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.

 
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Your Right to Informed Medical Consent

Recently, I underwent orthopedic surgery for a debilitating back condition. My surgeon and I discussed whether or not I was satisfied with my pre-surgical condition and, when I emphatically stated no, the planned surgery was explained to me by the surgeon. This discussion included the likelihood of failure, the degree of difficulty, the possible negative effects and post-operative limitations. After this discussion, I reiterated my desire to have this surgery performed. (As of this writing, the surgery has worked very well. My decision was the correct one.)

Legally, any patient undergoing certain medical procedures is entitled by law to receive Informed Consent. Informed Consent requires that the nature of the procedure, likelihood of success and failure and alternatives to the procedure are to be presented to a patient by a physician. Previously in Pennsylvania, Informed Consent was permitted to be obtained by a staff member of the physician performing the procedur. Earlier in 2017 however, the Pennsylvania Supreme Court, in the case of Shinal v Toms M.D., held that only a physician can obtain Informed Consent.

In the Shinal case, Mrs. Shinal underwent an open craniotomy total resection, performed by Dr. Toms. During surgery, Dr. Toms “perforated Mrs. Shinal’s carotid artery, which resulted in hemorrhage, stroke, brain injury and partial blindness.”
Mrs. Shinal and her husband then sued Dr. Toms for malpractice, alleging in part, that Mrs. Shinal did not receive Informed Consent before surgery as her consent was procured by a physician’s assistant employed by Dr. Toms and not from Dr. Toms directly. A decision in favor of Dr. Toms was ultimately appealed to the Pennsylvania Supreme Court by the Shinals. The Supreme Court held that Dr. Toms did not obtain informed consent from Mrs. Shinal, as he did not personally explain the surgery and its possibilities.

Under Pennsylvania law, if a medical procedure is performed without the informed consent of a patient, the procedure is a “battery” which is a civil wrong, regardless of whether or not negligence occurred. In a battery, a Plaintiff can obtain money damages.

The Pennsylvania Medical Care Availability and Reduction of Error Act, defines Informed Consent, as follows:
Except in emergencies, a physician owes a duty to a patient to obtain the informed consent of the patient or the patient’s authorized representative prior to conducting the following procedures:

(1) Performing surgery, including the related administration of anesthesia
(2) Administering radiation or chemotherapy
(3) Administering a blood transfusion
(4) Inserting a surgical device or appliance
(5) Administering an experimental medication, using an experimental device or using an approved medication or device in an experimental manner

The physician’s duty to obtain Informed Consent extends to a discussion of the following:

A description of a procedure and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. The physician shall be entitled to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide.

The Supreme Court ruled that the duty of a physician is non delegable and that only the physician can provide the necessary information and obtain a patient’s informed consent. A patient has a right to “medical self-determination.” Also, a patient has the right to a direct dialogue and a two way exchange with a physician, who is obligated to “cultivate a relationship” with a patient. The Shinal holding contemplates a “back and forth, face-to-face exchange” which would be the product of direct communication between physician and patient.

What then does the Shinal holding mean to you? It means that your physician has the duty to take the necessary time to explain the procedure, any alternatives and any possible negative outcomes and to listen to you and respond to questions so that your decision to undergo a medical procedure or not is truly the product of Informed Consent.

Prepare for meeting your physician with a comprehensive list of questions and concerns and pose those questions and concerns to your physician. Do not rest until your questions and concerns have been addressed by your physician fully and completely.

Allan Opsitnick

GoFundMe?

Recently, a number of our clients have had questions about using or contributing to a GoFundMe page. A tax-exempt organization that we represent and support has asked about the feasibility of using GoFundMe. Here is what you need to know about GoFundMe, both as a donor and as a recipient:

Online fundraising is, for many different situations, an excellent platform for raising money and has the potential to raise funds well beyond “traditional” means of fundraising. There are a number of online fundraising websites, some more legitimate than others. GoFundMe proudly labels themselves the “#1 crowdfunding and fundraising site,” and rightfully so. GoFundMe offers both individuals and organizations the opportunity to virtually crowd source to reach their financial goals. There are nearly unlimited categories of fundraising campaigns that GoFundMe permits, ranging from charitable contributions to assistance with medical bills to helping a teenager buy a new car.

The pros of GoFundMe’s offerings are substantial, but some are a bit of a double-edged sword. A major feature of GoFundMe is that there is no need to secure a physical location to hold a fundraiser due to the virtual platform, and therefore is accessible by nearly anybody, anywhere in the world. On the other hand, the online interface may be intimidating or unfamiliar to some potential donors.

Many advantages of GoFundMe are more clear cut. One of the most important qualities of GoFundMe is its safety. The financial information of both those fundraising and those donating is data encrypted, and GoFundMe has partnered with PayPal to manage donation payments. PayPal is a trusted financial service, and offers a tremendous amount of financial security and protection for digital monetary transactions. Unlike more common and traditional fundraisers, GoFundMe campaigns are able to maximize the funds raised because there are no services rendered or inventory of goods to maintain, such as with a car wash or bake sale and similar fundraising techniques. Other than the needs of those raising funds, GoFundMe does not implement any deadlines or time limits for a campaign, which again increases the accessibility and opportunity to make donations. Another significant advantage is that it is free to start a fundraising campaign with GoFundMe, and free for donors to make a donation.

However, GoFundMe wants their piece of the pie. While GoFundMe is free for both recipients to establish and donors to contribute, GoFundMe does deduct a 5% fee from each donation, regardless of whether the fundraising campaign is for an individual or a non-profit organization, and regardless of the amount of the donation. There is also an additional fee for the payment processing of each donation: 2.9% plus $.30, for a total fee of 7.9% plus 30 cents of each separate donation. In other words, if a donation of $10 is made, the fundraising recipient would receive $8.91 and a $1000 donation would have a fee of $79.30 deducted, leaving the recipient with $920.70.

These fees consume a portion of all donations, and that must be accounted for when determining if GoFundMe is a smart choice for your particular fundraising need. For our non-profit organization client, GoFundMe may be an effective method of fundraising.

When creating a GoFundMe campaign, a fundraising goal is selected. This goal does not need to be met in order to have a successful campaign: every donation received will be delivered to the recipient, regardless of the goal amount or amount needed to reach that goal. In that sense, there is very little downside.

The bottom line is this. If you’re looking to raise money, GoFundMe is at least worth considering as a fundraising platform. It is safe, both for those raising money and those making donations, it is legitimate and it is effective. There are very few traditional fundraisers that would allow someone to raise $100 with an upfront cost of only $8.20, the fee GoFundMe would take on a $100 donation.

For further GoFundMe information, use this link:
https://www.gofundme.com/questions

Allison Opsitnick-Young

The Buck Stops Here

Truman and Ike Jan 53
President Harry S. Truman (L) and President Dwight D. Eisenhower (R) – President Eisenhower’s Inauguration, January 20, 1953

Harry S. Truman is my most respected President, partly because when I was born in January of 1953, Truman was still President, leaving office a week or so later when Dwight D. Eisenhower was sworn into office. However, it was Truman’s nature that appeals to me.

He was of modest upbringing and background. He was decidedly plain spoken, often blunt and without much pretense. He made difficult decisions and stood by them, most notably, ordering dropping of atomic bombs on Japan in August, 1945. He refused to “cash in” on the Presidency, stating “I could never lend myself to any transaction, however respectable, that would commercialize on the prestige and dignity of the office of the presidency.”

Truman’s character can be summarized by the sign on his desk, which said “The Buck Stops Here!” The meaning of this iconic sign is well known as a statement of personal responsibility. The “Buck”, responsibility and accountability for a decision or a task, stopped with President Truman as he was responsible for the decision, whether correct or incorrect, successful or unsuccessful.

Things have changed dramatically. How refreshing Truman’s honest policy was. The current President seems to have made it his life’s work to avoid responsibility for any consequence that does not result in success, defining the most mediocre outcomes as success further taking credit for successful outcomes that he had nothing to do with. The Buck stops anywhere but with the current occupant of the Oval Office.

As well, the vanquished candidate in this past Presidential Election has difficulty pointing the finger at herself when analyzing her defeat.

This “pass the buck” attitude permeates our government, businesses and personal lives. To pass the buck seems to be the norm and not the exception. It is difficult in this age, with news media and social media flooding us with excuse laden responses and reactions, to look ourselves in the mirror and take blame when proper. But to develop as a person and as a society, we must no longer pass the Buck and must take responsibility for our actions,regardless of the consequence.

Harry S. Truman was not perfect. He was, as we all are, a flawed person. Regardless, his unwillingness to “cash in” on his Presidency and to not “Pass the Buck” sends a message to all of us, some 60+ years later.

Allan Opsitnick

Trial By Jury

I recently tried a civil jury case to verdict. Given the pressure for settlement of cases, most lawsuits filed never proceed to jury trial, much less a verdict. While we usually represent civil plaintiffs, in this case I represented a defendant. The trial itself was brief, 1 1/2 days. Our 12 person civil jury began deliberations at mid-day of the second day of trial. After about 2 hours, the jury returned with a question, asking the Judge to re-read the jury instructions as to how liability is defined and determined.

At the end of a jury trial, the trial judge “charges” the jury, that is the trial judge reads the points of law to the jury. This jury charge is the legal road map for the jury. The jury then determines the facts of the case and applies the law. In this case, the jury poses questions about fault, liability, and asked the trial judge to re-charge them, which the trial judge did.

Two hours later, at the end of the day, there was still no verdict. The jury sent a message to the trial judge informing him that despite four votes being taken, a ten person majority was not achieved. Civil verdicts in Pennsylvania courts require a 10 out of 12 vote for a verdict to be reached. The trial judge dismissed the jury for the day and ordered them to report the following morning.

The next morning, day three of the trial, the jury reported at 9:30 and deliberated until about 11:30 before returning a verdict. The jury had voted 10-2 for my client, the defendant.

After the trial, I had the opportunity to speak to three of the jurors. They were honest in their statements. The case did not turn upon the skill or eloquence of my well prepared adversary or me. The case turned on 12 people determining what the facts of the case were and applying the law.

Interestingly, the initial vote was 5 for the defendant and 7 for the plaintiff. Over the course of almost a full day of the jury deliberations, the 5 pro defense jurors convinced 5 of the 7 pro plaintiff jurors to see things their way, resulting in the 10-2 verdict. Upon learning this, I was in awe of the dynamic among 12 people who had never met before.

The take away from this case: this jury took their oath seriously and deliberated with all of the back and forth required under the circumstances. The jury took their time and applied their respective backgrounds to reach a verdict. The jurors (regardless of the outcome of the case) are applauded for their service. Our system of trial by jury functions properly only when jurors are open minded.

Should you be summoned for jury duty, please approach this experience seriously and impartially. Your legal claim could depend on a jury at some time.

– Allan Opsitnick

Wills and Why You Need One

Opsitnick & Associates recently partnered with Pittsburgh area investment and insurance broker Rick Smith to present a live program for millennials. An enthusiastic group gathered at the Full Pint Wild Side Pub in Lawrenceville for an evening of information and conversation, as well as Full Pint’s distinctive beers and food.

Margo and I spoke about Wills and why YOU need one. Here are the bullet points, that YOU should consider;

– YOU can DIY. That’s right, you can write your own will, stating what happens to your assets at your death, and sign at the bottom. This is a valid probatable will.  I don’t recommend this at all, but you can do it. No witnesses are needed.

– There is no right or wrong way to prepare your will. How do you want your assets to go and who you select to administer your estate should be your choice solely. Remember, no one need see your will until probate and you won’t be alive at that time.  Do not worry about offending anyone.

– YOU can make both specific gifts, of personal and real property and and money. You are limited to more general bequests, for example, my estate shall be divided evenly among…

– YOU have the power to name an executor, the person who has the legal obligation to handle your affairs after death. Name someone that you trust.

– YOU can appoint a guardian of the estate of any minors that would take under your will. Remember, you might now have children, but you may have children in the future and you have young friends, nieces and nephews whose assets need suprervision. If YOU already have a child, then you can appoint a guardian of their person, to act as a parent if both parents die while the child is still a minor.

– YOU can provide for pets, that is who gets a pet and, if desired, providing for pet care funding.

– YOU can eliminate someone in your will. For example, if you have three siblings and only want two siblings to take, the third sibling should be mentioned as not taking under your will. There can be no mistake of your intentions.

– YOU can make charitable gifts. You are not limited to individuals.

– YOU have more assets that you think and will aquire more. Preparing a will today avoids potential chaos in the future.

Should YOU have any questions about a will please contact us.

– Allan Opsitnick

If Voting Made Any Difference

“If voting made any difference, they wouldn’t let us do it.”

This quote is attributed to Mark Twain. While I don’t agree, let’s consider that in November’s presidential election. Hillary Clinton received over 2.8 million more votes than Donald Trump, however, Trump won the election.

As we all know, the Constitution provides for election of the president by the Electoral College; see both Article II and the Twelfth Amendment. So while Clinton received a large number of votes more than Trump, though neither candidate received 50% of the popular vote, Trump received significantly more electoral votes than Clinton, 306-232.

The Presidential election marks the fifth time in American history that a presidential candidate won the popular vote but lost the Electoral College vote and therefore the presidency:

1.) 1824: John Quincy Adams was elected President over Andrew Jackson despite losing the popular vote by over 38,000.

2.) 1876: Rutherford B. Hayes was elected President over Samuel J. Tilden despite losing the popular vote by over 250,000.

3.) 1888: Benjamin Harrison was elected President over Grover Cleveland despite losing the popular vote by over 94,000.

The fourth and fifth times the popular vote winner did not become president has been in this century:

4.) 2000: George W. Bush was elected President over Al Gore despite losing the popular vote by over 540,000.

5.) 2016: Donald Trump wins the Electoral College vote over Hillary Clinton despite losing the popular vote by over 2.8 million.

What does this mean? Should the process change? These are questions that should be considered and debated by us all. In fact there is a movement, entitled the National Popular Vote. The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia. Eleven jurisdictions, ten states and the District of Columbia have already passed this bill. The National Popular Vote bill supposedly is consistent with the Constitution, so no Constitutional amendment is required. The National Popular Vote website is: http://www.nationalpopularvote.com/

According to this website, the National Popular Vote movement has bipartisan support, including support from President Elect Trump in a 2012 statement, though he recently recanted that statement in the wake of his Electoral College victory.

So, let’s ask ourselves two things:

1.) Is it time to change how our President is elected; and

2.) Is Mark Twain correct?

– Allan Opsitnick