President`s Letter Holiday Wish List Manias Coaxed Out of Ex
Transcription
President`s Letter Holiday Wish List Manias Coaxed Out of Ex
PRSRT STD U.S. Postage Paid Buffalo, NY Permit No. 416 Vol. 50 | No. 5 | January 2011 Bar Association of Erie County BULLETIN w w w. e r i e b a r. o r g President’s Letter “March Madness” Comes to the Bar Association By Scott M. Schwartz The Bar Association will host a “Division I NCAA Men’s Basketball Championship” event featuring games, pizza, wings, and other “health food” on the afternoons of March 17 and 18 at Bar Headquarters, 438 Main Street in downtown Buffalo. Tip-off is at noon both days with staggered start times so members are welcome to drop in anytime between noon and 5:00 p.m. either or both days. “At the suggestion of our president and point guard, Scott Schwartz, this inaugural ‘March madness’ event will offer an opportunity for camaraderie and competition as two large-screen TVs provide access to all the action CBS and Turner Broadcasting can cram onto the airwaves,” according to BAEC director and former Canisius basketball star Kevin W. Spitler, who is head- ing up the front line for this event, along with former board members and basketball players Peter F. Brady and Kathleen M. Sweet. Participants will have the opportunity to choose the winners within each bracket for a $10 fee. All winnings will be donated to the participant’s organization of choice, including Lawyers for Learning, the Volunteer Lawyers Project, Legal Services for the Elderly and the Erie County Bar Foundation. Mark your calendars now and watch for further details – including (we hope!) photos of the organizing committee in full uniform – in the February Bulletin. (They are all really tall!) [B] MARTIN LUTHER KING, JR. DAY | JANUARY 17, 2011 “Let it never be said by future generations that indifference, cynicism or selfishness made us fail to live up to the ideals of humanism… Holiday Wish List Let the strivings of us all prove Martin Luther King Jr. to have been correct when he said that humanity can no longer be tragically bound to the starless midnight of racism and war.” In the time-honored tradition – started last year by Bob Convissar – I hereby disclose, for in-camera inspection, in no particular order, my Hanukkah, Christmas, Kwanzaa and winter solstice wish list as follows: That Joel Daniels have a year with no attorneys as clients. ~ Nelson Mandela Feroleto to Receive Kulick Memorial Award The Lawyers Helping Lawyers Committee of the Bar Association of Erie County recently presented the 2010 Sandy Kulick Memorial Award to Hon. Paula L. Feroleto in a private ceremony hosted by the Committee. That Judge Fahey get a gift card from LensCrafters – wouldn’t you love to see him in designer specs? That the Seneca Indians be able to sell, with no sales tax, nicotine patches instead of cigarettes. That Buffalo Place sign Bob Dylan for Thursday in the Square. That the Erie Institute of Law have a CLE on how to use the television digital cable remote control. That Mark and Tom, the hot dog cart guys at Franklin & West Eagle and Delaware & West Eagle, have a mild winter and add chicken breast sandwiches to next year’s menu. That Chief Justice Roberts render future opinions as warm and engaging as he is in person. That Judge Skretny rule unconstitutional the new blue and orange license plates as a violation of the good taste clause of the Constitution. That all Erie County Attorneys and Law Firms list e-mail addresses in the Court Directory so when you have to call, but really hope for voicemail, you can e-mail instead. That Judge Caruso not sign that contract to appear nightly in the lounge at the Bellagio continued on page 4 Feroleto Attorneys experience alcohol and drug addiction at nearly twice the rate of the general population. The BAEC’s Lawyers Helping Lawyers Committee was established in 1978 to provide a confidential channel of communication for attorneys and judges experiencing alcohol or drugrelated difficulties. The group consists of volunteer lawyers and judges who have experienced dependency on alcohol and drugs and are now in recovery. All aspects of the committee’s work are completely conficontinued on page 4 Manias Coaxed Out of Ex-Presidential Cave Former Bar Association of Erie County president Giles P. Manias has graciously agreed to lend his artistic talents to the Bulletin in the form of editorial cartoons. Manias, who served as BAEC president from 2008-09, is also a painter who initiManias ated the “Artful Lawyer” exhibit to showcase the artistic, musical and photographic talents of local attorneys. He promises that the exhibit will return from time to time when sponsorship funding can be raised. During his year as president, Manias also chose to host the 2009 President’s Ball at the newly built Burchfield-Penney Art Center at Buffalo State College. Manias has often referred to “the cave” into which ex-presidents are banished within moments of relinquishing the gavel. Our intrepid reporters discovered the cave “somewhere here in Carl Country” but refused to disclose its exact whereabouts (“or else we’d have to kill you…”). The former prez was recently sighted peeking out of a cave littered with drawings. When asked whether he “used to be somebody,” Manias just kept repeating a line from an old Mel Brooks movie: “It’s good to be King! It’s good to be King…” After a few double espressos and a cold shower, he was coerced (oops, we mean convinced) to put pen to paper and create some editorial cartoons for the benefit of Bulletin readers. continued on page 4 THE BOARD OF DIRECTORS AND STAFF OF THE BAR ASSOCIATION OF ERIE COUNTY EXTEND OUR VERY BEST WISHES FOR A NEW YEAR FILLED WITH PROMISE AND POSSIBILITY. PAGE 2 www.eriebar.org | January 2011 Vol. 50 | No. 5 | January 2011 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 ........................Susan L. Kohlbacher OFFICERS AND DIRECTORS | 2010-2011 President ......................................Scott M. Schwartz Vice President ..............................Arthur A. Russ, Jr. Treasurer........................................Vincent J. Moore Deputy Treasurer ..........................Paula M. Eade Newcomb Executive Director........................Katherine Strong Bifaro © BOARD OF DIRECTORS Lawrence C. Franco, Daniel J. Henry, Jr., E. Michael Semple, Kevin W. Spitler, Patrick J. Brown, Jennifer M. Dillon, Lynn D. Gates, Bridget M. O’Connell, Emilio Colaiacovo, Paul V. Crapsi, Jr., Howard Frank, Brenda M. Freedman. LIFE MEMBERS Mark A. Adrian, Carol J. Alaimo, Brian D. Baird, Lynn A. Clarke, William J. Cunningham, Eric P. Doherty, Victor J. Gagliardi, Sharon Stern Gerstman, Jean E. Gittler, Donald J. Holzman, Stanley Kwieciak III, 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. 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, Michael M. Blotnik, Harold J. Brand, Jr., Peter J. Brevorka, Phillip Brothman, T. Alan Brown, Joel Brownstein, David Buch, James P. Burgio, Michael C. Burwick. John F. Canale, John J. Carney, Peter B. Carr, Alan S. Carrel, Thomas R. Cassano, Stephen E. Cavanaugh, Ferdinand J. Ciccarelli, John F. Collins, William B. Collins, Anthony J. Colucci, Jr., Robert B. Conklin, Robert N. Convissar, Edward C. Cosgrove, Peter L. Costa, Paul Crapsi, Jr., Douglas S. Cream, Hon. John T. Curtin, Steven P. Curvin, Roger T. Davison, Dennis J. Dee, John M. Dempsey, Richard F. DiGiacomo, Anne C. DiMatteo, David A. Doll, 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, Jeffrey M. Freedman, Maryann Saccomando Freedman, Robert Friedman, John J. Fromen. Thomas J. Gaffney, William H. Gardner, Eugene M. Gaughan, Stuart A. Gellman, Robert M. Goldstein, Wayne R. Gradl, Josephine A. Greco, Hon. Samuel L. Green, John C. Grennell, Richard F. Griffin, John J. Gruber, Mark W. Hamberger, Barbara Ellen Handschu, Thomas J. Hanifin, James P. Harrington, John E. Haslinger, 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, Daniel L. Kaye, Christopher C. Kerr, James J. Kirisits, William J. Kita, Wells E. Knibloe, Christian G. Koelbl III, Dan D. Kohane, Ellen M. Krebs, Karl W. Kristoff, Thomas E. Krug. Stephen R. Lamantia, John P. Lane, Richard J. Lehner, John N. Lipsitz, Richard Lipsitz, Arthur A. Lorenzo, William J. Love, Jr., Leo M. Lynett, Jr. James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Arthur J. Maloney, Giles P. Manias, Richard C. Marcus, John Markarian, Mary Dee Martoche, Hon. Salvatore R. Martoche, Hon. Jeremiah J. McCarthy, Maureen A. McCready, Thomas I. McElvein, Jr., Diane J. McMahon, Hon. John A. Michalek, Raymond T. Miles III, Joseph D. Mintz, Albert J. Mogavero, Richard E. Moot, Peter J. Murrett, Jr., Arthur F. Musarra, Joseph M. Nasca, Paul T. Nesper, Stephen M. Newman, Anthony M. Nosek, James J. O’Brien, Robert L. O’Connell, Hon. John F. O’Donnell, Timothy M. O’Mara, Francis J. Offermann, Jr., William J. Ostrowski. 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, Joel M. Poch, Samuel G. Puleo, Theodore J. Pyrak, James P. Renda, Mary K. Roach, Earl T. Robinson III, Jay N. Rosenthal, Marcella Rosinski, Hon. Mario J. Rossetti, Victor A. Rossetti, Richard P. Rosso, Arthur J. Rumizen, Ross L. Runfola, Louis J. Russo, Thomas Santa Lucia, Scott M. Schwartz, Edward J. Schwendler, Jr., Richard B. Scott, Donald P. Sheldon, Richard J. Sherwood, David Siegel, Louis H. Siegel, Myron M. Siegel, Robert G. Sillars, Richard Charles Slisz, Charlotte Smallwood-Cook, Oscar Smukler, Robert B. Sommerstein, Gregory Stamm, Robert S. Stephenson, Milton J. Strebel, David L. Sweet. Dominic J. Terranova, Phillip A. Thielman, Gordon D. Tresch, Thomas V. Troy, Frederick D. Turner, Dimitri J. Tzetzo, Peter A. Vinolus, Joseph C. Vispi, Dale M. Volker, Matthew X. Wagner, Jr., James R. Walsh, John B. Walsh, Neil Weinberg, Peter C. Wiltse, Wayne D. Wisbaum, Raymond V. Wylegala, Richard D. Yellen, George M. Zimmermann, H.A. Terri Zionts. No, Counsel ! I don’t want to be your friend on Facebook ! Letter to the Editor Editor’s Note: The following letter appeared in the NY Daily Record recently in response to a column written by Michael Giuliano. Dear Mr. Giuliano: I read with interest your recent column entitled “A Tammany-style judgeship machine?” I don’t disagree with your premise that judicial elections are too political, and that candidates’ nominations are subject to the whim of party bosses to dictate the pool of potential judges. It is a terrible selection process which unfortunately has been ruled constitutional. But assuming we have to play by the existing rules of the game, why should a bar association, such as Monroe or Erie, not express its opinion on the qualifications of judicial candidates? You suggest, and here I must disagree, that the public is provided “nothing of importance” by the Bar Association, upon which to base their vote. Inherent in the present judicial nomination system, is that there is no merit selection committee to propose nominees from the prospective candidates. That being the case, and assuming that no one appears before sitting judges, or works with attorneys who have become candidates more than litigation attorneys and colleagues, why shouldn’t their collective opinion be “something of importance” for the voting public to consider? Bar Association ratings are there for the public’s consideration – to be given whatever weight the voter chooses. Our Judiciary Committee rating process is as apolitical as it can possibly be. Our committee membership is required to be divided equally by party affiliation, and no member is allowed to support, endorse or contribute to any judicial candidate in the current election year, or in the preceding election year. Membership on our committee is intended to be diverse by gender, eth- nicity and practice specialty. Members are selected from practice areas which put them in court on a regular basis. The reason behind the ultimate rating of a candidate cannot be easily articulated when a significant number of people are voting, with each one voting their individual conscience. Nevertheless, the ratings are based upon a consensus. If the public wishes to elect a candidate rated “not qualified,” so be it. Was it, as your column suggests, “ballot position, name recognition, or party affiliation?” We will never really know, as the reason for each vote is in the eye of the beholder. Again, I believe that the voice of the Bar Association is material and relevant and should be heard. I suggest that a fair representation of litigation attorneys, representing plaintiffs and defendants in civil actions, representing the People and criminal defendants in criminal matters, representing husbands and wives in matrimonial matters, would know more about who is and who will be a “good judge” than, perhaps, the butcher, the baker or the political column maker. Regarding your reference to our local Ken Case for County Court television ad, citing the censure of his opponent 20 years prior, such is not and was not, standing alone, deemed improper campaign material. What was deemed improper by our Bar Association was the harsh and sensational manner of delivering that message, in addition to its failure to refer to the opponent as Judge McLeod, a designation to which the Judge is entitled. While the censure information imparted was within the specific rules, why do judicial campaigns have to travel the same southerly path that political campaign advertising has taken? Is the public better served by a lack of judicial decorum in campaign material? The Rules of the Chief Administrative Judge, continued on page 4 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 • • February 2011 Bulletin D E A D L I N E • • • The next deadline for ALL Bulletin contributors and advertisers is THURSDAY, December 30, 2010. Call Susan Kohlbacher at Bar Headquarters for more information, 852-8687. PAGE 3 January 2011 | www.eriebar.org Women Lawyers Name Officers, 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]. Charles D. J. Case has joined the law firm of Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC as an associate, where he will focus his practice on commercial litigation. A graduate of St. Bonaventure University, Case received his JD from Case the University at Buffalo School of Law. He formerly represented mortgage lenders in foreclosure proceedings and title disputes and also has experience in government affairs and representing municipalities and legislative bodies in a wide range of matters. Case also worked for the New York State Assembly for four years and directed the government affairs department of a large, statewide organization. During law school, he served as vice president of the Buffalo Moot Court Board and as a member of the Special Education Law Clinic, which advocates for students with disabilities. Mucha Jennifer A. Mucha has joined Phillips Lytle LLP as an associate in its litigation group. She will concentrates her practice on business litigation matters, including representing emerging and established technology-focused companies. Mucha is the prior owner and operations manager of a Buffalo-based Internet technolo- gy developer. She serves on the board of infoTech Niagara and is the Buffalo representative of the Upstate Tech Corridor. Mucha also volunteers for the Make-A-Wish Foundation. A magna cum laude graduate of the University at Buffalo Law School, Mucha serves as an alumni coach for UB Law’s Jessup Moot Court, is a GOLD Group member of the school’s alumni association and a member of the Phi Alpha Delta Law Fraternity. Johanna Healy (formerly Johanna Dash), a partner at Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, has received the 2010 Pro Bono Award from the Judiciary of the Western District of New York for her “exemplary pro bono work Healy representing low-income clients in civil cases.” The award was presented by Hon. William Skretny and Hon. Jeremiah McCarthy at the 20th annual Bench and Bar Dinner recently sponsored by the Monroe County Bar Association and the Bar Association of Erie County. Healy is a litigation attorney who focuses her practice on insurance coverage and insurance defense including premises liability, lead paint, toxic torts, New York State Labor Law, products liability and subrogation for insurance carriers.” Maryann Saccomando Freedman and Michelle M. F. Schwach of Cohen & Lombardo have been named officers with the Association for a Buffalo Presidential Center (ABPC). Freedman, who is Of Counsel to the firm, has been elected Freedman inaugural president of the group. Schwach, an attorney at Cohen & Lombardo was elected secretary. The APBC is dedicated to exploring the legacies of Presidents Grover Cleveland and Millard Fillmore and the roles of other western New Yorkers who helped to shape our nation’s history. The Association will Schwach also focus on contemporary issues related to the presidency, including elections and national policies. They will provide educational programs, public symposia, electronic publications, and exhibitions to advance WNY as a center for the development of the U.S. Presidency throughout history. continued on page 20 The Company of The Erie County Bar Foundation exists to provide a helping hand to lawyers in need. DePrima Gina Marie DePrima has been named president of the Women Lawyers of Western New York (WLWNY). The group was founded in 1913 and is the first and oldest women’s organization in the region. WLWNY is dedicated to the advancement of women in the legal profession, scholarships for female law students, and charitable and educational causes related to women and the law. Treneeka Cusack will serve as vice president; Kimberly Colaiacovo as treasurer, Amy Hemenway as secSchultz retary, Noralyn Dillon as assistant secretary and Ayoka Tucker, Shannon Filbert and Mary Anne Connell as directors. Membership dues are $35 and all are welcome to join. Claudia S. Schultz has been awarded the Woman Lawyer of the Year Award by the Women Lawyers of Western New York. Schultz is currently the deputy administrator of the Assigned Counsel Program, where she has educated, trained, supervised and mentored countless criminal defense attorneys in Erie County. Prior to her arrival in Buffalo in 2004, Shultz spent 24 years in Nassau County as a criminal defense attorney for both private firms and the Legal Aid Society. Shultz was selected for the award due to her “commitment to the highest standards of legal advocacy for her clients and our community.” [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. Call 852-1777 to learn more. The need may be based on 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 www.eriebar.org | January 2011 continued from page 1 in Vegas, so he is available for future Judicial Candidate gigs. That all Bank and Insurance Companies phone systems answer “Hello, if you know your party’s extension, please dial it now” before another word is spoken, in English or Spanish. That judicial campaign parties in the Eighth Judicial District be for candidates running in the Eighth Judicial District. That our next President, Art Russ, be able to enjoy next year’s election campaign season more than we all did this year. That our State Legislature, if nothing else, pass a law that prohibits a magazine from sending a “your subscription is expiring” notice within the first eleven months after you have renewed your subscription. That Mike Daumen, Kurt Sajda, Jeff Spencer, Mike Nowak, Jim Arcadi and Sharon Gerstman enjoy their retirements from public service, and that the state add three years of contributions to the 401Ks of us private practice attorneys. That Lipsitz Green Scime Cambria LLP continue to believe that I work there and continue to be supportive of my time and effort for the Bar Association and its members. That the new Special Commission on Judicial Compensation sees fit to award our state Judges the raises that they have waited over a decade to receive. (Kindly note that’s S-C-H-W-A-R-T-Z.) That Future Judicial Candidates understand that the public deserves and expects more of their campaign ads than they do of party political ads. That the Erie Institute of Law, along with live seminars, CDs, DVDs, and soon-to-be Webinars, offer CLE presentations in tablet or gel-cap form. That the rhythmic citations of Jeff Spencer keep coming – as he is the Bar Bulletin resident poet, though now retiring, we have appreciated his efforts – and we certainly want to be sure he knows it. That very soon, light bulbs start popping in My Head for my final Bar Bulletin columns. That Judge NeMoyer, as the only - or one of two Supreme Court candidate(s) next year gives the roastmaster at the Judicial Candidates Luncheon more to work with than Judge Fahey did this year. ‘Twas the night before Judicial Welcoming and all through the Courts, That Mark Grisanti earns as a legislator the same respect that a criminal defense attorney deserves. That health care providers called as witnesses by Personal Injury Attorneys give them a no-fee guarantee (or at least a reasonable fee). No cases were being tried, not even the torts We all will be celebrating, lawyers, clients and judges Then it’s back to the courtrooms to settle old grudges. On January 11, we welcome six judges some old and some new At County Hall’s Ceremonial Courtroom up on floor two Manias Coaxed Out of Ex-Presidential Cave continued from page 1 All the judges will attend, in their robes, what a sight! Join us, but ‘til then, to our members, staff and families Happy Holidays and good night. [B] Former BAEC president Hon. David J. Mahoney served as editorial cartoonist for the Bulletin from 1960 until his death in 2008. Manias began doing the annual presidential caricatures which line the walls at Bar Headquarters after Justice Mahoney’s passing. He promises to supply us with cartoons “as long as there is light in the cave and lawyers and judges continue to be funny.” Manias’ inaugural cartoon appears on page 2 of this issue. The Mahoney cartoons will continue to appear from time to time “whenever snow blocks the entrance to the cave, or if lawyer advertising is removed from TV,” Manias said. [B] Feroleto to Receive Kulick Award continued from page 1 dential and members remain anonymous. If you or a colleague need assistance, please call 852-1777 for further information. Feroleto was selected to receive the award “because of her outstanding support for the efforts of the Committee to work with attorneys suffering from alcoholism or other substance abuse,” according to a spokesperson for the Lawyers Helping Lawyers group. Justice Feroleto was elected to the New York State Supreme Court in 2004. In September of 2009, she was appointed as Administrative Judge of the Eighth Judicial District and continues to serve in that capacity, in addition to handling her Supreme Court civil caseload. The Eighth Judicial District includes the western New York counties of Allegany, Chautauqua, Cattaraugus, Erie, Genesee, Niagara, Orleans and Wyoming Counties. It is one of the largest in the state of New York, containing 11 city courts and 197 town and village courts. The award is named in honor of Buffalo attorney Sanford C. “Sandy” Kulick, a Buffalo attorney and longtime member of the Lawyers Helping Lawyers Committee. “His dedication and love for attorneys in recovery was inspirational,” according to a statement about the award, which is “given only when there is a deserving candidate” and not necessarily on an annual basis. Justice Feroleto was the president of the State Supreme Court Justices Association of the Eighth Judicial District in 2009. She was the recipient of the Women Lawyers of Western New York Lawyer of the Year award in 2006 and is a former president of the Western New York Trial Lawyers Association. She has served as an officer of the Western New York Trial Lawyers Association, the Bar Association of Erie County, and the University at Buffalo Law Alumni Association. For many years, Feroleto has been a tutor with Lawyers for Learning at School 18. She is a graduate of Georgetown University and earned her JD at the University at Buffalo School of Law. In 1991, she became the first female partner in the Buffalo law firm of Brown & Kelly, LLP, where she acted as coordinator for the firm’s involvement in the Volunteer Lawyers Project, Inc., winning an award from VLP in 1999 for the firm’s substantial contributions to the program. [B] Letter to the Editor continued from page 2 in Section 100.5A(4)(a) provide that a judge or a nonjudge candidate for election to a judicial office “… shall maintain the dignity appropriate to judicial office and act in a matter consistent with the impartiality, integrity and independence of the judiciary….” 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 $40 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. Our Judicial Election Oversight Committee found, in the manner of its presentation, the TV ad to be outside the dignity appropriate to judicial office. That finding is consistent with the committee’s charge, “to ensure that campaigns for judicial office are conducted in a dignified manner.” Our local candidates agreed, in writing, to campaign accordingly. I don’t see how anyone is better served otherwise. Very truly yours, SCOTT M. SCHWARTZ President PAGE 5 January 2011 | www.eriebar.org Annual Food Drive Effort to Focus on Monetary Donations Welcome New Members The Bar Association of Erie County is pleased to welcome the following new members: Christina Akers Carol A. Becker Steven G. Biltekoff Allison Bozinski Stephanie J. Calhoun Michael S. Das William A. Evans, III Michael Hecker Ashley J. Litwin Barbara H. O’Neill Matthew A. Parham Tyson R. Prince Peter J. Savage Stefanie Wiegand Kimberly Worling It’s great to belong to something this good. 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 20 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 will again focus primarily on monetary contributions. Law firms that wish to collect non-perishable food items may 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 mailing your donation to the Food Bank of Western New York, 91 Holt Street, Buffalo, New York 14206. Checks should be made payable to the Food Bank of Western New York and received by Valentine’s Day, Monday, February 14th. All donors will receive written confirmation of their contribution directly from the Food Bank. PAGE 6 www.eriebar.org | January 2011 Introducing the Attorney Grievance Committee By Deanne M. Tripi, Chair Eighth Judicial District Grievance Committee The goal of this article and future monthly articles to come is to give attorneys a better understanding of the Attorney Grievance Committee, the attorney grievance process, rules frequently implicated, and advice to avoid a grievance complaint. The Attorney Grievance Committee of the Eighth Judicial District is an auxiliary agency of the Appellate Division, Fourth Judicial District. The Committee investigates complaints containing allegations of attorney misconduct and ethical rule violations. “Failing to Judicial Department located in Buffalo, Rochester and Syracuse. The Grievance Committee is also comprised of 21 volunteer members, which includes the chair, Deanne M. Tripi, the vice chair, Dale Robbins and three members who are non-lawyers. The attorneys appointed to the Committee for the Eighth Judicial District are from Allegany County, Chautauqua County, Cattaraugus County, Erie County, Genesee County, Niagara County, Orleans County and Wyoming County, all appointed by the Presiding Justice of the Appellate Division to serve threerespond to year terms. a complaint and/or failing to cooperate with a Grievance Committee investigation is sanctionable and frequently compounds and aggravates the severity of the allegations.” The Eighth Judicial District Grievance Committee has four staff attorneys; Roderick Quebral and Margaret Callanan are principal counsel and Susan Eagan and Guy Giancarlo are associate counsel. The Committee has three investigators, as well as a very hard working staff of employees who participate in ensuring the efficiency, professionalism and confidentiality of the Grievance Committee’s work. Gregory Huether is the Chief Counsel of the three different Grievance Committees that are contained within the Fourth When a complaint is filed with the Grievance Committee, a response from the attorney the complaint is concerning (the respondent attorney) is frequently requested. Please do not ignore letters from the Grievance Committee. Failing to respond to a complaint and/or failing to cooperate with a Grievance Committee investigation is sanctionable and frequently compounds and aggravates the severity of the allegations before the Grievance Committee. There are approximately 2,400 to 2,500 complaints filed each year in the entire Fourth Department, which consists of the Fifth, Seventh and Eighth Judicial Districts. The Eighth Judicial District has approximately 1,100 to 1,200 complaints filed each year, which represents about 46 percent of the filings in the Fourth Department. A large majority of complaints filed are dismissed. However, those not dismissed are either presented to the chair for determination or to the Committee. The Fourth Department is unique in that the respondent attorney may appear before the Committee and orally present their position, as well as answer questions from the Committee. The Committee then deliberates and can do the following: Dismissal of the Complaint: When the evidence produced does not establish probable cause for a finding of professional misconduct, the Committee may vote to dismiss the complaint against the respondent attorney. Letter of Caution: This is a non-disciplinary and non-public disposition of a complaint which informs the respondent attorney that the conduct complained of has violated the spirit, if not the letter, of an ethical standard. The letter is meant to educate the attorney. A Letter of Caution is reserved for minor violations of the ethical standards not resulting in detriment to the public. Letter of Admonition: This is a non-public discipline by the Committee and does not interrupt the respondent’s privilege to practice law. Admonition represents a violation of the ethical rules and is the least serious form of disciplinary sanctions. Referral to the Appellate Division: If the evidence before the Committee demonstrates probable cause to believe that serious misconduct has occurred, referral to the Appellate Division is appropriate. If the Committee votes for the Fourth Department to hear the matter, a formal petition is filed against the respondent attorney and the attorney must then file an answer. The Appellate Division may then dismiss the petition, return the matter to the Committee, censure, suspend or disbar the respondent attorney. [B] WE ARE NOW BEGINNING WORK ON THE 2011-12 ATTORNEY DIRECTORY. If you have ANY CHANGES to your current listing, you MUST submit them no later than MARCH 1. See page 5 of the current Directory for further details. New York’s Voluntary Disclosure and Compliance Program By Diane M. LaVallee, Senior Investigative Counsel, New York State Department of Taxation and Finance; and William J. Comiskey, Partner, Hodgson Russ LLP and former Deputy Commissioner of the Department of Taxation and Finance. Imagine Mr. Smith and Mr. Jones have each failed to file their New York state income tax returns for the past four years. Both owed substantial amounts of money each year. Both are potentially facing substantial civil penalties and interest on top of the tax owed. Both are facing possible felony and misdemeanor charges and criminal prosecution by the state of New York. Mr. Smith, was, in fact, publicly charged and convicted of criminal tax fraud, and faced sentencing as well as civil penalties. Mr. Jones, on the other hand, confidentially repaid the tax without civil penalty and was not prosecuted. Why were these two people, in identical situations, treated differently? Because Mr. Jones’ attorney advised him to take advantage of New York’s Voluntary Disclosure and Compliance Program (“VDCP”) before the Tax Department found out about his tax liabilities. The scenario above is not fiction. Repeatedly, individuals and businesses under criminal investigation have had their criminal cases closed because prior to the commencement of the investigation (or civil audit), they had applied for and were accepted into VDCP. One need not retain an attorney or a representative to participate in this program. VDCP has also been hugely successful and a great source of revenue for the state, bringing in over $155,000,000 since its inception, with a projected $75,000,000 in proceeds this fiscal year alone. Over 5,600 people and businesses have applied for the procontinued on page 9 PAGE 7 January 2011 | www.eriebar.org Bar Association of Erie County Professional Ethics Opinion Topic: Disclosure of confidential information Digest: A lawyer who obtains information from a prospective client concerning the physical well being of the client’s adult parents may disclose such information in order to protect the physical well being and safety of the parents. Rules: 1.18, 1.6(b)(1). QUESTION May a lawyer, who obtains information from prospective clients concerning risks of physical harm and well being to the client’s elderly parents at the hands of a sibling, but who is not later retained, disclose that information in an effort to seek protection for the elderly parents? FACTS The lawyer was approached by several adult children of two elderly parents. They described what they believed to be a situation of elder abuse at the hands of another sibling, including financial, emotional and physical abuse. Due to disagreements among the siblings, the lawyer has not been retained. OPINION Subject to exceptions not relevant here, Rule 1.18 of the New York Rules of Professional Conduct expressly provides that “(b) even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation….” Rule 1.6 directs that a lawyer may not knowingly reveal confidential information, which is defined in the Rule as “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.” Given the details imparted by the prospective clients to the lawyer, such information likely would be characterized as “confidential information” under the Rule. The enactment of the Rules of Professional Conduct in 2009 added a new provision, at Rule 1.6(b)(1) which permits a lawyer to “. . . reveal or use confidential information to the extent that the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm….” If the information, therefore, does not fall within the definition set forth in Rule 1.6, then it is not “confidential” and may be disclosed. If, however, the information can be deemed “confidential,” and if the lawyer “reasonably believes” that the information will “prevent reasonably certain . . . substantial bodily harm,” the information, though “confidential,” nonetheless may be disclosed by the lawyer. CONCLUSION A lawyer who receives “confidential information” from a prospective client may disclose that information if the lawyer reasonably believes it necessary in order to prevent reasonably certain death or substantial bodily harm. [B] Meet the Ethics Committee By Thomas S. Wiswall, Chair The ethics of persons in the public eye, including many in the legal profession, are coming under increasing scrutiny. Those viewed as falling short are a favorite subject of media attention. The consequences of ethical lapses can be severe. And as the focus on ethics has intensified, the growing complexity of the applicable rules makes compliance challenging. With the adoption last year of the New York Rules of Professional Conduct in place of the Code of Professional Responsibility, and with the mushrooming growth in ethics opinions interpreting the rules, understanding the sometimes counterintuitive ethics rules applicable to the legal profession has become more problematic than ever before. opinion is drafted, and further deliberations result in a written recommendation to the board of directors. The committee’s recommendation is then considered by the board, which is responsible for adopting the final formal opinion. If considered to be of general interest to the profession, a formal opinion may be published in the Bulletin. All responses, formal and informal, are provided free of charge. There are a number of limitations in the scope of the Ethics Committee’s acceptance of inquiries for consideration. The Committee generally limits its deliberations to inquiries from attorneys about the application of the rules of ethics to their own conduct. When an attorney instead presents a complaint about the conduct of another attorney, he or she may be advised to consider presenting the complaint to the appropriate attorney grievance committee. Similarly, the Ethics Committee generally refrains from giving opinions on As one of its services to the bar, the BAEC has long matters that are pending before courts offered guidance to its members on or other tribunals in ongoing adversary matters of legal ethics. The Bar proceedings. Finally, the Committee Association’s Committee on generally refrains from recommending Professional Ethics is composed of “The Committee is opinions on issues involving substantive volunteer members from diverse law rather than legal ethics. composed of volunteer practice areas with experience in interpreting the rules of ethics and In addition to making recommendamembers from diverse with an interest in promoting ethical tions as to the application of the Rules behavior by attorneys in our compractice areas with an of Professional Conduct in particular munity. The Committee, together situations raised by inquiring attorneys, interest in promoting with the directors of the bar associthe Committee also works with other ation, in their ongoing efforts to ethical behavior by attorBar Association entities, such as the Erie assist our attorneys in becoming role Institute of Law, to present Continuing neys in our community. ” models of ethical behavior, encourLegal Education seminars from time to ages the submission of inquiries time on matters relating to legal ethics. relating to matters of legal ethics. Such CLE programs are announced in The procedures used in addressing the Bulletin, on the Bar Association’s such inquiries are described below. Web site (www.eriebar.org), in mailings, The procedures are intended to be flexible, so as to fit the needs of the inquiring attorney for a prompt, helpful response, while also serving the legal community as a whole by generating written formal opinions. Thus, when time is of the essence, inquiries can be initiated informally by a telephone call, either to the Bar Association office or to the current chair of the Ethics Committee. Such inquiries normally provide a fast, confidential response. When research and analysis in addition to such an informal talk-through appears necessary, or when a formal written opinion is desirable, the Committee will address the inquiry at their monthly meetings. Generally, one of the committee members is assigned the inquiry for research and analysis; a recommended and through other publicity. The Ethics Committee welcomes participation by additional lawyers interested in promoting the understanding of and adherence to the rules of ethics. Although membership on the Committee requires approval by the president of the bar association, any lawyers who would like to be considered for membership on the committee are urged to inform the Bar Association or me of their interest. Elsewhere on this page, you will find a recent ethics opinion for your review. The next several editions of the Bulletin will contain similar opinions which I hope you will find helpful. As always, your questions and comments are invited and encouraged. [B] PAGE 8 www.eriebar.org | January 2011 cyberlaw: the brave new e-world By Anne F. Downey Craigslist Legal Issues Craigslist is an online network of free classified ads. If you want to sell a used set of law books or the hideous oil painting that the managing partner insists on hanging in your firm’s reception area, you can post an ad on Craigslist and hope to connect with a buyer. Craig Newman launched Craigslist in 1995 as an email distribution list among friends in the San Francisco Bay area. The next year, the service switched from e-mail to a Web site at www.craigslist.org. By 2003, the service had expanded into 14 cities, and today it operates throughout the U.S. and in many other countries. According to Wikipedia, the site serves over 20 billion page views per month, putting it 33rd overall among Web sites worldwide. The Buffalo-area listings on Craigslist can be found at http://buffalo.craigslist.org/ Most ads can be posted without charge, but there are a few exceptions, including job postings in select cities (not Buffalo), brokered apartment rental listings in New York City, and “therapeutic services.” A quick check of the Therapeutic Services category indicates a heavy emphasis on massage and “bodywork.” Hmm. Postings are limited to one metropolitan area; you cannot post an ad across the entire nationwide network. Postings may cover a wide variety of matters, such as merchandise or services for sale, community events, personals, housing, jobs, résumés, and discussion forums. Across the U.S. and locally, some attorneys are using Craigslist to post law firm ads. The ads can be seen by clicking on the Legal Services link. One local law firm recently ran an ad under the heading “Grieved? Discipline Problems?” and another local attorney had an ad under “Criminal and Immigration Law Attorney Accepting New Clients.” In the ad copy itself, some law firms include their address as required by the ethics rules, while others do not. All the ads of local attorneys use the ATTORNEY ADVERTISING disclaimer. The Legal Services link includes a number of postings that appear to be from non-lawyers. A recent posting by New York State Liquor License Services says “DO YOU NEED YOUR NYS LIQUOR LICENSE FAST? WE CAN HELP!” Another company’s colorful posting includes “We will stop Trustee sale and continue to stop it, letting you live in your house…WE HAVE STOPPED MANY TRUSTEE SALES, WE SURE AS HELL CAN STOP YOURS!” CENSORED: Questionable Postings Despite the deactivation of Adult Services, the Craigslist link for Therapeutic Services continues, and similar ads are cropping up under the Personals category. Craigslist CEO Jim Buckmaster noted that taking down the Adult Services link was unlikely to stop the ads, saying “it is not as though we would be getting rid of the ads – we would be dispersing them through other parts of the site.” Inappropriate postings may be flagged by other users. When a posting is flagged by a certain number of users, the posting is taken down. The magic number of flaggings is unknown except to Craigslist staff. Items are supposed to be flagged only if they are misplaced, prohibited or spam. Nevertheless, sometimes persons flag a posting on inappropriate grounds, such as a competitor trying to take down the competition’s legitimate posting. There is a Flag Help Forum, but oddly enough, it is run by volunteers not affiliated with Craigslist. The Forum’s postings are unmoderated and sometimes evildoers known as “trolls” post malicious statements in the Forum. Over the past few years, Craigslist has come under fire for allowing postings related to prostitution and similar activities. The original name of the link in question was Erotic Services. In March 2009, a Brooklyn Adult Services aren’t the only legal headache for man was stabbed to death allegedly by a teen who had Craigslist. Craigslist is also waging a legal battle with answered an Erotic Services ad. eBay. In August 2004, eBay purchased a In April 2009, Philip Markoff, a 25 percent interest in Craigslist. Four medical student at Boston years later, eBay sued Craigslist, claiming University, was arrested for the that Craigslist executives unfairly diluted “One posting reads: murder of a masseuse he allegedly eBay’s interest and caused eBay to lose its met through the Erotic Services seat on the board. In September 2010, the WE HAVE link. In May 2009, a Queens prosDelaware Court of Chancery ruled that titution ring that advertised on Messrs. Buckmaster and Newmark vioSTOPPED MANY Craigslist was busted by New lated their fiduciary duties to eBay by York authorities. That same adopting a rights plan. The Delaware TRUSTEE SALES, month, Craigslist changed the court noted, however, that a state court in Erotic Services name to Adult California will be deciding – in a counterServices and set up a team of WE SURE AS HELL suit brought by Craigslist – whether eBay attorneys to review the postings. unlawfully made use of confidential inforNevertheless, heavy criticism conCAN STOP YOURS!” mation, i.e., whether eBay invested in tinued from many sources, and Craigslist in order to spy upon and gain eventually the attorneys general an advantage over Craigslist. from 18 states (not New York) Another legal issue arose earlier this demanded that Craigslist remove year. The controversy related to postings that the Adult Services link. On September 4, 2010, offered to sell tickets to Shakespeare in the Park perCraigslist suddenly deactivated the Adult Services link formances in New York City. The tickets were free but and posted a “CENSORED” banner in its place. By limited in number, and operators were snatching up September 8, the Adult Services link was completely the tickets and selling them on Craigslist for $100 or removed. more per pair. In June 2010, New York Attorney Could Craigslist have told the state attorneys genGeneral Andrew Cuomo announced that Craigslist had eral to take a hike? The legal issues are complex. One agreed to disallow any further postings related to the of the laws that Craigslist has cited in its favor is tickets. Section 230 of the Communications Decency Act, The legal issues and battles related to Craigslist which protects online service providers from actions are not likely to end any time soon. Craigslist is another based on third-party content. On the other hand, innovative online network that is raising fascinating Section 230 explicitly exempts from its protection any legal issues, along with considerable opportunities and claims under criminal law. challenges for lawyers. [B] PAGE 9 January 2011 | www.eriebar.org policy and technical problem, there are several key elements to be considered. lost in (techno) space By Martha Buyer Spectrum Utilization and Interference: Issues for a Wireless-Driven World As the New Year begins, many of us are sporting and using- new wireless communications-driven gadgets that were welcomed into homes and businesses during the holiday season. In fact, the expansion in use of wireless devices is expected to grow by as much as 37 times over the next five years, according to research done by Cisco Systems and the Yankee Group, among others. Every day, we can communicate from an incredible array of locations (including close to the summit of Mt. Everest) without the limitation or bother of being tethered by a cord. The issue that the ubiquitousness of wireless devices has created is that spectrum, which is the highway that enables these connections, is a limited commodity that’s supporting an increasingly unlimited number of service offerings. These range from radar to broadcast radio to handheld mobile devices to beepers, and include just about everything in between. Spectrum is a limited commodity. Once it’s gone (either in use or allocated for future use), it’s gone. Given the huge growth (both actual and anticipated) in the wireless sector of telecommunications, the only option to support the onslaught of additional wireless services is for the National Telecommunications and Information Administration, the FCC (which is respon- New York’s Voluntary Disclosure and Compliance Program continued from page 6 gram, with the vast majority of those being accepted by the Tax Department. Over 3,300 of those have reached agreements with the department. The program was created by statute in July, 2008 (Tax Law Section 1700) as a “flip side” to the department’s ramped-up enforcement efforts. Since its inception, it has provided thousands of New York taxpayers with the opportunity to become tax compliant and get out from under the burden of many old tax liabilities while avoiding any penalties and possible criminal prosecution. It provides strong protections and enhanced benefits to those who self-disclose delinquent tax liabilities that are unknown to the department. In addition, it is easy to understand and easy to access and it is available to almost all taxpayers. Taxpayers or their representatives apply online, answer four simple questions to determine eligibility and then tell the department, in their own words, who they are and what they owe. The program is designed to help taxpayers “clean the slate” on old tax debts and become good tax citizens in the future by getting a fresh start. The primary goal of this program is to help thousands of taxpayers clear up old state tax debt and, more importantly, become tax compliant in the future. To accomplish this important objective, the program guarantees that taxpayers can make their disclosures to the department, confident that the information they give to us – including their identity – will never be used against them or shared with any other agency if they withdraw their application or if they join the program and comply with their obligations. All Information Remains Confidential The department takes this statutory requirement seriously. Neither the taxpayer’s identity nor the substance of their disclosure is shared outside the unit administering the program. The information provided continued on page 21 sible for the licensing of such spectrum) and other affected government agencies to work together to raise the level of spectrum efficiency to a higher level while minimizing interference. Additionally, the sale of spectrum by the federal government raises a decent chunk of change. A 2008 auction of some prime real estate spectrum in the C Band raised a whopping $19.6 billion dollars. In late June, President Obama directed the NTIA, an agency which operates under the Department of Commerce, and the FCC to work together to identify and secure 500 MHz of additional spectrum during the next 10 years to support the burgeoning industry without harming essential users of such service including, among others, the Department of Defense, the National Security Agency and the FAA. The first “found” spectrum is 115 MHz which will be secured from two distinct sources. The first segment of 100 MHz currently is allocated to federal radar bands within the U.S. that are beyond the reach of radar currently in use. The second segment of spectrum is the result of the consolidation of spectrum bands currently used for meteorological observation systems. (There’s a weather joke here, but I’m not biting). There also remains a great deal of un- and under-utilized spectrum which is currently assigned to commercial users, including television stations and satellite phone service providers. Reallocation of this spectrum lies up ahead, although such action is not expected to happen in the near term (one year). In any case, freeing up unused spectrum so that it can be put to work is in everyone’s best interest. Increasing Interference on the Horizon However, as more devices use the spectrum that is available, the problem of interference will increase. Interestingly, at least to me, is the fact that harmful interference is caused not by transmitting devices but rather by receivers. As various governmental and academic experts confront what’s likely to be a significant First, many wireless devices are not licensed. In 2006, FCC Commissioner Michael Copps said “The genius of this unlicensed technology is that no central authority controls or manages how and where these networks spring up. Instead, any private or commercial operator who sees a need for a local Wi-Fi network may build and operate one. The price that Wi-Fi users pay for this freedom is that they… must accept interference from other devices in the unlicensed bands. But the nation’s half-decade of experience with this new technology has made it quite plain that this trade-off is more than worth it. When it comes to providing broadband over the unlicensed bands, the airwaves are truly the people’s airwaves.” However, in the four years since Commissioner Copps’ comments, attitudes may have changed, particularly as more people scramble for more spectrum. One of the problems is that since such services are unlicensed, interference problems are difficult to resolve because it’s virtually impossible to find someone to hold accountable for the interference. Given that interference is time-sensitive, the amount of time necessary to identify, locate and work with an unintentional bad actor (not every entity that creates interference is aware of the problem it creates) makes speedy problem solving virtually impossible. Secondly, interference isn’t always a deal-breaker. As Ellen Goodman, a Professor of Law at Rutgers said in a recent paper, “harmful interference should be a yield sign, not a stop sign.” Her position is that harmful interference (and the word “harmful” is important) should be both “a tool to define rights AND a tool to assign liability [for interference].” Secondly, an unwillingness or inability to deal with interference problems created by receiving devices places obligations on those who aren’t even aware of the problems that their equipment is causing. In other words, the entity wreaking havoc on a wireless operation may have no idea about the consequences of its seemingly harmless devices. For the time being, the FCC has not set standards which monitor or manage receiver performance. Given that the FCC is probably the only entity that might be successful in seizing such an opportunity, this too creates additional challenges for managing interference. There is an Italian proverb which reads “the best armor is to keep out of range.” While this is true, in a wireless world, it’s neither practical nor possible. With this in mind, creative academicians and regulators must look to find innovative and practical ways to utilize spectrum as efficiently as possible, while simultaneously minimizing interference. [B] PAGE 10 www.eriebar.org | January 2011 more than $1,000 in 2011). After exhausting the TWP and “three-month grace period,” all future wages for the life of their BOND project participation will be subject to the $1 for $2 offset formula. in the public service By James R. Sheldon, Jr., Neighborhood Legal Services, Inc., Supervising Attorney Social Security Awards NLS Demonstration Grant; “BOND Project” Offers Alternative for Disability Beneficiaries The Social Security Administration has awarded Neighborhood Legal Services, Inc. (NLS) a seven-year grant, totaling $1.7 million, to serve as the lead agency for the “Go BOND” (Benefits Offset National Demonstration) project in western New York. NLS will team with six partners to provide both short-term and long-term work incentives, counseling, and related services to an estimated 2,000 to 3,000 beneficiaries in 25 counties of western and central New York and five counties of northern Pennsylvania. SSDI Beneficiaries Face Loss of Benefits Based on Earnings The Social Security Disability Insurance (SSDI) program pays monthly benefits to adults who have paid into the trust fund through payroll deductions. The SSDI applicant must earn enough “credits” (typically by working in five of the last 10 years) and meet a very strict disability test. Some adult dependents, including disabled adult children and disabled widows/widowers, can also qualify for SSDI payments against the wage earner’s account. The average SSDI payment is about $1,100 per month, with some beneficiaries getting as little as $300 and some getting more than $2,000 per month. SSDI beneficiaries are given a nine-month trial work period (TWP), during which they can earn any amount of money and still qualify for SSDI. After nine TWP months (in 2011, months with $720 or more in gross earnings), the individual who performs “substantial gainful activity” (SGA) by earning more than $1,000 gross per month ($1,640 if statutorily blind), will receive three more benefit checks and then lose their entire SSDI payment. Several work incentives can potentially soften the blow of this “all or nothing” rule (including the right to return to benefits status if earnings fall below the SGA level), but sustained SGA-level earnings will mean the loss of the entire SSDI payment along with any payments to dependents. (For more information on the current rules, see Sheldon, J. & Lopez, E., Social Security Disability Insurance, Medicare and Work: A Review of the SSDI and Medicare Rules Related to Work Activity. Guidelines for Proactively Using the SSDI and Medicare Work Incentives to Help Individuals with Disabilities Maximize Independence through Work, available at www.ilr.cornell.edu/edi/nymakesworkpay/docs/SSDI% 20Brief-2.0.pdf.) The current SSDI work incentives work very well for some individuals. In fact, NLS, through its Work Incentives and Benefits Advisement Project, has provided no-cost benefits counseling for many individuals who then have successfully moved from benefits status to self-sustaining employment. Unfortunately, many others, faced with the loss of all their SSDI benefits by working for as little as $1,000 per month, have shied away from any substantial work. By working as little as 30 hours per week at $10 per hour, the $1,290 of gross wages (30 x $10 x 4.3 weeks) would, in most cases, eventually result in the loss of SSDI and dependents’ benefits (if any). The BOND project will offer individuals a much better incentive to seek employment, knowing they would face only a gradual decrease in SSDI payments as their wages increase. BOND Participants Protected by Better Work and Benefits Rules If an individual is offered an opportunity to participate in BOND, elects to do so, and is then randomly assigned to one of two participant groups, his or her work activity will be subject to the following rules: • The participant will still be allowed a nine-month trial work period under the usual rules, with the ability to retain both SSDI checks and paychecks. • The participant will then receive three more SSDI checks, under the usual rules, when he or she performs substantial gainful activity (i.e., by earning • Under the benefits offset formula, “countable wages” up to the SGA level for the year in question will not affect the SSDI check. Gross wages can be reduced by certain allowable amounts, like impairment-related work expenses, to determine if countable wages are more than the SGA level. • For every $2 of countable gross wages above the monthly SGA level, the SSDI payment is reduced by $1. • So long as the participant qualifies for any SSDI payment, the benefits of all dependents (including those of minor children) will continue. However, if the SSDI payment in a month is reduced to $0, all dependent beneficiaries will also lose their benefits in that month. This benefits offset formula is best understood through an example: Mary has a mental illness and was receiving $1,100 in monthly SSDI and her two minor children were each receiving $275 per month when Mary went to work. Mary worked for seven months at the same rate of pay, 30 hours per week at $10 per hour ($1,290 per month gross) when she officially enrolled in the BOND project. We assume that Mary has no impairment-related work expenses or other expenses that would reduce her countable wages when measuring them against the $1,000 SGA level. Under the usual rules, Mary would have two months left on her nine-month trial work period and would lose her right to an SSDI check after completing the TWP and three-month grace period. This means Mary would get five more SSDI checks and then receive no SSDI as she continued to work at this rate of pay. Both children would also lose their $275 dependent checks after the three-month grace period. By earning $1,290 per month, Mary and her children stood to lose $1,650 in combined Social Security benefits. As a BOND participant, Mary’s wages after the TWP and grace period will be subject to the special benefits offset test. First, Social Security will estimate her annual wages (12 x $1,290 = $15,480). If the total exceeds the annual SGA level (12 x $1,000 = $12,000), the excess amount is divided by 12 to determine how much each month is subject to the $1 for $2 offset test. Mary will have $3,480 in projected excess income or $290 per month that is subject to the offset test. Here is how Mary’s SSDI check will be calculated: $290 Gross excess wages per month -145 Fifty percent excluded ($1 for $2 offset) $145 Countable wages $1,100 Regular SSDI payment -145 $ 955 Countable wages New SSDI payment amount Mary has now earned $1,290 per month and her SSDI check is reduced by $145, with her children’s benefits untouched. BOND Participants to Receive Incentives Counseling Services Individuals recruited by Social Security’s contractor, Abt Associates, will be assigned to a control group (getcontinued on page 16 January 2011 | www.eriebar.org PAGE 11 News from Kent, Our Sister City in Great Britain By Jonathan Smithers I recently read a quotation which went along the lines of “there is plenty of room on the extra mile.” This reminded me of a question raised by my late father when, as a youngster, he asked me about the tune that I was humming. I admitted that it was “I am in with the in crowd.” I then received a lecture about how the people that get things done are not those that follow the herd. They don’t necessarily have to be leaders – although they often turn out to be – but are usually those not afraid to think their own thoughts. Thus being with the “in crowd” was not what I should be striving for! As a teenager, I am sure that I was quite resentful of this parental direction, however true and necessary the sentiment. I suspect my father knew that but, like all good parents, said it anyway in the hope that it might sink in somewhere. Well, judging from the fact that I am writing this well over 30 years later, his hope was not in vain. I have recently signed off on a piece of work for the Law Society of England & Wales relating to real estate contracts. The idea has been around for a long time, but I and a couple of others kick-started it as a first draft. It has been looked at by many people and pulled into what should now be an industry-standard document for all residential property transactions in the country. As a very interested observer, I think without exception all the people who actually contributed had taken the time and trouble to read the whole document and make an informed comment. It became very clear to the authors that some of the correspondents simply wanted a voice without reading that upon which they were commenting; others used it as a soapbox to voice an opinion, sometimes at a complete tangent to the job at hand. A thorough debate has, I hope, brought us to a position where professionals can rely on policies and procedures that have been well thought through and are designed to assist not only themselves, but more importantly their clients. The extra mile that I was talking about? Those of us who commenced the project were not compelled to do so. Nobody twisted our arm or forced us, but we saw an opportunity and have run with it. Although we asked for and received opinions, because we went out on our own, we had the freedom to push boundaries and explore how we might change things for the better. Time will tell whether we can overcome some entrenched positions – you all know what lawyers are like! [B] Become a fan of your favorite Bar Association on Facebook, follow us on Twitter, and join our group on LinkedIn. PAGE 12 www.eriebar.org | January 2011 The Surrogate ordered a hearing, at which Robert refused to participate. The sisters put in evidence that their brother as trustee received $127,000, which was entirely unaccounted for. They also put in evidence that Robert had engaged in day trading with the trust’s assets. death and taxes By Peter J. & Jillian E. Brevorka Recent Surrogate’s Court Decisions and Other Estate Planning Matters Matter of Woolworth, 76 A.D.3d 160 (4th Dept., 2010) This case deals with creation of a Supplement Needs Trust (SNT) by court order to shelter a tort recovery. Generally speaking, a trust funded by an individual’s own assets (a so-called self-settled trust) will disqualify the individual from qualifying for Medicaid. However, 42 USC 1396p(d)(4)(A) and N.Y. Social Services Law §366(2)(b)(2)(iii) provide that a self-settled SNT will not disqualify an individual if: (1) the individual is under 65 and disabled; (2) the trust was created by a parent, grandparent, or guardian of the individual, or by a court; and (3) the trust provides that at the death of the individual, Medicaid will be reimbursed for assistance given to the individual. Ronald Woolworth died as the result of medical malpractice. His widow, as administrator of his estate, commenced an action seeking damages for wrongful death and conscious pain and suffering. The action was settled, and $516,876 was paid into the decedent’s estate, of which the widow’s share was $283,438. The widow was disabled and on Medicaid. Since she had no parent or grandparent living, and no guardian who could create an SNT for her, her lawyer filed a petition in the Surrogate’s Court seeking an order of the court directing that her share of the estate be placed in an SNT drawn in conformity with the language contained in EPTL 7-1.12. There then occurred an exchange of correspondence between the Surrogate and the widow’s lawyer, in which the Surrogate indicated his distaste for SNTs to shelter resources of a person on Medicaid. This culminated in a letter in which the Surrogate wrote that he would only permit a trust of $100,000, and said: In the end, I believe that I have a responsibility to the public fisc that takes priority. I recognize that to have someone pay from their own resources when somehow, [some way] we can get the government to pay is an old-fashioned thought but it is a thought I agree with. ...[I]f my only choice is to establish a trust with the entire amount or to decline the request, my inclination would be the latter. The Surrogate denied the petition to the extent that it sought the approval of an SNT funded by the widow’s entire share of the settlement. The widow appealed. In an opinion by Justice Samuel Green, the Appellate Division unanimously reversed and granted the petition in its entirety. The Fourth Department held that, while the decision of whether to establish or approve an SNT is discretionary with the Surrogate, in this case the Surrogate had abused his discretion by denying the request. The Court reviewed the background of SNTs, and especially noted the Court of Appeals’ discussion in Matter of Abraham XX, 11 NY3d 429, that the SNT represents a bargain struck between the SNT beneficiary and the state in which the state agrees to continue providing Medicaid assistance in exchange for the possibility of reimbursement from the SNT upon the death of the beneficiary. The Surrogate held that where the fiduciary fails to meet his burden to prove an accurate account, and where the objectant provides evidence as to inaccuracies, the burden then shifts back to the fiduciary to prove by a fair preponderance of the evidence that the account is accurate and complete. The fiduciary having failed to participate at all, the Surrogate surcharged him for $127,000. The trustee appealed to the Fourth Department which affirmed the bulk of the decision below. The court held that although the trust agreement directed that New Jersey law would apply to the trust, since the trustee resided in Monroe County, the Surrogate had jurisdiction to hear the case and apply New Jersey law, including that state’s version of the Prudent Investor Act, which had been enacted after the date of the trust. The Appellate Division did hold, however, that under New Jersey law, the Surrogate lacked jurisdiction to surcharge the trustee for the sisters’ legal fees. [B] The Court noted: In refusing to approve the funding of the proposed SNT with a sum greater than $100,000, the Surrogate skewed the balance fashioned by the legislature in favor of the state and to the detriment of the petitioner. By placing that limitation on the funding of the SNT, the Surrogate ensured that petitioner would lose her eligibility for Medicaid, a result that is inconsistent with the public policy underlying SNTs and the Surrogate’s function in approving and supervising their establishment. Matter of Srozenski, 2010 NY Slip Op 8276; 2010 N.Y. App. Div. LEXIS 8444 (Nov. 12, 2010) This case confirms the jurisdiction of a New York court over a trust created out of state and provides some instruction on how to deal with a recalcitrant trustee. While a resident of New Jersey, Joseph Srozenski created a living trust some time prior to 1997, and appointed his son, Robert, as trustee. Robert’s sisters, who were the beneficiaries of the trust, were residents of Monroe County, as was Robert. The sisters brought a proceeding in Monroe County Surrogate’s Court to compel an accounting by Robert. Robert refused to account, claiming the since the trust was a New Jersey trust, the Monroe County Surrogate’s Court lacked jurisdiction to hear the matter. It’s a Brave New E-world… …and your favorite Bar Association is now available on your favorite social networking sites! In addition to our Web site, www.eriebar.org, news, information and updates can now be found on Facebook, Twitter and LinkedIn. As part of our ongoing effort to communicate timely information to our members, you will also receive e-newsletters from us about upcoming CLE programs, career opportunities and news items that come to our attention between issues of the Bulletin. If for any reason, you have not been receiving these materials or choose not to receive them, please contact Susan Kohlbacher at 852-8687 ext. 21 or [email protected]. As always, your comments, questions and suggestions are invited. PAGE 13 January 2011 | www.eriebar.org western district case notes By Paul K. Stecker and Kevin M. Hogan ENVIRONMENTAL LAW In NL Industries, Inc. v. Halliburton Co. (10-CV89A, 11/2/10), the court granted in part and denied in part defendants’ motion to dismiss plaintiff’s amended complaint seeking reimbursement under CERCLA of response costs plaintiff incurred pursuant to a consent order with EPA. The court held that plaintiff was entitled to pursue recovery of its response costs under §107 of CERCLA because it had directly incurred those costs by performing the clean-up work itself, but that plaintiff could not pursue an action for contribution pursuant to §113 of CERCLA, at least at this time, because it had never been sued and no CERCLA liability had yet been imposed on it. ERISA/INSURANCE In Brondon v. Prudential Insurance Co. (09-CV6166T, 11/9/10), plaintiff sued after the defendant insurer denied his claim for life insurance benefits following his wife’s death. The insurer contended that no benefit was payable and that it was entitled to rescind the policy because the wife’s application for insurance did not disclose that she suffered from mitral valve prolapse, information the insurer contended she should have disclosed in response to a question asking whether the applicant had been diagnosed with or taken medication for “heart trouble.” The court granted plaintiff’s motion for summary judgment and awarded him the death benefit (plus prejudgment interest and attorneys’ fees pursuant to ERISA), holding that (i) the question about “heart trouble” was ambiguous as a matter of law, (ii) the insured’s answer to that question accordingly could not be used as evidence of a misrepresentation, (iii) the question should instead be interpreted as asking for the applicant’s opinion as to whether she suffered from “heart trouble,” and continued on page 16 Recycle your Bulletin PAGE 14 www.eriebar.org | January 2011 citations By Jeff Spencer SEWER SUIT WON’T GET THE BOOT With the sound of a mighty gush The sewer backed up In a reverse flush! The smell invaded all the more As sewage spread Across the basement floor. The sewer district’s street work Just days before Was clearly a culprit to explore. The county’s dismissal motion couldn’t hide That factual issues of causation Did surely abide. Desrosiers v. County of Erie, __AD3rd__, 4th Dept., 11/19/10, #1163 CONTEMPT CONVICTION CANNED An incarcerated defendant’s conviction for criminal contempt was reversed by our Fourth Department, noting that he was called to testify before the grand jury without notifying his attorney (Peo. v. Nagel, __AD3rd__, 11/19/10, #1000.1). PARTIES’ CHOICE STILL HAS VOICE An application for child support modification may consider a lower threshold if that was agreed to by the parties in their stipulated agreement (In the Mtr. of Lomanto v. Schneider, __AD3rd__, 4th Dept., 11/12/10, #1203). PAYBACK PARAMETERS In a thorough opinion by Justice Rose Sconiers, our Fourth Department has held that a county department of social services is entitled to recover Medicaid payments from the estate of a decedent recipient including funds from a tort settlement (In the Mtr. of the Estate of Heard, __AD3rd__, 11/12/10, #971). CASH OR CAN OK’D Our Fourth Department has approved the use of a cash undertaking to enable a nonpaying parent to purge himself of a six-month Family Offense conviction (In the Mtr. of Riggs v. Vandusen, __AD3rd__, 11/12/10, #1282). “COLLAPSE” CLASH The meaning of the word “collapse” in a homeowner’s insurance policy was found to be a fact issue which precluded summary judgment in Khuns v. Bay State Ins. Co., __AD3rd__, 4th Dept., 11/12/10, #1090. FINE LINES THAT BIND Clarifying the border between two lakefront lots required the determination of an unasserted adverse possession claim to a triangular parcel which affected both neighbors (Margetin v. Jewett, __AD3rd__, 4th Dept., 11/12/10, #1011). In Bond and Bootey v. Turner et al. (__AD3rd__, 11/12/10, #1045), our Fourth Department reviews the impact of a public-dedicated easement on property owners. “SERIOUS” SENSITIVITIES Chiropractic and medical submissions that plaintiff had a “serious” injury after a “rear ender” motor vehicle accident precluded summary judgment to defendant in Howard v. Robb, __AD3rd__, 4th Dept., 11/12/10, #1309, affirming Justice Ralph Boniello. ARBITRATION ELEVATION In Yoonessi v. Givens (__AD3rd__, 11/12/10, #1373), our Fourth Department affirms Justice Frank Sedita’s confirmation of an auto accident arbitration award. continued on page 16 PAGE 15 January 2011 | www.eriebar.org Are You Up For A Night of Stories? By Paul Wolf Being a lawyer is a tough but noble profession. We help people in some of the most important accomplishments of their lives, such as purchasing a home, starting a business and adopting a child. We also help people in some of the most difficult times of their lives, such as when they are arrested, filing bankruptcy and getting divorced. SPECIAL THANKS TO ERIE COUNTY BAR FOUNDATION CAMPAIGN ‘10 SPONSORS Pictured above at the reception for the Erie County Bar Foundation’s Campaign ‘10 are, left to right, Matthew Wilkinson of Arbor Capital Management Company, Campaign ‘10 chair Roger L. Ross, Lawrence T. McGowan of Arbor Capital Management Company, Mark A. Lotterer and Peter Battaglia of Chicago Title Insurance Company and Foundation president William Ilecki. Support from Arbor Capital Management Company, Chicago Title Insurance Company and M&T Bank Corporation helps defray campaign costs, allowing contributions to be used directly for the Foundation’s attorney assistance programs and services. Photo by Susan L. Kohlbacher Annual Dinner Awards Recognize Outstanding Contributions to the Profession 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: The 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 David Gerald Jay (2009) and Terrence M. Connors (2010). All Bar members are eligible for this award. Those nominated should: 1. Promote the good will of the profession both within and outside the legal community. 2. Foster respect for the legal profession. 3. Elevate the standard of integrity, honor and courtesy in the profession. 4. Encourage the spirit of brotherhood and sisterhood among members of the Bar. 5. Protect and promote the interests of the public and the profession and advance the administration of justice. 6. Promote the protection of American institutions and principles. The Outstanding Jurist Award This award is only presented when a jurist’s devotion to the profession and the judicial system warrants singular recognition. The award recipient must receive a twothirds vote of the board of directors in order for the award to be conferred. Recent recipients include Hon. Joseph D. Mintz (2009) and Hon. Thomas P. Franczyk (2010). The 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. Daniel T. Lukasik received the award in 2009 and Robert H. Lawrence and John Nuchereno were recognized in 2010. Award of Merit There are no criteria established for the Award of Merit. Its presentation often reflects extraordinary circumstances that deserve special recognition. Robert M. Elardo was honored in 2009 and the award was presented to Scott A. Bylewski in 2010. In their representation of clients, lawyers encounter people from all walks of life in all kinds of situations. As an attorney for 19 years, I have had the opportunity while waiting for my case to be called to hear fellow attorneys tell stories that were funny, sad, inspirational and educational about their work. Telling and hearing stories can be a great experience. I think it would be fun to gather a room full of lawyers together in a pub on a cold winter night to share stories about our profession. I envision a comfortable setting where people can enjoy a drink and hear stories about being a lawyer such as: • A colleague who mentored you; • Your most rewarding moment as an attorney; • Your most humorous or embarrassing moment as an attorney; and • Your most difficult moment as an attorney. If you are interested in such an event - whether to tell a story or to just listen - let me know at [email protected] or by telephone at 435-4976. If there is enough interest, with the help of others, I will set something up. [B] Charles H. Dougherty Civility Award The Bar Association of Erie County established the Charles H. Dougherty Civility Award to recognize a lawyer in our community for demonstrating the highest standards of professionalism and civility in the practice of law. Joseph B. Mistrett and Richard N. Blewett were recognized in 2009 and the award was given to John F. Canale in 2010. Attorneys or judges nominated for this award should: 1. Demonstrate courtesy and professionalism in dealings between lawyers, judges, court personnel, witnesses and clients. 2. Promote the resolution of legal matters and avoids undue burden and expense. 3. Elevate the standard of integrity, honor and courtesy in the legal profession. How to Nominate a Candidate for an Award Nomination forms for each of the awards are available at www.eriebar.org or by calling Sharlene Hall at 8528687, Ext. 20. Completed forms should be forwarded to E. Michael Semple, Awards Committee Chair, at the Bar Association office. The deadline for receipt of nominations is March 4, 2011. [B] PAGE 16 www.eriebar.org | January 2011 In the Public Service Western District Case Notes continued from page 10 continued from page 13 ting no special rules or services not otherwise available) or one of two participant groups: Work Incentives Counseling (WIC) or Enhanced Work Incentives Counseling (EWIC). Neighborhood Legal Services will be the lead agency for the WIC group, with those individuals getting the benefit of the $1 for $2 offset test and benefits counseling services. Erie I BOCES (West Seneca) will also work with several partners and serve the EWIC group. Those in the EWIC group will get, in addition to benefits counseling, employment-related services to assist them in finding work or vocational rehabilitation/educational services necessary to prepare for work. Both NLS and Erie I BOCES will serve participants in the same 30-county region. (iv) there was no evidence suggesting that plaintiff’s wife had considered her condition to be “heart trouble.” (Although the court held that the ERISA “arbitrary and capricious” standard of review did not apply, and instead applied the de novo standard, the court found that the same result would obtain under an “arbitrary and capricious” standard.) With more than 10 years experience in providing benefits counseling to SSDI and Supplemental Security Income (SSI) beneficiaries, NLS understands how this service can help someone like Mary understand both the impact of work on benefits and the work incentives that can help her as she pursues her work goals. The benefits counseling provided by NLS or its partners would help Mary understand, for example: how the benefits offset formula will work for her and her family at various earnings levels; that she would retain Medicare as she moved forward with work activity; and that she could qualify for the Medicaid Buy-In for Working People with Disabilities, providing a source of no-cost or low-cost Medicaid coverage. We would also work with Mary and others, based on their unique circumstances, to identify other benefits and/or services to help meet their needs as they progress with work goals. BOND Project to Begin in April 2011 The BOND project is scheduled to begin serving SSDI beneficiaries (and some who receive a combination of SSDI and SSI) within the 30-county western New York site in early April. Services will also commence in nine other demonstration sites in various parts of the country. Before the full project begins, NLS and Erie I BOCES will handle a very small number of BOND pilot participants, starting in February 2011, to make sure all the protocols are in place for this ambitious seven-year project. Individuals with questions about the BOND project or any other issues related to benefits and work can call the NLS toll-free Work Incentives Hotline at 1-888224-3272 (sponsored by the NY Makes Work Pay Project). [B] FEDERAL TORT CLAIMS In Grace v. United States (08-CV-6006 CJS, 11/3/10), plaintiff brought malpractice claims against the Department of Veterans’ Affairs (“VA”) and the University of Rochester arising out of his treatment by a University of Rochester physician under contract to the VA. The court granted the Government’s motion to dismiss plaintiff’s claims, except insofar as plaintiff claimed that VA employees were negligent in failing to reschedule an appointment, on the ground that the physician was an independent contractor and that the “strict control” test for determining whether the physician was an employee was not satisfied merely because the VA directed when and where she would work. The court also held that plaintiff’s state law medical malpractice claims against the University and the physician were time-barred because the amended complaint adding them as defendants did not “relate back” to the filing of the original complaint against the government because the defendants were not united in interest. Law Line Educates Public on Legal Issues Since 1997, The Law Line has engaged the minds of thoughtful western New Yorkers who tune in to WNED-AM (970) at 10:00 on Saturday mornings. Host Mike Desmond talks to lawyers and judges from our legal community on wide-ranging topics related to the law. The program provides a valuable public service that reaches about 8,400 listeners each week. We appreciate the time that the following members of our Association have taken to educate the public about legal matters by volunteering their time to appear on The Law Line. William P. Moore Premises Liability from A-Z Hon. Carl L. Bucki The Chapter 13 Program in Bankruptcy Court PUBLIC EMPLOYEES In Mac Fall v. City of Rochester (09-CV-6113L, 10/27/10), the court granted defendants’ motion dismissing §1983 and other claims by police officers who sued after they were suspended with pay following an altercation with civilians. Among other holdings, the court held that plaintiffs’ claims that they were unable to earn overtime pay during their suspensions could not form the basis of a due process claim because the collective bargaining agreement did not guaranty that officers could receive overtime pay, and plaintiffs therefore did not have a sufficient property interest to support such a claim arising out of their having been placed on paid leave. Stephanie A. Cole Social Networking Issues The Law Line 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 Maureen Gorski at 8528687 or by e-mail at [email protected]. TAXABLE COSTS In Byrne v. Telesector Resources Group, Inc. (04-CV76S, 11/2/10), plaintiff moved to strike the defendant’s bill of costs. Although the court denied the motion, it denied as non-taxable the defendant’s request for costs for condensed deposition transcripts and computer disks, and also for postage unrelated to the cost of service. [B] Citations continued from page 14 CHEERLEADER SUIT GOES DOWN THE CHUTE A suit arising out of a fall during a cheerleading stunt was dismissed in Larson v. Cuba Rushford Cent. Sch. Dist., __AD3rd__, 4th Dept., 11/19/10, #1346. GAZEBO MUST GO Our Fourth Department has upheld the enforcement of development’s restrictions, precluding defendant’s gazebo and statuary in Spaulding Law Club, Inc. v. Jiang, __AD3rd__, 11/19/10, #1284. See also Camperlino v. Town of Manlius et al., __AD3rd__, 4th Dept., 11/19/10, #1303. PAGE 17 January 2011 | www.eriebar.org Young Lawyers Look to the Future By William P. Moore, Chair BAEC Young Lawyers Committee Our “Evening with the Judiciary” was nothing short of a success! We had nearly 80 attorneys and 25 judges in attendance at the Saturn Club. The main lounge was filled with conversation, food, drink and the sounds of the crackling fireplace. It was a great opportunity for the young lawyers accustomed to their cozy offices and world of briefs to get out and meet the judges with whom they rarely interact. Thank you to the judges who took the time to interact with the young bar members. BAEC Young Lawyers Committee vice chairs Leah R. Nowotarski and Joshua Dubs. Photos by Sharlene Hall Special thanks also go out to our sponsors: BAEC president Scott M. Schwartz and BAEC Young Lawyers Committee chair William P. Moore. Gold: Lipsitz Green Scime Cambria; Phillips Lytle, LLP; Hodgson Russ LLP; Jaeckle Fleischmann & Mugel, LLP; Cellino & Barnes; and Plaintiff Support Services. Silver: Cohen & Lombardo and Kenney Shelton Liptak Nowak LLP. Bronze: Law Offices of Howard Cadmus; Law Offices of Harvey Siegel; Law Offices of Leroi Johnson; Zoom Copy; Moore Family Dental and Pour L’Amour du Chocolat. By the time of publication, the “Young Lawyers Yuletide Challenge” toy drive challenge results should be in. You can expect results in next month’s Bulletin. Thank you to all who participated – I am sure your generosity brought smiles to many children. The New Year will bring us the high school mock trial tournament. Please stop by our next meeting on January 21 at Bar Headquarters. We are looking for more young lawyers to join our committees, especially as they relate to the mock trial program. I strongly encourage you to attend our next meeting, as we will be planning our 2011 events schedule, including ways to interact with other young professional groups, such as CPAs and financial planners. Katy M. and Timothy R. Hedges, Destin C. Santacrose, James J. and Lauren Nash. Hon. Gerald J. Whalen We are always looking for new committee members and ideas. Finally, if you have not yet joined the Bar Association of Erie County, please do so. The Association has a great deal to offer you as an attorney and is an invaluable resource. All the best in 2011! BAEC president Scott M. Schwartz, Kelly A. Connors, Hon. William M. Skretny and Amanda Goun. Brittany Penberthy and BAEC Young Lawyers Committee membership chair Melissa A. Cavagnaro. Hon. Eugene F. Pigott, Jr. and Craig R. Bucki Who are we? Inquiring minds need to know! Please e-mail Bonnie O’Brian at [email protected]. Hon. Jerome C. Gorski welcomes members of the Young Lawyers Committee. PAGE 18 www.eriebar.org | January 2011 Wedding Food Error & Emotional Distress: Remedy Please! By Lindy Korn A Jewish family and their rabbi cannot recover damages for the emotional distress they allegedly suffered when a wedding caterer mistakenly served non-kosher food, a U.S. District Court in the District of Columbia ruled. (U.S. District Court for the District of Columbia. Siegel v. Ridgewells, Inc. No. 05-1717. Sept. 30th, 2007). The family contracted with a caterer for their daughter’s wedding reception. The agreement was understood to be for a “semi-kosher” menu. At the reception, non-kosher items were served, including a non-kosher sushi tray. • Does the family recognize the vagueness in “semikosher” menu? The family and their rabbi sued, claiming negligent infliction of emotional distress. The caterer sought summary judgment. • Are there issues of understanding the importance of kosher food at a wedding reception based on practicing Judaism? The judge granted the caterer’s motion, finding the uncertainty over whether the rabbi actually ate nonkosher sushi was not sufficient to place him in the “zone of danger.” The court stated, “there is no evidence here that the rabbi ate any sushi that contained non-kosher items.” • Does the rabbi feel misled and offended? Further, the court found no “severe and verifiable” mental disturbance on the part of the family. “Other than the tainted memories of the wedding reception, plaintiffs point to no evidence indicating any physical manifestation of this alleged emotional distress or long-term mental disturbance caused by the emotional distress showing that the emotional distress was ‘severe and verifiable’,” the court said. There are certain events that remain memorable over time. One’s wedding reception constitutes such a time. The conflict caused by misunderstandings in this matter remain as a memory and survive the granting of [B] the summary judgment! • Has the conflict overshadowed the wedding? • Can each party provide education to the other, so that this mistake is not repeated? • What can be done to restore relationships between the parties? There are issues of emotional distress that cannot be dealt with in a motion practice. The severity of distress cannot be defined by legal parameters or “zone of danger” analysis. Rather, apologies for mistakes made, recognition of a religious practice, and the possible lack of clarity in regard to the menu contracted for the wedding reception need to be acknowledged. Perhaps the remedy in this case cannot be reached via litigation and is more suitable for mediation. What interests do the parties share that still remain? Can emotional distress be understood in the context of violating religious dietary laws? Reading this fact pattern, it seems that money resulting from the caterer’s mistake may not wholly solve the plaintiff’s complaint. The following questions remain: • What do the parties want from one another? • Has the caterer acknowledged a mistake in the menu and its severity? 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. PAGE 19 January 2011 | www.eriebar.org Erie County Bar Foundation: Helping Those Who Help Others By Sharon Osgood Lawyers are strong, aren’t they? Clients look to them to solve their legal problems. Other lawyers look to them as worthy adversaries. Friends and family look at them as smart, confident, capable people (and maybe available for free services). The community looks to them for financial and political support. But is it always true that lawyers are so strong? Fortunately, that concept is often true, but unfortunately, not always. Therein lies a two-pronged dilemma. Frequently, it is extremely difficult for lawyers to acknowledge to their fellow professionals, the court, clients, friends and family, and most of all, to themselves, that they are in need of help. Reasons can be many for needing help – medical conditions, mental problems, aging, loss of employment or of significant clients, or other financial catastrophes. Sometimes substance abuse leads an otherwise strong person to limited functioning. Pride and embarrassment often result in a crippling inability to reach out for help from any source. We are supposed to be the strong ones, after all. enabling them to return to full function or helping them to adapt to new circumstances as successfully as possible. What is the second prong of the dilemma? Because we view each other as strong, and those needing services are afraid to acknowledge their need, we are slow to recognize the importance of a resource like the Bar Foundation and even slower at supporting it financially. “To continue to provide support, our otherwise quiet, gentle Bar Foundation must get noisy and pushy once a year. Please do not cringe. Just write a check.” In Erie County, however, we are fortunate to have the Bar Foundation, a unique resource to assist lawyers and their families who find themselves in crisis. With empathy and a desire to help, the Bar Foundation, through its social worker and Foundation members, stands ready to provide confidential consultation that can lead to advice on practice and financial issues, referrals to agencies or counselors, and cash grants and loans. In its over 50 years of existence, the Foundation has quietly assisted scores of attorneys through crisis, often To continue to provide support, our otherwise quiet, gentle Bar Foundation must get noisy and pushy once a year. We need your help financially. We urge you to give generously to our current campaign. You have received donor cards. You are likely to receive calls. Please do not cringe. Just write a check. In Memoriam “Memory is a way of holding on to the things you love, the things you are, the things you never want to lose.” ~ Kevin Arnold 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. And please also keep an eye out around you for attorneys who may be in distress. Do not hesitate to encourage them to contact us. The Bar Foundation is here, making a positive difference in the lives of our members who reach out to us. [B] Mary M. Donogher Richard C. Marcus Luke C. Owens, Jr. Anthony L. Pusateri PAGE 20 www.eriebar.org | January 2011 Bench and Bar continued from page 3 John G. Schmidt Jr., a partner with Phillips Lytle LLP, has been elected to a two-year term on the National Kidney Foundation of Western New York’s board of directors. The Foundation works to prevent kidney diseases, improve the Schmidt health of those affected by them and increase the availability of organs for transplantation. Schmidt has also been appointed to the Campaign Cabinet of the Regional Center of Excellence for Transplantation and Kidney Care at the Erie County Medical Center. This center will support patients from diagnosis through the transplant process and post-transplant care. Schmidt concentrates his practice in commercial litigation, business torts, class action defense, federal practice, e-commerce litigation and computer forensics. He serves as co-leader of the firm’s commercial litigation practice team and is involved in many local civic organizations. Hon. Lisa Bloch Rodwin was recently honored by the WNY Women’s Bar Association as the recipient of the 2010 President’s Award for her service to the families and children of the community. Bloch Rodwin will also be honored Rodwin in January by the National Federation for Just Communities of WNY with the 2011 Community Leader Award for Legal Service. In addition, she recently organized and led a local conference for judges, attorneys and social workers in Family Court entitled “Working with Muslim and Immigrant Families: Breaking Cultural Barriers.” Coyle John Coyle has been named an associate at Chelus, Herdzik, Speyer & Monte, P.C., where he will focus on litigation and general practice matters. Coyle will work from both the firm’s downtown Buffalo office and its branch office in Cheektowaga. He received his JD from Wake Forest University School of Law and his BA in Political Science from Niagara University. Mary C. Fitzgerald has joined Brown & Kelly, LLP as Of Counsel, where she will focus her practice on insurance coverage and defense litigation, including toxic torts, motor vehicle accidents, premises liability and appeals. Fitzgerald is a graduate of the University of Chicago and Fitzgerald Cornell University, where she received her JD cum laude. A past president and former director of the Women Lawyers of WNY, Inc., she has also been active with Women’s Bar Association of the State of New York, WNY Chapter, the Buffalo Zoological Society and Westminster Early Childhood Programs. Fitzgerald received the Special Service Award for outstanding performance as pro bono counsel from the United States District Court, Western District of New York. She is admitted to practice in New York and in the United States District Court for the Western District of New York. Disare Schmit Swift Jaeckle Fleischmann & Mugel, LLP has named partner Melinda G. Disare, special counsel James N. Schmit and associate Sharon A. Swift to the firm’s labor and employment practice group. The group will now have seven attorney members. Disare formerly served as partner and chair of the labor and employment practice group at Damon Morey LLP and concentrates her practice on labor and employment matters. She currently serves as vice president of the Volunteer Lawyers Project and on the board of trustees of D’Youville College. She earned her BA magna cum laude from West Virginia University, and her JD cum laude from Cornell University. Schmit was formerly special counsel with Damon Morey’s labor and employment practice group, where he served as chair for several years. He represents employers in contract negotiations, arbitration proceedings, wrongful termination in addition to trial and appellate practice in state and federal courts. Schmit received his BA from Canisius College and his JD from Boston College. authors, including 20 New York judges. It is published by a joint venture between West Publishing and the New York County Lawyers Association, and is part of West’s New York Practice Series. Curran was also recently appointed by Chief Administrative Judge Anne T. Pfau as a member of the New York State Court System E-Discovery Working Group. The group is comprised of electronic discovery experts and will work to improve the management of electronic discovery in the New York State Courts. Curran has been designated as chair of the education subcommittee, which will develop training programs on electronic discovery and technology issues for judges and court personnel. Timothy P. Murphy has joined Lipsitz Green Scime Cambria LLP as an associatein the firm’s criminal defense department. Murphy concentrates his practice in criminal and civil appeals at both the state and federal level and has handled more Murphy than 150 appeals in his career. He also serves as a Town Justice in the Town of Pendleton. A former Niagara County prosecutor, Murphy handled white collar and environmental prosecutions as well as appeals. He also served on the U.S. Attorney’s Office Environmental Law Enforcement Coordinating Committee. Murphy earned his JD from the University of Dayton and holds a BA from Fordham University. [B] Swift focuses on discrimination, harassment, wrongful termination and unemployment issues. She was formerly an associate at Damon Morey, and previously served as corporate counsel for Manning and Napier Information Services, LLC. She is vice president of the Board of Literacy New York, and former chair of Literacy Volunteers of America for Buffalo and Erie County, Inc. Schmit holds a BS and MBA from Canisius College and a JD magna cum laude from the University at Buffalo Law School. Sharon Stern Gerstman has retired from the NYS Court System where she served as court attorney/referee in Niagara County and for 28 years as confidential law clerk to Hon. Joseph D. Mintz. She will now be Of Counsel to Magavern Gerstman Magavern Grimm LLP, concentrating in neutral evaluation/mediations, arbitrations and appellate work. Gerstman is a former director of the BAEC and also served as president and director of the Erie County Bar Foundation. She is the BAEC’s delegate to the ABA House of Delegates and also teaches at the University at Buffalo School of Law. Curran Hon. John M. Curran has published a chapter in the recentlyreleased Third Edition of “Commercial Litigation in New York State Courts” (Robert L. Haig, Editor-In-Chief), entitled “Trial and Post-Trial Motions.” This edition contains the work of 144 principal 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 monthly to share stories and fellowship. The group meets every other Friday (except holidays). See the calendar on the back page for meeting dates. Meetings are held at Bar Headquarters, 438 Main Street, Sixth Floor, at 12:30 pm and lunch is provided. There is no need to pre-register. 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 852-1888. All calls are strictly confidential. We invite you to join us and share your story. PAGE 21 January 2011 | www.eriebar.org New York’s Voluntary Disclosure and Compliance Program 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 continued from page 9 legal profession, as funds are used exclusively to assist attorneys and by the taxpayer will not be used for audit selection, and it will be purged from our databases if the taxpayer is ultimately determined to be ineligible or if the taxpayer decides not to participate. However, the department can exchange actual returns or reports filed by voluntary disclosure program participants with the IRS and state and local agencies that it has exchange agreements with (as the department does with returns and reports filed by all taxpayers). There’s an important exception to this secrecy rule: if a taxpayer intentionally violates the terms of the voluntary disclosure agreement, the department may use the disclosed information against them. promote understanding of our legal system. Information on the department’s Web site at www.nystax.gov spells out these protections in unmistakable terms. As an additional incentive for taxpayers who owe back taxes for more than three years, the program gives taxpayers the opportunity to request a limited look-back clause during the online application process. Under a look-back clause, taxpayers can settle their entire tax liability by only paying the amounts owed for the look-back period. Depending upon the reason for the non-payment and the type of tax not remitted, the look-back may be limited to three or six years. The availability of the limited look-back will be determined on a case by case basis and requires the consent of the Tax Department. Taxpayers who participate and live up to their obligations under the program receive protection from state criminal prosecution that far exceeds any assurances that the department was able to provide taxpayers before the law was enacted. Simply stated, the new statute creates an absolute bar prohibiting state prosecutors and district attorneys from initiating tax prosecutions based on the disclosed conduct against eligible taxpayers who are participating in the program and complying with their obligations under that program. The criminal protections for taxpayers electing a look-back clause are slightly different but still greater than those that existed before the statute was enacted. The statute only creates an absolute prohibition for prosecutions based on tax obligations that are disclosed and fully paid. By taking advantage of the look-back clause, the taxpayer settled his or her case by paying for only the years in the look-back period. Thus, only the years within the look-back period receive statutory protection. This does not mean that taxpayers receive no protection against criminal prosecutions for the prior years. Instead, for those prior years the department’s agreement with the taxpayer provides that the department will not investigate the taxpayer for those prior years, share the taxpayer’s disclosure with any other agency, or refer the taxpayer to a prosecutor. Taxpayers accepted into the program who cannot pay their full tax debt immediately may be allowed to pay their debt over time, under generous terms designed to ensure that they stay in business. New York’s Voluntary Disclosure and Compliance Program offers tremendous benefits to taxpayers but it is only available to taxpayers who act before they are selected for audit, review or criminal investigation. It is hoped that practitioners will counsel all of their eligible clients to take advantage of the program because it is much preferred to achieve compliance through invitation rather than through enforcement. Applying to the program is risk free, and the potential benefits are substantial and real. It is recognized, however, that some taxpayers will only come into the program if they fear the risk of being caught. This risk has increased substantially since the department has beefed up its enforcement efforts, and have coupled these increases with improvements in the technological capabilities to identify these tax scofflaws. Detailed information on the program is available on the Department’s Web page (www.nystax.gov) and all practitioners are urged to review that information and judge for themselves. [B] The Foundation gratefully acknowledges the following contributions: In Honor of Michael Perley’s presentation for the Horse Business School on November 19, 2010: Cornell Cooperative Extension of Ontario County In Honor of Peter J. Battaglia: Jodyann Galvin In Honor of Jeffrey M. Freedman: Kevin P. Wicka In Honor of Daniel T. Lukasik: Anonymous In Memory of Maureen R. L. Mussenden: Anthony D. Mancinelli Bar Association of Erie County Frank & Leslie Housh Nancy W. Saia In Memory of Mary Donogher: Bar Association of Erie County Barone & Barone, PC Dean S. Puleo James M. Hazel Helen Ferraro-Zaffram In Memory of James N. Carlo: David P. Evans J. Mark Gruber Jim & Mary Shea Lawrence C. Franco Leo M. Lynett, Jr. Nancy J. Bizub Personius Melber LLP Philip H. Magner, Jr. William E. Carey In Memory of Michael Rooth: Thomas C. Farley, Jr. In Memory of James T. Duggan: Bar Association of Erie County Coleman Volgenau Helen & George Zimmermann Jessica J. Burgasser Jim & Mary Shea Joel L. Daniels Personius Melber LLP Philip Celniker Philip H. Magner, Jr. The Family of James T. Duggan In Memory of Donald Fulkerson: Courtland R. LaVallee In Memory of John J. Nasca: Anthony D. Mancinelli Hon. Donna M. Siwek & Timothy G. McEvoy Personius Melber LLP Philip Celniker In Memory of Hon. Michael F. Dillon: Hon. James B. Kane In Memory of John F. Lane, Mary A. Lane and Robert J. Lane: Hon. John P. Lane In Memory of W. Barry Mallon: Geralyn A. Schiffler In Memory of James & Ellen Walker: Hon. Timothy J. Walker In Memory of Ross L. Runfola: Bar Association of Erie County Christopher C. Willett Coleman Volgenau George & Barbara Riedel Helen & George Zimmermann J. Mark Gruber Jim & Mary Shea Joel L. Daniels Philip H. Magner, Jr. Richard D. & Loretta K. Yellen In Memory of Hon. Norman J. Wolf, Jr.: J. Michael Wolf In Memory of Andrew McLaughlin: Roman J. Fontana In Memory of Verna Lauriha: Jacquelyn A. McGillicuddy In Memory of the deceased members of the UB Law School Class of ‘58: Sue Dealy Murszewski In Memory of Alvin M. Glick: Daniel T. Roach In Memory of David Jay: Thomas C. Farley, Jr. In Memory of Hon. Vincent E. Doyle: Mary Goslin In Memory of Paul Peters: Jeffrey M. Freedman In Memory of Glen, Gordon & Ron Gannon: John W. Dorn In Memory of Richard C. Marcus: Bar Association of Erie County Edward J. Carland Kimberly A. Phelan In Memory of Marlene Klein (Mother of Mark Klein): Lauren D. Rachlin In Memory of John & Joan Condon: Personius Melber LLP In Memory of Brenda Moynihan: Thomas C. Farley, Jr. In Memory of Steven Gittler: Vince Hauber & Jean E. Gittler In Memory of Jack Frizzell: Wilder & Linneball, LLP In Memory of William R. Brennan: Geralyn A. Schiffler Mark R. McNamara In Memory of Joseph D. Bermingham, Jr.: Mary Goslin In Memory of John P. Bartolomei, Jr. (Son of John P. Bartolomei): Personius Melber LLP In Memory of Peter Gilfillan: Lisa P. Meyers In Memory of H. Walker Hawthorne: J. Mark Gruber In Memory of Carl Cole: Mark A. Montour In Memory of Luke C. Owens, Jr.: Bar Association of Erie County In Memory of Raymond J. McNamara: Mark R. McNamara In Memory of Michael & Eleaine Dillon: Jennifer M. Dillon In Memory of Joseph A. Marion, Jr.: Matthew X. Wagner, Jr. In Memory of William L. Principe: David L. Principe In Memory of Mark Matthew Jasen: Peter M. Jasen In Memory of Thomas J. Ryan, Jr.: R. Colin Campbell In Memory of Hon. John H. Doherty: Daniel T. Roach PAGE 22 www.eriebar.org | January 2011 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 CLE Credits Price Wednesday, January 19, 2011 1:00 p.m. – 2:00 p.m. Adelbert Moot CLE Center 438 Main St. Buffalo, NY Litigation in the Court of Claims (Noonday Lecture presented by Judge Michael Hudson) 1.0 credit $20 members $25 non-members Wednesday, January 26, 2011 1:00 p.m. - 2:00 p.m. Adelbert Moot CLE Center 438 Main St. Buffalo, NY Summary Jury Trial (Noonday Lecture presented by Judge Lucindo Suarez) 1.0 credit $20 members $25 non-members SAVE THE DATE! . Still A-Twitter Over Facebook? A Deeper Look at Social Networking Issues Every Lawyer Needs to Know Friday, March 25, 2011 | Location to be determined Mail or fax to: Erie Institute of Law • 438 Main Street, Sixth Floor, Buffalo, New York 14202 (716) 852-8687 • Fax (716) 852-7641 ERIE INSTITUTE OF LAW REGISTRATION FORM Name ______________________________________________________________________________________________________ Please register me for the following Erie Institute of Law sponsored events: Firm ______________________________________________________________________________________________________ 1. ________________________________________ Address ____________________________________________________________________________________________________ 2. ________________________________________ City ________________________________________________________ State ____________ Zip ________________________ 3. ________________________________________ Phone ___________________________ Fax __________________________ E-mail Cancellation Policy: If you are unable to attend a seminar, for which you have already registered, call Mary Kohlbacher at 852-8687 ext. 15. 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. Enclosed is my check in the amount of $ ____________________❐ Visa __________________________________ ❐ MC Card Number ______________________________________________________________ Exp. Date ______________________ Cardholder Signature ________________________________________________________________________________________ CLE Passbook Order Form We’ve Got Your Ticket to Savings! CLE Passbook Savings How it Works Total Saving ............................................................$80 Passes are available in books of six for $400 ~ six seminars for the price of five. Attach a pass when you mail your advance registration form, or bring the pass with you when you register at the door. If you intend to use the pass for a walk-in registration, please be sure to call ahead and confirm the date, location and available seating. The seminar pass will cover your registration in full. Guaranteed. Save money every time you use a seminar pass. The passes are completely transferable and can be shared with other members of your firm, including staff members and paralegals. If you are a sole practitioner, you can share the passes with other practitioners. Number of discount passes........................................6 Total fees for BAEC members without passbook.................................................$480 Total fees for BAEC members with passbook ......................................................$400 Simply stated, the Bar Association of Erie County CLE Passbooks give you the opportunity to attend highquality, convenient, half-day educational programs at a bargain rate. One pass buys any half-day seminar for only $67 ($13 off the regular seminar price). If you want to minimize your CLE expenses and maximize educational experiences for yourself or your firm, then the CLE Passbook program is for you. The passbook guarantees the reduced price of $67 for any half-day seminar for the next two years, despite any fee increases during that time period. Guidelines Passbooks are valid for two years from the date of purchase and are not replaceable if lost. No cash refunds are available for unused or expired passes. Each pass is valid for admission to any half-day BAEC CLE seminar. There is no limit to the number of passbooks an individual or firm can purchase, but all passes must be used within two years from the date of purchase, or they become void. If a scheduling conflict arises after you have registered for a seminar, just inform our office 48 hours in advance of the program, and we will return your pass for future use. Please send me _____ seminar passbooks (one book of six passes: $400) Total: $ _________________ Name: _____________________________________ Firm Name: ____________________________________ Address: _______________________________________ City: ___________________________________________ State: __________________ Zip: ___________________ Phone: _________________________________________ E-mail: _________________________________________ [ ] Check enclosed; Payable to the Erie Institute of Law 438 Main Street, Sixth Floor, Buffalo, NY 14202 [ ] Visa [ ] MasterCard Credit Card #: __________________________________ Exp. Date: ______________ Signature:______________________________________ PAGE 23 January 2011 | www.eriebar.org COMPUTER & TECHNOLOGY TRAINING Technology. At its best, it helps us to process information more efficiently and effectively. But the rapid-fire changes in the way we communicate can easily become overwhelming. If the Information Age sometimes makes you feel like you’re drowning in a sea of confusion, this Computer and Technology Training program was developed especially for you. By investing just one lunch hour a week, you can quickly begin to master the basics of such popular programs as Microsoft Word, Excel, and Outlook. You’ll also learn how to use Internet Explorer to navigate the World Wide Web and bring a whole world of resources to your fingertips. Class size is small – just six students per session to allow for personalized attention – so sign up today! Mail or fax to: Erie Institute of Law • 438 Main Street, Sixth Floor, Buffalo, New York 14202 (716) 852-8687 • Fax (716) 852-7641 Pre-registration required - Limited to six people per session – Register early! Computer Classes are continually offered – if these don’t fit your schedule. Check www.eriebar.org for upcoming programs. ✃ Class (No CLE Credit) Major Topic Date Getting Started in Excel • Recognize Excel features Tuesday • Navigate Excel 2/1/11 Sign Me Up! Class (No CLE Credit) Major Topic Using Templates in Word • Create/modify a custom template Tuesday a template Merging Data in Word Tuesday • Good for financial analysis and 2/8/11 • Create a data & main document Tuesday • Create form letters 3/22/11 • Create mailing labels other accounting needs Using Excel to Using formulas can assist you in How to Use PowerPoint Tuesday Why pay for expensive blow-ups Tuesday 3/29/11 Determine the Value determining the value of your case. 2/15/11 for the courtroom? This class is of Your Case* Learn to use case data from Verdict designed to show you how to make Using Long Documents in Word Sign Me Up! • Create a letter, memo or fax from 3/15/11 • Use basic spreadsheet features Using Formulas in Excel* • Construct a formula Date Search or other means to help determine simple slides to explain your case to if you should settle or go to trial. the jury or even others in your law firm. • Using a master document • Organize with styles Tuesday Microsoft Office 3/1/11 2003 Tour This is an introduction to each Tuesday program in the Microsoft Office 4/5/11 • Control page breaks Suite. We will explain the tasks for • Prepare the document for binding which each program is designed. • Create a running header & footer Utilizing the Internet • Review basic features of Internet Explorer Introduction to This is a beginner class for those Tuesday Microsoft Word new to Microsoft Word 2003. 3/8/11 Tuesday 4/12/11 • Share some Web searching tips • E-mailing hyperlinks This class will teach you how to draft letters and other documents. •Getting Started in Excel is pre-requisite Enclosed is $___________ for _____ reservation(s) for: ❐ BAEC Member $30 COMPUTER & TECHNOLOGY TRAINING ❐ Legal Staff $30 ❐ Non-member $40 Prices are $30/$40 per class. Registrant(s) ____________________________________________________ E-mail ____________________________________ REGISTRATION FORM Organization ____________________________________________________ Fax ______________________________________ 12:15 p.m. – 1:30 p.m. (noon registration) Address ________________________________________________________ Phone ____________________________________ D4 Tech Center 438 Main Street, Suite 202 Buffalo, NY PRE-REGISTRATION IS REQUIRED (Same building as Bar Association of Erie County) Bar Association of Erie County Erie Institute of Law 438 Main Street, 6th Floor Buffalo, NY 14202 [No food or beverages allowed in Tech Center] Please enclose check payable to the Erie Institute of Law and send to: If you wish to charge this program, please complete the following and fax to (716) 852-7641 or mail to address above. Please check: ❐ Visa CANCELLATION POLICY: Within three business days of registering, if you can no longer attend, another individual from your organization may attend or you may transfer your registration to another program that is within three months of the original program. (A balance due to registration fee difference may apply.) No reimbursement or transfers for cancellations not made within the three days or for not attending. ❐ MC Exp. Date_________________ Card Number _______________________________________________________________________________________________ Cardholder Signature ________________________________________________________________________________________ Become a fan of the Erie Institute of Law on Facebook. PAGE 24 www.eriebar.org | January 2011 "Angel with Snow in Horn" by Glenn Edward Murray SAVE THE DATE FOR THE 2011 PRESIDENT’S BALL! Mark your calendar now and plan to attend the annual gala in honor of President Scott M. Schwartz and the Association’s past presidents. This year’s event will be held on Saturday, March 26, 2011 at the Mansion on Delaware. Watch your mail and next month’s Bulletin for further details. JANUARY 2011 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. MONDAY 3 TUESDAY 11 TUESDAY 18 Professional Ethics Committee 12:15 p.m. - Thomas S. Wiswall, Chair Labor Law Committee 12:15 p.m. - Sean P. Beiter, Chair TUESDAY 4 Matrimonial & Family Law Committee 12:15 p.m. - 25 Delaware Ave, 5th Floor Catherine E. Nagel, Chair Board of Directors 8:00 a.m. - Scott M. Schwartz, President Corporation Law Committee 12:15 p.m. - Offices of Hodgson Russ Kevin R. Talbot, Chair MONDAY 24 Federal Practice Committee 12:15 p.m. - Adelbert Moot CLE Center Timothy W. Hoover, Chair Alternative Dispute Resolution Committee 12:15 p.m. - Steven R. Sugarman, Chair Board of Directors 8:00 a.m. - Scott M. Schwartz, President Committee on Consumer Protection 12:15 p.m. - Joanne A. Schultz, Chair WEDNESDAY 5 Legal Nurse Consultants Committee 12:00 p.m. - Adelbert Moot CLE Center Christine A. Trojan, Chair International Law Committee 12:15 p.m. - Jason B. Desiderio, Chair THURSDAY 6 Negligence Committee 12:15 p.m. - Adelbert Moot CLE Center Gregory V. Pajak, Chair FRIDAY 7 Commercial & Bankruptcy Law Committee 12:15 p.m. - Daniel E. Sarzynski, Chair Committee to Assist Lawyers with Depression 12:30 p.m. - Bar Center, Brennan Room Daniel T. Lukasik, Chair Real Property Law Committee 12:15 p.m. - Adelbert Moot CLE Center Michael J. Lombardo, Chair Committee to Assist Lawyers with Depression 12:30 p.m. - Bar Center, Brennan Room Daniel T. Lukasik, Chair WEDNESDAY 19 TUESDAY 25 Judicial Welcoming Ceremony 1:00 p.m. - Ceremonial Courtroom, 92 Franklin Street Erie County Bar Foundation 8:00 a.m. - William Ilecki, President WEDNESDAY 12 Appellate Practice Committee 12:15 p.m. - Bar Center, Brennan Room Edward J. Markarian, Chair Elder Law Committee 12:15 p.m. - Adelbert Moot CLE Center Charles Beinhauer, Chair Intellectual Property, Computer & Entertainment Law Committee 8:00 a.m. - Towne Restaurant Ellen Swartz Simpson, Chair Health Care Law Committee 12:15 p.m. - Lawrence C. DiGiulio, Chair THURSDAY 13 Criminal Law Committee 12:15 p.m. - Rodney O. Personius, Chair Unlawful Practice of Law Committee 12:15 p.m. - Harry G. Meyer, Chair THURSDAY 20 Committee on Veterans’ & ServiceMembers’ Legal Issues 12:15 p.m. - Bar Center, Brennan Room Michael C. Lancer, Chair Municipal & School Law Committee 12:15 p.m. - Michael B. Risman, Chair WEDNESDAY 26 P&P in Family Court Committee 12:15 p.m. - Family Court Building Mindy L. Marranca, Chair THURSDAY 27 Human Rights Committee 12:15 p.m. - Alan J. Bozer, Chair FRIDAY 14 Environmental Law Committee 12:15 p.m. - Adelbert Moot CLE Center John T. Kolaga, Chair Committee for the Disabled 12:15 p.m. - Jessica V. Murphy, Chair P&P in Surrogate’s Court Committee 12:15 p.m. - 438 Main Street, 12th Floor Catherine T. Wettlaufer, Chair FRIDAY 21 Small Law Office Technology Committee 1:00 p.m. - Bar Center, Brennan Room Alvin M. Greene, Chair MONDAY 17 Office Closed ~ Martin Luther King, Jr. Day Young Lawyers Committee 12:15 p.m. - William Patrick Moore, Chair and Joshua Dubs and Leah R. Nowotarski, Vice Chairs www.eriebar.org