PA Courts, then Joe Paterno

What can we learn from the tortuous events of last week here in Central Pennsylvania, which unfolded following criminal charges filed against a former Penn State University coach alleged to have molested or assaulted many young boys?  See: Thirty-Third Investigating Grand Jury Presentment (Nov., 2011; 23 pp.; PDF).

Juvenile dependency proceedings can result from similar initial complaints, then investigations, of child neglect, abuse, or assault by a caretaker. The Presentment does not mention the word "dependency", but the common theme is protection of minors.

We cannot change past events.  People involved can be criticized, fired, imprisoned, and sued, as a judgment; but are those actions a healing "remedy"?

rem·e·dy  (rm-d)    n. pl. rem·e·dies
1. Something, such as medicine or therapy, that relieves pain, cures disease, or corrects a disorder.
2. Something that corrects an evil, fault, or error.
3. Law A legal order of preventing or redressing a wrong or enforcing a right. * * *

One commentator today recommended some remedies that could be initiated by someone at the center of the controversies.  In his article How Paterno can promote healing, posted by CNN (11/14/11), Prof. Jeffrey W. Pollard, of George Mason University (and a past president of both the American Board of Counseling Psychology and the American Academy of Counseling Psychology), made a suggestion -- to Joe Paterno:

Ironically, it is Paterno who is now uniquely able to help child sexual abuse victims summon the courage they need and to use this tragedy as a teachable moment that will benefit many. What should he do? * * *

Paterno is in a unique position to educate the nation that reporting child sexual abuse, and supporting those who have been harmed, often involves more courage than standing up to a blitzing all-American linebacker. 

Late in life, baseball legend Mickey Mantle admitted that his hard drinking had harmed his family. It also led to alcohol-induced cirrhosis of the liver, and Mantle's untimely death at age 63. In a Sports Illustrated cover story and other forums, Mantle urged others not to do what he had done and to get treatment for alcoholism. 

Through humility, and concern for others, it was Mantle's finest hour, on or off the field. 

Paterno's finest hour, which would facilitate healing for child sexual abuse victims, greater public education and more offenders' being locked up could still be ahead of him. 

More than any other play Paterno has had to call, this is clearly the most important one. But this is not a game: it is about children's lives. Let us hope and pray he gets it right.

If Paterno did so, he would be in good company -- Pennsylvania judges and the Commonwealth's court system.

A set of criminal prosecutions in 2008 arising from Luzerne County, PA, investigations, simply labeled thereafter by the media as the "Kids for Cash Scandal", is described in Wikipedia:

The "Cash for Kids" scandal unfolded in 2008 over judicial kickbacks at the Luzerne County Court of Common Pleas in Wilkes-Barre, Pennsylvania.

Two judges, President Judge Mark Ciavarella and Senior Judge Michael Conahan, were accused of accepting money from the co-owner and builder of two private, for-profit juvenile facilities, in return for contracting with the facilities and imposing harsh sentences on juveniles brought before their courts in order to ensure that the detention centers would be utilized.

Ciavarella and Conahan pleaded guilty on February 13, 2009, pursuant to a plea agreement * * *.  [Reparagraphed; footnotes omitted.]

Responses to that scandal were not limited to criminal prosecutions or civil lawsuits, but led into extensive study and then institutional changes, as represented by the Pennsylvania Courts' issuance of the Pennsylvania Dependency Benchbook (May, 2010):

The Pennsylvania Dependency Benchbook is a comprehensive reference guide designed to assist family court judges and child dependency practitioners in the process of helping abused and neglected children and their families. The Benchbook was written by Pennsylvania judges for Pennsylvania judges. * * *

The document is a comprehensive resource that combines Pennsylvania law, organized pragmatically to allow quick and efficient use, with a series of state and national best practices that will provide judges and practitioners, from the least to most experienced, with the best possible information to support children and families safely.

Read the Introductory Letter from Justice Max Baer

View The Benchbook Online

Download The Benchbook (PDF– 2.7 MB)

See: Press Release, Supreme Court Releases New Dependency Guide (07/23/10) which announced the "guide developed by Pennsylvania trial judges to aid lawyers and other judges in deciding whether, in juvenile dependency cases, a child should be removed from the home." See also:  Pennsylvania Dependency Benchbook Resource Companion.

The Benchbook was a product of those intensive investigations and self-examinations, which also resulted in creation of the Interbranch Commission on Juvenile Justice, in July, 2009, as noted in that Wikipedia article:

In the aftermath of the federal charges and defendant pleas, the Pennsylvania General Assembly moved to create a commission to investigate the entire set of circumstances surrounding the miscarriage of justice in Luzerne County. 

Sponsored by Representative Todd Eachus of Butler Township in Luzerne County, House Bill 1648 established the Interbranch Commission on Juvenile Justice in July 2009. The commission comprises 11 members, appointed from each branch of government in Pennsylvania, with four members chosen by the judiciary, four by the legislature and three by the governor. 

In signing the legislation on August 7, 2009, Governor Ed Rendell castigated Ciavarella and Conahan, saying they "violated the rights of as many as 6000 young people by denying them basic rights to counsel and handing down outrageously excessive sentences. The lives of these young people and their families were changed forever." 

Scheduled to meet a minimum of once per month, the commission was organized to investigate the actions of and damages caused by the two judges and review the state of the Luzerne County courts left in the wake of their tenures. The commission was given power of subpoena and was required to complete its work and report its recommendations and findings to the three branches of state government by May 31, 2010.

The Commission's Final Report, along with a Summary of Recommendations, was issued in May, 2010.

Awareness can be expanded, lessons can be learned, change can occur; and that is what we can remember, and how we can find inspiration.  

It is how we react to find a "remedy" to wrongs that defines our character and that alters the future.  That re-action can become our legacy and others' hope:

Mickey [Mantle] died in Dallas on August 13, 1995.  During the first Yankee home game after his death, Eddie Layton played “Somewhere Over the Rainbow” on the organ because Mickey had once told him it was his favorite song.

In his eulogy, sportscaster Bob Costas described Mickey Mantle  as “a fragile hero to whom we had an emotional attachment so strong and lasting that it defied logic.” 

He added: “In the last year of his life, Mickey Mantle, always so hard on himself, finally came to accept and appreciate the distinction between a role model and a hero. The first, he often was not. The second, he always will be. And, in the end, people got it.”  

-- Mickey Mantle: The Man Behind the Legend, posted by Self-Help Daily

Update: 11/15/11:

In "Joe Paterno legacy needs new final chapter" (11/14/11) posted on ESPN's Big Ten Blog, Brian Bennett argued that the "legacy of Paterno" could, and should, be altered by his future efforts against child abuse:

It's inarguable that JoePa has done a lot of good for a lot of people in his life. Now he must undertake his greatest challenge. He cannot let this be the final chapter of his story.

When Paterno emerges from his cocoon, he has only one choice for going forward. He should spend the rest of his time working for victims of child abuse. * * *

Paterno could travel around the state of Pennsylvania and across the country leading fundraisers and charity events, telling his story and letting everyone know how truly sorry he is.

He could star in public-service announcements and lead a movement to locate all the victims and give them whatever help they need. Paterno knows how to rally teams together, and he has led fundraising campaigns before. * * *

[H]e can spend the rest of his life atoning and doing whatever he can to ease the pain of those victims -- and working to make sure a similar situation never happens again. That's a much more fitting final act. * * *

Update:  07/23/12:

Coach Paterno's debilitating lung cancer leading to his death on January 22, 2012, at age 85, may have prevented him from embarking on a new crusade for awareness and remediation of child sexual abuse; but others here in Central Pennsylvania will do so as part of an educational mission.

Today, the National Collegiate Athletics Association (NCAA) issued program sanctions against, and required remedial actions by, the Pennsylvania State University arising from Sandusky-related child sex abuse crimes.  See:  NCAA's statement, Penn State failures draw unprecedented NCAA sanctions (07/23/12).

The NCAA's harsh judgment of Penn State and its clear warnings to other educational institutions, stands in contrast to the accepting and remorseful message, President's statement regarding NCAA decree, posted on the Penn  State website by its current leader, Rodney Erickson.

* * * Penn State accepts the penalties and corrective actions announced today by the NCAA. With today’s announcement and the action it requires of us, the University takes a significant step forward.

The NCAA ruling holds the University accountable for the failure of those in power to protect children and insists that all areas of the University community are held to the same high standards of honesty and integrity.

The NCAA also mandates that Penn State become a national leader to help victims of child sexual assault and to promote awareness across our nation. Specifically, the University will pay $12 million a year for the next five years into a special endowment created to fund programs for the detection, prevention and treatment of child abuse. This total of $60 million can never reduce the pain suffered by victims, but will help provide them hope and healing. * * *

It is important to know we are entering a new chapter at Penn State and making necessary changes. We must create a culture in which people are not afraid to speak up, management is not compartmentalized, all are expected to demonstrate the highest ethical standards, and the operating philosophy is open, collegial, and collaborative. * * *

The NCAA decree was entered voluntarily by Penn State before the announcement was made.  According to the NCAA's Statement:

Penn State fully cooperated with the NCAA on this examination of the issues and took decisive action in removing individuals in leadership who were culpable.

"The actions already taken by the new Penn State Board of Trustees chair Karen Peetz and Penn State President Rodney Erickson have demonstrated a strong desire and determination to take the steps necessary for Penn State to right these severe wrongs," said Emmert.

I said many months ago in my blog posting: "It is how we react to find a 'remedy' to wrongs that defines our character and that alters the future."

These rigorous pledged actions, in the process of fulfillment over not just the ensuing five years, but beyond, will emphasize values of caring over competition, will encourage us at all levels to be aware, responsive, and accountable, and thereby will protect helpless children from future abuse.

This is not punishment; it is a proper "remedy".  Such processes should occur not only at Penn State, or in Pennsylvania, but across America.

Elder Law Attorney as Family Counselor

On December 3, 2008, a Pennsylvania elder law attorney, Laurel Hartshorn, of Saxonburg, related a story on the PA Elder Law Section's listserv that highlighted the good work of elder law attorneys with aged clients and their families.

I post Laurel's account (as edited by me) with her permission.

Had a wonderful call today. A client's daughter called to thank me.

The daughter and her brother met with me two weeks ago to talk about their mother. Mom was failing quickly and they needed some advice.

One of the issues we discussed was medications.

At the Elder Law seminar in July, I attended the lecture by a blind geriatric doctor. He stressed how medications could get mixed up or have bad combinations. He also said that the changes might occur rapidly.

Since that seminar, I have paid particular attention to what caregivers and clients say about rapid changes in health or behavior. So I suggested that daughter talk to mom's pharmacist first and then the doctor.

The daughter went the next day and talked to the pharmacist. Lo and behold, there had been a substitution by the pharmacy in mom's medicines. The pharmacist told the daughter that she though it would be okay, since the drugs were in the same prescription family.

Apparently, however, mom could not tolerate the new drug, and the family did not know about the change.

Mom is back on the correct medication. She is doing much better and is regaining strength.

The family is so happy. They said they could not believe that such a great result could come from a conference with an attorney.

Funny how sometimes I give personal advice. It is just something that I do -- relate information that I had acquired. I might not realize how important non-legal suggestions may become until a client or a family benefits.

I want to thank the organizers of the July conference for bringing in the doctor to speak. At least in my practice, for those clients, his session may have had a life saving effect.

Such stories can be told by most elder law attorneys, who daily offer advice and counseling in the model of the old-style, small town "family lawyer" or "counselor-at-Law," with one objective: Help the aged client.

In an excellent article entitled "The Lawyer as Counselor Representing the Impaired Client" published in the American Bar Association's General Practice & Solo Magazine (10-11/2004), attorney Timothy David Edwards considered the lawyer's role as a "Counselor-at-Law" in the setting of an addiction affecting a client and creating a disability.

After his detailed analysis of situational factors, scientific developments, and attorney ethical principles, he concluded:

As lawyers, we are in a position to help people who trust us and seek us out for advice.

If we come to understand our client, the nature of addiction, and the appropriate sources of treatment, we are in a better position to provide useful guidance that the client is more likely to accept. By staying involved and providing a compassionate, critical mirror, we can truly make a difference.

This is a daunting responsibility, but it can provide lasting benefits to the impaired client.

This point was reinforced in a message once posted by Thomas J. Ryan, Esq., as President of the State Bar of Michigan, entitled "Attorney and Counselor at Law." He noted:

It is not an overstatement to say that in this way, as counselor, we use our skill in an effort to heal — not just the immediate problem presented to us, but the person as well.

In a very real sense, society benefits as well from this counselor approach. And we should not underestimate the professional fulfillment we derive from our privilege to serve in this capacity. * * *

An elder law lawyer functions daily as a "counselor-at-law" -- a role that is personally gratifying and professionally beneficial.

"Professional Felicity" of Lawyers

The Eighth Annual Goldberg Lecture Series will be held on Thursday, October 16, 2008, with Arthur T. Donato, Esq., of Media, PA, presenting on two topics -- "Can Justice Be Found in the USA Patriot Act?" and "The Key to Professional Felicity."

According to Merriam-Webster's online dictionary, "felicity" is a term that derives from the 14th Century, and means:

• 1 a: the quality or state of being happy; especially : great happiness (felicity)
• 1 b: an instance of happiness
• 2: something that causes happiness
• 3: a pleasing manner or quality especially in art or language (felicity with words)
• 4: an apt expression

Early in 2008, the Christian Science Monitor published two articles about happiness -- "Actually, happiness isn't within" (01/07/08) by Eric Weiner, and "Yes, you can be happy at work" (01/22/08) by Alexander Kjerulf.

Mr. Weiner writes that "some cultures are simply better at producing happy citizens than others."

The self-help industry has it wrong. Social scientists studying happiness (or subjective well-being, to use the academic term) have found that external factors – quality of government, social interactions and, to an extent, money – determine our happiness more than anything else.

In other words, happiness does not reside inside of you. Happiness is out there. * * *

Among other factors, he links happiness to trust:

Trust of others is another prerequisite for a happy nation, and that is a troubling fact for fans of American happiness.

In 1960, 58 percent of Americans felt most people could be trusted. By the 1990s, only 35 percent held that view.

Indeed, given our economic and military muscle, the US occupies a modest spot on the atlas of bliss. We are not as happy as we are wealthy. * * *

Mr. Kjerulf notes that "[t]he concept of happiness at work is alien to most American workplaces [but it] doesn't have to be that way." He considers the different approaches of most employers in America versus those in Europe, and then advises:

Make no mistake: Happiness at work is on the march. It just seems that many Americans are stuck a little harder in the "work is unpleasant – that's why we get paid to do it" mentality.

So my advice to American managers and employees is this: Make happiness at work your top priority. It will make work more fun, it will make you happier in life, and it will make you more successful.

Blogger Arnie Herz noted these articles, and applied these principles to lawyers in his posting, "The ongoing inquiry into lawyer happiness" (01/24/08), which contained many useful links.

As Sue Shellenbarger (pdf) writes in an article on Lawyers Opening Up About Depression, studies have found that about “19% of lawyers suffer depression at any given time, compared with 6.7% of the population as a whole.”

While some might question the exact correlation between career stresses and depression, it seems that it’s well accepted that the “practice of law, with constant conflict and billing pressures, can take a toll.” * * *

The basic orientation or mindset of lawyers itself can present a problem, according to Martin E. P. Seligman, Ph.D., Professor of Psychology at the University of Pennsylvania, Director of the Positive Psychology Network, and a former President of the American Psychological Association, who wrote an article, "Why Are Lawyers So Unhappy?"

He wrote that "Positive Psychology sees three principal causes of the demoralization among lawyers."

• First is pessimism, defined not in the colloquial sense (seeing the glass as half empty) but rather as the pessimistic explanatory style. * * *

• A second psychological factor that demoralizes lawyers, particularly junior ones, is low decision latitude in high-stress situations. Decision latitude refers to the number of choices one has – or, as it turns out, the choices one believes one has – on the job. * * *

• The deepest of all the psychological factors making lawyers unhappy is that American law is becoming increasingly a win-loss game. * * * American law has similarly migrated from being a practice in which good counsel about justice and fairness was the primary good to being a big business in which billable hours, take-no-prisoners victories, and the bottom line are now the principle ends. * * * [Emphasis added.]
  

In his authored handout for the second presentation, entitled "Even Happiness Isn't Enough -- The Key to Professional Felicity", Mr. Donato returns to the professional oath that each attorney swore upon bar admission for guidance in practice by individuals.

The presentations will begin at 3:00 pm and last until 5:00 pm at the Crowne Plaza Hotel, at 23 South Second Street, Harrisburg, PA.

The Goldberg Lecture Series in Law was established in 2000 in memory of Harrisburg lawyers Arthur L. Goldberg and Harry B. Goldberg. The annual presentation is sponsored by the Dauphin County Bar Foundation, with the assistance of the Dauphin County Bar Association, 213 North Front Street, Harrisburg, PA 17101. The law firm Goldberg Katzman, P.C. also supports the Goldberg Lecture Series.

Past annual presentations have featured topics of: effective trial court advocacy (2001); wrongful imprisonment (2002); presentation of the complex civil case (2003); the USA Patriot Act (2004); the role of an independent judiciary (2005); practical alternative dispute resolution (2006), and roles & functions of the Pennsylvania Attorney General's Office (2007).

Pursuant to Pennsylvania's Mandatory Continuing Legal Education Rules for Lawyers, this program will provide two hours of substantive credit for all participants who attend the entire session. Attendees for the second hour of presentations will receive "ethics" CLE credit. There will be no fee for the session.

To make an attendance reservation, click the graphic above for contact information.

Update: 10/15/08:

For another view about the happiness of lawyers in practice, see: "Va. Law’s Class of 1990: Happy in their Careers, but Less So in BigLaw" (10/15/08) posted on the American Bar Association Journal's Law News Now by Debra Cassens Weiss:

Reports of unhappy lawyers tell of problems with depression, alcoholism, divorce and suicide. But the reports appear to be exaggerated, if the Virginia School of Law’s 1990 graduating class is any guide.

A study finds the group is largely contented with their careers and their lives, albeit less so if they work for big law firms. The study (PDF) found 81 percent of grads responding to a 2007 survey were satisfied with their decision to become a lawyer, and 86 percent were satisfied with their lives more broadly.

Both men and women reported similar levels of satisfaction. * * *

"Liquid Trust" or "Living Trustworthiness"?

In the midst of the greatest economic crisis since the onset of The Great Depression, I pondered approaches, and now endorse one.

Since these problems are based in fear, which then create a lack of faith in business partners and among consumers, we need to restore trust, which can regenerate liquidity of funds and permit long-term workouts.

Could a simple solution be found in a bottle?

Liquid Trust is produced by Vero Labs. It is one of many such products based upon human pheromones, which are explained by Wikipedia:

A pheromone (from Greek φέρω phero "to bear" + ‘ορμόνη "hormone") is a chemical that triggers a natural behavioral response in another member of the same species.

There are alarm pheromones, food trail pheromones, sex pheromones, and many others that affect behavior or physiology. * * *

The vendor claims that its enhanced Liquid Trust can restore a feeling of trust, by employing, Oxytocin:

Liquid Trust is the world's first product that contains Oxytocin the hormone that controls the level of trust and security in people.

Scientists have proven that the hormone Oxytocin, is largely responsible for who we trust. If your boss, manager or employees have high levels of Oxytocin, you have a much better chance of getting a raise or promotion. * * *

When you spray Liquid Trust on yourself, you are gaining an instant competitive edge. Your manager and other co-workers will immediately feel strong bonds to you and your ideas.

This will actually help you get ahead because they will trust you and the work that you do. * * *

The original version of Liquid Trust was released in 2006, according to "Liquid Trust in a Bottle: New Oxytocin Product Has Hit the Market" (08/11/06) by Tori, posted by Associated Content.

Liquid Trust is a spray that comes in a little bottle that oddly resembles a nail polish bottle (in my opinion). * * *

According to their website, “There are different ways of increasing the Oxytocin levels in the people you interact with. Scientists say that simply touching someone who you are talking to, makes them produce Oxytocin.

When that happens, they start to form a very strong bond with you. They trust you." * * *

See also: "Human Pheromone Reviews - Liquid Trust" by Kyle Macrannell, posted on EZine Articles.

Many other marketed products contain pheromones, intending different results in human interactions. See: "Most effective 'Pheromone' Product Reviews" (07/02/08), which reviewed seven products (but not "Liquid Trust"). For accounts of users' personal experiences with various products, see: "Liquid Trust" on PheromoneTalk.

However, predictable effects of pheromones remain under research, according to "Pheromones, in context" (10/02/02), by Etienne Benson, posted by American Psychological Association Online. She interviewed knowledgeable scientists, who highlighted actual research on pheromones.

She concluded that scientific research can only suggest, but not predict, specific effects of pheromones on human behavior, and therefore cannot endorse vendors' promotional claims.

It can be concluded, however, that pheromones do have a purpose:

"In animals, [pheromones] are involved very strongly in care of offspring, in recognizing members of your social group, in recognizing family members," [Martha McClintock, PhD] says.

"In thinking about what the normal function might be, we know from the animal work that we need to think broadly in social terms and that the same compound might serve differently in different contexts." * * *

Our basic biological systems sought to protect us from threats, and to promote survival, through coded material transferred naturally and interpreted in feelings by each of us.

Now, on a grand scale, the activities of financial markets are characterized by anonymity, fungibility, separation, and complexity. No one but insiders can use the "smell test" that has preserved our race in other settings.

So, pheromones won't work to guide us through a financial crisis. Indeed, their use would mislead us and mask reality.

Instead, we must rely upon societal values that promote responsible financial behavior -- the age-old, religion-endorsed, standards of honesty and accountability, which I call "living trustworthiness."

Remember what "trust" means in social and personal contexts:

Trust is a relationship of reliance.

A trusted party is presumed to seek to fulfill policies, ethical codes, law and their previous promises.

Trust does not need to involve belief in the good character, vices, or morals of the other party. Persons engaged in a criminal activity usually trust each other to some extent. Also trust does not need to include an action that you and the other party are mutually engaged in.

Trust is a prediction of reliance on an action, based on what a party knows about the other party. Trust is a statement about what is otherwise unknown -- for example, because it is far away, cannot be verified, or is in the future. * * *

Recommitment by Americans to act with "living trustworthiness" is essential. An accompanying reworking of our laws mandating "living trustworthiness" in financial dealings will institutionalize this commitment. Such laws, with provisions for disclosure, notices, source reports, periodic revaluations, investor reviews, administrative regulation, and personal responsibility, must be a societal substitute for the pheromones that our bodies developed for the very same purposes -- feeling trust in others.

Can "living trustworthiness" on a large scale be implemented?

It could, if lawmakers, business leaders, and citizens would each act as the unnamed character in the classic poem by Edgar A. Guest, "It Couldn't Be Done."

Update: 09/22/08 @ 5:30 pm:

Of all the articles I've read about implementing reforms, this one, sent to me by an MAI-rated real estate appraiser, makes the most sense, using a nuts-and-bolts approach taught by experience.

I highly recommend reading "Restoring Confidence: Learning From the S&L Crisis To Address the Subprime Mortgage Problem" (PDF, 8 pages) by Thomas Inserra, a former Resolution Trust Corporation trustee.

PA Ethical Rules for Lawyers as Fiduciaries

On September 4, 2008, the Pennsylvania Supreme Court issued an Order (PDF, 1 page), with Annexed Rule Changes (PDF, 15 pages), amending Rule 221 of the Pennsylvania Rules of Disciplinary Enforcement, and also Rule 1.15 of the Pennsylvania Rules of Professional Conduct, regarding, respectively, "Funds of clients and third persons" and "Safekeeping property", as both affect lawyers acting as fiduciaries.

The Order and the amendments will be published officially in the Pennsylvania Bulletin on September 20, 2008, at 38 Pa.B. 5157, and therefore will take effect on that date.

The amendments introduce new defined terms under those rules, including Rule 1.15 Funds:

Rule 1.15 Funds are funds which an attorney receives from a client or third person in connection with a client-lawyer relationship, or as an escrow agent, settlement agent or representative payee, or as a Fiduciary, or receives as an agent, having been designated as such by a client or having been so selected as a result of a client-lawyer relationship or the attorney's status as such. * * *

Another defined term is Fiduciary Funds: "Rule 1.15 Funds which an attorney holds as a Fiduciary."

For purposes of these rules, Fiduciary is "a lawyer acting as a personal representative, guardian, conservator, receiver, trustee, agent under a durable power of attorney, or other similar position."

The revised Comment No. 1 to Rule 1.15 now integrates those defined terms and summarizes basic principles applicable to a lawyer who also acts as a Fiduciary:

A lawyer should hold property of others with the care required of a professional fiduciary.

The obligations of a lawyer under this Rule apply when the lawyer has come into possession of property of clients or third persons because the lawyer is acting or has acted as a lawyer in a client-lawyer relationship, or when the lawyer is acting as a Fiduciary, or as an escrow agent, a settlement agent or a representative payee, or as an agent, having been designated as such by a client or having been so selected as a result of a client-lawyer relationship or the lawyer's status as such.

Securities should be appropriately safeguarded.

All property which is the property of clients or third persons, including prospective clients, must be kept separate from the lawyer's business and personal property and, if Rule 1.15 Funds, in one or more Trust Accounts, or, if a Fiduciary entrustment, in an investment or account authorized by applicable law or a governing instrument.

The responsibility for identifying an account as a Trust Account shall be that of the lawyer in whose name the account is held. Whenever a lawyer holds Rule 1.15 Funds, the lawyer must maintain at least two accounts: one in which those funds are held and another in which the lawyer's own funds may be held. [Reparagraphing applied.]

Previously, the Court had published proposals for amendments to these rules of conduct or discipline applicable to attorneys who also hold property as fiduciaries. Such proposals generated impassioned comments, even criticisms, from members of the probate & trust sections of the Pennsylvania Bar Association, the Allegheny County Bar Association, and the Philadelphia Bar Association.

The Court's final rule amendments appear to have addressed those concerns, as reflected in Comment No. 5:

This Rule is not intended to change the substantive law or procedural rules that govern Fiduciary Funds or property with the exception of the specific recordkeeping requirements, segregation of Fiduciary Funds or property, and where Fiduciary Funds are kept in an Eligible Institution, overdraft reporting pursuant to Pa.R.D.E. 221, to the extent that those requirements underscore or supplement the requirements regarding Fiduciary Funds or property.

The goal of the amendments is to require all attorneys to keep appropriate records of entrusted funds, segregate such funds from the attorney's funds, account to those with an interest in the funds, and distribute the funds when due, and to permit the disciplinary system to respond when lawyers fail to comply with these standards. [Reparagraphing applied.]

Furthermore, Comment No. 6 makes clear that these rule amendments do not apply where a lawyer does not possess or control fiduciary property, or where governing instruments or substantive law provide differently:

This Rule does not require a Fiduciary to liquidate entrusted investments or investments made in accordance with applicable law or a governing instrument or to transfer non-income producing fiduciary account balances to an IOLTA Account.

This Rule does not prohibit a Fiduciary from making an investment in accordance with applicable law or a governing instrument.

Funds which are controlled by a non-lawyer professional co-fiduciary shall not be considered to be Rule 1.15 Funds for the purposes of this Rule. [Reparagraphing applied.]

I thank Daniel B. Evans, Esq., of Philadelphia, PA, for drawing these rule changes to our attention before actual publication.

Proposed Fed Regs on Retirement Plans

On August 21, 2008, the U.S. Department of Labor issued a Press Release entitled "U.S. Labor Department proposes rules on investment advice exemption for 401(k) plans and IRAs" that announced publication the next day of proposed regulations to govern rendering of investment advice for 401(k) and IRA plans.

The U.S. Department of Labor today announced publication of two proposed rules under the Pension Protection Act (PPA) to make investment advice more accessible for millions of Americans in 401(k) type plans and individual retirement accounts (IRAs). * * *

"These proposals would give workers greater access to investment advice so that they are better equipped to manage and monitor their 401(k) plans and Individual Retirement Accounts," said U.S. Secretary of Labor Elaine L. Chao.

The PPA amended the Employee Retirement Income Security Act (ERISA) by adding a new prohibited transaction exemption that allows greater flexibility for participants of 401(k) plans and IRAs to obtain investment advice.

One of the ways in which investment advice may be given under the exemption is through the use of a computer model certified as unbiased, the other is through an adviser compensated on a "level-fee" basis.

Several other requirements also must be satisfied, including disclosure of fees the adviser is to receive. * * *

The proposed regulations were published in the Federal Register on August 22, 2008 (Volume 73, Number 164) by the Employee Benefits Security Administration as document 49896–49923 [E8–19272] entitled Investment Advice; Participants and Beneficiaries (also available in PDF format as amendments to 29 CFR Parts 2550, 29 pages).

This is the "Summary" of the proposed regulations, as contained in the published notice:

This document contains proposed regulations implementing the provisions of the statutory exemption set forth in sections 408(b)(14) and 408(g) of the Employee Retirement Income Security Act, as amended (ERISA or the Act), and parallel provisions in the Internal Revenue Code of 1986, as amended (Code), relating to the provision of investment advice described in the Act by a fiduciary adviser to participants and beneficiaries in participant-directed individual account plans, such as 401(k) plans, and beneficiaries of individual retirement accounts (and certain similar plans).

Section 408(b)(14) provides an exemption from certain prohibited transaction provisions in ERISA with respect to the provision of investment advice, the investment transaction entered into pursuant to the advice, and the direct or indirect receipt of fees or other compensation by the fiduciary adviser or an affiliate in connection with the provision of advice or the transaction pursuant to the advice.

Section 408(g) describes the conditions under which the investment advice related transactions are exempt.

Upon adoption, the regulations will affect sponsors, fiduciaries, participants and beneficiaries of participant-directed individual account plans, as well as providers of investment and investment advice-related services to such plans.

The Press Release solicited comments on the proposed regulations, which are due by October 6, 2008:

Written comments on the investment advice proposals should be addressed to the Office of Regulations and Interpretation, Employee Benefits Security Administration, Room N-5665, U. S. Department of Labor, 200 Constitution Ave., NW, Washington, D.C. 20210, Attn: Investment Advice Regulations.

The public also may submit comments electronically by email to e-ori@dol.gov, or through the federal e-rulemaking portal at www.regulations.gov.

On September 8, 2008, Blaine F. Aikin, the President and CEO of Fiduciary 360 LP, in Sewickley, PA, expressed concerns about the proposed regulations in an article entitled "Can brokers be fiduciaries?" posted on Investment News.

He evaluated the new DOL guidelines as "a problematic development."

Judging by newly proposed regulations on investment advice, it looks as if the Department of Labor is trying hard to engineer a sharp turn from the course established by Congress. * * *

[T]he DOL simultaneously proposed a new class exemption to allow commission-based registered representatives to become fiduciary advisers and give advice to participants and beneficiaries of participant-directed retirement plans and individual retirement accounts.

The new class exemption is a very big change that the DOL contended will "increase the variety of investment advice arrangements that are available and potentially lower the cost and promote the marketing of such arrangements, to the benefit of participants." * * *

The DOL has seized on the opportunity created by the act to expand on the idea that most investors need advice. It chose to do so in two ways.

First, it would extend the regulations to address advice given to IRA account holders.

Second, it proposed to allow conflicted financial services reps to give advice in competition with the fiduciary advisers contemplated under the act. * * *

Aikin noted that the first component is consistent with Congressional intention, but the second is not. He concluded: "Whether investors will in fact benefit hinges upon whether all fiduciary advisers will be able to adapt to the new rules, and the fiduciary standard of care they are designed to promote, quickly and effectively."

For Aikin's more generic recommendations regarding a fiduciary's conduct in an investment setting, see: "A warning light for fiduciaries -- What you can do about the increasing risk of litigation from disgruntled investor" (06/09/08).

"A nickel isn't worth a dime today."

-- Yogi Berra, quoted in "Yogi Berra's 7 secrets to building wealth" (01/02/08) by Karen Datko posted on MSN Money

A Jewish Approach to End-of-Life

On Sunday, September 14, 2008, from 9 a.m. to 3 p.m., Yeshiva University, in New York City, will conduct a seminar entitled "The Sanctity of Life: A Jewish Approach to End of Life Challenges Adult and Pediatric End of Life Challenges."

This is the purpose of the conference:

The conference will provide a unique opportunity to interact with rabbis and physicians who are leaders in this area of medical ethics.

By enriching our education, raising our awareness, and deepening our sensitivities, the YU Student Medical Ethics Society hopes to promote continued discussion, thus enhancing the community’s ability to deal with these issues in an effective manner that holds true to the highest moral standard. * * *

The conference speakers will address the medical, psychological, social, & religious (under Jewish law) issues arising in end-of-life situations:

With expert speakers representing the medical and rabbinical professions, the conference will address the wide range of medical, ethical, psychosocial and halachic (Jewish legal) issues that arise at the end of life.

The opening plenary session of the day will begin with a general introduction to the medical background and ethical issues that are pertinent to adult terminal illness.

Presented by leading physicians, ethicists, and rabbinic authorities with extensive experience, this session will explore how medicine and halacha interact in the modern hospital setting, and will highlight some of the most pressing issues that have come up in recent cases. * * *

I highlight this conference, since it studies end-of-life issues from this religion's viewpoint:

• Pediatric end-of-life challenges
• Adult end-of-life challenges
• Health care proxy
• Assisted suicide and the value of life
• Hospice care
• Pain management

Further event information and registration arrangements are available online here.

The need for decisions at the end-of-life, is real; and such decisions should be made with reference to the patient's beliefs. Otherwise, the decisions rely more on medical possibilities, however fruitless, and familial expectations, however hopeless.

For one physician's perspective on the need for reference to concerns other than medical diagnoses & prognoses, read "As death draws near, patients and families face agonizing decisions [in] End-of-life care", by Dr. Patrick Neustatter, a family practitioner in North Stafford, Virginia, posted by The Free Lance-Star (Fredricksburg, VA) on August 24, 2008.

He related that "deciding whether to fight for life at all costs, or prepare for death, is a heart-wrenching decision some patients face."

It's bad enough to be dying of terminal cancer, but when your medical specialists are pulling you in opposite directions, advising conflicting treatment plans, it generates more anguish and requires the patient and the family to make some heartfelt decisions.

A patient I'll call Mr. X already went through surgery and radiation therapy for his cancer. Now, unfortunately, the biopsy of the lump that recently appeared shows recurrence.

He is in the care of an enthusiastic, dare I say gung-ho, surgeon who is urging him to have surgery. But his oncologist, together with his daughter, is asking him: "Is another five years of life, but in a nursing home with a feeding tube, really what you want?"

In cases like these, quantity is pitted against quality. Stay alive at any cost, or prepare for the inevitable sooner with less intervention? It's a decision that can put a terrible strain on the bravest patient and most devoted of families and medical staff. * * *

In concluding with his recommendation for patients to prepare, in advance, a "living will" to address medical decision-making, Dr. Neustatter referenced the need to implement the patient's wishes, not rely upon medical possibilities regardless of pain:

At church the other morning, one of the congregants told of her father-in-law just having finally died after a long illness.

She described the heartache her husband had gone through arguing with the other siblings over the whole business, and closed with the question, "Where's the Hemlock Society -- or whatever it's called now -- so my death is not like that?"

The principle of making some preparation for your death is a sound one.

With the aid of a living will, in which you can spell out what medical efforts you do or don't want taken in your final days, you may save untold heartache amongst the family members -- not to mention possibly massive savings on futile medical expenses.

The conference at Yeshiva University will address the concern that "my death is not like that" from a Jewish perspective.

Personal Health Records Promoted, Pt. II

The U.S. Government and specialized technology vendors are not the only ones interested in creating personal health care records for consumers. Technology giants are too.

As evidenced in yesterday's PA EE&F Law Blog posting "Personal Health Records Promoted, Pt. I", the government's efforts, through the U. S. Department of Health and Human Services, to institute uniform health information technology, have been accelerating from beginnings in this decade, until now. For example, see: "HHS Awards Contracts to Develop Nationwide Health Information Network" (11/10/05), and "HHS awards $22.5M in contracts to health info exchanges" (10/20/07).

In 2008, major technology vendors expanded the market, seeking involvement with your personal health records.

On February 18, 2008, Reuters reported "Google unveils personal medical record service":

Google Inc. has unveiled a plan to help U.S. patients gain control of their medical records and is working with doctors' groups, pharmacies and labs to help them securely share sensitive health data. Google said it has signed deals with hospitals and companies including medical tester Quest Diagnostics Inc, health insurer Aetna Inc, Walgreens and Walmart Stores Inc pharmacies.

The password-protected Web service stores health records on Google computers, with a medical services directory that lets users import doctors' records, drug history and test results. Google aims to foster sharing of information between these services, but keep control in patients' hands, allowing them to schedule appointments or refill prescriptions, for example. * * *

Google Health is described on its website, and also in a blog posting "Google Health, a first look" (02/28/08) by Marissa Mayer, who noted:

Google Health aims to solve an urgent need that dovetails with our overall mission of organizing patient information and making it accessible and useful.

Through our health offering, our users will be empowered to collect, store, and manage their own medical records online. * * *

Microsoft Corporation, with its HealthVault service introduced in 2007 and significantly upgraded in 2008, also focuses on personal health records.

Microsoft® HealthVault™ is designed to put you in control of your health information.

A free HealthVault account helps you collect, store and share information with family members and gives you a choice of applications and devices to help manage your fitness, diet and health.

However, according to "Microsoft HealthVault is nothing like Google Health" (02/26/08) by Dana Blankenhorn, posted on ZDNet, "Microsoft HealthVault is a platform for sharing medical data [and] Google Health could, if it chose, become a HealthVault application."

For examples of organizations working with Microsoft on compatible services, see: Press Release, "New Microsoft HealthVault Applications and Devices Unveiled" (06/10/08), which announced "[m]ore than 40 new HealthVault-enabled applications and devices introduced to improve patient-doctor data sharing, fitness, wellness and family health management."

For the past two decades, small software vendors advocated entry of personal health records into your personal computer or personal digital assistant, and offered stand-alone products. See: "Choosing Family Health Records Software".

Such private databases did not present the significant issues arising due to transportable, shared, but private, medical records, as expansively reviewed in "Biomedical Informatics: Social Issues" posted by the University of Arizona:

Biomedical Informatics have evolved through time and have always carried with them social, privacy, and security issues.

The notion of privacy is not a new concept and is the core of the patient-physican relationship. Ethics and biopiracy have become hot topics especially since IT has given users more tools and flexibility to work-around the system.

Other considerations such as costs, affordability, and accessibility to biomedical informatics applications must be examined. Web 2.0 technologies are favoring the use of online communities for support group purposes.

Despite all the advances biomedical informatics are experiencing, consumers and patients are still concerned with the privacy of their biomedical data; those that are most concerned are minorities or patients with terminal illnesses. * * *

Nevertheless, another technological revolution, powered by economics and politics, is underway. I think it likely that, in ten years, the way we access our personal health records will more resemble online banking, than the present papers in a medical chart.

Cremation Society Settlement

On April 14, 2008, the Pennsylvania Funeral Directors Association and the Cremation Society of Pennsylvania, Inc. announced a settlement in an ongoing dispute regarding the rendering of cremation services by CSP in Pennsylvania.

The dispute traces back to complaints filed with regulators in 1999. In the absence of any regulatory action, litigation later was filed by private parties -- first by an individual funeral home operator, and then by PFDA, against CSP.

According to an article entitled "Scottdale funeral director seeks to shut down Cremation Society", by Paul Peirce, published in the Pittsburgh Tribune-Review on July 22, 2004, the first litigation questioned CSP's legal license to market and perform cremation services.

A Harrisburg business has been sued by a Westmoreland County funeral director who contends the self-proclaimed "oldest and largest cremation provider in Pennsylvania" is actually an unlicensed funeral facility that has been operating illegally for more than 22 years.

Scottdale funeral director Robert B. Ferguson Jr. is asking Common Pleas Court Judge William J. Ober for an injunction to shut down the Cremation Society of Pennsylvania Inc. because it is not operated by a licensed funeral director as required under the state's Funeral Directors Law.

"Without question, the society has been working in the field of funeral directing, but it is not a licensed facility as required under state law. I feel this lawsuit is crucial to the integrity of all proper, legally licensed companies which are in the business of funeral directing," Ferguson said.

Ferguson said the Dauphin County company claims on its Web site that it has more than 28,000 pre-arranged cremation contracts statewide.

"We feel all 28,000 contracts are illegal because the Cremation Society of Pennsylvania is not a properly licensed business," Ferguson said. "What really gets me are its ads that state, 'Why call a funeral home when you can call us.'"

Ferguson said he opted to pursue legal action against the firm because the state board of funeral directors has failed to take a decisive action on a complaint he originally filed with the regulating agency in 1999. The state funeral directors' licensing board falls under the Department of State. * * *

The initial lawsuit was followed by a second one filed in August, 2004, by a member organization of some Pennsylvania funeral directors: "PFDA filed suit in August against the Cremation Society of Pennsylvania, the Veterans Cremation Society and Dale A. Auer, owner of the two companies". See: "PA Funeral Directors Association Assists Consumers to Guard against Fraud", posted August 31, 2004.

PFDA and CSP appear to have settled the dispute finally, specifically addressing the "pre-need" cremation packages sold by CSP, as described in the Press Release, dated April 14, 2008, issued by PFDA, entitled "The Cremation Society of Pennsylvania Agrees To Cease Marketing Of Pre-Need Cremation Services -- Legal Settlement Agreement Recently Reached".

The parties have agreed to publish a notice to members of the Cremation Society who have executed pre-need cremation contracts advising the members of the opportunity to negotiate a new pre-need cremation contract with a licensed funeral director if they choose to do so.

If a member does not choose to negotiate a new contract, the existing pre-need contract with the Cremation Society will be performed by Auer Memorial Home and Cremation Services, Inc.

In the event a new pre-need cremation contract is executed by a member, the Cremation Society of Pennsylvania will take the appropriate actions to change the terms of the pre-need cremation contract and will take all steps necessary to transfer all funds, plus interest to the selected funeral home.

The PFDA Press Release concluded with this advice: "If consumers have any questions, they can contact Kathleen K. Ryan, Esq. at the Pennsylvania Funeral Directors Association by calling 1-800-692-6068."

I viewed the "Cremation" webpage (updated 05/08/08) of Auer Memorial Home and Cremation Services, Inc., but did not find reference to this settlement. However, its "About Us" webpage notes the connection between CSP and Auer:

Auer Memorial Home and Cremation Service, Inc. has entered into a service agreement with the Cremation Society of Pennsylvania, the state's oldest and largest provider of direct cremation.

Currently, there are nearly 28,000 individuals pre-arranged with our organization.

The Cremation Society of Pennsylvania, who performs most of the cremations for Auer Memorial Home and Cremation Service, Inc., utilizes a Ten Step Identification Process to guarantee the integrity of the cremated remains. * * *

Query: Given the announced settlement, isn't that last statement incorrect, as reversing the roles of CSP and Auer?

Update: 05/12/08:

In my original posting I had stated that, on July 12, 2005, the Pennsylvania State Board of Funeral Directors imposed regulatory sanctions in a proceeding against CSP. I was made aware this afternoon that CSP was never the subject of regulatory sanction over this issue. Thus, my statement was incorrect. Another cremation society with a similar name, but not CSP, was involved in such an action.

I revised the posting above by removal of that incorrect statement and of any references to regulatory action.