Lawyers Get Old Also

Posted on September 2, 2014 02:49 by Steve Crislip

I had a very talented law partner who retired at age 64 to take an appointment by the Governor for a six-year term on the Public Service Commission.  He works just as hard as always, but for less money in government service.  When I discussed it with him, he said he wanted to do something different and to go out on top — and that he did.

The days of the magic retirement age of “X” and a gold watch are over.  (See August 2013 Post.)  For each it is a personal decision and for the poor planners, a necessary delayed requirement.  As the very large group of post-World War II children age up, it becomes a legal issue worth revisiting.  I officially “retired” at 65, but daily actively practice law and intend to do so.  It is just a bit more fun doing it on your own terms, as opposed to that strong fiduciary duty to your other partners to provide full hours, manage a business, feed work to others, and be part of your professional and local communities.  As I said before, no lawyer ever went to the Pearly Gates and said:  “Damn, I wish I had billed some more hours.” 

We are talking valuable experienced legal resources here.  Firms should have every interest in using their talents productively as long as their lawyers wish to do so.  However, on the other side, you do not want to be the older person the younger partners always complain being gone or not engaged.  They do not take kindly to the “I earned it” approach.  It is more like “what have you been doing lately” approach.  So, do like my friend did — go out on top is my thought.  Work out your own deal with your firm and be happy.  The Earl of Elkview, a local colorful lawyer, advocates “Festive Living” with livable rather than billable hours.  There are many variables to be considered.  See, Jim Cotterman (Cotterman on Compensation) May 14, 2014.

There is a legal point where the retirement and aging issue transcends what is right, or what you want to do with your legal career.  Do not get to the point where your train of thought leaves the station without you.

Having served on a statewide Alzheimer’s Board, I feel somewhat better attuned to the aging process issues which will statistically hit the Boomers in a big way.  Absent a cure, aging issues will most definitely affect boomer lawyers and their law firms.  So as your law partners’ keeper, you must watch for all the many things induced by the stressful life of a lawyer, and now add cognitive degeneration to that watch list.  Before 401K plans, lawyers never retired and others did pay attention to this, but not so much in the last thirty (30) years.  Now I see an early ethics opinion on this very subject.

Kansas Bar Association Legal Ethics Opinion No. 14-01 “Duty to report attorney memory lapses” tells its lawyers to refer memory lapses, cognitive deteriorations, or other potentially disabling conditions to the Kansas Lawyers Assistance Program, or other suitable service.  If this problem resulted in acts or omissions constituting actual violations, then another lawyer would have the duty to report it.  I see this as an early recognition that this coming impairment is a larger issue to be regarded in the legal community due to its potential volume.  Well, there you have it.  Have we discussed this before?

As a good friend of mine always closes:  “Remember, life is too short for boring briefs.”

This blog was originally posted on Lawyering for Lawyers. Click here to read the original entry. 

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Categories: Professional Liability

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The Centers for Medicare & Medicaid Services (“CMS”) issued a Section 111 Non-Group Health Plan (“NGHP”) Alert on August 19, 2014.  The Alert revises the rules pertaining to Section 111 reporting for liability insurance (including self-insurance) in cases involving exposure, ingestion, and implantation.  Specifically, the Alert allows for the claims made in amended complaints or other comparable supplemental pleadings to govern Section 111 reporting obligations in the context of the December 5, 1980 cut-off.  

As background, the Medicare Secondary Payer (“MSP”) Act was enacted by Congress on December 5, 1980.  As such, CMS does not assert recovery claims against liability insurance settlements, judgments, awards, or other payments where the incident occurred before December 5, 1980.  CMS does not assert recovery claims where the incident occurred before December 5, 1980 because Medicare was the primary payer in these situations prior to the passage of the MSP Act.  The MSP Act has been revised several times since its initial passage on December 5, 1980.  One of the these revisions, referred to as Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (“MMSEA”), added mandatory reporting requirements with respect to Medicare beneficiaries who have Group Health Plan coverage or receive settlements, judgments, awards, or other payments from NGHPs.   

The Alert revises the Section 111 reporting requirements for liability insurance (including self-insurance) by providing that “the most recently amended operative complaint or comparable supplemental pleading” governs when determining whether the date of last exposure, ingestion or implantation claimed is before or after December 5, 1980.  The Alert responds to numerous inquiries regarding the effect of amended pleadings on Section 111 reporting obligations in the context of the December 5, 1980 cutoff for liability insurance payments.  See e.g., CMS-hosted Section 111 NGHP Town Hall Teleconference, pp. 46-47 (October 19, 2011); CMS-hosted Section 111 NGHP Town Hall Teleconference, p. 52 (February 23, 2012).

The Alert further provides:

Any operative amended complaint (or comparable supplemental pleading) must occur prior to the date of settlement, judgment, award, or other payment and must not have the effect of improperly shifting the burden to Medicare by amending the prior complaint(s) to remove any claim for medical damages, care, items and/or services, etc. 

Where a complaint is amended by Court Order and that Order limits Medicare’s recovery claim based on the criteria contained in this alert, CMS will defer to the Order. CMS will not defer to Orders that contradict governing MSP policy, law, or regulation.

Per the general rules governing Section 111 reporting, the revised language in the Alert controls over the applicable, current language in the MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting, Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers’ Compensation User Guide Version 4.2, Chapter III: Policy Guidance § 6.5.1, p. 6-23 through 6-25 (March 3, 2014).  The revised language in the Alert will be added to the next version of User Guide.

For complete details regarding Section 111 reporting obligations in the context of the December 5, 1980 cutoff, please see the full text of the Alert here.

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In his recently-published book, Cybersecurity for Executives: A Practical Guide, Retired Brigadier General Gregory Touhill, now Deputy Assistant Secretary at the Department of Homeland Security Office of Cybersecurity and Communications, offers the following quote from Congressman Mike Rogers, Chairman of the House Intelligence Committee, on the state of cybersecurity: “There are two kinds of companies. Those that have been hacked, and those that have been hacked but don’t know it yet.”  What makes the quote particularly interesting? It is from 2011 – long before the headlines regarding Target, Ebay, and Adobe. Not to mention the recently reported efforts of Russian and Chinese hackers. In light of all these events, the question arises “how concerned should directors and officers be about cybersecurity?” Most experts would respond, “very.” 

In October 2011, the SEC Division of Corporate Finance issued its Disclosure Guidance on cybersecurity. The Guidance suggested several risk factor disclosures, including a discussion of material cybersecurity risks to a registrant’s business or operations, a description of cyber incidents experienced by the registrant, and a description of relevant insurance coverage.  A report prepared by the insurance brokerage firm Willis in August 2013, based on a review of 10-Ks and annual reports filed by the Fortune 1000, suggested that companies were describing the possibly material risks to their businesses in broad terms, but were not adequately disclosing actual cyber events or their cyber-related insurance coverage.  Notably, only a few months prior to the Willis report, SEC Chairman Mary Jo White asked her staff to brief her on current cybersecurity disclosure practices for publicly-listed companies, and to provide recommendations for further SEC action. 

Significantly, in a speech delivered in June 2014 at the NYSE “Cyber Risks and the Boardroom” Conference, SEC Commissioner Luis Aguilar suggested one source of guidance for boards regarding cybersecurity.  In February 2014, the National Institute of Standards and Technology (NIST), pursuant to an Executive Order from President Obama, released the first version of the Framework for Improving Critical Infrastructure.  The NIST Framework is intended to provide companies with a set of industry standards and best practices for managing their cybersecurity risks. In his speech at the NYSE conference, Commissioner Aguilar noted, “While the Framework is voluntary guidance for any company, some commentators have already suggested that it will likely become a baseline for best practices by companies, including in assessing legal or regulatory exposure to these issues or for insurance purposes.”   In concluding his speech, Commissioner Aguilar cautioned board members, “Given the heightened awareness of these rapidly evolving risks, directors should take seriously their obligation to make sure that companies are appropriately addressing those risks.”

The obvious takeaway from all of the above is that directors and officers (and their counsel) need to remain closely attuned to both current and future guidance from the SEC both in terms of meeting their obligations to address their company’s own cybersecurity and with respect to their disclosure and reporting obligations regarding cybersecurity.

Finally, anyone interested in understanding the latest developments in cybersecurity, data breaches, privacy law, and related insurance issues should consider attending DRI’s inaugural Data Breach and Privacy Law Seminar in Chicago on September 11-12, 2014. For more information and to register, go to:

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Categories: Privacy | Seminar

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The Seventh Circuit has issued an opinion in City of Greenville, Illinois, v. Syngenta Crop Protection LLC, which limits the presumption of public access to non-privileged documents filed with a court to only those documents that influenced or underpinned a judicial decision. 

In City of Greenville, environmental groups intervened to seek access to the defendant's internal emails and business deliberations that plaintiffs had filed in opposition to a motion to dismiss. A protective order entered by the district court did not apply to materials filed in connection with a dispositive motion. The Seventh Circuit refused to permit access to uncited documents that were not considered by the district court in ruling on the motion to dismiss explaining "the presumption of public access turns on what the judge did, not on what the parties filed."  Because the documents did not affect the district court's decision, the Seventh Circuit held they need not be disclosed to the public. 

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The Employment and Labor Law Committee is one of several DRI committees participating in DRI's inaugural Data Breach and Privacy Law Seminar, September 11-12, 2014 in Chicago.  Click here to sign up

It seems like every day when we open a newspapaer or turn on the TV, there is another report of a significant data breach, followed by customer outrage and lawsuits!  This seminar will offer presentations from data security and privacy professionals who are at the forefront of cutting-edge data security and privacy issues, as well as industry leaders who will provide valuable insight and practical experience.  I encourage you to attend.   

Attendees will learn from real world scenarios and obtain concrete takeaways to aid in understanding and navigating the field of data security, including presentations on topics such as: 

The "science" of cyber attacks

Industry standards for privacy and data protection

Theories of civil liability and data security breach

Technical requirements for the protection of health records

Effective strategies to respond to data breach incidents, including insurance coverage

Data security ethical issues

The seminar will be an excellent educational and networking opportunity for everyone who attends.  Our committee helped shape the topics and I know you will benefit from attending.

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Categories: Privacy | Seminar

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On Monday, the Seventh Circuit affirmed two jury-selection decisions in a Section 1983 wrongful arrest lawsuit. In Marshall v. City of Chicago, No. 13-2771, 2014 WL 3892562 (7th Cir. Aug. 11, 2014), officers placed the plaintiff under arrest and took him into custody for constructively possessing a firearm while it was unlawful for him to do so. The plaintiff then sued for damages on the theory that the arrest was not supported by probable cause. The civil jury returned a defense verdict, and the plaintiff appealed. The decision is available here

On appeal, the plaintiff argued that the district court abused its discretion by denying his motion to excuse a prospective juror for cause on the grounds that she held a prior belief concerning the possession of firearms by convicted felons which made her unfit to serve. The Seventh Circuit wrote that a district court must apply a two-step process in determining which prior beliefs warrant for-cause dismissal: (1) does the prospective juror manifest a prior belief that is both material and “contestable,” meaning a rational person could question its accuracy and (2) if so, can the juror suspend that belief for the duration of the trial? The Seventh Circuit found that the bias alleged by the plaintiff was immaterial and that the juror’s exchanges with the trial court judge confirmed her ability to disregard her own prior experience and judge the case on the basis of the evidence brought before her.

Second, the plaintiff argued that the district court erred by refusing to agree to an ad hoc alteration of the parties’ agreed-upon jury selection procedures for the express purpose of ensuring that the petit jury would include jurors of a certain race. The parties had agreed, prior to trial, to try the case to a jury of eight, which would be selected from a venire of twenty. The order in which veniremen were called for voir dire was randomly assigned, with no knowledge of race, by the clerk’s office. Of the first fourteen veniremen called, none of the twelve whom were not excused for cause were black. At that point, a petit jury of eight (non-black) jurors had been selected. Counsel for the plaintiff, who is black, noticed that three of the six remaining veniremen were also black, and moved the court to expand the size of the petit jury to ten “in the hope of getting one of the persons of color on the jury.” The defendants objected and the court denied the plaintiff’s request. The Seventh Circuit wrote that it is established that a litigant has no right to a petit jury which contains members of his race or which fairly represents a cross-section of the community. It further wrote that a litigant does have a right to a jury venire composed of a fair cross-section of the community, but the plaintiff did not challenge the composition of the venire. And it wrote that the plaintiff also had a right to see that no state actor intentionally excluded any person from the petit jury on account of their race, but he did not claim that any state actor acted in such a way.

The Seventh Circuit affirmed the district court on both issues, finding the plaintiff’s arguments meritless and finding no abuse of discretion.

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Fracking: A Historical Research Perspective

Posted on August 14, 2014 07:44 by Taylor Hammel

The business of natural gas production has been booming over the last decade thanks to recent technological improvements, namely horizontal drilling coupled with hydraulic fracturing (commonly referred to as fracking). This has given energy companies the ability to extract unconventional natural gas from previously impermeable shale rock formations.

Natural gas is inexpensive, burns cleaner than coal, and America’s previously untapped, abundant supply will reduce dependency on foreign oil. States welcome the natural gas industry for the revenues it provides (as have some landowners) and the jobs it brings. To be sure, citizens from across the country flock to these jobs, while consumers appreciate the resulting lower utility bills.

But natural gas production is not without controversy, much of which centers around fracking and its potential impact on the environment. Increasingly, debates among the industry, politicians, environmental groups, landowners, and the public are playing out in legislatures and courts across the country.

Fracking: what it is and why it’s a big deal
Fracking is a drilling process that involves injecting a high pressure mixture of water, sand, and chemicals into rock formations to release trapped gas and increase the flow of it back to wells. Along with the sought-after gas, comes “flowback,” which “contains clays, chemical additives, dissolved metal ions and total dissolved solids (TDS).”

Critics of the oil and natural gas industry contend that flowback can lead to ground and surface water contamination, and seek the full disclosure of chemicals used in fracking fluid mixtures. Natural gas companies consider these mixtures trade secrets and worry about losing their competitive advantage in the marketplace should this information be disclosed.

Other environmental concerns include the storage and recycling of flowback and wastewater from drilling operations, the leakage of methane — the main ingredient in natural gas — from the supply chain into the atmosphere, and earthquakes related to fracking operations.

Industry & State Legislative Trends
As the industry matures and the natural gas boom continues in over thirty states, public scrutiny is increasing. Public officials and lawmakers have attempted to balance industry interests with those of the public as they undertake environmental impact studies and begin to implement guidelines and regulations. Clearly, the emerging trend is towards disclosure.

In 2011, the oil and natural gas industry responded to calls for transparency by creating, a website that tracks hydraulically fractured wells across the country. Energy companies can voluntarily disclose the chemicals used in the fracking process, with the exception of those that are proprietary.

At the same time, states have responded in various ways. For example, North Carolina and Illinois have followed in the footsteps of Wyoming, the first state that required the disclosure of fracking chemicals to state regulators. Currently, such information is not shared with the public, but there is ongoing litigation in several states seeking to overturn this. As part of regulations implemented in 2013, California now makes reporting chemicals on mandatory.

Other states have been more cautious. In New York, a non-legislative moratorium has been in place since 2008 while the state environmental and public health agencies complete an environmental impact review of fracking. Meanwhile, some municipalities have issued bans on fracking, with litigation on the rise to challenge them.

And though the debate surrounding fracking’s environmental impact has been polarizing in many states, progress has occurred. Just last year, the Center for Sustainable Shale Development (CSSD) formed in Pittsburgh, PA seeking to be a model for collaboration and compromise in developing natural gas production standards.

Trends at the Federal Level
Momentum has been building for more oversight of the natural gas industry at the federal level. In 2012, President Obama issued an executive order calling for a coordinated effort among the Department of Energy (DOE), Department of Interior (DOI), and the Environmental Protection Agency (EPA) to ensure the “responsible development” of the country’s oil and natural gas resources.

As a result, DOI released proposed draft rules in 2013 that would require energy companies operating on federal lands to publicly disclose the chemicals used in fracking. EPA is seeking public commentary until September 18, 2014 on its Advanced Notice of Proposed Rulemaking (ANOPR). It is asking for input on “the types of chemical information that could be reported and disclosed under [Section 8 of the Toxic Substances Control Act] and approaches to obtain this information on chemicals and mixtures used in hydraulic fracturing activities, including non-regulatory approaches.”

Later this year, EPA will release a two-year study on fracking’s potential impact on drinking water. By January 2015, air emissions from oil tanks, compressors, and other equipment used in fracking operations will be regulated under the Clean Air Act.

In the meantime, the U.S. Securities and Exchange Commission (SEC) has requested that energy companies disclose the chemicals used in fracking operations as well as efforts taken to reduce the environmental impact of fracking.

A Historical Research Perspective
The emerging trends toward disclosure, oversight, and litigation following this recent surge in unconventional natural gas production is similar to that of other major industrial developments. One lesson to be learned from these industries is that disclosure can result in increased public trust in fracking operations and in natural gas production overall. Additionally, proactive risk management of existing or potential environmental issues by the natural gas industry in tandem with state and federal regulatory agencies can prevent costly future cleanups and restoration projects.

So far, contamination claims related to fracking have been hard to assess due to remaining knowledge gaps. The jury is still out on the true environmental impact of fracking, but historical research can help answer fundamental questions such as what chemicals were in a watershed prior to the commencement of fracking operations or does a region have natural methane gas pollution?

This blog was originally posted to Taylor & Hammel LLC Blog on August 12. Click here to view the original entry. 

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Categories: Environmental Law

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Earlier this week, the ABA adopted a resolution encouraging all private and public sector organizations, including law firms, to adopt appropriate cyber security programs. An accompanying report cites the growing sophistication and frequency of cyber crimes. It notes, in particular, the importance of law firms to be proactive in protecting sensitive client information. According to the report, as many as 80 law firms were hacked in 2011 alone. The ABA’s report cites the ethical obligations of attorneys both to understand the risks of modern technology and to adequately protect client information. 

DRI is getting out in front of cyber risk issues. It is launching its first ever Data Breach and Privacy Law Seminar, September 11–12, at the Conrad Chicago. The seminar will address cyber risks, theories of liability for data breaches, preparing in-house response plans, insurance coverage for cyber crime, and other issues relating to data security. The seminar brochure provides registration details. Anyone involved in law firm or corporate risk management and any lawyer advising or representing clients on these issues should attend.

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Categories: Privacy | Seminar

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“Julian Miller began the evening of October 24, 2003 at his mother’s wedding reception, and ended it in the back of a police cruiser with a broken jaw,” wrote Judge Rovner Tuesday for the Seventh Circuit, reversing in part the summary judgment decision below that had favored two officers. The decision in Miller v. Gonzalez, No. 11-2906, 2014 WL 3824318 (7th Cir. Aug. 5, 2014), can be found at the Seventh Circuit’s web site here

In Miller, while two officers were investigating a call about a stabbing, the plaintiff ran from them and was chased into a fenced-in yard. One officer jumped into the yard first, ordering the plaintiff to the ground with his gun drawn, and then the other officer jumped the fence and landed on the plaintiff’s head, breaking his jaw. The Seventh Circuit affirmed summary judgment for the first officer—who had been sued for not intervening to prevent the other officer from hurting the plaintiff—because he did not have a realistic opportunity to intervene.

But it reversed summary judgment for the second officer, finding a rational jury could determine that he deliberately inflicted the blow that broke the plaintiff’s jaw and that it would not be objectively reasonable to break the plaintiff’s jaw once he was subdued. It noted that the plaintiff claimed that he was motionless for at least ten seconds on his stomach, at gunpoint, with his arms outstretched, in an area illuminated by lighting visible to the second officer, before the second officer jumped the fence and landed on his jaw. The Seventh Circuit also noted that the second officer’s affidavit testimony about jumping the fence used different wording than his police report. And it noted that when the plaintiff told the officer, “You ain’t have to break my jaw,” the officer told him, “I told you not to run.” Deciding what inference to draw, wrote the Seventh Circuit, is the task of a fact finder.

In a brief dissent, Judge Cudahy stated that he would affirm summary judgment for both officers because the evidence presented by the plaintiff did not create a plausible story.

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A Massachusetts jury recently awarded a $14 million wrongful death verdict against a nursing home. Dollar amount aside, this verdict is staggering because it includes a $12.5 million punitive damages award, meaning the jury was trying to punish the facility for its alleged poor care. The facility admitted it failed to administer proper care to the decedent resident, but it rejected claims that the neglect led to the resident’s death.

Was there a way for the facility to avoid this trial, or at least avoid being slammed with a judgement that included punitive damages? Were documents available that may have substantiated the facility’s assertion that its negligence did not lead to the resident’s death? Perhaps early case resolution techniques could have been used to resolve this matter at the outset? This year’s DRI Nursing Home/ALF Litigation Seminar offers sessions that address these questions and more. Timothy Cesar, Brookdale Senior Living, Inc., and attorney Bradley Kelly will lead “Putting the ‘Ending’ in Defending Litigation and discuss how both sides to a dispute can best utilize early case resolution to their advantage. Similarly, during “Ancillary Evidence May Be the Key to a Successful Defense,” Tracey Maw, RN, MSN, will discuss how information collected by a facility beyond a resident’s formal chart may be harnessed to benefit a facility in litigation.

The 2014 Nursing Home/ALF Litigation Seminar will be held September 18–19, 2014, at the Swissôtel Chicago. Register today.

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