2019 Annual Exploitation Conference

The Annual Exploitation Conference will be held April 10-12, 2019 in St. Augustine, Florida at the Embassy Suites by Hilton St. Augustine Beach Oceanfront Resort.

The conference will dive deep into topics of estate planning, probate, guardianship, and elder law by attorneys who confront the epidemic of elder exploitation and elder maltreatment on a daily basis. The program will address crucial issues such as national trends in elder law, fiduciary representation and responsibility, and office support procedures for busy law firms. Attendees receive robust materials to work on during the presentations and to take back to their practices for daily use. Florida and Montana continuing legal education (CLE) credit are available for all lectures. CLE credit may be available in other states upon submission to the accrediting authority or State Bar. Florida professional guardian continuing education credits are also available.

Day 1 – Practice Management – Don’t Let Exploitation Send Your Firm Into a Header

By: Audrey Ehrhardt, Esquire, CBC (CLICK FOR BIO)

Day One is an in-person event only. Day One of the Annual Exploitation Conference is a live practice development and office management training session for Conference attendees. Day One is designed to position practitioners as the experts in their communities in elder law and to help develop essential law practice procedures in this practice area. This day also focuses on strategies for client management, efficient billing, and reaching your practice goals. It’s a great way to create a national network of colleagues to help with interstate issues and referrals.

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1. Obtaining & Maintaining Your Cyber Insurance Policy (Tech)

By: Audrey Ehrhardt, Esquire, CBC

Law firms are a growing target of hackers, email phishing scams, and identity thieves. This session will review why attorneys need cyber insurance policies, what is needed in a policy and how to maintain coverage. At the end of this session, participants will be able to:

Identify the need for a cyber insurance policy;
Identify the various kinds of coverage in a cyber insurance policy;
Identify an insured’s obligations under a cyber insurance policy; and
Identify ways in which an insured can fail to meet cyber insurance policy obligations.

2. Management of all that Data - Email, Text, VM, Email, Court Filings (Tech)

By: Audrey Ehrhardt, Esquire, CBC

While technology can make the practice of law more efficient, it can also overwhelm an office. In an electronic age, offices are inundated with data—emails, texts, voicemail, electronic court filings, audio files, video files, snail mail, etc. This session will review ways in which an office can filter, store, and protect incoming and outgoing data. At the end of this session, participants will be able to:

Identify management and tracking issues for law office communications;
Identify security issues for electronic data;
Evaluate strategies to filter, store and protect communications and data within a law firm; and
Create a basic data management plan for a law office.

3. Will Your Intake Process & Storage of Intake Data Get You Sued (Tech)

By: Audrey Ehrhardt, Esquire, CBC

A law office collects data, lots of data—dates of birth, dates of death, accident dates, tax identification numbers, pets’ names, children’s names, parents’ names, employment data, insurance information… Does this data create liability for a law firm or lawyer? At the end of this interactive session, participants will be able to:

Distinguish between data necessary to prosecute or defend a case and data that is superfluous;
Evaluate how data is collected in their firms;
Apply laws and cases that assign liability for data breaches and losses to the process of data collection in their offices; and
Implement appropriate intake processes for their offices.

4. Trust Accounting In The Digital Age (Ethics & Tech)

By: Twyla Sketchley, Esquire (CLICK FOR BIO), Karen Howe, Audrey Ehrhardt, Esquire, CBC

Lawyers must hold, in trust, funds or property of clients and third parties in their possession in connection with representation, per Rule 5-1.1. This not only means retainers and deposits, but settlements, jewelry, estate assets, original documents, etc. What are the attorneys’ obligations in maintaining trust accounts, particularly in an age where statements, invoices and checks are all electronic? At the end of this session, participants will be able to:

Identify the obligations of an attorney with regard to money, assets, or property in their possession connected to representation;
Describe the procedures for maintaining an attorney trust account and necessary records;
Create a trust account procedure that protects and documents electronic data; and
Utilize the resources of the Florida Bar to maintain proper trust account records.

5. What Is An Inventory Attorney & Why You Need One (Ethics)

By: Twyla Sketchley, Esquire (CLICK FOR BIO)

A car accident, stroke, or other catastrophic event can result in an attorney losing the ability to manage her firm and require that it be wound up and closed. This session will focus on the requirement that attorneys who practice in Florida designate an inventory attorney pursuant to Rule 1-3.8. Participants in this session will be able to:

Explain when an inventory attorney is appointed;
Explain the process for selecting and designating an inventory attorney;
Identify the duties of an inventory attorney; and
Identify resources for inventory attorneys.

6. Assistants In a Law Firm & How to Ethically Use Them (Ethics)

By: Audrey Ehrhardt, Esquire, CBC and Karen Howe

Law firms and lawyers have a variety of assistants that provides support to the lawyer, the law office, and clients. Lawyers are required to supervise these assistants and employees, per Rule 4-5.3. Lawyers also often rely on third parties to provide some assistance. This interactive session will focus on the role of the legal assistants, third party providers, and the lawyer’s responsibility to supervise. At the end of this session participants will be able to:

Identify the lawyer’s obligations with regard to supervision of legal assistants;
Identify the services only a lawyer can provide and what constitutes the unlicensed practice of law;
Describe the ethical obligations of a lawyer working with a third party to provide services to clients; and
Describe the liability of the lawyer for breaches of their duty to supervise assistants.

7. Advertising in the Digital Age (Ethics & Tech)

By: Audrey Ehrhardt, Esquire, CBC

Lawyer advertising has exploded in recent years. With the development of technology, websites, social media, and email, information about legal services has gotten easier to create and disseminate. However, these forms of advertising are still subject to RRTFB Chapter 7. At the end of this interactive session, participants will be able to:

Identify the required content of lawyer advertising in websites and social media;
Identify website and email security issues for lawyer advertising;
Identify potentially deceptive, misleading, and manipulative lawyer advertising;
Explain the process used by the Bar to evaluate and approve lawyer advertising, including websites, social media, or other electronic communications; and
Develop a marketing plan that complies with the Bar rules
Construct digital advertising that complies with the Bar rules.

8. Planning, Tracking & Achieving Goals for the Law Firm (General)

By: Marketing Panel

The practice of law is a noble profession that allows lawyers and their support staff to help people, make a difference in the world, and support their community. However, the practice of law is still a business. The business side of a law practice requires lawyers and practice administrators to set goals, track progress, and achieve goals. At the end of this session, participants will be able to:

Identify the types and purposes of goals in a law firm;
Describe the purpose of a budget in a law firm;
Describe the purpose of a business or marketing plan for a law firm;
Identify at least one marketing, budgetary, billing, and collection goal for their firm; and
Utilize provided resources in tracking those goals through the next year.

Day 2 – Understanding the Impact Zone of Exploitation

8:40 – 9:00 a.m.
Welcome

9:00 – 9:50 a.m.
National Exploitation Update | Presented By: Twyla Sketchley, Esquire (CLICK FOR BIO)

Maltreatment of the elderly (physical or financial) is a growing problem for an aging nation. This session is a review of case law, national statutory updates, and current national trends in protecting elders and people with disabilities from abuse, neglect and exploitation, and how lawyers can protect their clients from maltreatment.

Participants will be able to:

Distinguish national trends in case law and statutory changes regarding exploitation and similar cases against elders and people with disabilities;
Identify how maltreatment of elders and people with disabilities impacts law practices;
Recognize certain warning signs that may indicate abuse, neglect, or exploitation in clients;
Identify ethical issues that arise when an attorney is involved in cases of abuse, neglect or exploitation; and
Utilize provided practice tools including case law, research resources, and reading materials to protect clients.

9:50 – 10:40 a.m.
Representing a Fiduciary – The Lawyer’s Ethical Obligations | Presented By: Twyla Sketchley, Esquire (CLICK FOR BIO)

Fiduciaries–trustees, guardians, agents, and surrogates–all owe duties to the principal they serve. What are the lawyer’s obligations to his client, the fiduciary, and to the beneficiaries of that fiduciary relationship? This interactive presentation will explore the ethical obligations an attorney owes to a fiduciary as well as the third party beneficiaries of those relationships. At the end of this presentation, participants will be able to:

Identify a lawyer’s ethical duties to a fiduciary client;
Identify the ethical issues that arise between the lawyer’s duty to the fiduciary client and a beneficiary;
Assess the ethical problems the lawyer faces when he/she discovers a fiduciary he/she represents has breached its fiduciary duty;
Identify resources available to the lawyer to assist in resolving the ethical issues; and
Utilize the identified resources to resolve the ethical issues that arise when a lawyer represents a fiduciary that breaches its duty.

10:40 – 11:00 a.m.
Break

11:00 a.m. – 11:50 a.m.
Even In Exploitation Taxes are a Certainty—Tax Consequences to Transactions in Exploitation

Ben Franklin said there is nothing certain but for death and taxes. This is still true in exploitation. This session will discuss the tax consequences of exploitation on the victim and the perpetrator. At the end of this presentation, participants will be able to:

Identify what transactions in exploitation are subject to income taxes;
Identify what transactions in exploitation are subject to capital gains;
Identify the tax consequences to a victim when certain types of assets or accounts are cashed in exploitation
Evaluate case transactions for potential consequences; and
Determine when to refer clients to accountants and tax attorneys for additional assistance.

11:50 a.m – 12:40 p.m.
Vicarious Trauma & Burnout: The Impact Of Exploitation on the Attorneys Who Help Victims (MH)

As state bar associations and voluntary bar associations focus on lawyer mental health and wellness, lawyers need to explore how their practices impact their mental and physical health. Attorneys who deal with clients who suffer from trauma, such as elder abuse or exploitation, can suffer from the tension and emotion of their clients’ victimization. Over time the emotional effects can lead to attorneys suffering adverse mental and physical health effects and burnout. This session will explore how vicarious trauma impacts a lawyer and the symptoms of vicarious trauma and burnout. At the end of this session, participants will be able to:

Define vicarious trauma;
Define burnout;
Identify the symptoms of vicarious trauma;
Identify the symptoms of burnout; and
Develop a selfcare plan to manage the symptoms of vicarious trauma and burnout in a healthy way.

12:40 – 1:30 p.m.
Lunch

1:30 – 2:20 pm
The Ethics of Representing A Client Under Disability (Ethics) | Presented By: Twyla Sketchley, Esquire (CLICK FOR BIO)

Representing elders and people with disabilities brings with it special ethical obligations for lawyers. This session with review the ethical rules lawyers should observe when representing clients under disability.

Participants will be able to:

Identify the ethical rules for representing clients under a disability;
Explain the ways in which a lawyer can protect clients under a disability;
Identify the duties owed to clients under a disability beyond protection; and
Identify the resources available to assist lawyers in resolving ethical issues.

2:20 – 3:10 p.m.
Vicarious Liability, Civil Theft, Exploitation, Professional Negligence, & Whistleblowers: Suing to Recover After An Elder Has Been Exploited

Protecting and advocating for the elderly and people with disabilities means more than understanding exploitation and abuse. During this session, participants will learn causes of action against entities and individuals who may have assisted in the maltreatment of elderly or disabled clients and the ethical issues arising when associating counsel to bring these types of cases.

Participants will be able to:

Identify the cause of action known as vicarious liability;
Identify the cause of action known as negligent referral;
Identify the cause of action of professional negligence in the practice of law;
Learn about “Whistleblowers” and how those cases can benefit elders and people with disabilities; and
Identify ethical issues that can arise in bringing these cases or finding co-counsel to assist with these cases.

3:10 – 4:00 p.m.
The Loss of Retroactive Medicaid & The Complications in Its Wake

As of February 1, 2019, Florida has eliminated retroactive Medicaid for nearly all Medicaid recipients. The loss of Medicaid retroactivity in cases of the elderly and people with disabilities may mean they cannot pay for health care, even in crisis situations. This session will explore the origins of this change, how it applies to long term care Medicaid, and other options for payment of health care costs associated with long term care. At the end of this session, participants will be able to:

Explain what retroactive Medicaid was;
Identify how and when it was changed in Florida;
Describe the consequences and complications of eliminating retroactive Medicaid to elder clients; and
Identify other options for payment of health care for months retroactive Medicaid would have covered.

5:30 to 7:00 p.m.
Welcome Reception – Family Friendly

Day 3

8:30 – 8:50 a.m.
Welcome

8:50 – 9:40 a.m.
Transfer Penalties, No Retroactive Medicaid, or Not Sick Enough: Options for Long Term Care for Maltreated Elders

With the changes to Veterans benefits eligibility, the elimination of retroactive Medicaid, and a 63,000 person wait list for long term care waiver benefits in Florida, there will be some individuals who will be unable to pay for care after exploitation or abuse and no public benefits to assist with the costs of care. What options are available to assist maltreated elders? At the end of this session, participants will be able to:

Explain how a penalty period applies to transfers made by individuals applying for Medicaid or certain veteran’s benefits;
Identify procedures to challenge the application of a penalty period for Medicaid and veteran’s benefits;
Identify programs that subsidize housing and long-term care for maltreated elders other than Medicaid or veteran’s benefits; and
Formulate plans to assist maltreated elders by finding ways to support or fund housing or long-term care.

9:40 – 10:30 a.m.
Adult Protective Services: Who, What, How & When the State Acts to Protect Our Most Vulnerable

Adult Protective Services (APS) investigates reports of abuse, neglect, and exploitation of elders and people with disabilities and can initiate protective proceedings. Understanding its function and the process is essential for attorneys who work with elders and people with disabilities. At the end of this session, participants will be able to:

Identify who Adult Protective Services protects and the impairments or vulnerabilities of the protected population;
Differentiate between the purposes of state Adult Protective Services laws and civil laws that protect vulnerable adults;
Explain the basic process of an Adult Protective Services proceeding and the likely outcomes;
Identify mandatory reporters and explain how to make reports of abuse, neglect, and exploitation; and
Identify the ethical issues that can arise for attorneys involved in these proceedings.

10:30 – 10:40 a.m.
Break

10:40 – 11: 30 a.m.
Aging & the Human Brain: What Is the Impact On Our Function (MH)

As humans age, their brains shrink, they become more prone to cognitive impairment from vascular changes, and they begin to take more medications that may have negative side effects on cognition. Lawyers can practice law well into old age. However, deterioration of the brain and cognition can lead to mental health issues, memory deficits, and competency problems for an aging attorney. This session will discuss the aging process and the human brain, as well as what steps lawyers can take to maintain a healthy lifestyle and thriving practice into old age. At the end of this session, participants will be able to:

Identify the issues faced by elders and an aging population that impact capacity, cognitive function, and physical function;
Identify how aging impacts the human brain and cognition;
Describe how these changes can impact a lawyer’s ability to practice law; and
Formulate a plan to maintain a healthy lifestyle to ensure the highest possible function physically and mentally as the lawyer ages.

11:30 a.m. – 12:20 p.m.
Fairness, Integrity, and Civility: Maintaining Professionalism in Difficult Cases with Difficult People

Lawyers now take an oath of professionalism which states: “To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.” This can be difficult when opposing counsel becomes hostile, a client’s expectations are unreasonable, the court denies your relief, or your assistant quits. This session will allow participants to explore responses to hypothetical high stress practice situations. At the end of this session, participants will be able to:

Explain why the professionalism oath was added to the Oath of Attorney;
Identify stresses in practice that challenge a lawyer’s ability to remain professional;
Find ways to diffuse unprofessional situations in everyday practice; and
Develop personal strategies that can help cope with stress and reduce unprofessional interactions initiated by the lawyer.

12:20 – 1:10 p.m.
Lunch

1:10 – 2:00 p.m.
Veteran’s Benefits Changes and Exploitation: The Impact on Veterans

In October 2018, eligibility requirements for VA benefits dramatically changed, creating transfer penalties and look-back periods. How will these changes impact elderly and disabled veterans who have been exploited? At the end of this session, participants will be able to:

Identify various changes to law and policy in the past year that will impact the lives of elders and vulnerable adults;
Explain how assets missing due to exploitation of an elderly or disabled veteran will be treated under the new law changes;
Discuss with clients how these changes impact their estate and public benefit planning; and
Identify the ethical issues created by the changes to veteran’s benefits eligibility.

2:00 – 2:50 p.m.
Unwinding Bad Medicaid & VA Plans

Out of fear of the catastrophic costs of long term care, often elders and their families are convinced by bad actors to create “plans” that are supposed to allow an elder to become eligible for Medicaid or certain veteran’s benefits. However, these plans are often not in the best interest of the elder, have significant financial consequences, or may even amount to financial exploitation. This interactive session will discuss the various ways in which elders and their families are conned into creating inappropriate plans and how lawyers can help unwind them. At the end of this session, participants will be able to:

Identify common schemes used by bad actors to promise that an elder will qualify for government benefits;
Explain the consequences of the common schemes to an elder’s finances or eligibility for public benefits;
Identify ways in which elders can verify the qualifications and background of potential planners;
Develop strategies for unwinding plans that are harmful to elders; and
Analyze the ethical issues related to unwinding bad planning for elders.