April - Westchester County Bar Association

Transcription

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2016
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David P. Miranda
P. Daniel Hollis III
Outgoing President P. Daniel Hollis, III
Incoming President Kelly M. Welch
Newly-elected Officers & Directors
Newly-elected & Retiring Judges
50 Year Award Recipients
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WCBA
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discounted CLEs and other events
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email updates
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the Westchester Lawyer magazine
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and much more.
Kelly M. Welch
Honoring
S O C I AT
As of April 1st, members who have
NOT renewed for 2016 will no longer
be eligible to receive exclusive WCBA
member benefits including:
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120th Anniversary
Thursday, May 5, 2016
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Renew your WCBA
membership for
2016 today!
The Westchester County Bar Association’s
Cocktail Reception: 6:00 pm | Dinner & Program: 7:30 pm
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2016
APRIL 2016 | VOL. 3 | NO. 4
You are cordially invited to attend
Banquet
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THE WESTCHESTER COUNTY BAR ASSOCIATION’S MONTHLY MAGAZINE
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westchester
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If you have not yet renewed ... contact us
today to keep your member benefits!
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Our Featured Speaker
David P. Miranda
President, New York State Bar Association
Send in the Express Renewal Form on
the back cover.
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Log in to your member profile on our
website at www.wcbany.org.
Hilton Westchester
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Call Membership Services at:
914-761-3707 ext. 50.
699 Westchester Ave, Rye Brook, NY 10573
Please see p. 1 for details.
Also in this issue...
House of Delegates Report ... p. 5 | Quality Control: Best Practices for Physician Compensation Agreement ... p. 8
Become a Sy Syms “Educated Consumer” Instead of Just a Patient ... p. 12
Centennial Historic Journal excerpt from 1916-1926 ... p. 14 | Brown Bag Lunch Series: April 13, 2016 .. p. 21
CLE Center ... p. 22 ... and much more
Sponsorship & Ad Opportunities
For the 120th Anniversary Banquet
HE
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Souvenir
JOURNAL
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Keynote Speaker
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120 th A nniversary B anquet
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Banquet
120th Anniversary
Souvenir Dinner
Journal Ad
Prices & Sizes
David P. Miranda
President
New York State Bar Association
WESTCHESTER COUNTY BAR ASSOCIATION
David P. Miranda is a partner at Heslin Rothenberg
Farley and Mesiti in Albany. He is a trial attorney whose
intellectual property law practice includes trademark,
copyright, trade secret, false advertising, patent
Inside Front Cover (color)
$700
(4½” w x 7” h)
infringement and Internet issues.
Inside Back Cover (color)
$700
(4½” w x 7” h)
A 26-year member of the State Bar Association,
Miranda has served as president-elect and secretary
Gold Border Page
$400
(4½” w x 7” h)
of the Association and as a member of its Executive
Full Page
$350
(4½” w x 7” h)
Committee and House of Delegates.
Half Page
$200
(4½” w x 3½” h)
He is a member of NYSBA’s Intellectual Property
Law Section, Commercial and Federal Litigation
Section, Committee on Annual Award, Committee
Sponsorships: include mention in all pre- and poston Continuing Legal Education and Membership
event publicity in the Magazine, in e-news and on the
Committee.
website.
Miranda is an arbitrator of intellectual property
disputes for the National Arbitration Forum and
Platinum Sponsor: $5,000
American Arbitration Association. He is a past
10 tickets
Seating on the Dais
president of the Albany County Bar Association. In
Outside Back Cover ad in the Banquet Journal
2009, he served on the Independent Judicial Election
Qualification Commission for the Third Judicial District
Diamond Sponsor: $4,000
10 tickets
of the State of New York. In 2002, then-Chief Judge
Preferred seating
Judith S. Kaye appointed him to the New York State
Full page diamond border display ad in the Commission on Public Access to Court Records.
Banquet Journal
In 2001, he received the Capital District Business
Gold Sponsor: $2,500
Review’s 40 Under Forty Award for community
5 tickets
involvement and professional achievement.
Full page gold border display ad in the
He was editor-in chief and contributing author
Banquet Journal
of The Internet Guide for New York Lawyers in 1999
Silver Sponsor: $1,500
and 2005, published by the NYSBA, is the author of
2 tickets
“Defamation in Cyberspace: Stratton Oakmont, Inc.
Half page display ad in the Banquet Journal
v. Prodigy Services Co.” published in the Albany Law
Bronze Sponsor: $750
Journal of Science & Technology, and the author of
1 ticket
“New York Intellectual Property Law Review” published
Quarter page display ad in the
in the New York Appeals issue of the Albany Law Review
Banquet Journal
in 2012.
A resident of Voorheesville, Miranda graduated
For registration information please see opposite page.
from
the State University of New York at Buffalo and
We look forward to seeing you there!
earned his juris doctor from Albany Law School.
HILTON WESTCHESTER
699 Westchester Ave, Rye Brook, NY
2 I APRIL 2016 I WESTCHESTER LAWYER
You are cordially invited to attend the Westchester County Bar Association’s
Banquet
120th Anniversary
Cocktail Reception: 6:00 p.m.
Dinner and Program: 7:30 p.m.
Celebrating
120 Years of Service to the Westchester
Legal Community
Honoring
Outgoing President P. Daniel Hollis III
Incoming Presdent Kelly M. Welch
Newly-elected WCBA Officers and Directors
Newly-elected and retiring Judges
50 Years of Service Award Recipients
Hilton Westchester
699 Westchester Avenue, Rye Brook, NY
Sponsorships Available
For more information please
see opposite page or contact
Luis Rivera at
914-761-3707 ext. 50 or
[email protected]
Platuinum:
Diamond: Gold: Silver: Bronze: Souvenir Dinner Journal Ads
$5,000
$4,000
$2,500
$1,500
$ 750
Ad submission deadline: Friday April 20, 2016
Don’t miss out on the opportunity to be seen in the WCBA’s
120th Anniversary Souvenir Dinner Journal! Ads are reserved on a
first-come, first-served basis. To reserve your space for this special
occasion, please contact 914-761-3707 ext. 40 | [email protected].
Please see opposite page for ad rates.
P. DANIEL HOLLIS III
KELLY M. WELCH
Ticket Pricing: Includes cocktail reception,
hors d’oeuvres & dinner
Member Member Table of 10 Table of 10 NLS Member NLS Member Non-Member Non-Member $ 160
$ 190 $1,500
$1,800
$ 100
$ 135
$ 210
$ 245
(by April 28)
(after April 28)
(by April 28)
(after April 28)
(by April 28)
(after April 28)
(by April 28)
(after April 28)
THANK YOU TO OUR DIAMOND SPONSORS
Bertine, Hufnagel, Headley, Zeltner, Drummond & Dohn LLP
Shamberg, Marwel, Hollis, Andreycak & Laidlaw, P.C.
RESERVATION AND PAYMENT INFORMATION:
*If purchasing a table or multiple tickets, please provide a list of attendees by April 30.
Name(s):*___________________________________________________________________________________________________
Email:
_______________________________________________________________________________________________
Firm:______________________________________________________Business Telephone:________________________________
# TICKETS ______ @ ________ eachSubtotal____________
# TABLES ______ @ ________ each (*Please attach a list of attendees.)
Subtotal____________
Sponsorships: o Platinum: $5,000 o Diamond: $4,000 o Gold: $2,500 o Silver: $1,500 o Bronze: $750 Subtotal____________
TOTAL _____________
Method of payment: check/money order enclosed $ ________ or charge to: o Mastercard o Visa o AMEX o Discover Card
Card number:_____________________________________________________ Expiration Date: __________ Sec. Code _______
Credit card billing address:_____________________________________________________________________________________
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ONLINE: go to the calendar on our website: www.wcbany.org, or fill out this form and
MAIL: form and check made out to “WCBA” TO: WCBA, One N. Broadway, Suite 512, White Plains, NY 10601
WESTCHESTER LAWYER I APRIL 2016 I 1
SCAN/EMAIL: return this scanned form via email to: [email protected] or FAX form to: 914-761-9402
In this issue…
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p. 5
p. 8
p. 16
p. 26
p. 12
THE WESTCHESTER COUNTY BAR
ASSOCIATION’S MONTHLY MAGAZINE
Published by the
Westchester County Bar Association
One North Broadway, Suite 512
White Plains, NY 10601
Tel.: 914.761.3707 | Fax: 914.761.9402
Email: [email protected] | www.wcbany.org
OFFICERS AND STAFF
P. Daniel Hollis III, Esq.
PRESIDENT
Kelly M. Welch, Esq.
PRESIDENT-ELECT
Stephanie L. Burns, Esq.
VICE PRESIDENT
Richard Vecchio, Esq.
VICE PRESIDENT
Diana Bunin Kolev, Esq.
SECRETARY
Hon. Linda S. Jamieson
ASSISTANT SECRETARY
John R. McCarron Jr., Esq.
TREASURER
Wendy M. Weathers, Esq.
ASSISTANT TREASURER
Richard M. Gardella, Esq.
EDITOR-IN-CHIEF
Luis A. Rivera, Esq.
EXECUTIVE DIRECTOR
Althema Goodson
CONTINUING LEGAL EDUCATION COORDINATOR
Diana E. Lemon
LAWYER REFERAL SERVICE COORDINATOR
Mary Ellen McCourt
DESIGN & PRODUCTION MANAGER
BOARD OF DIRECTORS
David B. Bruckman, Esq., MS Tax
James L. Hyer, Esq.
Hon. Michael J. McDermott
Stephanie M. Melowsky, Esq.
Tejash V. Sanchala, Esq.
Andrew P. Schreiver, Esq.
Hon. Robert A. Spolzino, Esq.
Chauncey L. Walker, Esq.
Sherry Levin Wallach, Esq.
Submission of material to the WCBA for inclusion in the
Westchester LAWYER, Westchester Bar Journal, website or
other WCBA publication grants the WCBA limited copyright
and full permission to reprint the material in any WCBA
publication, on the WCBA website, or with LexisNexis
or Westlaw at any time without additional consent.
Please note that any opinions expressed in the articles
contained herein are solely those of the author(s) and
do not constitute positions taken by the WCBA.
Features
5 Nontraditional Legal Services Debate at ABA House of Delegates
Meeting in San Diego
By Hon. Adam Seiden
8
Quality Control: Best Practices for Physician Compensation
Agreement
By Marta Alfonso, Esq.
12
Become a Sy Syms “Educated Consumer” Instead of Just
a Patient
By Charles J. (Chuck) Newman, CLU
14
Celebrating 120 years of Service to the Westchester Community,
Part II: 1916–1926
By Hon. Charles L. Brieant
Call to Action
7
Above the Bar Awards ... Call for Nominations
Save the Dates
1
120th Anniversary Banquet Registration & Sponsorship Form
21
Brown Bag Lunch Series: Hosted by Hon. Linda S. Jamieson
Photos
16
Annual Meeting and Past Presidents Dinner
Departments
3
From the President
By P. Daniel Hollis III, Esq.
18
Member Spotlight: An Interview with Carol L. Van Scoyoc, Esq.
By Tejash V. Sanchala, Esq. 20
What’s Going On
22
CLE Center
26
From the Back Bench
By Richard M. Gardella, Esq.
28
Classifieds
28
Advertising Rates
FROM THE PRESIDENT
BY P. DANIEL HOL L I S I I I , ESQ.
364 and a Wake Up
Nearly as soon as you arrived for
duty in Vietnam, you knew you needed
to procure a “short timers” calendar.
The calendar was a drawing of one form
or another divided into 365 squares or
other less formal shapes. The purpose
of the “short timers” calendar was to
keep track of your time remaining by
coloring each square/shape at the end
of every day beginning at 365 descending to 1 … number 1 being the day of
the “wake up” … the Freedom Bird …
home.
My calendar seemed to fill in very
slowly.
I had no such calendar while serving as your president and believe me,
this past year has rocketed by. This is
my last article for the Westchester Lawyer and I want to devote it to briefly
setting forth some of the things that
I am happy to have been part of ac-
complishing, but most of all, to extend
thanks to the many of you who helped
make this year the absolute pleasure it
has been.
First of all I need to thank my two
predecessors in this office, Jody Fay
and Dawn Kirby. They both provided
me with a sturdy platform from which
to launch my year as president. More
importantly, they did it with friendship
and fun!
Next I would like to thank my successor Incoming President Kelly Welch,
whose total recall of the organization’s
finances (which she nearly single handedly put back on the right track) was
beyond helpful to me in keeping the
budgetary process in “Kelly Line.” I am
certain Kelly’s year as president will
show her driving up our membership
and ensuring our financial stability for
the foreseeable future.
Special thanks go to Executive Director Luis Rivera who took over the
controls of the Association in a period
of transition as I began my presidentelect year, and has demonstrated total
commitment to our Association, an extraordinary work ethic along with the
ability to do his job and to do it well,
all the while continuing to grow in the
position.
An additional shout out to Mary Ellen McCourt and Diana Lemon for their
assistance in bringing the Daily Docket
to life every day.
I thank my partners and staff at
Shamberg Marwell Hollis Andreycak &
Laidlaw for allowing me the freedom
to devote the time that was necessary
to try to do the right job for the Association.
(continued on page 4)
SAVE THE DATE: WESTCHESTER COUNTY BAR ASSOCIATION’S ANNUAL
GOLF OUTING & DINNER
Monday, July 18, 2016
The Whippoorwilll Club
150 Whippoorwill Rd, Armonk, NY
Enjoy a glorious day of golf on the beautiful course at the Whippoorwilll Club.
Begin your day with a luncheon buffet, play 18 holes with your friends and colleages and
end the day with an elegant sunset dinner and awards presentation.
SPONSORSHIPS ARE AVAILABLE
For more information contact: Luis Rivera: 914-761-3707, ext. 50, or [email protected]
PRESIDENT’S MESSAGE
(continued from page 3)
Most of all among the staff I thank
my assistant of many years, Kathy
Canero, whose day to day assistance
in processing and responding to scores
of emails, other correspondence, the
Daily Dockets, the Westchester Lawyer articles and whatever the job took
while still managing my law practice was
something I could not have done without her.
The year started in May with my
representing the Association at Law Day
and at the Gagliardi Awards and sped
through the summer, fall, winter and
now to the spring again.
We have a Strategic Plan in place
and I turn its implementation over to incoming President Kelly Welch and to incoming President Elect Stephanie Burns.
We have been able to establish and
enhance a strong relationship with Administrative Judge Alan D. Scheinkman,
J.S.C., whose willingness to listen to
the bar leadership and implement necessary changes when appropriate has
been of extraordinary assistance to our
practitioners and I thank him for creating and enhancing that process.
Under Judge Scheinkman’s leadership, we were able to assist in implementing changes in the Surrogate’s
Court which have made the practice in
that court easier, friendlier and more efficient for those who regularly practice
there.
We assisted in putting together a
CLE conceived by Judge Scheinkman
entitled “Appointments Forum,” which
was a great success as it presented to
attorneys who have not historically
been appointed by judges to various positions such as guardians ad litem, referees, receivers, the opportunity to both
learn how to become so appointed and
to meet the judges who would be making the actual appointments. Most of
the judges in the Ninth Judicial District
who sit in Westchester County attended
that forum.
With the help of Vice President
Richard Vecchio and his Co-chair Paul
Millman of the Grievance Committee,
we streamlined that committee’s practices so as to enable complaints to be
processed more quickly and efficiently.
I was able to have the presidents
of the Rockland, Orange, Dutchess and
Putnam County Bar Associations join
with me in forming the 9th Judicial District President’s Council which will be
a most powerful force in assisting with
Chief Justice DiFiore’s Excellence Initiative.
The Daily Docket has been a lot
of fun to create and share with all the
readers. Every workday during my year
as president (except for a few legal holidays and the days I spent with my family
celebrating my 70th birthday in St. Louis) we were able to use the Daily Docket
to attract visits to our Facebook page,
which began slowly and rose, at times,
to nearly 500 visits a day.
We worked with our Lawyer Assistance Committee, which is guided
by the totally devoted Dan Seymour,
along with Patricia Spataro and Judge
Sallie Krauss of the New York State Bar
Association to raise the awareness of
our members to the availability of help
should they so need it.
The most moving moment of my
presidency is one that I celebrated
privately when Dan Seymour called
and told me that one of our members
who had read either the Daily Docket
or the article in the Westchester Lawyer about the Lawyer Assistance Program, reached out to Dan as the article advised people to do if in trouble
and sought Dan’s and the Program’s
help. If the only accomplishment of
my presidency was to put that single
person on the path to sobriety and a
better life, I will count it as a success.
We have strengthened our relationships with a number of the local bar
associations, attending their meetings
on a regular basis and participating and
aiding the initiatives of those particular
local bar associations. I hope to be able
to continue in that effort as a past president.
Perhaps the most long lasting initiative came into being after a wonderful
day when Past President Anthony Enea
and I rode together to Albany as guests
at the investiture of Chief Judge Janet
DiFiore, a friend to us personally and
to our Bar Association. As I mentioned
above, Chief Judge DiFiore’s goal for her
tenure is an “Excellence Initiative.”
To that end, one of my last acts as
President was, at the recommendation
and with the usual unflagging support
of Anthony, to create an ad hoc committee, called Chief Judge DiFiore Excellence Initiative Committee with Anthony
as chair, and myself as Co-chair, that will
hopefully provide assistance to Chief
Judge DiFiore in constructively identifying strengths, weaknesses and opportunities for improvement within our court
system. We are hopeful that this prototype and the activities of our committee
will be followed by County Bar associations throughout our state. Chief Judge
DiFiore was thrilled when she learned of
Anthony’s idea and has encouraged Anthony and I to follow through as it has
been described to her.
With all of that being said, it has
been a wonderful year. A year filled with
old friends, new friends, and new relationships.
I have enjoyed and treasured every
moment of it. I thank you all for the privilege of serving. It is a year I will never
forget.
May the road rise up to meet you all!

Report from the ABA House of Delegates 2016
Nontraditional Legal Services Debate at
ABA House of Delegates
Meeting in San Diego, CA
By Hon. Adam Seiden
There is a phrase that should catch
the attention of every practicing lawyer.
The phrase is “nontraditional legal
services.” These words are being used
to describe legal services provided to the
public by either non-lawyers or, most
often, through innovative technical
platforms. These are the words being
used when legal services are provided
to the consumer without lawyer
involvement or attorney supervision of
those rendering the services.
Examples of the providers of such
services abound. Legal Zoom provides
after the consumer answers a few
questions, completed legal documents
online. AVVO answers millions of
legal inquiries online. The state of
Washington has created a career path
for “legal technicians,” non-lawyers
who train for a period of time with
a lawyer and are thereafter certified
by the state to perform specified legal
services to the public without attorney
involvement or supervision.
The growth of companies providing
“nontraditional legal services” has been
nothing short of astronomical. Billions
(with a “B”) of dollars are being
invested in companies that provide
these services. It is driven by the fact
that allegedly only fifteen percent of
the needs of the public are being met by
lawyers. The failure of the organized bar
to recognize and respond to the needs
of the public is clear. The investment
bankers have discovered an opportunity
and are taking full advantage of it.
One would think that when so
many people need legal services and so
many attorneys need and want to work,
we could put the two groups together.
For some reason, the normal laws of
supply and demand seem not to apply
to this situation.
There is a phrase that
should catch the attention
of every practicing lawyer.
The phrase is “nontraditional legal services.”
I was once again honored to
represent our Association at the
American Bar Association (ABA) House
of Delegates Midyear Meeting. It was
held in San Diego, CA, on February
8, 2016. The issue of “nontraditional
legal services” came before the house.
It sparked much debate and division
in the house. I believe that this issue is
of such importance to us as practicing
attorneys that it requires a separate
report to our membership.
The resolution was presented to
the house by the Commission on the
Future of Legal Services and other
entities within the ABA calling for
the ABA to adopt Model Regulatory
Objectives for the provision of legal
services. Ten objectives were listed:
1Protection of the public.
2Advancement of the administration of justice and the rule of law.
3Meaningful access to justice and
information about the law, legal
issues, and the civil and criminal
justice systems.
4Transparency regarding the nature
and scope of legal services to be
provided, the credentials of those
who provide them, and the availability of regulatory protections.
5Delivery of affordable and accessible legal services.
6Efficient, competent, and ethical
delivery of legal services.
7Protection of privileged and confidential information.
8Independence of professional
judgment.
9Accessible civil remedies for negligence and breach of other duties
owed, and disciplinary sanctions
for misconduct.
10 Diversity and inclusion among
legal services providers and freedom from discrimination for those
receiving legal services and in the
justice system.
(continued on page 6)
ABA HOUSE OF DELEGATES
(continued from page 5)
All of the above goals are laudable
and appropriate when regulating the
practice of law. The problem is that
the resolution goes further and states
that the ABA urges the highest Court
in each State, etc. to be guided by the
above objectives when they “assess the
Court’s existing regulatory framework
and any other regulations they may
choose to develop concerning nontraditional legal service providers.”
A floor fight and debate ensued in
the House of Delegates. A motion to
delay deliberations of the resolution lost
by a vote of 271-197. Two amendments
were proposed with regard to the
resolution, one passed and the other
failed. The amendment that passed
added to the resolution the fact that
nothing within the resolution in any
way abrogates the existing American
Bar Association policy prohibiting
non-lawyer ownership of law firms or
the core values adopted by the House
of Delegates. The amendment was, in
my opinion, important, but did not go
far enough.
I was proud to say that the New
York delegation led the fight against the
resolution and helped push through the
amendment. In the end, the Resolution
as amended passed by voice vote. I
think it is the beginning of what will be
at the least a major modification of how
legal services are provided to the public
in the future. At worst, this could be a
travesty for our profession.
First, it should be noted that now
the American Bar Association, the
leading national voice of the legal
profession, recognizes and tacitly
approves and encourages the existence
of theses “non-traditional legal services.”
They are no longer to be considered as
possibly the unlawful practice of law
under state statutes. The American
Bar Association suggests that they be
regulated, not eliminated or managed
by attorneys.
For my entire career (forty years)
and for some time prior thereto, in
order to provide legal services to the
public, you needed to study law,
either in a law office under a lawyer’s
guidance or at a law school; you needed
to pass a bar examination testing your
knowledge; you needed to be approved
by a character committee which judged
your ethical background; and you
were bound by a strict code of ethical
conduct. Providing legal services to the
public was so important and critical
that almost every state passed statutes
making it criminal behavior to practice
law without meeting specific licensing
requirements.
Now, by this resolution, the
American Bar Association House of
Delegates has wiped away all those
years of development which helped
our profession ensure the best possible
result when someone provides legal
services to the public. We might as
well strike from the books any statute
which designates an act as the unlawful
practice of law as a crime. As the various
states comply with the new proposed
regulatory scheme, there is no such
thing as the unlawful practice of law.
Whatever happened to a bar
association being an organization of
lawyers for the benefit of lawyers? I
understand we must always pay careful
attention to the impact of our actions
upon the public. In this case, there was
a way to help both attorneys and the
public.
The American Bar Association has
selected a process which may injure
both. Lawyers that need and seek
business will be competing not only
with other attorneys, but with these
different methods of providing legal
service to the public. The public will
have less protection because services
will be provided by less qualified, less
trained and less educated providers. In
the drive to produce affordable legal
services, has the bar association ignored
the issue of quality of service? We have
so many attorneys out of work and
seeking law related employment.
When so many lawyers are taking
jobs in other fields because they cannot
get a position practicing law should
not the American Bar Association try
to figure out why there is a disconnect
between those who need lawyers and
lawyers themselves?
Should we not work to put these
groups together rather than recognize
and indeed provide encouragement
for the provision of legal services by
non-lawyers? I feel that not enough
emphasis was put into trying to identify
and remedy the disconnect between the
public and our profession.
And what of the future? Now
that the ABA has recognized that
legal services—even under regulation
—can be provided by non-lawyers
not supervised by attorneys how far
away is non-lawyer ownership of law
firms? How far away is the publicly
traded law firm? Even though this
resolution reiterates the American Bar
Association’s position that law firms
should be owned by lawyers, there is
no guarantee that the next resolution
will do so. This resolution does more
than put the camel’s nose in the tent.
Look around. The whole damn camel
is in the tent.
Hon. Adam Seiden is the WCBA delegate
to the American Bar Association. He is a
past president of the Westchester County
Bar Association, is currently and has been
since 1995 Associate Judge of the Mount
Vernon City Court and is in private practice
in Mt. Vernon, NY.
2016
ABOVE
THE BAR
AWARDS
TENTH ANNUAL COUNTYWIDE
AWARDS PROGRAM
RECOGNIZING OUTSTANDING
WESTCHESTER ATTORNEYS
SAVE THE DATE:
JUNE
9
THE WAINWRIGHT HOUSE
260 STUYVESANT AVE, RYE
PRESENTED BY:
• CITRIN COOPERMAN
• WESTCHESTER COUNTY BUSINESS JOURNAL
• PACE UNIVERSITY SCHOOL OF LAW
• WESTCHESTER COUNTY BAR ASSOCIATION
• WESTCHESTER WOMEN’S BAR ASSOCIATION
Visit westfaironline.com/events for the
nominating process. Each nomination
should consist of a minimum of 200
words based on the criteria provided.
Please submit your nomination and a
copy of the nominee’s CV no later
than April 27. For more information
or questions, call Danielle Brody
at 914-358-0757 or email dbrody@
westfairinc.com.
Nominations close
April 27
A CALL FOR
NOMINATIONS
Members of the Westchester business and legal communities are
encouraged to nominate, pursuant to the criteria, one or more
candidates for the following prestigious award categories:
PACE SETTER AWARD: Candidate exemplifies overall excellence in professional and
community work, prominence in the Westchester legal profession and fierce
determination to being as good an attorney as possible. The highest award, the
candidate must be well respected by peers and community.
MOST SOCIALLY CONSCIOUS AWARD: Candidate is dedicated to one or more causes
in the community as an active member or leader and has a significant history of
pro bono legal or government service, which warrant praise and recognition by
peers and community.
LEADING ATTORNEY UNDER 40: Candidate under the age of 40 must be a prominent
and respected attorney in his/her field, active in his/her community offering pro
bono work, published in legal journals/newspaper and promises to be a leading
legal player in the years to come.
LEADING TRUSTS & ESTATES ATTORNEY: Candidate should have a strong record of legal accomplishments in the field of Trusts & Estates including estate planning and
estate administration. The nominee should also be well-respected amongst his/
her peers for his/her expertise in Trusts & Estates here in Westchester County.
MOST PROMISING PACE LAW SCHOOL STUDENT: Candidate, in his/her third year, who
through passion and enthusiasm for the law, high scholastic achievement and
initiative and involvement in school and community activities will be a promising
member of the legal profession.
“WITHOUT QUESTION WINNING THE ABOVE THE BAR AWARD IS ONE OF THE MANY HIGHLIGHTS
OF MY LEGAL CAREER, BUT ITS MEANING IS FAR GREATER. IT CELEBRATES THE RULE OF LAW IN
OUR PROFESSION AND IT RECOGNIZES ALL LAWYERS WHO FIGHT FOR THE RIGHTS OF OTHERS.”
Tejash V. Sanchala
2012 Above The Bar Award Recipient
Leading Labor & Employment Attorney
SPONSORS
WESTCHESTER COUNTY
WCBJ BUSINESS
JOURNAL
QUALITY CONTROL
Best Practices for Physician
Compensation Agreement
BY MARTA ALFONSO, ESQ.
P
h y s i c i a n c o m pe n s at i o n
remains a complex and fertile
minefield of federal and state
health care regulatory compliance
challenges, administrative sanctions,
and civil and criminal litigation.
Unreasonable Physician Compensation
Arrangements (“PCAs”) are a primary
driver in costly federal and state
health care compliance1 investigations,
regulatory enforcement actions, and
multi-million dollar assessments and
penalties for physicians and health care
organizations (“HCOs”) as industry,
technology, and the regulator y
landscape continues to evolve.
Independent third party valuations
can be meaningful alternatives2 used by
an HCO to corroborate its conclusions
that a given PCA reflects fair market
value (“FMV”). 3 HCOs should
adopt effective quality controls that
provide proper oversight of a qualified
independent valuation expert and
have reasonable expectations about
what an independent valuation expert
report can provide. Included below are
important best practices that an HCO
should consider adopting in its quality
control program for supervising third
party experts valuing its PCAs:
Provide complete
information regarding
the PCA under review.
An HCO should provide the
independent valuation expert with
a current, written PCA for the
valuation assignment. An HCO’s
written documentation should entail
defined physician performance metrics,
physician performance monitoring
reports, if applicable, and the HCO’s
evidence that compiles a physician’s
total compensation package, including
related benefits, perquisites and
specialty compensation programs.4
Validate that the valuation
expert understands the PCA
under review
In today’s environment, PCA terms
can be complex formulas that drive
experienced independent valuators
to confirm their understanding of a
PCA’s key terms prior to beginning
detailed valuation procedures. Failing
to confirm the valuator’s understanding
of the PCA’s terms may result in a
valuator’s opinion being based on
an inaccurate interpretation of a
physician’s compensation package. A
valuation expert’s report cannot be
used to interpret an ambiguous PCA
or validate its compliance with health
care laws and regulations. To gain the
understanding of a PCA, a valuation
expert may require the HCO’s legal
interpretations of a PCA’s key terms
and assessment of compliance with
health care laws and regulations.
This vital step of validating PCA
terms by the independent expert can
identify unintended PCA deficiencies
requiring HCO remediation, including
the failure to recognize a physician’s
total compensation package for the
physician’s productivity. Such identified
deficiencies should drive an HCO’s
assessment of its legal obligations to
self-report and remediate its PCA prior
to any valuation report being issued.
Understand the valua-
tion expert’s methods in selecting or excluding benchmarks
for a FMV determination, including the relevant geographic
scope, specialty comparisons,
or compensation surveys
An HCO should develop an
understanding of the valuation expert’s
basis for selecting and excluding
certain compensation benchmarks
and measures, including geography,
specialty definitions, and benchmark
c o m p e n s a t i o n m e a s u re s , s u c h
as surveys or rules of thumb to be
considered. In addition, the HCO
should be alert to the use of rejected
and unsubstantiated offers by other
health care organizations as evidence
of FMV. An HCO’s ignorance or
mere reliance on a valuation expert’s
approach without ascertaining the basis
for the expert’s methodology can render
invalid analysis, unsupported and
erroneous conclusions, and may result
in expenditures of HCO resources that
could produce unreliable opinions.
Perform a rigorous review
of the independent valuation
expert’s assumptions, methods of selecting and excluding
benchmarks, and the basis for
conclusions
Third party valuations should be
subjected to validation by an HCO that
documents its understanding of the
valuator’s experience and competency,
the key PCA terms considered, the
expert’s methodology, the selection
and use of survey benchmarks, the
reasonableness of total compensation
calculations, and the formulation of
the expert’s conclusions based upon the
evidence acquired. This rigorous review
can serve to identify and resolve any
factual inaccuracies or ambiguities with
respect to the expert’s methodologies
and findings. Blind acceptance of an
independent valuator’s conclusions is
inadequate supervision of a valuation
expert and the related work product
provided to the HCO.
Adopting sound quality control
procedures serve as preventive and
detective controls in maintaining
compliance with health care laws and
regulations for physician compensation
agreements. In the current regulatory
and litigation environment related to
physician compensation, an HCO
cannot afford to ignore the adoption
of necessary quality controls over third
party valuations of their PCAs.
Endnotes
1 Including the Anti-Kickback Statute, the
Stark Law, and Internal Revenue Service
requirements. Physician compensation
arrangements are increasingly unique
agreements reflecting particular circumstances of an HCO, and thus require
specific legal and technical review with
experts, including legal counsel. This
article is not intended to serve as legal
or financial advice for any individual
situation.
2 An HCO should consider whether independent compensation surveys and
benchmarks as tailored to a particular
location, specialty and compensation
package would be sufficient documentation to demonstrate FMV and reasonable compensation practices.
3 Federal health care laws do not provide
a safe harbor for physician compensation
arrangements that: (1) pay for the volume or value of referrals for designated
health care services; (2) do not identify
services for which a physician is being
paid for; (3) fail to compensate a physician consistent with fair market value;
and (4) are not commercially reasonable
unless a physician makes referrals to the
respective HCO.
4 Including, among others, such compensation items as relocation payments,
excess health and life insurance benefits,
productivity and quality bonuses, and
physician call pay programs.
Marta Alfonso, CPA/CFF, CIRA, JD, is a
principal in the Litigation and Valuation
Division at MBAF CPAs, LLC. Marta offers
extensive financial experience and
understanding of critical financial litigation
issues. Trained as both an accountant and
an attorney, she has worked in a range of
consulting and in-house corporate roles
since 1983.
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Health Insurance Landscape 2016
Become a Sy Syms
“Educated Consumer”
Instead of Just a Patient
BY CHARLES J. (CHUCK) NEWMAN, CLU
T
he Landscape for health insurance in 2016 looks a bit
different than it did in 2015.
For starters, in New York State,
the definition of a “Large” employer
group for insurance rating purposes is
now over 100 “Full Time Equivalent”
(FTE) employees. (FTE calculations include part time staff hours, so even if a
group has fewer than 100 full time employees, they may have more than 100
FTE employees).
New York groups with fewer than
100 FTE employees are now considered
a “Small” group. As such, they are community rated (with community rated
groups, the group’s demographics and
claim experience will not impact rates,
only the geographic locale in which the
plan is based will impact rates). In other
states however, the definition of small
group is 50 and fewer FTE, so outside of
New York, a group with 51 employees
is rated as a “Large” group (with rates
based on demographics and claims).
To further complicate matters,
New York groups with 51 – 100 employees while community rated as Small
Groups, still must adhere to the Federal
“Pay or Play” rule. These groups must
ensure that the insurance they offer is
considered to be “affordable” per the
Affordable Care Act.
Here are some other tidbits to be
aware of in 2016:
Employer Payment of Individual
Health Plans is Prohibited
a. An employer cannot reimburse an
employee for the premium expenses incurred for an individual health
insurance policy, or use its funds to
directly pay the premium for an individual policy.
b. Employers can generally increase
an employee’s compensation, so
long as the payment of additional
compensation is not conditioned
on the purchase of health coverage
and the employer does not otherwise endorse a particular policy,
form, or issuer.
c. Health Reimbursement Arrangements (HRAs) that are used to reimburse employees’ individual policy premiums may be subject to a
$100/day excise tax per applicable
employee (which is $36,500 per
year, per employee).
d. 1099’s are now eligible for cover-
age under an employer group plan.
However, to qualify for the group
plan, they must meet certain criteria (which under review makes
them appear to be in all respects
an employee… possibly inviting IRS
scrutiny of their 1099 status).
e. A plan’s premiums are generally
linked to physician and facility access; network size and geographical reach have a big impact on cost
f. For instance: new in 2016 is
Oxford’s (lower premium cost)
Metro Network which has around
65% of Freedom Network doctors and about 75% of the Liberty
Network’s doctors.
g. A new (and small but competitive)
network is being implemented by
many groups to replace the defunct
Health Republic: CareConnect,
(which in Westchester, has only
Northern Westchester, Phelps,
and White Plains hospitals).
Unreliable Network Directories
The Wall Street Journal reported in late December 2015 that in
November 2015, the state of California
fined Anthem Blue Cross Blue Shield
of California, after a survey found that
more than 25% of doctors listed in
their 2014 state directories were not at
the given location or denied accepting
those plans.
A spokesman for Blue Shield said
it had paid more than $38 million in
claims adjustments during the past two
years, in part to cover surprise out-ofnetwork bills.
In our own office, a client received
correspondence from Oxford listing
dates of service from 2009-2012 and
asking for receipts, cancelled checks
and credit card statements to verify
payments made to out of network physicians who had been listed on their
website as participating providers.
New Medicare & Medicaid rules
had originally called for insurers to contact all network providers every month
to verify listings. The agency revised
that to quarterly, after opposition from
insurers and doctors.
My own experience has shown two
new Urgent Care facilities not listed
with either MVP or Oxford, but when
contacted, both facilities said they participate with both carriers. I also no-
ticed a current listing with Oxford for a
Paul Edelman, a physician who passed
away but is still listed as a participating
provider.
In no particular order, here are
some tidbits (a short Health Insurance
survival guide) for 2016:
Three (and Four Tier) Prescription
Plans
1. Ask your doctor if a generic is available and if it would be OK for you
to take.
2. If there is no generic (or if it’s not
OK), ask your doctor to not check
the “Dispense As Written” (DAW)
box on the prescription pad (perhaps you can get a lower cost brand
name under Tier 1 or Tier 2).
How to Handle Higher In Network
Deductibles
1. Maximize benefits and lower your
plan utilization by checking on
the cost of In-Patient and OutPatient procedures and Advanced
Radiology before making an
appointment.
2. Call around (Hospital Based Care
and Testing vs. Free Standing
Facility alternatives) & check www.
HealthCareBluebook.com.
3. Make sure that your doctor’s office
has obtained pre-authorizations
for any procedure requiring them
(and don’t forget to ask about the
anesthesiologist!).
4. Use Urgent Care versus Emergency
Room whenever possible.
5. Use “Teledoc” services when available from your carrier (or consider
a supplemental plan which offers
Teledoc).
Charles J. (Chuck) Newman CLU, is a licensed
insurance agent and WCBA preferred provider
agent. He provides group and individual
insurance programs including Medical,
Dental, Long and Short Term Disability,
Life Insurance Long Term Care Insurance.
He can be reached at: 914-345-1000;
[email protected].
THE LAW OFFICES OF
Sher, Herman, Bellone and Tipograph, PC
ESTABLISHED IN 1970
is pleased to announce the relocation of their Westchester offices to
5 Waller Ave., Suite 303, White Plains, NY 10601
our firm will continue to concentrate in the areas of
Worker’s Compensation & Social Security Disability
referral fees paid as allowed by the ethics rules.
www.newyorkworkerscompensationlawattorney.com
914.358.9932
CH
ESTE R CO
1916–1926
U
Y
WE
NT
ST
Celebrating 120 years of Service to the Westchester Legal Community
AS
I
O
BA
R
2016
N
1896
S O C I AT
WCBA
BY HON. CHARLES L. BRIEANT
United States District Judge, Southern District of New York from 1986 to 1993
Reprinted from the Centennial Historic Journal
This is the third chapter from the Centennial Historic Journal, published in 1996, that presented the history
of the Association in 10 year increments. We hope you are enjoying the look back to see how far we have
come! For earlier chapters in the series please see the February and March 2016 issues of this Magazine.
Westchester was transforming
quickly from small villages, characterized by farms and large estates
to bustling suburbs whose residents
commuted daily into New York City,
mostly by train. Completion of the
Bronx River Parkway, the world’s first,
enabled us to drive to the city with
relative ease. From 1914 to 1924,
Westchester suburban traffic increased
138 percent. Notwithstanding the War
to End All Wars, the County’s growth
was such that in 1926 the Westchester
County Transit Commission recommended that an additional rail line~
to Manhattan be constructed. The
proposed railroad would run under
Madison Avenue directly to the financial district.
Helping fuel this rapid suburbanization of the County was the introduction of guaranteed and certificated mortgages issued by title and trust
companies. This made financing home
ownership affordable, attracted more
families to to the county, and brought
prosperity to our members. Lawyers
referred to the “Real Estate Record
of Westchester County,” published at
ten cents every Wednesday, as a single
source for all real estate information
and judgments, as well as the Calendar
and listed orders of the Bankruptcy
Attorneys gathering in Port Chester circa 1916
and Surrogate’s Courts. By 1925, some
600 attorneys practiced in Westchester
(approximately one percent of whom
were women), and belonged to our
Association. Association Presidents
of the day were Michael J. Tierney of
New Rochelle, Odell D. Tompkins
of Mt. Vernon, John M. Digney of
White Plains, George H. Taylor Jr.
(later J.S.C.) of Mt. Vernon, Frederick
P. Close of White Plains (later J .S.C .)
and I. J. Beaudrias of Yonkers.
National Prohibition, referred to
by President Herbert Hoover as the
“Noble Experiment,” hit largely wet
Westchester in 1920 and endured until
1932. There was much litigation but
little left of record. Speak-easy premises raided by the federal prohibition
agents were padlocked, and vehicles
seized while transporting liquor were
forfeited. Lawyers, doctors and other professionals caught violating the
Volstead Act (which prohibited manufacture, sale or transportation of liquor
but not mere possession or use), lost
their licenses upon conviction. Most
freedom loving families made home
brew in the basement and gin in the
bathtub, where Arthur “Dutch Shultz”
Flegenheimer operated the Yonkers
Brewery.
The most visible change in the
practice of law, having the most practical effect on lawyers, was the erection
of the fourth County Courthouse in
White Plains. Work began in 1916
and was completed in 1918; the total cost (1916 dollars) was $600,000.
Erected on the site of the third courthouse, now the Galleria, it was a great
source of local pride, described as being
a “spacious Temple of Justice.” Above
the columns were inscribed the words
of the Magna Carta “To None Will We
Sell; To None Will We Delay; To None
Will We Deny Right and Justice.” The
cornerstone was laid by Hon. Charles
D. Millard, then chairman of the Board
of Supervisors, later as President of the Westchester County Courthouse, June 6, 1917
Westchester County Bar Association, Association, a partner in the Yonkers to the press was the “high station” of
as a member of Congress and then as firm of Brennan, Curran & Bleakley the defendant. Ward asserted that
Surrogate.
and later in what is now Bleakley, Platt he had been the victim of blackmailWestchester Magazine observed that and Schmidt of White Plains; George ers, and that on May 16, 1922, he
while White Plains had developed as A. Slater of Port Chester served as had been ambushed and attacked by
Clarence M. Peters, who was hiding in
the center of the legal community in Surrogate from 1919 to 1937.
Westchester “White Plains has less
On May 6, 1924, at a luncheon Ward’s car. Ward claimed that Peters
native lawyers than any other county held at the Gedney Farms Hotel, our shot at him first, and missed. Ward
seat in the Empire State. A majority Association presented Judge Slater with returned fire, hitting his mark. The
were either born in other villages of an oil portrait of himself in recognition original indictment was dismissed for
the county or came from ‘rock-bound of his service to the County. In 1917, failure to prosecute. At the urging of
counties up the state’ but to their cred- our association lost one of the county’s Mr. Peters’ mother, Governor Alfred
it be it said they are making good and brightest legal minds and a past presi- E. Smith ordered the Attorney General
fattening from some of the most succu- dent when Frank B. Millard was killed to reopen the case. This was done.
lent crumbs that fall from the political on the railroad in Tarrytown by the At trial in September, 1923, State
Attorney-General Carl Sherman and
table. The up-state chap always has his “Wolverine Express.”
Deputy Attorney-General Wilbur W.
nerve with him.”
The most popular reasons for jury
Notable members of the Association duty exemptions in this period were for Chambers prosecuted, while John F.
during this period included: Frank L. members of volunteer fire companies, Brennan of Yonkers and Rabenold &
Young of Ossining, County Judge individuals who did not own proper- Scribner, of New York defended with
from 1916 until 1921 when he became ty worth more than $250, government former Supreme Court Justice Isaac N.
Justice of the Supreme Court; William employees, engineers, railroad employ- Mills, of Mount Vernon, of counsel.
F. Bleakley who hailed from Verplanck ees, machinists, cotton goods manufac- Ward was acquitted.
by way of Yonkers, County Judge from tures, teachers, dentists and lawyers.
EDITOR’S NOTE: The Federal court
1922 to 1927, in 1928 a Justice of the
A notable trial during this period
Supreme Court of New York, and in was that of Walter S. Ward, son of the building in White Plains is named for
1939, the first Westchester County owner of the Ward Baking Company, the late Judge Brieant, the author of
Executive. Judge Bleakley was a for- tried for murder before Justice (later this article.
mer Vice President of the County Bar Senator) Robert F. Wagner. Significant
ANNUAL MEETING
AND PAST PRESIDENTS DINNER
WCBA Past Presidents in attendance: Jack Geoghegan, Peter Zeltner, Richard Gardella, Hon. Adam Seiden, Mary Ellen Manley, John Marwell,
Dawn Kirby, Jerold Ruderman, Anthony Enea, Henry Miller, Carol L. Van Scoyoc, Ralph Nobile, Donald Sandford and Jody Fay
2016-2017 Slate of Officers Elected
The Westchester County Bar Association’s Annual Meeting and
Past Presidents Dinner was held on March 2nd at the Elmwood
Country Club, where we elected the 2016-2017 slate of officers and directors. Congratulations to all! Please join us at the
120th Anniversary Banquet on May 5, 2016, for the induction
ceremony and a celebration of the WCBA’s 120th year of service to the Westchester legal community. (See the February
2016 issue of this Magazine for the complete slate of officers.)
THANK YOU TO OUR SPONSORS!
DIAMOND
Bertine, Hufnagel, Headley, Zeltner, Drummond & Dohn, LLP
1
GOLD
Enea, Scanlan & Sirignano, LLP
Shamberg Marwell Hollis Andreycak & Laidlaw, P.C.
SILVER
Jackson Lewis, P.C.
Keane & Beane, P.C.
Sterling National Bank
Worby, Groner & Edelman, LLP
BRONZE
Brown, Gruttadaro, Gaujean & Prato, LLC
Cabanillas & Associates, P.C.
DelBello, Donnellan, Weingarten, Wise & Wiederkehr, LLP
Ellenoff Grossman & Schole, LLP
Grassi & Company
Kurzman Eisenberg Corbin & Lever, LLP
LexisNexis- Dan Zilker
O’Connor Davies, LLP
Orange Bank & Trust Company
2
1 Hon. William Giacomo, Hon. Linda Jamieson, Hon. Anthony Scarpino
and Hon. John Colangelo
2 Kathy Rosenthal, Stuart Rosenthal and Gail Boggio with Kim Griffith
of sponsor Orange County Bank & Trust Company
3
4
5
6
7
8
11
3 WCBA President-elect Stephanie Burns and Incoming President Kelly
Welch with NYSBA Incoming President Claire Gutekunst
4 Larry McElroen of sponsor Sterling National Bank with WCBA Past
Presidents Dawn Kirby, Ralph Nobile and Jody Fay
5 WCBA Past President Henry Miller with Joseph Ruhl of sponsor
Orange County Bank & Trust Company
6 Past President Anthony Enea and Richard Scanlan of sponsor Enea,
Scanlan and Sirignano
7 Hon. Thomas Dickerson with Past President John Marwell of sponsor
Shamberg Marwell Hollis Andreycak & Laidlaw
9
10
12
8 Joel Lever of sponsor Kurzman Eisenberg Corbin & Lever with WCBA
Vice President Richard Vecchio
9 Hon. Alan D. Scheinkman, Administrative Judge, 9th Judicial District
with Jon Dorf
10 Lucille Fontana, Past Presidents Carol Van Scoyoc, Adam Seiden and
Jerold Ruderman with Hon. Terry Jane Ruderman
11 President P. Daniel Hollis III (second from right) with outgoing chairs
Joel Sachs, Lucille Fontana and Richard Vecchio
12 James Reduto, Margo Sterling with WCBA Past Presidents Jack
Geoghegan and Richard Gardella (all of sponsor Bertine, Hufnagel,
WESTCHESTER
Headley, Zeltner, Drummond
& Dohn) LAWYER I APRIL 2016 I 17

MEMBER SPOTLIGHT
In this column, Tejash V. Sanchala, Esq., WCBA
board member and Labor & Employment Law
Committee co-chair interviews members about
their experiences and insights.
Tejash welcomes your comments and suggestions for future columns. He can be reached at
[email protected].
Carol L. Van Scoyoc, Esq.
WCBA Past President
Number of Years as a Member of
the WCBA: 30 years. Past president;
former vice president and secretary;
former executive committee member;
current editor-in-chief of the Westchester Bar Journal; current co-chair of
the Bar Journal Committee; current editorial staff member of the Westchester
Lawyer magazine; past editor-in-chief
of the Newsletter and past chair of the
Newsletter Committee; past chair of
the Municipal Law Section.
Awards and honors received: the
2014 Westchester County Bar Foundation Award; the 2012 New York State
Bar Association’s Award for Excellence
in Public Service; 2011 Above the Bar
Award for Outstanding Public Service
Attorney. I am currently serving as
chair of the Local and State Government Law Section of the NYSBA.
My current job and practice area are:
as Chief Deputy Corporation Counsel
for the City of White Plains, I am involved in many aspects of municipal
law, including litigation and the drafting
of legislation and legal opinions, involving land use law, zoning, public safety,
ethics, and environmental issues, to
name a few. I am also an adjunct professor at Pace University’s Graduate
School of Public Administration.
How I decided to work in municipal law: as an intern at Pace Law
School’s then Michaelian Municipal
Law Research Center, I really enjoyed
researching some cutting edge local
government issues for a number of
municipalities and writing articles for
the Municipal Lawyer and my involvement led me to pursue a career in local government, with the Westchester
County Attorney’s Office for ten years
and then for the City of White Plains.
One of my favorite legal success
stories: as a young lawyer and only
three years out of law school, arguing
and prevailing on behalf the County
of Westchester in a controversial and
landmark case before the NY Court of
Appeals on the right-to-die issue, in
Matter of Westchester County Medical
Center (Mary O’Connor).
If I were not practicing law I would
be: a medical research doctor.
People may be surprised to learn: as
a teenager, I competed in and won the
Miss Columbus title for the City of Yonkers Columbus Day celebration. WCBA
Past President Ralph Nobile served as
master of ceremonies for the pageant
and festivities.
The best thing I did to improve my
skill set as an attorney: volunteering
as a speaker at various CLEs for the
WCBA, NYSBA, Pace Law School and
teaching legal research and writing, local government law and administrative
law.
What I splurge on: clothes, jewelry,
gifts for my nieces and nephews, attending baseball games, and musical
performances.
The best hour of my day is: sunset.
Favorite movies: The Great Gatsby
(with Robert Redford); any Harrison
Ford movie, especially Presumed Innocent and The Fugitive; The Doctor; The
Sixth Sense; Bang the Drum Slowly; The
Way We Were; Body Heat; And Justice
for All.
Favorite television shows: Mad Men,
Breaking Bad, The Walking Dead,
Downton Abbey, Mr. Selfridge, Longmire, Blue Bloods, E.R., and old Twilight
Zone, Perry Mason, Ironside, L.A. Law
and Owen Marshall reruns.
Favorite songs: any album or song by
Vince Gill; the Eagles’ Hotel California
and Tequila Sunrise; Don Henley’s End
of the Innocence and any song on his
recent Cass County album; Billy Joel’s New York State of Mind and any
song on The Stranger album; George
Strait’s Amarillo by Morning; Garth
Brooks’ The Dance; the Rolling Stones’
Miss You; Sade’s Smooth Operator; Trisha Yearwood’s The Song Remembers
When; B.B. King’s The Thrill Is Gone.
Favorite meal: lobster.
Favorite websites or blogs: New York
Law Journal, New York Post, New York
Times, Washington Post, mlb.com and
the New York Mets website and the
Law of the Land blog.
My favorite vacation spots: Miami
and Captiva Island, Florida; the Hamptons; the Jersey Shore; Cooperstown.
Three things I can’t live without: my family, the law, and the NY
Mets.
One of my favorite things to do in Westchester: attending musical performances and plays at the White Plains Performing Arts
Theater.
Best advice I ever got: always respect those who respect you and
remain constant to your purpose.
My advice to new lawyers: strive to practice the type of law you
really have the passion for and enjoy and appreciate the good moments in life.
Last time I was out of my comfort zone: being diagnosed with
Stage IV, inflammatory breast cancer nearly eight years ago and
trying to figure out how to cope with that reality.
One of my future ambitions is to: write a book.
My favorite part of being involved with the WCBA: acquiring
and sharing legal knowledge and experience with true professionals, and the camaraderie and long-lasting friendships with some
of the best attorneys and persons in Westchester County.
Carol always roots for her beloved New York Mets
AB
&
70 ATTORNEYS
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Back
Bench
FROM THE
BY RICHARD M. GARDELLA, ESQ.
Editor-in-Chief
WCBA Past President
D
uring a presidential
campaign season punctuated
by self-centered bombast,
claimed omnipotence and arrogant
promise of success, the honest way a past
president faced dire national challenge
serves to teach by contrast.
He was a leader who was not afraid
to surround himself with political
opponents and men of different views
as advisors, instead of toadies and yes
men. Before coming to his own firm
conclusions, he actually met with his
cabinet, listened to its members and
carefully weighed their differing views,
losing sleep and weight in the process.
Nor did he hesitate to take blame for
error or assume responsibility for failure.
His honest character and the resulting
moral clarity it produced prevented
the self delusion that often flows from
egocentric focus.
One hundred fifty-five years ago
this month, in only the second month
of his presidency, Abraham Lincoln
met the nation’s ultimate challenge—
dissolution. The crisis, which was
escalating since his election with the
secession of seven southern states, came
to a head in the hours before Lincoln’s
first State Dinner in the White House.
As a result, the dinner was not a “very
gay” affair1 with an agitated president
later taking his cabinet members aside to
ask them to meet the next day at noon
to discuss the grim military assessment
of the Union’s ability to defend Fort
Sumter off Charleston, South Carolina,
and Fort Pickens in the Florida gulf area.
The government’s military commander,
Lieutenant General Winfield Scott, who
previously proposed abandoning the
forts to placate the South and prevent
not yet committed southern and border
states from joining the secessionists,
estimated it would take a force of 20,000
to successfully defend Sumter alone,
four thousand more troops than the
government’s present total army. Both
forts would have to be abandoned, the
general said.
After a night of little or no
sleep, the new president listened to
his cabinet members at the March
29, 1861 meeting. Secretary of State
Seward, who at this early stage saw
himself as the real leader, instead of
the new inexperienced and vacillating
president, recommended abandonment
of Sumter. However, Pickens should
be supplied and defended, he said.
Previously, Seward called for evacuation
of both forts, relying, instead, on a
hare-brained scheme to reunite the
country by aggressively seeking foreign
entanglement. The secretary of state
was soon to learn and appreciate that
Lincoln was the real leader, not him.
The rest of the cabinet came around
to a position favoring the nonmilitary
provisioning of Fort Sumter as a way
of asserting Federal authority without
firing a shot, a position the president had
apparently already reached. On April 6,
1861, Lincoln notified South Carolina
officials that a relief mission carrying
food and other nonmilitary supplies
would be sent to the Federal fort manned
by 60 soldiers under Major Robert
Anderson. No reinforcement troops or
ammunition would be included in the
Richard M. Gardella, Esq., is counsel
to Bertine, Hufnagel, Headley, Zeltner,
Drummond & Dohn LLP. He is a past
president of the Westchester County Bar
Association and the Westchester County Bar Foundation, the editor-in-chief of
this Magazine, and a former WCBA delegate to the American Bar Association
and the New York State Bar Association.
relief mission to Sumter.
The burgeoning Confederacy did
not await the relief ’s arrival. At 3:30 am,
on April 12, 1861, under the command
of General Pierre Beauregard, Southern
forces began a bombardment starting
the Civil War. While the Union troops
returned fire, they were overwhelmed,
surrendering 34 hours after the shelling’s
start. The only Union fatality occurred
as a result of an accidental powder
explosion during a 50-gun salute to the
flag before surrender. The Federal troops
were allowed to leave the fort with their
weapons aboard the relief ships which
arrived after the bombardment.
A Navy warship which could have
provided greater defense to the Sumter
garrison was misdirected to Fort Pickens
under presidential order. Lincoln took
the blame for the misdirection, pointing
to carelessness on his part. Surprised,
Secretary of the Navy Gideon Welles
would later say that the new president
“often declared that he, and not his
cabinet, was at fault for errors imputed
to them.”2
Just hours after the Sumter
surrender, Lincoln, on April 15, 1861,
exercised his war powers and issued a
Presidential Proclamation calling up
a 75,000 member militia from the
northern states to “suppress” the seven
state combination against the Federal
government. He also called Congress
into session on the Fourth of July to
back his war actions. On April 19,
1861, the president issued another
proclamation instituting a port blockade
against the seceding states.
In his July special message to
Congress, the president said:
“… It is thus seen that the assault
upon, and reduction of, Fort Sumter,
was, in no sense, a matter of self defense
on the part of the assailants. They well
knew the garrison in the Fort could, by
no possibility, commit aggression upon
them. They knew—they were expressly
notified—that the giving of bread to
a few brave and hungry men of the
garrison, was all which would on that
occasion be attempted…”
The Federal Union merely wanted
to maintain “visible possession” of the
fort to give time for possible settlement
through discussion and the ballot box,
he wrote. Instead, the secessionists
attacked “… for precisely the reverse
object—to drive out the visible authority
of the Federal Union, and thus force it
to immediate dissolution.”3
Congress quickly gave the president
what he wanted and more. They
authorized more than 400,000 troops
and more than the 400 million dollars
he requested. Congress also ratified all
of his executive war actions remaining
silent only on the suspension of the writ
of habeas corpus.
Some historians claim the president
cleverly lured the South into firing
the first shot and assuming the role
of aggressor. However, Lincoln had
made it clear in his inaugural address
that the federal government would be
maintained in the face of secession.
For their part, the seceding states were
determined to break away.
In his inaugural address, Lincoln
explained his view of our government
with these words:
“…Plainly, the central idea of
secession, is the essence of anarchy.
A majority, held in restraint by
constitutional checks, and limitation,
and always changing easily, with
deliberate change of popular opinions
and sentiments, is the only sovereign
of a free people. Whoever rejects it,
“... Some historians claim
the president cleverly lured
the South into firing the
first shot and assuming the
role of aggressor. However,
Lincoln had made it clear in
his inaugural address that
the federal government
would be maintained in the
face of secession...”
does, of necessity, fly to anarchy or to
despotism. Unanimity is impossible,
the rule of the minority, as a permanent
arrangement is wholly inadmissible; so
that rejecting the majority principle,
anarchy, or despotism in some form, is
all that is left…”
Lincoln’s original militia call up
provided for a three month tour.
Somehow both sides believed the
conflict would be short and decisive. The
South relied on its “heroic spirit” while
the North could point to a population
more than twice the South’s.
How wrong they were. Four brutal
years followed the firing on Sumter with
more recent estimates putting the death
toll as high as 750,000.
Just four years to the day from his
militia proclamation and a few days after
Northern victory, Lincoln became the
war’s last major casualty—dying from
an assassin’s bullet on April 15, 1865.4
Those final four years of his life
contained periods of sustained torture
for the backwoods jokester who grew
into one of this nation’s greatest leaders
and a heroic world figure. A glimpse
of the pressured pain of his decision
making followed the March 1861
cabinet meeting and his coming to a
decision that meant civil war. According
to his wife, Mary, he “keeled over” in the
White House, and a short time later was
temporarily immobilized by a migraine.5
Lincoln, in his July 1861 message
to Congress revealed that a compelling
sense of duty was at the core of his
presidential motivation, saying “…he
had no moral right to shrink, nor even
to count the chances of his own life, in
what might follow…”
Before the final price he paid, his
leadership effort took its toll. Looking
haggard, he had grown old in the top
job. The man who entered the White
House at a muscular 185 pounds in
1861, weighed just 155 pounds at his
death.
Lincoln was not trying to please
party supporters or his voter base
in making hard decisions. Nor was
he trying to ensure his legacy. His
excruciating presidential effort was not
about him. It was about his country—its
survival and its future.
Endnotes
1 See The President’s House, A History,
Volume I, by William Seale, published
in 1986 by the White House Historical
Association, at. p. 368.
2 See Team of Rivals by Doris Kearns Goodwin, published by Simon & Schuster in
2015, at p. 245.
3 These quotes from Lincoln’s special July 4,
1861, message to Congress as well as later
quotes from the message and from his
First Inaugural Address were taken from
Volume II of Abraham Lincoln’s Speeches
and Writing, published in a Special Gryphon Editions issue under arrangement
with the Library of America.
4 See the From the Back Bench columns in
the June 2008 and May 2009 Newsletter
predecessor to this Magazine.
5 See Lincoln by David Herbert Donald,
published in 1995 by Simon & Schuster,
at p. 289.
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