Contra Costa Lawyer July 2016, Healthcare and Insurance

Contra Costa

Lawyer Volume 29, Number 4 | July 2016

Healthcare/Insurance

Employment Practices Liability Coverage – What Every Employer Should Know page 8

Health Insurance Holes & Gaps – A Flagrant Foul page 10

The Disability and Long Term Care Insurance Disconnect page 12

proudly presents:

Bar FunD BeneFIT In SuPPorT oF

Sponsorship Opportunities Diamond | $10,000

Human Trafficking Prevention & Education Program Serving Contra Costa and Marin Counties since 1977 •

cvsolutions.org

• Recognition on Community Violence Solutions website and on promotional materials for anti-human trafficking program • Recognition in program for Community Violence Solutions annual Heroes Lunch • 10 passes to the reception, plus first drink • Recognition on print invitation (if confirmed by Friday, July 22nd) • Recognition in press releases and event publicity • Top sponsorship in all event materials • Recognition at event

Platinum | $5,000 • 10 passes to the reception, plus first drink • Recognition on print invitation (if confirmed by Friday, July 22nd) • Recognition in press releases & event publicity • Prominent placement in all event materials • Recognition at event

Gold | $2,500 • 5 passes to the reception, plus first drink • Recognition on print invitation (if confirmed by Friday, July 22nd) • Recognition in event publicity • Prominent placement in all event materials • Recognition at event

Silver | $1,000

Save the Date!

Thursday, October 6, 2016 Lafayette Park Hotel, 5:30 - 8 pm To inquire about sponsorship opportunities, please contact Theresa Hurley at thurley@cccba.org or (925) 370-2548.

• 2 passes to the reception, plus first drink • Recognition on print invitation (if confirmed by Friday, July 22nd) • Recognition in event publicity • Placement in all event materials • Recognition at event

Single Ticket Price: $85 / $60 Law Students Individual Sponsors: Those who purchase two or more tickets at $125 each will be listed in the program.

CCCBA Bar Fund: Proudly Supporting Underserved Communities for 28 Years

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Contra Costa 2016 BOARD of DIRECTORS Elva Harding President Philip Andersen President-Elect James Wu Secretary Michelle Ferber Treasurer Nicholas Casper Ex Officio Ericka Ackeret Dean Barbieri Mary Carey Steven Derby Oliver Greenwood Renée Welze Livingston

David Marchiano Wendy McGuire Coats Dorian Peters Laura Ramsey Summer Selleck Katherine Wenger

CCCBA EXECUTIVE DIRECTOR Theresa Hurley | 925.370.2548 | thurley@cccba.org CCCBA main office 925.686.6900 | www.cccba.org

Barbara Arsedo Emily Day

LRIS Coordinator Systems Administrator and Fee Arbitration Coordinator

Carole Lucido

Communications Anne K. Wolf Coordinator Education and Programs Coordinator

Lawyer Volume 29, Number 4 | July 2016

The official publication of the

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

features EMPLOYMENT pRACTICES lIABILITY cOVERAGE: WHAT EVERY CALIFORNIA eMPLOYER SHOULD KNOW

by Mukesh Advani

HEALTH INSURANCE HOLES AND GAPS — A FLAGRANT FOUL

10

THE DISABILITY AND LONG TERM CARE INSURANCE DISCONNECT

12

by Colleen Callahan

Jennifer Comages

by Steve Brandel

Contra Costa Lawyer

A BRIEF INTRODUCTION TO THE COMPLEXITY OF INSURANCE FRAUD

Membership Coordinator

CO-EDITORS EDITORIAL BOARD Nicole Mills Suzanne Boucher 925.351.3171 925.933.1500

David Pearson Marcus Brown

925.287.0051 925.482.8950 Kelly BOARD LIAISON Patricia 925.818.3305 James Wu 925.658.0300 Inga Miller 925.402.2192 COURT LIAISON Novak Stephen Nash Perry 925.746.0245 925.957.5600 Samantha Sepehr DESIGN/ADVERTISING 925.287.3540 Carole Lucido Candice Stoddard 925.370.2542 925.942.5100

PRINTING Steven’s Printing 925.681.1774

The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year - six 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.

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by Jeremy Seymour, Esq.

EARTHQUAKE INSURANCE: WHO NEEDS IT AND HOW DOES IT WORK?

17

by Tony Guerrero

HOT TOPICS IN MEDICARE

23

by Ruth Atkin

departments

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INSIDE | by Denae Budde

6

President’s Message | by Elva Harding

20

Center | Food from the Bar; Women’s Section Wine Tasting and Silent Auction

22

PRO BONO: HICAP | by Ruth Atkin

26 ethics series 2016 27

ETHICS CORNER: MCLE SELF-STUDY CYBER ATTACKS & ETHICAL OBLIGATIONS TO CLIENTS | by Carol M. Langford

34 CALENDAR 38 CLASSIFIEDS

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inside

Are You Covered?

by Denae Budde

I

t is not uncommon for people, even attorneys, not to read their insurance policies and know what coverage they have until after they need it. The provisions of an insurance policy, like the provisions of any other contract, must be construed in the context of the policy as a whole. It is the insured’s burden to establish a particular loss is covered. Buss v. Superior Court (1997) 16 Cal.4th 35, 45. It is then up to the insurer to establish that an exclusion applies. Because the insured bears the burden of establishing coverage under an insurance policy, it makes sense that the insured must also prove that the exception affords coverage after an exclusion is triggered. St. Paul Fire and Marine Ins. v. Warwick Dyeing, 26 F.3d 1195, 1200 (1994).

In order to know what coverage an individual has in any type of insurance policy, the number one rule is to read the policy. Most policies are prospective looking,

30 years experience in Probate & Trust Administration 3445 Golden Gate Way Lafayette, CA 94549 (925) 283-6998 l.neiger@mac.com

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covering for a loss that may occur in the future, pursuant to the contractual terms contained in the policy.

However, a title insurance policy is an exception. It is retrospective and covers an insured for issues or defects in title that existed prior to the date of the policy and not listed as an exception to coverage. Title insurance is a policy of indemnity, protecting against loss under the terms of the policy. Another distinction between title policies and liability policies is that, liability policies typically renew annually or every so many years requiring additional premiums, but with title insurance, there are no continuing premiums.

One might ask why do I need title insurance if it does not protect me from future defects with my title?

Buying a home is one of the most expensive and important purchases an individual will make. Title insurance offers protection against claims resulting from various defects (as set out in the policy) which may exist in the title as of the effective issuance date of the policy.

By way of example, if an individual was sued for quiet title based on a person claiming to have a deed giving them ownership to possess the property, a title policy could assist in defending against that claim. Another example would be when an individual claims to hold an easement across your land, a title policy could defend that claim. A title insurance policy contains provisions for the payment of the legal fees in defense of a claim against your property and also contains a provision for indemnification against losses which result from a covered claim. A title insurer typically has the right under the policy to clear title, defend and defeat the claim

against the insured, or to pay the diminution in value of the defect.

There are generally two types of policies: An owner’s policy which insures the individual homeowner as long as they or their heirs own the home; and a lender’s policy which insures the priority of the lender’s security interest over the claims that others may have in the property.

When a loan is used for the purchase, the lender will generally require title insurance as part of the transaction, to protect the lender’s interests in the property, such that there are no issues with ownership or unknown easements and no one else has any lien, claim or encumbrance on the property superior to the lender’s lien. For a lender holding a title policy, if there is a lien that was recorded prior to the one the new lender holds on your property securing the repayment of a debt, the company issuing the title policy would attempt to remove that lien. Another situation may be if the borrower claims the loan and deed of trust are invalid for some reason, a title policy would protect the lender in that claim to maintain the lender’s security. If the title company cannot remove the lien, it would then pay the insured lender under the policy.

Title companies, in advance of issuing the title policy, identify and attempt to eliminate potential risks and losses caused by title defects that may have been created prior to the particular transaction.

In California, the organization that

represents member title companies throughout the state is The California Land Title Association (“CLTA”), a non-profit corporation, founded in 1907. CLTA assists with recommended policy forms for possible use by member companies in the issuance of title insurance.

In this edition of the Contra Costa Lawyer, we will examine several types of policies that cover future harm including EPLI insurance, Medicare coverage, environmental coverage, disability and long term care coverage, and earthquake insurance. We will also look at insurance fraud. s

Elder Law is

Denae Hildebrand Budde is a real estate, business and coverage attorney and the managing shareholder of Budde Law Group, A Professional Law Corporation. Denae is A.V. by Martindale-Hubbell. She is a former President of the Women’s Section of the CCCBA and a former Bar Association board member. Denae currently is a member of the real estate, business law and the women’s section of the CCCBA. Contact Denae at (925) 939-9880 or dbudde@blglegal.net

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

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

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president’s message Like Water and Oil:

Millennials and Traditional Law Firms services are looking for efficiencies.

Millennials can help build more responsive firms.

Think about some of the typical Millennial characteristics:

Elva Harding CCCBA Board President

W

hat to do with those pesky Millennials? You know the ones, that generation born between 1980 and 1995. The trophy generation (because they all received their participation trophies). Much has been said about how Millennial attorneys just don’t fit in traditional law firms. I have to agree. Firms and Millennials are like water and oil. They don’t naturally blend, but if you shake it up, you can create a fabulous vinaigrette!

For those of us with a few years under our belts, who came up in the traditional associate to partner, big firm model of law, Millennials can be a challenge. They don’t want to follow the traditional rules. But you know what, that is ok, because our clients don’t particularly like that traditional model of law either. The one where clients get to pay to train new attorneys and they get to pay the trainer too. In the world of tech and start-ups, consumers of legal

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Work/Life Balance: Millennials value work/life balance. Facetime doesn’t do it for them. They are more likely to be focused on completing a particular project so they can head home to engage in family activities, travel, or their own entrepreneurial pursuits.

Interesting Projects: These people are looking for interesting and engaging projects to work on. Projects that are meaningful to them. The meaning may come merely from the fact that they are learning a new skill, but it will be meaningful nonetheless. Parking a Millennial in a room full of discovery documents for days on end won’t cut it.

Communication: Receiving input from supervisors is key. Millennials want to know how they are doing. They also want to know why they are doing it and what the goal is. And this isn’t a one way street either. They are likely to want to provide their thoughts and opinions regarding a project. They are looking for dialogue on how to best handle a project.

These common characteristics don’t fit well into traditional law firm operations. However, for those organi-

zations that are adaptable there are real opportunities to build more efficient, modern organizations that can better provide services to demanding clients.

What would this mean to a firm?

First of all, firms need consider how to incorporate more flextime into their work environment. If the project is getting done and the work product is good, does it matter if the work was done at 4 pm or 4 am? For working parents, or for attorneys who have non-legal activities that they are passionate about, flexibility in work hours is key.

This may also mean abandoning the billable hour in favor of alternative billing structures. Clients are not just looking for savings in legal services, but also predictability. They want to be able to reliably budget for expenses. Fixed fee services or limited scope services might benefit Millennial attorneys, their firms and clients.

Next, firms and their senior attorneys and partners should be prepared to spend more time talking about (not lecturing) cases and projects. Millennials want to know where they are going with a project. It may also be valuable to explain how the young attorney’s assignment fits into the case and is a valuable component.

One solution may be to assign a Millennial attorney to a senior attorney who will be responsible for educating and updating the Millennial on the case. This may take more time than giving the young attorney a form and tell them to revise it, but the product is likely to be better.

You know, when I was a kid, people complained about kids. Some things never change. But without a doubt, the legal industry is changing. It was never really stagnant. The issue is how to successfully integrate change into your firm. I suggest you have a chat with a Millennial, they will have plenty of ideas to share. s

Some firms are developing training programs that provide finance and accounting training to enhance first years’ business skills. Others are creating programs that allow young attorneys to work across practice lines so that they can gain exposure to multiple fields while making the best use of their legal skills. Providing these opportunities allows Millennials to do interesting work while still making valuable contributions.

And it would be wrong to think that Millennials don’t have something to offer firms besides their time. This is the generation that was raised on the web and with technology literally in their hands. This provides a prime opportunity for old school firms to get input from this tech savvy group about apps to promote efficiency, marketing on the internet, or just connect with potential entrepreneurial clients.

Elva D. Harding is a real estate and business attorney and founder of Harding Legal, dedicated to providing efficient and effective legal service to individuals and small, midsized and family-owned businesses.

Elva currently serves as CCCBA’s Board President. Contact Elva Harding at (925) 215-4577, eharding@edhlegal.com or visit www.edhlegal. com.

Mergers &

Acquistions 1615 Bonanza Street #212 Walnut Creek, CA 94596 (925) 280-7788 hubert@lenczowskilaw.com www.lenczowskilaw.com

Hubert Lenczowski Attorney At LAw A ProfessionAL corPorAtion

PLAnning exits And growtH Acquisition for business owners

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Employment Practices Liability Coverge: What Every California Employer Should Know

by Mukesh Advani It is common knowledge that the number of claims against California employers by their former or current employees have escalated in recent years. No employer, no matter how small or how large in size is immune from such claims and lawsuits. Small and medium size businesses are often the most exposed to liability because they typically don’t have proper human resources or legal departments to deal with employment-related issues on an ongoing basis to avoid or minimize such claims.

While employment claims alleging discrimination based on sex, age, race, sexual orientation, disability, wrongful termination, harassment, retaliation and other employment related torts are on the rise, there is an even greater increase in “wage and hour” claims, including class action lawsuits, against larger employers. They are also being more aggressively litigated by Plaintiffs’ attorneys in part because of the availability of attorneys’ fees in such cases which may not be proportionate to the amount of actual recovery.

Despite the high prevalence of employment related claims, most California employers do not have widely available insurance coverage for such claims. The insurance coverage is Employment Practices Liability Insurance, known in the industry as EPL Insurance or EPLI. EPLI is typically offered as an endorsement to a business owner’s policy or a general liability policy or it could also be a specific stand-alone policy.

Many of the same businesses who are high risk for employment related claims either do not know about this insurance or simply assume (wrongly) that their existing liability policy will cover them for such claims. Even those who are familiar with the EPLI are simply unwilling to pay the premiums or consider it to be an unnecessary expense. Indeed, many of the more sophisticated employers believe that they are unlikely to ever be sued by an employee. Unfortunately, the reality is quite different. Employment claims are very frequent and

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chances are that every employer will face them as part of doing business at one or more times during the existence of its business. Defending even a non-meritorious claim can cost tens of thousands of dollars and significantly impact a business’s ability to survive.

EPLI is a type of liability policy that essentially pays for defense and indemnity of many, but not all, employment related claims. Here are some of the salient features of EPL insurance coverage. 1

Covered Claims

Such policies pay for covered claims from the time of interviewing a prospective employee to termination.

Some examples of types of claims covered under such policies include: wrongful termination, discrimination, harassment, retaliation, employment-related defamation, invasion of privacy, and other employment related adverse action just to name a few.

Persons Protected

Typically, such policies protect individuals and their spouses in cases of sole proprietorships. In partnerships or joint ventures, they protect all partners or members; and for a limited liability company, they protect all its members and managers, all executive officers and directors (whether or not employees) of other entities, all employees and former employees but only with respect to wrongful acts committed while employed by the employer.

Coverage for “Wage and Hour” Claims

Such policies historically did not offer any coverage for “wage and hour” claims. However, in recent years, some insurers have started offering a coverage endorsement that may be attached to the EPLI but it has reduced sublimits and typically only covers the costs of defending such claims but not indemnity, i.e., they don’t pay for judgments or settlements against the employer. For example, a $1,000,000 EPLI policy may only have a $100,000 sublimit for defending “wage and hour claims.”

Other Main Characteristics of EPLI Policies

Exclusions and Limitations

Policy Limits Are Reduced By Defense Costs: A standard EPLI policy provides coverage on a “self-consuming” or “burning limits” basis - the insurance available to settle or pay “all damages” (i.e., settle claims or pay judgments) is reduced by all “defense expenses.”

Needless to say, each employer should keep that in mind when selecting the policy limits which would cover not just any settlements or judgment but also defense costs.

No Coverage for Equitable Relief: Just like other liability policies, EPLI does not cover equitable relief such as job reinstatement or an injunction against future wrongful employment practices.

Claims-Made Policies: Such policies are written on a claims-made basis. This simply means that covered claims must be reported to the insurance company while the policy is in effect, or within an extended period set forth in the policy. In addition, the event leading to the claim must have occurred either on or after the effective date of coverage. It is similar to, for example, lawyers’ professional liability policies, which are also written on a claims-made basis. It is important to obtain tail coverage if the policy is allowed to expire.

Employer’s Consent to Settlement Required: EPLI policies typically require employer’s consent to settlement. However, if the employer refuses consent, then their insurer’s liability for damage is limited to the amount of the proposed settlement.

Willful Acts of the Insured: Just like any other liability policy, EPLI does not cover liability for willful acts of the insured, which is expressly prohibited by Insurance Code section 533. For example, there will be no indemnification for claims for retaliation and wrongful termination in violation of public policy. Indemnity for such torts requiring a necessarily harmful mental state is not permitted under California law. Similarly, violation of employment discrimination statutes may be a “willful act” for which coverage is barred by this statute.

However, the statute is no bar where any discrimination could be considered unintentional. In addition, the insurer may still be required to provide the insured with a defense against claims expressly covered by the policy.

Other Important Exclusions

EPLI policies also exclude coverage for criminal, fraudulent or malicious acts, for damages for which the insured has assumed liability in a contract, for workers’ compensation, disability benefits or unemployment Continued on page 16

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Health Insurance Holes and Gaps

– Flagrant Foul!

by Colleen Callahan, CLU, CASL, LUTC

W

hen Steph Curry, Klay Thompson or Andre Iguodala find the gaps in the defense and make a brilliant pass for an assist that ends in an easy layup or an inspiring dunk, it a pleasure to behold. When a health insurance subscriber discovers a hole or a gap in their coverage it feels more like a flagrant foul.

As a result of the Affordable Care Act more people are insured. Unfortunately, as those people begin to use the coverage they are learning about the unexpected challenges and disappointing gaps with the coverage.

• There are gaps in the networks of physicians. Some doctors will participate in group networks, but not in individual networks. Some refuse to work in the Covered California market.

• The deductibles and out-of-pocket expenses are higher on plans that are considered more affordable. Re-

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member the new plans for small groups and individuals are called metallic level plans: Platinum, Gold, Silver and Bronze? For some, because the deductible and outof-pocket expense is so high on a Bronze level plan, it feels as if they don’t have any coverage at all.

coaching will begin with an evaluation of the needs. The right insurance plan is intended to be suitable to your needs.

• For a small group participant, the scenario is a little better. The worst case on a Platinum plan could be $2,500 or $6,500 for a Bronze plan.

Keep in mind those figures would be doubled for a family.

Employers: If you are an employer and you have selected a Bronze plan for your employees, those on your team who have maternity claims or ongoing treatment might not be very pleased with the coverage. One solution might be to offer supplemental insurance, which employees can purchase to fill the gaps. Additionally, for 2016 many insurance companies have improved their plans so it is definitely worth the time to conduct the review before the end of the year rush. In most cases, employees can receive credit for any deductibles they have met; there is a method for transferring to the new insurance company. We are performing midyear reviews for our clients now.

So what can you do? Just as Coach Kerr evaluates the strengths of his players and develops plays that highlight those skills, insurance

If you are a high earner, consider a higher benefit plan, which could have some tax benefits to you, but please consult your tax professional

• For an individual purchasing health insurance through an individual/family plan, the calendar year in-network worst case scenario, also called the out-of-pocket expense (which includes the deductible), can range from $4,000 for a Platinum plan to $6,500 for a Bronze plan. That is a tough pill to swallow.

before making a decision. If your claims are not above 10% of your adjusted gross income you likely will not get a deduction.

The Health Savings Account (HSA) deduction is still attractive.

For those with HSA-compatible health insurance plans you can deposit funds into a separate account and use those funds to pay for medical expenses. Since they are tax-advantaged and balances accumulate over time, HSAs can also be used to accumulate savings. There is no use it or lose it issue, once the money is in the account it is yours to keep or spend on allowable medical expenses.

Each year the IRS changes the maximum annual contribution for HSA plans. For 2016 the maximum is $3,350 for individuals and $6,750 for families. Catch-up contributions of $1,000 can be made by individuals 55 and over.

HSA funds are tax advantaged and can be used to pay for a variety of healthcare services, including many that are not traditionally allowed under other plans. For example, dental and vision care services, long term care insurance premiums and medical insurance premiums during periods of unemployment can all be paid for with HSA funds.

Be careful, though, if you have an HSA and will be turning 65 this year. Individuals age 65 and older are eligible to open and contribute to an HSA as long as they have not

elected Medicare Parts A, B, C or D. It is tricky. Remember when turning 65 a person is eligible for Part A the first of the month they turn 65.

Part B normally requires that you enroll.

through your employer, you will want to consider an individual plan to protect your family. In many cases you can buy more coverage for less money and the premium could be guaranteed for 10, 15 or 20 years.

Retiring at age 65 or older – Please be certain you apply for Part B of Medicare right away. COBRA is not your best option. Make an appointment with a licensed agent to discuss your Medicare options before you retire. It will help to make the transition smoother. You must have Parts A and B of Medicare to obtain a Medicare Supplement.

The supplement is necessary to fill different gaps. Medicare Part A for hospital services has a deductible and Part B for physician services also has a deductible. Additionally, Medicare pays 80% of what they deem allowable. If you do not purchase a gap plan you would be responsible for the balance of the 20%.

Vacation Plans – Make sure to check with your insurance company to see what coverage you will have in another state or in a foreign country. Medicare has a very limited foreign travel benefit. Travel plans are easy to obtain and the mobile apps are very helpful.

Between jobs – Make sure to research options to avoid a gap in coverage and a potential tax penalty.

All individuals are required to have health insurance. If you have lost coverage with your employer and the COBRA premium is sky-high, be certain to look into an individual plan right away. Once you accept COBRA you are stuck until the next open enrollment period or until you obtain coverage with a new employer. Another often overlooked gap is in the area of life insurance. If the only life insurance you had was

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

These days it is important to play strong defense to close the gaps in health insurance. s

Colleen Callahan, CLU, CASL, LUTCF, is a third generation insurance industry professional, with over 25-years of experience , she obtained her license in 1989, she holds three insurance industry designations; LUTCF, 1992 and CLU, 2001, CASL 2009. She is a Past President of the Golden Gate Chapter of the Society of Financial Services Professionals, the current legislative and media chair of the Golden Gate Health Underwriters. In 2015 Colleen chaired the first ever Northern California Medicare Summit that was located on Treasure Island.

She works closely with small to medium sized businesses to design custom employee benefit packages, as well as with business owners and executives to personalize their benefits. In addition, she assists individuals in choosing and securing life, Medicare supplements, health, disability and long term care insurance. Her office is in Pleasant Hill.

Learn more about Medicare in an educational presentation on Tuesday, July 26 by Colleen Callahan, titled, “The A, B, C’s and D of Turning 65.” For more information see page 35.

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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

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The Disability and Long Term Care Insurance Disconnect of someone making approx. $21,600 per year, which is barely above the federal poverty level for a family of three.

by Steve Brandel When it comes to understanding the need for life insurance, most people are pretty clear. They understand that if they die, their family will need some kind of protection. If they die while owning a life insurance policy, the insurance company will pay their beneficiary a lump sum of money. There is no expectation that the government will provide any benefit for them. If they want to have it, they better make arrangements to obtain it on their own.

The same cannot be said for Disability and Long Term Care insurance. The two respective industries have been trying to promote the facts through public awareness programs; however there is still a vast array of misconception when it comes to these two particular types of coverage. Let’s examine the facts vs. what many people believe to be true.

Disability Income Protection

When the topic of disability insurance is discussed, the number one reason people contend they don’t need it, is the belief that Social Security disability will provide for them if they cannot work due to a disabling illness or injury. The truth of the matter is that according to the Social Security Administration, the average Social Security disability payment is under $1200 per month. This would be the equivalent to a disability income benefit

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Private disability insurance, often called DI or disability income insurance is a form of insurance that insures one’s ability to earn income. It is designed to protect against financial ruin resulting from a disability that prevents a worker from being able to complete the core functions of their job. This includes both physical and mental disorders. It is not designed to make a person 100% whole, or for them to be in a financially better position than they were before the disability occurred. The idea is to provide a means of support, while allowing rehabilitation and incentive to return to work.

Therefore there are limits as to the amount of benefits that a person can qualify to collect.

Disability insurance can pay both short-term, (“STD”) as well as long-term (“LTD”) benefits. Statistics provided by the National Treasury Employees Union, show that: 1. In the U.S. a disabling accident occurs on average once every second.

2. Approx. 18.5% of Americans are currently living with a disability.

3. One out of every four persons in the U.S. workforce will suffer a disabling injury before retirement.

According to a 2015 article in the Insurance Journal, currently 56% of all American workers have no long term disability coverage. In 1994, seven leading insurance organizations founded Life Happens. Life Happens is a nonprofit organization dedicated to helping Americans take personal financial responsibility through the ownership of disability and long-term care insurance. Both industries have adopted respective months, dedicated to their awareness. May is for disability and November for LTC.

Long Term Care Insurance

What exactly is Long Term Care Insurance (“LTC”)?

When someone talks about LTC, there is much confusion between the difference between LT, and Medicare.

Many people believe that once they qualify for Medicare, any and all long term care expenses will be covered.

The truth is, Medicare only covers LTC for short periods of time, such as rehabilitation after an injury or illness.

Once an individual is deemed recovered, Medicare does not pay any more. This doesn’t necessarily mean that an individual is back to 100% of the way he or she was before they were hospitalized. It just means that the doctors believe that an individual has medically recovered.

Now, it’s a matter of rehabilitation, and there are strict limits as to what Medicare will cover.

Medicare does not cover assistance with activities of daily living (ADLs) that many older adults need to maintain their independence. There is something called Medicaid (Medi-Cal in California) but it will cover nursing home and convalescent care only if the individual’s income is below a certain level, and after an individual has used his/her savings.

The biggest stumbling block to LTC insurance is the negative association with aging, and with nursing homes. People do not like to talk about, nor think about getting older, and having to live in a nursing home.

What people don’t realize is that many current LTC policies have a home care benefit, which is designed to help keep them out of a nursing home. Policies can pay a home care benefit of up to 100% of the nursing home benefit. That means if someone purchased enough benefit, the money can be available to bring a licensed professional into their home to care for an individual 24 hours a day, seven days a week, if needed.

So while having the coverage will not decrease the need for care, statistics say it will shorten the length of time in a nursing home, while lengthening the life of an elderly person, and providing them the option of being able to live out their final days in the comfort of their own home.

The other misconception is that LTC insurance is only for older people. Many consumers would rather wait until they are older to purchase it. However, while it is true that the majority of people on claim for LTC are over the age of 80 (63.7%) 25.4% are between the ages of 70-79, and 10.6% are between the ages of 50 and 69, according to the American Association for LTC insurance. American Association for LTC goes on to state that in 2014, 71% of the claims that were opened, contained some kind of in-home care benefit.

The other problems associated with waiting until someone is older to purchase LTC are cost and health factors. Not only can the cost skyrocket after the age of 70, but if someone develops a serious health condition, it could prevent them from qualifying for LTC insurance no matter how much they are willing to pay.

Just like with any good financial or business planning, there is not always an obvious right or wrong answer. Every company and individual must determine what is best for them. It is always a good idea to discuss these types of coverages with a trusted insurance advisor, and make certain that all of the options have been reviewed. It is good to have a plan, because things don’t always go as planned. s Steve Brandel is the Executive Director of the Heffernan Life Insurance Division, a division of Heffernan Insurance Brokers located in Walnut Creek. He has over 25 years of executive planning and insurance experience in the areas of Life, Disability, and Long Term Care products. Steve Brandel graduated from San Jose State University in 1985, with a degree in Marketing and Speech Communications. He currently resides in Danville with his wife and three children.

This has had a huge impact on the quality and length of life people have had while receiving care. Elder Web, an award-winning online elder care source book, maintains that back in 1999, overall average length of stay for an elderly person living out the rest of their life in a nursing home, was 901 days, which is 30 months or about 2.5 years. However, when people had the capability to be disL A W O F F I C E S O F charged to their homes, the statistic DAVIDÊA. ARIETTA drops to 388 days, or just over one Certified Specialist, Bankruptcy Law year. In 2014, the American AssoCalifornia of C LegalE Specialization L State A Bar W of Specialist O F Board F I Bankruptcy S OLaw F Certified ciation for LTC insurance stated that Comprehensive Bankruptcy Assistance State Bar of California Board of Legal Specialization David A. Arietta the average length of a LTC claim for Individuals and Businesses 20 years of experience paid by and insurance company is Rated AV Preeminent Martindale-Hubbell Certified Specialist, Bankruptcy Law Assistance 700 Ygnacio Valley Comprehensive Road 3.9 years. This tells us that people (925)Bankruptcy 472-8000 State Bar of California Board of Legal Specialization Suite150 for Individuals and Businesses with the capacity to receive their David @ AriettaLaw.com Walnut Creek, CA 94596 David A. Arietta Comprehensive Bankruptcy Assistance David A. Arietta care in home, are staying in nursing 20 years of experience for Individuals and Businesses 20 years of experience homes 1.5 years less, and living at 700 Ygnacio Valley Rd., Ste. 150 Rated AV Preeminent Martindale-Hubbell L Rated A WAV Preeminent O F F Martindale-Hubbell I C E S O F Walnut Creek, CA 94596 home 2.4 years longer.

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13

A Brief Introduction to the Complexity of

Insurance Fraud Insurance fraud. It is an ugly business, but an increasingly profitable one. In fact, the California Department of Insurance estimates that insurance fraud costs Californians over $15 billion each year.1 Insurance fraud includes a range of activities designed to generate illicit proceeds, from false claims activity to premium fraud and insider fraud.

False claims activity includes illegitimate claims for payment, padding legitimate claims for additional proceeds, and presenting misleading information or omit-

ting material information from the insurer.2 Premium fraud involves lying about the information the insurer uses to determine rates, such as the experience and risks associated with employee work.3 Insider fraud occurs when an insurance professional abuses the system.

Cases can be as simple as a single incident claim. An example of a common auto fraud case is a motorist who is uninsured or let an insurance policy lapse, suffers an accident, takes out an insurance policy, and then provides the insurance

by Jeremy Seymour, Esq. company false information about the date of the accident in order to obtain coverage. Another common example is a worker who suffered an injury off the job and then claims that the injury occurred on the job to obtain worker’s compensation coverage.

Fraud isn‘t limited to individuals, though. It can also involve complex organized rings where multiple members generate significant proceeds over years at a time. One

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JULY 2016

common form is the staged accident ring. A former financial crimes manager for a United Kingdom insurer discussed organized auto fraud as “the most organized and costly” of insurance fraud schemes.4 The Federal Bureau of Investigation’s description of the most likely perpetrators provides insight into the way these schemes can be structured, referring to, “dishonest policyholders, insurance industry insiders (i.e., agents, brokers, company execs), and loosely organized networks of crooked medical professionals and attorneys who use their knowledge to bypass anti-fraud measures put in place by insurance companies.”5 A typical example involves purchasing, registering, and insuring a car, then crashing the car and submitting damage or medical claims, along with false statements about how the damage or injuries occurred. After collecting the insurance proceeds, the claim may be repeated by obtaining a policy with a different insurance company and submitting new claims regarding the damage.

California ranked among the four states with the highest per capita rates of organized fraud activity in the United States.6 A review of major headlines from Los Angeles alone reveals the arrest of 44 people in 1999,7 20 people in 2006, 8 and 42 people in 2008 for organized ring activity.9 Such organized insurance fraud can involve funding for transnational crime and other nefarious organizations.

The current director of the Financial Crimes Enforcement Network (FinCEN) cited sophisticated fraud among other activities that fund transnational organized crime in her testimony before Congress in 2012 and stated, “one thing has become increasingly and unmistakably clear: Money is what motivates, and it is what empowers these groups.”10 Industry experts identified an alleged Armenian organized auto ring in Florida, an al-

leged Russian organized auto ring in New York, as well as an alleged Mafia organized auto ring in Italy.11 Terror financing is also an emerging concern. The recent Northern California Fraud Investigators Association Conference featured a presentation on terrorist groups using organized insurance fraud for funding. The intergovernmental Financial Action Task Force recognized insurance fraud in its 2015 report, “Emerging Terrorist Financing Risks,” and cited an alleged organized auto fraud ring out of Spain funding West African terror organizations and the Islamic State.12 Though combating insurance fraud is a challenging endeavor, there are tools currently in place.

California funds specialized units to ensure the resources necessary to identify, investigate, and prosecute these complex schemes.13 Additionally, mandatory reporting ensures that groups of suspicious claims can be tracked and investigated.

Insurers are required to report suspected fraud to the California Department of Insurance if they reasonably believe that fraud is occurring.14 The reporting requirement applies even if the insurance company decides that it will be cheaper to settle and pay the fraudulent claim rather than incur the cost of investigating and litigating a denial. These claims may be investigated individually and also used in claims databases to identify patterns of claims. Such databases help to expose organized schemes that mask activity through numerous small claims to multiple insurers in order to evade detection.

This article discusses only a select few of the many schemes of insurance fraud that occur. Given the large losses to the public and the potential use of those illegitimate proceeds to fund other criminal activities, law enforcement must keep up to date with insurance fraud offenses.s

Jeremy L. Seymour is a prosecutor in the Contra Costa County District Attorney’s Office. He is presently assigned to the Special Operations Unit where he handles crimes that include auto fraud, organized auto fraud, and worker’s compensation insurance fraud.

Advisory Task Force on Insurance Fraud, “Reducing Insurance Fraud in California” California Department of Insurance (May 2008) available at, http://www.insurance. ca.gov/0300-fraud/upload/FraudReport. pdf.

2.

Cal. Pen. Code §§ 550 (a) & (b).

3.

Cal. Ins. Code § 11760.

4.

Steve Barkhuizen, “Transnational crime gangs make fraud a global epidemic” Coalition Against Insurance Fraud (June 2014), available at http://www.insurancefraud.org/article.htm?RecID=3350#.

V1Bj9_Z0xFo. 5.

Federal Bureau of Investigation, “Investigating Insurance Fraud: A $30-Billiona-Year Racket” (Jan. 2012) available at, https://www.fbi.gov/news/stories/2012/ january/insurance_013112.

6.

The other States were Michigan, Florida, and Nevada. Andrea McClain, “Organized Group Activity in Insurance Fraud: 2008June 2012” National Insurance Crime Bureau Analytics Data Forecast Report (Dec. 2012) available at, https://www.nicb. org/newsroom/news-releases/organizedcrime-and-insurance-fraud.

7.

Julie Ha, “44 Arrested in Statewide Auto Insurance Scam” LA Times (Aug. 1999) http://articles.latimes.com/1999/aug/11/ local/me-64702 8.

Claims Journal “Twenty Arrested in Los Angeles for Alleged Insurance Fraud” (June 2006) http://www.claimsjournal. com/news/west/2006/06/23/69769.htm 9.

Los Angeles Police Department News Release “Major Fraud Ring Exposed” (Mar. 2008) http://www.lapdonline.org/south_ bureau_news/news_view/37761 10.

Testimony before the U.S. House of Representatives Subcommittee on Crime, Terrorism, and Homeland Security, Committee on the Judiciary, Jennifer Shasky, Chief, Asset Forfeiture and Money Laundering Section, U.S. Department of Justice, February 8, 2012, available at, http://www. gpo.gov/fdsys/pkg/CHRG-112hhrg72786/ html/CHRG-112hhrg72786.htm.

11.

Barkhuizen (June 2014) 12.

FATF Report, “Emerging Terrorist Financing Risks,” Financial Action Task Force (Oct. 2015) available at, http://www. fatf-gafi.org/media/fatf/documents/reports/Emerging-Terrorist-Financing-Risks. pdf.

13.

Cal. Ins. Code § 1874.8 14.

Cal. Ins. Code § 1872.4(a) 1.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

15

Employment Practices and Liability Coverage continued from page 9 insurance, and similar laws, There is also no coverage for the insured’s violation of certain federal or state laws applicable to employers such as the Fair Labor Standards Act, Employee Retirement Income Security Act, the Occupational Safety and Health Act, etc. However, EPLI policies typically provide coverage for more common claims asserted in employment related lawsuits such as claims under Title VII of Civil Rights Act of 1964, Age Discrimination in Employment Act, Americans with Disabilities Act, Equal Pay Act, Pregnancy Discrimination Act of 1978, and Family and Medical Leave Act of 1993. There is also coverage for state and local statutes regulating the same acts and omissions. For example, claims asserting violation of the Fair Employment and Housing Act are covered.

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EPLI Insurance Cost The cost of EPLI coverage depends on a variety of factors, including number of employees, history of prior claims, employee turnover and employer’s ongoing rules and practices. While EPLI coverage is not cheap, it is not prohibitively expensive either.

Conclusion

Despite the limitations and exclusions set forth above, many of which are no different than any other liability policy, it is highly recommended that every employer consider having EPL Insurance coverage. No one size fits all and each employer must review its potential loss exposures with an experienced and knowledgeable insurance agent and purchase an adequate amount of coverage. Just having one such claim during the existence

of the business may pay for the insurance premiums for the life of the business. s

Mukesh Advani is Of Counsel to Dental & Medical Counsel and practices in the areas of employment law, including wage and hour and wrongful termination litigation matters, insurance coverage matters for policyholders, general civil litigation and appellate law. He may be reached at ma@dmcounsel.com.

Given the space limitation, it is beyond the scope of the article to discuss all aspects of what’s covered and what is excluded under EPLI. Further, different policies may contain different insuring clauses and additional or different exclusions and limitations. This article only provides a broad general overview of EPLI. 1.

udly present m i t t ee p r o m o C r s i ty

Meet ABA President,

Paulette Brown Monday August 1 5:30­­–8 pm

CCCBA members are invited to a special event to meet and hear from ABA President Paulette Brown. President Brown’s topic will be ‘The Status of Women and People of Color Practicing Law Around the World.’

Judge Judy Johnson will be speaking about what is being done locally to increase the diversity pipeline in the legal profession.

There will be a reception preceding the presentation portion of the event.

Heavy hors d’oeuvres and beverages will be served. See page 36 for details.

Speakers: Hon. Judy Johnson

Paulette Brown JFK University, College of Law 100 Ellinwood Way, Pleasant Hill Law Students: $10 CCCBA members: $35 Non-Members: $45

The Contra Costa County Bar Association certifies that this activity has been approved for 0.5 hours of Elimination of Bias MCLE credit by the State Bar of California, Provider #393.

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Earthquake Insurance:

Who needs it and how does it work?

by Tony Guerrero quakes in an average year. Each year California generally gets two or three earthquakes large enough to cause moderate damage to structures (magnitude 5.5 and higher, see www.conservation. ca.gov/index/earthquakes).

We live in California, and California is earthquake country.

We know that earthq u a k e s happen all the time. Some are small, but some are not. When an earthquake causes damage to our homes or personal property, what can we do?

If you own a home, townhouse, or condominium you most likely have homeowner’s insurance. This policy will protect against perils such as wind, fire, hail, along with many other things, but what it doesn’t protect against is the damage due to an earthquake. Your homeowner’s insurance carrier should offer you earthquake insurance every two years and give you 30 days to respond, accept or deny.

First, let’s back up. What causes an earthquake? An earthquake is caused when two sides of a fault slip suddenly against each other. Faults are a fracture in the earth’s crust along which one side has moved relative to the other side. Faults can be small or hundreds of miles long.

Earthquake insurance covers some of the losses and damage that earthquakes can cause to your home, belongings, and other buildings on your property. The California Earthquake Authority (CEA) is one of many carriers that offer earthquake insurance. Their basic coverage is made up of three parts:

The National Earthquake Information Center (U.S.) reports 12,00014,000 earthquakes a year around the world, or 35 a day. Throughout the world, there are one “great” (magnitude 8.0 or more), 18 “major” (7.0-7.9), 120 ”large” (6.0-6.9) and 1,000 “moderate” (5.0-5.9) earth-

Part 1: Your dwelling coverage. This covers your home up to a certain

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amount, called the limit. The limit on your earthquake insurance is the same as the limit on your homeowners insurance (dwelling coverage).

The deductible is usually 15% of the damage that occurred but you can buy a 10% deductible for a higher premium. The deductible does not need to be paid up front like most policies. For earthquake, the deductible can come out of the monies to indemnify the insured’s loss. If you rent, or own a condo, you do not need this coverage. You do not need this coverage because you are not responsible for the exterior walls or structure of the building. If you rent, you do not own the building at all. If you own a condo, the homeowners association affiliated with your condo will have to purchase earthquake insurance for all of its buildings.

Part 2: Your personal property coverage. This covers your property in your home, like furniture, televisions, computers, etc. This limit is usually low like 10% of your dwelling coverage. You are able to increase this limit up to $100,000.

Part 3: Additional living expense or loss of use. This only covers temporary and extra costs to live somewhere else while your area is evacuated or your home is being repaired. It can cover temporary rental of a home, apartment, or hotel room; restaurant meals; moving or storage; and laundry. This limit can be from $1,500-$25,000. You do not need this coverage if you do not live in the insured dwelling, such as a dwelling rented to others.

You may be able to purchase additional coverages such as building code upgrade coverage, debris recontinued on page 19

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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BUILD A STRONGER DEFENSE AGAINST PROFESSIONAL LIABILITY RISK. RELY ON MITCHELL & MITCHELL AND CNA. With experience serving three generations of California businesses, and insurance from a carrier rated “A” by A.M. Best, when it comes to helping professionals in the Golden State … we can show you more.®

At Mitchell & Mitchell, we’re with you every step of the way. Call 888-512-8878 to speak with an agent, or visit www.cna.com to learn more.

CNA is a service mark registered by CNA Financial Corporation with the United States Patent and Trademark Office. Certain CNA Financial Corporation subsidiaries use the “CNA” service mark in connection with insurance underwriting and claims activities. Copyright © 2016 CNA. All rights reserved.

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You handle the estate, we do the contest.

Cases, except conservatorships, often handled on a contingent fee basis, but can be hourly. Referral fee where appropriate.

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p 925.283-6816 • f 925.283-3683 3445 Golden Gate Way Lafayette, CA 94549 AV Martindale-Hubbell

Earthquake Insurance continued from page 17 moval, land-restoration and emergency repairs.

Do I need earthquake insurance if I am a renter? The answer is simple. Yes! Consider this: the area you are renting in could be evacuated or the residence you are renting could be unlivable and you will need to find a new place to live, like another apartment, home, or even a hotel. If you go to a hotel, you may not have a kitchen or a stove to cook on and you will have to eat out every day (which can cost a lot of money). Additionally, consider your belongings. The earthquake could have caused the building to collapse and all your electronics and furniture may be ruined. Earthquake insurance will pay for all of it up to your limits.

So who needs earthquake insurance?

The coverage may vary depending on your own situation but, the answer is, everyone – especially those who live close to the big fault lines. Whether you’re a renter or a condo owner who just needs to protect their personal property, or a homeowner who needs to make sure they can rebuild their home after a major earthquake, earthquake insurance is an excellent way to protect yourself against losses.

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For more information go to www. insurance.ca.gov and search for earthquake insurance; go to earthquakeauthority.com or contact your personal insurance provider. s Tony Guerrero, License #0K08272 Farmers Insurance Joyce Feldman Agency 3150 Crow Canyon Place, 160 San Ramon, CA 94582 Ph: 925-242-0684 Tony.Jfeldman@farmersagency.com Carol W. Wu, Esq., CLPF Lori Hefner, MBA, MA in Gerontology & CLPF

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Results from the Food from the Bar Drive

I

n April, the Contra Costa County Bar Association held its 25th annual Food From The Bar fundraiser for the Food Bank of Contra Costa and Solano.

It started with the 21st annual Comedy Night kick-off, a soldout event, that drew 172 attorneys and guests who enjoyed BBQ and belly laughs at Back Forty Texas BBQ in Pleasant Hill. This year’s show featured Will Durst and Larry “Bubbles” Brown. More than 20 generous sponsors donated to support the event.

That was followed by a two-week fundraising blitz by 36 large and small law offices in the county, whose 700+ employees helped raise more than $41,000 and 200 pounds of food.

Over the years, the Bar Association has collected more than $1.25 million and 56 tons of food for the Food Bank. A special thank you to our sponsors; we could not have done this without your support!

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Warren Siegel, Sasha Gibbons and Katherine Wenger

Benefactors: Robert G. McGrath American Inn of Court Wells Fargo Bank Patrons: Archer Norris | McNamara, Ney, Beatty, Slattery, Borges & Ambacher | Newmeyer & Dillion, LLP | The Recorder | U.S. Legal Support Contributors: ADR Services, Inc. | Aiken Welch Court Reporters | Brown, Gee & Wenger | Buchman Provine Brothers Smith, LLP | Certified Reporting Services | Esquire | Ferber Law | First Legal Network | Gagen, McCoy, McMahon, Koss, Markowitz & Raines | Law Offices of Suzanne Boucher | Miller Starr Regalia | Quivx | Vasquez Benisek & Lindgren, LLP

Womens’ Section Wine Tasting and Silent Auction The Women’s Section of the CCCBA raised over $5,000 at its annual scholarship fundraiser May 17 at the Contra Costa Country Club in Pleasant Hill. Thank you to the generous sponsors: Watson, Hoffe & Hass, The Derby Law Firm, Mora Employment Law, Haapala, Thompson & Abern LLP, Aiken Welch Court Reporters, Law Office of Glicel Sumagaysay, Livingston Law Firm, Bond Services of California, Law Office of Matthew B. Talbot, Bray Vineyards and Lynmar Estates.

T.J. Rough, Mika Domingo and Anthony Spagna

Ariel Brownell Lee, Maria Crabtree, Lisa Mendes, Matthew Talbot, Summer Selleck

Above, Renée Welze Livingston and Julie Westerling Left, Martin Johnson and Margret E. Allen

Pat Kelly, James Wu and Shannon Walpole

The Hon. David Goldstein, Bill Green and Brittany Hendrix-Smith For more photos, visit our Facebook page at facebook.com/CCCBA!

Ericka McKenna and Courtney O’Brien

The Wine Toss was popular and profitable!

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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pro bono

HICAP: Health Insurance Counseling & Advocacy Program

by Ruth Atkin

What is HICAP? HICAP is a federal- and state-funded volunteer-based program. HICAP was established in 1984 to provide information about the myths and realities of Medicare, private health insurance companies, and provide legal advice and representation when necessary. There is a HICAP-type program in every state. Outside of California our program is also called “SHIP�, State Health Insurance Assistance Program.

How can HICAP help your clients?

HICAP volunteers and staff provide one-on-one confidential counseling for Medicare recipients throughout Contra Costa County in senior and community centers.

Home visits can be arranged for the homebound. Translation services may also be arranged.

Welcome to Medicare classes are particularly useful in providing a framework to help people new to Medicare decide which choices are best for their individual health care needs. These classes provide information about how Who does HICAP serve?

Contra Costa HICAP services are available to anyone re- other health insurance, (including employer plans, retirement plans, VA, Tricare ceiving Medicare, regardfor Life, and COBRA), may less of their age, in Contra HICAP counseling covers the following issues: or may not coordinate with Costa County. Assistance is t Your rights as a health care consumer Medicare. provided to family mem- t Your Medicare benefits and rights bers, caregivers, and friends t Private Medigap (Medicare supplemental) insurWhen should your who are concerned about ance client contact HICAP? someone on Medicare. t Medicare Advantage HMO plans (Part C of MediContact HICAP when you Counseling from HICAP is are about to turn 65 or othcare) free, and HICAP does not erwise become eligible for t Medicare prescription drug plans (Part D of Medisell or endorse any prodMedicare, have a question care) ucts or services. HICAP or a problem regarding t Long-term care insurance cannot be associated with your Medicare rights, have t Information about health plan choices and health the insurance industry. a denial for medical care care rights services or when you need t Low Income programs that provide relief for the Why is HICAP needed? information to make an Part B (medical coverage) premium and Part D, Medicare was never ininformed decision regardprescription drug benefit tended to cover all health ing your health plan such care costs. Medicare basic t Advocacy for denial of medical coverage, medical as your Medicare HMO or care, and problems with payments to providers. and supplemental insurSupplemental Health Inance plans can be very com- t Referrals for legal help and representation at Medisurance. HICAP is availplicated. HICAP provides care appeals and administrative hearings able for group or organizaunbiased information to t Other resources available in Contra Costa County tional presentations. help individuals make the t Community education, including Welcome to best choice for their health Medicare presentations and presentations on how The HICAP Mission is to care needs. Sometimes to save money on prescription drug costs. provide accurate and objecMedicare and insurance tive counseling, advocacy As advocates HICAP will write letters and make companies make mistakes and assistance with Mediin approving and deny- telephone calls to assist in getting disputed or denied care, supplemental health ing applications and pro- Medicare-related medical bills paid. HICAP assists insurance, long term care cessing claims. Sometimes with billing Medicare supplemental insurance, helps insurance and related applications for medical beneficiaries understand their rights and obtain them, health coverage plans for and drug coverage may be and when all other avenues have been exhausted, will Medicare beneficiaries, or wrongfully denied. HICAP represent beneficiaries in Medicare legal actions. anyone 60 years and over, is here to assist with Mediand to educate the public care-related questions and on Medicare and health inproblems. surance issues.

For additional information, call 800-510-2020 or 925-602-4163 or www.cchicap.org Continued on page 25

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Hot Topics in Medicare

By Ruth Atkin, Contra Costa HICAP Manager

MEDICARE Employer Retiree Plans and Exchanges Hospital Stays Part D Rx Low Income Plans Part A

Part B

Congress created Medicare in 1965.

Over the past 51 years the health coverage landscape has changed dramatically. Medicare beneficiaries are fortunate to have a trained corps of volunteers available to counsel on Medicare matters. I wish to highlight four trends and complexities in the Medicare landscape to help Contra Costa attorneys recognize situations that may warrant a referral to HICAP when working with clients on estate planning matters or medical hardship cases.

Employer retiree plans and exchanges

Many employers are cutting back their retiree health benefits. One way they are doing this is by offering their soon-to-be retirees a subsidy or cash allowance for plans that are

available through exchanges. The retiree must use only those plans offered through the exchange their company uses. It would behoove every consumer to compare carefully those plans with plans generally available to Medicare beneficiaries on the open market. They may find other options provide better prescription drug coverage, offer more choice of physician networks or hospitals, or fit their needs better for some other reason.

Hospital stays - observation vs. inpatient status

Nationally, hospitals are engaging in a vexing trend to keep patients overnight, sometimes for days, without admitting them as inpatients.

Patients are kept under observation status. Hospitals are able to bill Medi-

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Hot Topics in Medicare, continued from page 23 care Part B (outpatient medical services) for services and treatment rendered while the patient is in observation status. The problem for the Medicare beneficiary lies in the chance that they may need a skilled nursing facility afterwards. Medicare will cover skilled nursing facilities for short-term rehabilitative purposes only after the beneficiary has been admitted for three days. Hospitals bill Medicare Part A for inpatient stays. This means the patient must cross three midnights as an inpatient to be able to access the Medicare nursing home benefit. Every person who is “hospitalized” must receive paperwork clearly stating whether s/he is admitted as an inpatient.

Verbal assurances are not sufficient for what may subsequently lead to an appeal of future billing.

The Affordable Care Act (Obamacare) and Medicare

The Affordable Care Act became law in 2010. It includes benefits to Medicare beneficiaries, most notably a shrinking of the coverage gap, commonly called the donut hole, in Part D prescription drug coverage. By 2020 this gap will be eliminated and Part D will have the same type of cost-sharing in Part D as it does in Part B (outpatient services). Medicare beneficiaries have already saved over $10 billion in out-of-pocket drug costs through the closing of the donut hole over the past five years.

The ACA also created individual health insurance plans for people who do not have access to other health insurance coverage. In California the entity established for selling and enrolling people in those plans is called Covered California. Subsidies are available through Covered California for individuals whose income does not exceed 400% of the federal poverty limit. When people turn 65 they generally must actively disenroll from their Covered California plan and enroll in Medicare.

They will lose their subsidy when they do so and will be unpleasantly surprised. There are exceptions to this and the best recommendation if you have a client in this situation is to refer your client to HICAP. In addition to creating individual health plans, California also accepted the federal government’s challenge to expand customary eligibility for Medi-Cal up to 138% of the federal poverty level. This expanded Medi-Cal is called MAGI (Modified Adjusted Gross Income) MediCal. Again, when someone on MAGI Medi-Cal turns 65 they must enroll in Medicare. Please refer these clients to HICAP because they may be able to convert their

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MAGI Medi-Cal to regular Aged and Disabled Medi-Cal and keep important Medi-Cal benefits.

Low Income Programs

This discussion of MAGI Medi-Cal leads to a final note on low income programs available to eligible Medicare beneficiaries. Medicare Savings programs, administered through the county Medi-Cal offices, offer valuable benefits. We know many eligible beneficiaries are not taking advantage of them. These benefits may include having the Part B premium paid by Medi-Cal as well as having the prescription drug premium and co-payments greatly reduced or completely covered. One of these Medicare Savings Programs, Qualified Medicare Beneficiary (QMB), will not only pay the Part B premium and provide the drug subsidy, but it will also pay for Part A in those situations where Part A is not free to the beneficiary. This is particularly valuable to immigrants or others who do not have 40 quarters of service time paid into Social Security. HICAP encourages you to refer clients to us so that we may screen them for eligibility.

The low-income prescription drug program is known as Extra Help or Low Income Subsidy. Separate application for Extra Help can be made directly on the Social Security website: www.ssa.gov. HICAP is extremely interested in enrolling as many people as possible in the Medicare Savings Programs and in Extra Help.

If you want to refer clients to HICAP, please call 800510-2020, option 2 or (925) 602-4163. Callers will have to leave their name, phone number and zip code. A trained volunteer counselor will return their call. Thank you for your interest in Medicare and in HICAP. s

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Matt Toth

as in Pedder, Hesseltine, Walker & Toth, LLP

oldest partnership in Contra Costa County (since 1955)

p 925.283-6816 • f 925.283-3683 3445 Golden Gate Way Lafayette, CA 94549 AV Martindale-Hubbell

HICAP continued from page 22 HICAP counselors are volunteers who go through mandatory training and are registered with the California Department of Aging. Contact HICAP if you are interested in volunteering! HICAP is a program of the Contra Costa County Area Agency on Aging, the California Department of Aging, and is sponsored nationally by CMS, the Centers for Medicare and Medicaid Services. s

Employment Law Representing Employees in Wage and Hour Class Actions Harvey Sohnen Sohnen Law Offices 2 Theatre Square, Suite 230 Orinda, CA 94563

www.sohnenlaw.com

888.968.1088

Ruth Atkin is a licensed clinical social worker and has worked in the field of aging for over 30 years. She has served for the last five years as HICAP program manager in Contra Costa County. Before that she was a contract monitor for the Contra Costa Area Agency on Aging from 2007-2011. Ruth has been an analyst for Adult Protective Services and has worked in other aging programs.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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New MCLE Ethics Series Announced

The CCCBA MCLE Series Committee has designed a new program for 2016. The goal is to create a program that encourages opportunities for members to engage with different sections and provide MCLE credit for topics that have Bar-wide interest.

•

All sessions take place on Wednesdays, from 5 - 6:30 pm

•

Location: CCCBA 5th Floor Conference Room, Concord

•

Approximately 3 panelists per program

•

MCLE credit: 1 hr. legal ethics and 0.25 hr. general

•

Cost Per Program: $15 law students; $25 members; $35 non-members

•

Refreshments will be provided

•

More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org

•

Register online at www.cccba.org/attorney/calendar

The Contra Costa County Bar Association certifies that the MCLE activities listed above have been approved for the specific MCLE credit indicated, by the State Bar of California, Provider #393.

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JULY 2016

August 31 The Ethics of Entrepreneurialism Speakers: EJ Paje, Entrepreneur

Matthew Talbot, Esq.

Jerome Fishkin, Esq.

Building a practice from the ground up is challenging. Most attorneys hanging a shingle are juggling a variety of tasks. Don’t get the attention of the state bar while you are setting up shop.

Come to our program and get a leg up before you step out.

September 28 The Jenga of Client Relationships: Red Flags and When you Should Release a Client Speakers: Suzanne Boucher, Esq.

Gregory Harper, Esq.

Rebecca Harris, Esq.

Cary D. McReynolds, Esq. Erica Portillo, Esq.

A wise person once said, “The most dangerous person in your case, may be your own client.” Navigating the ethical rules of the attorney-client relationship can be tricky whether getting in or getting out. Identify red flags to avoid future problems and explore avenues for ethically terminating a client relationship.

October 26 Your Practice and the Internet: Marketing, Social Media and Your Legal Ethics Speakers: Gretchen Sweet – Findlaw Jeremy Seymour, Esq.

John Steele, Esq. This program will examine internet marketing, social media and your ethical duty.

ethics corner

Technology has changed the way lawyers practice law.

Smart phones and cloud computing mean that lawyers can draft pleadings even while on vacation in another country. Nevertheless, freedom comes with a price; here it is the threat to client data and confidential information by the fact that data and information are let out of the four corners of the bricks-and-mortar law office and put into cyberspace. The State Bar of California anticipated this problem years ago, and developed a series of Ethics Opinions to address the issues that arise with the use of technology by attorneys. They also list a series of articles, Opinions and Rules that addresses cyber security on the Bar’s web site.

Ethics Opinion 2010-179 discusses whether an attorney violates the duties of confidentiality and competence she owes to a client by using technology to transmit or store confidential information when the technology may be susceptible to unauthorized access by third parties. The Opinion concludes that whether there has been a violation of ethical duties will depend on the particular technology being used and the circumstances surrounding such use. It admonishes the lawyer to evaluate: 1) the level of security attendant to the use of that technology, including whether reasonable precautions may be taken when using the technology to increase the level of security; 2) the legal ramifications to a

third party who intercepts, accesses or exceeds authorized use of electronic information; 3) the degree of sensitivity of the information, 4) the possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product; 5) the urgency of the situation; and 6) the client’s instructions and circumstances, such as access by others to the client’s devices and communications.

The Opinion makes clear that the B&P Code section 6068 (e) duty to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client” is not rendered moot by the use of technology. Similarly, the duty of competence in Rule 3-110(A) applies to the attorney’s diligence and learning of all things related to preserving the confidence of client matters, and it also applies to the duty to supervise the work of non-attorney employees and agents - here your IT department.

Model Rule 1.6 of the ABA Model Rules of Professional Conduct contains comments which directly address competence. Although California lawyers are not governed by the ABA Rules, courts sometimes cite to these Rules when California does not have a Rule on point.

Comment 16 of Model Rule 1.6 says that a lawyer must safeguard information of a client and Comment 17 addresses the client who asks for special security measures to protect their matter and the lawyer’s need to address that issue.

Sole practitioners might wonder whether large law firms are immune from attack. No, if Wiley Rein LLP in

MCLE SELF-study

by Carol M. Langford

please visit Contra Costa Lawyer Online at http://cclawyer.cccba.org/category/self-study-mcle and click on this article to download the MCLE Self-Study test form and instructions.

Cyber Attacks and Ethical Obligations to Clients

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Cyber Attacks and Ethical Obligations to Clients continued from page 27 Washington D.C. is any indication of the vulnerability of all law firms.

A Chinese hacker group managed to penetrate Wiley’s computer system after the firm pursued unfair trade claims against exporters in China and obtained billions of dollars in tariffs on exports of solar cells. The hackers managed to get the confidential information of clients like the European Union Council, Halliburton, and a Canadian magistrate.

Bloomberg News, Hackers Linked to China’s Army Seen From EU to DC, Bloomberg Business, Jul. 26, 2012.

Another attack occurred on a group of law firms in Toronto involved in a $40 million dollar takeover deal.

The Risk of Data Breaches in Law Firms, Jett Hanna, TLIE, May, 2015.

So clearly, we all are vulnerable.

Youngman Ericsson Scott, LLP 1981 North Broadway • Suite 300 Walnut Creek, CA 94596

Tax attorneys Youngman.com

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JULY 2016

(925) 930-6000

The ABA has recognized that computer attacks are now picked up by IT departments of law firms on an almost daily basis because law firms are being targeted by hackers interested in learning of mergers and acquisitions, litigation strategies and patent information. As a result of that, the ABA adopted Resolution 109 which called for all law firms to implement and maintain an appropriate security program.Data is not just accessed by overseas hackers.

When a lawyer loses his phone or lap top in an airport or coffee shop it can fall into the hands of hackers too. This can be particularly devastating to the young solo practitioner who has no bricks-and-mortar office. But it happens in big law firms as well; Jett Hanna reports in the TLIE article cited above that in one Silicon Valley law firm an employee stole 200 employee lap tops, and in a Texas case computers from a law firm were found in a pawn shop.

California has enacted legislation after citizens demanded more transparency and accountability of businesses to protect their private

information. Section 1798.29 of the Civil Code requires any business (that includes law firms) to disclose any breach of security where unencrypted information has been released to someone unauthorized to view it. It is very specific in how that notice must be done; for example, in at least 10-point type with clear headings. It is really nothing but a reflection of a lawyer’s duty under Rule 3-500 of the Rules of Professional Conduct to keep a client informed of significant developments in a case. It would be significant that someone outside of your law firm has your client’s confidential case information.

How long has it been since you pulled out your legal malpractice insurance policy and checked to see if it covers your computer getting hacked with a Ransomware virus? Those viruses can render your computer data worthless, and can put client communications into the hands of thieves. Policies differ as to whether they cover data breaches.

Typically a professional liability policy insures against claims from clients for falling below the standard of care in the provision of legal services. Could that be construed to cover a data breach? Maybe, but it might not cover all the costs in repairing the damage including state penalties, forensic examinations, the costs of notifying all your clients and of providing credit monitoring.

There are now cyber liability provisions that can be bought as well as standalone policies. The coverage types and limits vary widely.

What should a lawyer do if their computer has been hacked? Simshaw and Wu, from Ethics and Cybersecurity: March 2015 on their web site, have a great list of safeguards to take including: making sure the law office has walls, doors alarms and windows that reasonably prevent physical intrusion, keeping an inventory of computing

devices, wiping electronic data off such devices before they are sold or put in a dumpster, the use of strong passwords and log offs after a period of inactivity, and the use of firewalls, virus protection software and systems that log user activity. But most important, at least to the law firm, is the need for a plan for the recovery of data and notification of breach as well as a firm continuity plan to assure continued operation in the event of a cyber attack.

A lawyer can find it difficult to protect information if, for example, an employee hacker is bent on in-

vading his system. But most hackers will be stopped at the gate and move on to easier prey if lawyers use the above fairly simple and cheap precautions. s Carol M. Langford is lawyer who specializes in ethics and attorney conduct matters including representing clients before the State Bar. She is currently serving on the Commission to Revise the Rules of Professional Conduct and as a lecturer in law at U.C. Berkeley Boalt Hall School of Law. She is the past Chair of the California State Bar ethics committee.

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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JULY 2016

What You Missed in the June Online Issue Guest Editor Mary P. Carey tried something unconventional for this issue of the Contra Costa Lawyer. Drawing from a 1950s film, Rashomon, directed by Akira Kurosawa that was lauded for its unconventional approach to storytelling, Carey wanted to “present our members with an opportunity to … walk in someone else’s shoes, see things from another’s point of view, and determine what is your truth and what is not. As in the film, you will find a set of facts followed by eight different perspectives from participants along the road of criminal justice.”

Her “Inside” column described a ficticious Bay Area family that had emigrated here. After a party in their home, a crime occurred.

Carey and her fellow authors give the reader a well rounded view of the ramifications from perspectives of: the District Attorney, immigration attorney, defense attorney, juvenile law attorney , a juvenile Judge’s perspective, family law and employment law attorneys.

It is a compelling and informative story of how seemingly minor events can result in serious consequences.

Upcoming Issues of Contra Costa Lawyer

Theme August Legal Entertainment

September Elections and Politics (print) Guest Editor: Wendy McGuire Coats October Family Law Guest Editor: David Erb November Bench/Bar (print) Guest Editor: Stephen Nash December Pro Bono Guest Editor: Samantha Sepehr

The issue was rounded out by a fictional story by Justice James Marchiano, Inns of Court, Bar Soap, Elva Harding’s President’s message, and photo features of the Food From the Bar Walkathon and Comedy Night.

To read it, go online to: cclawyer.cccba.org or www.contracostalawyer.com Contra Costa Lawyer is published monthly. Every other month is a print edition, followed by an online edition.

All issues are available online.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

33

Calendar

Upcoming Events | Overview July 12 | Estate Planning & Probate Section

Brown Bag Lunch with Judge Sugiyama more details on page 35

July 13 | CCCBA and JFK University

Challenges of Electronic Evidence more details on page 35 July 14 | Estate Planning & Probate Section

Mentoring Group Meeting more details on page 35, (*new location)

August 11 | Estate Planning & Probate Section

Mentoring Group Meeting

more details on page 36, (*new location) August 16 | Barristers/Young Lawyers Section Barristers’ First Series, Part 2 of 4,

My First Time Defending a Deposition more details on page 36 August 31 | CCCBA MCLE Ethics Series Part 1 of 3,

The Ethics of Entrepreneurialism more details on pages 26 and 36

July 14 | CCCBA

CCCBA Happy Hour Gathering more details on page 35 July 20 | Barristers/Young Lawyers Section Barristers’ Firsts Series, Part 1 of 4,

The Written Word: Propounding and Respodning to Discovery for Young Lawyers more details on page 35 July 26 | CCCBA

The A, B, C’s and D of Turning 65 more details on page 35 August 1 | CCCBA and Diversity Conmmittee

Leading the Way - Meet ABA President Paulette Brown more details on page 36

September 17 | CCCBA

Bench/Bar BBQ and Softball Game more details on page 36 September 28 | CCCBA MCLE Ethics Series, Part 2 of 3,

The Jenga of Client Relationships: Red Flags and When you Should Release a Client more details on pages 26 and 36 October 6 | CCCBA

BAR FUND BENEFIT more details on pages 2 and 37 October 26 | CCCBA MCLE Ethics Series, Part 3 of 3

Your Practice and the Internet: Marketing, Social Media and Your Legal Ethics more details on pages 26 and 37

The Contra Costa County Bar Association certifies that the MCLe activities listed on pages 35-37 have been approved for the specific MCLE credit indicated, by the State Bar of California, Provider #393.

34

JULY 2016

July 12 | Estate Planning & Probate

Section

Brown Bag Lunch with Judge Sugiyama Grab your lunch and come on over to Department 14 to meet with Judge Sugiyama.

Time: 12 pm – 1:15 pm Location: 725 Court Street, Martinez MCLE: 0.5 hrs. general MCLE credit Cost: Free for CCCBA members; $10 nonmembers Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org

July 13 | CCCBA and JFK University

Challenges of Electronic Evidence Speakers: Alison Chandler—Deputy DA

Comm. Lowell Richards

Judge William Kolin (ret.)

Attorneys and judges alike have been faced with questions about the admissibility of electronic evidence. In fact, some legal commentators have said that authentication of electronic evidence is the most challenging evidentiary problem facing litigators in the digital information age. The panel will discuss some of those issues and potential solutions.

Time: 6:30 pm – 8 pm Location: JFK University - College of Law, 100 Ellinwood Way, Pleasant Hill MCLE: 1.5 hrs. general MCLE credit Cost: $30 for CCCBA members; $35 nonmembers Registration: Contact Renee Hikiji at (800)557-1384 or conted@jfku.edu. Mail check payable to JFKU-CE to JFKU Office of Continuing Education, 100 Ellinwood Way, Rm S205, Pleasant Hill CA 94523

July 14 | CCCBA

July 20 | Barristers/Young Lawyer’s Section

CCCBA Happy Hour Gathering

Barristers’ Firsts Series, Part 1 of 4:

Please mark your calendars for this casual, no host event, where CCCBA Board Members and Section Leaders will gather together with CCCBA members in a relaxed, happy hour setting to socialize.

Don’t expect anything formal like name tags or check in tables. Instead come when you can, grab a beverage, and find us on the patio or in the bar area. A gathering of the CCCBA, big or small, is typically hard to miss.

We can’t wait to see you.

The Written Word: Propounding and Responding to Discovery for Young Lawyers Speakers: Jeffrey T. Thayer, Esq.

Natasha S. Chee, Esq. In this program attendees will learn firsthand from experienced litigators about the nuts and bolts of propounding and following up on written discovery in civil cases.

Time: 6 pm – 7:30 pm

Time: 4:30 pm – 7 pm

Location: CCCBA 5th Floor Conference Room

Location: Metro, 3524 Mt. Diablo Blvd., Lafayette

MCLE: 1 hr. of general MCLE credit

July 14 | Estate Planning & Probate

Section

Mentoring Group Meeting On the second Thursday of every month, the section holds its monthly mentoring group open-discussion meetings and invites all CCCBA members to attend. The mentors would like to know what’s on your mind and will offer some practical feedback provided by practicing attorneys from all areas of practice within the probate section.

Discussion topics and questions should be submitted in advance to Deborah MoritzFarr at dfarr@thalaw.com. Every effort will be made to include all suggested topics. This is a unique opportunity. We hope to see you there!

Please bring your brown bag lunch.

Time: 12 pm – 1:15 pm NEW Location: Turner, Huguet, Adams & Farr 838 Escobar St., Martinez RSVP: Online at www.cccba.org/attorney/calendar More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org July 26 | CCCBA

The A, B, C’s and D of Turning 65!

Speaker: Colleen Callahan, CLU, CASL, LUTCF This educational presentation will address the alphabet soup of turning 65 and planning the transition to Medicare and a Medicare Supplement. The key points will cover Medicare Part A and B, eligibility for a Medicare Supplement, types of supplements (but NOT specific company information) prescription drug plans, timelines, open-enrollment and tips related to transitioning. The presentation will also address how to handle insurance coverage if one spouse is 65 or older and one is under 65.

Lunch included.

Cost: $20 for section members; $25 for CCCBA members and $40 for non-members

Time: 12:15 pm – 1:30 pm

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

Cost: $15 for members; $20 for non-members

More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org

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

Sponsored by Aiken Welch Court Reporters

More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org

Location: CCCBA 5th Floor Conference Room

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

35

August 1 | CCCBA & Diversity Committee

Leading the Way – Meet ABA President Paulette Brown Speakers: Hon. Judy Johnson

Paulette Brown, ABA President Please join us for a special event to meet and hear from ABA President Paulette Brown.

President Brown’s topic will be “The Status of Women and People of Color Practicing Law Around the World.”

There will be a reception preceding the presentation portion of the event. Heavy hors d’oeuvres and beverages will be served.

Time: 5:30 pm – 8 pm Location: JFK University, 100 Ellinwood Way, Room S209, Pleasant Hill MCLE: 0.5 hrs. of elimination of bias MCLE credit

August 11 | Estate Planning & Probate Section

Mentoring Group Meeting On the second Thursday of every month, the section holds its monthly mentoring group open-discussion meetings and invites all CCCBA members to attend. The mentors would like to know what’s on your mind and will offer some practical feedback provided by practicing attorneys from all areas of practice within the probate section.

Discussion topics and questions should be submitted in advance to Deborah MoritzFarr at dfarr@thalaw.com. Every effort will be made to include all suggested topics. This is a unique opportunity. We hope to see you there!

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

More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org

More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org

August 31 | CCCBA

September 17 | CCCBA

CCCBA Ethics Series, Part 1 of 3:

Bench/Bar BBQ and Softball Game

The Ethics of Entrepreneurialism

Join us for our 4th Annual Bench/Bar BBQ and Softball Game! We’ll provide the hamburgers, veggie burgers, hot dogs, condiments and soft drinks. Please RSVP above so we make sure we have enough food. Bring food according to your MCLE Compliance Group: Group 1 (A-G): Group 2 (H-M): Group 3 (N-Z):

Appetizer for 8 Salad Dessert for 8

BYOB (no glass containers) Please arrive promptly if you want to play (bring your glove)! Teams will be mixed. Supporters and cheerleaders encouraged.

Location: Heather Farm Park, 310 N. San Carlos Dr., Sports Field 5, Walnut Creek RSVP: Online at www.cccba.org/attorney/calendar More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org

JULY 2016

Young litigators are often schooled on taking depositions, but just as important are the skills necessary to effectively defend depositions. This program will give young lawyers basic skills and tenets that will greatly enhance their ability to protect their clients’ interests, even when opposed by seasoned counsel.

Time: 6 pm – 7:30 pm Location: CCCBA 5th Floor Conference Room Cost: $20 for section members; $25 for CCCBA members and $40 for non-members

Time: 11 am – 2 pm

36

Speakers: Jeffrey T. Thayer, Esq. Marta Vanegas, Esq.

Time: 12 pm – 1:15 pm

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

See page 26.

My First Time Defending a Deposition

MCLE: 1 hr. of general MCLE credit

NEW Location: Turner, Huguet, Adams & Farr 838 Escobar St., Martinez

Building a practice from the ground up is challenging. Most attorneys hanging a shingle are juggling a variety of tasks. Don’t get the attention of the state bar while you are setting up shop. Come to our program and get a leg up before you step out.

Barristers’ Firsts Series, Part 2 of 4:

Please bring your brown bag lunch.

Cost: $10 for law students, $35 for CCCBA members, $45 for non-members

Speakers: E.J. Paje, Entrepreneur

Jerome Fishkin, Esq.

Matthew Talbot, Esq.

August 16 | Barristers/Young Lawyers Section

Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba Sponsored by Aiken Welch Court Reporters September 28 | CCCBA CCCBA Ethics Series, Part 2 of 3:

The Jenga of Client Relationships: Red Flags and When you Should Release a Client Speakers: Gregory Harper, Esq.

Suzanne Boucher, Esq.

Rebecca Harris, Esq.

Cary D. McReynolds, Esq.

Erica Portillo, Esq.

A wise person once said, “The most dangerous person in your case, may be your own client.” Navigating the ethical rules of the attorney-client relationship can be tricky whether getting in or getting out. Identify red flags to avoid future problems and explore avenues for ethically terminating a client relationship.

See page 26.

October 6 | CCCBA

October 26 | CCCBA

BAR FUND BENEFIT

CCCBA Ethics Series, Part 3 of 3:

In Support of Communuity Violence Solutions’ Anti-Human Trafficking Program Learn about and support the important work of Community Violence Solutions while you network with other CCCBA members.

Sponsorships are being accepted now! Be a part of this worthy cause to prevent human trafficking in our midst.

Time: 5:30 pm – 8 pm Location: Lafayette Park Hotel, 3287 Mt. Diablo Blvd, Lafayette

Your Practice and the Internet: Marketing, Social Media and Your Legal Ethics Speakers: Gretchen Sweet – Findlaw

Jeremy Seymour, Esq.

John Steele, Esq. This program will examine internet marketing, social media and your ethical duty.

See page 26.

Cost: $85 or $60 for law students; Those who purchase two or more tickets at $125 each will be listed as individual sponsors in the program Registration: Online at www.cccba.org/attorney/calendar Sponsorship Info: Contact Theresa Hurley at (925) 370-2548 or thurley@cccba.org

THANK YOU

to CCCBA’s Court Tour Docents Each year CCCBA’s wonderful court tour docents educate thousands of Contra Costa County students, parents and teachers about our legal system.

On these tours students learn about the detention facility, see how courthouse security works, observe legal proceedings, participate as a juror, defendant or even the judge during a mock trial and discover that being a lawyer in real life is not like it is on “Law & Order,”. It’s no wonder that they often remark it was their favorite field trip of the year!

CCCBA is very lucky to have an outstanding group of court tour docents, many of whom are CCCBA members. One of the founding docents of the program, Gwen Regalia, will be retiring after this court tour season. Another long time docent, Alicia Watson, will also be stepping down this year. We give a huge shout out to these fantastic volunteers who have lead hundreds of tours over the many years they have been docents and we are so grateful for the time, energy and enthusiasm they have put into the program.

Court Tour Docents - Thank you for all that you do!

• Judge Richard Flier (Ret.)

• Lisa Reep

• Stephenie Teichman

• Commissioner Don Green (Ret.)

• Gwen Regalia

• Robin Thornton

• Laurel Green

• Robin Siefkin

• Alicia Watson

• David Hermelin

• Sue Stoltz

• Jane White

• Kevin Lally

Interested in becoming a court tour docent?

Contact Theresa Hurley at thurley@cccba.org or (925) 370-2548 for more information.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

37

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ADR Services . . . . . . . . . . . . . . . . . . . . . . . 32

Probate paralegal to attorneys

Beautiful offices w/ 7 solos. Networking poss. Single story converted house w/ pillars, built in’s, FP, molding, kit., conf rm, lg treed rear deck, etc. Corner w/ skylight & built-ins. Perfect for working hard and relaxing at end of long day! Very congenial.

No smoking. Call Paul at (925) 938-8990.

Joanne C. McCarthy. 2204 Concord Blvd.

Concord, CA 94520. Call (925) 689-9244.

David A. Arietta . . . . . . . . . . . . . . . . . . . . 13 Barr & Young Attorneys . . . . . . . . . . . . 14 Bingham Osborn & Scarborough, LLC . . . . . . . . . . . . . . . . 30 Braverman Mediation . . . . . . . . . . . . . 25

Family Law Senior Assoc/Partner Youngman Ericsson Scott (www.youngman. com) in Walnut Creek seeks a Family Law attorney with a minimum of 5 years of experience, who is independent and entrepreneurial with an established referral network, to merge with our firm and help us build a family law practice. Please reply to Carol Phillips, Firm Administrator, at cphillips@youngman.com.

Bray & Greenwood . . . . . . . . . . . . . . . . . 19 Diablo Valley Reporting Services . . 40 Eikenberry Law Firm . . . . . . . . . . . . . . 18 Fremont Bank . . . . . . . . . . . . . . . . . . . . . . 28 Lenczowski Law Offices . . . . . . . . . . . . . 7 Mitchell & Mitchell . . . . . . . . . . . . . . . . 18 Morrill Law Firm . . . . . . . . . . . . . . . . . . . 9 David B. Pastor . . . . . . . . . . . . . . . . . . . . . 17 Pedder, Hesseltine, Walker & Toth, LLP . . . . . . . . . . . . . . . . . . . . . . 18, 24 Harvey Sohnen . . . . . . . . . . . . . . . . . . . . 25 Candice Stoddard . . . . . . . . . . . . . . . . . . 11 Trustcare Fiduciary Services . . . . . . . 19 Lisa M. West . . . . . . . . . . . . . . . . . . . . . . . . . 4 Michael J. Young . . . . . . . . . . . . . . . . . . . . 5 Youngman Ericsson Scott . . . . . . . 23, 28 Zandonella Reporting Service . . . . . 32

Advertise

in the Contra Costa Lawyer Display Ad Print MEMBER Rates: Full page: Full page Color: 2/3 page: 1/2 page: 1/2 page Color: 1/3 page: 1/6 page: Business card: 1/12 page:

$ 550 $ 690 $ 500 $ 415 $ 520 $ 350 $ 215 $ 165 $ 125

Classifieds - Print: Member rates are $15 per line for a one-time insertion and $12.50 per line for three or more insertions.

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JULY 2016

Online AD Rate: $165/ month for members.

Substantial discounts available for three or more insertions.

Classifieds Online: $50/ month flat fee.

In addition to text, you may add photos or graphics at no additional charge.

Welcome New Members Dean Allen

Rebecca Kelly

Noah Phillips

Joanna Barron

Frank Khalil

Maria Ramos Flores

Margaret Berciano

Christina Lopez

Irene Ross

Chris Crittenton

Nicholas Ma

Amy Rothman

O’Neill Dennis

Christine MacDonald

Madeline Serafin

Morgan Durham

Shian MacLean

Jeff Stegner

Gamaliel Galindo

Christine McMurry

Brittney Sturtevant

Maria Garfinkle

Shane Nielson

Melissa Tung

Rashida Harmon

Susan Nicholson

Fabiano Valerio

WookSun(Phil) Hong

Melissa Tung

Richard Young

Jeffrey Hubins

Lucia Milica Turpin

John Weber

The Mission of the Contra Costa County Bar Association The mission of the Contra Costa County Bar Association is to represent its members and to advocate on their behalf; to educate its members and the public concerning the law, the legal profession, and the judicial system; to provide a means of communication both among its members, and between its members and the public; and to provide services that will support its members in their legal practice.

For a list of sustaining law firms of CCCBA, see page 31.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

39

DIABLO VALLEY REPORTING SERVICES Certified Shorthand Reporters

Serving the entire Bay Area • Deposition Reporting • Experienced Professional Reporters • Computerized Transcription • Deposition Suites Available • Expeditious Delivery • BART Accessible

2121 N. California Blvd.

Suite 290 Walnut Creek, CA 94596

925.930.7388

dvrs2121@yahoo.com

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JULY 2016