January 2013 - Bar Association of Erie County

Transcription

PRSRT STD
U.S. Postage
Paid
Buffalo, NY
Permit No. 416
BULLETIN
Vol. 52 | No. 5 | January 2013
BAR ASSOCIATION OF ERIE COUNTY
w w w. e r i e b a r. o r g
Appellate Practice Committee Creates Moot Court Panel
President’s Letter
The BAEC’s Appellate
Practice Committee chaired
by Timothy P. Murphy
recently created a Moot Court
Panel (MCP), through which
well-qualified attorneys will
serve on three-member ad
hoc panels to hear practice
oral arguments for upcoming
appeals.
The procedure is intended
for any attorney who has an
Murphy
appellate oral argument
scheduled and is open to both
new and experienced attorneys. The panel will hear
state, federal, criminal and civil cases. The practice
arguments may be conducted either in private at the
Bar Association or a law office, or in public at the
Ceremonial Courtroom in Supreme Court.
“Justice Feroleto has kindly permitted the committee
to utilize the courtroom for this purpose, subject to
availability,” Murphy said.
Prepare for the Worst,
Hope for the Best
be posed of the arguing attorney, just as they would in
court, and feedback provided afterwards. Arguments
may be conducted in confidence if the arguing attorney
so chooses. Committee members are also exploring the
possibility of whether those participating in the process
might obtain CLE credits.
The MCP is one of the few, if not the only, program
of its kind in the country, according to President
Kathleen M. Sweet.
“It further proves that our Bar Association and its
members are willing to help each other in extraordinary and meaningful ways,” Sweet said. “The value of
trying out your arguments on experienced appellate
advocates before you head to the Appellate Division or
beyond cannot be overstated.”
The growing roster of MCP attorneys now includes
Elizabeth G. Adymy, Joseph A. Agro, Keith N. Bond,
Paul J. Cambria, Jr., Ann M. Campbell, John A. Collins,
Barry N. Covert, Joel L. Daniels, Barbara J. Davies,
Michael S. Deal, Vincent E. Doyle III, John V. Elmore,
Carmen J. Gentile, Sharon Stern Gerstman, Timothy J.
Graber, James W. Grable, Jr., Herbert L. Greenman,
The attorneys on each panel will become familiar
with the briefs and the case beforehand. Questions will
continued on page 4
By Kathleen M. Sweet
:RUGVRI
What a disaster.
And what a coincidence.
After many attempts at scheduling our first
get-together, the Bar Association of Erie
County’s Disaster Planning Task Force agreed
that our first meeting would take place on
October 31st.
That same day, New Jersey, New York and
Connecticut were overwhelmed by the second
“hundred-year storm” the mid Atlantic states
had endured in two years.
Since then, the bar associations in the hardest hit communities have been inundated with
requests for assistance, from attorneys whose
offices were ruined and from members of the
community in need of legal advice about how
to initiate insurance
claims and how to
It wasn’t raining access benefits when Noah built short term and otherwise - from FEMA
the ark.
or the Red Cross.
► Please join us to welcome and honor:
The New York
State Bar Association responded swiftly,
demonstrating again, that contrary to some
public opinion, lawyers are agents of good.
Our new Task Force is committed to helping
you plan for the worst. The goal is to have at
least preliminary templates, forms and checklists for your use so that you can tailor them to
meet the needs of your own firm, business,
staff and clientele. While business continuity
continued on page 4
The board and staff of your
Bar Association extend our
warmest wishes for A
New Year filled with promise and possibility.
PAGE 2
www.eriebar.org | January 2013
Vol. 52 | No. 5 | January 2013
BAR ASSOCIATION OF ERIE COUNTY
Organized 1887
438 Main Street, Sixth Floor | Buffalo, New York 14202
(716)852-8687 | fax (716)852-7641 | www.eriebar.org
Bulletin correspondence: [email protected]
EDITORIAL BOARD
Editor ............................................Bonnie D. O’Brian
Law Editor ....................................Jeffrey A. Spencer
Tax Notes Editor ..........................Gary D. Borek
Art Editor ......................................Giles P. Manias
Hon. David J. Mahoney
(1960-2008)
Photography ................................Susan L. Kohlbacher
Glenn Edward Murray
Editorial Assistant ........................Brittany O. Luongo
OFFICERS AND DIRECTORS | 2012-2013
President ......................................Kathleen M. Sweet
Vice President ..............................Michael J. Ryan
Treasurer........................................Donna L. Burden
Deputy Treasurer ..........................Bruce W. Hoover
Executive Director........................Katherine Strong Bifaro
BOARD OF DIRECTORS
Howard B. Frank, Brenda M. Freedman, Hope R. Jay, Laura A. Monte,
Regina A. Del Vecchio, Frank LoTempio III, Daniel T. Lukasik, Brian M.
Melber, Edward J. Markarian, Marianne Mariano, Daniel J. Marren and
William F. Savino.
LIFE MEMBERS
Mark A. Adrian, Carol J. Alaimo, Brian D. Baird, Patrick J. Bannister, Lynn
A. Clarke, William J. Cunningham, Eric P. Doherty, Victor J. Gagliardi,
Sharon Stern Gerstman, Jean E. Gittler, Donald J. Holzman, Stanley
Kwieciak III, Michael P. McClain, J. Eldon Owens, Lauren D. Rachlin, Jeffrey
A. Spencer, James M. Wadsworth.
Would you like to see your name here? See page 4 to find
out how to become a contributing member.
“For heaven sakes, Haskins, save the estate files – leave the pro bono.”
CONTRIBUTING MEMBERS
Joan Casilio Adams, Peter S. Aiello, Donald A. Alessi, Grace Marie Ange,
Richard J. Attea, Hon. Rosalie M. Stoll Bailey, Hon. Tracey A. Bannister,
Stephen E. Barnes, Edwin T. Bean, Jr., Thomas R. Beecher, Jr., Ronald P.
Bennett, Leonard Berkowitz, David W. Beyer, Richard S. Binko, Richard N.
Blewett, Harold J. Brand, Jr., Peter J. Brevorka, Phillip Brothman, Patrick J.
Brown, T. Alan Brown, Joel Brownstein, David Buch, Donna L. Burden,
James P. Burgio, Michael C. Burwick.
John F. Canale, John J. Carney, Alan S. Carrel, Thomas R. Cassano, Stephen
E. Cavanaugh, Ferdinand J. Ciccarelli, Emilio Colaiacovo, John F. Collins,
William B. Collins, Anthony J. Colucci, Jr., Robert B. Conklin, Robert N.
Convissar, Edward C. Cosgrove, Peter L. Costa, Donyelle E. Crapsi, Paul V.
Crapsi, Jr., Douglas S. Cream, Hon. John T. Curtin, Steven P. Curvin, Roger
T. Davison, Regina A. Del Vecchio, John M. Dempsey, Richard F.
DiGiacomo, Anne C. DiMatteo, Dean M. Drew, Hon. Timothy J. Drury,
Marvin T. Dubin, Robert E. Dwyer, Donald B. Eppers, Leo J. Fallon, Victor N.
Farley, Mark G. Farrell, Gabriel J. Ferber, Michael E. Ferdman, Robert P.
Fine, Peter J. Fiorella, Jr., Brian P. Fitzgerald, Richard E. Forrestel, Lawrence
C. Franco, Brenda M. Freedman, Jeffrey M. Freedman, Maryann
Saccomando Freedman, Robert Friedman, John J. Fromen.
Thomas J. Gaffney, William H. Gardner, Lynn D. Gates, Eugene M.
Gaughan, Stuart A. Gellman, Robert M. Goldstein, Wayne R. Gradl, Hon.
Samuel L. Green, John C. Grennell, Richard F. Griffin, John J. Gruber, Mark
W. Hamberger, Thomas J. Hanifin, James P. Harrington, Mary Louise
Hayden, Herbert J. Heimerl, Jr., William R. Hites, Susan S. Hogan, Edwin P.
Hunter, Melvyn L. Hurwitz, Norman E. Joslin, James B. Kane, Jr., Judith D.
Katzenelson, Christopher C. Kerr, James J. Kirisits, William J. Kita, Christian
G. Koelbl III, Dan D. Kohane, Karl W. Kristoff, Thomas E. Krug.
Stephen R. Lamantia, John P. Lane, Richard J. Lehner, John N. Lipsitz,
Richard Lipsitz, Arthur A. Lorenzo, Frank LoTempio, III, Leo M. Lynett, Jr.
James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Giles P.
Manias, John Markarian, Mary Dee Martoche, Hon. Salvatore R.
Martoche, Norman J. Mattar, Hon. Jeremiah J. McCarthy, Maureen A.
McCready, Thomas I. McElvein, Jr., Donald G. McGrath, Diane J.
McMahon, Brian M. Melber, Hon. John A. Michalek, Raymond T. Miles III,
Joseph D. Mintz, Albert J. Mogavero, Peter J. Murrett, Jr., Joseph M. Nasca,
Paul T. Nesper, Paula M. Eade Newcomb, Anthony M. Nosek, Hon. Henry
Jos. Nowak, James J. O’Brien, Robert L. O’Connell, Hon. John F. O’Donnell,
Timothy M. O’Mara, Francis J. Offermann, Jr.
Carl P. Paladino, Frank R. Papa, Thomas C. Pares, James A. Partacz, Robert
E. Pearman, Hon. Erin M. Peradotto, Robert H. Perk, Jeffrey A. Perla,
Michael F. Perley, Nicholas A. Pierino, Joel M. Poch, Theodore J. Pyrak,
James P. Renda, Mary (Molly) K. Roach, Jay N. Rosenthal, Hon. Mario J.
Rossetti, Victor A. Rossetti, Richard P. Rosso, Arthur J. Rumizen, Arthur A.
Russ, Jr., Thomas Santa Lucia, Scott M. Schwartz, Edward J. Schwendler,
Jr., Richard B. Scott, Donald P. Sheldon, Richard J. Sherwood, Louis H.
Siegel, Myron M. Siegel, Robert G. Sillars, Richard Charles Slisz, Robert B.
Sommerstein, Gregory Stamm, Robert S. Stephenson, Milton J. Strebel,
David L. Sweet, Kathleen M. Sweet.
Dominic J. Terranova, Phillip A. Thielman, Gordon D. Tresch, Thomas V. Troy,
Frederick D. Turner, Dimitri J. Tzetzo, Peter A. Vinolus, Dale M. Volker,
Matthew X. Wagner, Jr., John B. Walsh, Neil Weinberg, Peter C. Wiltse,
Wayne D. Wisbaum, Richard D. Yellen.
Letter to the Editor
Dear Editor:
not rights, and it must exercise those duties within the
confines of our constitutional system.
Although I appreciate District Attorney Frank
Sedita’s response which appeared in the December
2012 edition of the BAEC Bulletin, I maintain he has
fallen victim to his own hubris in this matter.
Judges and juries, particularly in a criminal case, are
the living guardians of those same protections, even
though both are human, and suffer from the same
imperfections as the rest of us. Yet, of all of the distinguished attorneys who signed their names to the
Willstatter response, I cannot imagine that any of them
would ever hold that the government has any “right”
to a jury trial. That is reserved for the defendant alone,
and rightly so.
Far from merely holding the jury system in contempt
by stating “I can point to at least four trials this year
alone in Erie County that resulted in an acquittal
despite overwhelming evidence of the defendant’s
guilt,” Mr. Sedita walked into the proverbial punch by
adding that “indeed, three of the four acquittals that I
characterized as wrongful were the result of non-jury
trials” thus including the entire bench in his professional ire as well.
Mr. Sedita is free to believe that every defendant
charged is either “guilty” or “guilty as hell.” Indeed, his
position as District Attorney may require a certain
amount of faith in that premise. But when a judge or
jury declines to convict, even in the face of “overwhelming evidence” of guilt, Mr. Sedita should limit his
public response to respectful disagreement, not a condemnation of those individual rights which so many
have fought and died for to protect.
Lastly, he advances the idea that the government
and the defendant are somehow equal parties in a
criminal case, and BOTH should have to waive a jury
trial before a bench trial could be conducted.
Our pesky federal and state Constitutions protect the
rights of the citizens, not the functions of government.
Where we have individual rights and liberties that may
not be taken away easily, the government has duties,
~ Wesley M. Brown
Blasdell
Letters to the editor and short articles of general interest to our readers are always
welcome. All materials submitted for publication in the Bulletin are subject to editing
for reasons of style, space and content.
Send all submissions as Word documents to [email protected] (preferred) or
by mail to: Bulletin Editor, 438 Main Street, Sixth Floor, Buffalo, NY 14202.
DEADLINE
•
•
•
March 2013 Bulletin D E A D L I N E
•
•
•
The next deadline for ALL Bulletin contributors and advertisers is
Friday, February 1, 2013.
Call Brittany Luongo at Bar Headquarters for more information, 852-8687.
PAGE 3
January 2013 | www.eriebar.org
Howe Named Woman
Lawyer of the Year
bench and bar in the news
How to place an announcement:
If you are a BAEC member in good standing
and you’ve moved, been promoted, hired an
associate, taken on a partner, or received an
award, we’d like to hear from you. Talks,
speeches (unless they are of national stature),
CLE presentations and political announcements are not accepted. In addition, we will
not print notices of honors determined by
other publications (e.g., Super Lawyers, Best
Lawyers, etc.). Notices must be submitted in
writing and limited to 100 words. They are
printed at no cost to members and are subject
to editing. E-mail your notice and high resolution photo (300 dpi) to [email protected]
Audrey A. Seeley, a member of
Hurwitz & Fine, P.C., was appointed
vice chair of the Defense Research
Institute’s (DRI) Insurance Law
Committee at the group’s recent
annual meeting in New Orleans. She
formerly served as marketing chair
Seeley
for the Insurance Law Committee
and also on its steering committee.
Seeley focuses her practice on insurance and no-fault
coverage, arbitration, and litigation.
Carlton K. Brownell, III has
joined Sugarman Law Firm, LLP, as
a partner in the firm’s Buffalo office.
A graduate of St. Lawrence
University, he has 22 years of civil litigation experience. Brownell received
his law degree from the State
University of New York at Buffalo.
Brownell
Primerano
Magavern Magavern Grimm LLP
has named Lisa D. Primerano special counsel and Darice L. Hickey
an associate. Primerano focuses her
practice on intellectual property, corporate law and commercial transactions. She is a graduate of Skidmore
College and SUNY at Buffalo Law
School. Primerano currently serves as
The Women Lawyers of Western
New York recently named Hon.
Barbara Howe its Woman Lawyer of
the Year. Judge Howe received the
award at the group’s Woman Lawyer
of the Year luncheon at the Hyatt
Regency.
a director of the Women’s Bar
Association of the State of New York.
Hickey concentrates her practice in
estate planning, estate and trust
administration and tax planning. A
graduate of the University of Virginia,
she holds a law degree from SUNY at
Hickey
Buffalo Law School, cum laude, and
a master’s of law in taxation from New York University
School of Law.
James W. Smyton, a partner
with Phillips Lytle LLP, has been
elected secretary of the National
Federation for Just Communities
(NFJC), a group that works to bring
diversity, inclusion and social justice
to communities, schools, workplaces
Smyton
and institutions. He is the national
board representative for western
New York. A federal court mediator, Smyton focuses his
practice in all aspects of corporate counseling. He holds
a JD, with distinction, from Kent College of Law.
Smyton also recently received an award for his work as
a volunteer for Legal Services for the Elderly, Disabled
or Disadvantaged (LSED) of Western New York, Inc.
Judge Howe
Judge Howe was elected Erie
County Surrogate in 2004. She began her judicial
career in 1988, when she became an associate judge of
Buffalo City Court. Howe was subsequently elected to
NYS Supreme Court for the Eighth Judicial District,
where she served from 1992 through 2003.
A graduate of the University of Connecticut, Judge
Howe holds an MA and Ph.D. from Cornell University,
both in Sociology. She then earned her JD from the
State University of New York at Buffalo School of Law.
Judge Howe was a member of the SUNY faculty
and became a tenured professor. She has served as an
adjunct clinical professor of law since 2000 and an
adjunct associate professor of sociology since 1988.
She previously worked for Legal Aid and as a law
clerk for Judge Edgar NeMoyer of the New York
Court of Claims.
[B]
Allison E. Ogorek has been
named an associate at HoganWillig,
which maintains offices in Erie and
Niagara Counties. She is a graduate
of SUNY at Buffalo Law School,
where she was a Note & Comment
Editor of the Buffalo Law Review. A
Ogorek
cum laude graduate of the University
of Rochester, Ogorek will practice in
the firm’s civil litigation and corporate & business law
departments.
Thomas F. Knab, partner-incharge of the Buffalo office of
Underberg & Kessler LLP, has joined
the board of Preservation Buffalo
Niagara, a group dedicated to historic preservation in the Buffalo
Niagara region. A business and litigation attorney, Knab has practiced
Knab
in NYS and federal courts for more
than 20 years. He was also recently elected vice president of the board at Neighborhood Legal Services, Inc.,
which provides free civil legal services to low-income
and disabled people in western New York.
[B]
Lawyers Helping
Lawyers…
A confidential channel of
communication for members
of the bench and bar struggling
with substance abuse.
The New Year is
the perfect time
for a fresh start.
The need may be based on
Call 852-1777
to learn more.
medical problems, job loss,
emotional difficulties, family crises
or many other situations.
No person or problem is
categorically excluded.
If you need assistance – or know
a friend or colleague
who does – please call Kelly Bainbridge
at 628-4892.
All services are individualized
and completely confidential.
It’s great to belong to something this good.
PAGE 4
President’s Letter
continued from page 1
strategies are necessarily a part of the discussion, the
Task Force will address only the sudden unexpected
interruption of your practice. Long-term strategic
planning for the necessary transition of the ownership,
clients and capital of your business, while obviously
well worth your time and attention, is beyond the
scope of this Task Force’s mission.
I commend to you Laura Calloway’s piece in this
edition of the Bulletin (see page 5); it is the first in an
important, thought-provoking and hopefully helpful
series. Laura wrote about many of these issues after
Hurricane Katrina and, at our request, she has graciously adapted and updated her articles to address the
pain and damage that remains in the wake of Sandy.
We can plan and we should, because even though the
type and timing of a disaster can be unpredictable, our
reaction need not be.
And just like that, I am halfway through my year as
president! Thanks for the privilege of representing you
and for the encouragement you give me every day. The
days are busy but the months are flying by and I am
truly enjoying it. Please say yes if you are contacted by
the nominating committee about running for a leadership position. I promise you won’t regret it!
[B]
Appellate Practice Moot
Court Panel
**************
For those of you watching the Bulletin for updates on
the Bar Association’s hockey game against the Sabres’
alumni, stay tuned. It may be as close as we get to
hockey entertainment this year but we have been
unable to get a date commitment yet due to the NHL
labor dispute.
Also, please forward your nominations for our Law
Day and annual dinner awards. The forms are available at Bar headquarters and online at
www.eriebar.org. (See page 12 of this issue for details
about the annual dinner awards.)
Lastly, congratulations to two of our star members,
David Addelman and Sheldon Smith, who were
recognized by the federal judiciary with service awards
at the recent Bench & Bar dinner in Rochester (both
were pictured on page 3 of our December issue). Chief
Judge William Skretny presided over the sold-out event
that was jointly hosted by the Bar Association of Erie
County and the Monroe County Bar Association.
Richard A. Grimm, III, James P. Harrington, Timothy
W. Hoover, Daniel M. Killelea, Dan D. Kohane, Stephan
P. Lamantia, Joseph M. LaTona, Marianne Mariano,
Edward J. Markarian, Joseph A. Matteliano, Brian M.
Melber, Cheryl Meyers-Buth, Susan C. Ministero,
Timothy P. Murphy, Angelo Musitano, Debra A.
Norton, John R. Nuchereno, Gregory V. Pajak, Rodney
O. Personius, John K. Rottaris, David C. Schopp, Kevin
Patrick Shelby, Lawrence J. Vilardo, Ruthanne
Wannop, Kristin Klein Wheaton, and Michael J. Willett.
This unique new program will be of help “whether
you’ve never argued an appellate case before, you just
feel rusty, or perhaps you are an experienced attorney
who has a difficult issue to argue,” Murphy said.
Those interested in having their cases heard before
the MCP are asked to notify the Appellate Practice
Committee at one of the following e-mail addresses [email protected], [email protected] or
[email protected] - at least three weeks before
the attorney would like to have his or her case heard. A
convenient place and time for everyone involved can
then be identified. Members of the MCP are welcome
to use the process as well.
[B]
Paralegals Available for
Law Firm Internships
By Paul V. Crapsi
Here is an exciting opportunity for
those of you interested in working
with and mentoring paralegal students! You can now easily secure student interns through the Bryant and
Stratton Paralegal Program. This
opportunity is open to all members,
whether you are a solo practitioner, in a firm, or with a
government or non-profit agency.
The program currently has numerous students
who are looking for internship placement. These students are about to complete their paralegal studies
degree, and are seeking to apply their classroom
knowledge to real life work environments. Under the
guidance of a knowledgeable attorney, these students
have the ability to perform a wide range of legal duties
and are looking to hone their skills and observe real
lawyers in the practice of law. If you or someone in
your office are interested in working with a paralegal
student for an internship, please contact me at
[email protected].
[B]
Supreme Court
Admissions
The Bar Association of Erie County schedules annual
“in person” admissions to the United States Supreme
Court Bar. The next excursion to Washington, D.C. is
scheduled for Monday, April 22, 2013.
Interested applicants must be admitted to practice
for three years, free from any adverse disciplinary
action, and sponsored by two members of the U.S.
Supreme Court Bar. A $200 fee is also required. Dennis
J. Bischof coordinates the Admissions Program for the
Bar Association. Contact him at 630-6500 if you wish
to participate in 2013.
[B]
PAGE 5
Preparing For the Unexpected: Part I
Anticipate and Plan for Law Office Disasters
By Laura A. Calloway, Director, Service
Programs and Practice Management
Assistance Program Alabama State Bar
Editor’s Note: President Kathleen
M. Sweet recently appointed a task
force to develop a model disaster preparedness plan for our legal community. William F. Savino has been
named chair of the group. The following is Part I of a
two-part article that the task force requested from the
Alabama State Bar. It is reprinted here with permission.
The nightly news seems to be continuously filled with
stories of disaster. No lawyer now living will ever forget
the events of September 11, 2001, and their effects on
our colleagues who practiced from the twin towers of
the World Trade Center. And survivors of the Richmond
Hill subdivision explosion in Indianapolis are still
awaiting a definitive answer as to what sparked the
blast that leveled two houses - killing two people - and
rendered at least two dozen more uninhabitable.
Nor has Mother Nature always been kind. In just the
last 20 years, regional flooding has wiped out or caused
the relocation of entire towns along the Mississippi and
the Red rivers. Heat wave-induced drought conditions,
and the parched earth that they bring, have caused
broken water mains in Texas and other western states,
also resulting in flooding. Hurricanes Katrina and Rita
reminded us that - even in the 21st century - nature is
still capable of rendering an entire city uninhabitable in
the blink of an eye. Tornadoes of unprecedented size
and force have cut a swath through heavily inhabited
areas of Alabama, Missouri and several other states,
leaving a trail of incomprehensible destruction in their
wake. And all this was before Hurricane Sandy, rated
as a mere Category 1 storm when its center made landfall near Atlantic City, New Jersey, proved that even a
“low intensity” storm can span 1,100 miles, affect 24
states, bring flooding to unexpected areas, kill over 100
people, and disrupt lives and businesses for weeks or
months after it passes.
These events tell us that we lawyers are not immune
to the forces of nature or the whims of the demented.
Likewise, as our communities continue to grow and
age, we are subject to the increased likelihood of infrastructure failure. Advance planning cannot entirely
prevent the unexpected, or the unimaginable, but it
can give you and your firm an edge in overcoming the
long-term effects of what could otherwise be a catastrophe from which your practice will not recover.
Any disaster preparedness plan should have two
goals. First, it should be designed to protect the people
in your office, both staff and clients, and your vital
business records. Second, it should also protect your
clients and your future livelihood by providing a
framework within which to replicate your office and
have you up and running, in a new location if necessary, as quickly as possible.
In order to devise a successful disaster recovery plan,
you need to first think about what sort of potential disaster situations you will be most likely to face, and then
assess whether there is anything about the way in
which you currently operate that could make a potential disaster worse. As with any program to be carried
out in a group situation, if your disaster recovery plan
is to be successful, one person needs to be assigned
overall responsibility for its development and implementation. That person then needs to be given the
authority, time and resources necessary to accomplish
the task.
I. Analyze Your Potential Risk
The following is a list of potential problems to anticipate and plan for. Carefully evaluate this list in light of
what you know about your physical setting, your
equipment, your clients, your community and the surrounding environs.
Natural Disasters – Do you practice in an area that
is subject to hurricanes, tornados, floods, drought,
lightening strikes, forest fires or wildfires, landslides, or
earthquakes?
Technology-Related Disasters – Are you subject
to fire; power failure; water line, gas line, or sewer
break; train derailment; pipeline explosion; industrial
explosion; hazardous materials accident; and/or hard
drive crashes?
Antisocial Activities – Can you imagine a situation
involving arson, a bomb or bomb threat, theft or vandalism, a violent intruder (former client, opposing
attorney/party or terminated employee), computer
hacker or civil disturbance?
Health-Related Disasters – Could your community ever be subject to pollution-related problems or
epidemics?
Personal Problems (yourself and your employees)
– There is always the possibility of unexpected accident, long-term illness or disability, suspension or disbarment, or death.
II. Analyze Your Present Situation
Once you have evaluated and ranked your potential
risks, you should conduct an analysis of your physical
facilities and current office procedures to determine if
they will help or hurt you in the event of a disaster. The
following are some things to think about:
• How do your building size, type, and age affect
safety and security considerations?
• How do the number and use of doors and windows affect security considerations?
• Is free access during business hours really necessary, or could restricted access work?
• Would posting a security guard be appropriate or
useful during certain times?
• Are your electrical, computer, and phone systems
exposed to sabotage?
• Is your computer system exposed to hackers
(either physically or through connection to the
Internet)?
• Do you duplicate important materials and back
up all computer programs?
• Do you have off-site backup?
• Is your off-site backup storage location subject to
the same potential disasters as your office?
• Do you periodically restore from your backup
medium to make sure your backup system is
working properly?
continued on page 6
PAGE 6
Preparing For the Unexpected: Part I
Plan for Law Office Disasters
continuted from page 5
• Will your file storage/retention policies cause
additional problems in a disaster?
When it comes to building security, an important
part of any security system is its deterrent value. If
security measures are sufficiently visible, many potential intruders will simply go elsewhere.
III. Plan for Personal Safety
There are many steps that can be taken to ensure the
safety of your personnel and your clients, and they will
differ depending on your physical setting and the type
of potential disasters you face. If you practice in a small
freestanding building, develop appropriate emergency
escape routes and procedures, and appropriate places
to take shelter if the office must be abandoned during
the work day. Make sure all exits are unblocked and
accessible. For those who practice in large buildings,
make time to review your building’s emergency procedures and coordinate your emergency plans with those
of adjoining tenants.
Post vital safety information where everyone can find
it, including fire exit locations, fire extinguisher locations and how to use them, escape routes and emergency phone numbers, first aid kit locations, and basic
first aid procedures.
Take time and make the effort to educate your personnel. In particular, send your safety coordinator to
appropriate classes or seminars. Prepare a safety section within your office manual and make sure your
employees are familiar with it. Train personnel regularly and issue periodic memos about emergency procedures. Conduct unannounced fire drills and other
safety preparation drills, and critique the results.
Establish a method for keeping up with visitors within
your office space, and train one person to be responsible for escorting clients out of the building during an
emergency.
You should also develop a written intra-office emergency communication plan. Here are the basic elements any plan should have:
• Collect and store all employees’ home and cell
phone numbers, along with at least one other
emergency contact number, in a secure off-site
location. This could include numbers for parents,
adult children, close friends, etc., in the event that
phone service is severely disrupted.
• Revise this list on a regular schedule in addition to
relying on memory to make changes as they
occur.
• If your office staff is large, develop a phone tree to
facilitate spreading information within the firm in
the event of a disaster.
• Obtain and publish an alternative phone number
or a series of numbers employees can call for
instructions in case of destruction of the office or
office phone system.
• Develop a plan for letting your clients know what
has happened to your office and what you are
doing to establish a new office.
Every office should have a minimum store of emergency supplies, which should be inspected and
replaced on a regular schedule. Some things to include
are:
• First aid kit
• Flashlights
• Battery-operated or wind-up radio or mini-TV
• Emergency food and water
• Petty cash in case banks and ATMs are not operational; and
• Fresh spare batteries for all your battery-operated items.
In addition to preparation for natural or man-made
disasters, every lawyer should make plans for his or her
own unforeseen disability or demise. Planning steps
include:
• Arranging in advance for one or more lawyers to
cover your practice and drafting an agreement to
cover the process;
• Getting advance authority from clients (in your
fee agreement or an addendum to it) to allow for
associate counsel in case of emergency;
• Getting your files organized and up to date,
including preparing a “to do” list of uncompleted
tasks and placing it in each file; and
• Preparing a letter of instruction for your spouse,
your partner, your staff, and any attorneys who
will be covering or, in the event of the worst, taking over and closing out your practice.
Part II will appear in the February issue.
©2012 Laura A. Calloway and Alabama State Bar
PAGE 7
western district case notes
By Paul K. Stecker and Kevin M. Hogan
ATTORNEYS’ FEES
CIVIL RIGHTS
In Mendez v. Radec Corp. (03-CV-6342T, 11/1/12),
the court awarded attorneys’ fees following settlement
of a class action under the Fair Labor Standards Act
(the parties had agreed that the court would determine
whether to award fees and, if so, the amount). The
court first determined that plaintiffs were entitled to
fees because the court’s role in and approval of the settlement provided “the necessary judicial imprimatur”
for plaintiffs to qualify as “prevailing parties.” Finding
the hourly rates requested ($375 for partners, $250 to
$300 for other attorneys and $75 to $130 for other
staff) higher than the rates typically charged in this
district, the court awarded fees based on an average
rate of $200 per hour.
In Mikulec v. Town of Cheektowaga (11-CV-342S,
11/12/12), plaintiff sued a municipality, its police
department and six police officers following his arrest
after an altercation at a nightclub. The court granted
in part and denied in part defendants’ motion for summary judgment. With respect to the two arresting officers, the court found that conflicting versions of the
events created issues of fact on plaintiff’s excessive
force and state law battery claims. Plaintiff’s excessive
force claim against two other officers was dismissed,
however, because plaintiff did not submit evidence that
either officer had an opportunity to intervene.
The court proceeded to reduce the number of hours
for which fees were awarded from 7,011 to 2,100
based on its findings that plaintiffs unreasonably
delayed settlement, billed for excessive or redundant
time and improperly grouped tasks together (“block
billing”). Notably, the fee award totaled $420,000,
even though the case settled for $225,000; the court
observed that proportionality is “only one of many factors that a court should consider in calculating an
award of attorneys’ fees.”
JudiVision Video Available
In 1971, BAEC member Mortimer Sullivan was part
of a production team responsible for creating a video
about the possible contributions of technology to the
justice system. Now retired, Sullivan has donated the
only remaining copy of the video to the Bar Association.
“Judicial Television” Considered
On October 13, 1971, a group of judges, attorneys
and invited guests gathered in Buffalo to attend the
premier showing of a video demonstration depicting
contributions television technology might make to the
judicial system.
Using scenarios participated in by actual judges,
lawyers, a doctor, “witnesses” and law enforcement
personnel, the demonstration presents various situations in which “judicial television” might be employed.
The then-Buffalo Evening News, reporting on one of
the scenarios, noted: “Video tapes would freeze for later
consideration…not only a witness’ words but the allimportant manner in which the testimony was given
that can never be duplicated in a written transcript.”
In 1971, technology available for production of this
demonstration (analog EIAJ-1) had just been developed. Although “state of the art,” it was only capable of
reproducing images in black-and-white. Furthermore,
because recordings were on magnetic tape, which is
prone to physical deterioration, parts of this presentation are of poor quality; however, this does not detract
from the demonstration’s historic significance.
In 1971, the Internet did not exist. The personal
computer and videocassette recorder (VCR) were yet to
make their debuts. Steve Jobs was a high school junior.
The only generally recognized application of television
technology, other than some excellent but grudgingly
subsidized educational programming and its use as a
security tool, was home entertainment. However, thousands of applications stood poised for implementation,
among them, the American judicial system.
In 1971, the judicial system could not consider utilizing television technology because there was no
precedent in law or practice. Some impetus for change
had to emerge from outside the judiciary and be so
overwhelming that the courts and legal profession
would be compelled to acknowledge its potential.
The year 1971 was not so long ago but the perspective presented in JudiVision underscores the rapid technological advances which have occurred in the ensuing
years.
[B]
The court dismissed plaintiff’s claim for denial of
medical treatment because there was no evidence that
plaintiff suffered a serious medical condition for which
medical treatment was required. The court also held
that the officers had probable cause to arrest plaintiff,
which provided a complete defense to plaintiff’s false
arrest claim. Further, plaintiff’s two-hour detention
without being informed of the charges against him was
presumptively constitutional, especially in the absence
of evidence that plaintiff was detained longer than necessary. Finally, the court dismissed plaintiff’s claim
against the municipality because there was no evidence
that town policy or custom contributed to his injuries
or that the town failed adequately to train its officers.
CONTRACTOR LIABILITY
In Saxby v. LPS Field Services, Inc. (11-CV-6505L,
11/5/12), a lender contracted with the defendant, a
company that arranges for property maintenance and
repair, for repairs to a property in foreclosure. The
work was subcontracted three times, the final subcontractor being the plaintiff, who was injured while
repairing a chimney. Plaintiff sued defendant for negligence and for violation of NY Labor Law §§200, 240
and 241(6). The court granted in part and denied in
part defendant’s motion to dismiss, holding among
other things that (i) plaintiff stated a negligence claim
because he plausibly alleged that defendant owed him
a duty of care by virtue of the terms of its agreements
with the lender and the first subcontractor; (ii) plaintiff stated a claim under Labor Law §200 because he
continued on page 10
PAGE 8
Young Lawyers Spend an Evening with the Judiciary
From left are Erin E. Cole, Seth Molisani, John Feroleto, Shannon E. Filbert and guest, and Michelle M.F. Schwach.
Hon. Jeremiah J. McCarthy, at left, with attorneys William J. Simon and Amanda L. Lowe.
Hon. Barbara Howe is joined by Douglas J. Curella, Jr. at left and
Christopher M. McCarthy.
BAEC Vice President Michael J. Ryan and President Kathleen M. Sweet, center,
with Chief District Judge William M. Skretny and Young Lawyers Committee Co-chair
Elizabeth M. Midgley.
Pictured left to right are Hon. Kevin M. Carter, Brandon Portis, Cindy P. Navarro, and Hon. Michael E. Hudson.
Hon. Carl L. Bucki, left, and Chief District Judge William M. Skretny, U.S. District Court, with Young Lawyers Committee Cochair Elizabeth M. Midgley.
PAGE 9
Hon. John M. Curran,
center, is pictured with
Matthew K. Pelkey,
at left, and BAEC
Admission to the Bar
Chair Sean C. McPhee.
Hon. Gerald J. Whalen, center, with Hon. Frederick J. Marshall, right, and Spencer L.
Durland.
BAEC President Kathleen M. Sweet, right, and Hon. Paula
L. Feroleto, Administrative Judge, 8th Judicial District
Hon. Erin M. Peradotto and Hon. John F. O’Donnell
Brian Dolan and Hon. Michael J. Kaplan
PAGE 10
org/, states that “[E]ven if the settlement terms favored
Rosetta Stone (and I wonder about that), I would be
surprised if those results justified three years of litigation costs. Rosetta Stone might have cash to burn, but
most litigants who threaten Google’s cash cow will not.
I continue to believe that trademark lawsuits against
By Anne F. Downey
Google for AdWords [are] categorically a losing proposition for the plaintiff. Irrespective of the specific settlement terms, ending this case is a strategic win for
Google because it takes out the last “major” US trademark owner challenger to AdWords. Combined with the
recent dismissal of the Jurin lawsuit, Google is now
down to two pending US trademark lawsuits over
soning on issues such as functionality, likelihood of conAdWords: CYBERsitter and Home Decor Center.
fusion, and whether and when the Rosetta Stone mark
Despite CYBERsitter’s recent
had become famous.
intermediate “win,” I don’t
While the Fourth Circuit’s decision might
think either of the two remaininspire some trademark owners to bring suit
ing lawsuits are dangerous to
against Google concerning AdWords, such
“Many plaintiffs have
Google. As a result, Google is
inspiration would likely be misplaced. It is
tantalizingly close to successcome and gone, but
instructive to learn what happened next.
fully running the table on all of
On October 31, 2012, the parties
Google is still selling
the US trademark challenges
announced that they had reached a settleto its AdWords practices. When
AdWords that use
ment. Their joint statement said, “Rosetta
this happens, Google will have
Stone Inc. and Google have agreed to dismiss
legitimized the billions of dolbrand names and is
the three-year-old trademark infringement
lars of revenues it makes by
lawsuit between them and to meaningfully
still making a pile
selling trademarked keywords
collaborate to combat online ads for counterin AdWords.”
of money from
feit goods and prevent the misuse and abuse
In summary, the deep pockof trademarks on the Internet.” It is
that
practice.”
et wins. This reminds me of a
unknown whether the settlement required
favorite saying of one of my
Google to make any changes in its practices.
rather quirky law school classWhat is clear is that Google has very deep
mates. Periodically, during
pockets when it comes to AdWord litigation.
classroom discussions, he would slowly raise his hand
Many plaintiffs have come and gone, but Google is still
in the air and utter the following pronouncement:
selling AdWords that use brand names and is still mak“The Golden Rule…he who has the gold rules.” Sad,
ing a pile of money from that practice.
but often true.
[B]
Professor Eric Goldman, in his excellent Technology
& Marketing Law Blog at http://blog.ericgoldman.
cyberlaw: the brave new e-world
A Rosetta Stone by Any Other Name
This month, we will revisit the Rosetta Stone v.
Google case discussed in this column in early 2011. You
may recall that Rosetta Stone, which sells languagelearning products and services, sued Google because
Google allowed counterfeit product makers to purchase
ROSETTA STONE as an AdWord and also use the
ROSETTA STONE trademark in the actual text of an
ad. Rosetta Stone alleged that Google should be held
liable for trademark infringement, contributory
infringement, vicarious infringement, and trademark
dilution. In August 2010, the U.S. District Court for the
Eastern District of Virginia granted summary judgment
in favor of Google, stating that “no reasonable trier of
fact could find that Google’s practice of auctioning
Rosetta Stone’s trademarks as keyword triggers to thirdparty advertisers creates a likelihood of confusion as to
the source and origin of Rosetta Stone’s products.”
The case went up on appeal to the Fourth Circuit,
and many amicus briefs were filed. In April 2012, the
Fourth Circuit issued a decision that largely favored
Rosetta Stone. Rosetta Stone Ltd. v. Google, Inc., 2012
WL 1155143 (4th Cir. April 9, 2012). The Fourth
Circuit affirmed summary judgment on the vicarious
infringement claim but vacated and remanded the case
concerning the direct infringement, contributory
infringement, and dilution claims. In its opinion, the
Fourth Circuit picked apart the District Court’s rea-
Case Notes
adequately alleged that defendant was a contractor
who exercised control or supervision over the work;
(iii) plaintiff stated a claim under Labor Law §240
because defendant’s agreements with the lender and
subcontractor provided sufficient plausibility for the
allegation that defendant was a contractor who had the
power to enforce safety standards; and (iv) plaintiff
stated a claim under Labor Law §241(6) because
plaintiff adequately alleged that he was injured in the
course of “construction work” and his interrogatory
answers could be read as supplying the necessary “concrete specification” of alleged violations of the
Industrial Code.
TAX REFUND
In LPCiminelli Interests, Inc. v. United States (09CV-724-JTC, 11/13/12), the parties agreed to trial on
a stipulated record of plaintiff’s claim for a refund of
tax assessed by the IRS on income arising from the
purported cancellation of indebtedness of a whollyowned subsidiary. The court ruled preliminarily that
because its review of the assessment was de novo, the
factual considerations and legal analysis of the IRS
audit team were irrelevant and would not be considered. The court proceeded to find that the subsidiary’s
stock became worthless in 2003 and that the tax
assessment was therefore foreclosed by the tax code’s
statute of limitations, rejecting the IRS’s argument that
the amount at issue should be included in a later year
under the “anti-avoidance rule” of the consolidated
return regulations.
[B]
Recycle your Bulletin
PAGE 11
✁
lost in (techno) space
Urban Legend Meets Reality: The 411 on X11
It’s a classic urban legend that has some truth to
it. Periodically, I receive an e-mail that reads something
like this:
“It was about 1:00 a.m., and Lauren was driving to
visit a friend. An UNMARKED police car pulled up
behind her and put his lights on. Lauren had always
been told to never pull over for an unmarked car on the
side of the road, but rather to wait until she got to a gas
station or other safe place. Lauren promptly called 112
on her cell phone to tell the police dispatcher that she
would not pull over right away…”
And the tale goes on. Lauren’s life was saved, the bad
guys who tried to pull her over were captured, and they
all lived happily ever after.
The problem, however, is that this e-mail probably
originated in the European Union where 112 is the recognized emergency call number. (More information
about 112 can be found at http://www.112.eu). What
is important to note is that it is NOT a recognized
number in the US or Canada for any service. In fact,
although it’s in use in the EU, and although it MIGHT
(emphasis added) be routed to an appropriate 911
operator or public safety access point (PSAP)
if the call is made from the US or Canada,
112 is the designated emergency number in
the European Union. In fact, if 112 works at
all when dialed in the U.S. or Canada, it
does so only when dialed from a mobile or
wireless device and not from a landline, and
only when the provider has created a path to
route that number to 911.
As such, if you dial 112 looking for emergency assistance, it’s possible that you’ll get
it. It’s also possible that you won’t. Given
the viral nature of e-mails of this sort, I
thought it might be a useful time to offer
some official “heads up” about three-digit
numbers.
According to Mark Fletcher, ENP,
Manager of Public Safety Product
Vision/Strategy for major telecommunications equipment provider Avaya, “all national service numbers are N11 in format and
include numbers from 211 through 911.”
Become a fan of your favorite
Bar Association. “Like” us on Facebook,
follow us on Twitter
and join our group on LinkedIn.
EMERGENCY & RESOURCE NUMBERS
By Martha Buyer
211 is the number that the FCC has reserved for
local community services and, although such services
are offered in only 39 states, New York is one of them.
Generally, 211 is available for individuals looking for
referrals to basic human needs support including physical and mental health resources, work support, support for both older and disabled individuals, youth and
family issues, and emergency suicide prevention. A call
to 211 in our area will provide referral services in
Cattaraugus, Chautauqua, Erie, Genesee, Niagara,
Orleans and Wyoming counties. The home page for
locally available services is http://www.211wny.org/.
311 has been designated by the FCC for non-emergency access to police and other government services.
411 is the number for Directory Assistance. It used
to be the service upon which everyone relied to get a
number. It’s still available for that service but it is no
longer free. Directory assistance is also available from a
variety of other sources, although to reach other
sources, number sequences other than 411 will need to
be dialed.
511 is the New York State Department of
Transportation’s “go to” location for information about
road conditions throughout the state. 511 access is
available 24/7, although it is limited to those locations
from which you can easily get dial tone, either through
a landline or mobile phone. And access in places like
Adirondack Park is probably spotty at best. The service
is automated, and as such, a caller will have to wait to
find the precise information needed; however, it is a
useful service provided by the DoT and DMV. There is
no charge for access to the service, but established local
rates (as well as roaming rates based on wireless services) will apply.
611 is the number to dial when you need to reach
your wireless provider. In most cases, calls from wireless devices to 611 are without cost, as they are often
directly connected to the provider’s customer service
operations. However, such service is not mandated by
the FCC and is often subject to the terms (I originally
wrote “whims” and decided that was unkind. True,
but unkind.) of the provider.
711 is the number set aside by the FCC to provide
access to Telecommunications Relay Services (TRS),
which provides access to telecommunications services
for those with hearing or speech disabilities via a text
telephone (TTY) or other device to call persons with or
without such disabilities. FCC rules require all telephone companies (including wireline, wireless and pay
phone providers) that operate private branch
exchanges (PBXs) to implement three-digit 711 dialing
for access to TRS. A PBX is a private telephone system
within an organization that switches calls between
internal users and allows users to share a certain number of external phone lines. Callers from locations
served by PBXs may be required to dial 9 or another
prefix before entering the 711 code or placing an outside call. The FCC has also recently determined that
providers of interconnected Voice over Internet Protocol
(VoIP) service must offer 711 abbreviated dialing.
811 service is known as “Dig Safely New York.”
811 is intended to allow excavators and others who dig
to have advance notice of utility and other buried facilities to minimize the risk of ruptured or severed lines.
For more information on 811, see http://www.digsafelynewyork.com/.
And finally, 911. It is my hope that almost everyone
knows that this is the number to dial in an emergency.
911 calls are directed to a public safety access point
(PSAP), where highly trained professionals can direct
calls to appropriate individuals for timely and appropriate assistance.
Although I have written extensively on this issue here
and elsewhere, the only note that I wish to add is that
every PSAP is mandated to answer 911 calls, even if
they are made from TTY devices (see 711 above) for
those who may be either hearing or speech
impaired. 911 is an essential service in every community, as anyone and everyone who has dialed those digits in a moment of panic is well aware.
The bottom line is that three-digit dialing codes exist
for specific and important purposes. If you know the
numbers and use them properly, you will see that they
really do save time, money, and lives.
[B]
PAGE 12
Annual Dinner Awards
Recognize Outstanding
Contributions
in the public service
By Susan C. Ministero
Managing Attorney, Appeals Unit
Legal Aid Bureau of Buffalo, Inc.
WNY Indigent Criminal Appellate Program Established
The Legal Aid Bureau of Buffalo is assigned by the
Appellate Division, Fourth Department, to perfect the
appeals of all indigent criminal defendants convicted in
Erie County superior courts. This year, as it celebrates
its centennial, the Bureau is seeking to establish the
Western New York Indigent Criminal Appellate
Program. The objective of the program is to provide
the best possible representation to indigent defendants
throughout the Eighth Judicial District by regionalizing
appellate representation.
County Law § 18-b requires every county to provide
legal representation, including appellate representation, to indigent criminal defendants. The Western New
York Indigent Criminal Appellate Program will be beneficial to counties who have had difficulty securing
attorneys with both the desire and expertise to provide
effective representation. It will also benefit counties
who do not have an adequate budget to fund an office
with trained appellate practitioners.
The Appeals Unit of the Legal Aid Bureau consists of
a chief attorney, a managing attorney, six full-time staff
attorneys and a paralegal, all of whom are experts in
this specialized area of criminal practice. The quality of
representation provided by the Legal Aid Bureau on
behalf of indigent appellants is highly regarded by the
local legal community and the Appellate Division.
This proactive process of regionalizing appellate representation has begun with Cattaraugus, Chautauqua
and Genesee Counties. The Appellate Division has
approved the assignment of all indigent appeals from
these counties to the Legal Aid Bureau. Allegany and
Wyoming Counties have also expressed interest in this
pilot program.
Most importantly, the greatest beneficiaries of this
initiative are the indigent defendants who will receive
quality appellate representation. This is an exciting
opportunity for all participants in the program as we
advance in our efforts to improve the quality of indigent defense services in New York state.
[B]
Each year at the annual dinner, the BAEC recognizes
lawyers and judges who have made outstanding contributions to the Association, the legal community and
the profession.
All members are encouraged to send in their nominations to the awards committee. The board of directors reviews the recommendations of the awards
committee and makes the final determinations.
It is our goal to honor the most deserving recipients
each year and to make certain that all members have
the opportunity to participate in the process. Please
consider submitting your nomination(s) for the following awards:
Lawyer of the Year Award
There are no specific criteria for this award. In the
past, the award has been bestowed on attorneys who
have made considerable contributions to the legal profession and community, or devoted considerable time
and efforts to Bar Association activities. Recent
Lawyers of the Year include Gayle L. Eagan (2011)
and Vincent E. Doyle III (2012).
All bar members are eligible for this award. Those
nominated should:
1. Promote the good will of the profession.
2. Foster respect for the legal profession.
3. Elevate the standard of integrity, honor and courtesy in the legal profession.
4. Encourage the spirit of fellowship among members of the Bar.
5. Protect and promote the interests of the people
and the members of the bar, the legal profession
and the administration of justice.
6. Promote the maintenance and protection of
American institutions and principles.
Outstanding Jurist Award
The Outstanding Jurist award is not presented annually but when there exists a jurist whose career exemplifies the highest standards of judicial conduct for
integrity and independence; who is knowledgeable of
the law and faithful to it; who is not influenced by partisan interests, public clamor or fear of criticism; who
is patient, dignified and courteous to all who appear
before him or her; and who endeavors to improve the
administration of justice and respect for the rule of law.
Recent recipients include Hon. Kevin M. Dillon
(2011) and Hon. Thomas P. Amodeo (2012).
Special Service Award
This award is also not presented annually, but whenever a person has contributed to the good and welfare
of the Bar Association of Erie County and its members
in an exceptional manner. The award was not given in
2011 and William R. Hites and Harry G. Meyer
were recognized in 2012.
Award of Merit
There are no criteria established for the Award of
Merit. Its presentation often reflects extraordinary circumstances that deserve special recognition. E.W.
Dann Stevens was honored in 2011 (posthumously)
and the award was presented to Howard B. Frank
and Mark W. Hamberger in 2012.
Charles H. Dougherty Civility Award
The “Civility Award” is presented to a distinguished
practitioner who exemplifies the same sense of civility
and decorum that characterized the career of the
Association’s former president, Charles H. Dougherty
who was always forthright and scrupulously fair and in
doing so elevated the standard of integrity, honor and
courtesy in the legal profession. Hon. Hugh B. Scott
continued on page 15
PAGE 13
News from Kent, Our Sister City in Great Britain
By Jonathan Smithers
We have a programme on British
television entitled “Dragon’s Den.”
You may have something similar as
the genre has spread across the globe.
(Editor’s Note: The U.S. equivalent of
the show is called “Shark Tank.”)
The format essentially involves five
wealthy business people who are the “dragons,” sitting
in front of “contestants” who have small businesses or
ideas for products, pitching for cash or investors. What
they are actually after is the expertise which the
investor (dragon) can bring to their business, so one is
from the telecom sector and likes techie
things, one from the leisure industry,
another a retail magnet, and so on.
(ABS) rule which allows outside
investors to own law firms. Some on the
outside have seen a few firms with high
profits and think they want a piece of
the action but are now starting to
understand that extracting cash from
the practice of law is usually a very
long-term business. Those who make
the most money year after year, as this
dragon has discovered, are not interested in profits but rather interested in
best serving their client, which is what
makes them successful.
He would never be
interested in the sort
of law which many
lawyers practice, to help the poor
and the dispossessed. Even rich
lawyers will give advice away for free
(something which would make a
dragon go very pale).
What started out some years ago as
“Dragons would never
an interesting way of conveying sometimes very basic business ideas about
be interested in the sort
profit and loss, investment and return,
working out whether there is actually a
of law which many
market for an idea or whether it is just
Finding this out makes me feel
lawyers practice, to
a hobby, is now all about the investors.
better about being a lawyer than
They have become TV personalities in
almost anything. Whilst many still
help the poor and the
their own right, being feted on national
fear the advance of ABS, the investor
television for their opinions on governwill always be drawn to profit so will
dispossessed.”
ment policy, life, the universe and
find the necessity of serving the comeverything else. Hearing them speak
munity rather harder work than they
did remind me of the old adage that
might imagine.
being clever at one thing is no guarantee of being clever at anything else. It is
The other story which springs to
certainly a truism in this case but the cult of celebrity
mind as a result of this was related to me a short while
means they speak nonetheless. The programme now
ago. One of my colleagues at the National Law Society
has a veneer of business but is more likely to attract
had been talking to partners from the very wealthy
investors seeking what has now become a celebrity
“magic circle” firms in London, where the annual
endorsement.
profit for equity partners is measured in millions. The
Law Society of England and Wales works hard to
The producers have a calculated mix of successful
engage with these lawyers, even though many imagine
ideas, wacky eccentric inventors (think Doc Brown in
that they are very far removed from others practicing
“Back to the Future,”) punters who are hopeless but
on Main Street. When challenged on this, a partner said
nice and those so self assured that they think they know
to my colleague “I understand why people feel that but
better than the dragons, which results in a verbal
you have to remember we all wanted to be Perry
punch-up that makes it worth watching but conveys
Mason once upon a time.”
[B]
no real message.
What relevance is this to the law, you may well ask.
Well, recently one of the former dragons (they rotate
every now and again) was moaning that lawyers do not
seem to want to make a profit. This has come about
because of our new “Alternative Business Structures”
Become a
Contributing
Member!
The BAEC bylaws confer “contributing member”
status on any member who resides or maintains an
office in Erie County and elects to pay an additional
$50 in annual dues to help support Association programs. Contributing members have the same rights
and privileges as regular members and “such additional rights and privileges as the board of directors
shall bestow,” including special recognition in
the Bulletin, annual dinner program and other publications.
PAGE 14
Bar Foundation Provides Assistance in Troubled Times
By Sharon Anscombe Osgood
We are so very fortunate in this
legal community. Have you noticed
the generosity with which our fellow
attorneys and our judges respond to
our individual adversities?
They are quick to accommodate
scheduling problems resulting from
medical and other exigencies. Help is offered to cover
practice needs. Fundraisers spontaneously occur.
Thoughtful expressions of concern and friendship are
extended.
That spirit of concern, friendship
and generosity has, for many years,
also been formally institutionalized
in the form of the Erie County Bar
Foundation, an outgrowth of our Bar
Association. Supported by the contributions of our Bar Association members, the Foundation provides
confidential services to members who
are experiencing difficulties such as
aging-related issues, need for medical, mental health and substance
abuse treatment, advice about financial and vocational issues, temporary
assistance with living expenses, referrals to available resources, and perhaps, most of all, sympathetic
friendships.
specific needs, and locate and apply for community
resources.
In the last year, the Foundation paid for a child’s
medical evaluation of a serious cardiac condition; analyzed financial situations and helped to compromise
debt or refer for bankruptcy; provided vocational
advice and counseling to several who were facing problems maintaining a practice; paid for mental health
and substance abuse treatment; and paid health insurance premiums through a difficult period.
We have collected office furniture being replaced by
firms and provided it to several attorneys whose firms closed or who lost
jobs in the court system, and who were
attempting to set up their own offices.
“We all came to the
profession with great
enthusiasm and
expectations, but
sometimes despite
our best efforts,
situations occur with
which we are unable
to cope alone.”
Although the Foundation is not a
resource for long-term financial support, it is often able to help in an
emergency or until a more permanent solution is in place. Every applicant is assigned a Foundation board member to serve
as liaison between the applicant and the board. Social
worker Kelly Bainbridge is instrumental in helping
applicants to articulate his or her problems, identify
We have seen in this last year that
adversity has struck attorneys from all
economic levels despite their hard
work and previous success. The
Foundation has been a safety net to
assist them in the transition to a new
career that they never anticipated having to make.
What is so clear to us on the board is
that none of us is invulnerable to
catastrophe of one sort or another. We
all came to the profession with great
enthusiasm and expectations, but
sometimes despite our best efforts, situations occur with which we are
unable to cope alone. The need may be
economic, it may be referral to the
right agency, or it may simply be the
need for an understanding listener.
The Foundation serves an important service to our
legal community. It needs your support so it can continue to furnish its invaluable assistance now and in the
future. Please do what you can for your Foundation.[B]
Welcome
New Members
The Bar Association
of Erie County is pleased
to welcome the
following new members:
Margaret S. Auerbach
Anthony Carroll
Brian J. Chavanne, Jr.
Katelyn E. Dieffenderfer
Adam R. Durst
Benjamin Fentriss
Daniel Taylor Hawes
Kevin A. Hinkley
Anthony Kuhn
Julie Latham
Meghan L. Lytle
David Aaron Martinez
Jack J. Niejadlik
Jeremy P. Oczek
Allison E. Ogorek
Elizabeth L. Perry
Michael P. Raleigh
Frederick M. Rarick
Erik D. Reicis
Elizabeth M. Salzman
Angela J. Schnell
Stephanie R. Sciandra
Fritz Gerald Tondreau
Rob Yawman
Amanda Zafur
It’s great to belong to something this good.
PAGE 15
Annual Dinner Awards
Standing, from left, are
UB law students Joseph L.
Nicastro, Shane Costa,
Best Advocate Award
Winner Aaron Saykin, and
Nick Romano with BAEC
member coaches Colleen
Mattrey and Leonard D.
Zaccagnino. Kneeling
below are Frank L. Bybel
and UB law student Sarah
Siracusa.
MOCK TRIAL TEAM
Buffalo recently hosted law students from 32 schools
across the country as part of the ninth annual Buffalo
Niagara Mock Trial Competition. The event was held
at Buffalo City Court and participants came from
Louisiana, California, Ohio and Pennsylvania, as well
as SUNY Buffalo Law School.
This year’s fictional case was written by Hon.
Thomas P. Franczyk and centered on the death of a
chef who became a nationally known food critic and
host of a popular show on the Cuisine Network.
SUNY Buffalo’s team lost to a tough Campbell team
in the fifth round. UB law student Aaron Saykin won
the best advocate award out of 128 student competitors after the preliminary rounds.
[B]
In Memoriam
“Remembering is an act
of resurrection,
each repetition a vital layer
of mourning,
in memory of those we are sure
to meet again.”
~ Nancy Cobb, from
“In Lieu of Flowers”
We wish to honor the memory of the following members of our Bar Association. Memorial
gifts to the Erie County Bar Foundation are
an excellent way to remember friends and
colleagues, as gifts are used for the benefit
of the entire profession.
Julia E. Roberts
Robert O. Swados
John A. Krull
Oscar Smukler
Michael B. Jones
was recognized in 2011 and the award was given to
Michael J. Roach in 2012.
How to Nominate a Candidate for an
Award
Nomination forms for each of the awards are available at www.eriebar.org. Completed forms should be
forwarded to Jennifer M. Dillon, Awards Committee
Chair, at the Bar Association office. The deadline for
receipt of nominations is March 1, 2013.
[B]
PAGE 16
evidence of parental alienation by the mother. (In the
Mtr. of Carter v. Work, __AD3rd__, 4th Dept.,
11/16/12, # 1223)
citations
By Jeff Spencer
A DRAM SHOP DOGGIE
The booze flowed freely
With the parents away
The kids and their friends
Engaged in some wild play.
The trusty family dog
Was annoyed and confused
And acted to prevent
The home from being abused.
The partying plaintiff was bit
On her pretty face
And swiftly went to court
To present her sad case.
The court looked down
With robes most black
And found a possible recovery
Under the Dram Shop Act.
Murphy v. Cominsky and Vanderbogart, __AD3rd__,
4th Dept., 11/16/12, # 1037
LONG ARM MAY YANK FOREIGN BANK
A foreign bank’s maintenance of a bank account at a
New York financial institution which affected dozens of
wire transfers on behalf of a foreign client was held to
constitute sufficient “transaction of business” in New
York to invoke long arm jurisdiction. (Lucci et al., v.
Lebanese Canadian Bank et al., __NY3rd__,
11/20/12)
PRIOR STABBINGS MAKE POINTS
WITH HIGH COURT
Admission of evidence of prior uncharged stabbings
by defendant were considered so potentially prejudicial
that a new trial was ordered by the Court of Appeals.
(Peo. v. Bradley, __NY3rd__, 11/20/12)
LOSING INTEREST
Where the parties’ contract specified liquidated
damages as the “sole remedy,” the award of statutory
interest was precluded. (J. D’Addario & Co., Inc., v.
Embassy Industries Inc., __NY3rd__, 11/19/12)
CONTRIBUTION CLAIMS RETAINED
In a complex and thoughtful opinion by Magistrate
Leslie Foschio (affirmed by Judge Richard Arcara),
third-party contribution claims by a former employee
were allowed to continue in Federal Court in the exercise of supplemental jurisdiction. (2012 WL 3009709
[W.D.N.Y.])
CONTEMPLATING COLLATERAL ESTOPPEL
A good review of the doctrine of collateral estoppel
can be found in Headley v. NYCTA (__AD3rd__, 2nd
dept., 11/14/12), in which a bus passenger was suing
the transit authority following an accident in which a
fellow passenger had obtained a favorable determination.
STIP TIPPED BY JUDGMENT JUGGERNAUT
A matrimonial stipulation was silent as to the distribution of retirement survivorship benefits. However,
they had been included in the final Judgment of
Divorce. In a dispute over survivorship rights reflected
in an order prepared for submission to the retirement
system, the judgment was held to govern. (DeEttore v.
DeEttore, __AD3rd__, 2nd Dept., 11/14/12)
SICK JUROR SINKS VERDICT
Although the jury had sent the judge a note that a
verdict had been reached, the subsequent sickness and
absence of one of the jurors precluded a unanimous
final verdict being properly announced by the court.
(Peo. v. Members, __AD3rd__, 4th Dept., 11/16/12, #
1199) See also Holstein v. Comm. Gen. Hosp. of
Greater Syracuse (__NY3rd__, 11/20/12) regarding
the right to poll the jury.
CUSTODY CORRAL
Leaving the child late at night without adult supervision combined with an allegation by the child of
inappropriate behavior by a half-brother formed a sufficient basis for the court to consider a change in the
custodial arrangement. (In the Mtr. of Burrell v. Burrell,
__AD3rd__, 4th Dept., 11/16/12, #1202) See also
Kollmar v. Kollmar, (__AD3rd__, 2nd Dept.,
11/14/12).
Reinstatement of visitation rights to the father
against the child’s wishes was upheld where there was
SLIP TIPS AND STUMBLE BUMBLES
Plaintiff tripped over a curb at defendant’s restaurant. The Fourth Department agreed with Justice
Ralph Boniello that factual issues precluded summary
judgment. (Hayes v. Texas Roadhouse, __AD3rd__,
11/16/12, #1183)
Plaintiff’s chair allegedly slipped out from under her
as she sat down to eat at defendant’s restaurant. The
Fourth Department noted that the plaintiff had not
overcome defendant’s proof that neither the chair nor
the restaurant floor created a dangerous condition.
(Savage v. Anderson’s Frozen Custard, Inc.,
__AD3rd__, 11/16/12, # 1249)
Plaintiff slipped and fell in a municipal parking lot.
However, the municipality had never received notice of
the condition as required by their local law. (Masotto v.
Village of Lindenhurst, __AD3rd__, 2nd Dept.,
11/14/12)
[B]
RECYCLE YOUR BULLETIN
PAGE 17
“You and the Law”
Educates Public on
Legal Issues
We appreciate the time that the following
members of our legal community have taken to
educate the public about legal matters by volunteering their time to appear on You and the
Law. The program airs every Friday at 5:45
p.m. during NPR’s “All Things Considered.”
James J. Navagh
Personal Injury
Sarah E. Tollner
Social Media & Electronic
Communications in the
Workplace
Kelly V. Zarcone
Financial Considerations in
Divorce
David M. Block
Auto Accidents
Kevin S. Mahoney
Collaborative Law and
Mediation
You and the Law is underwritten by the
Erie County Bar Foundation and the
Lawyer Referral and Information Service
of the BAEC. If you would like to appear as a
guest on the program, please contact Amy
Bayerl at 852-8687 or by e-mail at [email protected].
Avoiding a Grievance Complaint Often Involves
Improving Client Communications
By Deanne M. Tripi
The majority of complaints filed
against attorneys result from the
client’s belief that there has been a
lack of communication from the
attorney. According to Rules of
Professional Conduct 1.4, attorneys
are required to communicate with
clients in the following manner.
A lawyer shall promptly inform the client of:
• any decision or circumstances with respect to
which the client’s informed consent, as
defined in Rule 1.0(j), is required by these
Rules;
• any information required by court rule or
other law to be communicated to a client;
and
• material developments in the matter, including settlement or plea offers.
Further, a lawyer shall:
• reasonably consult with the client about the
means by which the client’s objectives are to
be accomplished;
• keep the client reasonably informed about
the status of the matter;
• promptly comply with a client’s reasonable
requests for information; and
• consult with the client about any relevant
limitation on the lawyer’s conduct when the
lawyer knows that the client expects assistance not permitted by these Rules or other
law.
Lastly, a lawyer shall:
• explain a matter to the extent reasonably
necessary to permit the client to make
informed decisions regarding the representation.
Numerous complaints against attorneys can be
avoided by promptly returning telephone calls or
responding to correspondence, keeping the client
informed about the progress of the case, and providing the client with an overall sense that they
are informed. Another good way to keep clients
informed is to send them copies of case-related
correspondence and documents that the attorney
sends and receives.
[B]
PAGE 18
Pitfalls of Practice: Warning to DWI and Vehicle & Traffic Practitioners
By Sunil Bakshi and Joseph A. Leta
Bakski
Leta
To those attorneys who regularly
handle DWI arrests and vehicle and
traffic matters, new regulations were
recently passed that could have devastating effects on your client’s relicensure. How devastating, you may
ask? If your client has five or more
alcohol or drug-related driving convictions over his or her lifetime, that
client is now subject to a permanent
ban on relicensure. Even an individual with three alcohol or drugrelated driving convictions within 25
years could face a permanent ban on
relicensure if they were involved in a
“serious driving offense.”
Serious driving offenses include: a fatal accident; a
driving-related penal law conviction; a conviction of
two or more traffic violations for which five or more
points are assessed; or 20 or more points accumulated
from any violations incurred over the client’s entire
driving history. Assuming that a third-time offender
does not have a serious driving offense on their record,
they will now be without a full driver’s license for in
excess of 10 years, which includes a five-year period of
time that they will be subject to a DMV-mandated igni-
tion interlock device. In addition, you will want to prepare your clients for drug and alcohol assessments by a
licensed evaluator on almost any relicensure following
revocation related to an alcohol or drugrelated driving conviction.
Overall, what does this mean for practitioners? Your client’s driving history is
now of vital importance, because a new
conviction could easily lead to a lifetime
driving ban. Advising your clients of these
consequences as part of your representation is vital. Furthermore, in our experience, clients have little to no idea of the
contents of their past driving history. We
cannot count the number of clients who
swear they have not been convicted of a
DUI in New York state, or fail to mention
a DWI conviction that occurred more
than 10 years ago. As practitioners, we
must make sure that our clients provide
us with their driver’s license abstracts or
have DMV on the phone to go over their
record in detail before advising them on
how to proceed with their case. The
abstract of their driving record may not
give the requisite history necessary to
give the appropriate advice.
We have spoken with many attorneys about these
new regulations, and they feel that though they have
been enacted, they will not pass constitutional muster
once challenged before the courts.
However, as practical attorneys,
we cannot hide our heads in the
sand and pretend these regula“Even an individual
tions do not exist - unless we feel
like battling malpractice claims. As
with three alcohol or
with the passage of Leandra’s
Law, we need to understand the
drug-related driving
intricacies and be prepared to
advise our clients accordingly.
convictions within
While the DMV presents a brief
overview of the new regulations on
25 years could face
their Web site, we suggest that you
review the regulations as codified
a permanent ban on
in the statutes in detail (15 N.Y.
A.D.C. §§ 3.2(c)(4), 132.1, 132.2,
relicensure if they
132.3, 134.7, 134.10(b), 134.11,
were involved in
136.4(b),
136.5,
136.10).
However, even after a thorough
a ‘serious driving
review of these regulations, we
remain concerned about their
offense.’”
administration, especially as it
relates to out-of-state convictions.
The costs to our clients for DWI
arrests are more than just financial now; it could mean the loss of
their livelihood through the permanent or extended
loss of their driver’s license. If our clients choose to
drive on a permanently revoked license, they will be
facing Felony Aggravated Unlicensed Operation
charges, which will only exponentially intensify an
already difficult situation. Therefore, it is imperative
that we make our clients aware of the full effect these
new regulations can have.
[B]
“Still round the corner there may wait,
a new road or a secret gate.”
~ J. R. R. Tolkien
PAGE 19
Termini to Speak at Senior Lawyers Program
Developer Rocco R. Termini
will discuss the revitalization of
downtown Buffalo at a program to be held on
Wednesday, January 16
from 4:00 until 6:00 p.m. in
the Crystal Ballroom of the
Termini
Hotel @ the Lafayette.
Admission is $30 per person
and includes a reception with hors d’oeuvres,
beer and wine, along with a tour of the magnificently restored facility.
Termini is the managing member of Signature
Development of Buffalo, LLC. Among the
mixed-used buildings his company has recently
developed in downtown Buffalo are a series of
loft spaces – including the Oak School, Ellicott,
Webb and AM&A’s Lofts – along with the Ellicott
Commons and the Hotel @ the Lafayette.
A graduate of Canisius College, Termini is a
guest lecturer in Urban Studies at SUNY Buffalo
and in the MBA program at Medaille College. He
serves on a number of boards including Buffalo
Downtown Development, Buffalo Civic Auto
Ramps and Medaille College. Termini is also
active in the Buffalo Niagara Partnership, Buffalo
Place and the Harbor Development Corporation.
The Speaker Series is sponsored by the Bar
Association’s Senior Lawyers Committee chaired
by Frank Offermann. Lawyers of all ages and
practice levels, together with their guests, are
invited to attend this informative presentation
and evening of fellowship.
Don’t miss this thought-provoking opportunity
to learn more about the exciting new developments underway in downtown Buffalo!
Return the form below or call 852-8687 to
reserve your place today. The deadline for reservations is Wednesday, January 9. No refunds
can be made after that date.
Name (please print) ________________________________________________________________
Address __________________________________________________________________________
City, State, Zip ____________________________________________________________________
Telephone ________________________________E-mail __________________________________
Please make checks payable to the Erie Institute of Law and mail to:
438 Main Street, Sixth Floor, Buffalo, NY 14202 Attention: Susan Kohlbacher
Or you may pay by credit card:
MasterCard
Visa
Expiration Date: ____________________
Card #: __________________________________________________________________________
Signature ________________________________________________________________________
Billing Address ____________________________________________________________________
Are You An Attorney
Struggling With
Depression?
If so, you’re definitely not alone. A recent
Johns Hopkins study of 108 occupations
found that lawyers topped the list of those
who suffered from depression. Attorneys
were found to suffer from depression at a
rate of four times that of the general population.
Depression is a treatable illness and the
right combination of medications and therapies can significantly improve the quality
of life for those who suffer from it.
Help and support are just a phone call
away. The Lawyers with Depression
Support Group meets on a weekly basis to
share stories and fellowship. The group
meets every Friday (except holidays). See
the calendar on page 24 for meeting dates,
times and locations.
If you or a colleague are struggling with
depression, there is no need to suffer in
silence. For further information, visit
www.lawyerswithdepression.com or contact
Daniel T. Lukasik at 847-1010. All calls are
strictly confidential. We invite you to join us
and share your story.
PAGE 20
Annual Food Drive Effort to Focus on Monetary Donations
Did you know that a donation of just $15 can
feed a family of four for a week? Or that – contrary
to popular belief – the hungry people in our community
and across the nation are not just the homeless? They are
often employed, or live in a household with someone who
is. They are the working poor who struggle to provide the
daily necessities that so many of us take for granted. For
the past 22 years, the Bar Association of Erie County has
expressed its commitment
to helping the hungry in our
community through its
Have-A-Heart food drive.
Over the history of the
drive, several tons of food
and substantial financial
support have been provided
to the Food Bank of Western
New York.
This year’s drive has once
again focused primarily on monetary contributions. Law
firms that wish to collect non-perishable food items may
also continue to do so and the Food Bank of Western New
York will arrange to pick up the donated items. Please help
the hungry in our community by sending in your donation
today.
Checks should be made payable to the Food Bank of
Western New York and returned with the form at right
by Valentine’s Day, February 14th. All donors will receive
written confirmation of their contribution directly from the
Food Bank.
2013 BAEC “Have A Heart” Food Drive
Firm Name ______________________________________________________________
Contact Person __________________________________________________________
Address ________________________________________________________________
______________________________________________________________________
______________________________________________________________________
Phone Number __________________________________________________________
Fax Number______________________________________________________________
E-mail Address____________________________________________________________
Kindly complete and return this form to:
Michael Billoni, Food Bank of Western New York
91 Holt Street • Buffalo, New York 14206 • Telephone No. 852-1305
Foundation Contributions to Benefit Profession
Contributions to the Erie County Bar Foundation provide an excellent
vehicle for recognizing and honoring members of our profession.
Memorial gifts to the Foundation become a lasting tribute to the entire
legal profession, as funds are used exclusively to assist attorneys and
promote understanding of our legal system.
The Foundation gratefully acknowledges
the following contributions:
In Honor of Suzanne E. Tomkins
for her Dedication to UB Law
School’s Women, Children and
Social Justice Clinic and the
Domestic Violence Task Force:
Lindy Korn
In Memory of My Son, Richard:
Mark S. Ackerman, Colonel,
USA Retired
Domestic Violence
is NEVER Okay.
Domestic abuse doesn’t discriminate. It
happens within all age ranges, ethnic
backgrounds, and financial levels. If it happens once, it will happen again. The abuse
may occur during a relationship, while a
couple is breaking up, or after a relationship has ended.
Despite what many people believe,
domestic violence is not due to an
abuser’s temporary loss of control over his
or her behavior. In fact, violence is a deliberate choice made by the abuser in order
to take control of a spouse or partner.
Look What You Made Me Do! In spite
of the abuser’s efforts to “blame the victim,” domestic violence is NEVER your
fault. If you or a loved one are suffering,
help is just a phone call away. Please call
852-1777 in complete confidence today to
be referred to a colleague who can help.
Don’t Suffer in Silence.
Let Us Help You Find Your Voice.
In Memory of Michael G. McCabe
(Father of Michael L. McCabe):
Hon. William M. Skretny
In Memory of Robert D. Roach, Jr.
(Father of David L. Roach):
Joseph F. Saeli, Jr.
In Memory of John J. Cotter, Jr.:
Christopher C. Kerr
John R. Drexelius, Jr.
Michelle Parker
In Memory of Julia E. Roberts
(Daughter of Thomas E. Roberts):
Bar Association of Erie County
Carol A. Condon
David E. Hall
David L. Sweet
Jim & Mary Shea
Joel & Pattie Daniels
Paula & Terry Newcomb
Personius Melber LLP
In Memory of Alice J. Kryzan:
Karen L. Mathews
In Memory of My Father-in-Law,
Walter A. McMurry:
E. Michael Semple
In Memory of My Father, Albert
M. Ranni:
Sarah K. Ranni
In Memory of My Mother, Virginia
R. Wojdyla:
Carol A. Condon
In Memory of George M.
Zimmermann:
Edward J. Carland
George R. Grasser
Hon. Jeremiah J. McCarthy
In Memory of My Father-in-Law,
Anthony Hojnacki:
James D. Schultz, Jr.
In Memory of My Father, James E.
Rolls:
Jennifer A. Rolls Reutz
In Memory of Joseph D.
Bermingham:
Margot S. Bennett
In Memory of Marcella Rosinski:
George R. Grasser
In Memory of Audrey Gleason
(Mother of Jeffrey Gleason):
Jennifer Scharf
In Memory of Michael B. Jones:
Jim & Mary Shea
In Memory of Dennis Kahn:
In Memory of Frank T. Gaglione:
Karen L. Mathews
In Memory of James Carlo:
Leo M. Lynett, Jr.
In Memory of Peter Gilfillan:
Lisa P. Meyers
In Memory of Philip Lippa:
George R. Grasser
In Memory of Neil Sherwood:
Mark S. Nemeth
Paula & Terry Newcomb
In Memory of Waldron S. (Terry)
Hayes:
Raymond H. Seitz
In Memory of Carl M. Cole:
Richard H. Cole
In Memory of Hon. Thomas P.
Flaherty:
W. Donn McCarthy
William E. Carey
In Memory of Charles Blinkoff
(Brother of Michael Blinkoff):
In Memory of Neil Garvey:
Diane M. LaVallee
In Memory of Patrick Maxwell:
Christopher C. Kerr
In Memory of Robert O. Swados:
Bar Association of Erie County
In Memory of Jane Sweet (Wife of
David L. Sweet, Mother of
Kathleen M. Sweet):
Elizabeth & Joseph Bergen
In Memory of Karin B. Roach:
Karen L. Mathews
In Memory of Richard Marcus:
Edward J. Carland
In Memory of Mary Personius:
Jeffrey M. Freedman
In Memory of Chester Dann:
David K. Floyd
New Book Chronicles
Mentors Cohen and Grande
“Observations of Excellence: Based Upon
the Lives of Two Outstanding Men and
Attorneys Jeremy V. Cohen (1936-2006)
and Genuino J. (Bill) Grande (19311996)”
By Joseph L. Randazzo
This book describes how I, as a young and inexperienced attorney, sought and discovered certain qualities
that were considered necessary for success, and how I
was provided the opportunity to observe those qualities
in the careers and personal lives of the two remarkable
men - Jeremy V. Cohen and Genuino J. (Bill) Grande who are the subject of this book, and who later became
my mentors, law partners and close friends.
In addressing those qualities and life lessons that I
became aware of, such as commitment, the importance
of associating with the right people, attitude, industriousness, positive interpersonal relations, integrity, earning the respect of others, justifying the faith and trust
placed in us by others, and giving back, this book is
intended to convey that excellence is achievable by
everyone, not only in their careers, but in every aspect of
their personal lives. It is also intended to convey the
importance of role models and mentors in the pursuit of
excellence, and the realization that those who have, and
will have, a positive effect on our careers and personal
lives, are all around us and willing to be of assistance.
The book concludes with the observation that positive qualities that are not incorporated into our careers
and personal lives will never be beneficial to us in any
way and will ultimately be forgotten.
[B]
It’s Not Too Late…
…to help your colleagues in need. In
these trying economic times, your gift to the
Bar Foundation is more important than
ever. There is power in our numbers: when
we each make even a small contribution,
together we can have a significant impact
on the lives of those who desperately need
our help. To someone facing the unimaginable, your support will be more important
than you know.
Please help today by calling 852-8687
or donating online at www.eriebar.org
PAGE 21
PAGE 22
ERIE INSTITUTE OF LAW
PROVIDING CONTINUING LEGAL EDUCATION FOR YOUR PROFESSIONAL ADVANTAGE
PLEASE NOTE: The Erie Institute of Law is unable to issue partial credit for seminars, except for multiple session programs such as the Tax and
Leadership Institutes. If you have questions about whether a program qualifies for partial credit, please call Mary Kohlbacher at 852-8687.
Date/Time/Location
Topic
Wednesday,
Tax and Finance as it Touches Our Northern
January 16, 2013
6:00 p.m. — Cash Bar
CLE Credits
1.0 credit
Border Immigration Clients
Price
$27 Dinner
$47 Dinner and CLE
6:30 Dinner and CLE
(Live Seminar presented by the American Immigration Lawyers Association)
Protocol Restaurant
For more information and to register, contact Wally Ruehle at [email protected]
6766 Transit Rd.
no later than January 7, 2013.
Williamsville, NY 14221
Wednesday,
January 23, 2013
Third Annual Statutory Update: What Came Out of
1:00 p.m. — 2:00 p.m.
Washington and Albany
Adelbert Moot CLE Center
(Noonday Lecture presented by Frank Housh)
1.0 credit
$20 members
$25 non-members
438 Main St.
Buffalo, NY
Thursday, January 24, 2013
Air & Waste Management Association Annual
8:30 a.m. — 4:30 p.m.
Enrichment Seminar
CLE credit TBA*
Templeton Landing
(Co-sponsored by the Knoer Group, PLLC, A&WMA,
2 Templeton Place
Niagara Frontier Section, and the Erie Institute of Law)
Buffalo, NY
Register online at https://www/123signup.com/register?id=bfmzf or contact Patrick Filey at 392-3932.
Friday, January 25, 2013
Charging & Retaining Liens
1:00 a.m. — 4:00 p.m.
(Live Seminar presented by Matrimonial and Family Law Committee)
CLE credit TBA*
Cost TBA*
Cost TBA*
438 Main St.
Buffalo, NY
Wednesday, January 30, 2013
Solo Practice: Ethics Session
1:00 p.m. — 3:00 p.m.
(Noonday Lecture Presented by Solo Practice Committee)
2.0 credits
RESCHEDULED FROM NOVEMBER 2012
$40 members
$50 non-members
438 Main St.
Buffalo, NY
Thursday,
January 31, 2013
1:00 p.m. — 2:00 p.m.
Case Law Updates from Erie County Surrogate s Court1.0 credit
$20 members
(Noonday Lecture presented by Practice and Procedure in Surrogate s Court $25
Committee)
non-members
438 Main St.
Buffalo, NY
*Visit www.eriebar.org for updated information as it becomes available or call 852-8687.
Check our calendar for updates and added programming at www.eriebar.org
✃
Erie Institute of Law Registration Form
Please register me for the following Erie Institute of Law sponsored events:
1. ___________________________________________________ 2. _________________________________________________ 3. _____________________________________________
Name:______________________________________________
Firm:_______________________________________________
Street Address:__________________________________________________________________________________
City: _______________________________________________State: ______________________Zip:_____________
Phone: _____________________________________________E-mail:______________________________________
Enclosed is my check in the amount $_______________ [ ] Check enclosed Charge my: [ ] Visa
[ ] MasterCard
Card Number:__________________________________________ Exp. Date:______________________ Cardholder Signature:___________________________________________
Cancellation Policy: If you are unable to attend a seminar for which you have already registered, call Mary Kohlbacher at 852-8687 ext.115. For a full refund, notice of your
cancellation must be received before the date of the program. Registrants who are pre-registered and fail to attend will receive course materials in lieu of a refund.
Mail or Fax to: Erie Institute of Law, 438 Main Street, Sixth Floor, Buffalo, New York 14202, (716) 852-8687, Fax (716) 852-7641.
PAGE 23
LISTEN, LEARN & EARN!
In today’s competitive, fast-paced legal environment, effective time management is essential. Take advantage of the
Erie Institute of Law tape library and start earning your CLE credits when the time is convenient for you.
The Erie Institute of Law is now offering our most recent CLE seminars on CD, cassette tape and DVD.
All of our seminars are professionally edited and are accompanied by a full set of written course materials.
Among our most recent selections:
Defending the DWI Defendant:
From the Basics through Recent
Developments
Product Code 2188
Presented on December 2, 2011 ¥ 4.5 CLE
Credits: 1.0 Ethics, 3.5 Skills
CD or DVD: $110 BAEC Members, $165 Non-
¥
¥
¥
¥
¥ pension options and benefits for
Certi cates of Relief from Civil Disabilities;
government plans;
Alternatives to Incarceration;
¥ retirement plan discovery;
Immigration Issues; and
¥ separation agreements; and
¥ post-divorce follow-up and estate
Treatment Court.
Members
Product Code 2203
Presented on October 18, 2012 ¥ 4.0 CLE
Topics covered during the seminar include:
credits: 2.0 Law Practice Management, 2.0
¥ Getting Your Client Through it All: From
Skills
the Late
CD only $110 BAEC Members, $165 NonNight Phone Call Through License
Restoration;
¥ DWI Statutory and Case Law Update;
planning considerations.
Everything You Want to Know about
QDROs (But Were Afraid to Ask)
Members
Holly Baum joinsKelly Zarconefor a
roundtable discussion to conclude the
program.
How to be a More Effective Law
Firm Leader
Product Code 2204
Presented on October 23, 2012 ¥ 2.0 CLE
The Matrimonial and Family Law Committee,
¥ Direct and Collateral Consequences of chaired by
credits: 2.0 Law Practice Management
Catherine Nagel
, presented this
DWI;
CD only $50 BAEC Members, $100 Noninformative program that provides an overview
¥ Defending the DWI: Motion Practice; and
of Qualified Domestic Relations Orders, or Members
¥ Ethical Representation of Your Client. QDROs. You ll learn the specifics of how
This fast-paced, interactive session will
retirement plans work from
Raymond Barr of
Phillips Lytle Kelly
and Zarconeof Zarcone
Sentencing in State Court
Product Code 2196
Presented on June 1, 2012 ¥ 7.0 CLE
Associates. Other topics covered in detail
include:
on long-term strategic goals and objectives
Drawing on survey data collected among 700
¥ dividing IRA benefits;
Credits: 4.0 Areas of Professional Practice,
3.0 Skills
managing partners over the past 10 years,
JohnTo Remsen
of the Remsen Group presents
order, please send check payable to:
whatThemanaging
how they do
Erie Institutepartners
of Law • 438 do
Mainand
Street,
CD only: $175 BAEC Members, $265 NonMembers
Floor • Buffalo,
NY 14202 managing partners it. Sixth
A panel
of seasoned
Krista
Mattar,
D for
Agostino
&
Be sureGottlieb
to include of
your name
and address
mailing purposes;
Topics covered in this seminar are:
¥ Making the Best of a Bad Situation; Plea
Gottlieb,
PeterandS.
Marlette
oftape
Damon
Morey,
add $5 shipping
handling
for each
purchased.
Tapes
mailedM.
via UPS,
no P.O. III
boxes
To order by
phone and are
Hugh
Russ,
of please.
Hodgson
Russ
using your Visa or MasterCard, call Amy Bayerl at 852-8687.
lend their thoughts and perspectives.
Negotiations, Pre-Sentence Investigations,
and SORA Considerations;
¥ Pre-Sentence Memoranda: Preparation and
For a complete listing of taped CLE programs, visit our Web
site at www.eriebar.org and click on the Continuing Legal
The program provides practical guidance on
Education link or call Amy Bayerl at 852-8687.
Use;
¥ Drug Sentences in New York;
¥
State Sentencing Guidelines;
The Buddy System
For CLE Audio Tapes
Accreditation for viewing a CLE tape is handled on an
individual basis. Each lawyer must pay the requisite fee,
fulfill the requirements for accreditation, and acquire
and retain his or her own certificates of completed
continuing legal education activity.
However, as a service to our members who wish
to participate in group or sequential viewing of
CLE tapes, the Erie Institute of Law offers the
following alternative: One member in the group
may purchase the audio tape of their choice,
paying the listed price; all other members in the
viewing group who wish to receive accreditation
for viewing the tape will receive a $30 discount.
One set of audiotapes will be mailed along with
course materials for each participant.
examine the important role of the managing
partner and other firm leaders to initiate
change, build consensus and focus attention
The best educated bar
how to build a more profitable, cohesive an
N E W C A T A law
L O G firm.
AVA I L A B L E N O W !
sustainable
Buddy System
Registration Form
Name: _____________________________________________________________________________________________
Each additional participant:
2. __________________________________________________ 3. _____________________________________________
4. __________________________________________________ 5. _____________________________________________
Shipping Address (No P.O. boxes please, due to UPS shipping):
Firm:_______________________________________________________________________________________________
Street Address: _____________________________________________________________________________________
City: _______________________________________________State: ______________________Zip:________________
Phone: _____________________________________________E-mail: _________________________________________
All tapes will include course materials. Please indicate
the audio tape/CD/Video(s) product code of your choice: ______________________________________________
Total amount enclosed (Please add $5 per tape for shipping): $ ___________________________________________
[ ] Check enclosed Charge my: [ ] Visa
[ ] MasterCard
Credit Card #:____________________________________________________________________Exp. Date: __________
In order to administer CLE credit, the names of all
participating attorneys must be given at the time of
purchase. No more than five people per tape allowed.
The Buddy System applies to programs costing
$110 and up.
Name (as it appears on card): ___________________________________________________________________________
Signature: ___________________________________________________________________________________________
Mail form to: The Erie Institute of Law • 438 Main Street, Sixth Floor • Buffalo, NY 14202
PAGE 24
President’s Ball
S A V E
T H E
D A T E !
The 2013 President’s Ball is scheduled for
Saturday, March 16 from 7:00 until 10:00
p.m. at The Mansion on Delaware. The
black-tie optional gala will be held in
honor of President Kathleen M. Sweet
and the Association’s past presidents.
The reception will include cocktails, hors
d’ouevres and food stations, followed by
live music and dancing.
If it didn’t bring you joy
Just leave it behind.
Let’s ring in the New Year
With good things in mind.
Attendees have the option of staying
Leave every bad memory
That brought heartache and pain.
overnight in one of The Mansion’s elegant guest rooms or suites. A discounted
And let’s turn a new leaf
With the smell of new rain.
rate of $125 is available to our members
but reservations for overnight accommo-
Let’s forget past mistakes
Making amends for this year.
dations must be made by January 16, as
space is limited. If you wish to reserve a
room, please call 886-3300 and mention
We send you these greetings
To bring hope and cheer.
this special rate.
Happy New Year!
“Fireworks” by Glenn Edward Murray
ALL MEETINGS HELD IN THE BAR CENTER, 438 Main Street, Sixth Floor, unless otherwise noted. The Adelbert Moot CLE Center is also located at 438 Main Street,
Sixth Floor. MEETINGS SUBJECT TO CHANGE, PLEASE SEE WEB SITE FOR UPDATES.
Labor Law Committee
12:15 p.m. – Heather A. Giambra,
Chair
WEDNESDAY 16
TUESDAY 22
Erie County Bar Foundation
8:00 a.m. – Roger L. Ross, President
TUESDAY 1
WEDNESDAY 9
OFFICE CLOSED
Intellectual Property, Computer &
Entertainment Law Committee
12:15 p.m. – Anne F. Downey, Chair
Appellate Practice Committee
12:15 p.m. - Bar Center, Brennan
Room
Timothy P. Murphy, Chair
Elder Law Committee
12:15 p.m. - Adelbert Moot CLE
Center
Jillian E. Brevorka, Chair
THURSDAY 10
Unlawful Practice of Law Committee
12:15 p.m. – Marc Shatkin, Chair
JANUARY 2013
THURSDAY 3
Negligence Committee
Center
Kathleen M. Reilly, Chair
FRIDAY 4
February Bulletin Deadline
Commercial & Bankruptcy Law
Committee
12:15 p.m. - Daniel E. Sarzynski,
Chair
Committee to Assist Lawyers with
Depression
12:30 p.m. - Daniel T. Lukasik, Chair
Criminal Law Committee
12:15 p.m. – Old Surrogate Court
Courtroom
1st Floor of 92 Franklin Street.
John R. Nuchereno, Chair
FRIDAY 11
Committee for the Disabled
12:15 p.m. – Adelbert Moot CLE
Center
Lynn M. Kwon-Dzikiy, Chair
Depression
MONDAY 7
Professional Ethics Committee
12:15 p.m. – Howard B. Cohen, Chair
TUESDAY 8
Board of Directors
8:00 a.m. – Kathleen M. Sweet,
President
Real Property Law Committee
Center
Michael J. Lombardo, Chair
TUESDAY 15
Corporation Law Committee
12:15 p.m. - Offices of Hodgson Russ
David M. Stark, Co-Chair
Federal Practice Committee
Center
Timothy W. Hoover, Chair
Matrimonial & Family Law
Committee
12:15 p.m. - 25 Delaware Ave, 5th
Floor
Catherine E. Nagel, Chair
THURSDAY 17
Committee on Veterans’ & ServiceMembers’ Legal Issues
12:15 p.m. – Bar Center, Brennan
Room
Joseph D. Morath, Co-Chair
David J. State, Co-Chair
Environmental Law Committee
Center
John T. Kolaga, Chair
Board of Directors
8:00 a.m. – Kathleen M. Sweet,
President
THURSDAY 24
Solo & Small Firm Practice
Committee
12:30 p.m. – Bar Center, Brennan
Room
Jennifer P. Stergion, Chair
FRIDAY 25
Depression
12:30 p.m. - Bar Center, Board Room
Daniel T. Lukasik, Chair
MONDAY 28
FRIDAY 18
Young Lawyers Committee
12:15 p.m. – Elizabeth M. Midgley,
Chair
Depression
MONDAY 21
Martin Luther King Jr. Day
OFFICE CLOSED
www.eriebar.org
Alternative Dispute Resolution
Committee
12:15 p.m. - Steven R. Sugarman,
Chair
WEDNESDAY 30
P&P in Family Court Committee
12:15 p.m. - Family Court Building
Mindy L. Marranca, Chair
Human Rights Committee
12:15 p.m. – Sophie Feal, Chair

January 2013 - Bar Association of Erie County

Transcription

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