Our firm was proud to participate in the Sacramento Habitat for Humanity ‘s 2nd Annual Attorney Build!

Wilke Fleury’s 11-member team included attorneys and professional staff who worked on the home in order to provide home buying opportunities for low-income families. The Habitat for Humanity builds affordable homes in partnership with families in need, supported by a host of volunteers, faith based organizations, donors and corporations for the betterment of Sacramento’s community.

We also congratulate our managing partner, Ronald Lamb, on his recent appointment to the Habitat for Humanity Board.

As an attorney who practices primarily in the construction defect arena, I read Dr. Craner’s commentary¹ with particular interest. My practice includes both prosecution as well as defense of owners and developers in residential and commercial property cases, many of which have a “mold” component. Indeed, my deposition of Dr. Bruce Kelman in the Kerruish v. Kimball Hill Homes case is cited in Craner’s article.

In my many years of experience on both the plaintiff and defense sides of the “mold” debate, i.e., whether and to what extent indoor mold arising in water-damaged buildings is a valid, diagnosable, treatable, and preventable environmental health disorder, I have, since its publication, consistently observed defense experts relying upon the ACOEM’s statement on “Adverse Human Health Effects Associated with Molds in the Indoor Environment”² as the “final” scientific word on the issue. Plaintiff experts, on the other hand, are routinely challenged to defend and prove the scientific basis of their affirmative opinions as a rebuttal to the ACOEM Statement.

Those of us who practice in this area have long suspected that the heretofore concealed process by which the ACOEM Mold Statement was created was flawed and biased, not only in its content and balance as an “evidence-based” guideline, but especially in its tone, which blatantly comes across as a “defense argument” to any attorney willing to read it. How can any advocate come away with any other impression when the same experts who were profiting from defense medical/legal consultations and testifying in mold-related litigation were incredibly selected by ACOEM to be the primary authors of its organizational position statement on this subject?

Dr. Craner’s critique has finally brought some light and balance to the issue. Construction defects and resultant litigation related to indoor mold will go on, but I strongly suspect the ACOEM Mold Statement will no longer receive the same level of reliance or respect that it has been unduly given up to this point by attorneys and experts. ACOEM, as an organization, has major credibility problems as a result of this document and would do well to follow Dr. Craner’s recommendations to restore organizational integrity and respect.

References
1. Craner J. A critique of the ACOEM statement on mold: undisclosed conflicts of interest in the creation of an “evidence-based” statement. Int J Occup Environ Health. 2008 Oct-Dec;14(4): 283-98.
2. Adverse Human Health Effects Associated with Molds in the Indoor Environment. Journal of Occupational and Environmental Medicine:Volume 45(5): 470-478 (2003).

On Friday, February 1, the United States Court of Appeal for the Ninth Circuit upheld a $5,000,000 judgment in a 2010 case brought by Wilke Fleury on behalf of plaintiffs Brian Dawe, Gary Harkins, and Flat Iron Mountain Associates against the California Correctional Peace Officers’ Association, Corrections USA, and one individual defendant. That judgment, in turn, followed a three-month trial in which a federal jury found that the defendants defamed Messrs. Dawe and Harkins and perpetrated related acts that caused significant damages to Dawe, Harkins, and Flat Iron Mountain Associates.

On appeal, the defendants argued that the judgment against CCPOA et al. was too large, and also maintained that certain claims should have been denied altogether under California’s application of the “litigation privilege,” among other principles. The appellate panel uniformly and unanimously rejected each of the defendants’ arguments, and affirmed the district court judgment in full.

In both the jury trial and on appeal, Dawe, Harkins, and Flat Iron were represented by Wilke Fleury partner Dan Baxter. Dan and his clients not only achieved the victories mentioned above, but also prevailed on each of the counterclaims advanced by the defendants at the trial.

Wilke Fleury congratulates Dan and his clients for achieving a fair and just result.

The work of Wilke Fleury partner and lobbyist John Valencia was hailed by the American Society for Dermatologic Surgery in the September/October 2012 edition of Currents, the Society’s semimonthly magazine. In an article entitled “ASDSA Victory: California Patient Safety Bill Passes,” the Society detailed the passage of Assembly Bill 1548 (imposing stiffer penalties for violations of the ban on “rent-a-doc” business schemes that have become prevalent in the context of cosmetic medical procedures), and specifically highlighted the importance of Mr. Valencia’s work. Among the “lessons” noted by the Society in advocating for AB 1548’s passage was the following:

"Engage an excellent contract lobbyist:  John Valencia of Wilke Fleury acted as the contract lobbyist in California for every step of this effort.  He is passionate and knowledgeable about this issue and became a trusted resource within the state legislature, MBC, Governor’s Office and other venues.  His hard work and creativity was absolutely critical to this success."

Wilke Fleury is proud of Mr. Valencia’s diligent work, and values the trust and confidence the Society has placed in Mr. Valencia and the firm.

Wilke Fleury Partner and Chief Lobbyist, John Valencia, will address The Federation of State Medical Boards (FSMB) on November 1st in New Orleans. Mr. Valencia has been invited to present on "The Use of MedSpas in California to Facilitate the Nonphysician Practice of Medicine." Mr. Valencia will chronicle the recent, successful enactment into law by California Governor Jerry Brown of Assembly Bill 1548 to counter these unlawful practices – a project of Wilke Fleury client, the American Society for Dermatologic Surgery (ASDS).

The measure was strongly supported by the Medical Board of California.

The Federation of State MedicalBoards is a national non-profit organization representing the 70 medical and osteopathic boards of the United States and its territories. The FSMB’s 2012 Board Attorneys Conference convenes over two days to address key, patient-protection issue developments in the states.

Wilke Fleury associate Samson Elsbernd is a trustee on the State Bar of California Board of Trustees (formerly, the Board of Governors). Recently, Mr. Elsbernd’s fee waiver proposal to the State Bar Board of Trustees returned from the public comment phase, and was unanimously approved by the Board of Trustees on July 20, 2012 as State Bar Rule 2.16(C)(3)(c). As a result of Mr. Elsbernd’s work, Rule 2.16(C)(3)(c) now allows for a 50% waiver of annual membership fees for members with a total gross annual household income of $20,000 or less.

Wilke Fleury applauds Mr. Elsbernd’s efforts on behalf of financially struggling attorneys.

Wilke Fleury is pleased to announce that one of its partners, Robert Mirkin, has recently been bestowed the “AV Preeminent” peer review designation by Martindale-Hubbell, joining several other Wilke Fleury “AV” attorneys. Martindale-Hubbell’s peer review ratings are an objective indicator of a lawyer’s professional ability and high ethical standards, and the “AV” designation signifies an attorney’s ranking at the highest level of professional excellence.

Mr. Mirkin specializes in real property litigation and transactions, with a particular emphasis on receivership work.
Wilke Fleury is proud to count these fine lawyers among its ranks.

Wilke Fleury associate Natalie Johnston Butcher was recently appointed by Mayor Kevin Johnson, and confirmed by the City Council, to serve a six-year term on the City of Sacramento’s Ann Land/Bertha Henschel Memorial Fund Commission. The Commission is entrusted with administering the disbursement of the income of the Ann Land Memorial Fund and the Bertha Henschel Memorial Fund for the benefit, aid and assistance of the destitute residents of the City of Sacramento in such a manner as may be deemed proper and beneficial.

Ms. Butcher looks forward to her work on the Commission and the opportunity to assist the people of Sacramento.

In conjunction with the recent commemoration of its 90th anniversary, Wilke Fleury was the subject of a June 1 article in the Sacramento Business Journal. Reporter Kathy Robertson sat down with longtime Wilke Fleury attorneys Richard Hoffelt and William Gould to find out what has sustained the firm for so many years, and why Wilke has succeeded where others have failed. To view the article in its entirety, click here.

Wilke Fleury is proud of its longevity in the community, and looks forward to continuing to serve Sacramento for the next 90 years.

www.bizjournals.com/sacramento/blog/kathy-robertson/2012/05/wilke-fleury-90-years-changes-law-firm.html

Sacramento Business Journal – By: Kathy Robertson

Wilke Fleury is proud to welcome two new clerks for the summer of 2012—Branden Clary and Nikki Agravante.

Branden is an Elk Grove native who just completed his second year at the University of California, Los Angeles School of Law. There, in addition to meeting his scholastic obligations, Branden serves as a legal writing advisor for UCLA’s legal writing program. Branden graduated magna cum laude from the University of California, Santa Barbara with a double major in political science and Asian American studies. He grew up in Elk Grove.

Nikki attends the University of California, Davis School of Law, where she just completed her first year, and is currently a Sacramento County Bar Association 2012 Diversity Fellow. At law school, Nikki serves as the co-chair of the Filipino Law Students Association and is a member of the King Hall Football Club. Nikki graduated magna cum laude from New York University with a Bachelor of Arts in politics and Asian/Pacific/American studies.

Branden and Nikki are both excited to be part of the Wilke Fleury team, and we look forward to watching them succeed!

On January 1, 2012, Wilke, Fleury, Hoffelt, Gould & Birney, LLP commenced its 90th year in the practice of law.

The firm was founded in 1922 by two young Sacramento lawyers, J. L. Henry and Grover Bedeau. Henry and Bedeau had a general law practice until 1948 when Grover Bedeau accepted a judgeship with the Sacramento County Superior Court. Shortly thereafter, J. Henry also received a judicial appointment, and the firm became known as Wilke & Fleury under the direction of Sherman C. Wilke and Gordon A. Fleury. In the early 1950s, the firm commenced a period of sustained growth populated by bright and dedicated lawyers, several of whom followed the lead of Henry and Bedeau and became judges.

The firm has always prided itself in being a part of the Sacramento community, and has encouraged its attorneys to participate in community affairs and bar association activities. The firm’s commitment to Sacramento and the surrounding region is evidenced by the key role it has played in the area’s spectacular growth.

As of January 1, 2012, Wilke, Fleury, Hoffelt, Gould & Birney has grown to 32 attorneys practicing in a wide variety of legal areas. The firm enjoys the highest professional rating available to law firms, and we believe that Messrs. Henry and Bedeau would be delighted with the success of the firm that they started back in 1922.

By Dana Olsen

Move over, Big Law. Small Law is in. And the trend has proven to be more than a temporary reaction to the 2008 financial meltdown. Four years later, corporate lawyers are flocking to small firms.

Some lawyers call it disaggregation, and it reflects a change in the way the legal industry operates. Small firms are flourishing because clients’ demands have evolved over the years. Rather than relying on one firm and paying for a package of legal needs, clients are turning to different firms, and in some cases to legal support businesses, for different tasks. While the economic downturn certainly encouraged clients to search for more cost-effective legal representation, many clients had already come to think that they were throwing money away by sending all their work to big firms.

The key has been the unbundling of legal services. This allows legal departments to match specific tasks with the right service providers. Converts point to high-priced first-year associates as an example of the problem with big firms. Some clients unknowingly pay nearly the same hourly rate for these inexperienced lawyers to review documents and perform discovery as they pay for partners to, say, write briefs and hold settlement conferences. By contrast, small firms aren’t saddled with the need to train armies of associates on the client’s dime.

The unbundling of tasks has also permitted firms to tap new technology to perform time-consuming jobs. They now rely on software to help speed some of the most burdensome e-discovery jobs, like document production and review, rather than hit up clients with first-year associate rates.

Beth Anisman has watched the evolution over the past decade. She was a lawyer for Lehman Brothers Holding Inc. before the financial firm declared bankruptcy in 2008; then she became the chief operating officer for the legal department of Barclays Capital Inc. She spent years managing legal operations for the two financial powerhouses before she struck out on her own to found B&Co Consulting in New York, which advises corporate lawyers on how to manage their clients’ needs. Much of her current work consists of advising corporate lawyers on which law firms and agencies to hire for which tasks.

Anisman advocates splitting up work and using small firms whenever possible. Before clients began breaking apart legal services, many would pay one brand-name law firm a huge fee to perform all legal duties. "Clients are smarter about how they manage their legal accounts," says Anisman. "They started to say to themselves, ‘What did I just buy?’ "

Consultant Peter Zeughauser has observed the same phenomenon from his perch in California. "I think big corporations are more careful about who they hire for what work," says the legal strategist, who founded Newport Beach–based Zeughauser Group in 1995. "They won’t automatically hire big firms, which is what they used to do. They’ve become more sophisticated, which means they hire firms that are right for each individual matter.

"There’s a lot of pressure from the general counsel’s office on the lawyers in the department to keep costs down," Zeughauser continues. "For a lot of the day-to-day work that needs to be done, they’re hiring small firms more and more."

That’s the case at American International Group, Inc. Eric Kobrick, AIG’s deputy general counsel, says he began hiring small firms to work for the insurance giant in 1997, the day he walked in the door. "The old structure—an hourly rate presented with no detail—has never been acceptable," Kobrick says. "Small firms, in general, are more flexible. They’re able to use rate flexibility, and still provide excellent service."

But money isn’t everything. In fact, some small firms take umbrage at the suggestion that what they offer is slashed rates. Kathryn Ellsworth, a former Dewey Ballantine partner who left the mammoth firm to cofound a 15-lawyer shop, says her firm’s marginally cheaper pricing is one small part of the equation. "We do the same work [as big firms], and we pay our lawyers the same," says Ellsworth, who cofounded Grais & Ellsworth in 2007. "We don’t want clients to hire us because we’re cheaper; we want them to hire us because we’re better."

The Medicare fiscal intermediary for California defines co-management as the “planned transfer of care during the global period from the operating surgeon to another qualified provider.” Optometrists and ophthalmologists have long engaged in the practice of co-managing cataract patients undergoing surgery. Typically, optometrists refer their patient out to an ophthalmologist for surgery, and the ophthalmologist in turn refers the patient back to the optometrist for his or her post-operative care.

This type of co-management arrangement can be hugely beneficial for the patient. Patients are able to receive the specialty surgical services they require from an ophthalmologist, while retaining access to their regular optometrist – who may be more geographically convenient to the patient and who often have provided years of consistent optometric care to the patient – for post-operative care. When these circumstances are present, and when the patient provides valid and informed consent, co-management can be a vital tool for providing optimal care to cataract surgery patients.

Because of some ostensibly conflicting language in federal laws and regulations, however, confusion has sometimes arisen about the precise circumstances under which co-management is permissible. The federal anti-kickback statute provides civil and criminal penalties for giving or receiving “remuneration” in exchange for referrals. Because the law is so broad, the federal government outlined many “safe harbors” which, while potentially covered by the anti-kickback statute, would not be prosecuted. One of these safe harbors specifically exempts co-management from the anti-kickback prohibition, so long as certain conditions are met. Although the safe harbor language prohibited the sharing or splitting of a Medicare global fee, the government later clarified that “we do not mean to suggest that all specialty referral arrangements involving splitting of global fees are illegal under the anti-kickback statute.” Rather, making this determination requires a “case-by-case analysis” of factors such as whether the services are medically necessary, whether the timing of referrals is clinically appropriate, and whether the services performed are commensurate with the portion of the global fee received.

The American Optometric Association (AOA) later set forth a bulletin that echoed and expanded on the above factors. AOA’s seven factors to be considered when determining whether co-management in a given instance is appropriate are:

1. The selection of an operating surgeon for patient referral should be based on providing the best potential outcomes for that patient. Financial relationships between providers should not be a factor.
2. The patient’s right to choose the method of postoperative care should be recognized consistent with the best medical interest of the patient.
3. Co-management of post-operative care should be determined on a case-by-case analysis and not prearranged. For example, agreements to refer all patients back on a date certain should be avoided. The patient should be advised prior to surgery of potential postoperative management options.
4. The transfer of post-operative care must be clinically appropriate and depend on the particular facts and circumstances of the surgical event.
5. Following surgery, transfer of care from the operating surgeon to an optometrist should occur when clinically appropriate at a mutually agreed upon time or circumstance; and such time should be clearly documented via correspondence and be included in the patient’s medical record. For example, Section 4822 of the Medicare Carriers’ manual states that “Both the surgeon and the physician providing the postoperative care must keep a written transfer agreement in the beneficiary’s record.” This may be accomplished by including the appropriate information in the referral letter from the ophthalmic surgeon to the optometrist at the time of transfer of care.
6. The operating surgeon and the co-managing optometrist should communicate during the post-operative period to assure the best possible outcome for the patient.
7. Compensation for care should be commensurate with the services provided. Cases involving care for Medicare beneficiaries should reflect proper use of modifiers and other Medicare billing instructions.
Similarly, the American Academy of Ophthalmology (AAO) has also published an advisory opinion clarifying that co-management is perfectly appropriate under certain circumstances, specifically where the postoperative care can be provided by a qualified non-ophthalmologic physician.

Medical providers must of course tread very carefully when contemplating the co-management of patients so as not to encroach on the type of arrangements prohibited by the federal anti-kickback statute. Most importantly, all decisions should be based on the best potential outcome for the patient, not on any financial arrangement between providers. Blanket contracts to refer patients should especially be avoided, since such an arrangement would preclude the type of case-by-case analysis proscribed by the federal government. However, when the factors discussed above are present, and when the patient provides valid and informed consent, co-management has historically been a vital tool to providing optimal care for cataract surgery patients. There have been no recent changes in the law to preclude the future practice of co-management by optometrists and ophthalmologists when the appropriate circumstances are present.

Wilke Fleury attorney Natalie Johnston has been elected to the UC Davis School of Law Alumni Association Board for a three-year term. Through the Board, King Hall alumni support and promote their alma mater by working with current students and staff. Natalie is excited to take on this new challenge, and looks forward to the opportunity to give back to the UC Davis Law community.