. Steve Austin, CCC Superior Court

Mary Blumberg, CCC District Attorney’s Office

Brooke Barnum-Roberts, CCC District Attorney’s Office

Kristen Busby, CCC District Attorney’s Office

Hon. Barry Baskin, CCC Superior Court

Greg Chiarella, CCC District Attorney’s Office

Hon. Terence Bruiniers, First District Court of Appeal

Angela Chrysler, CCC District Attorney’s Office

Hon. Charles Burch, CCC Superior Court

Carla Cordova, JFK University College of Law

Daniel Cabral, CCC District Attorney’s Office

Angelo Costanza, Law Office of Angelo Costanza

Michael Chamberlain, California Department of Justice

Kevin Cunnane, CCC District Attorney’s Office

Aron DeFerrari, CCC District Attorney’s Office

Laura Delehunt, CCC District Attorney’s Office

Hon. Roger Efremsky, United States Bankruptcy Court

Angela Dib, CCC District Attorney’s Office

Hon. Jill Fannin, CCC Superior Court

Eric Dickson, CCC District Attorney’s Office

Hon. Richard Flier (ret.), ADR Services, Inc.

Nataly DiCortasso

Hon. Barry Goode, CCC Superior Court

Brian Duus, Stubbs & Leone Law Office

Barry Grove, CCC District Attorney’s Office

Robert Ewing, City of Danville

Matthew Guichard, Guichard, Teng, Portello, LLP

Carla Garrett

Blair Hoffman, California Supreme Court

Amiram Givon, GCA Law Partners, LLP

Hon. John Kennedy, CCC Superior Court

James Gotch, Stubbs & Leone Law Office

Hon. Leslie Landau, CCC Superior Court

Matt Graham, Wendel, Rosen, Black & Dean

Robin Lipetzky, Office of the Public Defender

Brad Harper, Van De Poel, Levy & Allen, LLP

Dirk Manoukian, The Law Office of Dirk Manoukian

Sloan Heffron, CCC District Attorney’s Office

Hon. Terri Mockler, CCC Superior Court

Michael Hellmann, Solano County Office of the Public Defender

Brett Morris, California Attorney General’s Office Hon. Dan O’Malley (ret.), O’Connor, Runckel, & O’Malley, LLP Hon. Mary Ann O’Malley, CCC Superior Court Lewis Pascalli, Jr., Law Office of Lewis Pascalli, Jr. Hon. Lowell Richards, CCC Superior Court Hon. Anita Santos, CCC Superior Court Hon. Steve Treat, CCC Superior Court

Volunteer Scorers Adriana Humada, CCC District Attorney’s Office Katherine Alberts, Stubbs & Leone Law Office Cherie Beasley, Bay Area Criminal Lawyers Devon Bell, CCC District Attorney’s Office

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Patricia Horner, CCC District Attorney’s Office Luana Horstkotte, Legal Aid Society Juvenile Dependency Project Stephen Ilg, Employment Lawyers, LLP Matthew Jacobs, CCC District Attorney’s Office Jay Jacobus, Law Office of Jay Jacobus Ann Johnston, Coblentz Patch Duffy & Bass, LLP Katie Jones, Miller, Starr, Regalia Dodie Katague, CCC District Attorney’s Office Kelly Kraetsch, CCC District Attorney’s Office Evan Kuluk, CCC Office of the Public Defender Kevin Lally, Greenan, Peffer, Sallander & Lally, LLP Carol Langford, Law Office of Carol Langford

Kevin Bell, CCC District Attorney’s Office

Claudia Leed, Stubbs & Leone Law Office

Luke Bernthal, CCC District Attorney’s Office

Kerry Lewis, Division of Labor Standards Enforcement

Maryanne Britten, CCC Office of Education

Alice Lustre, California Department of Justice

MAY 2014

What You Missed in April’s Online Issue

Volunteer Scorers (cont.) Manuel Martinez, Lozano Smith, LLP Molly McClure, Alameda County Office of the Public Defender

The Contra Costa Family

Tara McManigal, Solano County DA’s Office Jay Melaas, CCC District Attorney’s Office

Features:

Teddy Miller, Lozano Smith, LLP

• Family Means No One Gets Left Behind or Forgotten - Comm. Josanna Berkow (Ret.)

Shelly Mittrick, Antioch High School Erik Morrison, Carroll, Burdick & McDonough, LLP

• How To: Writs of Attachment in Financial Elder Abuse Litigation - Andrew Verriere

Andrew Mortl, Glynn & Finley Law Office Shelley Muzio, JFK University College of Law

• Shared Parenting after Undocumented Abuse Rhonda Barovsky

Niki Nouri, Lozano Smith, LLP

• The Enforcement of Premarital Agreements upon Death - Daniel T. Quane

Karen O’Neil, Law Office of Karen O’Neil Michael Pellegrini, Bay Area Criminal Lawyers, PC

• Forging into Unchartered Territory with the Law on Abuse of Dependent Adults - Ryan J. Szczepanik

Marina Pitts, Stubbs & Leone Law Office Jennifer Proctor, Solano County DA’s Office

• Children of Families in Transition - Barbara Kelley

Kelly Rem, Lozano Smith, LLP

Spotlight:

Dani Renan, EnTerra Environmental

• Elder Court: Streamlining the Legal Process to Ensure Access to Justice - Judge Joyce Cram (Ret.)

Kate Riley, Division of Labor Standards Enforcement Britt Roberts, Garcia, Schnayerson & Thompson Law Office

• Helping Support Children - Melinda R. Self

Charina Rhone

• Undue Influence Defined: New Statutory Definition and Recent Case Law - Michael LaMay

Jennifer Roque, CCC District Attorney’s Office Christopher Salaysay, Law Office of Christopher Salaysay

Columns: • Inside Guest Column - Anne Freeman and Joe Morrill, Co-guest Editors

Christopher Sansoe, CCC District Attorney’s Office Carolyn Schaffer, CCC District Attorney’s Office

News & Updates:

Jordan Schreiber, Law Office of Jordan Schrieber Jeremy Seymour, CCC District Attorney’s Office

• Children, Families & the Law Certification Program at JFKU Law - Dean E. Barbieri and Comm. Josanna Berkow (Ret.)

Pamela Shafer, Donnelly, Nelson, Depolo & Murray Edward Sklar, Lozano Smith, LLP Andrea Tavenier, CCC District Attorney’s Office Carlos Torres, Division of Labor Standards Enforcement Ron Tran, CCC District Attorney’s Office Philippe Toudic, Duane Morris, LLP Jennifer Ulbrich, Lozano Smith, LLP Christopher Vincent, Stubbs & Leone Law Office Tiffany Viveros, USF Law School Adam Wilks, CCC District Attorney’s Office Jonathan Wolff, California Attorney General’s Office John Worden, Schiff Hardin, LLP

• Laugh for a Good Cause: Food From the Bar Comedy Night

More: • The Burwell Burden – New Criteria for Valuing Term Life Insurance - R. Ann Fallon and Matt Taddei • Coffee Talk: How does being a lawyer affect your family life?

To read these and other articles, go online to cclawyer.cccba.org.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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COFFEETALK!

What’s your best memory of Mark Ericsson?

I have many fond memories of Mark. From the day I was hired nearly 20 years ago, Mark served either on the editorial board, the board, and/or as a section leader. The bar association meant the world to him. I have a photo of him next to my husband Scott and me on our first outing together as a couple at a CCCBA event in 1996 called “A Night to Reminisce.” I will be reminded of Mark’s warmth, fun and generosity every time I see it. We will miss him dearly.

My best memory of Mark Ericsson is seeing his smiling face almost every month at the CC Lawyer editorial board meetings. Mark had a huge impact on the CC Lawyer as a long time participant on the editorial board.

Lisa G. Reep

I first worked with Mark in the early ‘80s. I was but a secretary and paralegal in my brother’s law office and Mark was but a clerk. It was before the day of computers and he used to drive me absolutely bonkers with all his revising letters and legal briefs. Keep in mind that in that day, we used carbon paper and typewriters (ugh). Later on though, after I became an attorney in 1988, he made it up to me by being one of my best supporters, an avid champion of mine, and we became fast friends. I liked him a lot and we sometimes found time for lunches together. It was always something to look forward to and it always amazed me that he could get as excited about tax issues as I was about homeowner association issues. We laughed alot. His loss will be felt dearly. I am so sorry to hear about it. It will be extremely hard to fill his shoes.

Contra Costa County Bar Association

Mark was dedicated to the Art in the Courthouse Project and generously provided his considerable expertise advising the attorneys and judges involved in this non-profit corporation dedicated to bring fine art to Contra Costa Courthouse facilities. He will be sorely missed.

Commissioner Josanna Berkow (Ret.) Mark was the first person to truly welcome me when I became active in CCCBA in 2011. He always had a smile, and an interesting topic to discuss. I could tell he was committed to helping everyone in his sphere be the best they could be. I left every one of our encounters smarter than when I arrived, and always looking forward to our next meeting.

Perry A. Novak The Novak Wealth Management Group at UBS Financial Services, Inc.

David S. Pearson Law Offices of David S. Pearson

Beth Grimm My best memory of Mark is how, without fail, every single client I sent to him for tax advice came back to me and told me how wonderful he was to work with. Mark was a lawyer of the old school; unfailingly polite, kind and decent.

Carol M. Langford University of San Francisco School of Law

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MAY 2014

Beyond his omnipresence (I don’t know anybody who showed up for more bar programs and events), Mark’s warmth and generosity stand out for me. He was comfortable singing others’ praises (I never heard a disparaging word), and—despite his own accomplishments—always left plenty of oxygen for others. An affirming presence wherever he went.

David Katzen

At the last Business Law & Corporate Counsel board meeting that Mark attended, he spoke passionately about training/mentoring new lawyers. I heard him speak on this topic in other CCCBA settings as well. This loss will affect not only the general public, who will lose the benefit of his wise counsel, but this is also a loss to experienced lawyers, new lawyers and lawyers-to-be who will never know him.

Kent C. Parr, Esq.

I can’t remember the first time I met Mark, but it has been many years. It began when I first joined the editorial board and then we were both participants in the State Bar Conference of Delegates—those were fun times. Over the years we worked together on bankruptcy and tax issues. If I needed to pick his brain, he was always available—not only for me, but for everyone. I don’t know who could possibly fill his shoes. I will miss him terribly.

Marlene Weinstein Law Office of Marlene G. Weinstein

Law Office of Kent C. Parr

I remember the day I attended the section leaders’ meeting when Mark was president of the bar association. I made a suggestion about the real estate section and the Contra Costa Lawyer. Mark nudged me into being on the editorial board, and then solicited me to be on the board. Over the years I debated whether to hit him over the head with a 2 x 4 for that or give him a kiss. I will send him that kiss—he enriched my life. He enriched everyone’s life who had the good fortune to know him.

Candice Stoddard I enjoyed Mark’s contributions to the Contra Costa County Lawyer regarding tax issues. His style of writing was witty and easy to follow. Just as in person he was cheerful, smart and enjoyed the company of many. I can only picture him eyes twinkling and smiling. He will be sorely missed as a beloved presence in our community.

Law Offices of Candice E. Stoddard

R. Ann Fallon, Esq. Whiting, Fallon Ross & Abel, LLP

Mark Ericsson practiced law with me for the last 32 years. He had not passed the bar when he was first hired while still a student at John F. Kennedy University. My partner at that time was teaching at JFK and spotted Mark as the top student in his tax class. Mark was a chemical engineering graduate of Stanford University, and spent several years in East County doing engineering work, where he was once described as a technical genius who was unable to work an umbrella. When Mark switched professions and began his law career, he was totally fascinated by the law. Similar to his prior professional achievements, Mark totally immersed himself in the law, and has been publicly acknowledged as a Top Northern California Attorney since 2006 and a Super Lawyer in 2013. Unlike a common joke about lawyers that based on their billing hours they become the oldest people on earth, Mark actually worked all of those hours. We have lost a true professional, and a major contributor to the world of taxation and this Bar Association. Mark was a prolific author, and frequent contributor to the Contra Costa Lawyer. Although Mark knew he was sick, his last article in the March edition was one of his best. He was especially proud of his accomplishments with the Bar, including its presidency in 2006, and its role in the legal community. While we mourn his loss, we are all richer for the gifts that he brought to our clients, our firm and this Bar Association.

Walter C. Youngman Youngman & Ericsson

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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CALENDAR UPCOMING EVENTS | OVERVIEW

April 28 - May 9 | Food From the Bar

23rd Annual Food From the Bar Drive more details on page 35 May 6 | CCCBA

Bench/Bar Roundtable more details on page 35 May 6 | Bankruptcy Law Section

May 20 | CCCBA

The Virtual Law Office and Technology in Today’s Modern Law Firm: Part 2 in the Law Practice Management Series more details on page 36 May 28 | Barristers and Law Student Sections

Barristers/Law Students and CCCBA Leadership Mixer more details on page 36

Collection of HOA Dues in and out of Bankruptcy

June 3 | Bankruptcy Law Section

more details on page 35

Bankruptcy Law Open Forum

May 8 | Real Estate and Taxation Sections

Overview of Tax Issues Relating to Real Estate Transactions more details on page 35 May 8 | CCCBA

Springfest Interprofessional Mixer more details on page 35 May 8 | Minority Bar Coalition

Spring “Celebrating Diversity” Mixer more details on page 35 May 14 | Estate Planning & Probate Section

Estate Planning & Probate Section Summer Kick-Off Social more details on page 36

more details on page 36 June 11 | Family Law Section

Collections more details on page 36 June 17 | CCCBA

Four Steps to Ethical and Empathic Client Relationships and Communications: Part 3 in the Law Practice Management Series more details on page 36 Jun June 19 | Intellectual Property Section

Lights, Camera, Copyrights! - Copyrights in Film and SCOTUS IP Case Update more details on page 37 June 20 | Real Estate Section

Forecast 2014/2015: The Bay Area Commercial Real Estate Market - On Fire... or Maybe Not... more details on page 37

For up-to-date information on programs, please visit www.cccba.org/attorney/calendar and/or subscribe to our weekly “Events & News” email. To subscribe, text CCCBA to 22828.

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MAY 2014

April 28 - May 9 | Food From the Bar

May 6 | CCCBA

May 6 | Bankruptcy Law Section

23rd Annual Food From the Bar Drive

Bench/Bar Roundtable

Make a difference to the hungry people in Contra Costa County (and show those other law firms how generous your firm really is)!

Members of the CCCBA are invited to attend a meeting with Civil Court Judges. This program is free. Lunch and 1 hour general MCLE credit are included. Please RSVP so we will know how much lunch to order. This is a unique opportunity. We hope to see you there!

Collection of HOA Dues in and out of Bankruptcy

This year marks the 23rd Annual Food From the Bar drive benefitting the Food Bank of Contra Costa and Solano. You can donate money and/or non-perishable food items. It’s easy, just add some extra items to your shopping cart, then bring them to your office and put it in the Food Bank barrel. Even easier is to donate money—for every $20 you give, the Food Bank can provide 40 nutritious meals to hungry people in Contra Costa County. All monetary donations are tax-deductible and will be acknowledged. The firm with the highest per capita figures in each category will receive an individual award for permanent display in their office. This year’s goal is $100,000 and 10,000 pounds of food. Do your part to feed the hungry in your area. Participate in Food From the Bar! To donate or for more info, go to www.foodbankccs.org/foodfromthebarcc.

Speakers: Hon. Steve Austin Hon. Laurel Brady Hon. Judith Craddick Hon. Barry Goode, Presiding Judge Time: 12 pm – 1:15 pm Location: Wakefield Taylor Courthouse Dept. 9, Room 320 (Judge Craddick’s room) 725 Court Street, Martinez MCLE: 1 hour general MCLE credit Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

Analysis of the fundamentals of HOA collection, the Davis-Stirling Act, CCRs, options in Chapters 7 and 13 and the consequences of a bankruptcy discharge. Lunch will be provided. Speakers: Matthew P. Harrington, Esq. Austin P. Nagel, Esq. Time: 12 pm – 1:30 pm Location: CCCBA Office, 5th Floor Conference Room, 2300 Clayton Road, Concord MCLE: 1 hour general MCLE credit Cost: $25 for section and law student members, $35 for CCCBA members, $45 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

May 8 | Real Estate and Taxation Sections

May 8 | CCCBA

May 8 | The Minority Bar Coalition

Overview of Tax Issues Relating to Real Estate Transactions

Springfest Interprofessional Mixer

Spring “Celebrating Diversity” Mixer

Come join attorneys, bankers, CPAs, real estate and financial professionals for an informal happy hour mixer. Get to know other trusted advisors. No host bar. Please RSVP.

Join us as we celebrate our commitment to inclusion and diversity in the legal profession. Enjoy this unique opportunity to network with leaders in the Bay Area legal and business communities. Come meet your peers in a relaxed and informal setting.

Speaker: Joel Smith, CPA, CMA Time: 11:30 am – 1 pm Location: CCCBA Office, 5th Floor Conference Room, 2300 Clayton Road, Concord MCLE: 1 hour general MCLE credit Cost: Free for Real Estate section members, $10 for Tax section members, $5 for law student members, $15 for CCCBA members, $35 for non-members. Lunch will be provided. Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

Time: 5 pm – 7:30 pm Location: Pyramid Alehouse 1410 Locust St., Walnut Creek Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Audrey Gee at agee@bcglegal.com

This event is free for all CCCBA members. We hope to see you there! Food and refreshments will be provided. Time: 5:30 pm – 8:30 pm Location: Sedgwick 333 Bush St., 30th Floor, San Francisco Registration: Online at http://tinyurl.com/JointBarMixer

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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May 14 | Estate Planning & Probate Section

May 20 | CCCBA

May 28 | Barristers and Law Student Sections

Estate Planning & Probate Section Summer Kick-Off Social

The Virtual Law Office and Technology in Today’s Modern Law Firm: Part 2 in the Law Practice Management Series

Barristers/Law Students and CCCBA Leadership Mixer

The Estate Planning and Probate section board invites you to celebrate summer with your section colleagues. Get to know new members and catch up with old friends at Creek Monkey in Martinez.

Topics to be covered include e-discovery, case and document management, data protection and security/breach issues.

Free for section members! Includes 2 drinks and appetizers. We hope to see you there! Please pre-register so we can make sure to order enough food.

Speakers: Wrally Dutkiewicz, Fast Pepper Solutions David Pearson, Law Offices of David Pearson David Rosenbaum, McDowall Cotter

Time: 5:30 pm – 7:30 pm

Time: 4:30 pm – 6 pm

Location: Creek Monkey 611 Escobar St., Martinez

Location: JFK University 100 Ellinwood Way, Room S312, Pleasant Hill

Registration: Online at www.cccba.org/attorney/calendar

MCLE: 1.5 hours general MCLE credit

More Info: Contact Theresa Hurley at (925) 370-2548

Cost: $20 for CCCBA members, $10 for law student members, $30 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

A special opportunity for Barristers and Law Students! Want to get to know the CCCBA board members and section leaders? Curious about leadership positions with CCCBA? Take advantage of this unique opportunity to mix and mingle with the movers and shakers of the Contra Costa legal community at the Barristers, Law Students and CCCBA Leadership Mixer! Time: 5:30 pm – 7:30 pm Location: Pyramid Alehouse 1410 Locust St., Walnut Creek Cost: $10 for section and law student members, $15 for CCCBA members, $25 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

June 3 | Bankruptcy Section

June 11 | Family Law Section

June 17 | CCCBA

Bankruptcy Law Open Forum

Collections

Come to an open discussion bankruptcy law forum. Each attendee should come prepared to discuss a relevant case, a noteworthy statute or a “war story” and share it with all in attendance in a roundtable style. Lunch will be provided.

Speaker: Raymond Goldstein

Four Steps to Ethical and Empathic Client Relationships and Communications: Part 3 in the Law Practice Management Series

Speaker: David A. Arietta Time: 12 pm – 1:30 pm

Cost: $50 for section members and law student members, $75 for CCCBA members, $100 for non-members

Location: CCCBA Office, 5th Floor Conference Room, 2300 Clayton Road, Concord

Registration: Go to the Family Law website at www.familylawsectioncontracosta.org

MCLE: 1 hour general MCLE credit

More Info: Contact Therese Bruce at (925) 930-6789

Cost: $20 for section and law student members, $35 for CCCBA members, $45 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

Time: 12 pm – 1:15 pm Location: Contra Costa Country Club 801 Golf Club Road, Pleasant Hill MCLE: 1 hour general MCLE credit

Learn to overcome existing obstacles to clear communication, cut through to the real issues at stake, and increase your clients’ and even opposing counsel’s willingness to cooperate with you. Presented by Wiseheart Lawyering. Speakers: Kamala Itzel Berrio Marina Smerling Location: JFK University 100 Ellinwood Way, Room S312, Pleasant Hill MCLE: 1 hour legal ethics and 0.5 hours general MCLE credit Cost: $20 for CCCBA members, $10 for law student members, $30 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

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June 20 | Real Estate Section

Lights, Camera, Copyrights! Copyrights in Film and SCOTUS IP Case Update

Forecast 2014/2015: The Bay Area Commercial Real Estate Market On Fire... or Maybe Not...

Speakers: Natasha S. Chee, Esq. Jeffrey T. Thayer, Esq.

Speaker: Jeffrey S. Weil, Executive VP, Colliers International

Time: 7:30 am – 9 am

Time: 7:30 am – 9 am

Location: Conference Room 100 Pringle Ave., Walnut Creek

Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek

MCLE: 1 hour general MCLE credit

MCLE: 1 hour general MCLE credit

Cost: $5 for section members and law student members, $15 for CCCBA members, $25 for non-members. Light breakfast provided.

Cost: Free for section members, $5 for law student members, $15 for CCCBA members, $35 for non-members

Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

CALENDAR

June 19 | Intellectual Property Section

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Contra Costa Lawyer May 2014