Lawyer Volume 33 Number4 | July-August 2020
Elder Law & Senior Attorneys
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Contra Costa 2020 BOARD of DIRECTORS Oliver Greenwood President Nicole Mills President-Elect Mika Domingo Secretary Dorian Peters Treasurer James Wu Past President David Erb Mark LeHocky David Marchiano Ericka McKenna Cary McReynolds Craig Nevin
David Pearson Michael Pierson David Ratner Summer Selleck Marta Vanegas Qiana Washington
CCCBA EXECUTIVE DIRECTOR Theresa Hurley | 925.370.2548 | firstname.lastname@example.org CCCBA main office 925.686.6900 | www.cccba.org
Barbara Arsedo Carole Lucido
LRIS & Moderate Means Director Communications Director
Jennifer Comages Anne K. Wolf
Membership Director Education & Events Director
Systems and Operations Director
Contra Costa Lawyer CO-EDITORS EDITORIAL BOARD Samantha Sepehr Ann Battin 925.287.3540 510.234-2808
Marcus Brown Matthew Cody 925.482.8950 916.718.8938
BOARD LIAISON Perry Novak Mark LeHocky 925.746.7278 510.693.6443 Marta Vanegas COURT LIAISON 925.937.5433 Kate Bieker Andrew Verriere
Lawyer Volume 33, Number 4 |July-August 2020
The official publication of the
features Baby Boomers Unite: The Birth and Maturation of the Senior Lawyer Section (includes list of members practicing for 50 years), by Peter Mankin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Ethical Guide to Succession Planning, by Lorraine Walsh. . . . . . . . . . . . . . 9 Beware of Trust Mills: High Volume “Estate Planning” May Be Financial Elder Abuse, by Andy Verriere . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Rights and Resources for the Elderly During the Pandemic, by Doug Housman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Diversity Considerations in the Appointment of Counsel for Conservatees: Unintentional Implicit Bias, by Patanisha Davis, (MCLE self study test availale). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Contra Costa Senior Legal Services: A Port in the Storm for Seniors, by Verna Haas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
COLUMNS, NEWS & UPDATES 5
INSIDE: Elder Law and Senior Attorneys, by Lorraine Walsh, Guest Editor
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DESIGN Lorraine Walsh Carole Lucido 925.932.7014 925.370.2542 Christina Weed ADVERTISING 925.953.2920 R.W. Walker Co.
The Contra Costa Lawyer (ISSN 1063-4444) is published 11 times in 2020 – five times onlineonly – 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.
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Elder Law and
Senior Attorneys by Lorraine Walsh, Guest Editor Welcome to the Elder Law and Senior Attorneys edition of the Contra Costa Lawyer. The publication of this edition is occurring during the COVID-19 pandemic which has caused unprecedented changes to our lives, the economy and our courts. This pandemic has created a renewed urgency for elder law planning and has focused attention on our aging population. According to the Center for Disease Control, seniors (aged 65 and older) and elders living in nursing homes or long-term care facilities are among those at the highest risk for contracting the virus. Although the medical crisis is drawing much needed attention to this critical issue, protecting our seniors goes far beyond the Coronavirus. Protection starts with proper planning and preparation to ensure that legal safeguards are in place to care for and protect our aging population in all areas of their lives. By 2030, nearly 20% of the U.S. population will be age 65 or older according to the U.S. Census Bureau. Aging Americans and their families need to be both proactive and responsive to issues that include protection from financial scams and fraud targeting seniors, workplace issues for adult children who are caring for their parents, long-term care arrangements and estate planning. Knowing how to navigate
this already-complicated process will be important as the impact of COVID-19 has added a new layer of complexity.
force, Joscelyn Jones Torru was recently appointed to the Alameda County Superior Court bench, and we congratulate her!
The age statistics for our population mirror our Bar Association membership. In 2018 CCCBA Board President James Wu organized a “Senior Lawyers task force” to study topics and issues affecting senior attorneys. It was discovered that 35% of CCCBA’s attorney members (“478 strong”) had been practicing for more than 30 years, 11% for more than 40 years and 20 members more than 50. In 2019 a Senior Lawyer Section was formed to serve the interests of our senior members and provide programs of educational and general interest, cultivate social interaction and preserve the history and traditions of the Bar.
Next, CCCBA Elder Law Section Chair Doug Housman outlines the rights and resources for the elderly during the pandemic. His article highlights the Contra Costa County Superior Court’s Emergency Local Rules which apply to elder or dependent abuse restraining orders, unlawful detainer actions and actions for financial elder abuse.
The articles in this edition highlight emerging issues in elder law during the pandemic and spotlight our new Senior Lawyers Section. First, Peter Mankin writes about the Birth and Maturation of the Senior Section. I am proud to serve as its Chair during its formation and first two years. The section has over 160 members, the fourth largest in the Bar. We are pleased to recognize 18 members who celebrated their 50-year anniversaries of California Bar membership. One of the members of the senior lawyer task
Patanisha Davis, who has served as a court-appointed attorney for conservatees in conservatorship cases, provides us with advice how to recognize and address unintentional implicit bias which can occur during the representation. You can receive MCLE Elimination of Bias credit when you take the test linked to her article. In his article entitled “Beware of Trust Mills: High Volume ‘Estate Planning’ May be Elder Financial Abuse,” Andrew Verriere warns us about trust mills which target the elderly trying to lure them to attend “free” seminars with promises to create or update their estate planning documents at low cost. Many of these mills employ individuals who are not licensed to practice law,
Continued on page 6
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Elder Law & Senior Attorneys Continued from page 5
and their “services” result in ineffective or incompetent documents that could costs clients and their families more money in the future. Finally, we are proud to spotlight Contra Costa Senior Legal Services in an article entitled “A Port in the Storm for Seniors.” Verna Haas, who has served as its Executive Director and Supervising Attorney for several years, outlines various challenges seniors face during the pandemic. She identifies how CCSLS serves as a legal advocate for older adults, who are especially vulnerable during this health crisis, and how they are adapting to meet the challenge.
Thanks to all these authors who have devoted their time and expertise in writing their articles. We hope that you enjoy this edition of the Contra Costa Lawyer magazine and continue to “stay safe” during these challenging times. Lorraine M. Walsh is an attorney who has practiced law in California for 38 years and maintains her office in Walnut Creek. She is a State Bar Certified Specialist in Legal Malpractice Law and handles controversies involving attorneys and clients. She is the former Chair of the State Bar Mandatory Fee Arbitration Committee and current Chair of the CCCBA Senior Section. She has served as a Judge Pro Tem in Contra Costa County Superior Court since 1997.
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Baby Boomers Unite!
The Birth and Maturation of the Senior Lawyer Section By Peter Mankin In 2018, CCCBA President James Wu contemplated the initiatives for the CCCBA for the year. He thought of serving the many “experienced” members of the Bar and created the “Senior Lawyers Task Force” to look at topics and issues affecting those attorneys. The Task Force was led by Board Member Renee Livingston and included former presidents Peter Mankin, Dick Frankel and Mike Brown, and past Board Members, Joscelyn Jones Torru (now a judge) and Richard Alexander. CCCBA Executive Director Theresa Hurley helped guide the group. The Task Force first met in January 2018 and soon discovered that 35% of CCCBA attorney members had been practicing for more than 30 years, 11% for more than 40 years and 20 members more than 50(!) years. Those numbers were likely to increase as Baby Boomers continued to age. The group discussed how the Bar might best assist those members and how those attorneys might use their vast experience to contribute to the Bar as a whole. In order to understand the needs and abilities of these members, a Senior Lawyer Roundtable was convened in May 2018. A spirited discussion revealed much interest with topics such as Transitioning Out of Prac-
tice and Succession Planning, Maintaining a Sense of Purpose, Creating a Sense of Community, Mentoring and Giving Back, and Volunteering/ Pro Bono activities. Interest also developed in the possible formation of a Senior Lawyer Section. The Task Force moved forward by organizing a program at the MCLE Spectacular in November titled “Transition Is A Many Splendored Thing!” The program had two components. The first covered “Comprehensive Wellness,” including health and mental abilities and issues arising with aging, presented by Dr. Rebecca Parish and Brett Beaver, therapist. The second component was “What Does Transition Look Like?” Roger Brothers covered succession planning for lawyers, and Peter Mankin and Mark Frisbie discussed views, issues and strategies on transitioning a law practice partially or fully from both a large firm and small firm/ solo perspective. The program was said to be the most highly attended breakout session of the day. Encouraged by the enthusiastic response, the Task Force decided that an official section of the Bar would be warranted. In January 2019, after several meetings and a happy hour event, the Senior Lawyer Section was formed, thereby completing the
mission of the Task Force. Lorraine Walsh stepped up as the fearless leader, with Deborah Sandler, David Ratner and Peter Mankin forming the initial section board. Aided by free dues, the section had over 400 members in 2019. In 2020, even after dues were charged, the section has more than 160 members, the fourth largest in the Bar.
Continued on page 8
In 2018, 35% of CCCBA’s attorney members had been practicing for more than 30 years, 11% for more than 40 years and 20 members more than 50 years.
CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
Baby Boomers Unite! Continued from page 7
Quite a few activities were planned for 2019. It was decided that our Bar should have a Law Day event like many bar associations have throughout the country. Former Judge and current Contra Costa District Attorney, Diana Becton, spoke to a well-attended luncheon at Scott’s in May. In November, the section sponsored a private wine tasting at Buon Vino in Walnut Creek. Once again, a very successful program was sponsored at the 25th Anniversary MCLE Spectacular. This one was titled, “Leaving Your Law Practice and Keeping Your Sanity - How to Create a Successful Transition Plan.” Lee Pearce gave an excellent presentation on the ethical and practical issues of “Getting Out of the Practice.” Lorraine Walsh spoke eloquently about issues involved with a successful transition plan. Clinical Psychologist, Peter Opperman, instructed on navigating the many psychological issues surrounding aging and retirement. In early 2020, the momentum continued with the planning of a second annual Law Day Luncheon, this time with Candace Andersen, Chair of the Contra Costa County Board of Supervisors, leading the celebration of the 100th Anniversary of the 19th Amendment/Women’s Right to Vote. Then, life took a strange turn for all of us with the COVID-19 pandemic. The luncheon had to be canceled. However, the Section and Supervisor Andersen hosted a Zoom gathering/webinar on June 17 to cover the Right to Vote celebration, issues in this crucial election year, and an update on the County’s response to the COVID-19 pandemic. Our county, along with the other Bay Area counties, was one of the national leaders in formulating timely and intelligent protocols in controlling the outbreak and “flattening the curve.” 8
While times ahead are uncertain, the section board will be planning events for later in the year. It is hoped that some of the events can be “live,” as social get-togethers have been an important part of the section agenda. If those are not possible this summer or fall, we will plan some virtual events. Watch for future announcements. A Senior Lawyers Section would be remiss not to honor some of our “super” senior lawyers. Listed below are the names of those CCCBA members with 50+ years in practice: Imagine the collective wisdom of this group! Hats off to all of them. Finally, the section would love to have some “new blood” for leadership positions. Whatever the age or condition of your blood, if you
would like to help us contribute to the well being and enjoyment of our senior members, please contact Section Chair, Lorraine Walsh, at firstname.lastname@example.org. Peter Mankin is an attorney and mediator who has practiced in Contra Costa County for more than 40 years. His practice focuses on real estate, business law and ADR. He has been very active with the CCCBA, serving as its President in 1998 and was a founding member and leader of several sections including Real Estate, ADR and Senior Lawyers. He has been designated as a Northern California “Super Lawyer” for real estate and ADR and holds the highest rankings with Martindale Hubble and AVVO. Peter’s “transition plan” has been to stop doing litigation and to spend summers (except this one) on a river in the White Mountains of New Hampshire.
50 YEARS IN PRACTICE Admitted in 1969
Admitted in 1970
(50 years in practice in 2019):
(50 years in practice in 2020):
Robert Belzer Richard Bowles William Gagen Gary Garfinkle Charles Hoehn Richard Howard Richard Lam Rodney Marraccini
Andrew Gillin Wally Hesseltine Ralph Jacobson Hon. Ellen James (Ret.)
Ethical Guide to
By Lorraine Walsh The premature closing of a law office can result from an unexpected disability, death, disappearance or discipline of an attorney. The failure to plan adequately for the unexpected can result in harm to the client and in confusion and hardship for the attorney’s family, staff and professional colleagues. In addition as attorneys retire a succession plan is required to ensure a smooth transition to retirement.
Attorney competence includes anticipating events or circumstances that may adversely affect client representation. (See Rutter Practice Guide, Professional Responsibility, 6:24.3) Practice interruption may affect an attorney’s fiduciary obligations to his/her clients and produce harsh consequences. An attorney without a succession plan may face state bar discipline and legal malpractice exposure.
Developing a succession plan in advance ensures the orderly transfer of a client’s matters and files to a new attorney, as well as return of moneys held in trust and satisfies the attorney’s ethical obligation to provide competent and diligent representation.
Although representation normally will terminate when the attorney is no longer able to adequately represent the client, the attorney’s fiduciary obligations continue beyond the termination of the agency relationship. See ABA Formal Opinion No. 92-369.
This guide charts a path for an attorney to facilitate the transition of open client matters to new attorneys or a successor attorney appointed in advance by the affected attorney. It also addresses what can happen when an attorney does not prepare a succession plan and the State bar becomes involved with the attorney’s practice.
II. What Are the Core Elements of a Succession Plan?
I. Is An Attorney Required to Develop a Succession Plan? While there is no professional obligation requiring an attorney to have a succession plan, prudent attorneys should have one in place. Attorneys owe fiduciary duties to their clients: duties of loyalty and confidentiality and the duty to perform services competently. California Rule of Professional Conduct 1.1 and 1.3.
The type of practice determines the elements of a succession plan. Midsize and large firms with multiple attorneys do not experience issues regarding file transfer and attorneyclient privilege and confidentiality that a solo or small firm practitioner faces. It is suggested that every solo or small firm attorney should have a written succession plan that includes detailed instructions to members of the attorney’s immediate family, a designated successor attorney, the attorney’s estate planning representative and key office staff. The following are core elements of a comprehensive plan:
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Corporate Entity Considerations
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1. A written agreement with the designated successor attorney. 2. Information regarding the status of open client matters including contact information for the client and the location of the client files. 3. A copy of the attorney’s client file retention policy. 4. Details concerning the IOLTA account, operating account and other bank information. 5. The location of log-in and password information for bank accounts, computers, mobile devices, voicemail, cloud storage, billing systems, calendaring system, email and other websites the attorney regularly uses. 6. The location of accounts payable and receivable information. 7. Contact information for office personnel and key vendors. 8. Detailed information about office lease, insurance, and leased equipment.
If the affected attorney is the sole member of a LLC or LLP, the LLC or LLP must pre-authorize someone other than the sole member to act on behalf of the entity and carry out the succession plan in the event of the member’s death or disability. The corporate entity must have a resolution in place that states when and how the successor attorney may act on behalf of the entity after the death or disability of the member.
III. Why Designate a Successor Attorney? The succession plan should include the designation of a competent and diligent attorney to act as the successor attorney. Some malpractice insurance carriers may require the designation. A successor attorney is typically granted authority by the affected attorney to inventory the affected attorney’s files and make determinations as to which files need immediate protective actions. In addition, the successor attorney is typically responsible for notifying the affected attorney’s clients. See ABA Formal Opinion 92-369. The designation of a successor attorney will ensure client confidentiality and prevent malpractice if an attorney is temporarily disabled. (e.g. file to protect a statute of limitations or other filing deadline). An ideal candidate is someone the
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IV. How Do I Designate a Successor Attorney? A written agreement between the affected attorney and the successor attorney is essential to memorialize the arrangement and include duties and responsibilities. Suggested key provisions of the agreement should include the following: 1. Authority to access the client’s matters (e.g. within 24-48 hours after death or disability) and determine those matters which need protective action. 2. A provision concerning confidentiality to authorize the review. 3. Authority to carry out immediate protective action including communication with courts and opposing counsel. 4. Authority to notify clients concerning death or disability. (A draft letter can be prepared in advance for the successor attorney to send to clients.) 5. Authority for the successor attorney to access and serve as a signatory on the attorney’s IOLTA and operating accounts. 6. Any compensation that will be paid to the successor attorney for his/her services. 7. Indemnification of the successor attorney by the practice or the estate of the deceased attorney 8. Termination of the agreement.
V. How will the Successor Attorney Access My IOLTA and Operating Accounts? Advanced planning can avoid issues that may arise concerning the successor attorney’s need to access
the trust and operating accounts. The affected attorney should contact his/her bank in advance to determine what documentation it will accept for transfer and/or signature authority on these accounts. Methods of possible documentation include: a power of attorney, a copy of the written agreement between the successor and affected attorney permitting access, a probate court order or pre-signed designation forms provided by the bank. Under the written agreement, the successor attorney should make every reasonable effort to identify clients who have funds on deposit in trust and contact the clients to return any funds to which they are entitled.
VI. What Happens if There is No Written Succession Agreement/Plan-State Bar Involvement under Business & Professions Code? A significant interruption in an attorney’s practice may provide a sufficient basis for the State bar to petition the Superior Court to assume jurisdiction over an attorney’s practice under Business & Professions Code Sections 6180 (cessation) and 6190 (incapacity). The court will assume jurisdiction to protect client interests and if there are unfinished client matters for which no other attorney has agreed to assume responsibility. The state bar and the Superior Court have the authority to take over management and control and to close the practice. See Business & Professions Code Sections 6180/6190. Although the court may appoint an attorney, the process often involves a state bar attorney who takes over and manages the practice until it can be closed. The appointed attorney can examine files and records, obtain information on pending matters that require attention, notify clients and inform them it may be necessary to obtain other legal counsel. See Business & Professions Code Section 6180.5. In addition, until new counsel
is obtained, the appointed attorney has the authority to control all operations and bank accounts of the practice. Since the attorney appointed is working under the auspices of the Superior Court, he/she will not be liable to a particular client if there is any harm resulting from the death or disability of the affected attorney. Business & Professions Code Section 6180.11. If the Superior Court becomes involved there are serious obstacles that a recovering or recovered attorney faces. Once the court proceeds under Business & Professions Code Sections 6180/6190, the attorney is automatically placed on inactive status and must seek reinstatement to resume practice. See Business & Professions Code Section 6007(b)(2). Reinstatement depends on the attorney’s ability to prove that he/she is competent to practice. Once
reinstated, the attorney must petition the Superior Court to terminate jurisdiction over the practice. Business & Professions Code Section 6190.6.
VII. Conclusion The best recommendation is to plan ahead so that succession of an attorney’s law practice or its closing can be handled with the least amount of stress and chaos associated with unexpected events. If an attorney is retiring, a succession plan will ensure a smooth transition into retirement. Lorraine M. Walsh is an attorney who has practiced in California for 38 years and maintains her office in Walnut Creek. She is a State bar certified specialist in Legal Malpractice Law and handles controversies involving attorneys and clients. She is the Chair of the CCCBA Senior Section.
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Beware of Trust Mills: High Volume “Estate Planning” May Be Elder Financial Abuse By: Andrew R. Verriere With the recent rise of health concerns, many people young and old rushed to implement an estate plan to protect themselves and their loved ones. Unfortunately, some less scrupulous individuals used the fear as an opportunity to prey on portions of our elderly community, targeting them with advertisements and solicitations for low cost estate plans. While some of these individuals provide estate planning that genuinely assists their clients, others leverage fear and panic to provide ineffective or incompetent documents that could cost clients and their family more down the line, or foist unnecessary and expensive financial products on the elderly. Their work is little more than a scam. These “trust mills” became such a problem in California that the attorney general set up an information page to protect Californians from falling for the scam. https:// oag.ca.gov/consumers/general/ living_trust_mills. As explained by the attorney general: Unfortunately, there are unscrupulous actors working for “living trust mills” who will sell you an unnecessary living trust or use your financial information to sell you products that are less secure than your current investments. This type of scam often targets seniors lured by “free” seminars on living trusts or other estate planning presentations. These scam artists often work in assisted living centers, churches and other places where seniors gather. Occasionally, sales agents will pose as estate planners or financial experts to gain the
trust of the senior in these “free” seminars and later schedule a visit in the senior’s home to gather information they can use to steal your identity or sell you financial products you don’t need. Fortunately, the California Legislature recognized the need to protect the elderly. The Elder and Dependent Adult Civil Protection Act provides an avenue of relief for elders or other dependent adults targeted by scam artists operating trust mills and affords aggressive remedies for elders or those acting on their behalf.
Unscrupulous Trust Mills Can Result in Claims for Financial Elder Abuse Financial abuse of an elder occurs when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder . . . for a wrongful use or with intent to defraud.” Welf. & Inst. Code § 15610.30. In order to allege a cause of action for financial elder abuse, the plaintiff must allege the following: 1. The plaintiff is an elder (i.e., the plaintiff is over the age of 65). 2. The defendant took, secreted, appropriated, obtained, or retained personal property. 3. The personal property belonged to the elder.
4. The personal property was taken for a wrongful purpose, through undue influence, or with intent to defraud. Welf. & Inst. Code §§ 15610.27, 15610.30. In a financial transaction with an elder, the first three prongs of a claim for financial elder abuse nearly always exist: the victim is an elder, the defendant obtained money from the elder, and the money belonged to the elder. The question to examine is whether the property was taken for a wrongful purpose, through undue influence, or with intent to defraud. An examination of some common features of trust mills shows how these elements may exist.
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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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Unauthorized Practice of Law As the attorney general warns, one characteristic of trust mills is employment of non-attorneys to draft and advise regarding estate planning. Legal document assistants may not draft estate planning documents or give legal advice, and paralegals must work under the direction of an attorney. These requirements are set forth in both Rule of Professional Conduct 5.5 and Business and Professions Code section 6125. Under the Business and Professions Code, it is a misdemeanor to hold yourself out to practice law if not licensed, and myriad relief is available to the victim of such services. Bus. & Prof. Code §§ 6126(a), 6126.5. An elderly victim of a trust mill could claim that the trust mill obtained funds from the elder through deceptively marketing itself as providing legal services when, in reality, a legal document assistant or unsupervised paraprofessional provided the advice and documents. This practice is not only illegal, but could constitute fraudulent misrepresentation, satisfying the fourth prong of the elder abuse statute.
Improper or Expensive Financial Products The foisting of inappropriate or overpriced financial products on an elder could satisfy the fraud, undue influence, or wrongful purpose prong depending on the tactics and representations used by the trust mill. Among other things, misrepresentation of the security of an investment can satisfy the fraud prong of the statute. See, e.g., Negrete v. Fidelity and Guar. Life Ins. Co., 444 F. Supp. 2d 998, 1001-03 (2006); see also Makaeff v. Trump University,
The mere knowledge that the financial product is inappropriate for the elder likely satisfies the wrongful use prong: “A person shall be deemed to have taken . . . property for a wrongful use if . . . the person . . . knew or should have known that this conduct is likely to be harmful to the elder.” LLC, 145 F. Supp. 3d 962, 980-81 (C.D. Cal. 2015). Similarly, an elder could claim that the trust mill exercised undue influence. The Act sets forth a number of factors a court must consider in determining whether undue influence occurred. Among them are (1) vulnerability of the victim, (2) the influencer’s authority, including status as a fiduciary, legal professional, or expert, and (3) the tactics used, including use of pressure and changes in property rights. Welf. & Inst. Code § 15610.70. Finally, the mere knowledge that the financial product is inappropriate for the elder likely satisfies the wrongful use prong: “A person shall be deemed to have taken . . . property for a wrongful use if . . . the person . . . knew or should have known that this conduct is likely to be harmful to the elder . . ..” Welf. & Inst. Code § 15610.30(b).
Remedies Depending on the circumstances, remedies for financial elder abuse may include actual damages, punitive damages, double damages pursuant to Probate Code section 859, treble damages under Civil Code section 3345, attorney’s fees and costs, and additional prejudgment relief, such as restraining orders, right to attach orders, and temporary protective orders. For a further discussion of the available remedies, you may read: Financial Elder and Dependent Adult Abuse – A Primer for Litigators (http://cclawyer.cccba. org/2013/02/financial-elder-anddependent-adult-abuse-a-primerfor-litigators/) How To: Writs of Attachment in Financial Elder Abuse Litigation (http://cclawyer.cccba.org/2014/04/ how-to-writs-of-attachment-infinancial-elder-abuse-litigation/)
Conclusion Attorneys who represent elders who may be the victims of trust mills should consider potential elder abuse claims against those individuals or entities who provided the legal services. Elders should be careful to scrutinize low cost estate planning options to be sure they do not fall victim to a trust mill or become the victim of the unauthorized practice of law. Andrew R. Verriere is a Principal at Hartog, Baer & Hand APC focusing on trust and estate litigation, conservatorship litigation, financial elder abuse, related litigation, and appeals. He can be reached at averriere@ hbh.law.
CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
Rights Resources for the Elderly During the Pandemic By Douglas Housman As Bob Dylan wrote in his famous song: “The Times, They Are A Changin’.” No truer words have been spoken in these unusual and uncertain times. During this pandemic we have heard increasing whispers that we should all expect a “new normal.” What does the “new normal” look like? Only time will tell. According to the Center for Disease Control, the elder population (those aged 65 or older) are considered one of the most “at risk” groups during this COVID-19 pandemic. Yet, many times these are the same individuals that need the most assistance and/or are considered the most vulnerable within our court system. So what rights, resources and options do elders have during these changing times? “It depends.” Each of the San Francisco Bay Area Superior Courts have implemented their own set of Emergency Local Rules to guide attorneys who represent elders in various proceedings. This article focuses on the current procedural options for those who practice in Contra Costa County Superior Court. The resources and informa-
tion outlined below may change, so it is recommended that you review the most current local rule before you prepare your documents and file them with the court.
Restraining Orders Pursuant to the Second Amended Emergency Local Rules-Civil (implemented May 5, 2020), Rule 4 titled “Filing of Papers,” subsections (a) and (b), provides as follows: a. Acceptance of Filings Effective Monday, April 6, 2020, the Court will permit filings each day via drop box, excluding weekends and Court holidays. Two separate drop boxes will be provided at the Main Street entrance to the Wakefield Taylor Building, at 725 Court St., Martinez. One designated drop box will be for Civil Ex Parte matters as identified in Local Rule 3.47 and Civil Restraining Orders, which are defined to include the following: i.
Requests for Elder or Depen-
dent Abuse Restraining Orders pursuant to Welfare and Institutions Code §15657.03. b. Procedure for obtaining Civil Restraining Orders i. Completed paperwork for all Civil Restraining Orders will be accepted via drop box at the Main Street entrance to the Wakefield Taylor Building, 725 Court St., Martinez, each court day between 9:00 AM and 10:30 AM. The completed Requests for Restraining Orders will then be reviewed by a judicial officer. If approved, the orders will be issued, filed with the court and a hearing date will be assigned. iii. Endorsed filed copies of issued Restraining Orders will be available for pick up at 1:00 PM outside of the Peter Spinetta Family Law Center, 751 Pine St., Martinez, on the same day that they were submitted to the Court. Litigants and attorneys are reminded to stay a safe distance (at least 6 feet) away from each other and court staff at the time of distribution of these Orders. The court will be vacating all restraining order hearings set for hearing prior to June 15, 2020, but will automatically extend all temporary restraining orders that were scheduled during the court closure for an additional ninety (90) days to ensure the safety of the protected party.
Unlawful Detainers (Evictions) The Second Amended Emergency Local Rules-Civil (implemented May 5, 2020), Rule 4 titled “Filing of Papers,” subsection (d), provides as follows: d. Procedures for Detainer matters
i. Under Rule 1(b) of the Judicial Council Emergency Rules, the Court
may not issue a summons for new unlawful detainer complaints except if the Court finds, in its discretion and on the record, that the unlawful detainer action is “necessary to protect public health and safety.” [Emphases added.] ii. Under Rule 1(c) of the Judicial Council Emergency Rules, the Court may only enter a default judgment in an unlawful detainer action for failure to appear if the action is necessary to protect the public health and safety and the defendant has not appeared in the action within the time provided by law, including by any applicable executive order. iii. The submission of any unlawful detainer complaint, default judgment, or other unlawful detainer filing which argues necessity based on protecting public health and safety, including matters involving violence or threats of violence, must be accompanied by: 1) a declaration under oath stating specific facts showing such necessity; and 2) a proposed order permitting the filing on the basis of such necessity. The effect of this Rule is that the Court has temporarily suspended any eviction actions unless the eviction is necessary to protect public health and safety. If it does, then the court requires additional proof to satisfy that element. Again, the court is using precaution in temporarily suspending this specific action, unless absolutely necessary.
Financial Elder Abuse The first issue you must decide before filing a financial elder abuse case is whether it will be filed as a Civil Case or a Probate Case. As described above, if filed in as a Civil Case, then the Second Amended Emergency Local Rules-Civil apply, specifically Rule 4 titled “Filing of Papers,” subsection (e). It states as follows:
e. All other Civil filings i. Drop Box. All other Civil filings will be accepted via a separate drop box at the Main Street entrance to the Wakefield Taylor Building, 725 Court St., Martinez, each court day between 9:00 AM and 3:00 PM. All such submissions shall include any necessary filing fee, as well as copies of any papers submitted and a selfaddressed stamped envelope so that endorsed filed copies can be returned by mail. More importantly, subsection “c” of Rule 4 of the Second Amended Emergency Local Rules-Civil reminds practitioners that if they are submitting an ex parte matter, the request must present special issues that require immediate court attention. Rule 4(c) states: i. Given the limited Court services available during this emergency, parties are directed to only submit Ex Parte matters that truly present special issues that require immediate court attention. When possible, parties shall participate in a meaningful meet and confer process before any Ex Parte matter is submitted to the Court. For Probate Cases, the Emergency Local Rules-Probate (Amended) apply. Rule 2, section (b) states: b. Type of Filings Accepted Documents that may be filed are limited to the following: i. Limited ex parte petitions that meet both emergent requirements and include written consents and waivers of notice by all parties for the following: a. Appointment of counsel for Limited Conservatorship; b. Appointment of Temporary Conservator or Temporary Guardian ;
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Rights & Resources for the Elderly During the Pandemic Continued from page 17
c. Extension of Temporary Conservatorship, Guardianship or Special Letters of Administration; d. Order for MD/Psych to complete Capacity Declaration; e. Request MND Medical Powers from counsel who have been previously appointed by the court;
l. Appointment of Guardian ad Litem. ii. General Petitions. General Petitions may be filed and
will be set for hearing in 60 to 90 days, allowing for notice and publication. Notices are advised to include language that interested persons should check the online tentative ruling for the respective probate department to see examiner notes and if the hearing is continued. Finally, the CCCBA and the court have hosted several Zoom town hall meetings featuring Judges Baskin and Austin where they have reviewed these rules and answered attorneys’ questions. Consult the CCCBA calendar for future meeting announcements so you can keep updated and be ready to assist your elderly clients in “these changin’ times.”
Douglas Housman is an attorney admitted to practice in California in 2010. He is a member of the law firm Cain, Cain & Housman in Walnut Creek. He attended John F. Kennedy law school and practices in the areas of estate planning, probate and elder law. He is the current Chair of the CCCBA Elder Law Section.
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MCLE SELF STUDY
Diversity Considerations in the Appointment of Counsel for Conservatees:
Unintentional Implicit Bias By Patanisha E. Davis, Esq.
California Probate Code Section 1471 provides that the court may appoint private counsel for a conservatee or proposed conservatee if “it would be helpful to the resolution of the matter or is necessary to the protection of the person’s interest.” Throughout the state of California, attorneys are appointed to provide unbiased representation of elders in conservatorship cases. In Contra Costa County attorneys are either appointed from the bench or from the Contra Costa County Conflict Program also known as Independent Counsel, Inc. It is an honor to be a court-appointed attorney since the court entrusts certain attorneys to protect the wellbeing and financial assets of its senior population. The court also relies on the courtappointed attorneys’ recommendations when making critical decisions in probate matters. However, even with the best intentions it is common that attorneys project their own bias on the clients. It is known as unintentional implicit bias. The beliefs we hold are often shaped from our world view and cultural and developmental experiences. Unintentional implicit bias can be as simple as thinking your client is a hoarder when, really, they hold on to things based on the scarcity he or she faced at some point in his or her life. An attorney may also feel it is unsafe to visit a client because the people in the home look different or have different religious views. These biases may get in the way of zealous advocacy.
A movie which was released in July 2019 displays how one can project their own bias on another person. The movie, titled “The Farewell,” stars actress Awkwafina who plays Billi. Billi, who is Chinese American, learns that her grandmother is dying of cancer and wants to tell her of her diagnosis. Billi felt that if her grandmother knew she was dying she could prepare herself for death. Billi was extremely disappointed when her family decided not to tell her grandmother. At times, Billi formed extremely negative opinions of her family and her grandmother’s medical providers who supported keeping the diagnosis a secret. Billi’s judgment caused dissention and stress for herself and her family members. Contrary to Billi’s Western views, her family’s cultural belief was that the lie allowed the family to carry the burden of the diagnosis so that her grandmother did not have to carry it and could die in peace. Billi soon realized that her grandmother preferred the family’s decision as it aligned more closely with her belief system. Court-appointed attorneys also struggle with the same paradigm shift. They struggle with projecting their own cultural norms on the client with the expectation that the client must accept the attorney’s norms. It is difficult to abandon our views, our pride, our egos and experience a paradigm shift. Here are a few tips on how to minimize unintentional implicit bias towards all clients, especially the elderly, disabled and/ or vulnerable.
Pay attention to your implicit bias You should be aware how many times you recognize differences between yourself and your client. Pay close attention to how you show up and what may trigger certain negative feelings. Sometimes meeting with parties when you are tired, stressed, hungry or even angry may affect your perception of your client.
Do your due diligence Learn more about your client’s culture, traditions, family values and beliefs. This may require you to spend more time with your client, your client’s key family members and friends. What may be red flags to you may be cultural etiquette. For example, a client may purchase an expensive wedding gift for his or her grandchild; however this act which you may consider as elder financial
abuse may simply be the cultural norm in your client’s community. In another situation, when finding the least restrictive housing option for your client, remaining at home may be in his or her best interest even if it does not meet your personal standards for cleanliness.
Rules of Professional Conduct, less restrictive alternatives for the client, supportive decision making and communicating with older, disabled or vulnerable clients.
Remain open and question your bias
Utilize what you have learned about your client to challenge stereotypes and champion change.
Remaining open may include allowing your client to speak more than yourself. You should pay attention to instances when you think your client’s way of doing or being is wrong or unacceptable. It is recommended that you enroll in MCLE courses on the elimination of bias. California Rule of Court Section 7.1103 lists the educational requirements that attorneys must complete in order to receive court appointments. They include taking courses on the ethical duties owed to the client under the California
Eliminate cultural stereotypes
Be your client’s advocate, not your own It is easy to protect your own views and beliefs to the detriment of effective representation of a client. We can learn and benefit from expanding our world view and trying to see things from our client’s perspective. As court-appointed attorneys, it is sometimes a difficult task. We are charged with doing what is in the best interest of our clients. Some-
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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
Diversity Considerations in the Appointment of Counsel for Conservatees Continued from page 21
times this requires us to make recommendations to the court that are contrary to our client’s wishes. It is possible to achieve this goal and respect our clients at the same time. Writer C.S. Lewis once said, “A proud man is always looking down on things and people; and, of course, as long as you are looking down, you cannot see something that is above you.” Patanisha E. Davis is an attorney and author of Barren, But Not Broken: A Guide from Infertility to Adoption. She is a native of Oakland, California. Patanisha’s name means reconciler of differences and that is what she does in her career. She is currently employed as a Partner with Key Counsel, P.C. and practices in the areas of probate, guardianships, conservatorships, adoption and civil
litigation. She received her B.A. degree in Psychology from the historic Tuskegee University and her Masters in Organizational Psychology from California School of Professional Psychology. She was a professor at her law school, John F. Kennedy University where she taught Legal Methods. She is very active with the CCCBA serving as the Past Chair of the Women’s Section, the current Chair of the East County Section and a member of the Diversity Committee. She is also a member of the California Women Lawyers Board of Directors. She enjoys traveling, singing, puzzling and spending time with her family.
MCLE Self Study Earn one hour of general MCLE credit by answering the questions on the Self Study MCLE test available online at https://www.cccba.org/wp-content/ uploads/2020/07/mcle_test_davis_jul-2020.pdf. Send your answers along with a check ($30 per credit hour for CCCBA members/ $45 per credit hour for non-members), to the address on the test form. Certificates are processed within 2 weeks of receipt. If you have any questions, contact Anne K. Wolf at awolf@ cccba.org or (925) 370-2540.
A Port in the Storm for Seniors By Verna Haas
“My daughter is schizophrenic and lives with us. She goes out every day to panhandle with her friends who are homeless. My husband is on hospice, and I am nearly 80. We are scared to death that she doesn’t understand social distancing and is going to bring the virus home. What do I do?” This question from a recent client reflected the novel challenges faced by seniors in a world with COVID19. Here at Contra Costa Senior Legal Services, our staff has been fielding questions like this for over 44 years. While our mission —protecting the rights of older residents of our County — hasn’t changed, certainly the nature of the problems facing our clients has. As a result, our practice has changed as well. The COVID-19 pandemic may be the most transformative moment of our lifetimes: it has affected our institutions, our neighborhoods and our families. Contra Costa Senior Legal Services is mindful of the unique role we play as lawyers advocating for older adults, who are especially vulnerable during this health crisis. We are rapidly adapting to meet the challenge. During the pandemic, we have seen a significant increase in calls for help with the cross-over legal issues of housing and elder abuse, as exemplified by the client with the schizophrenic daughter. The COVID-19 crisis was not alone in creating
these problems; housing instability, lack of resources and mental health disabilities challenged many in our county long before the COVID-19 scourge. But the crisis has amplified the weaknesses in our safety net. In this instance, as with many of our senior clients, an adult child is living in the home. Sometimes this is for the convenience of the senior, but many times it is not. Children or other family members may experience unemployment, substance abuse or mental health disabilities and turn to their elderly parents for refuge. But the aging process itself makes these scenarios fraught—as seniors become more vulnerable due to physical and mental decline, the demands of caring for their impaired children grow. Compounding the issue is the complexity of the legal duties and responsibilities that arise when one invites another—even a family member—into the home. Has the person become a tenant? Must the Unlawful Detainer process be used to remove them? Many seniors are ill-prepared to step into the unintended role of “landlord,” and they lack the resources to hire an attorney to help them navigate the pitfalls. When the problem is severe and the safety of the client is at stake, the senior can sometimes use the remedy of an Elder Abuse Restraining Order to remove an abusive family member. But that,
too, has its drawbacks. Many older adults are loath to evict a loved one, even in the face of harm to themselves. In other cases, a client realizes that the family member will become homeless and there are no other resources for their often indigent, impaired child. Under these circumstances, the choice can be heart-wrenching. The urgent issues of housing and health for seniors have never been more pronounced than during the current pandemic. There are a cascading array of new regulations limiting the ability of landlords to evict tenants except for health and safety reasons. Their admirable goal is to keep people housed. But what of the adult child who, due to cognitive impairment, does not understand that she may be exposing her parents to illness and even death? What to do in extended households in which some members refuse to abide by the social distancing orders? These are issues that confront many older adults in Contra Costa. Thankfully, Contra Costa Senior Legal Services is available to help, providing free legal assistance to those 60 years of age and over. We have staff attorneys who specialize in the legal issues that affect lowincome seniors such as preservation of housing, income maintenance and debtor’s rights. We leverage our
Continued on page 24
CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
Elder Law is
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, 10% of the population age 65 and older has Alzheimer’s disease. Of the 5.5 million people living in the U.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members. Protect your loved ones, home and independence, call elder law attorney
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Continued from page 22 impact with the invaluable help of pro bono volunteers, many of whom are members of the Contra Costa County Bar Association. Working together with these devoted pro bono attorneys, last year CCSLS helped nearly 1,100 seniors. CCSLS reached thousands more people last year to educate them about the ever-evolving array of scams targeting the elderly and to inform them of their legal rights. CCSLS is also a trusted resource for reliable referrals and accurate information. In these uncertain times, it is comforting to know that some traditions continue, including the honorable tradition of attorney pro bono work. With the assistance of these dedicated professionals, CCSLS will continue to protect and advocate for our Contra Costa seniors. To learn more, including details about pro bono opportunities with our organization, please visit our website: www.ccsls. org.
Verna Haas who was admitted to practice in California in 1983, is the Executive Director and Supervising Attorney at Contra Costa Senior Legal Services. As Executive Director she manages CCSLS, supervises staff and contributes to the substantive work of its mission. She is honored to be part of an organization that has been in existence for over 40 years and has helped thousands of clients, many of who are low income, disabled and would not otherwise have access to legal services and information.
CCCBA Member Joscelyn Jones Appointed as an Alameda County Superior Court Judge Congratulations
to CCCBA Member Joscelyn Jones Torru on her appointment to the Alameda County Superior Court bench. Joscelyn has served as a Judge Pro Tem in Contra Costa County Superior Court starting in the Richmond court in 1997. In 2016 she commenced service as a Pro Tem Judge in the Probate Division of the Alameda County Superior Court. She served as a deputy public defender in Contra Costa County from 1983 to 1990. In 1997 she started her own practice focusing on probate, estate planning and conservatorship cases. She has been active in many CCCBA sections and was a member of the Senior Lawyers Task Force which studied the formation of the newly-formed Senior Section. Congrats Joscelyn!
gratefully acknowledges its
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The June Issue of Contra Costa Lawyer – Here’s What You Missed in the Alternative Dispute Resolution Issue Thank you to Stephen Moses, Guest Editor Find it online at www.cccba.org/cclawyer-magazine The COVID-19 outbreak and pandemic have reset the world in ways still do not fully know, but in the courts, one thing is sure, the role of ADR is more important than ever before. Guest Editor Stephen Moses reached out to fellow CCCBA members to take a look at how ADR and Online Dispute Resolution (ODR) are changing things.
Features • ODR and the Law of Unintended Consequences, by Stephen Moses, Guest Editor • Buywer Beware: Do you Know What’s in those Boilerplate Arbitration Clauses and Rules? Choosing Arbitration Provisions & Rules in the Wake of Monster Energy Co. v. City Beverages, by Kathryn Richter • Rethinking Civil Mediation, by Mark LeHocky • Online Mediation COVID-19 and Beyond, by Tom Crosby • Creating Chemistry in Online Mediation, by Jeff Windsor • Contractual Waiver of Public Injunctive Relief in Arbitration Agreements: Conflicting Federal Interpretation of the McGill Rule, MCLE Self Study, by Andrew Chan and Brian Sanders • Volunteer Mediators Serving Our Community, by Palvir Shoker of the Congress of Neutrals
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2020 Education Series
Your Law Practice Roadmap Practical Guidance for New & Established Attorneys
Online Sessions | 1 hour MCLE credit
Members - $20/session, Non-members - $40/session, Law Student Section Members - $10/session
The Work/Life Balancing Act
Tuesday, September 15; Time TBD
Alternative Practices of Law – Inside Law
Wednesday, October 15; Time TBD
Panel Moderated by: David Erb
Panel Moderated by: Kate Mignani
Topics include: • Time management • Meditation • Alcohol abuse • Stress
Topics include: • Mediation/ADR • In house counsel/Corporation • Court
1 hr General MCLE credit
1 hr General MCLE credit
Alternative Practices of Law
– It’s a Big, Wide, Wonderful World
Tuesday, November 10; Time TBD
Panel Moderated by: Marcus Brown Topics include: • Politics • Teaching • Non-profit 1 hr General MCLE credit
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