I am retiring. I will leave this blog up for a while so that people can refer to the articles when they are researching elder law. I have changed my website at orolaw.com so that it fowards to my site for Salish Ponds Press.
I encourage you to go over to the Salish Ponds Press, or Amazon and buy my books. If you have enjoyed the way my blog posts are written, you will get more of the same, even better, in my books, The Duke of Morrison Street and The Holders of Helmut Street.
Both books feature Leopold Larson as the crime-fighting lawyer. Leo may talk a lot like me, but he is not me, and he is a lot more interesting.
Practicing elder-law has been great, but frankly, for me the thrill is gone. It is time to close up and take it easy. I will be selecting a younger lawyer to suggest to my clients, but I haven't decided who that is yet.l
THIS IS A GUEST COLUMN BY LEOPOLD LARSON. MR. LARSON IS THE FICTIONAL LAWYER AND NARRATOR IN MY MYSTERY SERIES. THE OPINIONS EXPRESSED HERE ARE IS OWN.
You can learn more about the Leopold Larson mysteries here.
There are 1.35 million lawyers in the United States. A handful, like me, are fictional. Most are not. I practice law in a two-room office on the east side of Portland, Oregon. I mostly help people fight over inheritances or put their demented relatives in care homes. Over a couple of decades of doing this, I met a lot of lawyers and a lot of clients. This is my guide to the uninitiated on how to hire a lawyer.
Understand Who Lawyers Are
Lawyers are everyday tradesmen who wear suits.
Lawyers in private practice include geniuses, idiots, saints, and psychopaths, but as a group, they are statistically average Joes and Josephines. The strategies that work for getting along with mechanics, retail clerks, accountants, programmers, cops, and the person behind the counter at Arby’s will work with lawyers. So read How to Win Friends and Influence People, by Dale Carnegie, a book that has been rewritten by others a thousand times, and you are probably good to go when it comes to lawyers. But you won’t do that, so you get this article instead.
Like everybody else, lawyers want to think and talk about themselves most of the time. If you let them do that, they will love you and probably won’t even send you a bill. The fly in that ointment is that you are also an ordinary person. You want to talk about yourself and your stuff, and you think that if you are paying someone for legal advice you ought to get to burden that person with all your boring problems. And that is the tension from which the negotiation begins.
The world does not have too many lawyers and the world is not too litigious.
Some people think there are too many lawyers, that society is too litigious, and there should be a better way of doing things. That is wrong. Human life is complicated and so are the rules we live by. Read Leviticus. The laws from three thousand years ago when all we had to do was herd goats and start religions are really really complicated.
Remember Moses? He is leading his flock across the desert after leaving Egypt. One day the elders come to him and say, “Moses, you are spending so much time resolving disputes among your followers that you don’t have time for all your important leadership stuff.” So they decide to appoint twelve judges to take over the job of resolving legal disputes among a bunch of people wandering in the desert. If they needed twelve judges, you can imagine how many lawyers they needed.
The lesson is that lawyers are just another of the professionals we rely upon to make it through life. They are neither special nor despicable. You are not a victim because you need a lawyer any more than you are a victim because you have to hire a doctor, accountant, barber, or plumber.
Lawyers are Unhappy
Practicing law is a crappy job, and most lawyers are unhappy doing it. In those job satisfaction surveys the State Bar Associations put out to measure the happiness of their membership, lawyers report that they would rather be doing just about anything than the private practice of law.
Most lawyers didn’t set out to be lawyers. There are a few who were inspired by a movie or a relative or some childhood interaction with the court system and who became lawyers because that’s what they always wanted to be. Those are few and far between and once those few have achieved their dream they are not any happier than the others. The majority of lawyers went into it because law looked like a way for someone with a middle-class background and a liberal arts degree to make some money and thereby stay in the middle class. It if wasn’t law school, Walmart loomed on the horizon.
Once these lost souls paid out thousands for law school and clawed their way into the profession, Walmart didn’t look so bad. On most days, the people at Walmart are fairly happy. In law offices, somebody is always mad at somebody else and afraid that something bad is going to happen. Fear and anger, day after day, takes its toll on everybody it touches.
The seminars sponsored by the Bar to show people ways to use a law degree without having to practice law are always full. Happy lawyers are the ones who don’t practice law. When you see those legal commentators on television opining on legal issues, they seem happy. That is because they aren’t lawyers. They don’t have real clients or real cases. They are entertainers who get to put on makeup and discuss legal subjects without the pressure of having real clients with real cases to win. They are happy because they aren’t practicing law.
Lawyers are driven by fear.
A lot of my clients were afraid to meet me. My title “attorney-at-law” is threatening. But I am also afraid of them. Most of the time clients bring me problems that I cannot solve. It isn’t that I don’t have legal skills. It is that the law does not provide anything close to the solution the client thinks it does. I face having to give them the bad news and then try to get money out of them for doing it. Who wants to do that?
Everybody who shows up at a lawyer’s office is a potential source of money, but also a potential Bar complaint or malpractice accusation. In my misbegotten youth, the Bar used to advise me, “if something about the client feels wrong, it is.” But when a spooky client, or even one just a little sketchy waived a fat check in front of me, I forgot all about what the Bar had told me and took the case. And every single time, I suffered for it. As I aged, I got better at it, but never perfect. That nice little old lady could easily turn out to be the one complaining to the Bar and papering the internet with horrible one-star reviews. Every lawyer lives with the fear that you are the one who will make it your life’s mission to destroy his practice.
Lawyers fear losing cases even more than they fear their clients. Some cases settle with no clear winner or loser, but the true win-win solution mediators love to talk about is a rare bird. A lawyer who goes to court often is going to lose cases, and lawyers hate that. Clients don’t want to hear that court is a crapshoot and even the best case can go down the drain if a witness fails to show up, people freeze on the stand, or the judge is having a horrible awful day for reasons that have nothing to do with the case. A lot of lawyers are so afraid of losing cases that they give up going to court at all.
This is a lot of fear. It is no secret that people who are afraid cover it up with bravado. Men are worse than women, but women in the legal profession who are trying to mimic male fear-based bravado — even though there is no need for it in the first place — do it badly and with greater ridiculousness than men. When your lawyer is scared he drops names of the powerful people he knows, mentions prestigious organizations of which he is a member, regales you with tales of past court victories, mentions his summer home or some other bauble that he owns (implying that he got it from his successful practice rather than inheriting it from his mother) and generally says whatever needs to be said to convince you he isn’t deathly afraid of showing up a work every morning.
The thing to remember is that no matter how afraid you may feel walking into the lair of a lawyer, it is highly likely that the lawyer is more afraid of you than you are of it. If you see the bravado, you will know what I am saying is true, and you must treat the fear-filled lawyer as you would a frightened animal. That trembling lawyer has skills you need.
Lawyers Make a Lot of Mistakes
Law is complicated stuff and lawyers, being ordinary people, make a lot of mistakes. A lawyer who goes to court has the state and federal statutes to deal with, the rules of procedure, the local court rules for each venue in which he or she practices, cases to know, and court staff to keep happy. And all of this changes every time the legislature convenes, or the court administrators decide that things must improve. Mistakes are made. Lots of them
Lawyers know that mistakes are made. I used to tell my assistant that we didn’t have to be mistake-free — just make fewer errors than the other guy. However, lawyers are pressured to cover up their mistakes. I once wrote an article for a Bar publication in which I commented about all the mistakes I made — misunderstanding the facts, getting the parties mixed up with some other case, getting the law wrong, filing papers in the wrong court, the list could go on and on — and the people at the Bar swooped down on me saying that I couldn’t say that. It was a matter of liability, they said. I didn’t have to lie about the mistakes — just keep quiet.
I was trained in that tradition and it was hard to break. I remember the first time I gathered my courage and told a client straight out that my mistakes had screwed up his case. I thought I would die and that didn’t happen. I thought he would be furious, and that didn’t happen either. He laughed. He then said he never thought he would see the day when a lawyer admitted a mistake. After that it was easier to admit my errors, but not all that much. I was still a lawyer, we make mistakes but we don’t admit them. That is the way it is.
Lawyers are Not Rich
The median income for lawyers in 2018 was $120,000. Lawyers in New York, Los Angeles, and Washington DC — high cost-of-living areas tend toward the higher incomes. Lawyers in Idaho and Missouri, where the cost-of-living is less — tend toward the lower ones. Some lawyers make lots and lots of money. Some lawyers sell blood to pay their rent. But in the scheme of things the lawyer you go see probably works very hard at a job that he or she doesn’t like and doesn’t make a lot of money doing it. If you are talking to an older lawyer with an established practice, he or she may well be making more than the $120,000 median, but if you are talking to a younger lawyer still getting his or her feet wet, it is a pretty good bet that the lawyer is on the low side of the income curve and is also burdened with student loan debt.
I charge $300 an hour, but that doesn’t translate into a huge income. That hourly rate has to pay for my office, my assistant, all the expenses of maintaining a license, insurance, and the myriad of taxes and fees that fall upon a small business. If your lawyer is a salaried employee in a firm, the powers that be in that firm are not paying that associate any more than necessary to keep the associate from jumping to another firm. Just because your legal bill looks large to you does not mean it is making the lawyer rich.
Don’t get me wrong. There are a lot of rich people with law degrees, but they ordinarily don’t practice law. Congress is filled with lawyers who are both rich and powerful, but they don’t have any cases. Judge Judy on afternoon television is reputed to be the richest television personality on the air. But she isn’t a real judge and those are not real litigants.
The bottom line is that when you are dealing with your lawyer, keep in mind that he or she needs money. Your lawyer is not rolling in dough and cannot afford to pay court costs for you, lend you money, put you on a payment plan, or work for free. The fact that you have a really good case does not change any of this.
So lawyers are ordinary, unhappy, fearful, mistake-prone, and in need of money? How does knowing that help me?
The lawyer has skills that you need. Law is not the place for do-it-yourselfers. You need the lawyer to use those skills on your behalf. When you first meet the lawyer, don’t sit there like a rock waiting for the lawyer to sell his services; sell yourself to her, and then sell your case. Try to reduce the lawyer’s fear of you by assuring her that you are not a threat, that you do not expect perfection or miracles, and that you can pay for the services you need. The overriding strategy is to convince the lawyer that working on your case will not make her any more unhappy than she already is.
When you first meet your prospective attorney, make a human connection before you get down the business. Find some interests you have in common — music, sports, origami, bondage — and talk about that for a few minutes. If you hire the lawyer, repeat this ritual every time you talk to her. Ask how she is doing. Make human contact before you talk business. Do this every time and don’t forget.
Let your prospect know that you understand and sympathize with his financial need. I recall a client who told me in the process of coming to an agreement about a case that she wanted me to be well paid for my skill and expertise. It was flattering and reassuring all in one statement. It established from the outset that we were not going to be adversaries when it came to the money.
Assure the lawyer that you are not the person who will be stalking him two years from now. There is a Scandinavian saying, “Act normal, that’s crazy enough.” Adopt it. Don’t bad-mouth your previous lawyer if you had one. Your lawyer will hear that and wonder what you will be saying about him six months from now. Don’t even bad-mouth the people on the other side of the case any more than the relevant facts of the case require.
Acknowledge openly your understanding that a lawyer cannot guarantee a certain result. Tell your prospect about your fears that the case might not go your way and ask for an honest assessment, even if the news is not what you want to hear. Be firm that you want honesty, even if the news may be bad.
If your lawyer turns to bravado or grandiosity, stay calm and let him play himself out. Affirm the lawyer’s accomplishments, or contacts, or whatever it is he is throwing up to hide his fear. Grandiosity like this is a form of flight/fight and usually wears itself out. Assure your prospect that you do not expect infallibility or miracles, only that the two of you be able to work together to get the best result possible. Tell him that you understand that it could be a bumpy ride and that you can handle setbacks along the way. You are soothing a frightened animal. Be patient and calm.
Some clients used to try to hire me over the phone. I ordinarily declined and told the person I only work for clients I like. There are a million lawyers out there — 1.25 million to be precise — and clients should only hire one they like. We won’t know if we like each other until we meet. At the meeting, I learned whether I, an impecunious, fearful, mistake-making, legal technician could get along with the person who proposed to hire me. It wasn’t that the relationship would be more important to me than the money, it was that without the relationship the money thing was not going to work out anyway. As a client, you may think you don’t care about the relationship either. All you want is a successful resolution of your legal problem. However, if you skip the relationship step, the chances of getting a good result are greatly diminished.
Step 1: Don’t be a nightmare client.
Here is the nightmare client. He shows up and says he wants to hire me because he started the case representing himself but the judge who looked at his papers was prejudiced against him. He hired two other lawyers but they both turned out to be incompetent so he fired them and made Bar complaints against them. His case is actually very easy and it is so clear that he should win that wrapping it up will be easy for me — so easy that I can get paid by collecting attorney fees from the other side after we win. Oh, and by the way, there is a hearing scheduled for the following afternoon to dismiss his case and I need to be there. Don’t be this guy.
Let’s unpack this and set some rules.
Don’t practice law. Don’t go off representing yourself, mess it up, and then go to a lawyer asking her to fix it. Lawyers spend enough time fixing their own mistakes. They hate trying to fix yours. If you take up law as a hobby, follow through and live with the results.
Don’t tell your lawyer how bad your other lawyers were. Most lawyers within a particular specialty have the same set of skills. The idea that the quality or price of your lawyer makes a lot of difference in the final result is television stuff, not real life. When you spend a lot of time insulting other lawyers, or other people generally, all you do is convince your listener that you are an ass.
Don’t evaluate your own case. You came to the lawyer because you thought you had a good case or the person suing you had a bad one. You are subject to confirmation bias — giving great weight to the facts that support your point of view and discounting the facts that don’t. This is a huge problem in law, and it will infect your lawyer as well. Don’t let it control you from the outset. You came to a lawyer for an expert opinion on what to do with your legal problem. Don’t tell him what the end result has to be.
Don’t assess how easy or hard a legal task will be. The lawyer does this stuff for a living. You sound like a moron telling him how easy or hard the job will be.
Don’t come in with no money. Have a realistic plan for paying the lawyer. Remember, your lawyer is not rich and simply cannot afford to do a bunch of work for you without getting paid. If you are seeing a lawyer for a personal injury case you may want a contingency fee, but you can at least show up with enough money to pay court costs and related expenses. I used to make clients in probate cases put up a retainer even though I knew I probably wouldn’t need it. The money showed that the client was willing to put some skin in the game. The worst and most demanding clients are the ones who think their legal services are free. Don’t be one of those.
Don’t ask your lawyer to un-lose the case. I have had this happen fairly often. A client went to court unrepresented or with another lawyer, and lost. The client didn’t like that. Guess what, nobody likes losing but half the people who start a trial lose. The client wants a do-over with a different lawyer. It can seldom be done and every lawyer wants a fighting chance to win a case. When you show up with a case you already lost and want the lawyer to make that loss go away, you have worried about this too much.. Take your lumps, accept the loss, and carry on down the road.
Be honest about the weaknesses in your case or position. Every case has weaknesses. If your case, as far as you are concerned, doesn’t have any, you are deluded. Tell your lawyer, “I would tell you about the weaknesses in my case, but I am too enmeshed in the drama to be able to see them.”
Step 2 — Don’t hire a nightmare lawyer
The United States is filled with lawyers. Every year some of them go to jail or get committed to mental institutions. Some declare bankruptcy. Some just disappear. Some commit crimes and get away with it. Some do incredible acts of kindness and are never recognizedt. It is a crapshoot out there, but you can increase the odds of a good lawyer-client relationship by doing the following:
Check Disciplinary History with the Bar. I am a trusting person. I trust people to act in the future the way they have acted in the past. Bar Associations will allow you to look at how many times a lawyer has been disciplined by the Bar for ethical violations. If a lawyer has been disciplined a lot, you might want to steer clear. Be careful, however, some ethical violations are technical and don’t really hurt any clients. On most days I am just a stone’s throw away from being disbarred, but I am a fictional lawyer so my misdeeds don’t hurt anybody. Additionally, the people at the Bar who monitor lawyers are often pretentious prigs. Look at what your prospect did and consider it in the overall picture.
Check Online Reviews. Take a look at Google and Yelp and Avvo for reviews. Take these with a grain of salt, because a lawyer who is willing to take risks will lose cases, and clients who lose cases can be vengeful.
Weed out the Drunks and Drug Addicts. About ten percent of lawyers are impaired by drug and alcohol use. They are hard to pick out because they hide it, but if you pick up that the lawyer is an active alcoholic, run away. Like most fictional lawyers, I am an alcoholic, but I don’t drink anymore, and thus I behave somewhat like a normal person. I have had clients say they won’t hire me because they hate alcoholics, even ones who don’t drink. I have other clients, also in recovery from addiction, who hire me because I am a recovering alcoholic. You should get the lawyer you want.
Avoid “Busy” Lawyers. The legal profession has a fair number of Type A lawyers who secretly think that the word “workaholic” is a compliment. These guys are dangerous nutballs. They are “busy” all the time and your work will not get done because they are always busy. Your phone calls will go unanswered and your emails will disappear into the void. How do you know if you have happened upon a busy lawyer? He will tell you. He will tell you over and over again. If your lawyer ever mentions how busy he is, stop the conversation right there and ask directly, “Are you so busy that you will not be able to give my case your full and careful attention?” If he waivers, run like hell.
Dump Braggarts, Blowhards, and Show Offs. These guys will not be capable of delivering bad news. If things start to go south they will lie to you, disappear and end up blaming you. These guys should not be practicing law — they should be in politics.
Pick Someone Who Practices in a Place that Makes You Comfortable. Some lawyers practice in a skyscraper where the receptionist brings you a cappuccino while you await your appointment. This sort of opulence scares some clients. Other lawyers practice out of the den in their house while tending to children and dogs. Some clients are not comfortable with this level of informality. Find a lawyer who practices in a place and in a manner that makes you feel at ease.
Pick someone you like. This is the most important one. Did I mention that there are over a million lawyers out there to choose from? You can get one you like and you are entitled to one you like. Once you have that, the battle is half over.
What kind of firm fits you — Big Firm, Small Firm, or Sole Practitioner?
Big Firms.
If you decide to hire a big firm for your legal needs you will get high-quality representation. You are likely to also get a great view from the offices, well-brewed coffee while you wait to speak to your lawyer, and posh conference rooms. Your lawyer will have a bevy of receptionists, paralegals, assistants and baristas at his beck and call to assist with your case. As you might expect all this skill, professionalism and opulence comes at a cost — a huge cost. Be prepared to pay and pay and pay some more.
I don’t know if the big-firm lawyers are the most unhappy of all lawyers but they are certainly in the running. The big-firm lawyers are recruited out of the top schools and can earn a lot of money from the very first day. In return, they often have to work 80–90 hours a week so they can bill enough to pay that big salary. They compete against other associates for a very few partnership spots and work under the supervision of partners who survived in that system and relish the chance to dish it out the way they had it dished out to them. When they are not working they are expected to be out hob-nobbing with politicians and businessmen so they can keep the firm in the public eye and bring in more big-firm business. Big firm lawyers are under extra pressure to win if they are going against a small firm lawyer or sole practitioner because they are, after all, expensive big-firm lawyers. What is the client paying all the money for if their big-firm lawyer can’t demolish some lawyer practicing out of his van? The problem is that judges don’t care about any of that, and although you will always get consistent quality out of your big firm lawyer, good lawyering does not always translate into winning cases.
Your big-firm lawyer is likely to have good social skills, but be as unhappy and terrified beneath the veneer as any lawyer you are likely to encounter. If you manage to get a partner for your lawyer, he or she may be more at ease or may have permanently adapted to the frenetic fear-based culture of the big firm. Chances are, if you are a big firm type of client, you already know it. Go with a lawyer from a big firm and be happy.
Small and Medium Firms
Most lawyers practice in small and medium firms. Some of these are collections of like-minded lawyers who pool their skills for the betterment of all and create a supportive and kindly atmosphere for everyone who works there. Others are collections of mean desperate people who hate their co-workers as much as they hate their jobs and their clients. These firms resemble a madhouse more than a business. Most small firms fall somewhere in the middle.
Small firms differ in the way they attract business. Some have one or two rainmakers — lawyers who, through reputation or contacts, bring in the clients. The remainder of the lawyers do the work. Sometimes the rainmaker is a skilled lawyer. More often the rainmaker doesn’t practice much law at all. He spends his time attending events and kissing up to rich people so that they will think of him when they need legal services. If you go to one of these firms and find yourself talking to someone whose name is not on the letterhead, don’t let it concern you. The people with their names on the letterhead may not actually practice law anymore if they ever did. Remember that actually practicing law sucks. You want an in-the-trenches lawyer working for you, not someone who is good at Rotary Club speeches.
Watch out for a firm that only has one name on the letterhead but has a lot of lawyers. Steer clear of “Joe Schmoe and Associates,” or “Joe Schmoe Law.” These firms tend to be owned by an egocentric psychopath who runs the office as a business by hiring out-of-work desperate lawyers to work for slave wages until they have enough experience to jump ship to a better place. The rank and file at these law shops are the unhappiest of unhappy lawyers and their misery may well leak into the work they do for you.
Some firms are not really firms at all. They may have names on the letterhead but if you peek under the hood, it is several lawyers sharing offices and overhead under the same name. In these firms, each lawyer markets himself and collects fees from the clients he brings in and serves. The lawyers may refer clients back and forth to each other, but if Betty does your legal work, when you pay the bill, Betty will get the money. She won’t be sharing it other than through her contribution to the shared costs of office space, phones and reception. The lawyers in these firms are really sole practitioners who share overhead. For sole practitioners, see below.
Sole Practitioners
Sole practitioners run the gamut from lawyers practicing with a team of assistants in downtown skyscrapers to lawyers practicing alone out of their vans in the parking lot behind a convenience store. Some of them are great lawyers who don’t want their practices limited by bosses or partners. Others are sole practitioners because nobody in their right mind wants to be associated with them. A lot of them practice sharing offices with other sole practitioners and these folks can look like a firm. If you can’t tell, look the lawyer up on the web with the State Bar Association. The listing will tell you if that lawyer is part of a firm or a partnership.
The worry with sole practitioners is that the lawyer won’t have the office infrastructure to handle your case. The guy practicing out of his garage may give you a great hourly rate compared to the guy in the corner office of a firm, but if the guy in the garage is charging you that hourly rate while he walks your demand letter down to the post office, you are not saving any money. Those assistants and paralegals do a lot of work for a lower rate than your lawyer. I once got hired by an out-of-state lawyer who told me straight up, “This is the last time I want to talk to you. Your assistant can do everything I need and do it at a much lower rate than you can.” He turned out to be right and when I saw his final bill it pissed me off.
The upside of sole practitioners is that on the average, they charge less. Be careful though. Some of the most ridiculous legal bills I have ever seen have come from sole practitioners who didn’t have enough work and spent all their time working on and billing the one case they had.
Make a Friend
If you follow my directions for hiring a lawyer, you not only increase the chances of getting a good solution to your legal problem, you will have a friend who is a lawyer. The lawyer may not be the kind of friend who takes you camping or out for a drink, but friend enough that the next time you have a legal problem you can give that person a call, and the call goes right through. You can refer in general conversations with your other friends to “my lawyer” and actually have one.
The Coronavirus pandemic caused me to close my law office. I closed the estate planning part of my practice because I couldn’t meet with clients and couldn’t bring together the people necessary to have documents witnessed and notarized. Yet, some people really need to have a will done.
I have used Google docs to put together an automated system that will generate an Oregon will for those in need who cannot get to a lawyer or collect the witnesses needed for an estate plan. This will contains clauses specifically identifying the COVID-19 emergency and it relies on laws specific to Oregon. It is a temporary fix and is not an all-purpose estate plan. It is offered to those who need a temporary estate plan until the pandemic is over.
Follow the link below and fill out the form. Your answers will generate a will that will be sent to your email address as a .pdf file. I will look at it briefly. I will not give a consultation or customize the will for you. There is no charge, and I will do this as long as I can or until I get in trouble for doing it.
When you receive your will, carefully follow the directions that accompany it, and, when the pandemic is over, make an appointment with a lawyer to get a permanent replacement.
If you like this and want to show appreciation, buy a book published by Salish Ponds Press
There is a knock at the door. You answer and find yourself confronted by a representative of Oregon Adult Protective Services (APS). The APS investigator asks if he or she can come in and talk to you about an elder you know. You invite the agent in and you quickly realize that someone has made a complaint to Adult Protective Services accusing you of the financial exploitation of an elder.
In this post, I walk you through what is going on when you are investigated by APS and give some hints as to how to deal with the agency and the investigation.
What is Going On
Adult protective services is a division of the Oregon Department of Human Services. When a complaint is called in alleging the financial or physical abuse of an elder or person with disabilities, APS is obligated to investigate. The agents talk to the elder, if possible, witnesses and the alleged perpetrator. The investigation, once commenced, must be completed within 120 days. At the end of the investigation, the investigator finds that the allegations are "substantiated," "not substantiated" or "inconclusive."
If the allegations of wrongdoing are "substantiated," the report is passed to the district attorney in the county in which the wrongdoing allegedly took place. The district attorney evaluates the case on the basis of whether there is sufficient evidence and injury to warrant criminal prosecution. If the district attorney decides to prosecute, the accused faces prison time and needs a criminal law lawyer. I am not one of those and do not defend in criminal cases.
In real life, almost none of the substantiated elder abuse reports delivered to the district attorney go any farther than the desk of an assistant DA. To prevail in a criminal case the DA must prove the exploitation beyond a reasonable doubt and the damage needs to be of sufficient magnitude to warrant expenditure of public resources on the case. I can't predict what district attorneys do. They are a mystery to me, but after working in this field for a long time I know that almost none of the substantiated elder abuse findings turn into a criminal prosecution.
If the district attorney does not prosecute then the report by the investigator goes into the super-secret APS file cabinet where nobody can see it unless you go through a whole bunch of complicated legal hoops. I can handle those hoops and get access to the report if it is important enough, but the process is so expensive that I seldom do it.
So Why Should I Care?
If you are being investigated and you know that you will probably not be prosecuted criminally and the report will disappear into the secret cabinet, you might well ask, why do I care? Perhaps you shouldn't, or at least you should not be as upset as the investigator probably made you. There are, however, more troubles that can arise.
Every APS office has a cozy relationship with a couple of lawyers (or professional fiduciaries) in the neighborhood who practice elder law. If The APS is intent upon going after the suspected bad guy the worker can contact the lawyer, give the lawyer the facts of the case, and suggest that the lawyer go after the perpetrator in civil court. The lawyer will file to have a guardian and/or conservator appointed for the allegedly abused elder on the grounds that the elder is being financially abused and is incapable of protecting him or herself. Even though neither the lawyer nor the fiduciary has a prior connection to the family, the courts generally allow this in the interests of protecting elders. The lawyer will nominate his or her favorite professional fiduciary, and when the court appoints a conservator, the conservator will then sue the perpetrator for financial elder abuse.
The lawyer evaluates these cases on the basis of whether he can make any money from it. The APS investigator is protecting elders and going after bad guys. The civil lawyer who gets the case from the APS investigator is doing it for the money.
When the financial elder abuse case is filed and served, you are in trouble. Although elder financial abuse and financial exploitation are not identical in the law, they are very close. In an elder abuse civil case the plaintiff is allowed to seek triple damages -- triple the amount taken from the elder -- plus attorney fees. The accused, however, must pay his or her own fees no matter what the outcome. Being sued for elder financial abuse is no fun and defending the case is not for amateurs.
Even if you are not sued for elder abuse, the substantiated report in the secret cabinet can cause you a problem if you want to work in elder care or social services. Your background check will bring up the report and you will have some uncomfortable explaining to do.
How does APS operate and what powers does it have?
APS investigators operated largely on bluff and chutzpa?. You have no obligation to speak to an APS investigator and the investigators have no right to enter your home or request documents from you. Under certain circumstances, APS can obtain bank and financial records related to the case, but if you are under investigation you have no obligation to provide the investigator anything. They can, however, be aggressive and persistent, subtly implying that they have powers and legal tools that they, in reality, do not have.
Often when I represent the object of an APS investigation, I contact the APS investigator and make my client available for an interview in my office. In only one out of five cases, is APS willing to come to my office for the interview? I also request that the APS investigator not attempt to talk to my client without me present. Sometimes they agree to this, but they are not required to, and I have had APS workers with police appear at my client's home repeatedly, even after being asked not to do that. The rules that apply to lawyers when it comes to represented parties do not apply to APS.
Although APS can refer a case for criminal prosecution and it can slip the case to its favorite elder law lawyer, APS does not get restraining orders, does not itself file elder abuse civil cases, and rarely pays to have a guardian or conservator appointed. Those are the tools I have. APS does not.
Do you need a lawyer?
Although the APS investigator has a bank of Oregon Department of Justice lawyers backing him or her, the investigator often tells you in all sincerity that you don't need a lawyer. He or she may even intimate that getting a lawyer amounts to a lack of cooperation and makes it more likely the investigation will go against you. Being a lawyer, APS loves me when I am on their side, and hates me when I do defense. The agency is not a big fan of playing fair and evening the odds.
Suggestions for Dealing with APS
It tends to be pretty easy to figure out if you are the alleged perpetrator in the elder abuse complaint. The APS investigator may not say it directly, but you will be able to tell from the tenor and nature of the questions. If it looks like the agency is coming after you, I would suggest the following:
Lawyer up. I am not averse to having my clients talk to the APS investigator. I simply think that things go better for the alleged perpetrator if the interview takes place in my office.
Don't talk to the APS investigator without your lawyer, in the evening or in your home.
Ask for a written statement of the results of the investigation. APS doesn't have to give you a written determination unless you ask for it.
Don't believe that APS can settle a potential civil case or somehow clear you. APS cannot give you a release, settle a case that has not been filed, or agree to make a certain finding if you do certain things.
And No Matter What, APS is always right
My wife was a social worker before she retired. One morning at breakfast, I opined that social workers were poor sports. She asked, "Why is that?"
I went on to explain that with other lawyers I litigate the case -- win it or lose it, forget about it -- and go on to the next one. But with the social workers, if they don't win, they remain mad about it for a long time. They seem like poor losers.
My wife looked up from her breakfast and told me, "That's because we are always right."
She nailed it. I have gone through a full trial after which the court ruled that APS got it wrong. The investigator's only response to the ruling was that the court system screwed up again. Once APS makes up its mind about you, no matter how much evidence there is to the contrary, the agency will never admit a mistake or change its mind. Live with it.
Monday, June 11, 2018
The latest of my YouTube videos deals with what happens to property when you die if you own the property with another person. It addresses real estate and jointly owned bank and financial accounts.
I am continuing to make YouTube videos about elder law and estate planning issues. This one is about what happens to personal property when someone dies. It does not have good news for those of you who have lists of where you want your stuff to go.
