Sloppy Retainer = Pro Bono

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Sloppy Drafting of Retainer Means Client's Estate Not Liable for Expert Fees
Michael Booth
New Jersey Law Journal
March 31, 2009

Someday, someone will devise a bullet-proof retainer agreement by which to make a client unequivocally responsible for all litigation fees and costs. Until then, Farmer v. Estate of Patel (.pdf) offers a teaching example of what not to do.

The Retainer Agreement

In addition to legal fees, you may be required to pay for expenses in connection with the institution and prosecution of your claim. Such expenses may include, among other things, expert's fees and expenses for other testimony or evidence, court costs, service fees, investigators' fees, deposition costs, cost of briefs, transcripts on appeal and photocopying, long distance telephone and postage expenses.


Meanwhile, the medical malpractice suit went on, though Patel died in early 2002 before trial. It ended in an Atlantic County jury's no-cause verdict.

Farmer then billed the estate's executor but was paid only $13,000 so he sued.

Decision

Any ambiguity had to be construed against the lawyer who drafted it.

The term "may be required to pay" was not specific enough

Farmer did not make full and complete disclosure to the client of all material facts and potential consequences from signing the retainer agreement.

Nor did he renegotiate the retainer agreement with Patel's executor, whose command of the English language is limited.

Never Promised You a Rose Garden

Evelyn and Diana Sakow were told that they were impoverished after their father died in 1956. At the time he died, Diana was 15, Evelyn 20, and Walter 25. They were never told about the will which divided his estate between his wife and his three children. A trust fund was supposed to be established for his daughters until they turned 23, but they never received a penny from the estate. The girls grew up, put themselves through school, and went on to become teachers.

In the early 1980s Diana and Evelyn learned of the will and its contents, and in 1984 instituted a compulsory accounting procedure against their mother and brother. The sisters claimed fraud, breach of fiduciary duty and unjust enrichment.

Their older brother Walter with the knowledge of their mother, had built an empire from their father's estate and left the two out completely.

Quoted from the article - The “conspiracy to deny us our inheritance destroyed my family, broke my heart and left me with scars that I have painfully struggled with and have not fully overcome even now, after all these years,” Diana, 68, said in a recent affidavit.

What ensued was a 25 years of litigation where eventually the sisters were awarded one-third rights to nine-properties. Two have been sold and the other seven are the subject of what is probably the last battle in the decades-long fight.

The properties had an estimated value of about 11.3 million two years ago. Walter wants a quick sale, but the real estate values have declined so much that the sisters believe he is trying to force a sale so that he can buy them back at basement level prices. The holdings include the 62-unit Rose Garden apartment building on Pelham Parkway named after their mother. The sisters have asked the courts to divide the properties among the three siblings.

Still Dancing with the IRS

Joann Levitt and IRS agent testified this morning that the Indy 5000 winner Helio Castroneves owes at least $2.3 million Levitt is the final prosecution witness and the defense will present its case next week.

The IRS is accusing Costroneves of of setting up a Panama-based shell corporation solely for the purposes of protecting U.S.-earned income from the IRS. Then they used stall tactics to keep royalty payments frozen until they come come up with a plan to have them delivered to an off-shore tax haven, most likely Monaco.

Sweat Equity

From the Salem News comes a story of two sisters who believed that they stood to inherit the Devereux School where they worked for their aunt for 30 years. For 30 years, they labored at Devereux School on Smith Street, accepting what they saw as "below-market" wages in exchange for promises from Aunt Mildred Dooling, that the building and the land would be theirs.

Yet, when Dooling died at age 80 in May 2003, the two women said they were shocked to learn that six other nieces and nephews were named as equals in her will. In other words, the estate was to be divided into eight matching parts.

So now a legal battle ensues. The will has been declared valid, and apparently incompetency or undue influence are not issues. The sisters are persisting based on verbal contract and are describing themselves as creditors of the estate. According to their attorneys the two sisters did everything at the school. Their principle job was teaching, but they also did the administrative work, janitorial, landscaping, snow removal, etc. If they knew they weren't going to be provided for they claim the could have received better pay along with benefits, somewhere else.

Across the pond a very similar situation has been reported out of Sommerset, England. The House of Lords reversed the lower court ruling against a David Thorner, a farmer who has been fighting to inherit his cousin Peter Thorner's farm worth £2m where he worked unpaid for 30 years.

Peter originally left the farm to David Thorner in a 1997 will but later revoked the will and didn't make another before he died in 2005. In July last year the Court of Appeal ruled he could not inherit the farm, and said it should go to Peter Thorner's three sisters and niece.

The Law Lords said no. Peter Thorner had led David to believe he would take over the farm. It was proved that he worked up to 18 hours a day for no years and was not paid for it. They ruled he should inherit the farm.

The right price for home health care

Editorial in yesterday's NY Times

Health care reformers have long advocated providing more care to patients in their own homes or communities instead of hospitals and nursing homes.

"So it is disturbing to learn that charges have risen well above reasonable levels in one segment of the home health care market — short-term care provided to Medicare beneficiaries after, or sometimes instead of, hospitalization. The problem is compounded by fraud."

The overpayment problem is exacerbated by fraud and manipulation. These included overstating a beneficiary’s condition to get an improperly high reimbursement, billing for patients who were not homebound, and making unnecessary visits.

Some of the worst abuses were in Texas and Florida.

Convicted Tax Cheat Partying in Dubai Makes the Feds Mad

Wesley Snipes took a detour to Dubai for New Years and it has irritated the federal prosecutors who convicted him of income-tax evasion.

Sentenced to three years, Snipes is free on bond pending appeal. He was photographed mixing it up with the other VIP guests, which included Denzel Washington, Michael Jordan, Charlize Theron and Janet Jackson.

He is allowed to travel on work-related film projects, but his wings may be completely grounded because of that unauthorized stop.

Snipes is asking permission to go to Namibia and Italy to shoot for the movie Gallowwalker and action flick Game of Death.

But the prosecutors don't like it at all.

"Defendant Snipes abused the court's trust and did so in a very public way. For that reason alone, the court should deny his current request for international travel."

Snipes side says, "It is essential that Mr. Snipes complete this project to satisfy his civil tax liabilities and provide for his family."

Snipes was convicted nearly a year ago of failing to file federal tax returns on at least $11 million in income earned between 1999 and 2001. He was ordered last August to reimburse the court for $217,363.75 in legal fees.

Heirs try to Re-gain Assets they Stole over 20 Years ago

"Now we've got all of madame's requisites and all in madame's size
Madame's taste is truly exquisite she must accessorize
The belts are alligator the bags are kangaroo
Enchante, may I say, the jade was made for you."

Imelda
written by Mark Knopfler

The heirs of the late president Ferdinand Marcos are taking steps to regain assets seized during a military revolt that toppled his 20-year reign. The family has restored its political clout and are trying to recoup assets that were taken as ill-gotten gains. The Marcos amassed a fortune that was estimated to be from $5 to 10 billion during their years in power.

Imelda Marcos' extravagant lifestyle reportedly included five-million-dollar shopping sprees in New York, Rome and Copenhagen in 1983. They owned a number of properties in Manhattan in the 1980s. Her New York real estate was later seized and sold, along with much of her 20 million jewelry collection and most of her 175 piece art collection, which included works by Michelangelo and Botticelli. She responded to criticisms of her extravagance by claiming that it was her "duty" to be "some kind of light, a star to give [the poor] guidelines."

Imelda, whose lavish lifestyle was widely viewed as contributing to her husband's downfall, sued Presidential Commission on Good Government's officials for graft and fraud. Her complaint is the takeover since 1986, allegedly without proper accounting, of $42.6 million worth of family-owned assets.

PCGG officials however say the assets were not confiscated but rather "surrendered" to them by a self-confessed Marcos crony, businessman Jose Campos, in exchange for immunity from civil and criminal suits. Campos had admitted that he acted as a front for the Marcoses in acquiring the properties.

Alzheimer's from the inside out

Artist William Utermohlen was diagnosed with Alzheimer's in 1995. From then until 2000, when he lost his ability to paint, he documented his struggle in a series of self-portraits. Read the report on the Artist from the Associated Press in 2006


1998


1999


2000

2009 Alzheimer's Report

2009 Alzheimer's Disease Facts and Figures," documents the multilevel impact of the disease that 5.3 million Americans are living with today, which translates into a new case of Alzheimer's every 70 seconds, by midcentury, someone will develop Alzheimer's disease every 33 seconds. As the burden of Alzheimer's disease grows, states' healthcare infrastructure will be strained; some states will see more than an 80 percent increase in residents with Alzheimer's by 2025.

Alzheimer's disease causes death, as its progression eventually prevents the individual from engaging innate abilities like moving and swallowing.

Mood and behavior changes, an early warning sign of Alzheimer's, often get misdiagnosed as depression, for example.

People 65 or older with Alzheimer's disease or dementia pay 30 percent more in out-of-pocket healthcare costs than those without such disease

Family caregiving is often a long-term prospect. At any one time, nearly a third of family caregivers have been at it for five years or longer and nearly 40 percent have been doing so for one to four years.

The annual report estimates that by 2025, the western states of Washington, Oregon, Nevada, Idaho, Utah, Montana, Wyoming, Colorado, and Alaska will experience growth in the number of residents with Alzheimer's of between 81 percent and 127 percent compared with 2000.

No Conservatorship, but maybe you can visit

A judge refused to establish a conservatorship for Peter Falk on Monday. For much of the hearing, the judge seemed inclined to rule against Catherine Falk and allow Shera Falk, the actor's wife of more than 32 years, to continue to manage his care and affairs. However he has scheduled testimony to decide whether court intervention is necessary to allow visits between the ailing actor and his daughter, according to the Associated Press.

Really Awful

Olga Ostern suffered a stroke and doesn't remember the lawyer who came to her room to oversee her signing a power of attorney. Last week her daughter and son-in-law, Kimberly and Christopher Gerard, were charged with 18 counts of felony theft, four counts of misdemeanor theft, three counts of criminal attempt, and one count each of criminal conspiracy and misapplication of entrusted property.

Bank records showed that Ostern's daughter paid her own bills and her own mortgage out of her mother's account. From June 18, 2007, and Sept. 5, 2007 she wrote checks on her mother's account that dwindled from a balance of $1.3 million to just $1427.

They also stole the Ostern's home. The deed was transferred for the price of $1.00. They moved into the home took over the master bedroom and put their father, who was suffering from Alzheimer's disease, into the guest room. At one point Mrs. Ostern was told the house was no longer hers. Olga was bullied and eventually left when Christopher Gerard threw a large bag of coffee at her. She and her husband are now living with a son.

In less than four months they took $1,298,573 in cash. Add the value of the house which was worth 429,000, this woman and her husband were stealing at a rate of 21,594.66 a day, 899.78 every hour. From her own mother.

Beaver County Times & Allegheny Times March 26, 2009.

War of Amendments

By a 51-48 vote, the Senate embraced a nonbinding but symbolically important amendment by Arkansas Democrat Blanche Lincoln D-Walmart AR and Arizona Republican Jon Kyl to exempt estates up to $10 million from the estate tax. Estates larger than that would be taxed at a 35 percent rate.

The amendment is taking heavy fire.

NY York Times snarks, "for Senator Blanche Lincoln, Democrat of Arkansas, and Senator Jon Kyl, Republican of Arizona, the most pressing issue is clear: America’s wealthiest families need help. Now."

Even from the tax-cut friendly Washington Post.

It asks

More Tax Cuts for the Rich?

"The hypocrisy here is breathtaking. Reducing the estate tax would harm charities because it eliminates some of the incentive for making charitable bequests -- yet some of the very senators who back estate tax cuts were quick to denounce Obama administration tax proposals that they argued would hurt charitable giving. More fundamentally, it is hard to stomach those who argue for more tax cuts -- and then bemoan the failure to stanch rising deficits. A vote for this amendment, at this time of so much red ink and so much suffering, would reflect the most skewed of priorities."

On the flip side, Senator Durbin D-IL introduced and passed an amendment 56 to 43 that provides that no additional estate tax relief beyond that which is already assumed ($3.5/$7.0)in this resolution, which protects over 99.7 percent of estates from the estate tax, shall be allowed under any deficit-neutral reserve fund unless an equal amount of aggregate tax relief is also provided to Americans earning less than $100,000 per year.