PA Bar Assn approves Orphans' Court Mediation Project

On Friday, November 21, 2014, the Pennsylvania Bar Association formally approved, by unanimous vote, a Report and Recommendation presented by its Alternative Dispute Resolution Committee regarding a proposal for mediation in the Orphans' Court Divisions, of the Courts of Common Pleas, in the Commonwealth.  

The "OC Mediation Project" proposes a "Model Local Rule" offered for consideration in the future by judicial districts in Pennsylvania favoring implementation of mediation in that Division for court-filed or court-annexed matters.

The proposal was endorsed by the Real Property, Probate & Trust Law Section and the Elder Law Section of the PBA.  

As a co-chair of the Subcommittee, a member of the ADR Committee, and a member of both those Sections, I presented the proposal first to the PBA Board of Governors on Wednesday, November 19, 2014 (which suggested amendments and then approved it 25-0) and then to the PBA House of Delegates on Friday, November 21st (which approved the amended proposal unanimously).

Participants on the Subcommittee who prepared the OC Mediation Project included Co-Chairs Bernice J. Koplin, Neil E. Hendershot, and Hon. Jay J. Hoberg; and Members Ann Lee Begler (Liaison to PBA Elder Law Section), David A. Fitzsimmons, John Francis Gough, Frederick K. Hatt, Timothy J. Holman, Hon. Richard B.  Klein, Vincent B. Lackner, Robert H. Lefevre, M. Melvin Shralow, Stanley A. Pelli, James A. Rosenstein (Chair of PBA ADR Committee), Ross F. Schmucki (Liaison to Philadelphia Guardianship Task Force), P. Douglas Sisk, Eric R. Strauss (Liaison to PBA RPPT Section), and Gordon M. Wase.

Following is the Report without the referenced attachments. The full report can be obtained from the PBA in the short term, prior to posting of the full Report on the PBA website in the future.

Recommendation

The PBA Alternative Dispute Resolution Committee recommends the Pennsylvania Bar Association to approve the Orphans’ Court Mediation Project as described in this report which includes but is not limited to the Model Local Orphans’ Court Rule 1.6 that is outlined in Attachment 5, on pages 18-19 of this Report.

Report

Members[1] of the Orphans’ Court Mediation Subcommittee (the “Subcommittee”), of the Alternative Dispute Resolution Committee, of the Pennsylvania Bar Association, examined how other states and some counties within Pennsylvania have expanded mediation into their probate-related divisions and have become mediation-friendly in the Orphans’ Court Division of the court.

Members of the Subcommittee are Pennsylvania attorneys, either trained or active as mediators, or involved in past mediations in representation of participants.  Some are licensed as mediators in additional jurisdictions, serve as mediators for various agencies and organizations (e.g. FINRA), or participated in programs of the Pennsylvania Superior Court and federal courts. 

The Subcommittee’s objective is to develop a Model Local Rule for Mediation in the Orphans’ Court Division (the “OC Mediation Project” or the “Project”), with accompanying forms and explanations that will be “not inconsistent” with the anticipated form of a new Supreme Court Orphans’ Court Rule 1.6.  The Model Local Rule would be made available for consideration by judicial districts in Pennsylvania for litigation filed in the Orphans’ Court Division or in certain court-annexed matters, where the Orphans’ Court Division has both in personam jurisdiction and subject matter jurisdiction if litigation would be commenced in the matter.

The present OC Mediation Project is limited to court-filed or court-annexed mediation.  However, statewide Supreme Court O.C. Rule 1.6 is anticipated to be broader.  Following a successful deployment of this phase of the OC Mediation Project, the Subcommittee expects to work on an expansion of mediation in this subject matter area to address private mediation or mediation which is not court-annexed.

The OC Mediation Project was described in two bar association newsletter articles.[2]

This presentation is intended for the Pennsylvania Bar Association governance.  It is proposed by the PBA’s Alternative Dispute Resolution Committee[3], and is supported by the PBA Real, Property & Trust Law Section[4], and by the PBA Elder Law Section.[5] 

Attachments 

Attached are the following materials, which explain or constitute the present status of the OC Mediation Project:

1. Article: A Model Local Orphans’ Court Rule for Mediation, by Bernice J. Koplin and Neil E. Hendershot, dated May 22, 2014, as published in two newsletters.  (Page 6)
2. Resources and References: Comparable Fiduciary Court Mediation Programs  (Page 8)
3. Comparison: Previously Published, versus Anticipated Revised, New Statewide O.C. Rule 1.6  (Page 13)
4. Brochure: Pennsylvania Orphans’ Court-Annexed Mediation Program  (Page 14)
5. Proposed Model Local Rule: Model Local Orphans’ Court Rule 1.6  (Page 18)
6. Form: Agreement to Mediate on a Confidential Basis  (Page 20)
7. Form: Notice of Initiation of Mediation  (Page 22)
8. Form: Notice of Completion of Mediation  (Page 23)
9. Form: Praecipe  (Page 24)
10. Statement:  Orphans’ Court Mediators and Their Qualifications  (Page 25)

 The Subcommittee may revise or expand generic forms for use in the OC Mediation Project, such as an application for a person to serve as a mediator.  The OC Mediation Project contemplates

periodic revision of these documents as various judicial districts or local bar associations gain experience with mediation in Orphans’ Court Division matters and provide feedback.

PBA Project Approval, Deployment, and Continuing Refinement

If approved by PBA governance and with continued monitoring by the ADR Committee, the Elder Law Section, and the Real Property, Probate & Trust Law Section, the OC Mediation Project will be ongoing.  If successful in its court-annexed approach, perhaps it can be expanded.  Perhaps this model for mediation could be expanded into other areas of substantive law not already addressed by mediation.

Who will promote, and then monitor and update, the Project on behalf of PBA? 

• The Subcommittee will promote the Project to local bar associations and provide information to the judicial districts in Pennsylvania on behalf of the PBA.
• The Subcommittee will monitor and update the OC Mediation Project with feedback received.
• The Subcommittee is accountable to the PBA ADR Committee.  The Subcommittee expects designated members to act as a liaison with the RPPT Section and the Elder Law Section, as active supporters of the Project.

Will additional resources be deployed?

• The Subcommittee recommends that the brochure, the forms, and reliable links regarding mediation be posted on a webpage of the PBA’s website, to be substantively supervised by the Subcommittee with maintenance by PBA Staff.
• The current PBA brochure on arbitration and mediation should be updated to include reference to the OC Mediation Project.
• The PBA may, through its ADR Committee, make available a database of trained mediators with significant Orphans' Court Division experience.  However, approval of this Presentation does not mandate creation or maintenance of a particular form of list. Local bar associations may also undertake to maintain such lists of mediators.
• The PBA will create disclaimers that there will be no liability, express, implied, or otherwise, regarding the Program, including actions or omissions of a mediator.
• Participants in a mediation shall agree to that condition in the written Agreement to Mediate.

What will the Project cost, and who will bear the costs?

• Costs of a webpage could come from the PBA’s operation budget with existing staff
• A source of ongoing funding could be, but is not committed to be: 1) the PBA general fund, 2) funds of the ADR Committee and/or the two supporting Sections, or 3) foundation or grant funds.  It is not anticipated presently that funds of the Unified Judicial System will be applied to the OC Mediation Project.
• The costs of individual mediation will be borne by the parties in interest, not the PBA, nor the Unified Judicial System.

Will this pro bono Project expand into a standalone operation?

• This is a targeted, limited authorization for mediation in Orphans’ Court Division matters and potentially related private matters not presented to an Orphans’ Court Division but within its subject matter jurisdiction.  If, over a period of years this Project is maintained and proves successful, it may become integrated into Pennsylvania’s Unified Judicial System in some way presently unforeseen, or it may become a self-supporting non-profit activity. 
• The present Project will produce a complete product outlining a mediation process, which then can be adopted through local rule under anticipated statewide OC Rule 1.6, or even in a case by case determination by special order. A local bar association may be involved, or a judicial district may adopt a local rule.
• In its present form, the Project would be maintained as a pro bono activity of PBA members to the extent of their available time and the PBA’s resources.  It is a model, not a mandate in any manner.  The Project is conditional in deployment upon approval by the PA Supreme Court of a new statewide Orphans’ Court Rule 1.6 substantially in the anticipated form, which would specifically authorize mediation in an Orphans’ Court Division of a local judicial district to occur after a specified effective date.
• There is no plan to expand the Project beyond this status, unless demand occurs and circumstances permit, and with the approval of the sponsors and PBA governance.
• The PBA is not committed to provide any funding.

What is sought from PBA governance? 

• The ADR Committee, with the support of the Real Property, Probate & Trust Law Section and the Elder Law Section, request approval of the OC Mediation Project.  
• Approval would allow public dissemination of the present form of a Model Local Rule for Orphans’ Court Division mediation and the proposed forms. 
• Approval would also authorize dissemination of information regarding the OC Mediation Project on the PBA’s website, with adequate disclaimers to the public.
• If PBA desires to monitor the Project over a period of time, and request subsequent review, for example, two years after its inception (which will depend upon the issuance of a new statewide Orphans’ Court Rule 1.6), the Subcommittee would accept that. 
• When the Project would be reviewed, it could be terminated, maintained as then in effect, or expanded, depending upon its reception statewide and upon the reactions of local courts, the Administrative Office of Pennsylvania Courts, and other organizations, such as bar associations, mediation providers, and even healthcare industry groups with members involved in resolution of end-of-life health care disputes, where subject matter jurisdiction resides in the Orphans’ Court Division.[6]

Respectfully Submitted,

James Rosenstein, Chair, PBA Alternative Dispute Resolution Committee

Submitted on October 14, 2014; Amended on November 19, 2014.

Approved, as amended, by the Pennsylvania Bar Association’s Board of Governors on November 19, 2014 (25-0), and by the PBA’s House of Delegates on November 21, 2014 unanimously.

---

[1]   Participants on the Subcommittee include Co-Chairs Bernice J. Koplin, Neil E. Hendershot, and Hon. Jay J. Hoberg; and Members: Ann Lee Begler (Liaison to PBA Elder Law Section), David A. Fitzsimmons, John Francis Gough, Frederick K. Hatt, Timothy J. Holman, Hon. Richard B.  Klein, Vincent B. Lackner, Robert H. Lefevre, M. Melvin Shralow, Stanley A. Pelli, James A. Rosenstein (Chair of PBA ADR Committee), Ross F. Schmucki (Liaison to Philadelphia Guardianship Task Force), P. Douglas Sisk, Eric R. Strauss (Liaison to PBA RPPT Section), and Gordon M. Wase.

[2]   This article was published in the Newsletter of the Probate and Trust Law Section, Philadelphia Bar Association, in Issue No. 134 (May, 2014) at pp. 21-22 ( Link: http://goo.gl/h09sUA),, and in the Newsletter of the Real Property, Probate and Trust Law Section of the Pennsylvania Bar Association, in Issue No. 75 (Summer, 2014) at pp. 18 (Link: http://goo.gl/JIL9Wl -- available for limited time publicly, then archived into Section’s Member area).

[3] The PBA ADR Committee voted conditional approval of the OC Mediation Project during its leadership conference call on September 30, 2014, and final approval of this presentations packet subsequently.

[4]   The PBA Real Property, Probate & Trust Law Section voted approval of the OC Mediation Project during its Council Conference Call on September 19, 2014, and final approval of this presentation packet subsequently. 

[5]   The PBA Elder Law Section voted tentative support of the OC Mediation Project during its leadership conference call on September 5, 2014, and final approval of this presentation packet subsequently.

[6]  The PBA might address mediation of health care representative disputes that remain under the subject matter jurisdiction of the Orphans’ Court Division under Chapter 54 of the Probate, Estates & Fiduciary Code.  Bioethical mediation can be effective in difficult end-of-life situations or in surrogate healthcare decision making.  See: Waldman, Ellen, Bioethics Mediation at the End of Life: Opportunities and Limitations, Cardozzo Journal of Conflict Resolution, Vol. 15, pp. 449-471 (Feb. 14, 2014), found online at: http://cardozojcr.com/wp-content/uploads/2014/02/Waldman.pdf. For a model health care mediation program in Pittsburgh, see: Brochure, UMPC Intermediation Program, found online at: http://goo.gl/m2idu1.

Mediation for Elderly

Today I enjoyed participating in a seminar presented in Pittsburgh by the Pennsylvania Bar Institute entitled "Using Mediation to Resolve Disputes Involving the Elderly".

This is the description of the course:

A variety of conflicts involving elderly persons call for effective resolutions that take into consideration a multitude of varying interests and often delicate relationships. ADR, and particularly, mediation often provides the structure and process for that to occur.

This course will provide anyone -- lawyers (general practitioners, as well as elder, healthcare, estates, trusts & probate and business law specialists) and members of the other helping professions -- with the tools they need:

• to decide whether and when it is likely to be appropriate and helpful to use mediation or another type of ADR to resolve disputes in which that elderly person is involved,
• to represent a client effectively in preparation for and during an ADR process to resolve such a dispute, and
• to educate the family members of an elderly person about the conflict resolution options available to support them in maintaining positive relationships with their elderly relative.

Disputes involving the elderly arise in a variety of situations: estate planning and administration; addressing an elderly person`s changing needs or the care they are receiving (whether in a private or institutional setting); deciding on the appointment of a guardian; managing conflicts between elderly people and (of course) resolving intra-family conflicts; and conflicts within institutional settings which, if not resolved, can affect and elder's care and the liability that can accompany errors that arise when conflict is protracted.

In any of these situations, questions may arise about the ability of the elderly person to participate meaningfully in the ADR process due to his or her diminished mental capacity, and how to compensate for this condition. Sometimes, abuse of the elderly person is a factor, and almost always there are multiple parties to the conflict.

Addressing these challenges, in addition to those that typically arise in any mediation, calls for experienced and specially trained ADR practitioners. 

The course was presented previously, on October 13, 2010, in Philadelphia, where it was videotaped.

The interaction among the panel members and those in the audience today -- many with extensive mediation experiences -- set this four-hour session apart from other "lectures" I have heard (or delivered!). 

As a co-planner of the course from its inception, my contribution to written materials involved a new website hosted on Google Sites, which I entitled "Mediation for Elderly."  It remains available as a teaching tool supplementing the printed book.

On its web page entitled Article & Reports, I listed good resources to learn about mediation involving an elderly person.  One of those references is a recent article posted by the AARP Bulletin entitled "Oh, Brother! With Parents Aging, Squabbling Siblings Turn to Elder Mediation" (09/20/10), by Sally Abrahms.

Also on that web page, I referenced previous PA EE&F Law Blog postings regarding alternative dispute resolution, including mediation:

• PA ADR: A Newsletter & an OC Case (05/08/07)
• Symposium on Ethical Standards for Elder Mediation (02/01/07).
• PA Superior Court Announces New Appellate Mediation Program (10/09/06).

Key course planners Jim Rosenstein and Ann Begler, with the other Philadephia and Pittsburgh panelists, compiled a useful printed resource regarding mediation as one form of alternative dispute resolution well-suited to many seniors encountering problem settings.

FTC: "Who Cares" About Health Care Vendors

On November 19, 2008, the Federal Trade Commission unveiled its "Who Cares" website, and issued a parallel booklet, to provide consumer information about health care products and services.

The new website and publication were announced in a Press Release entitled "FTC Announces Health Care Booklet and Web Site for Seniors" (11/19/08).

With all the sources of health information available -- many of them online -- it can be tough to tell fact from fiction, or useful products and services from those that don’t work or aren’t safe.

To help provide reliable sources of health information to seniors and their family members, caregivers, and friends, the Federal Trade Commission has developed a new booklet and Web site.

Who Cares: Sources of Information About Health Care Products and Services, online at www.ftc.gov/whocares, urges older consumers to discuss their health-related decisions with doctors and other trusted health care providers.

It also helps them:

• find links to agencies and organizations that care about topics like generic drugs, hormone therapy, caregiving, surgery to improve vision, alternative medicine, hearing aids, Medicare fraud, and medical ID theft;
• learn how to spot misleading and deceptive claims; and
• find out who you can contact to ask questions, enlist help, or speak up if you think a health product or service isn’t living up to its promise. * * *
  

That Press Release noted the availability of a printed Who Cares booklet, which appears to be a replica of the initial web pages:

Copies of the Who Cares booklet can be ordered from the FTC’s Consumer Response Center. Call toll-free: 1-877-FTC-HELP. For bulk orders of the booklet, go to www.ftc.gov/bulkorder.

This is the Table of Contents of that booklet, which also provides an overview of the website's content:

Care and Services

• Alternative and Complementary Treatments (p. 1)

• Assisted Living and Nursing Homes (p. 2)

• Hiring Caregivers (p. 3)

• Hormone Therapies (p. 4)

• Lasik and Other Vision-Correcting Surgeries (p. 5)

• Health Care Documents (p. 6)

Pills and Products

• Buying Prescription Drugs Online (p. 7)

• Dietary Supplements (p. 8)

• Generic Drugs and Switching Prescriptions (p. 9)

• At-Home Genetic Tests (p. 10)

• Vision Prescription Portability (p. 11)

• Hearing Aids (p. 12)

• Personal Emergency Response Systems (p. 13)

• Weight Loss Promises (p. 14)

Scams and Frauds

• Medical ID Theft (p. 15)

• Medicare Fraud (p. 16)

• Medicare Part D Plans (p. 17)

• Miracle Cures (p. 18)

• Prescription Assistance Programs (p. 19)

How to File a Complaint (p. 20)

The Who Cares booklet (PDF, 2.94 MB, 28 pages) can be downloaded from the new website. When viewed on a computer in Adobe Acrobat or Reader, the embedded links to Internet sources are "live", just as on the web pages.

This new FTC resource, Who Cares, should be consulted early by consumers who research medical services or products. And if a health care service or product has failed to deliver, the website can be accessed to file a complaint.

IRS Tests ADR Programs in Appeals

On December 1, 2008, the Internal Revenue Service, in its Bulletin No. 2008-48 (PDF, 40 pages) included Announcement 2008–111 (beginning on Page 1224), entitled "Test of Procedures for Mediation and Arbitration for Offer in Compromise and Trust Fund Recovery Penalty Cases in Appeals".

The announcement by the IRS modified prior revenue procedures to enable a two-year test program involving two new forms of alternative dispute resolution for taxpayers on certain appeal matters:

This announcement modifies Revenue Procedures 2002–44, 2002–2 C.B. 10, and 2006–44, 2006–2 C.B. 800, by establishing a two-year test of the mediation and arbitration procedures for Offer in Compromise and Trust Fund Recovery Penalty cases that are under the jurisdiction of the [IRS] Office of Appeals.

The new pilot program was the subject of an informational release, IR-2008-135, entitled "IRS Announces Two New Appeals Programs" (12/01/08), announcing post-Appeals mediation or arbitration procedures for test programs in the two settings of an Offer in Compromise (OIC) and a Trust Fund Recovery Penalty (TFRP).

Beginning Dec. 1, 2008, for a two-year test period, Appeals will offer post-Appeals mediation and arbitration for OIC and TFRP cases for taxpayers whose appeals are considered at the Appeals office in Atlanta, Ga.; Chicago, Ill.; Cincinnati, Ohio; Houston, Texas; Indianapolis, Ind.; Louisville, Ky.; Phoenix, Ariz.; and San Francisco, Calif.

Under these two alternative dispute resolution programs, the taxpayer or Appeals may request nonbinding mediation. The taxpayer may decline Appeals’ request for mediation. Appeals will evaluate a taxpayer’s request for mediation based on the criteria detailed in Revenue Procedure 2002-44 and Announcement 2008-111.

A request for binding arbitration must be made jointly by the taxpayer and Appeals. The mediation and arbitration procedures do not create any additional authority for settlement by Appeals. * * * [Formatting added.]

The Announcement notes that such ADR procedures will not be available when "the taxpayer has already attempted to resolve the matter through Fast Track Mediation" or when an offer in compromise was submitted by a taxpayer to the IRS as an alternative to an IRS collection action.

In a summary article drawn from these materials, entitled "IRS Introduces Two Appeals Programs" (12-02/08) posted by WebCPA, the distinctions between mediation and arbitration, as alternative dispute resolution devices to be tested at selected IRS offices, were highlighted:

During the test period, appeals employees will advise the taxpayer of the availability of these alternative dispute strategies and the deadline for requesting such strategies.

The post-appeals mediation process is available for both legal and factual issues. The mediator's role is to facilitate settlement negotiations so the parties can reach an agreement, but the mediator does not have settlement authority over any issue.

The arbitration procedure is available for factual issues only. The arbitrator's role is to hear both sides of a disputed issue and then render a decision based on the specific factual issue. The decision is binding on both parties. However, the arbitrator does not have the authority to decide that the offer in compromise itself must be accepted or that a person is or is not liable. Neither party may appeal the decision of the arbitrator or contest the decision in any judicial proceeding. * * * [Formatting added.]

Testing of such ADR devices by the IRS is significant. Hopefully the test will reveal the processes to be efficient and effective in resolving IRS claims against taxpayers.

The IRS ADR test program follows a trend in many areas of law for resolution of disputes more through open exploration, direct discussion, and an acceptable agreement by parties, in a process controlled and supervised by an experienced, independent mediator or arbitrator, rather than through adverse positioning, formal litigation, and a court's adjudication.

PA Judicial Center Under Construction

On the redesigned website of the Pennsylvania Unified Judiciary, one web page is dedicated to the Pennsylvania Judicial Center presently under construction at 601 Commonwealth Avenue, in Harrisburg, PA.

According to the PA Department of General Services, the Pennsylvania courts' new centralizing facility will open in Summer, 2009. I previously noted its construction when the steel was being installed. See: PA EE&F Law Blog posting "New PA Judicial Center Under Construction" (05/09/07).

The PA Unified Judiciary's website describes the facility as follows:

The Pennsylvania Judicial Center, located in Harrisburg's historical Capitol Complex, will serve as the administrative center for Pennsylvania's Unified Judicial System. It will contain office space for more than 500 employees, three Commonwealth Court courtrooms and a conference and training center.

Occupants of the judicial center will include the Supreme Court Middle District prothonotary, the executive administrator of the Supreme Court, the Superior Court Middle District prothonotary, the Commonwealth Court, the AOPC and various Supreme Court boards and committees. The Judicial Conduct Board and the Court of Judicial Discipline will also have offices in the center.

Construction on the project began in 2006. The center is expected to open in mid-2009.

The center was designed by the Philadelphia architectural and engineering firm Vitetta.

According to the website of JBC Associates, Inc., which is involved in managing construction, the facility will have three major areas:

The new 423,600 SF state judicial center has three major areas planned including

• a 9 story tower which will house office and conference rooms for judges and their staff,
  
• a 5 story wing which will house three courtrooms, judges’ chambers and other administrative space and
  
• an additional information support area with underground parking.

The exterior façade will be wrapped in limestone and glass that will open onto 7th Street. * * *

The facility will become home to the Administrative Office of Pennsylvania Courts, which anticipates the move, as noted in a description on its website:

The Administrative Office of Pennsylvania Courts, often referred to by its acronym as AOPC, is the administrative arm of the Pennsylvania Supreme Court. This office was established in 1969 to assist the court in operating the Pennsylvania court system.

The AOPC is headed by the Court Administrator of Pennsylvania. Its departments include Policy and Research, Judicial Services, Judicial Education, Judicial Programs, Judicial Automation, Judicial Security, Legal, Finance, Human Resources, and Communications and Legislative Affairs.

The AOPC has offices in Mechanicsburg and Philadelphia, but soon will be based in the new state Judicial Center on Capitol Hill in Harrisburg. [Emphasis added.]

For more photos of the PA Judicial Center during its construction progress, see:

• PA Department of General Services' webpage on the Judicial Center

• Chris Bucher's Photostream on Flickr, with photos taken 04/05/08
  

* * *
"We shape our buildings; thereafter they shape us."

-- Winston Churchill

Update: 07/10/09:

The Pennsylvania Judicial Center is open for occupancy. See: PA EE&F Law Blog post "New PA Judicial Center Open for Occupancy" (07/10/09).

"General" Tom Corbett at Harrisburg Rotary

Pennsylvania's Attorney General, Tom Corbett, spoke on Monday, October 6, 2008, at the Rotary Club of Harrisburg regarding the mission of the PA Attorney General's Office, the breadth of its jurisdiction & operations, some recent enforcement actions, and longer-term challenges he perceives for Pennsylvania.

He spoke not only as the present, previously-appointed Attorney General (known by the approximate 200 attorneys in that office simply as "The General"), but also as a candidate for election to that office in the November, 2008 general election.

One of his two opponents for that office, John Morganelli, candidate for PA Attorney General, will speak to that same Rotary Club on Monday, October 27, 2008, at noon. For information regarding the three contenders, see the PA Attorney General Voter Information webpage maintained by the Pennsylvania League of Women Voters.

As a Rotarian, I delivered the invocation for the meeting, and then sat next to Tom Corbett as he spoke. (I took the photo above from my seat.)

Mr. Corbett spoke from prepared remarks, and then answered questions from Rotarians. He outlined the expansive duties & operations of the PA AG's Office, one of 57 such chief governmental legal offices in the country, in both states and U.S. territories. I was impressed by his presence, his knowledge, his candor, his discretion, and his perceptions about future challenges to the citizens of this Commonwealth.

Before the meeting began, I complimented him on the PA Attorney General's website, which has won awards. The PA AG's website, with its email feed, regular news updates, creative presentations, and thoughtful organization of information, other online resources, and interactive fill-in forms, remains a model online presentation of complex information.

I wondered how he locked down the domain name, "attorneygeneral.gov", which is simple & generic. Likely it would be a much sought-after web address, I thought.

"My son reserved that in 2006," he responded with a smile.

"Good foresight," I replied.

Tom Corbet had good foresight, too (also in 2006), in creating the PA AG's Elder Abuse Task Force, and then in creating a Senior Crime Prevention University, both of which he mentioned in his remarks to the Rotarians.

Press releases posted on that website highlight recent activities of the AG's Office in matters that affect Pennsylvania's senior population:

• October 6, 2008 -- "Attorney General Corbett warns consumers about recent surge in 'easy money' lottery, sweepstakes and work-at-home scams" -- "Attorney General Tom Corbett is warning Pennsylvania consumers to be wary of various financial scams, including bogus international lottery and sweepstakes prizes, along with deceptive work-at-home and job-related schemes." * * *

• October 3, 2008 -- "Attorney General Corbett announces settlement in "Black & Gold Bash" charities case; nearly $270,000 to fund full consumer refunds" -- "Attorney General Tom Corbett today announced a consumer settlement that will pay nearly $270,000 to more than 2,100 southwestern Pennsylvania consumers who purchased raffle tickets to the "Black and Gold Bash," a 2006 Pittsburgh area event that was supposed to benefit a cancer charity." * * *

• September 16, 2008 -- "Consumer Advisory: Attorney General Corbett cautions Pittsburgh area seniors about telephone scam involving bogus pleas to help family members" -- Attorney General Tom Corbett warned Pennsylvania consumers to be wary of a new type of aggressive financial scam involving scam artists who pretend to be family members supposedly involved in a traffic accident in Canada." * * *

• Sept. 11, 2008 -- "Attorney General Corbett announces $2.3 million consumer protection judgment in Pittsburgh area real estate and mortgage fraud case" -- "Attorney General Tom Corbett today announced a court-ordered judgment totaling more than $2.3 million in a consumer protection lawsuit that was filed against a Pittsburgh area man accused of orchestrating a multi-million dollar mortgage and real estate scheme in Allegheny, Beaver and Butler counties." * * *

• September 9, 2008 -- "Attorney General Corbett announces arrest of Lehigh County insurance agent in $676,000 senior financial fraud case" -- "Attorney General Tom Corbett today announced that agents from the Attorney General's Insurance Fraud Section and Elder Abuse Unit have arrested a Lehigh County insurance agent accused of stealing more than $676,000 from senior victims stretching across eastern and central Pennsylvania." * * *

This is an important elected office in Pennsylvania. The holder commands great power while exercising proscribed duties that affect every Pennsylvanian.

Selection of the PA AG should be taken seriously by voters. To foster a knowledgeable examination, the candidates will debate soon, according to "Pa. attorney general candidates set debate dates" (09/22/2008) posted by Penn Live:

The major-party candidates for Pennsylvania attorney general have agreed to a pair of televised debates in the days leading up to the Nov. 4 election, they said Monday.

The plan for back-to-back debates that will be aired on Nov. 2 and Nov. 3 was confirmed by incumbent Republican Tom Corbett's campaign and Democratic challenger John Morganelli, the Northampton County district attorney.

Both debates will be taped in late October.

The first debate, sponsored by the Pennsylvania League of Women Voters, will be held in the studios of WPVI-TV in Philadelphia. The second debate will be at the studios of WFMZ-TV in Allentown.

Libertarian Party candidate Marakay Rogers, a York lawyer, said she intends to take part in the Philadelphia debate but that she had no information about the Allentown debate.

Need it be said? Vote on Tuesday, November 4, 2008.

Update: 11/05/08:

On November 4, 2008, Tom Corbett won re-election as Pennsylvania's Attorney General, according to an Associated Press article posted by the Pennsylvania Law Weekly entitled "Corbett wins re-election as Pa. attorney general" (11/05/08).

Pennsylvania Attorney General Tom Corbett held off a challenger to return as the state's top law enforcement officer * * *.

Corbett, a Republican, built his first-term record around an ongoing investigation into alleged corruption in the state General Assembly and vigorous prosecution of Internet sex predators, drug dealers and scam artists who prey on senior citizens.

"It was validation that this is what (voters) wanted us to do, validation that they believe in us," Corbett said. "Republicans and Democrats and Independents voted for that."

Northampton County District Attorney John Morganelli was unable to break through and become the first Democrat in state history to win election as attorney general even though he was helped by a wave of new Democratic voter registrations.

With 99 percent of precincts reporting, Corbett had 52 percent of the vote and Morganelli 46 percent.* * *

Corbett, 59, is a former federal prosecutor for western Pennsylvania who is often mentioned as one of the GOP's best potential candidates for governor in the 2010 election.

He said he will answer the question of a possible gubernatorial candidacy "somewhere down the road," noting that he still has work to do on the legislative corruption investigation which, he said, will yield more arrests. * * *

As to Corbett's focus on financial elder abuse, an article published in the Patriot News (Harrisburg, PA), entitled "Corbett will focus on bonus investigation, gun control" (11/07/08) by Charles Thompson, noted:

Corbett also said he wants to expand consumer education efforts to help protect senior citizens and others from scam artists.

He said scams could be more common as the economy slows. * * *

Spencer Starts "PA Fiduciary Litigation" Blog

On July 3, 2008, Attorney Patti Spencer, of Lancaster, PA, unveiled her new Pennsylvania Fiduciary Litigation blog, hosted by LexBlog. Patti describes herself as "a trusts and estates lawyer and expert witness."

Patti's credentials & experience are impressive. She is a fellow member of the American College of Trust & Estate Counsel. Also, she is a prolific writer, as evidenced by her published books and her weekly “Taxing Matters” column that appears in the Lancaster Intelligencer Journal. Thus, she is well-qualified to become a "blogger".

Through her test period for the blog and to the present, ten postings appeared on her blog. Already she has addressed difficult issues arising in elders' disputes or fiduciary litigation, including:

• Eccentricity is Not Incapacity
• PA Supreme Court reverses Superior Court AGAIN
• Documenting Testamentary Capacity
• Capacity to Make Will
• Probate Predators: Some fairy tales hit too close to home
• Can beneficiaries sue the writer of a will?
• Disinheritance and In Terrorem Clauses

In a sidebar, Patti selected eleven of her favorite blogs on related legal topics. Below those links appear the host of LexBlog's own blog links provided by that vendor to its users.

I am pleased that this PA EE&F Law Blog is found among her personal choices. I have added a link to her blog in the sidebar here, with respect.

I am certain that Patti will make great contributions online in her periodic commentaries on legal developments affecting Pennsylvania fiduciaries.

Wachovia Bank's Admonition & Award from OCC

On April 25, 2008, the U. S. Comptroller of the Currency, Administrator of National Banks, issued a News Release entitled "OCC Directs Wachovia to Make Restitution to Consumers Harmed by the Bank’s Relationships with Telemarketers and Payment Processors".

The Office of the Comptroller of the Currency (OCC) has entered into a settlement agreement with Wachovia Bank, National Association that directs the bank to make restitution to consumers harmed by its relationships with several telemarketers and third party payment processors.

The bank has agreed to make restitution to all consumers harmed who have not been previously reimbursed and who file claims under the processes set out in the settlement.

The estimated maximum amount of potential claims is $125 million; actual claims may result in restitution in a lesser amount. In addition to the restitution payments, the bank will also be required to contribute approximately $8.9 million to consumer education programs directed at the elderly, and to pay a $10 million civil money penalty to the U.S. Treasury.

Many of the consumers harmed by the third party telemarketers and payment processors have already received reimbursement from the payment processors and telemarketers. The settlement is intended to cover those who have not already received restitution. The payment processors and telemarketers involved were Payment Processing Center, LLC, FTN Promotions, Inc. dba Suntasia, Inc., Netchex Corp., and Your Money Access LLC, and related companies.

In reaching the settlement, which culminates an 18-month investigation, the OCC concluded that the bank engaged in unsafe or unsound practices during the course of its relationships with the payment processors and telemarketers, and unfair practices within the meaning of the Federal Trade Commission Act.

The OCC believes that thousands of consumers, many of whom were elderly, were harmed in connection with the payment processors’ and telemarketers’ activities at the bank, and that the bank profited from these activities in the form of fees collected from and balances maintained at the bank by the payment processors and telemarketers. Under the agreement, the bank will forfeit an amount equal to the fees it earned and donate the funds, plus an additional $5 million, to consumer education programs directed at the elderly. * * *

In resolving the matter with the OCC, the bank did not admit or deny wrongdoing. However, the settlement addresses practices that the OCC found objectionable.

Under the agreement with the OCC, Wachovia will now make restitution to consumers who file claims certifying that funds were withdrawn from their accounts without their authorization, or that they never received the products and services allegedly sold to them by the telemarketers. * * *

For details, you can read documents in PDF format provided by OCC's News Release, under "related links":

• Consent Order for a Civil Money Penalty
  
• Formal Agreement
  

This is a big settlement for the OCC, according to an article entitled "Wachovia Penalized $144 Million for Telemarketing Abuses -- Telemarketers preyed on thousands of senior citizens", posted on April 26, 2008, by Consumer Affairs, which had tracked complaints about Wachovia:

It's the second-biggest settlement ever for the Office of the Comptroller of the Currency (OCC), the agency that regulates national bank[s].

Wachovia is also facing at least two class-action lawsuits over its relationship with the telemarketers who allegedly harmed between 350,000 and 500,000 consumers. * * *

In the telemarketing case, OCC investigations said that from June 2003 to December 2006, the bank worked with several telemarketers and payment processors that obtained bank-account information over the phone from thousands of elderly and poor consumers by offering to sell them identify-theft certificates, discount travel vouchers and other questionable products or services. * * *

See also "Wachovia settles with OCC for $144M", posted on April 25, 2008, by the Philadelphia Business Journal:

"This situation was unacceptable and we regret it happened," Wachovia said in a statement.

"We will work diligently to provide restitution to consumers affected by the situation and to educate consumers. Wachovia is pleased to have resolved this matter with the OCC."

Wachovia spokeswoman Christy Phillips-Brown said the bank will no longer have account relationships with telemarketers. She added that there were a small number of employees involved in these activities.

The bank also pointed out that it was not directly involved in the telemarketing activity or soliciting of account information from consumers. But at the time of this incident, it provided banking services to some telemarketing companies and companies that processed payments for the telemarketers. * * *

Why is this settlement noteworthy for this Blog's readers? Because elderly folks often were the targets of the telemarketers and payment processors who had utilized the financial services of Wachovia Bank.

Indeed, the settlement requires Wachovia to fund some "consumer education programs directed at the elderly."

In its regulation of national banks, OCC seeks to reduce fraud at an institutional level; and in its outreach to the public, OCC seeks to educate consumers to reduce fraud at an individual level. For example, see its Consumer Protection advisories posted online, including:

• Avoiding Cashier's Check Fraud
• "Phishing"
• OCC Anti-Fraud Resources
• Protecting Yourself Against Identity Theft
• Unfair and Deceptive Practices
  

To advance these objectives, OCC then updated its regulatory guidance to all national banks regarding their dealings with "higher risk" customers, such as telemarketers and merchants who process payments.

In addition to the action described above, the OCC also has issued updated guidance to national banks regarding the need for effective due diligence, underwriting, and monitoring of entities that process payments for telemarketers and other merchants.

Certain merchants, such as telemarketers, pose a higher risk than other merchants and require additional due diligence and close monitoring by national banks.

The guidance notes that when a processor is interposed between the bank and the merchant, risks are heightened and appropriate controls must be implemented. For further details, see OCC Bulletin 2008-12.

Ironically, just two months prior to the settlement, OCC had recognized Wachovia Bank by an award, according to an article, dated February 28, 2008, posted on Wachovia's website, entitled "Wachovia Earns Outstanding CRA Rating":

Wachovia has earned an "Outstanding" Community Reinvestment Act (CRA) rating, the highest possible, from the Office of the Comptroller of the Currency (OCC). Only 16 percent of banks regulated by the OCC achieve the "Outstanding" rating.

Regulators from the OCC analyzed Wachovia's lending, investing and service activities for the period of July 1, 2003, to June 30, 2006. The merger of SouthTrust Corp. and Wachovia Corp. occurred during this time.

"I'm proud that Wachovia has earned continuous "Outstanding" CRA ratings, the highest rating possible, since 1995," said Ken Thompson, Wachovia Chairman and CEO.

"This achievement shows that reaching low- and moderate-income families and communities remains a priority for us, even as we expand into new markets." * * *

Even more ironic is the nearly-identical time period when OCC studied Wachovia Bank to arrive at its actions: one as an admonition (June, 2003 - December, 2006), and the other as an award (July, 2003 - June, 2006).