JANUARY 2024 Welcome to the January edition of Lawyer Monthly! This month, we delve into the intricacies of whitecollar crime, explore the innovative realm of patenting ESG technologies, and examine the complexities of Trust and Elder Law in Texas. Our white-collar crime article offers insights into the latest legal developments and challenges in this ever-evolving field. We also take a closer look at how ESG technologies are reshaping the legal landscape of patents, highlighting the intersection of sustainability and intellectual property. Lastly, our focus on Trust and Elder Law in Texas provides a detailed analysis of legal issues affecting the elderly, showcasing the importance of this area in legal practice. Join us for these in-depth discussions and more in this insightful issue. Furthermore, this edition also delves into a variety of other legal practices, such as the intricacies of cross-border dispute resolution, the nuances of divorce law, and the complexities surrounding clinical negligence cases. Warm regards, Mark Palmer Editor, Lawyer Monthly EDITOR'S PICKS: Melissa Donovan Navigating Texas Trust and Elder Law Danilo Cilia Exploring White-Collar Crime in Italy 4 10 LAWYER MONTHLY©2024 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com. The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Approx. 302,000 net digital distribution.
Production Team: Emma Tansey, Luke Ostle production@lawyer-monthly.com Sales Enquires: Jacob Mallinder Jacob.mallinder@universalmedia365.com @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 CONTENTS 4 Navigating Texas Trust and Elder Law with Melissa Donovan, Director of Elder Law and Special Needs Planning at Texas Trust Law 10 Exploring White-Collar Crime in Italy with Danilo Cilia, Founder of Danilo Cilia & Associati 16 Handling Clinical Negligence Claims with Rachel Pearce, Partner and Head of Personal Injury and Clinical Negligence at Coodes Solicitors 20 Tackling Collaborative Divorce in Connecticut with Rosemarie Ferrante. Collaborative Attorney, Mediator at Divorce Mediation Center of Fairfield County, CT 24 A Guide to Divorce Litigation in Arizona with Justin Tash, Founding Partner at Burggraff Tash Levy PLC 26 Patent Licensing of ESG Technologies with Simone Frattasi, Head of Global IP at Maersk and Ishak Jonas Isik, Head of Intellectual Property at Siemens Energy 30 Expert Insight into: Cross-Border Dispute Resolution with Mr. Sun Wei, Managing Partner at Zhong Lun Law Firm
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Melissa Donovan WWW.LAWYER-MONTHLY.COM 5 reasonable, we all have the right to privacy and self-determination. It is quite common that in trying to help our elderly parents, relatives and friends, we tend to overtake their wishes in doing what we feel is best for them. It is important for care-takers and family to understand that our elderly loved ones have the right to make their own decisions, even if we do disagree with them. In our roles as caretakers and personal representatives, it is important that we are always openly communicating with the person we are helping, including them in decision making, and not keeping information from them as much as it is possible to do so. As I tell many clients, your job as a Medical Power of Attorney, is not to do what you would do for yourself, but to do what the principal would generally choose for himself or herself. These additional protections guide personal representatives and family in how we should be assisting seniors. What does elder law planning cover and what are the benefits of elder law planning? Elder Law encompasses many things, including general estate planning, incapacity and long-term care planning, Texas law provides additional rights for citizens aged 60 and over. What are those rights and why were they introduced? Here in Texas, there are many benefits accessible to individuals over 60. These include additional property tax exemptions, discounts on utility bills, reduced vehicle registration costs, help with prescription drug costs, rides to doctor visits and meal delivery. Here in Texas, we have 28 local Area Agencies on Aging which provide assistance and counselling for individuals over the age of 65 and their families on locating and accessing these community services. They also advise seniors on in-home support services, care coordination, and respite services. These area agencies are invaluable to the community. Further, Section 102.003 of the TX Human Resources Code lays out additional protection for seniors. This includes rights to dignity & respect, the right to designate Guardians and to be free from abuse. All of this goes to the protection of a statistically vulnerable population and the general assertion that regardless of age or potential disability, as much as is www.texastrustlaw.com Melissa Donovan is a Certified Elder Law Attorney and the Director of Elder Law and Special Needs Planning at Texas Trust Law. A frequent speaker at professional conferences for advisors on legal issues related to special needs planning, Medicaid, Medicare, and long-term care planning, Melissa focuses her practice on estate planning, special needs planning and Elder Law. An Interview with... Navigating Texas Trust and Elder Law
assistance with government benefits such as Medicaid and Social Security, and issues of elder abuse and exploitation. What does an elder law attorney do and how do they assist senior citizens? My job as a Certified Elder Law Attorney is, at its essence, helping people with all matters relating to aging, retirement, incapacity, and death. For many attorneys, like myself, this often times starts with comprehensive estate planning that takes into account issues like long-term care and government benefits including Social Security, Medicare, and Medicaid. This extends to helping clients obtain benefits they are qualified for, not only Medicaid, but also benefits available through the Veterans Administration, and those additional services as we previously discussed. For example, a lot of people are unaware of extra benefits like additional homestead tax protections. I often find myself telling clients that as attorneys in Texas, our license reads “attorney and counselor at law,” and in working as an elder law attorney I find that many times I am truly leaning into more of that counselor role, acting very much so as a mediator in advising clients and their families through sometimes very difficult circumstances. Who should consider estate planning and why? Every person over the age of 18 really should have some type of estate plan in place. I understand that might sound like a lot to someone who is maybe 19 or 20 years old. The term “estate planning” seems more daunting than it should. If we think about it, really an estate plan is making sure you’ve got something in place so that the people you trust can make decisions for you if you’re unable to do so, making sure they have some reasonable guidance on what you would want if you were incapacitated, and being able to dictate where your property goes when you pass away. For example, someone just starting their adult life may just need simple package of Medical Powers of Attorney and Financial Powers of Attorney, HIPAA authorizations, etc… Whereas for more established individuals and families, an estate plan might include a more complex Will, living trust, or more advanced planning techniques like asset protection or estate tax planning tools. What are the ‘musthave’ estate planning documents in Texas? At a base level, every person in Texas should have a Statutory Durable Power of Attorney, Medical Power of Attorney, Directive to Physicians, HIPAA Authorization, and a Last Will & Testament. This will ensure that if you are incapacitated, only the people you choose can help manage your assets and make medical decisions for you. Further, you can make sure that when you pass away your family has the necessary instructions and designations to be able to distribute your property as you wish, not as the legislature has dictated. What are the top estate planning mistakes people make? There are several mistakes I see time and again with clients. Some common mistakes I see are not considering how important the incapacity side of an estate plan is, not incorporating provisions regarding long-term care or proper provisions for loved ones who have special needs, and, most importantly, not doing any planning at all. Too many times, attorneys have to be the bearer of bad news to already grieving clients. Being a community property state, many people still hold common misconceptions about how we own things as married couples. 6 LAWYER MONTHLY JANUARY 2024 As I tell many clients, your job as a Medical Power of Attorney, is not to do what you would do for yourself, but to do what the principal would generally choose for himself or herself.
No grieving spouse wants to visit the attorney after a spouse has passed, only to be told that yes you do have to probate his or her will, or worse, go through an intestacy process to transfer assets. The biggest hardships are oftentimes with blended families, where it is so important that spouses have a solid estate plan in place. No one wants to find out after a spouse has passed away that the house the couple had shared for maybe 30 years does not fully belong to the survivor. In Texas, if you die without a Will and you had a blended family, the deceased spouse’s share of the home, generally half the value, goes to the deceased’s children, not the surviving spouse. Having a proper plan in place, whether that be a Will or a Revocable Living Trust, can prevent that. For many people, a big concern is the possibility of running out of money. As we age past 65, the likelihood of needing some form of skilled nursing care only increases. With average costs for semi-private rooms running upwards of $6,000/month, it can be daunting for most people to consider how that would be covered. This is My job as a Certified Elder Law Attorney is, at its essence, helping people with all matters relating to aging, retirement, incapacity, and death. WWW.LAWYER-MONTHLY.COM 7 where Medicaid planning can be really helpful. I find that a lot of people don’t realize the benefits that may be accessible, many because they’ve never even considered it. That extends to Veterans Benefits as well. There are many programs available through the VA that I consistently find that veterans have never been told of. A prime example of this is the VA Pension program, which provides additional financial assistance for war-time veterans who have medical expenses they may have a hard time covering. That program could potentially give a veteran and his spouse up to $2,600 or more, depending on the need and qualification. These are incredibly helpful benefits that, unfortunately, I find far too many of our service men and women are not aware of. These conversations are so valuable for us as attorneys to have with our clients. Our job as elder law attorneys is so much about guiding our clients and helping people find the tools for them to live out their later years, as much is possible, in the manner they would like. When clients come in to talk about how they “need a Will” I feel it is
our responsibility as elder law attorneys to walk through these ideas with them. What are their goals, how does the family get along, what health concerns may they have?The more we know about our clients, their family, and their future wishes and concerns, the more we can help them. As I said, so much of what I view my job as being, is a counselor, someone who can help my clients to have peace of mind knowing they have walked through as many issues as we can to help solve future problems before they even arise. And if we can’t prevent something from happening in the future, at least we can help set up a plan so our clients and their families can work through that problem as easily as possible. What happens if someone does not have a medical power of attorney or durable power of attorney and he or she becomes incapacitated? This can depend greatly on the situation and what needs to be done. Most states, Texas included, do have laws in place dictating who can make medical decisions 8 LAWYER MONTHLY JANUARY 2024 The more we know about our clients, their family, and their future wishes and concerns, the more we can help them.
About Texas Trust Law Texas Trust Law was founded over 25 years ago by Brad Wiewel and has since become one of the leading estate planning law Firms in Texas. Located in Austin, Texas, Texas Trust Law, PLLC, provides legal guidance in elder law, estate planning, special needs planning, asset protection planning, business planning, and retirement exit strategies. for a patient if there were ever an emergency and the injured party did not have any powers of attorney in place. Section 313.004 of the Texas Health and Safety Code gives us the order of priority, for who can make decisions in the absence of a power of attorney: 1) Your spouse; 2) An adult child, with the waiver and consent of all other qualified adult children; 3) The majority of your children; 4) Your parents; and then 5) an individual clearly identified to act on your behalf before you became incapacitated, your nearest living relative, or a member of the clergy. In the worst case scenarios, for example, if the family is in disagreement over treatment or what to do, you can end up in Guardianship proceedings where the Court has to name a formal Guardian of the Person to act on the incapacitated person’s behalf Management of finances is a bit more complicated. Generally speaking, if there is no durable (financial) power of attorney in place, someone will have to be appointed guardian to access and manage any real property and financial assets that don’t have a co-owner or signatory already named. This is not a process any family wants to have to go through as most people want to try and avoid court at all costs. This is why it is so important that people take the time to do this planning in advance. Essentially, a lot of estate planning comes down to control over your future. Yes, the state may have laws in place that allow people to make these decisions, or processes for the court to designate someone who can, but wouldn’t you much rather be able to decide for yourself who the person managing your money, or deciding whether to allow specific medical treatment for you, would be? That is what incapacity planning is all about, having the ability to make choices for yourself in advance so the people you want get to enact your wishes. Are a will and trust the same thing? Wills and Trusts are two different planning paths. A Will, or Last Will & Testament, is a legal document where WWW.LAWYER-MONTHLY.COM 9 you get to say “when I die, this is who I want to get my property and how I want it distributed, and by who.” When someone dies with a Will, if there are any assets(a house, bank account, business, etc…) in the person’s name, the Executor of that Will must go through Probate. That Probate process varies greatly from state to state in time and expense. A trust, on the other hand, is a way to avoid that need for Probate. When someone sets up a trust, they are creating an entity to manage property. Now there are many different types of trusts that are utilized for different reasons. But with general estate planning, the primary trust we are talking about is a Revocable Living Trust. Generally, with these trusts, the same person acts as the Grantor (person creating trust), Trustee (person managing the property), and beneficiary (person for whom the property is managed). The goal with these trusts is to make it easier for people to manage your property if you are incapacitated and when you pass away, and largely, to avoid Probate. An important thing to keep in mind in these Revocable Living trusts is that during the grantor’s lifetime, there is no asset protection, which is a common misconception in the general public. The biggest hardships are oftentimes with blended families, where it is so important that spouses have a solid estate plan in place. No one wants to find out after a spouse has passed away that the house the couple had shared for maybe 30 years does not fully belong to the survivor. www.texastrustlaw.com
What are the main areas of corporate crimes in Italy? As per my experience, I would say bribery, tax and customs offences, financial crimes, bankruptcy, corporate offences, HSE crimes and money laundering. During the previous decades, the Italian criminal system has targeted the most dangerous and hateful forms of crime, thus identifying a public enemy to face and destroy. Therefore, we have witnessed “the war against mafia” between the ‘60s and the ‘70s, the fight against terrorism in the ‘70s and ‘80s (the so-called “lead years”); furthermore, from ‘90s, the rise, increase and purge of bribery season, so-called “Tangentopoli” (or “Bribetropolis”, in English). In recent years, Italian criminal law’s focus has been readjusted on the fight against corporate crimes, with an increased effort to repress the behaviours that twist and frustrate the main corporate functions of companies. Bribery, for instance, is a phenomenon historically widespread in Italy and vigorously opposed at the legislative level due to the distortion of competition that it produces. Tackling corruption, therefore, means spreading the culture of compliance 10 LAWYER MONTHLY JANUARY 2024 Exploring White-Collar Crime in Italy During the previous decades, the Italian criminal system has targeted the most dangerous and hateful forms of crime. An Interview with Danilo Cilia Founder of Danilo Cilia & Associati We are honoured to have Danilo Cilia, founder of Danilo Cilia & Associati, joining us for an in-depth interview with Lawyer Monthly. Based in Milan, Danilo Cilia & Associati has carved a niche in the legal landscape, specialising in white-collar crimes and human rights. Danilo’s firm is distinguished for its expertise in handling complex legal matters, including tax and customs crimes, bankruptcy, financial crimes, bribery, cybercrimes, HSE crimes, and the administrative liability of corporations. Danilo Cilia is the founder of the firm that bears his name - Danilo Cilia & Associati - based in Milan and specialising in white-collar crimes and human rights.
due diligence and profiling of customers who had unlawfully used payment instruments issued by the bank - but even for money laundering, which is therefore directly charged to the financial operator itself. Hence the need for an adequate initial assessment, especially in relation to this category of economic operators. I would also like to share a new investigative trend set by the Milan Prosecutor’s Office, which consists in appointing ‘monitors’ under the antimafia legislation to companies that, though outside the mafia context, have shown a lack of compliance, especially in the selection of third parties, with the aim of encouraging compliance culture. The Public Prosecution Office of Milan has also recently started to investigate a particular kind of tax offence aimed at detecting illegal employment or illicit supply of labour, especially in the food delivery and logistics sectors. especially belonging to the mafia context. What are the latest trends and developments? What are the “hottest” investigative trends? I daily experience a significant intensification of cybercrimes and cyber-laundering, with an increase in digitalisation and the related risk of exploitation of new technologies for criminal purposes, which has led to a rise in control functions delegated by the authorities to financial operators and companies to fight money laundering. We are witnessing investigations led by the Italian Public Prosecutor’s Office against financial operators, including foreign ones, in which they are charged - not only for the culpable omission of with law, especially inside the purchasing department of companies. On the other hand, sales and marketing functions could be involved in the commission of fraud in trade. From this point of view, serious criminal penalties protect the Italian consumers from any misleading advertisement on the origin, provenance, and quality of goods illegally sold. But even CFOs, accounting and financial control functions could be involved in the commission of a corporate crime. Think about the (several) criminal trials for tax offenses, very trendy in Italy these days: tax criminal law has become, after all, a tool used by the legal system to recover revenue not collected in the ordinary way. And think, also, about the accounting fraud: the risk, on this field, is represented by consultancies or other services provided to the company, which may be considered fictitious, that is aimed at creating slush funds useful for the perpetration of other offences (such as, once again, bribery). HSE and HR functions, as well, may be involved in a white collar crime. In this regard, criminal labour law and environmental criminal law, respectively arise from a deep national culture of care for worker safety and from a widespread awareness of environmental issues. These branches of law require compliance with numerous technical and legal standards, whose compatibility with the free economic initiative has been doubted, but is still currently in force. Lastly, management control functions may be involved in committing money laundering operations. This kind of offences are historically linked to the fight against the reutilization in the legal economy of dirty capital, WWW.LAWYER-MONTHLY.COM 11 Danilo Cilia Founder of Danilo Cilia & Associati
violations, for example in the M&A field, where criminal risks have become a focal point during due diligence. But the new frontier of criminal law and of the inherent compliance programs is, in my opinion, the human rights field. Let’s think about Artificial different case, another Prosecutor is inquiring about the suicide of a woman who (a few days before dying) had been charged by a well-known journalist and social influencer with creating false and misleading posts on social media. Anyway, the sources of Italian criminal law are more than the national ones. Although the criminal system has always been at the core of state sovereignty, in recent years there has been a progressive ‘Europeanisation’ of criminal law. For example, the new European Public Prosecutor’s Office is in charge of prosecuting criminal offences affecting the EU’s financial interests (i.e. VAT fraud or illegally obtained EU funds). Moreover, the proposal for a new EU directive on corporate sustainability due diligence may also increase attention on environmental and human rights Large industrial groups were charged because, despite the formal existence of agreements with third parties - cooperatives of self-employed drivers operating in the logistics -these agreements allegedly concealed a substantial employment relationship. As a result, the Italian Revenue Agency has demanded higher taxes (VAT) and related contributions from these companies, considering the drivers as real employees. Another significant investigative trend was recently started, involving the detection of misleading advertising campaigns led by social media influencers. In an inquiry so far pending before the Milan Prosecutor, a renown influencer was charged of having misled the consumers into thinking that earnings deriving from the sales would have gone to charity. Moreover, in a 12 LAWYER MONTHLY JANUARY 2024 The advice we often give to our clients is to invest in compliance.
Intelligence and the great challenges it is bringing to democratic societies. And think about the recent European AI Act: it provides a new setting of rules, built on a risk-based approach, which requires adequate assessment and management of (precisely) the risk of human rights violations. In this new scenario, a long-standing experience in the human rights field will be crucial for the ethical use of these new machines by the companies, which shall adopt and implement policies and procedures crafted on this approach and aimed at mitigating and managing any arising risk. What are the main features of whitecollar enforcement in Italy in comparison with other jurisdictions? In the very first place, it should be highlighted that companies in Italy may be held liable before criminal courts for certain specific crimes committed in their interest or to their advantage by their directors or employees. After years of regulatory vacuum, following the ancient Roman formula “societas delinquere non potest”, in 2001 the mentioned formula was deleted, and several criminal offences started to be considered relevant for companies (by the so-called Law No. 231/2001). The new legal framework has been progressively applied by prosecutors and criminal courts, representing an effective deterrent tool given the heavy sanctions that may be imposed (fines, disqualifying measures such as the prohibition to carry out the business for a certain period or the suspension or revocation of permits or licenses, which may have a drastic impact on the company’s operations). One of the main differences with other jurisdictions is that in Italy, public prosecutors do not have discretion in deciding whether to prosecute or not. In other words, they have a legal obligation to open an investigation whenever they become aware that a crime may have been committed. I have often seen criminal complaints targeting corporations or their senior executives being filed in complex corporate battles to be used as leverage in the overall litigation strategy. Well, even in these situations, the public prosecutor should basically proceed, being able to assess the reliability of the allegation (and finally ask for dismissal) just after some preliminary investigations. In fact, Italian law does not provide for non-prosecution or deferred prosecution agreements. As a result, for those companies whose trial is not dismissed, settling the case directly with the prosecutor is not possible: the only option will remain an agreement with the Public Prosecution, to be filed before a judge for a plea bargain. What does this mean for companies and or individuals operating in your jurisdiction? Which internal processes and departments are mainly involved in committing white collar offences? For those who are under investigation or accused of committing such crimes, what are the main implications and consequences? The advice we often give to our clients is to invest in compliance. Italian legal system is ‘civil law’ based, which indeed consists of mostly written laws, where compliance with several national laws becomes essential to protect the assets and the reputation of companies. This implies that a proper assessment of purchase function will allow due management of the risk of a conflict of interest with the public body and, thus the risk of corruption. An example could help. Let’s think about a pharma company that appoints, as a consultant, a doctor of high standing (e.g. an opinion leader). This appointment could lead, despite the good faith of the company, to a criminal investigation and, more precisely, to a criminal charge for bribery, assuming that the doctor prescribed, to his patients, drugs manufactured or distributed by the client company. This kind of situation may be avoided by a more adequate assessment and management of the purchasing process of that consultancy engagement. A proper interaction between the HR function and purchasing function could surely mitigate the risk of illegal labour exploitation, as well as the related risk of tax fraud. To this end, we often suggest a due diligence on the company’s potential WWW.LAWYER-MONTHLY.COM 13 One of the main differences with other jurisdictions is that in Italy, public prosecutors do not have discretion in deciding whether to prosecute or not.
A criminal lawyer, even better if supported by an experienced communications consultant, may play a key role in providing the right answers to a white-collar investigation from its very beginning. Appointing an independent criminal lawyer is also crucial to keep attorney-client privilege: in fact, in Italy communications between top management and in-house legal departments are not formally covered by the mentioned privilege, although the European Court of Justice (ECJ) has recently recognised the substantive nature and broad scope of the privilege itself. 14 LAWYER MONTHLY JANUARY 2024 phases of an investigation could prove very costly down the road, limiting options or potentially subjecting a company to greater penalties. A carefully crafted first response plan should consider the scope of the crisis, the chance to perform an internal investigation, and the people in charge of coordinating any communication with the public prosecutors or other parties. Criminal investigations in Italy are generally secret, so any information must be treated accordingly, including relations with press. However, it is also true that there are, unfortunately, leaks of confidential information, often originating from judicial offices themselves. Consequently, media relations shall be handled with deep awareness and discretion, since the greatest risk for a company, when it is challenged for having committed a crime, is reputational even before strictly legal. suppliers, in addition to a proper profiling, listing, and cataloguing of them, as well as the creation of company database of authorised partners. It should be highlighted that the Corporate Criminal Liability legislation (Law No. 231/2001) also applies to foreign companies if the offence is committed on Italian territory (even by an Italian branch of the foreign entity). However, companies may be exempted from liability if, prior to the commission of the offence, they have adopted and effectively implemented a suitable compliance model to prevent offences of the same type as the one committed (obviously, the individual will remain liable on his or her own for the offence committed, suffering the appliable penalty set forth by the law - usually a custodial penalty plus a fine or confiscation of illegal profits). Having said that, we encourage companies to prepare and adopt policies and procedures to manage promptly the consequences that may arise from investigations, for example, by preparing an action plan and adequately training employees. Internal investigations can also be an effective tool. We expect an intensification of this trend, also following the very recent whistleblowing legislation (Law No. 24/2023) that will boost the investigation of whistleblowers’ reports. What are your recommendations to effectively handle a crisis arising out of a white-collar crime? Where does a successful defence should start? Firstly, it is crucial to identify the issue and draw up an informed action plan early on. Issues overlooked in the early A criminal lawyer, even better if supported by an experienced communications consultant, may play a key role in providing the right answers to a white-collar investigation from its very beginning.
About Danilo Cilia & Associati Law Firm The firm mainly focuses on legal advice and assistance in tax and customs crimes, bankruptcy, financial crimes, bribery, cybercrimes, HSE crimes, and administrative liability of corporations. During his career, Danilo has developed a deep and significant experience in criminal law cases, providing both out-of-court and judicial legal assistance, representing individuals and primary corporations, including multinationals, listed companies, and their management in numerous suitcases of national relevance. Danilo regularly provides advice regarding criminal law issues in M&A and extraordinary transactions, including debt restructuring. Danilo Cilia & Associati has been included in the partners list of “Il Sole 24 Ore”, the main Italian financial newspaper. He is the author of several articles on criminal law matters. Also, he participates as a speaker at numerous conferences (including the course for joining the special register of lawyers admitted to the Italian Supreme Court). Lastly, Danilo is a member of the Milan Criminal Chamber and of the Criminal Commission of the Milan Bar Association (in the field of “criminal trial and mass media”). What are the implications and main complexities concerning multijurisdictional internal investigations? Internal investigations allow companies not only to preserve documents and information in view of a trial but also to assess and identify an appropriate defence strategy. Internal investigations have been not common in Italy until recently, when they started to play a crucial role in mitigating the impact of a criminal investigation. Indeed, a timely internal investigation may allow a company to adopt remedial programmes, which are assessed by judicial authorities to reduce fines or avoid disqualifying measures. As per my experience, internal investigations are also used following modifications in top management, and then when new managers intend to investigate the performances of previous managers. How has white-collar assistance changed over the years? I have witnessed and experienced a significant transformation of the whitecollar practice in recent years. From a niche practice limited to criminal law boutiques, it has become a core area for many national and international multi-practice firms. Clients, in fact, often expect whitecollar lawyers to be specialised also in compliance and risk management, as well as to help them communicate strategically with all involved parties, including authorities, shareholders, employees and mass media. Nevertheless, despite the firepower of international multi-practice law firms, the quality of legal assistance that can be offered by boutiques remains, in my opinion, matchless. This implies, therefore, that whether me personally would need legal assistance in the mentioned field, I would have no hesitation in relying on a boutique specialised in white-collar crime. And I would say that for several reasons: relationship of trust, human proximity, dedication to the client, independence, and deep knowledge of the penal system. All those qualities make the service provided by a criminal law boutique incomparably more tailor-made than any other one. WWW.LAWYER-MONTHLY.COM 15 www.ciliaeassociati.com
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What is clinical negligence? Clinical or medical negligence is the failure of a medical professional or organisation to deliver the standard of care expected of them, either through carelessness, a mistake or a series of mistakes. Medical professionals, by virtue of their training, the role they hold, the trust we put in them and their expertise, owe all patients a duty of care. When the care falls below a reasonable standard and directly causes an injury or an existing condition to worsen, this can have serious and sometimes life-changing consequences for you and your family. Given the range of medical If you aren’t sure if your type of negligence claim is covered, get in touch with our team: Email: clinical@coodes.co.uk Tel: 01326 318900 specialisms and treatments, clinical negligence can apply to a wide range of issues but broadly, it covers misdiagnosis, surgical mistakes or, poor practice and poor or inadequate treatment. What is the process in pursuing a clinical negligence claim? To make a claim, first contact our specialist medical negligence solicitors. We offer a free initial consultation to chat about what happened, discuss if you have a legal claim and advise on funding options. If we take your claim on, our experts will look into your case in detail, gather evidence and evaluate whether WWW.LAWYER-MONTHLY.COM 17 Handling Clinical Negligence Claims We are pleased to welcome Rachel Pearce, Partner and Head of Personal Injury and Clinical Negligence at Coodes Solicitors, to discuss her expertise and the pivotal role she plays at one of the South West’s most respected law firms. Coodes Solicitors, renowned for its exceptional legal services, has earned recognition in both the Legal 500 and UK Chambers and Partners guides, serving clients throughout Cornwall and Devon with a network of eight offices. www.coodes.co.uk
the care you received amounted to medical negligence. If our independent medical experts agree that your treatment was negligent, we will set out your case to those responsible to see if they accept liability. If they do, we will try to secure compensation for you in the interim, which can fund private medical care and ongoing expenses, before your claim fully settles. We always try to negotiate settlements out of court as this is the most efficient and cost-effective way of pursuing your claim, and it is usually less stressful. But if your opponent does not accept responsibility, agree with the compensation amount or engage in alternative resolution, we will start court proceedings on your behalf. It is rare for a medical negligence claim to reach a trial, but if it does, we will be there to help you every step of the way. What do lawyers need to prove in a clinical negligence claim? Medical professionals - whether within the NHS or private sector - have a duty of care to act in accordance with acceptable standards and to do no harm. To make a successful claim, we must demonstrate you more likely than not suffered an injury or illness or that your condition worsened due to a breach of duty of care. We also have to establish that the negligent medical treatment caused or contributed to your injury. There can be many wide-reaching consequences and the impact of a medical mistake doesn’t just rest with immediate worsening of the condition. Depending on the severity, there may be financial implications if you are unable to work or emotional distress and the development of mental health complications. How serious does an injury have to be to pursue a clinical negligence claim? The seriousness of the injury is a crucial factor, but it’s not the only consideration. 18 LAWYER MONTHLY JANUARY 2024 Even relatively minor injuries can lead to a successful clinical negligence claim if other elements are present. The key elements include: 1. Duty of care: The healthcare professional must owe a duty of care to the patient. 2. Breach of duty: It must be demonstrated that the healthcare professional breached the standard of care expected in their field. 3. Causation: There must be a direct link between the breach of duty and the injury suffered. It must be shown that the negligent actions directly caused harm. 4. Damages: There must be quantifiable damages or harm suffered as a result of the breach of duty. This can include physical injury, emotional distress, additional medical expenses, loss of income, or other related losses. We have helped and supported thousands of clients and their families secure compensation for the consequences of medical negligence and substandard care.
Does it cost anything to make a claim? What happens if I lose? There are several funding options for these types of claims, which could mean your costs are covered. This could be legal expenses insurance (which is often included in home insurance policies), a trade union policy or Legal Aid. The majority of our cases are funded with a No Win No Fee agreement. This means that there’s no financial risk to you when making a claim, as you only have to contribute towards your legal costs on successful conclusion. Coodes also has a Legal Aid contract, one of a small number of firms able to offer this funding. We will advise whether you are eligible for this and take the relevant steps to secure this funding. If your claim is unsuccessful then you will not be charged for your legal costs, but you will be responsible for any disbursements, although these costs are usually covered by insurance. How much compensation could I get for a clinical negligence claim and how long does the process take? Every clinical negligence claim is different, which is why it’s important to instruct qualified specialist lawyers. The amount you can claim will depend on a number of factors, including the severity of the injury, any financial losses you have suffered or will suffer, and any changes to your lifestyle that you’ve made as a result. The timeframe will depend upon the issues and complexity of the case. The timeframe can also be affected by the opponent’s attitude towards settlement. A ‘straightforward’ claim where liability is admitted early on and there are no long-term health implications may take two to three years to conclude, however a complex birth injury claim can take many years. How long do I have to make a clinical negligence claim? You should seek legal advice quickly because there are strict timetables for proceeding with legal action. Generally, you have three years to bring a compensation claim, starting from the date of your injury, or the date you first became aware that your injury was a result of negligence. If you suffered an injury as a child, this three-year period begins on your eighteenth birthday, though you can bring the claim at any point prior to this via a Litigation Friend. If a person has died due to negligent care or treatment, then the three-year limitation date starts from the date of death. There are some exceptions to this rule in cases when the injured person lacks capacity. Of course, financial awards can’t fully compensate you or your loved ones but can help you make any necessary adjustments to your lifestyle, help get your life back on track or provide vital support if you have lost the capacity to work. What type of negligence claims do you work with? Coodes specialist and accredited Clinical Negligence team advise clients from all walks of life on a wide range of medical negligence issues. We have helped and supported thousands of clients and their families secure compensation for the consequences of medical negligence and substandard care. We specialise in areas such as birth injuries, brain injuries, cancer misdiagnosis claims, orthopaedic injuries, obstetrics and gynaecology, surgical errors, delays in diagnosis and treatment, and failures by mental health services resulting in serious injury and sometimes death. WWW.LAWYER-MONTHLY.COM 19 Coodes Solicitors is one the South West’s longest-established and leading law firms in Cornwall and Devon. The firm has built a welldeserved reputation for providing individuals and businesses with exceptional legal services and is recognised in both the Legal 500 and UK Chambers and Partners guides. Rooted in the communities of the South West, Coodes serves the community from their extensive branch network of eight offices. The clinical negligence team, led by Business Owner and Partner Rachel Pearce, have over 40 years of experience in supporting individuals and families. They have significant expertise in a wide range of clinical negligence claims, including birth injuries, catastrophic neurological injuries and amputations. The team fights for and achieves justice for clients while helping secure early rehabilitation and compensation to rebuild their lives.
What is collaborative divorce and how does it differ from a litigated divorce in Connecticut? Collaborative divorce, like divorce mediation, is an alternative dispute resolution method that guides couples through the divorce process with minimal court involvement. Collaborative divorce emphasizes cooperation, transparency, and mutual respect over adversarial court proceedings. By committing in writing to avoid court, the collaborative divorce attorneys ensure a dedicated negotiation process, striving for a mutually beneficial settlement outside the courtroom. This approach minimizes emotional upheavals associated with separations and prioritizes the welfare of children. Unlike traditional court proceedings, the collaborative process provides space to address emotional concerns and explore innovative financial and parenting strategies that might not be accessible in a judicial setting. In a collaborative divorce, both spouses work together with a team of professionals. The team includes a collaboratively trained attorney for each spouse, a mental health neutral, and a financial neutral. The team works together to educate, support and guide the spouses in reaching a balanced, respectful and enduring agreement that meets the goals of both spouses and best serves the best interests of the children. The collaborative attorney’s role differs than that of a litigator. Contrary to adopting an adversarial stance, collaboratively trained attorneys emphasize mutual respect and cooperation. These attorneys consider the perspective of both spouses, aiming to forge 20 LAWYER MONTHLY JANUARY 2024 Tackling Collaborative Divorce in Connecticut An Interview with Rosemarie Ferrante Collaborative Attorney, Mediator - Divorce Mediation Center of Fairfield County, CT We are delighted to present an exclusive interview with Rosemarie Ferrante, a renowned Collaborative Attorney and Mediator at the Divorce Mediation Center of Fairfield County, Connecticut. In this comprehensive discussion, Rosemarie will share her expertise on collaborative divorce, a process that offers a distinct and often more harmonious path to navigating the intricacies of divorce compared to traditional litigation.
steering spouses towards constructive resolutions rooted in mutual understanding and shared objectives. What are the stages and process of collaborative divorce in Connecticut? Both spouses retain and meet with their respective collaboratively trained attorneys to discuss the process and establish goals. The mental health neutral and a financial neutral will also have introductory meetings with the spouses. The collaborative process commences with a team meeting and the signing of the participation agreement. This is an essential part of the collaborative divorce process. During the initial team meeting, there is a customary practice of reading the agreement aloud. The protocols between parents concerning their children and establish a comprehensive schedule, encompassing everything from household transitions and holidays to strategies for navigating potential disagreements. The financial neutral maintains impartiality, advocating for neither spouse but rather focusing on equitable outcomes. The financial neutral will encourage divorcing couples to look at long term goals and consider what is in the best interests of the entire family. He or she may offer expertise on valuing family businesses, navigate intricate tax implications, and help determine how the spouses can best financially support two households. The team works together, guided by forward-looking perspectives that prioritize the collective well-being of the family. Unlike adversarial litigation, collaborative divorce champions a transparent, cooperative approach, agreements that fulfill objectives while safeguarding the well-being of the entire family. What sets collaborative divorce apart from the traditional litigious approach is the proactive stance of collaborative lawyers. They anticipate potential conflicts, actively seek creative solutions to problems, and navigate the divorce process with a commitment to cooperative resolution, mutual respect, and dignified conduct. The neutral mental health professional’s role is equally important in the collaborative divorce process. By guiding spouses through effective communication techniques, the spouses are empowered to co-parent with greater harmony, fostering a nurturing environment for their children. Additionally, the mental health professional aids in formulating tailored parenting plans that address each child’s developmental needs. These plans outline communication WWW.LAWYER-MONTHLY.COM 21 What sets collaborative divorce apart from the traditional litigious approach is the proactive stance of collaborative lawyers. Rosemarie Ferrante Divorce Mediation Center of Fairfield County, CT
Once all issues are resolved, the attorneys draft a detailed agreement, which is then submitted to the court for approval. Can collaborative divorce really provide for a stress free, low conflict, cost effective solution? Collaborative divorce provides a less stressful, low-conflict, and cost-effective solution compared to traditional litigation. The key elements of the collaborative process are free and open communication, transparent and honest exchange of information, a pledge not to go to court, and a commitment to respect both spouse’s goals and the needs of the whole family. By promoting open communication and cooperation, participation agreement serves as the foundation of the collaborative process. It ensures that spouses are provided with comprehensive disclosure and informed consent. This transparency allows the spouses to understand their responsibilities within the process and the governing guidelines they must adhere to. The agreement specifies that no court action will be taken. In the event either spouse or any professional involves the court, the process ends as does the engagement of the professionals involved. The spouses, along with their attorneys and other professionals, participate in a series of sessions to identify issues, gather information, discuss goals and the best interests of the children, and ultimately build scenarios for resolution. When necessary, other experts such as appraisers or business evaluators, may be consulted to provide insights and recommendations. 22 LAWYER MONTHLY JANUARY 2024 Collaborative divorce provides a less stressful, low-conflict, and costeffective solution compared to traditional litigation.
About Rosemarie Ferrante Rosemarie Ferrante is a family attorney who has been practicing exclusively family law for over 25 years. She focuses her practice on non-adversarial divorce through mediation and the collaborative divorce processes. Rosemarie’s goal is to make a positive impact on the divorce process by giving couples the resources and tools they need to help their family transition smoothly through the restructuring of their family. Rosemarie is Vice President of CCND, The Connecticut Council for Non Adversarial Divorce, the statewide non-profit professional organization of Connecticut mediators and collaborative divorce practitioners. She is a member of the Academy of Professional Family Mediators (APFM) and the International Academy of Collaborative Professionals (IACP). She is a founding chapter leader of the National Association of Divorce Professionals (NADP), the first national organization that unites professionals who serve clients going through all stages of the divorce process. She is a participating member in several collaborative practice groups throughout CT. Her bar association memberships include the American Bar Association (Family Law section, Mediation section and Collaborative section), the Connecticut Bar Association (Family Law Section and ADR Section), the Danbury Bar Association and the Fairfield County Bar Association. Rosemarie founded Divorce Resource CT to provide public education and awareness and support to those contemplating divorce. In partnership with Hollis Hardiman, CDFA, she offers education, support and wellness workshops for individuals not only contemplating divorce, but also for those going through the process, as well as those seeking post-divorce information. The workshops are presented by herself and Hollis and various esteemed mental health professionals and are offered throughout Fairfield County, CT and online. Rosemarie is a frequent guest on podcasts where she discusses the benefits of an integrative divorce process in which a team of interdisciplinary professionals best suited for the individual family guides the family through the divorce process to ensure a positive postdivorce co-parenting and financial life. She co-edited a book on divorce in Connecticut, “Divorce and Separation, Connecticut Edition” available on Amazon. She earned her bachelor’s degree from Cornell University in 1993 and her law degree from Brooklyn Law School in 1996, where she was Primary Notes & Comments Editor of the Brooklyn Law Review. She was admitted to the Connecticut Bar in 1996 and the New York Bar in 1997. collaborative divorce minimizes conflict and empowers spouses to make informed decisions. This process also imparts conflict resolution skills, equipping spouses with the ability to effectively address any future disagreements. How long does the collaborative divorce process take in Connecticut? The duration of the collaborative divorce process can vary depending on the complexity of the issues involved and the willingness of both spouses to cooperate. Collaborative divorce is an efficient process which considers the unique needs each family presents. How can I determine if collaborative divorce is right for me? To determine if collaborative divorce is right for you, consider whether you and your spouse are emotionally prepared to engage in a constructive dialogue, are willing and able to make compromises, and are ready to work together to reach a mutually beneficial agreement. Divorce is never easy and the discussions will be challenging, but collaborative divorce offers a compassionate, efficient, and empowering alternative to traditional divorce litigation. Many individuals think that mediation and collaborative divorce only work if both spouses agree on all issues. That isn’t the case. Trained divorce professionals keep the conversations balanced and ensure each spouse has a voice. By prioritizing cooperation and mutual respect, these processes allow spouses to maintain control over the outcome while preserving their relationships, protecting their children and minimizing the emotional and financial toll often associated with divorce. WWW.LAWYER-MONTHLY.COM 23 www.divorcemediationct.com https://www.facebook.com/divorcemediationct https://www.linkedin.com/in/rosemarieferrantedivorceprofessional/ https://www.instagram.com/divorcemediationct/
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