COVID-19… A Surreal World

Just some thoughts during this time of national and world crisis:

The two working adults in our house are fortunate that we are both able to work from home. In addition I have my father, aged 95, staying with us pending the end of Pennsylvania’s stay at home order.

Like any other event, there is too much corporatization. Television overflowing with “helpful” ads and I’ve received e-mails from service providers that I’ve never used; consultants, court reporting firms, insurance companies and the like as well as “we are here to help you” e-mails from credit card firms, airlines, etc. Anyone of normal intelligence knows where to contact a firm, person or agency if a question arises.

Both the Federal and Pennsylvania government are enacting economic stimulus programs. See the link below to calculate how much you and your family will be eligible to receive:

Stimulus Check Calculator

While we are stuck at home, the internet provides a breathtaking array of outlets. Museums, art galleries, parks and other activities are available online.

Fender musical instruments has offered 3 months of free guitar lessons online to the first 100,000 people interested. So I signed up. By not having to commute, I’m saving an hour to an hour and a half every day, so I’m taking guitar lessons and have pulled my ukulele and Fender bass out to brush considerable rust from my musical skills.

I’m old enough to remember the Kennedy assasination (I was in 6th grade) and naturally the events of September 11th. With these crises, there was a period of shock and adjustment but the trauma as closed ended. On September 11th, within a few days, we realized that the attack had ended, and we could grieve, join together and move on. With COVID-19 currently an open-ended disaster, we do not know when we will return to anything approaching normal. This disaster could be more stressful that anything before, for that reason it is important to help each other. We try to patronize local businesses for take out meals. This is not a great time to be a small business. Americans persevere. We shall do so.

All that being said, I’m available at all times to respond to questions, whether or not you are an existing client. My contact information is:

Cell Phone: (412) 600-2676
E-mail: aopsitnick@opsitnickslaw.com

Allan Opsitnick

VA Healthcare System: My Thoughts

In recent months, tragic intentional deaths of VA hospital patients was revealed at the VA hospital in Clarksburg, WV. Three hospitalized vets were killed. No one has yet been charged criminally. Clearly these are criminal actions as non-insulin dependent patients were injected with insulin, killing them.

The VA healthcare system, the above situation aside, has been assailed for poor care for years. I can only comment on a tiny portion of the VA healthcare system interaction with my family.

My dad Joe, who is 95 and a World War II Navy vet, obtains most of his care through one of two VA healthcare facilities in Pittsburgh. Beginning in September of 2018, dad has sustained some circulatory problems requiring four surgical procedures and three overnight stays in the hospital as well as wound treatments.

Dad’s care has been excellent. The physicians are top notch. Perhaps that is as the primary VA hospital in Pittsburgh is adjacent to the University of Pittsburgh campus and in walking distance to the University of Pittsburgh medical school. The same vascular surgeons that render care to my dad at Pittsburgh VA also provide service for the University of Pittsburgh Medical Center hospitals. We are fortunate in this regard.

However, the permanent, non-rotating VA staff; nurses, technicians, administrative and support personnel, have been wonderful to my dad to our family. These folks care. They spend time with my dad at his appointments and when he has been an inpatient. They inquire as to his military service, his current life, and whether or not he needs anything. They provide answers to the questions raised by my sister and me, resulting in a feeling of quality care, with no stone left unturned and leaving my dad in the best possible position. Currently, his circulatory issues are resolved.

There are no open wounds. I know at his age this can change in a moment.

The Pittsburgh VA hospitals are a tiny cog in the VA health system wheel. But based on our experience, I salute those that are treating my dad with expertise and respect.

– Allan Opsitnick

I Was Just Scammed

As I was the only one in office this morning, I answered the phone. A professional female voice said, “This is Grace from hearing administration, can you hear me?” Of course, but stupidly, I answered “yes” and then the call ended. I then realized that I was scammed with a spam phone call so that there is a recording of my voice saying only “yes.”

In the last few years, such scams have been used to then authorize purchases and services, without any authorization.

It took me only seconds to realize what had happened. By then it was too late. My string of curses (so glad that no one else was around at this time) did nothing to rectify. We are contacting our telephone provider to report this but it is unlikely that anything will happen to cure this.

Ignoring the advice of many agencies to never, ever, say yes on a telephone call, unless you know the caller. I was scammed.

Our advertisement, on the Carnival of Randomness podcast, where we are a sponsor, stresses that we are under attack and that nameless and faceless entities are taking from you and stealing from you. The truth of this is reinforced continuously.

Don’t make the same mistake that I just did.

– Allan Opsitnick

Goodbye to Friend and Family

This past summer took a personal toll, with the loss of a dear friend and my sister-in-law. Each person’s life contained legal ramifications.

In July, Mark Wolosik, a decades long friend and colleague, died suddenly. Mark was 65 and spent his entire work career in the Allegheny County Elections Department, the last 27 as Director. Mark retired in September, 2018 and was enjoying his all too brief retirement. Mark started his elections career doing tasks such as pushing the heavy mechanical voting machines that were used in the 1970s and went on to experience over 100 elections. In retirement, he was a consultant with Allegheny County at the time of his death, as part of a committee selecting new voting systems, stressing cyber-security.

While the elections process has been undermined in recent years, and fears of foreign intervention and hacking exist, Mark did everything in his power to ensure full and fair elections. I was Mark’s solicitor for his entire tenure as Director and state, without question, that Mark dedicated every working and waking hour to “getting it right.” Our elector system succeeds because of people like Mark who are dedicated to accurate, nonpartisan elections administration.

Mark was an example of the best in government.

In August, my sister-in-law, Karen Kmetz succumbed at age 55, after an 11 year struggle with Stage IV (metastatic) breast cancer, beating tremendously long odds to survive. Karen’s longevity and largely good quality of life were due to dedicated and selfless support from family, friends and co-workers, but was also aided by comprehensive medical insurance coverage, which enabled Karen to seek top notch medical care, with treatment, including surgeries and chemotherapy. At a time when many people do not have comprehensive medical insurance coverage, Karen was fortunate in that regard.

Additionally, Karen was involved and benefited from organizations and programs that are funded by tax exempt contributions. These programs, such as Camp Raising Spirits, a Pittsburgh based annual retreat for adults with cancer, sponsored by the Greater Pittsburgh Chapter of the Oncology Nursing Society, exist because of contributions, without government funding. Similar programs improve the quality of life for individuals of varying needs.

Consider those tax exempt charities and fund them for their good work, so that people like Karen can flourish despite illness or disability. Karen’s joy of life will be forever missed.

– Allan Opsitnick

Independence Day Thoughts

The United States of America is 243 years old. Recall that our Declaration of Independence mentions unalienable Rights, including Life, Liberty and the pursuit of Happiness. Our Constitution, enacted in 1787 begins with the words “We the People of the United States………….”

No mention is made in the beginning of these documents regarding governments, corporations, media, and social media. To me, the above language is striking as it both defines our nation as a collection of People and provides certain rights. Implicit is that We the People have an obligation to be educated and informed, to acquaint ourselves with our neighbors, coworkers and others as we are all identified as “We the People.” A social obligation exists to assert and protect our rights and to do the same for others. Consideration of issues that impact us all require time and effort to be true Americans so that our country and our society not be taken from us.

More specifically, we have an obligation to maximize our pursuit of happiness and our liberty. Rather than empty words, effort is required to call out those entities that do not function for the common good. The vast majority of us want to exercise our inalienable rights properly and fully. A small minority encourage evil. At times it seems as we disregard our education and intellect and fall prey to a lack of due diligence to seek the truth on issues that affect We the People. Has technology improved our intellects or has it numbed us?

The Battle of Gettysburg was fought on these days in 1863. Take a moment to locate and read letters from soldiers, that demonstrate an ability to communicate in writing, better than today’s norm. While some of these letters are from well educated people most are written by young, less educated persons but all such letters demonstrate passion, intellect and an ability to communicate.

We the People are imperfect beings. Our history consists of many negative events as well as positive ones. Negatives cannot be ignored, nor erased from our history. To the contrary, we must be aware of the human failings of our predecessors and strive to be better citizens and persons. We the People owe it to Americans past, present and future to fulfill the rights and responsibilities of our Declaration of Independence and our Constitution.

– Allan Opsitnick

Driving Into the Future… Maybe

As technology has progressed, even in the past two decades, there have been some stunning advancements in virtually every field. One that is on the verge of breaking free is the self-driving motor vehicle.

Honestly, who hasn’t thought about the idea of a car that could drive itself? Simply plug in a destination and the car gets you there without you having to do anything. You could relax, read a book, watch a movie or even take a nap and make it to your destination.

However, there are potential downfalls and legal issues that come with the idea of the self-driving car. In a “normal” car, the driver is held responsible for actions that happen behind the wheel and that is why we’re required to purchase insurance. However, with self driving vehicles, who is held responsible in the event of an accident? If the driver is not physically in control of the car, then who is to blame? And who would hold the insurance? The buyer? The manufacturer? Some government created body?

Another potential issue is a computer failure in the car. While mechanical and electronic failures can occur with operator driven cars, self driving technology is far more advanced and comples. If the self driving system gets a bug, this could lead to catastrophic consequences. In essence, the driver is at the mercy of the computer that is running their car, which has been programmed by someone to make decisions based on a series of data that it processes during the drive. Also concerning is what happens if an owner of a self driving vehicle attempts to repair or alter the vehicle himself or doesn’t bring it back to the dealership for a required update? Who would be liable in that case?

Just looking at a few of these possibilities, the idea of a self-driving car is no doubt an exciting thing. And on paper, it could definitely make life a lot easier for people. However, I don’t believe that technology has quite gotten to the point to make it feasible right now. Human drivers are not perfect, however, the human factor is a known risk. Self driving technology is not.

– Zach Opsitnick

Wait! YOU are suing ME?

In October, 2017, a mass killing occurred in Las Vegas, as a maniacal guest, Stephan Paddock, at the Mandalay Bay Hotel and Casino opened fire from a 32nd floor suite, raining bullets on a nearby crowd of concert goers. 58 were killed and about 500 were wounded.

Lawsuits were filed in some cases, with many other suits planned in others. The possible financial exposure to MGM Resorts International, owners of Mandalay Bay is in the hundreds of millions of dollars.

Unexpectedly, in mid 2018, MGM brought suit in Federal Court in Las Vegas against over 1000 persons who have either filed suit or are potential plaintiffs. This suit, called a Complaint for Declaratory Judgment, does not seek monetary damages, against the class of plaintiffs and potential plaintiffs, but seeks a court ruling in MGM’s favor declaring that MGM has no liability in this tragic, bloody event.

MGM’s strategy is to invoke a federal law, enacted in 2002, entitled the Support Anti-Terrorism by Fostering Effective Technologies or Safety Act, which purportedly limits liabilities and therefore claims for death, injuries and damages against MGM. As the MGM Complaint in Declaratory Judgment states:

In the case of Paddock’s mass attack, certified technologies or services were deployed by a professional security company, Contemporary Services Corporation (CSC), which was employed as the Security Vendor for the Route 91 concert. As alleged in more detail below, Paddock’s mass attack meets the requirements of the SAFETY Act as set forth in the statute and the Regulations promulgated by the Department of Homeland Security. MGM contends that this attack was a “mass attack” under the law, which law was designed to apply to terrorism.

As CSC was in fact certified as a security agency, for the concert where concertgoers were killed and wounded, MGM requests that all suits be transferred to or initiated in Federal Court and not in any state court. Also, MGM contends that the law limits liability claims only to the security agency and not the company that hires the security agency.

MGM is asking the Federal Court, then, that all claims against MGM be filed in Federal Court and then dismissed as barred by the Anti-Terrorism Act, which if granted, would free MGM from any legal responsibility for the slaughter.
The litigation is continuing and mediation sessions have been scheduled. Mediation is court supervised settlement discussions. You will be kept abreast of developments.

The impact of the family of a deceased loved one, or a person who has been injured as a result of this shooting cannot be comprehended, as these people are now defendants in a suit by the huge, faceless, wealthy corporation that may well have been a cause of this carnage.

Allan Opsitnick

Forty Years An Attorney

I’ve been practicing law for 40 years. Difficult to believe. When I began my practice, I was childless. Now I have two adult kids and a grandchild. When I began my practice, both of my parents were alive, now, I’m blessed to have my father still with me. Both of my parents saw me argue before the US Supreme Court, though.

When I began my practice, there was no internet, cell phones, e-mails or the rest of the technological torrent that has immersed us. I could not file and search for documents and other information online. Legal research could only be conducted in a law library using books.

So much has changed. So much remains the same. While innovations have changed the trappings of legal practice, my mission for 40 years remains the same; to solve problems for clients. To fight for clients. To place clients in the best possible position, making the future better.

This milestone in my practice has energized me, realizing that I am beyond the midpoint of my profession career. I pledge my full efforts and respect to my clients and am grateful for you continued trust.

Allan Opsitnick

Legal Snapshots #1

Just a few legal issues that affect many of us:

1. NEW MEDICARE CARDS: For those of us who are Medicare eligible, new cards are being distributed. Unlike the prior cards, which contained the users Social Security Number, the new cards contain a unique 11 digit identification number. The new identification number will be a mix of numbers and letters. This is something long past due. BUT, like everything else, scams exist by unscrupulous people attempting to call, mail or email Medicare participants to obtain that new, unique identification number. DO NOT COOPERATE! DO NOT PROVIDE ANY INFORMATION! Destroy your old card and provide the new identification number to your health care providers, and no one else.

2. ABOUT YOUR DOORBELL AND TELEPHONE: As someone with a nonagenarian parent, and other family members, a personal concern is when the doorbell or telephone rings. As mentioned above, older folks are attempted victims of thieves, seeking personal information, funds and access to the home. So, remember this: YOU HAVE NO OBLIGATION TO ANSWER YOUR DOOR OR ANSWER YOUR PHONE. If you do not know who is outside your door, don’t answer the door. If you do not recognize the phone number of a caller, don’t answer the phone. If the door bell ringer is legitimate, some information will be left, or you will not beforehand that, say, a repair person is coming. Likewise, if a caller is legitimate, a message will be left. This cautious procedure will minimize the chance of being taken advantage of.

3. FULL RELEASE LANGUAGE ON CHECK ENDORSEMENT: I recently received a check from Delta Airlines as compensation for serious damage to my luggage. The back of the check, which I endorsed and deposited, contained this language:

ENDORSE HERE
The undersigned by endorsement below acknowledges receipt of this check as full settlement of and hereby releases Delta Airlines Inc. from any and all claims the undersigned may have against Delta Airlines Inc. to this date.

So, what does this mean? I endorsed the check as I had no pending claims against Delta other than my destroyed suitcase. But what if I had an ongoing dispute about a ticket issue? Or frequent flyer points? This release language is, in Pennsylvania enforceable, as an “accord and satisfaction.” The release language is clear, limited to past and current claims and offers payment in exchange for the amount offered. Thi is, in essence, a contract. The Uniform Commercial Code, which is law in Pennsylvania and most states, applies here. When faced with a similar type or release on a check, think the situation through to be sure that any pending claims that you have against the maker of the check are satisfied. Again, this provision does not affect any future claims.

4. OUR FREEDOMS: Our office will periodically blog a look at the Bill of Rights, during the rest of 2018. The times we live in create many powerful issues that affect our rights, with just a few examples:

– What are our rights as to firearms and what can be restricted?
– What are our limitations as to public speech and demonstration?
– What rights or limitations affect us as to the internet and social media?
– What can government properly do and not do?

Please stay with us for an interesting and exciting 2018.

– Allan Opsitnick

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Disclaimer: The information in this blog post is provided for general informational purposes only. No information contained in this post should be construed as legal advice from Allan Opsitnick, Opsitnick & Associates or the author of a blog post. This blog post is not intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.

Friend or Family, Client or Both? And, How Much Protection Does Paying Me $1 Get You?

Recent media coverage has focused on the “Attorney-Client Privilege” and “Confidential Communications” primarily in the context of the President and other political figures as criminal investigations proceed. Keep in mind that the same rules and protections that affect high profile persons and law firms affect everyone who is in contact with a lawyer.

There are actually two issues to discuss:

– When does an attorney-client relation form?
– What information, if any, that a client provides to an attorney is protected by the attorney-client privilege?

As to the formation of the attorney-client privilege I, like many other attorneys, spend much time communicating with friends, family, neighbors and others discussing legal issues and fielding legal questions. It is flattering that in a society with a multitude of lawyers, I still am barraged with queries on an ongoing basis. That we speak, e-mail or text about a legal issue and I provide some information, does not, of and by itself, create an attorney-client relationship. The Pennsylvania Rules of Professional Conduct apply to attorneys as to their duties, rights and conduct. All states have similar regulations.

In Pennsylvania, the attorney-client relationship is NOT automatically formed just because we discuss, for example, your issues with your neighbor and his trees. However, a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. For that prospective client to become a client, there must be an agreement with the attorney and the new client on the scope of representation; that is, what I am to do for my new client. The new client’s informed consent must be obtained, meaning that the new client should clearly understand that they want my office to represent them in a matter, so that I can proceed. As soon as practicable, the attorney-client relationship must be confirmed in writing. You the client have a right to know that my office is now representing you in a certain matter or matters, and what the fees shall be. A signed fee agreement is needed.

My goal is to be certain that we both know what I’m to do and also, what is expected of you, the client. You are the source of information and, at times, my efforts are stalled because of less that complete communications with the client.

And NOW, that attorney client privilege and confidentiality issue that is in the news.

In Pennsylvania, an attorney’s obligation to keep client information confidential even extends to prospective clients so if we discuss a legal issue, regardless of where, and you provide information to me, that information cannot be disclosed, even if my office does not ultimately represent you. Any information that is “significantly harmful” to you cannot be used or revealed.

An attorney’s duty to a client is to not reveal confidential information unless expressly authorized by the client, except in furtherance of the representation of the client. The confidentiality is not without exceptions though. Information from a client can be revealed if the lawyer believes that it is reasonably necessary to:

– Prevent reasonably certain death or substantial bodily harm
– Prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interests or property of another
– Prevent, mitigate or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services are being or had been used
– Establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.
(There are a number of other exceptions, but they are generally not applicable in most situations.)

So, subject to the above exceptions, your confidential information is safe with me. Your information about actions taken, at times regrettable, thoughts and ideas that you express regarding my representation of you and the like, are not disclosable and will not be disclosed. Your secrets are safe with me.

About That $1:

In Breaking Bad, attorney Saul Goodman tells his kidnappers to pay him $1 so that all future information is subject to confidentiality. In real life, no money or other consideration need to be exchanged for the attorney client relationship to be formed. If we agree that I am to provide legal service for you, I am your attorney and you are my client. Save the dollar for later.

– Allan Opsitnick

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Disclaimer: The information in this blog post is provided for general informational purposes only. No information contained in this post should be construed as legal advice from Allan Opsitnick, Opsitnick & Associates or the author of a blog post. This blog post is not intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.