Ahead By $1.4M After Working for Retiree a Little Over a Year, Lawyer Is Sued and Counterclaims

Attorney Lee Levenson Jr. was making a base salary of $100,000 when he left a Florida law firm and went to work for Billy and Barbara DuBois in 2007, at an annual salary of $350,000.

By the time Levenson stopped working as a private attorney for the wealthy retired farm owners in December 2008, he had cost them $1.4 million while providing little in return, lawsuits filed in Palm Beach County Circuit Court allege. Along with a self-proclaimed financial adviser who worked for the couple after Levenson left, the lawyer is accused of taking advantage of a man whose mental capacity was diminished after a 2005 head injury, the Palm Beach Post reports in a lengthy article.

DuBois reportedly had a net worth of $20 million when he retired from farming in 2003. Four years later, his net worth had plunged to $12 million.

Levenson declined to comment when contacted by the newspaper, but it appears that his fees were far from the only issue the couple faced. He said in a deposition that he did what the couple asked him to do, including responding on a 24/7 basis to help them resolve their fights.

Among other claimed excessive charges, the lawyers now representing the couple question why Levenson asked Billy DuBois for a $150,000 contribution to a partnership that purchased and renovated a historic Delray Beach building in which Levenson now has his law office, the Post reports. Only the attorney and his father are listed as the owners of the property on county records.

Levenson testified that the couple had insisted he buy the building, so that he would have a nice office. However, any profit made on its eventual sale would go to Billy DuBois.

In response to the litigation that has been filed against him, Levenson is counterclaiming for over $1 million, the Post reports. He contends that the money is owed under his employment agreement with Billy DuBois, which was never properly canceled in accord with the requirements of the contract.

NJ Lawmakers to Consider ‘Right to Die’ Legislation

New legislation introduced in New Jersey this week would grant doctors the right to prescribe lethal doses of drugs to terminally ill patients who request the life-ending medications.

The Death with Dignity Act is modeled after similar laws in Oregon and Washington state. The New Jersey Star-Ledger reports that the author of the legislation expects significant debate over the bill.

“This is the beginning of discussing a topic that we’ve got to get a sense of how people feel,” John Burzichelli, D-Gloucester, said of the legislation. “People are not favorable to a Dr. Kevorkian suicide bill that says someone who’s 45 and depressed and decides to kill themselves with help. That’s not what this bill is.”

Ultimately, voters would need to approve of the law. If it passes, patients with less than six months to live would be able to begin a process to request life-ending drugs and finally self-administer them. The legislation calls for waiting periods, counseling and recommended next-of-kin notifications.

Related coverage:

L.A. Times: “New Jersey could become 3rd state with right-to-die law”

Lawyer Accused of Embezzling $500K From Her Own Grandmother Gets Probation

A Texas lawyer who took a plea earlier this year after being accused of embezzling $500,000 from her own grandmother has avoided a prison sentence.

However, Judge George Godwin told Michelle Lorenz Valicek, 54, that he doubts she will comply with the terms of her deferred adjudication probation, the San Antonio Express-News reports.

“This will be a miracle if we can keep you out of the penitentiary,” Godwin told the once-respected criminal defense lawyer during a Tuesday hearing, noting her self-admitted substance abuse, among other issues and predicting that a probation revocation hearing could be in her future. “You may well be back before this court in about six months,” he said.

Charged in 2009 in a 16-count felony indictment, Valicek pleaded no contest earlier this year to misapplication of fiduciary property while serving as administrator for her senile grandmother, Margaret Lorenz, as another San Antonio Express-News article details. She gave up her law license as a condition of the plea.

Valicek could have gotten as much as 20 years in prison, and the government had sought a 10- to 20-year term. However, Valicek’s father, who inherited from Lorenz after she died last year at age 97, wrote a letter asking the judge to put his daughter on probation and not require her to pay restitution for the $500,000 that authorities say is missing.

Earlier coverage:

ABAJournal.com: “Attorney Facing Felony Embezzlement Trial Is Jailed Without Bond After DWI Arrest”

Family of Deceased Elderly Couple Dispute Guardian Lawyers over Tens of Thousands in Bills

Corrected: The battle between a court-appointed law firm and the family of an elderly couple that was in its care over legal fees is raising questions of the treatment of aging Americans by paid guardians and the lack of state processes to protect them.

A judge appointed Virginia-based law firm Needham, Mitnick Pollack third-party guardians of decorated WWII veteran Samuel Drakulich and his wife Jeanne, and a $700,000 nest egg, after a dispute among the incapacitated couple’s children about their future care, the Washington Post reported.

However, charges of tens of thousands of dollars in legal expenses have come under fire by some members of the Drakulich family and have led to an ongoing court battle over the firm’s actions. The suit has also raised concern among elder-care advocates and legislators at a time when a surge of Baby Boomer retirees is expected to make these types of arrangements more common, the Post reported.

Needham, Mitnick Pollack agreed to the guardian and conservator appointment of the couple in 2004 under a court order that dictated the firm would be paid at its “usual hourly rate for professional services,” a necessary condition for the firm to have been able to financially afford to accept the appointment, Susan Pollack, a founding member of the firm, told the ABA Journal.

Samuel Drakulich died later that year. NMP continued to manage Jeanne Drakulich’s affairs and filed a yearly accounting of the firm’s expenses with the Fairfax County Commissioner of Accounts, Pollack said.

In 2007, Diane Drakulich-Clarke, a daughter of the couple, wrote a letter to Fairfax’s fiduciary watchdog, John Rust, complaining about the fees, according to the Post. In 2011, after Jeanne’s death, Rust determined from an investigation into the firm’s billings that NMP over-billed 7 court-appointed wards $229,000, and should return $46,000 of that amount to the Drakuliches, according to a report filed with the court. Some of the questionable charges included $6,300 to prepare $1,800 worth of household items for auction and up to $125 an hour for renewing dog licenses and preparing instructions on emptying a dryer’s lint trap, according to the Post. Pollack said those figures were miscalculated by Rust and the Washington Post.

In March 2012, Judge Leslie M. Alden held that the “amount of time spent by NMP in completing the tasks was reasonable and that the tasks were necessary, appropriate and of value to the wards.” Alden also held that the fees charged by the firm for non-legal services were not reasonable and remanded the case back to the commissioner of accounts to determine the proper hourly rate for the non-legal tasks. NMP is appealing the ruling to Virginia’s Supreme Court.

Virginia does not require special training or certification for lawyer or non-lawyer professional appointed guardians, however the case expected to be closely watched by lawyers and lawmakers, the Post reported.

“We need to look at ways to strengthen the oversight system for guardians,” U.S. Sen. Amy Klobuchar, D-Minn, told the Post. “While most court-appointed guardians are undoubtedly professional, caring and law-abiding, we have seen mounting evidence that some guardians use their position of power for their own gain.”

Updated at 4 pm. to include comments from Needham, Mitnick Pollack Member Susan Pollack, additional details regarding the ongoing legal battle and to clarify that Samuel and Jeanne Drakulich died during the guardianship’s tenure.

DC Circuit OKs Surviving-Spouse Suit re HUD Reverse-Mortgage Rules Said to Promote Foreclosure

A lawsuit contending that federal regulations contravene legislative intent by encouraging the foreclosure of reverse mortgages against borrowers’ surviving spouses has been given a green light by a federal appeals court in Washington, D.C.

Reversing a lower court’s dismissal, the U.S. Court of Appeals for the D.C. Circuit ruled Friday that a suit brought by two widowers against the U.S. Department of Housing and Urban Development can proceed, Bloomberg reports.

“We admit to being somewhat puzzled as to how HUD can justify a regulation that seems contrary to the governing statute,” Judge Laurence Silberman wrote in the opinion (PDF) for the three-judge panel deciding the case.

The statutory language at issue says that a reverse mortgage can be foreclosed “if a mortgagor dies and the property is not the principal residence of at least one surviving mortgagor.” The lower court had found that the lender had discretion to foreclose because the widowers weren’t parties to the reverse mortgage.

The article says HUD responded to the suit by explaining that it was concerned an elderly borrower could marry a young spouse after getting a reverse mortgage, thus potentially significantly increasing the lender’s risk of loss. A reverse mortgage is often taken out by a longtime homeowner with significant equity in the residence but limited income who wants to live out the rest of his or her life there. It provides the borrower with cash, in exchange for hefty fees, and may permit the borrower to live in the home for the rest of his or her life.

A HUD spokesman declined to comment when contacted by the news agency.

Attorney Craig Briskin of Briskin Mehri Skalet is one of the plaintiffs lawyers. Contacted by Bloomerg, he said he is “thrilled,” adding: “The D.C. Circuit clearly told HUD it made a mistake.”

Additional coverage:

ABAJournal.com: “AARP Suit Targets HUD for Reverse Mortgage Foreclosures”

Lawyer is disbarred for not telling authorities about employee’s misuse of client credit card

A Georgia attorney has been disbarred following her conviction of misprision of a felony due to an employee’s misuse of a guardianship client’s funds.

In a brief order (PDF) on Monday, the court noted that Zondra Taylor Hutto had not responded to the disciplinary case and found that disbarment is appropriate. Earlier news articles indicated Hutto intended to consent to disbarment.

Hutto, who is in her early 60s, got into ethical trouble after finding out that a law office employee had used a credit card and a debit card belonging to an elderly client for whom the attorney served as a temporary guardian. Although Hutto fired the worker, she admitted in a 2011 federal plea agreement that she never reported the thefts—which totaled over $19,000—to authorities, according to a Birmingham News article published in 2011 and an FBI press release on which it relies.

A subsequent Associated Press article says Hutto was sentenced to three months and ordered to pay a little over $19,000 in restitution. She was working as a conservator for the Tuscaloosa County probate court at the time of the crime.

Hat tip: Legal Profession Blog.

Related coverage:

Estate of Denial (2012): “Questions surround ex-conservator’s cases”

After facility worker shuns 911 operator’s CPR advice, questions arise: Are legal fears the reason?

Updated: On the tapes, the 911 operator pleads with a caller to administer cardiopulmonary resuscitation to a collapsed resident at an independent living facility. The caller, who had identified herself as a nurse, refuses, citing corporate policy. The elderly resident dies.

The incident last month at Glenwood Gardens in Bakersfield, Calif., has stirred outrage, but much remains unclear. Was there a do-not-resuscitate order? Were other legal concerns a factor? The New Old Age blog of the New York Times raises the questions.

An initial written statement from the executive director of Glenwood Gardens says the company policy is to call for help when there is a medical emergency in independent living and to stand down until paramedics arrive, the blog says. In a new statement, however, the facility said its employee had misinterpreted the guidelines, Fox News reports.

The New Old Age blog was unable to reach the family members of the 87-year-old woman who died, Lorraine Bayless, to learn if she had a do-not-resuscitate order. Her family did release a statement saying Bayless had wanted “to die naturally and without any kind of life prolonging intervention,” Fox News says. There are no plans for a lawsuit. Bakersfield officials, however, said the woman did not have a DNR order on file at the facility.

The New Old Age blog spoke to experts who suggested other possible reasons for the Glenwood Gardens policy.

States regulate assisted living facilities, but not independent living apartments. Some operators of independent living centers don’t provide medical care because of fears they will be accused of operating an assisting living facility without a license, according to Eric Carlson, a directing attorney at the National Senior Citizens Law Center.

Christopher Finn, a regional director of operations for the facility owner, Brookdale Senior Living, now says the staff member who spoke with 911 was “serving in the capacity of a resident services director, not as a nurse,” the Los Angeles Times reports. He did not comment on whether she was licensed as a nurse.

Others interviewed by the New Old Age suggested a fear of legal liability could be at play. The blog discounts the idea, however, citing Good Samaritan laws that protect those who administer CPR in emergencies. In any event, the blog says, “The center would have been on firm legal ground: It is unlikely that an attempt to save a life with CPR would become grounds for a lawsuit when the alternative was almost certain death, legal experts say.”

The blog also points out that older persons are less likely to be resuscitated with CPR and more likely to suffer broken bones and punctured lungs when it is administered.

Updated at 9:10 a.m. to include additional information from Fox News and at 9:30 a.m. to include information from the Los Angeles Times.

Tipster tells police missing man was hospitalized; staff refused to say due to privacy law

When worried friends reported an 81-year-old man was missing from his home on Monday, one of the first things police in Salem, Ore., did was contact local hospitals.

There was no sign of Thomas Dill there, so authorities and friends kept searching. After two days, an anonymous tipster told police on Wednesday that Dill had been at Salem Hospital the whole time. However, staff hadn’t revealed his presence when police called for fear that doing so would violate the federal Health Insurance Portability and Accountability Act, reports the Statesman Journal.

“It’s a cumbersome law,” Lt. Steve Birr told the newspaper, adding: “One of the difficult things is that we have people with mental illnesses, and they could end up in a mental health facility, and you would never know it, and they would never tell you.”

It would have been legal under HIPAA for the hospital to tell police that Dill was a patient if he had been under criminal investigation, the newspaper says.

Judge accused of stealing elderly neighbor’s $1.6M life savings resigns from bench

A California judge who is facing a 32-count case concerning his alleged theft of a now-deceased elderly neighbor’s life savings of $1.6 million or more has voluntarily stepped down from the Alameda County Superior Court bench.

Judge Paul Seeman agreed to resign Thursday and never seek to serve on the state court bench again in exchange for an agreement that the Commission on Judicial Performance would defer its ethics investigation of him, the Oakland Tribune reports.

Ordinarily, the commission waits for a criminal case to conclude before launching an investigation, the newspaper notes. However, his lawyer says Seeman’s resignation allows court administrators to appoint a new judge to help handle a challenging caseload in the Oakland courthouse.

“Judge Seeman has had a distinguished career and he felt that this was an appropriate action to take at this time for the good of the court,” said his lawyer, Kathleen Ewins, in a written statement.

Seeman, who had been hearing misdemeanor arraignments, was reassigned to a small-claims call in a small courthouse in Pleasanton after he was arrested in his Oakland courthouse chambers in June. Some news reports say he was later suspended but continued to receive his salary until his resignation today.

He is accused in the ongoing criminal case of having used a durable power of attorney over a 13-year period, to gain control of Anne Nutting’s assets. He reportedly offered the woman, and her husband, who predeceased her in 1999, his help in 1998, after they were banned from their home due to hoarding issues. The situation came to the attention of Berkeley authorities after he took a bad fall, according to KTVU.

A court filing by police says Seeman had obtained control of virtually all of Nutting’s financial holdings by 2004, putting her accounts—worth more than $2 million—in his name and selling property including an art collection. Nutting died in 2010 at age 97.

A lawyer approached by Nutting and told of her concerns about Seeman told police of the issues she raised, the El Cerrito Patch reported.

Initially charged with elder theft and 11 counts of perjury, all felonies, Seeman faces another 20 counts in an amended complaint filed by the district attorney earlier this month. It is not clear from news coverage exactly what the new counts say, but the Tribune says at least most of them are new charges concerning the same alleged facts underlying the earlier charges.

Additional coverage:

ABAJournal.com: “California Judge Is Accused of Stealing $1.6M from Elderly Neighbor; Suspicious Lawyer Notified Cops”

ABAJournal.com: “Calif. Judge Charged in $1.6M Elder Theft Case Remains on Bench, But Now Hears Small Claims Cases”

Lawyer and heiress’ son who were convicted in siphoning of $60M from Brooke Astor estate lose appeal

The son of an elderly heiress and a now-disbarred lawyer convicted of working together to siphon some $60 million from her estate have lost an appeal before a midlevel New York court.

Following the determination that Anthony D. Marshall, 88, and Francis X. Morrissey Jr. were appropriately convicted in 2009 concerning the estate of Marshall’s mother, Brooke Astor, who died in 2007 at age 105, they now appear likely to serve their one- to three-year prison sentences, reports the New York Times (reg. req.).

While the two could still appeal to the state’s highest court, such appeals rarely succeed, the newspaper says. Marshall was convicted of grand larceny, Morrissey of forging Astor’s name.

Bloomberg, the New York Daily News and the New York Post have stories, and a Reuters article about the decision by the Appellate Division, First Department was also reprinted by the New York Times (reg. req.).

After the conviction, Morrissey was disbarred. An opinion posted on Findlaw provides more details.

Also see:

ABAJournal.com: “Brooke Astor Estate Fight Settles; Her Son Gets Reduced Share of $14.5M Due to Criminal Conviction”

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