“State attorneys general have established themselves as the epicenter of leading enforcement actions. Because of this trend, it is important to develop a forum for practitioners to share best practices and for in-house counsel to share their experiences,” said Taylor, a partner at the law firm Troutman Sanders LLP and one of the inaugural co-chairs of the committee. “The ABA has a long tradition of developing such venues and is recognized for high-quality educational legal programs.”

According to the National Association of Attorneys General, attorneys general now share enforcement authority in many areas that used to be considered the exclusive responsibility of the federal government. Issues such as trade regulation, environmental enforcement and criminal justice have changed who is involved in the process. But unlike the NAAG, which brings together various state attorneys general and their collective staff, the State Attorneys General and Department of Justice Issues Committee also includes private practitioners, corporate counsel, government lawyers, judges, law professors, law students, non-lawyers with an interest in the work of attorneys general.

“Our state attorneys general stand at the forefront of many of the critical legal issues facing our country,” said Anthony J. Majestro, an attorney at Powell & Majestro PLLC and co-chair of the State Attorneys General and Department of Justice Issues Committee. “This new committee can help our attorneys general and the private attorneys who work with them or defend companies in actions or investigations brought by their offices.”

Since the announcement of the new entity in March, the State Attorneys General and Department of Justice Issues Committee has welcomed more than 200 founding members. The inaugural meeting took place in early May at the 8th Annual State and Local Procurement Symposium in Nashville, Tenn. Members discussed their desire to publish relevant legal analyses, to pursue speaking engagements outside the ABA and to develop continuing legal education programs on the subjects around the work of attorneys general.

“I think it proves that there is a lot of interest in the subject matter,” said Ellen F. Rosenblum, Oregon attorney general and the sitting attorney general co-chair of the committee.

With an already active email listserv and plans to conduct a member survey to continue to solicit appropriate activities and issue coverage, the State Attorneys General and Department of Justice Issues Committee seeks to keep new members engaged.

The next meeting of the committee will take place at the ABA Annual Meeting in San Francisco. To learn more about joining, please click here.

The panelists, speaking during the American Bar Association Health Law Section podcast “How to Kick-Off a Successful Health Law Career,” emphasized the value of participating in a wide variety of activities related to health law, including taking diverse courses, working at internships or legal clinics, joining relevant organizations, attending educational conferences and writing articles for niche publications.

“In order to maximize your opportunities, especially early on, you can never say no,” said Jay McEniry, executive vice president and general counsel at MediStat Specialized Pharmacy Services in Foley, Ala. “It’s going eat up a lot of your personal time and professional time and eat up a little bit of money on the way.”

Geeta W. Kaveti, senior counsel at the Office of Counsel to the Inspector General at the Department of Health and Human Services, in Washington, D.C., recommended students take a broad range of classes to determine what subject areas they are most passionate about and what their strengths are.

“I would encourage you to keep an open mind, and don’t pigeonhole yourself too early because you never know what is going to be interesting and out there for you to do,” she said.

And while it’s good to have a broad general knowledge of health law, McEniry said, “If you try to be good at everything, you are never going to be good at anything.”

Jennifer Rangel, a partner at Locke Lord LLP in Austin, Texas, suggested becoming an expert on a specific new health law. “That’s a good opportunity to be at the forefront and make a niche for yourself,” she said.

By completing internships and working at her college’s legal clinic, Kaveti said she gained a better understanding of health law in action.

“I cannot speak enough to the benefit of doing a clinical program,” she said. “The experience you will get working with clients — actually drafting motions, going to court, doing hearings — is invaluable and will help you see whether litigation is really something that you’re interested in and also help you learn what your own skill sets are.”

The panelists also stressed the importance of joining relevant organizations, such as the ABA’s Health Law Section, and attending as many meetings as possible to take advantage of educational opportunities and networking connections.

“You see what are the hot topics, what are people dealing with today, what are people thinking about, what are the issues [you] need to know about,” Rangel said of attending such conferences.

McEniry cited the example of the upcoming Physician Legal Issues Conference sponsored by the ABA Health Law Section as a great opportunity.

“That’s the best $75 you will ever spend if you can get yourself to Chicago,” he said.

The podcast was moderated by Anthony J. Burba, an associate at Arnold & Porter LLP in D.C., and sponsored by the ABA Health Law Section.

“Depending on the circumstances of how the client comes to you, it may be a bit confusing,” said Colorado Springs lawyer Michael A. Kirtland at the teleconference “An Introduction to Elder Law,” hosted by the Elder Law Committee of the ABA Young Lawyers Division.

Kirtland described how this question must be answered as quickly as possible.

“It’s not unusual in the elder law setting to have an adult child of a senior call you first, maybe even ask to have a discussion with you first, and then bring their parent in. The result of that is you have a decision to make: Is the adult child your client, or is the senior your client? And the important thing is to make that decision right upfront, because I’ve seen quite a few attorneys completely conflicted out of a case because they didn’t make that distinction,” Kirtland said.

Once a lawyer has determined who he represents in the case, he can still face obstacles including who will pay the bills.

“It is not unusual for the adult child or other family members to be paying the legal fees for the representation, but the client is actually the senior,” Kirtland said. “If that’s the case, you have to do a number of things. One of them is you have to keep in the forefront of your mind that the senior is your client, and your duty of confidentiality under the Rules of Professional Conduct lies with that senior.”

Kirtland also said it helps to have these roles defined in written agreements.

“…You need to get in writing from the senior consent to the fact that someone else will be paying the bill. And you need to get in writing from the person paying the bill that although they are responsible for the legal fees, they are not the client, and they are not entitled to confidential information,” he said.

Chicago lawyer Kerry R. Peck described why third-party custodial arrangements are sometimes needed.

“Much of elder law deals with cognitively impaired clients to some degree or another. Obviously, you’re not sure when they come in the office,” Peck said. “But as we talk about guardianships and alternatives, we are talking about third-party decision makers on behalf of an older adult or cognitively impaired adult over age 18. Those decision makers come in a variety of formats, but basically in two categories: an agent under a power of attorney [for both health care and property], and the other would be a court-appointed guardian.”

Peck then offered a hypothetical situation to help attendees understand the issues with these custodial arrangements and the sometimes life-or-death situations that arise out of these cases.

“If I am the principal and I’m naming, say, Michael, to make decisions for me, under almost all of the laws of the country, I must have the capacity to name Michael to make decisions for me. When I make the decision to choose Michael, I know that Michael is going to make the decision, in theory, to pull the plug when I am no longer able to make these decisions, if that’s my expressed intentions in my documents.

“We as lawyers need to be acutely aware of whether our client has the capacity to do the act and sign the documents that we are asking them to sign. Capacity is a fluid situation … and it’s like love, it’s in the eye of the beholder,” Peck added.

Colorado lawyer Catherine Anne Seal addressed the complexities of a client’s eligibility for Medicaid, the federal system of health insurance for those who need financial assistance. She stressed that Medicaid rules differ state by state and that financial eligibility rules treat assets and income differently for couples (assets are counted together, while income is considered separately for each spouse).

The panel also discussed one of the most challenging issues facing the elderly and those who represent them.

“How do you prevent elder abuse?” asked Seattle attorney Margaret K. Dore. “In some individual cases, we have been very successful in preventing it. But as a society, we’re not particularly good at it … One of the problems with stopping elder abuse is that there are so many ways to abuse people, and a lot of it happens behind closed doors. And each type of abuse requires a different strategy to combat it. Some of the strategies we use, such as guardianships, can create more abuse.”

“Voices for Victims: Lawyers Against Human Trafficking,” a video produced for the American Bar Association Task Force on Human Trafficking in partnership with the ABA Communications and Media Relations Division has won a Bronze Telly Award — a runner-up to first place.

The Telly Award is the premier award honoring the finest film and video productions. The 34th annual Telly Awards received more than 11,000 entries from all 50 states and numerous countries.

“The Telly Awards has a mission to honor the very best in film and video,” said Linda Day, executive director of the Telly Awards. “The American Bar Association’s accomplishment illustrates its creativity, skill and dedication to its mission and serves as a testament to great film and video production.”

Some of the distinguished recipients of last year’s award include the Walt Disney Co., NASA, NBCUniversal, CBS Interactive and Aon.

The video is the centerpiece of the toolkit for state and local bar associations, developed to help American lawyers respond when President Barack Obama challenged Americans to the end of “one of the greatest human rights abuses of our time”—human trafficking.

The video is a crucial component of the ABA’s year-long effort to mobilize its nearly 400,000 members in the fight against modern-day slavery. More than a call to action, the video includes tangible courses of action to meet the problem head-on. Underscoring the relevance of the video, U.S. Ambassador Luis CdeBaca said, “Victims of trafficking are vulnerable because they don’t have a voice in society. And what do lawyers do? We give others a voice.”

Janet Fries, of counsel in the intellectual property practice group for Drinker Biddle & Reath LLP in Washington, D.C., weighed in on these issues.

What is covered by the copyright statute? Fries said coverage is afforded to literary, musical and dramatic works; pantomimes and choreographed dance works; pictorial, graphic and sculptural works; motion pictures and other audio-visual works; sound recordings; and architectural works. “The statute has that very specific list, and the trick then is to get something to fall into one of those enumerated categories,” Fries said.

The U.S. Copyright Office issues a fact sheet laying out that copyright does not protect mechanical or utilitarian aspects, Fries said. The fact sheet specifically mentions automobiles being precluded from copyright protection.

But what about the Batmobile? In a recent case, a California court determined that the Batmobile is protected, and it reached this conclusion by analyzing whether the car’s utilitarian aspects could be separated from its design aspects, and they could, Fries said. The court determined that what makes the Batmobile go — the useful aspects of the car — is different from the bat wings and the design. “The court went on to say that the Batmobile is a character and is protected as a character, and they mentioned that it’s like Godzilla and is protected in the same way,” Fries said.

When it comes to costumes, sometimes they are protected and sometimes they are not, Fries said. “Typically clothing obviously is pretty darn useful and would fall into that utilitarian category and not be protected by copyright,” she said. However, “sometimes people try to blur the line and create wearable art or soft sculpture that can be worn.”

In 1989’s Whimsicality Inc. v. Rubie’s Costume Co., that was what happened, Fries said. Ultimately, Whimsicality was found to have filed a bad faith application because it didn’t use the word “costume,” and in this case the costumes were not protected, she said.

Another case involving costumes is 2010’s Lyons Partnership v. D&L Amusement & Entertainment. “In this instance, the defendant was making adult costumes for parents to wear to parties with kids,” Fries said. “They were Bob the Builder costumes and Barney costumes.”

In this case, the court found that these costumes were protected by copyright law, Fries said. “The court looked at the costumes as images and seemed not at all bothered by any utilitarian components,” she said. The plaintiffs were awarded damages and an injunction.

“So what we’ve learned is, with regard to superheroes, their cars can be characters and their costumes can be images, or maybe not,” Fries said. “There’s been no Supreme Court ruling on any of these things, so it will be interesting to watch and see how these kinds of issues play out in future cases.”

This ABA CLE was sponsored by the Section of Intellectual Property Law Young Lawyers Action Group, Young Lawyers Division, Forum on the Entertainment and Sports Industries and Center for Professional Development.

An expert panel discusses “Is Your Spouse a Trust Beneficiary? State Law Holds the Key for Same-Sex Spouses” during an event hosted by the ABA Section of Real Property, Trust and Estate Law

Same-sex couples who marry or join in civil unions face unique challenges to determine whether their partner qualifies as a beneficiary of their trusts, and attorneys must often navigate complex or unclear laws to guide their clients appropriately.

“State law is key on this issue,” said Ray Prather, an attorney at Prather Ebner LLP. In general, the Internal Revenue Service defines a trust as a relationship in which one person holds title to property, subject to an obligation to keep or use the property for the benefit of another. Trusts are often used to pass monetary benefits to a spouse through a third party. However, state laws vary on whether same-sex partners who are married qualify as spouses.

Currently, 10 states and the District of Columbia have legalized same-sex marriage and five states have instituted civil unions for gay couples, but in most states, marriage is limited to heterosexual relationships.

On the federal level, the Defense of Marriage Act says that the government cannot acknowledge same-sex relationships and that states do not have to recognize any other states’ relationship laws, leaving it completely up to the state in which the case was filed to define “spouse,” Prather said.

The Supreme Court is currently weighing the constitutionality of DOMA, which defines a marriage as a legal union between one man and one woman. The decision will have an effect on how spouse is defined in trusts and estate law and whether states must acknowledge the marriage laws of other states.

In order to resolve trust cases, an attorney must seek clarity on who can be considered a spouse, experts said during the panel discussion “Is Your Spouse a Trust Beneficiary? State Law Holds the Key for Same-Sex Spouses.” The event was hosted by the American Bar Association Section of Real Property, Trust and Estate Law during its 24th Annual Spring CLE Symposia.

“The general rule is that a marriage in another state is valid and will be recognized … unless it is contrary to a public policy of the foreign jurisdiction, and of course, there is no public policy except when it comes to same-sex marriages,” said Daniel Ebner, an attorney at Prather Ebner LLP. “One of the places to start is, what are the various ways that spouse is defined in trust documents?”

Ebner said there are three standard ways of defining spouse in trust documents. One is simply based on the definition of “spouse” by the state in which the couple married. A second definition says they have to be “married,” without mention of where or how. The third is simply undefined.

“Some courts say to read the trust document as a whole to determine if there is an ambiguity and if it can be resolved by reading the entire document,” Ebner said. “If you cannot resolve the ambiguity by looking at the document as a whole, you look at extrinsic evidence.”

Extrinsic evidence not only includes state laws regarding the legal definition of spouse but also the grantor’s intent during the establishment of the trust.

“One of the great ironies in probably our entire field is the concept of grantor’s intent, because if we are really honest, I would guess that 85 percent of estate plans don’t put in any grantor intent,” said Stacy E. Singer, attorney at the Northern Trust Company. “The challenge for most of the last 100 years, the bulk of that time no one thought spouse meant anything other than different-sex couples who were engaged in a wedding.”

Lawyers should look to the timing and any language that can help determine whether there is true grantor intent.

When there is not a clear intent of the grantor, trustees and fiduciaries often turn to the courts to help resolve the issue.

“That’s where I think this is going to go for the next five years or so,” Singer said. “Absent some kind of Supreme Court ruling that gives us clarity on this.”

“It is not really a straightforward analysis,” added Terrence M. Franklin, an attorney at Sacks Glazier Franklin & Lodise LLP. “All these changing laws, societal opinions and even personal opinions about the recognition of same-sex relationships complicates just who is a spouse and who is entitled to inherit.”

Using the 1999 football film Varsity Blues to introduce the subject, a panel discussed potential targets of liability for youth sports injuries, such as a school that employs a coach who encourages “dirty play” and has a history of that kind of behavior. 

“Potential jurors will not look kindly at that kind of thing,” said Carla Varriale of Havkins Rosenfeld Ritzert and Varriale, who represents the New York Mets.

Another example is a camp that does not keep its facilities in good condition. 

“If you don’t keep facilities well-maintained, you open yourself up to liability. You don’t get to argue inherent risk if it’s a maintenance issue. You can’t defend against that. Your maintenance person is going to be your witness. You better have someone you don’t mind putting on the stand,” Baroni said. 

Panelists also discussed a scenario in which an organization employs a leader who, without training to do so, clears an injured player to re-enter a game.  

Baroni referred to this situation as seeking a “short-term victory when it’s really doing something to permanently harm the athlete’s body.” 

“If you just stick to the general negligence formula of duty, breach, causation and damages, that’s a framework in which to analyze these things,” Varriale said. 

Baroni and Varriale discussed a recent award to an injured former Colorado high school football player. Helmet maker Riddell paid $3.1 million of the damages, not because of product defects, but because the helmets had no warnings about concussion dangers. 

“It’s always a good idea to have a waiver in some form, even if you’re in a jurisdiction that does not smile kindly upon them. I think it is the right thing. You have expressly disclosed all of the inherent risks. … And I’ll go one step better: Not only should there be individual waivers, I think the language should be repeated on a sign-in sheet, a roster, etc. That’s even an extra layer of protection. The more descriptive the waiver form is, the better,” Varriale said. 

The CLE event, sponsored by the ABA Center for Professional Development and nine other ABA entities, did not focus solely on interscholastic sports but also intramural sports, adult recreation leagues and cheerleading.

From left to right: Stephen P. Younger, chair of the Levit Essay Subcommittee of the ABA Standing Committee on Lawyers’ Professional Liability; contest winner Michael Stramiello and Glen Olson of the law firm Long & Levit.

Michael Stramiello, a third-year student at the University of Alabama School of Law, displays the plaque he received as winner of the 2013 Bert W. Levit Essay Contest, sponsored by the ABA Standing Committee on Lawyers’ Professional Liability. His winning essay was a legal memorandum to a law firm general counsel concerning the firm’s potential malpractice exposure when it relied upon a third-party vendor to provide document review services for a client, which ultimately resulted in the release of privileged documents. His essay and the contest hypothetical are available here.

In addition to receiving the contest’s $5,000 cash award, Stramiello was a guest of the standing committee in attending its ABA’s Spring Legal Malpractice Conference in New Orleans.

Pictured with Stramiello are (at left) Stephen P. Younger, chair of the Levit Essay Subcommittee of the ABA Standing Committee on Lawyers’ Professional Liability, and Glen Olson of the San Francisco law firm of Long & Levit. The firm helps judge the competition and provides the $5,000 cash award.

Open to members of the ABA Law Student and Young Lawyers Divisions, the contest recognizes outstanding legal essays on a predetermined topic. It is named in memory of Bert W. Levit, a lawyer with Long & Levit, and a founder of the California Fair Plan and other insurance companies.

The ABA Standing Committee on Lawyers’ Professional Liability provides statistics and other information on legal malpractice claims, malpractice insurance and malpractice prevention.

The reason for the growth in demand is an increase in unaccompanied minors, many of whom come to the U.S. on their own and are then placed in detention, said Meredith Linsky, director of ProBAR. “There is increased violence in Central America, and some [children] are joining family members who are already here,” she said.

Some children are as young as toddlers, but the majority of youths who ProBAR works with are ages 14 to 17, Linsky said.

ProBAR was created in 1989 by the American Bar Association, State Bar of Texas and American Immigration Lawyers Association in response to the overwhelming need for pro bono legal representation of Central American asylum seekers detained in South Texas. Last year, ProBAR individually screened about 3,500 detained unaccompanied children, Linsky said.

“The majority of these children come from Guatemala, Honduras and El Salvador,” Linsky said. “This is about a quarter of the total 14,000 children that were apprehended and placed in the custody of the Department of Health and Human Services’ Office of Refugee Resettlement.”

She expects the numbers in 2013 to be higher than in 2012. She added that she doesn’t anticipate that immigration reform measures will increase the numbers any further.

Still, the system is taxed. There are four judges, who used to have four children’s dockets a month, Linsky said. Now they have 20 to 25 dockets a month.

The need for volunteer lawyers remains great. In addition to permanent staff, ProBAR uses the services of volunteers, both with and without experience in immigration law. ProBAR welcomes volunteer attorneys, recent law graduates, law students and legal assistants. Attorneys need not be licensed in the state of Texas to participate, and ProBAR provides malpractice insurance for attorneys working on cases through its office.

(For more information on volunteering, call 956-425-9231 or email probar@sbcglobal.net.)

With the expansion of ProBAR, getting the infrastructure in place and making sure staff is trained are challenges, Linsky said. “The new office is already open and we are slowly staffing up,” she said.

Staff plays a special role in understanding the distinctive needs of youths and others who ProBAR serves, said Megan Mack, director of the ABA Commission on Immigration. “Commission staff at ProBAR … knows firsthand how important it is for children, mentally disabled people and other vulnerable individuals to have access to a lawyer and legal information to help them navigate extremely complex immigration laws,” Mack said.

ProBAR has been serving detainees at the Port Isabel Detention Center, a 1,200-bed facility owned and operated by U.S. Immigration and Customs Enforcement, for more than 20 years. Linsky said individuals at the facility are not just from Central America but all over the world, including Latin America, Africa, Southeast Asia and the Middle East.

Founded by just one attorney coordinator and one volunteer paralegal, the organization now has a team of attorneys, Board of Immigration Appeals-accredited representatives, paralegals and volunteers.

Sen. Richard Burr (R-N.C.) addresses the Leadership in Action Luncheon during a joint Spring Meeting of the Tort Trial and Insurance Practice Section and Judicial Division

Tarek al-Tayeb Mohamed Bouazizi was a Tunisian vegetable street vendor who set himself on fire in late 2010. Bouazizi was protesting the confiscation of his wares and the harassment he felt he endured from municipal officials. His act incited demonstrations throughout Tunisia in protest of the country’s autocratic policies and became a catalyst for Tunisia’s political revolution and the “Arab Spring” events that spread throughout the region.

“The world was changed by one person who decided to do something. It was due to a single leader,” Sen. Richard Burr, R-N.C., said at the Leadership in Action Luncheon of the Tort Trial and Insurance Practice Section and Judicial Division Joint Spring Meeting and CLE Forum. “Take every opportunity to stand up and be part of the solution, the dominating force of the communities we live in. Take the initiative to be the point of the spear. … Leaders are working on the solution before many recognize they have a problem.”

Drawing on his background as the son of a Presbyterian minister, college football player, businessman and public official, Burr discussed his views on the past, present and future of leadership, tracing the long arc of successes and failures, from ancient Rome to the future.

Burr said leadership is especially necessary now because the world is changing so quickly. While it took radio 38 years to get 50 million listeners, the Internet reached the same number of users in four years, the iPod took three years and Facebook needed only two years. And “life is only going to get quicker,” he added.

“Data now drives change and the future, and as new opportunities are presented, the question is how to use that data,” Burr said, adding that a critical related question is, “Who owns my individual data?”

“We’re at a challenging point in history, with a need for leadership,” Burr said. Naming public debt, world economic uncertainty and national security/terrorism (the last requiring special “resolve and vigilance”) as the challenges most requiring leadership, he cited the works of two prominent figures:

British businessman and politician Lord Digby Jones has spoken about the Roman Empire falling apart because of its people becoming complacent, indulgent, selfish and concentrated on their rights rather than their responsibilities. Nineteenth-century French historian Alexis de Tocqueville wrote about Americans’ capacity to give of their time and resources to help those in need.

Burr feels that leadership consists of character, conviction and commitment, and that today it is lacking “at both ends of Pennsylvania Avenue.” He’s hopeful, however, because “Americans always respond, and leaders come from the communities we represent.”