The State Bar of California Issues a Fraud Alert to Watch for and Report Potential Legal Fraud in Response to Recent Fires

Sound advice from The State Bar of California.

http://www.calbar.ca.gov/Public/Need-Legal-Help/Free-Legal-Help/Fraud-Alert

An Amusing Discourse on Free Speech Law

Want to know more about free speech law but afraid it will be boring?  Here's an entertaining discourse on the subject, brought to you by the American Civil Liberties Union of West Virginia Foundation.  Who says law can't be fun?

Warning, there's some rather salty language.

https://www.documentcloud.org/documents/3911409-Wvnd-19902323086.html

Thank You, Vinnie

I love Vin Scully.

L-O-V-E.  The Big L.  Cherish.  Adore.  Want-to-Bear-His-Children.  Named-My-Car-After-Him. Would-Listen-to-Him-Read-the-Telephone Book.  Would-Clean-My-Kitchen-and-Go-Grocery-Shopping-and-Cook-for-Him––Something-Good-Even.  LOVE.

Why?  Why breathe?  It just has always been.  On the eve of his retirement, I decided to ponder the issue.

When I think about it, I owe a great deal to Vinnie for who I am today. (To my detractors, don’t blame him for the naughty bits.)  Certainly not in the same way as I owe my parents who raised me with values and my siblings with whom I competed for academic and athletic glory (never besting them, dammit), but Vinnie was there for me.  I don’t know him.  He doesn’t know me.  But he was there for me.  And, I’d like to think, I was there for him.

First, there’s baseball.  I am an avid fan. AVID.  Dodger. Fan.  Got my first glove at age six, so I can’t remember a time when I didn’t follow the Dodgers.  Why?  It didn’t come from Dad; he’s a football fan.  Mom was a casual follower of baseball with her dad (who was at the time a Gnat fan (*hurl*)) and later came to love the game as I loved it, so it didn’t come from her either.  I don’t remember not being a Dodger fan.  It had to have come from Vinnie.

My sister and I shared a room and a clock radio that was turned to one station: KFI.  Lohman and Barkley in the morning, music in the afternoon, and Vinnie and the Dodgers at night and on weekends.  I don’t know why he caught my attention.  I had never seen a baseball game.  I have to imagine it was the lilt in his voice, his ability to paint a picture with words, his story-telling, that grabbed me.  Vinnie doesn’t just call a ball game.  He weaves history and human interest and current events into his play-calling so seamlessly that you don’t even realize that you’re learning something new.  I was hooked.

Vinnie opened up my world view.  My interest in baseball grew from just listening to the radio and occasionally catching a glimpse on TV to wanting to read about it.  How are my boys doing?  Let’s check the sports page.  Gee, I’d like to know more about this Jackie Robinson guy.  Let’s go to the library.  Eventually, my interests gravitated towards other parts of the newspaper (comics, Dear Abby, and eventually, the news) and other parts of the library (especially biographies).  Reading is fun.  There’s lots of stuff to learn.  Vinnie taught me that.

Vinnie helped me do well in school.  Baseball undoubtedly helped me in math.  I’d calculate fractions in my head: “2/5, that’s a .400 batting percentage . . . .” [My brother the finance major used money, hey, whatever works.] Vinnie helped me with history.  Vinnie would share stories of the baseball players of yesteryear, about growing up in up during the Depression, World War II, etc.  It sparked my interest to read more and talk to my elders about those times as well.

Vinnie was responsible for much of the family entertainment.  We certainly weren’t poor, but not much of the budget went for entertainment.  But we had the Dodgers.  Two bucks for the parents, seventy-five cents for the kids for top deck seats, you couldn’t beat it.  Well, yes you could: six Pepsi bottletops and $2 got you six tickets, a T-shirt, photos, and a bunch of other stuff.  And good grades got you free “A-Students” tickets.  So, I guess Vinnie is also responsible for my being cheap (uh, frugal).

Without realizing it, years of listening to Vinnie weave facts and stories also helped me in my profession as an attorney.   During the past year, I’ve heard many a game caller discuss “Vinnie the broadcaster” and what makes him so great at what he does.  I realize their comments apply equally to my career as an attorney.   Keep it simple.  Modulate your voice.  Be professional.  Be humble.  And when you’ve said it all, be silent.

Vinnie has given me so much.  I hope as a member of his audience for the past 50 years, I have in some way given back to him.

From the bottom of my heart, thank you Vinnie.

When Is a Fish Not a Tangible Object? -- A Collision of Law and Grammar

This is the kind of stuff I love  -- the 9 learned Justices of the United States Supreme Court bantering on the issue whether a fish is a "tangible object."  At stake -- whether a commercial fisherman will be branded a convicted felon.

The answer in this case is "no."  Grammarians, enjoy.

Yates v. United States, 574 U. S. ___ (2015) (No. 13–7451, Feb. 25, 2015)

http://www.supremecourt.gov/opinions/14pdf/13-7451_m64o.pdf

PHARMACIST LICENSE REVOKED FOR DISHONEST AND FRAUDENT MEDI-CAL BILLING PRACTICES

The Court of Appeal, Fourth District, Division 3, recently upheld the California State Board of Pharmacy’s revocation of a pharmacist’s license on the ground of dishonest and fraudulent Medi-Cal billing practices.   Hoang v. California State Bd. of Pharmacy, Case No. G049275 (4^th App. Dist., Div. 3, Oct. 9, 2014).

Plaintiff Tue Ngoc Hoang, pharmacist-in-charge of Orange Pharmacy (Orange), appealed from a judgment denying his petition for a writ of mandate.  The petition sought to overturn a decision by the Board of Pharmacy revoking his pharmacy license and Orange’s permit to operate a pharmacy.

The Board alleged that Orange (which was ineligible to bill Medi-Cal for filling prescriptions) entered into an unlawful arrangement with another pharmacy (Pacific) to secretly bill for filling Medi-Cal patients’ prescriptions through Pacific, unlawfully receiving nearly $150,000 in Medi-Cal payments.

After CalOptima (an entity administering Medi-Cal benefits in Orange County) terminated Orange’s authorization to seek payment for filling Medi-Cal patients’ drug prescriptions (because Orange refused a new condition to allow on-site reviews of its operations as part of a fraud prevention program), Orange entered into a surreptitious arrangement with Pacific, whereby Orange used Pacific’s billing authority to obtain payment for filling the drug prescriptions of persons covered by CalOptima.  Under the arrangement, Orange created a set of labels containing its name, address, and phone number for each CalOptima-qualified patient for whom it filled a prescription.  Orange sent Pacific a record of having filled the prescription and Pacific then created a duplicate set of prescription labels for the same patients.  Using its label, Pacific applied to CalOptima for payment, thereby representing it had filled the prescription.  Upon receiving payment from CalOptima for the drug prescriptions actually filled by Orange, Pacific then funneled the money to Orange.    To foster an appearance of legitimacy for this arrangement, Orange and Pacific also created documents such as refill pharmacy contracts, purchased and borrowed logs, returned to stock memoranda, and labels that incorrectly stated that prescriptions had been transferred.  The scheme was discovered during an inspection of Pacific’s premises. 

While Hoang’s son (Orange’s business manager) insisted that Pacific was acting as Orange’s refill pharmacy and that Orange had done nothing wrong, Pacific’s pharmacist in charge admitted Pacific billed CalOptima for drug prescriptions filled by Orange and denied Orange acted as a refill pharmacy for Pacific.  Notably, Hoang himself did not testify at the administrative hearing.

Although the administrative law judge (ALJ) proposed a stayed revocation with five years probation, the Board did not adopt the proposed decision and revoked Hoang’s license and Orange’s pharmacy permit.  The Board noted that Hoang gained financially from the scheme; that the misconduct was not isolated but occurred over the course of several months; that the conduct was a deception against a public benefits program and demonstrated a deliberate disregard of public health policy; and that Hoang failed to acknowledge the misconduct, demonstrate any remorse, or undergo any rehabilitation.

This case demonstrates the danger of relying on an “I did nothing wrong” defense.   Although the violation of law in this case appears to have been fairly clear, the laws and regulations are often murky when applied to specific facts.  While a practitioner might genuinely believe he or she is operating in accordance with the law, he or she must be open-minded to the possibility of being mistaken.   It can be very costly to defend an Accusation on an “innocence” defense—win or lose.  And, in the case of a loss, the defense lends itself to an inference of the practitioner’s indifference to the law, lack of remorse, and failure to rehabilitate, which may provide a basis to increase the level of discipline.

This case also demonstrates the danger of failing to introduce evidence of character, remorse, and rehabilitation.  While we will never know, had Hoang testified on his behalf (and there might have been strategic reasons for him not to have done so) or had other witnesses testify on his behalf as to his character, the Board might have accepted the ALJ’s recommendation or issued discipline less severe than revocation.   Whether in negotiations with licensing board, or at a hearing upon an Accusation, it is important for the licensee to introduce evidence of character, community service, acceptance of responsibility, and rehabilitation in order to view the licensee in the best possible light.

Posted by Ann C. Schneider, Law Office of Ann C. Schneider.  Ms. Schneider provides representation to licensed professionals throughout the State of California.  Any questions or comments should be directed to Ms. Schneider at aschneider@aschneiderlaw.com; (626) 789-1980.  Ms. Schneider’s website is located at www.aschneiderlaw.com.

Ms. Schneider focuses her practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and family law proceedings, as well as mediation.

A Criminal Conviction Can Impact Your Professional License

Individuals who require a professional license for their livelihood need to understand how a criminal conviction may lead to disciplinary actions by the licensee's governing board, which might include (1) denial of license, (2) suspension of license; (3) probationary status; or (4) revocation of license.

California’s various regulatory boards have the authority to deny, suspend, or revoke a license based upon a licensee's conduct. A license can be denied, suspended, or revoked on any of the following grounds set forth in Cal. Bus. & Prof. Code § 475(a):

(1) "Knowingly making a false statement of material fact, or knowingly omitting to state a material fact, in an application for a license." [Comment:  This can include failing to disclose an arrest or conviction in the application.]

(2) "Conviction of a crime." [Comment: This includes crimes that were expunged and dismissed after completion of probation.]

(3) "Commission of any act involving dishonesty, fraud or deceit with the intent to substantially benefit himself/herself or another, or substantially injure another." [Comment:  This can include activity for which a criminal action was filed but dismissed without a conviction.]

(4) "Commission of any act which, if done by a licentiate of the business or profession in question, would be grounds for suspension or revocation of license." [Comment: This means commission of any act specifically prohibited by the profession's governing statutes and regulations.]

Even though the above language in Section 475(a) seems very broad, there are some limitations. A licensing board can discipline a licensee's conduct only where there is a "substantial relationship" between to licensee's fitness to practice his or her profession and the licensee's conduct.  Hughes v. Board of Architectural Examiners, 17 Cal. 4th 763, 788 (1988).  Nevertheless, the conduct does not need to have occurred during the licensee’s work in order to be subject to discipline.  See, e.g., Windham v. Board of Medical Quality Assurance, 104 Cal. App. 3d 461 (1980) (tax evasion). In Windham, the court found there was a substantial relationship between the physician's conduct (dishonest tax reporting) and his professional duties: "there is the relation between doctor and patient. It is unnecessary to describe the extent to which that particular relationship is based on utmost trust and confidence in the doctor's honesty and integrity." Id. at 470.

You should assume that any criminal conviction will be considered “substantially related” to your practice. 

If you are licensed, you should be prepared for your licensing board to institute an investigation into the underlying conduct.  A conviction will almost assuredly lead to an Accusation being filed.   You will need competent representation in order to put yourself in the best light possible to minimize potential discipline.

If you are applying for a license and disclosing your background to the licensing board, take care to disclose all convictions, even if they have been expunged.  Lying about your criminal history might be viewed more negatively than the criminal conviction itself.  A competent attorney can help you demonstrate your rehabilitation and fitness to enter the profession.

Posted by Ann C. Schneider, Law Office of Ann C. Schneider.  Ms. Schneider provides representation to licensed professionals throughout the State of California.  Any questions or comments should be directed to Ms. Schneider at aschneider@aschneiderlaw.com; (626) 789-1980.  Ms. Schneider’s website is located at www.aschneiderlaw.com. 

Ms. Schneider focuses her practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and family law proceedings, as well as mediation. 

Gas Companies Can Legally Request Your Zip Code for Credit Card Purchases at the Pump

I get annoyed every time I pay at the gasoline pump and am asked to enter my zip code after inserting my credit card.  I will continue to be annoyed in the future.   A recent Court of Appeal decision has OK’d this practice.

In Flores v. Chevron U.S.A. Inc. (2d Dist. Div. 1, B240477, June 20, 2013), a class action challenged the practice, alleging it violated the Song-Beverly Credit Card Act of 1971 (“Act”). Among other things, the Act, generally prohibits a merchant from requesting personal identification information (including a zip code), as a condition of accepting credit card payment.  (Civ. Code  § 1747.08(a).)  There are several exceptions, including one where the personal identification information is “required for a special purpose incidental but related to the individual credit card transaction, including, but not limited to, information relating to shipping, delivery, servicing, or installation of the purchased merchandise, or for special orders.”  (Civ. Code, § 1747.08(c)(4).)  The gas companies cited this exception as justification for requesting the zip code, explaining that the information was requested solely to prevent fraud.

Flores argued that the exception did not apply, because the gas companies did not “require” the zip code to complete the transaction.  The Court of Appeal rejected the argument, reasoning that fraud prevention was “incidental” and related to the credit transaction. 

Note that there was no evidence that the gas companies used the zip code information for marketing purposes.  If there had been such evidence, the result might have been different.

Posted by Ann C. Schneider, Law Office of Ann C. Schneider.  Ms. Schneider provides civil litigation services in the Greater Los Angeles area.  Any questions or comments should be directed to Ms. Schneider at aschneider@aschneiderlaw.com; (626) 789-1980.  Ms. Schneider’s website is located at www.aschneiderlaw.com. 

Ms. Schneider focuses her practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and family law proceedings, as well as mediation.