March - Bar Association of Erie County

Transcription

Bulletin_March_2016_web_layout 2/26/16 4:47 PM Page 1
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Don’t Miss the “Liberty Under Law”
President’s Ball! Film Screening
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You’ve Been Served On Facebook!
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Bulletin
BAR ASSOCIATION OF ERIE COUNTY
www.eriebar.org
VOL. 54 | NO. 7 | MARCH 2016
Gerstman Named NYSBA President-Elect
Buffalo attorney Sharon Stern
Gerstman has been named presidentelect designee of the 74,000-member
New York State Bar Association.
President’s
Letter
The House of Delegates, the
Association’s governing body, elected
Gerstman during its 139th annual
meeting in Manhattan. She will begin a
one-year term as president-elect on
June 1, 2016 and will become president
on June 1, 2017.
KEVIN W. SPITLER
While recently attending the NYSBA winter meeting and
the recent National Conference of Bar Presidents (NCBP)
meeting, I received reinforcement of my opinion that our Bar
Association is a strong, relevant, and important organization
for all the lawyers of Erie County.
Our strength is in our numbers and our diversity. We represent over 80 percent of all the lawyers in Erie County. Our
strong numbers and the diversified make-up of our Bar
Association enables us to speak as the representative voice for
our attorneys, and allows us to partner with other local professional organizations, when appropriate, to advance programs that benefit our community.
Our relevancy becomes clear to me as I reflect on our ability to listen to and respond to your concerns, goals, questions
and suggestions. We engage in programs and seminars that
support our members and we are the fourth largest bar association in New York state, allowing our voice to be heard on
the state level.
We are important to all of Erie County, not only for our
professional services but for all the good works we do. We
volunteer our time and talents to make the quality of life better in our community. We do it not because we have to, but
because we want to. At the plenary and break-out sessions I
attended, I heard about good things that other bar associations are doing, and I’m proud that we are already engaged in
similar types of programs or events. For example, our
Lawyers Helping Lawyers program, our Committee for
Lawyers with Depression, and our Bar Foundation, which
continued on page 4
Current president-elect Claire P. Gutekunst of Yonkers
will assume the presidency on June 1, 2016, succeeding
David P. Miranda of Albany. Ellen G. Makofsky of Garden
City was elected secretary a third time for an additional oneyear term. Scott M. Karson of Melville was elected treasurer.
Gerstman is of counsel to Magavern Magavern Grimm in
Buffalo, where she concentrates her practice in mediation
and arbitration, and appellate practice. She has long been
active with the BAEC, serving as a director from 1988-1990,
as the Association’s delegate to the ABA House of Delegates
for more than 20 years, and as president of the Erie County
Bar Foundation from 2002-2003.
A 34-year member of NYSBA and currently its treasurer,
Gerstman previously served on the Executive Committee as
an Eighth Judicial District vice president. She is a member of
the House of Delegates, Finance Committee, Civil Practice
Laws & Rules Committee, Dispute Resolution Section, and
Torts, Insurance and Compensation Law Section.
She was chair of the Committee on Civil Practice Law &
Rules and the Special Committee on Lawyer Advertising
and Lawyer Referral Services. Gerstman previously cochaired the Task Force on E-Filing and the Special
Committee on Strategic Planning. She also served on the
ABA Board of Governors for three years and is a current
member of the ABA’s House of Delegates.
A graduate of Brown University, Gerstman earned her law
degree from the University of Pittsburgh School of Law. She
also received a master’s degree from Yale Law School.
Founded in 1876, the New York State Bar Association is
the largest voluntary state bar association in the nation. [B]
26th Annual Real Estate Conference
Set for March 12 at the Foundry
The Real Property Law Committee
will present its popular annual conference on Saturday, March 12, 2016 from
9:00 a.m. until 1:00 p.m. at the Foundry
Hotel & Banquet facility, located at
1738 Elmwood Avenue in Buffalo.
A highly knowledgeable panel of presenters will cover the following topics:
• TRID – The Banking Side and the
Attorney’s Side
• Residential Real Estate Contract
Tidbits
• Ethics
• Building Loans
Employment
Law Update
Set for April 8
pg 9
• Certificates and Approvals
• Easements
Register now at www.eriebar.org or
by calling the CLE department at 8528687.
“Abridged Madness” on Tap for St. Patrick’s Day
On Thursday, March 17th from 12:00 noon until 5:00 p.m., join
President Kevin W. Spitler and your friends at the bar to enjoy the
“Abridged Month Before April Madness” celebration. Basketball,
pizza, wings, beer and soda will be served up at the BAEC offices
at 438 Main Street, sixth floor.
Voluntary donations made by attendees will be earmarked for
a legal services organization such as VLP or LSED at the end
of the festivities.
See the President’s Letter for further information and plan now to
attend!
March 2016 | www.eriebar.org
PAGE 2
Vol. 54 | No. 7 | March 2016
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
Editorial Assistant . . . Elise M. Rahner
Editorial Cartoon . . . . Giles P. Manias
. . . . . . . . . . . . . . . . . . . . Hon. Thomas P. Franczyk
Photography . . . . . . . . Susan L. Kohlbacher
. . . . . . . . . . . . . . . . . . . . Glenn Edward Murray
OFFICERS | 2015-2016
President . . . . . . . . . . . Kevin W. Spitler
Vice President. . . . . . . Gregory T. Miller
Treasurer . . . . . . . . . . . Thomas F. Hewner
Deputy Treasurer . . . . Ericka N. Bennett
Executive Director . . . Katherine Strong Bifaro
BOARD OF DIRECTORS
Jeffrey F. Baase, Laura C. Doolittle, Anne E. Joynt, Douglas P. Stiller,
Cheryl A. Aloi, Jennifer A. Beckage, Sophie Feal, Michael J. Roach,
Elizabeth M. Midgley, James J. Nash, Melissa Hancock Nickson,
Michael F. Perley.
LIFE MEMBERS
Mark A. Adrian, Carol J. Alaimo, Brian D. Baird, Patrick J. Bannister,
Lynn A. Clarke, Eric P. Doherty, Sharon Stern Gerstman, Jean E.
Gittler, Susan J. Grelick, Donald J. Holzman, Melvyn L. Hurwitz,
Michael Kuzma, Stanley Kwieciak III, Michael P. McClain, J. Eldon
Owens, Lauren D. Rachlin, Michael A. Smith, Jeffrey A. Spencer,
James M. Wadsworth.
Would you like to see your name here? See page 22 to find
out how to become a contributing member.
CONTRIBUTING MEMBERS
Joan Casilio Adams, Peter S. Aiello, Grace Marie Ange, Richard J.
Attea, Hon. Tracey A. Bannister, Stephen E. Barnes, Thomas R.
Beecher, Jr., Ronald P. Bennett, Leonard Berkowitz, Richard S. Binko,
Richard N. Blewett, Peter J. Brevorka, Charles Patrick Bridge,
Timothy P. Bridge, Phillip Brothman, Patrick J. Brown, T. Alan Brown,
Joel Brownstein, David Buch, Donna L. Burden, James P. Burgio,
Michael C. Burwick.
John F. Canale, John J. Carney, Alan S. Carrel, Thomas R. Cassano,
Stephen E. Cavanaugh, Emilio Colaiacovo, John F. Collins, William B.
Collins, Anthony J. Colucci, Jr., Robert N. Convissar, Edward C.
Cosgrove, Paul V. Crapsi, Jr., Douglas S. Cream, Steven P. Curvin,
Roger T. Davison, Regina A. Del Vecchio, John M. Dempsey, Richard
F. DiGiacomo, Anne C. DiMatteo, Dean M. Drew, Hon. Timothy J.
Drury, Donald B. Eppers, Leo J. Fallon, Victor N. Farley, Gabriel J.
Ferber, Michael E. Ferdman, Robert P. Fine, Peter J. Fiorella, Jr., Brian
P. Fitzgerald, Lawrence C. Franco, Bernard B. Freedman, Hon.
Brenda M. Freedman, Jeffrey M. Freedman, Maryann Saccomando
Freedman, Robert Friedman, John J. Fromen.
Thomas J. Gaffney, William H. Gardner, Lynn D. Gates, Eugene M.
Gaughan, Stuart A. Gellman, Jerome C. Gorski, Wayne R. Gradl, John
C. Grennell, Richard F. Griffin, John J. Gruber, Mark W. Hamberger,
Thomas J. Hanifin, James P. Harrington, Mary Louise Hayden,
William R. Hites, Susan S. Hogan, Edwin P. Hunter, Norman E. Joslin,
James B. Kane, Jr., Judith D. Katzenelson, James J. Kirisits, William J.
Kita, Dan D. Kohane, Karl W. Kristoff, Thomas E. Krug.
Letter to the Editor
The following letter was sent by President Kevin W.
Spitler to the editor of the Buffalo News.
Dear Mr. Connelly:
I am writing in response to the articles Donn Esmonde has
written concerning the Beth Hoskins case. My focus is not
upon the facts of the case, nor about Ms. Hoskins, the SPCA
or any of the attorneys involved.
Rather, I write to voice my objection of Mr. Esmonde’s
characterizations of Justice Joseph R. Glownia. Each of the
columns launched very personal attacks on the Judge. I found
them demeaning and mean spirited; they added nothing to
the reporting of the story. As the only major newspaper in
Western New York, how do descriptions of Judge Glownia
and Aurora Town Justice Douglas W. Markey as “rubber
spined” jurists who allowed the “legal manure” to pile high in
the courtroom clarify for the reader what is taking place?
Mr. Esmonde continues to use horse-related references in
his ad hominem attacks, stating that Justice Glownia is wearing “blinders” and needs to “wake up and smell the oats.” He
then refers to Justice Glownia as a “Larry David look-alike”
(how is that in any way relevant?) and says that the Judge is
“still drinking the enabler-flavored moonshine” and presiding over a “circus.”
It is clear that Mr. Esmonde is unhappy with how this case
is proceeding, and many in Western New York may also be
unhappy with how it’s being resolved, but shouldn’t the
reporting be done in a way that doesn’t ridicule the Judge?
There is already too much pointless ridicule in our society
today, most notably in the national political arena. It’s very
disappointing that Mr. Esmonde and your newspaper have
chosen to publish snide, caustic remarks instead of focusing
more on the actual court proceedings and the complex workings of our justice system.
Most people are unaware that members of the judiciary are
unable to respond to attacks of this nature due to con straints
imposed by the code of judicial ethics. Why allow your newspaper to lend its considerable strength and prestigeto belittling a justice system that is the envy of so many other
countries?
Mr. Esmonde further opines that “if the Judge was any
more accommodating (of Hoskins), he’d serenade spectators
with a chorus of Hakuna Matata.” I close by asking why it’s
considered a problem when a judge presiding over a very
contentious matter makes an effort to get the parties to a
peaceful resolution? After all, isn’t that the whole point?
Sincerely yours,
KEVIN W. SPITLER, President
Bar Association of Erie County
Stephen R. Lamantia, John P. Lane, Richard J. Lehner, John N.
Lipsitz, Arthur A. Lorenzo, Frank LoTempio III, Leo M. Lynett, Jr.
James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Giles P.
Manias, Mary Dee Martoche, Salvatore R. Martoche, Norman J.
Mattar, Hon. Jeremiah J. McCarthy, Maureen A. McCready, Thomas
I. McElvein, Jr., Donald G. McGrath, Diane J. McMahon, Brian M.
Melber, Raymond T. Miles III, Joseph D. Mintz, Albert J. Mogavero,
Peter J. Murrett, Jr., Joseph M. Nasca, Paul T. Nesper, Paula M. Eade
Newcomb, Anthony M. Nosek, Hon. Henry Jos. Nowak, James J.
O’Brien, Hon. John F. O’Donnell, Timothy M. O’Mara.
Carl P. Paladino, Frank R. Papa, Anthony D. Parone, James A.
Partacz, Robert E. Pearman, Hon. Erin M. Peradotto, Robert H. Perk,
Jeffrey A. Perla, Michael F. Perley, Arcangelo J. Petricca, Joel M.
Poch, Theodore J. Pyrak, James P. Renda, Mary (Molly) K. Roach, Jay
N. Rosenthal, Richard P. Rosso, Arthur J. Rumizen, Arthur A. Russ, Jr.,
Thomas Santa Lucia, Scott M. Schwartz, Edward J. Schwendler, Jr.,
Richard B. Scott, Richard J. Sherwood, Louis H. Siegel, Myron M.
Siegel, Robert G. Sillars, Richard Charles Slisz, Robert B.
Sommerstein, Gregory Stamm, Robert S. Stephenson, Milton J.
Strebel, David L. Sweet, Kathleen M. Sweet.
Gordon D. Tresch, Thomas V. Troy, Frederick D. Turner, Dimitri J.
Tzetzo, Peter A. Vinolus, Dale M. Volker, Matthew X. Wagner, Jr., John
B. Walsh, Neil Weinberg, Wayne D. Wisbaum, Richard D. Yellen.
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
April 2016 Bulletin
The next deadline for ALL Bulletin contributors and advertisers is
Friday, March 4, 2016
Call Elise Rahner
at Bar Headquarters for
more information, 852-8687.
PAGE 3
Skadden Fellow to
Help Small Businesses
Through Law Center
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
international 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. Email your
notice and high resolution photo (300 dpi) to
[email protected].
Denis J. Uminski has received the
New York National Guard Gold
Volunteer Award for 2015. Uminski was
selected for providing legal services to
reserve and active service members, veterans, and their families since graduating
from UB Law School in 1999. He was
cited for his “unparalleled support” and
Uminski
“personal sacrifices…(which have contributed) to the operational readiness of
units and families.” The New York National Guard has now
nominated Uminski for a National Gold Volunteer Award.
Roberts
Charlie Roberts and Heather
Dechert have joined Webster Szanyi
LLP. Roberts is a partner and Dechert is
a member of the litigation practice
group. With 18 years of experience in litigation and general corporate counsel
services, Roberts most recently served as
assistant general counsel for Delaware
North.
Dechert has experience in civil litigation matters, with a focus on labor and
employment. A magna cum laude graduate of the University at Buffalo Law
School, she was previously with the Jones
Day firm in Cleveland.
Barnas
Brian D. Barnas has joined the insurance coverage practice team at Hurwitz
& Fine, P.C. Recently admitted to the
New York Bar, Barnas received his JD
summa cum laude from the SUNY at
Buffalo School of Law and his BA
summa cum laude from SUNY at
Buffalo. He has litigation experience in
state and federal courts and before
administrative agencies.
With the retirement of shareholder Kristin Kent, Hagelin
Kent LLC has been renamed Hagelin Spencer LLC.
Headquartered in Buffalo, the firm also has offices in
Rochester, Syracuse and Garden City. The new name is
based on the surnames of founder Michael T. Hagelin and
long-term shareholder Sean M. Spencer. Trank
Ashley Trank and Richard Zielinski
have joined Chelus, Herdzik, Speyer &
Monte, P.C. as associate attorneys,
where they will focus on litigation and
general practice matters. They will work
from both the downtown and
Cheektowaga locations.
A graduate of Canisius College, Trank
received her JD from the State University
at Buffalo Law School.
For the first time since 1992, a recipient of the Skadden Fellowship will be
bringing their talent and skills to Buffalo.
The Western New York Law Center will
host Steven Salcedo, one of the twentyeight Skadden Fellows, to assist small
business owners and entrepreneurs with
legal matters. The Skadden Fellowship
Salcedo
Program, described as “a legal Peace
Corps” by The Los Angeles Times, was
created to help fund graduating law students who wish to
provide legal services to the poor.
The Western New York Law Center is a nonprofit law
firm that engages in community- focused legal services for
the underserved. The Law Center provides free legal services
for community members through direct representation of
homeowners facing foreclosure and bankruptcy; and hosts a
twice weekly consumer walk-in clinic in the community.
Salcedo’s work through the Skadden Fellowship will expand
the work of the Law Center to include assistance to small
business owners and entrepreneurs.
Salcedo’s first encounter with the Law Center was when
he served as a legal intern last summer. Upon entering
Harvard Law School, Salcedo knew that he wanted his law
career to focus on serving underrepresented people. Like
most students, he wasn’t quite sure how to make this aspiracontinued on page 24
Zielinski is a graduate of the State
University at Buffalo and its Law School.
Admission to the
U . S . S u p r e m e Co u rt
Zielinski
Christopher M. Berloth and Ryan G.
Ganzenmuller have joined Duke,
Holzman, Photiadis & Gresens, LLP as
associates. Berloth is a summa cum laude
graduate of SUNY at Buffalo and a cum
laude graduate of SUNY at Buffalo Law
School. Berloth
Ganzenmuller is a cum laude graduate
of SUNY Binghamton and a magna
cum laude graduate of SUNY Buffalo
Law School. Both new associates will
concentrate their practice in commercial
litigation. Dechert
Ganzenmuller
continued on page 24
Expand your mind and
improve your practice!
A group of Erie County lawyers
will travel to Washington, D.C. on
Monday, APRIL 25 to be admitted to
the U.S. Supreme Court Bar.
There is still time to join them.
See page 23 for details.
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 Kathie Bifaro at 852-1777.
All services are individualized and completely confidential.
It’s great to belong to
something this good.
PAGE 4
President’s Letter
continued from page 1
helps lawyers cope with financial, medical and family problems. You, the members of our association, relentlessly reach
out. That is a measure of who you are and who you continue
to be. I am very proud to have the privilege to lead this
organization.
I want to mention two other items of note from the NCBP
meeting. One of the current issues being debated on the
national level is the proposal for a national lawyer referral
service. Currently there is a pilot program for this national
service operating in three states. The ABA has entered into
preliminary agreement with Rocket Lawyer to roll out this
nationwide lawyer referral service. NYSBA President David
Miranda has come out strongly against this.
I agree with President Miranda that the program will hurt
the NYSBA lawyer referral service, but more importantly for
us, I believe it will hurt our own lawyer referral program. As
those of you who are members of our referral program know,
it’s a win-win-win for the client, the lawyer, and our Bar
Association. Clients with local problems need to be able to
speak with and be represented by local lawyers. Just as most
politics are local, so are legal matters. I think a national referral service does not benefit people seeking local counsel. I
hope you agree.
Another issue discussed at the NCBP is the possible creation of law firms with non-lawyer ownership. The nonlawyers in these firms would be individuals who have made
financial investments in the firms, but are not subject to the
code of professional responsibility. Their purpose in investing in the firm is to obtain a return on their investment. A
question raised by many is that while law firms make a profit
by performing legal work within the bounds of the code of
professional responsibility, will the non-lawyer owners also
be so constrained? Are we starting down a slippery slope? I
fear that we are. I intend to watch this issue closely.
One last reminder. I’m happy to confirm the return of the
Month before April Madness event. On Thursday, March 17
(yes, it’s St. Patrick’s Day as well), we will be hosting a gettogether at BAEC Headquarters from noon to 5:00 pm to
watch the second round games of the NCAA Men’s
Basketball Tournament. Healthy food (pizza, wings, etc.),
healthy drinks (beer, soda, and water) and good company will
be on the menu. So if you’re a college basketball fan, please
come. If you’re not, but are just hungry or thirsty, please
come. If you‘re Irish, please come. It’s always been fun in the
past and I can assure you it will be fun again.
[B]
citations
By Jeff Spencer
A NEW DOC DUTY
To the hospital she drove
For treatment most fine
But she left a bit foggy
And got into a bind.
The painkillers she received
Had effects that would last
And her car got into
A terrible crash.
The plaintff (who she hit)
Sued the doctors and more
The damages they said
By the doctors should be borne.
The doctors moved to dismiss
The plaintiffs’ claim
Saying they only did their job
And were not to blame.
To the High Court they went
To review the doctors’ duty
If their failure to warn
Required payment of damages booty.
The Court’s analysis
Was clear and crisp
And failure to warn
Was added to the duty list.
The burden was minimal
To issue this warning
And save the patient and others
From a dangerous journey.
Davis et al. v. South Nassau Community Hospital et
al.,__NY3rd__, 12/16/15, opinion by Hon. Eugene M.
Fahey.
PAGE 5
President’s Ball to be Held
at Twentieth Century Club
Special Reception
to Honor Whalen
Plan now to enjoy an evening of camaraderie and good
cheer with your friends from the bar!
Special thanks to the following sponsors for their support
of this event:
To congratulate Hon.
Gerald J. Whalen on his
recent
appointment
as
Presiding Justice of the
Appellate Division, Fourth
Judicial Department, a special reception will be held on
Thursday, March 24 at
Templeton Landing from
5:00 until 7:00 p.m.
The reception is co-sponsored by the Bar Association
Whalen
of Erie County, the
Minority Bar Association of
Western New York and the Western New York
Chapter of the Women’s Bar Association of the State
of New York. Tickets are $70 and can be purchased by
contacting Susan Kohlbacher at 852-8687, ext. 120, or
[email protected].
Gold Sponsors
Counsel Press, Inc.
EFPR Group, LLP
Paramount Settlement Planning, LLC and
Precision Resolution, LLC
Law Firm Sponsors
Gibson, McAskill & Crosby, LLP
The 2016 President’s Ball, in honor of President Kevin
W. Spitler and the Association’s past presidents, will be
held on Saturday, April 16 at the Twentieth Century Club
from 7:00 until 10:00 p.m. The black-tie optional gala will
include cocktails, hors d’ouevres, food stations and dancing
to the sounds of Total Eclipse.
Tickets are $125 per person; contact Susan Kohlbacher at
852-8687 or [email protected] to make reservations.
Greco Trapp, PLLC
Hodgson Russ LLP
Lipsitz Green Scime Cambria LLP
Lipsitz & Ponterio LLC
Nixon Peabody LLP
Law Office of Timothy M. O’Mara
PAGE 6
That might solve the problem of the percentage beneficiary. But of course, it does not deal with the situation where
the executor sells some stock, purchases new stock, and distributes that new stock to the percentage residuary beneficiary. That new stock would not be listed on the estate tax
return, and, therefore, the Schedule A could not be completed with the required information.
death and taxes
By Peter J. and Jillian E. Brevorka
IRS Issues Form 8971 – Chaos Ensues
As we reported a few months ago, the Surface
Transportation and Veterans Health Care Choice
Improvement Act of 2015 requires executors and other persons who are required to file the federal estate tax return
(form 706) to also report to the IRS and to each beneficiary
receiving property from an estate, the estate tax value of the
property, if the return is filed after July 31, 2015. The IRS
issued a notice delaying that reporting requirement until
February 29, 2016, for any estate tax returns filed after July
31, 2015, and before February 16, 2016. The Surface
Transportation Act enacted Sections 1014(f) and 6035 of the
Internal Revenue Code, which contain the reporting requirements.
The separate Schedule A is to be completed with respect
to each beneficiary and all of the Schedules A are to be
attached to the Form 8971, which is filed with the IRS. The
instructions direct that Schedule A should also be provided
to each beneficiary, and the date upon which each such
schedule is provided to the various beneficiaries of an estate
should be indicated on Form 8971. Thus, Schedules A will
have to be sent to beneficiaries before, or at least coincidentally with, the filing of Form 8971 with the IRS. Form 8971
directs that “To protect privacy, Form 8971 should not be
provided to any beneficiary.” Thus, an executor cannot simply prepare the Form 8971 with its attached Schedules A and
send the form to every beneficiary.
The alleged purpose of these new sections was to implement income tax consistency of basis reporting for taxpayers
receiving property from a decedent. Regrettably, that has not
been achieved.
Schedule A requires: “Description of property acquired
from the decedent and the Schedule and item number where
reported on the decedent’s form 706…If the beneficiary
acquired a partial interest in the property,
indicate the interest acquired…”
The IRS has now issued Form 8971 for
such reporting, along with instructions for
that form. Unfortunately, the form and its
instructions have created a great deal of
uncertainty. The Tax Section of the
American Bar Association, the American
College of Trust and Estate Counsel
(ACTEC) and the American Institute of
Certified Public Accounts (AICPA),
among others, have issued extensive correspondence to the IRS pointing out
numerous problems with the form and the
instructions. The IRS has indicated informally that it is going to issue regulations
to provide further guidance.
“The alleged purpose of
these new sections was
to implement income
tax consistency of basis
reporting for taxpayers
receiving property
from a decedent.
That would be easy in the case of a
bequest of a specific piece of property or a
specific stock. Where the fun comes in is
if the bequest is of a sum of money or a
percentage interest in the residuary estate.
The instructions provide: If the executor has not determined which beneficiary
is to receive an item of property as of the
due date of the Form 8971 and
Schedule(s) A, the executor must list all
items of property that could be used, in
whole or in part, to fund the beneficiary’s
distribution on that beneficiary’s
Schedule A. (This means that the same
property may be reflected on more than
one Schedule A.)
Form 8971 must be filed 30 days after
Regrettably, that has
the filing of the federal estate tax return
(Form 706). For those taxpayers who have
not been achieved.”
Unless an estate has sufficient cash to
a federal estate tax return currently due,
pay cash bequests, it will be necessary to
they might be well-advised to extend the
sell some assets to raise cash. Thus, the
due date of the return, until the promised
instructions appear to say that all of the
regulations have been issued. But those
assets of the estate must be shown on the
who have filed returns since July 31, 2015,
beneficiary’s Schedule A, since any of those items could be
will have no choice but to file the Form 8971 on or before
sold to raise the cash to pay his bequest. It is unclear how that
February 29, 2016.
could be of any assistance to the beneficiary in determining
his basis in the property he ultimately receives from the
The Form 8971 consists of the form itself and a Schedule
estate.
A with respect to each beneficiary of the estate. The Form
8971 merely requires the identifying information about the
The instructions do note, however, “A supplemental Form
estate and the executor, and the names, addresses and tax ID
8971 and corresponding Schedule(s) A should be filed once
numbers of the beneficiaries.
the distribution to each such beneficiary has been made.”
Similarly, the beneficiary of a percentage of the residuary
would need to receive a Schedule A showing all of the estate
assets, and an explanation that the beneficiary may get a percentage of some of those assets, after payment of debts, estate
taxes and administration expenses.
The instructions say that, “A form or schedule filed with
the IRS without entries in each field will not be processed. A
form with an answer of ‘unknown’ will not be considered a
complete return.” Thus, if a beneficiary fails to advise the
executor of the beneficiary’s taxpayer ID number, the executor could be in default of the filing requirements.
The instructions contain rules for providing Schedule A to
the beneficiaries:
A beneficiary can be provided Schedule A: In person to an
individual beneficiary, to the trustee(s) of a beneficiary trust,
or to the executor(s) of a beneficiary estate; by email; by U.S.
mail to the beneficiary’s last known address; or by private
delivery service to the beneficiary’s last known address…The
executor of the estate (or other person required to file) must
certify on Form 8971, Part II, Column D, the date on which
Schedule A was provided to each beneficiary and should keep
proof of mailing, proof of delivery, acknowledgment of
PAGE 7
cyberlaw: the brave new e-world
By Anne F. Downey
Last month, we took a look at daily fantasy sports (DFS)
in New York, including the litigation between the New York
Attorney General and FanDuel and DraftKings that resulted
in Judge Mendez’ decision enjoining the DFS companies’
activities in our state. Recently, on January 11, 2016, the
Appellate Division, First Department stayed Judge Mendez’
order on condition that the appeals filed by FanDuel and
DraftKings be perfected for the May 2016 Term.
As discussed last month, one of the issues addressed in
Judge Mendez’ decision was whether the Federal Unlawful
Internet Gambling Enforcement Act of 2006 (UIGEA), 31
U.S.C. 5361-5367, provides a carveout for DFS. Judge
Mendez rejected the DFS companies’ arguments that the
UIGEA protects their activities. While the UIGEA includes
an exception for fantasy sports, Judge Mendez noted that the
UIGEA does not validate activities that are unlawful under
state law, and New York State law contains no exemption for
fantasy sports.
This month we take an in-depth look at the UIGEA issue.
I gratefully acknowledge the assistance of my partner, Robert
McLaughlin, head of Hodgson Russ’s Gaming Law Practice.
Besides being an expert on gaming issues, Bob is a fun guy
who, when he headed the New York Lottery, got to drive
around the state handing out jackpot checks. Nice work if
you can get it.
The UIGEA prohibits the knowing acceptance by a person engaged in the business of betting or wagering of any
financial instrument for unlawful Internet gambling from
another person. 31 U.S.C. 5363 The UIGEA does not make
gambling activity illegal. Interactive Media Entm’t & Gaming
Assoc. Inc. v. Attorney Gen. of U.S., 2009 WL 2750279 (3d
Cir. 2009). Rather, the UIGEA makes the acceptance of certain financial transactions unlawful. Financial instruments or
transactions covered by the UIGEA include credit card payments, EFT transfers, checks, and a variety of other payment
mechanisms.
The term “unlawful Internet gambling” under the UIGEA
means “to place, receive, or otherwise knowingly transmit a
bet or wager by any means which involves the use, at least in
part, of the Internet where such bet or wager is unlawful
under any applicable Federal or State law in the State or
Tribal lands in which the bet or wager is initiated, received,
or otherwise made.” 31 U.S.C. 5362
The UIGEA carves out several exceptions from the definition of what is a “bet or wager” including one for fantasy
sports. Simply, under 31 U.S.C. § 5362, it is not a bet or
wager under UIGEA if a player participates “…in any fantasy or simulation sports game or educational game or contest in which (if the game or contest involves a team or
teams) no fantasy or simulation sports team is based on the
current membership of an actual team that is a member of an
amateur or professional sports organization
…” provided certain conditions are met:
(I) All prizes and awards offered to
winning participants are established
and made known to the participants in
advance of the game or contest and
their value is not determined by the
number of participants or the amount
of any fees paid by those participants.
(II) All winning outcomes reflect the
relative knowledge and skill of the participants and are determined predominantly by accumulated statistical
results of the performance of individuals (athletes in the case of sports
events) in multiple real-world sporting
or other events.
(III) No winning outcome is based
(aa) on the score, point-spread, or
any performance or performances of
any single real-world team or any
combination of such teams; or
During the House debate on H.R. 4411 (portions of which
became part of the UIGEA), Rep. Phillip Gingrey (R-Ga.)
stated that the bill “reaffirms our commitment to federalism
by protecting the rights of the States to regulate Internet
gambling within their respective borders.” Likewise, Rep.
Bob Goodlatte (R-Va.) stated that “Internet gambling
ignores the law of the 50 States, which vary each one compared to the next. Some States, like Utah, ban all forms of
gambling. Other States, like Nevada next door, legalize a
great many forms of gambling. This legislation does not
interfere with that…”
In supporting a related bill, H.R. 4777, the Senate
Committee on the Judiciary explained the need for a federal
law governing financial transactions related to Internet gambling:
“State attorneys general have been frustrated in their
attempts to prevent Internet gambling in their respective
States. Some have attempted to charge Internet gambling
providers with violations of State consumer fraud laws, but jurisdictional
issues and other problems have thwarted
these efforts…H.R. 4777 brings clarity
and certainty to Federal law that operat“State attorneys
ing an Internet gambling business is a
violation of Federal law. However, the
general have been
legislation does not supersede the traditional leadership roles of States in
frustrated in their
enforcing gambling laws within their
borders. It addresses a growing problem
attempts to prevent
that no single State can adequately
address. Because of the uniquely interInternet gambling
state and international nature of the
Internet, H.R. 4777 is necessary, and
in their respective
provides the States and the Federal government with the tools needed to reduce
States.”
the prevalence of Internet gambling –
while providing additional tools to
enforce these prohibitions.”
(bb) solely on any single performance of an individual athlete in any single real-world
sporting or other event.
While the above exception provides a shield for certain
financial transactions related to fantasy sports – namely a
shield from liability under the UIGEA – it is important to
note that the UIGEA does not limit a state’s ability to define
gambling and, specifically, to prohibit gambling activities,
including fantasy sports, in the state.
The legislative history from 2006 makes clear that the
UIGEA was not intended to trump state gambling laws.
DraftKings argues that the UIGEA
carveout for fantasy sports shows that
fantasy sports are different and warrant
distinct recognition. DraftKings stated
in a complaint recently filed in litigation
against the Illinois Attorney General that “Congress recognized that fantasy sports activities are different from the
gambling UIGEA prohibits because American enjoyment of
fantasy sports activity has been traditionally understood not
as criminal activity, but as innocent and innocuous conduct…DraftKings operates with careful attention to
UIGEA…”
While Congress may have drawn a distinction between
fantasy sports and gambling, that does not mean that DFS is
continued on page 8
PAGE 8
News from Kent, Our Sister City
By Jonathan Smithers
It is something of a relief to write on terra firma rather
than in between fine dining at 30,000 feet!
to bear arms to guard against an overbearing state; neither do
they seek that protection.
I have just returned from another long haul, firstly to
Malaysia then to Hong Kong. In both countries, I was able
to participate in the opening of the legal year celebrations
with many other international bar leaders. Malaysia has been
in the grip of a corruption scandal with significant allegations
made against the prime minister. The attorney general has
since given assurances that there is no case to answer but the
Malaysian Bar Association has been in the forefront, to make
the case that there must be open and transparent accountability. Some senior members have been under pressure to
keep quiet but have not wavered.
In contrast, Hong Kong (HK) has very different but ultimately the same problems. Since the British handover of the
territory to the Chinese some 20 years ago, the city and its
tiny environs have undergone a remarkable transformation.
Vast building projects and a fundamental shift to services and
import/export from manufacturing have made it the happening place.
They have a very profound sense of duty, understanding
that the integrity which marks them out as a profession
requires action, regardless of the personal consequences. It is
a very graphic illustration of the rule of law and the necessity
of the legal profession to uphold it. Coincidentally (and just
to keep this topical), their constitution does not allow them
The Hong Kong legal system is still common law, based
on the English and Welsh jurisdiction. It operates well
allowing the rule of law to function, as agreed with the
Chinese government. The agreement to have a sovereign
country (China) with two different legal systems, one for
HK, one for the mainland, causes inevitable tensions.
However, time marches on. The deal will end in 30 years, at
which time it is widely anticipated that the HK territory will
be subsumed into the mainland system.
Jonathan Smithers is pictured above with Stephen Thiru,
President of the Malaysian Bar Association, at the Opening
of the Legal Year in Kuala Lumpur.
Questions have been raised, as yet unanswered, about the
detention of an HK bookseller by the Chinese government.
The way in which each jurisdiction deals with its citizens creates a tension which highlights how the rule of law operates
and, in turn, about the confidence of business to invest. The
legal sector is a major driver of the economy and the economy of it. Thus one situation can create ripples. Time will
tell how significant they may become but once again the
lawyers are front and center.
I had a flying visit to Brussels (actually on the train
through the Channel Tunnel!) via Lille to visit the European
Parliament and meet with some of its members. My opinion
on whether the UK will vote to leave the European Union
was much sought. The Law Society is staunchly neutral on
the subject (we will of course have members on both sides of
the argument) but have produced a report detailing the evidence from our firms and their clients which indicate a chilling effect on business activity were we to leave.
I was asked to speak on a panel the subject of which was
to explore the harmonization of professional rules. There
seemed little appreciation of the differences between professions and those which have embedded ethical values.
Included in the mix were some unusual ones like wedding
photographers, which are regulated in Belgium (who knew?).
I hope I was able to spread a little more knowledge but can
attest that the hot air produced in the European
Parliamentary environs negates the need to centrally heat the
buildings.
Chief Justice Ma’s address at the opening of Hong Kong’s Legal Year is observed by the Hong Kong judiciary.
I started off writing this column in my office in London
and am finishing it sitting in a departure lounge at Heathrow
(coach, in case you were wondering) on my way to a bar leaders conference hosted by the Austrian Bar Association in
Vienna. This one is always well attended as it culminates in
a white tie ball at the Hofburg Palace on Saturday evening.
More of that with pictures next time. Our continental partners may revel in their bureaucracy but they surely throw a
great party!
[B]
Cyberlaw
valid in New York state because of the UIGEA. As stated in
the New York Attorney General’s complaint filed in the litigation against FanDuel and DraftKings, “UIGEA explicitly
left all other federal and state gambling laws intact, and provided that ‘No provision of this subchapter shall be construed
as altering, limiting, or extending any Federal or State law or
Tribal-State compact prohibiting, permitting, or regulating
gambling within the United States.’”
Several years ago, a facial constitutional challenge was
brought to the UIGEA when Interactive Media
Entertainment & Gaming Association (iMEGA), a nonprofit gaming information association, sued the U.S.
Attorney General in the U.S. District Court for the District
of New Jersey. iMEGA alleged that the UIGEA was overly
broad, void for vagueness and violated iMEGA’s First
Amendment rights, gamblers’ privacy rights, and the Tenth
Amendment. The district court rejected all of iMEGA’s
claims, some on standing grounds, and others on the merits.
On appeal, the Third Circuit upheld the constitutionality
of UIGEA. Interactive Media Entm’t & Gaming Assoc. Inc. v.
Attorney Gen. of U.S., ibid. The court’s decision clearly noted
that the UIGEA does not trump state laws defining what
constitutes illegal gambling in a state: “It bears repeating that
the Act itself does not make any gambling activity illegal.
Whether the transaction in Interactive’s hypothetical constitutes unlawful Internet gambling turns on how the law of the
state from which the bettor initiates the bet would treat that
bet, i.e., if it is illegal under that state’s law, it constitutes
‘unlawful Internet gambling’ under the Act.”
Thus, if FanDuel and DraftKings are looking for a carveout to protect DFS, it appears that the UIGEA will not provide that shelter from the storm. It remains to be seen
whether the DFS companies will be successful in lobbying
the New York legislature for statutory relief.
[B]
PAGE 9
“Liberty Under Law” Film Screening Set for April 13
“Liberty Under Law: The Robert
H. Jackson Story” will be shown on
Wednesday, April 13 from 4:00 to
5:00 p.m. at the U.S. District Federal
Courthouse. A reception will follow
and the cost is $10.
From a “county seat” lawyer to
President Franklin Roosevelt’s inner
circle, Robert H. Jackson became
Solicitor General, Attorney General,
U.S. Supreme Court Justice and Chief
U.S. Prosecutor of the most important
international trial in history Nuremberg. Jackson remains the only
one in United States history to serve
in three federal legal positions.
In addition to being the story of
Jackson’s life, “Liberty Under Law”
explores the reaches of presidential
power during wartime; the tenuous
balance between civil liberties and
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. Don’t wait.
Please call the 24-hour domestic violence
hotline at 884–6002.
Don’t Suffer in Silence.
Let Us Help You Find Your Voice.
national security; and the global application of international law.
This year marks the 70th anniversary
of the Nuremberg Trials over which
Jackson presided from November 20,
1945 until. October 1, 1946. President
Harry S. Truman appointed thenAssociate Supreme Court Justice Jackson
as chief prosecutor for the United States
in the trials of Nazi war criminals.
Jackson considered the most important
work of his life to be at Nuremberg,
where his diligence and vision set legal
precedents that continue to affect the
international law community today.
Special thanks to Phillips Lytle LLP
for sponsoring this event. Space is
limited; please contact Maureen Gorski
at 852-8687 or [email protected]
to register.
[B]
Employment Law Update
The Bar Association of Erie County will collaborate with
the Women’s Bar Association of the State of New York
(WBASNY) Western New York Chapter to present an
Employment Law Update on Friday, April 8 from 10:00 am
until 4:00 pm in the Sun Room Auditorium at 438 Main
Street in downtown Buffalo. The program will provide
5.5CLE credit hours and will include lunch. The cost of registration is $125. A 10 percent discount is available when
three or more members of the same firm register at the same
time.
The program will include:
• Tasha Moore - Overview of Dealing with the Division
of Human Rights and Substantive NYS Human Rights
Law Update
• Elizabeth Fox-Solomon - Equal Employment
Opportunity Commission update, including trends in
filings and dispositions, new/updated agency positions
and priorities, most common mistakes made by employers, most common mistakes in dealing with the agency,
and substantive updates (e.g., wellness programs, gender
identity).
• Candace Alnaji - Pregnancy discrimination and accommodation issues, including recent Supreme Court case,
EEOC guidance, and more.
• Rhonda Ley - National Labor Relations Board developments and guidance; and what employers need to do to
make sure their handbooks are in compliance.
• Claire Sellers - Public sector and union update.
• Kinsey O’Brien - New York State legislative and regulatory update, including Women’s Equality Agenda,
regulations on payroll, minimum wage updates, and
more.
Register today at www.eriebar.org or by calling 852-8687.
PAGE 10
Lawyers Helping Lawyers
Will Power Is Not Enough
Self-sufficiency, a spirit of
independence and carefully nurtured feelings of intellectualized
stubbornness are some of the
hallmarks of our profession character traits which can be
devastating for those of us who,
like myself, suffer from the disease of alcoholism.
Ten years ago, if anyone had
suggested that there was any
kind of problem that I could not
overcome with will power, study,
perseverance and control (let alone my drinking, “social” of
course), I would have responded in a none-too-subtle manner that that person had been using his or her head for a
hockey puck.
Are You An Attorney
Struggling With
Depression?
If so, you’re definitely not alone. A recent
Johns Hopkins study of 108 occupations
found that lawyers topped the list of those
who suffered from depression. Attorneys
were found to suffer from depression at a
rate of four times that of the general population.
Depression is a treatable illness and the
right combination of medications and therapies can significantly improve the quality
of life for those who suffer from it.
Help and support are just a phone call
away. The Lawyers with Depression
Support Group meets on a weekly basis to
share stories and fellowship. The group
meets every Friday (except holidays). See
the calendar on page 28 for meeting dates,
times and locations.
If you or a colleague are struggling with
depression, there is no need to suffer in
silence. For further information, visit
www.lawyerswithdepression.com or contact
Daniel T. Lukasik at 885-1300. All calls are
strictly confidential. We invite you to join us
and share your story.
Engaged in a profession stressing the art of persuasion, I
succeeded in convincing myself (if no one else) that I could
control my drinking any time I chose to. This attitude was
maintained against all efforts by friends, family and colleagues to break through the Maginot Line of my denial until
my world was collapsing around me. Fired from my position
in an area firm, I became embroiled in myriad professional,
financial and domestic crises. I lost the last vestiges of control and became powerless over almost any aspect of my life.
Filled with fear, it became an ordeal even to read my mail or
answer the telephone.
The only person fooled by my feeble attempts to fabricate
a facade of normalcy was me.
It was not until I had reached the nadir of my life, lost in
a morass of helplessness, self-pity and loathing, that I was
able to overcome my own sense of pride and bull-headed
stubbornness, to admit defeat, ask for help and become
teachable.
A miracle happened. People helped me when I asked for
it.
Since that time and with help that is so freely offered, my
life has improved in every aspect, beyond any expectation I
might have had. Of paramount importance is my recognition
of my illness and the return of self-respect which came with
facing it and treating it in an honest manner. In relying solely
on my own will power to combat alcohol, I had refused to
recognize that the progression of my disease had removed
any self control I thought I had.
My message for anyone reading this article can be reduced
to this: if you are powerless over alcohol and your drinking is
causing problems in your life, you do not need to suffer any
more. We are all human. Our profession does not endow us
with unique powers to deal with this devastating disease. If
we are willing to accept the help that we can offer to each
other, we can learn to live again, instead of remaining in fear
of what each day may bring, drowning ourselves in alcohol to
anesthetize the pain of an unhappy existence.
“The only person
fooled by my
feeble attempts
to fabricate
a facade of
normalcy
was me.”
If you have a desire and need to
stop drinking, the BAEC’s Lawyers
Helping Lawyers Committee or the
State Bar’s Lawyer Assistance
Program can help you. Your
anonymity will be scrupulously protected, and there is nothing to lose
except fear, pain and misery.
[B]
Editor’s note: This column was
written anonymously by a member of
the Lawyers Helping Lawyers
Committee. If you or a colleague are
struggling with substance abuse, help
is readily available. Call 852-1777
for completely confidential assistance.
“You and the Law”
Educates Public on
Legal Issues
We appreciate the time that the following
members of our legal community have taken to
educate the public about legal matters by volunteering their time to appear on You and the
Law. The program airs every Friday at 5:45
p.m. during NPR’s “All Things Considered.”
Derek B. Wheeler
Earned Income Credit and/or
Avoiding Tax Preparer Fraud
Gabriela Agostinelli
Marriage-Based Green Cards for
Cross-Border Couples
John M. Del Vecchio
Protecting Inventions and the Patent
Process
Diane R. Tiveron
“Now You Have a Judgment, How Do
You Get Paid?”
Keisha Williams
Foreclosure and Bankruptcy
You and the Law is underwritten by the Erie
County Bar Foundation and the Lawyer
Referral and Information Service of the
BAEC. If you would like to appear as a guest
on the program, please contact Celeste Walsh at
call 852-8687 ext. 118 or by e-mail at
[email protected].
to know how to manage (read: protect) such information
when you’re not sure what’s there, let alone where it is, in the
first place.
lost in (techno) space
By Martha Buyer
Information Security: The New IT (or “It”) Issue
There is no question that the amount of information created in the information age is overwhelming. From banking
transactions to Fitbits, we are all generating incredible
amounts of information every single day, whether we realize
it or not. As should no longer be surprising, this data - this
information about us as individuals - is vulnerable.
Consequently, issues of data security and privacy have moved
to the mainstream in a quick and powerful way. And that’s
before we even whisper the name “Snowden.”
Taking note of the sheer number of vulnerabilities, governmental bodies - from all three branches of government, as
well as state and federal authorities - have gotten involved.
Primarily, the Federal Communications Commission and
Death and Taxes
PAGE 11
the Federal Trade Commission have each made loud and
important contributions on the subject. In addition, the differences between how Americans and Europeans treat data is
not only different but - particularly for businesses that work
internationally - knowledge of how information is secured
and managed is essential in avoiding the long arm of the law.
Before taking an even deeper dive into this murky swamp,
there’s one other critical factor to consider. Certain industries/professions/entities have additional regulatory requirements (some might call them burdens) that must be met
based on the nature of the work that they do. Examples that
come to mind include healthcare, where the Food and Drug
Administration (FDA), among other government agencies,
has defined - and is very happy to enforce - very definite obligations; and financial services where, among others, the
Commodity Futures Trading Commission (CFTC) is more
than willing to flex its muscles. Then there are the states,
which have mostly (47 have signed on in one way or another)
created their own set of rules and procedures regarding the
information security, with particular attention to those parties that need to be notified in the event of a security breach.
You can find a complete list of them at NCSL.org.
However, before beginning to contemplate international
standards and actions, it’s important for clients - and their
lawyers - to do a careful risk assessment. That is, do you and
your clients know what data is actually being stored on client
systems (or in client cloud files)? What kind of information
is being held? Credit card numbers? Medical records?
Financial information? Other personal information? It’s hard
With the passing of the 2013-14 executive budget, responsibilities shifted from the New York Office of Cyber Security
to the Office of Information Technology Services. In addition, changes were made to the New York General Business
Law § 899-aa and New York State Tech. Law 208. he
The instructions also note similar penalties for failure to
provide a Schedule A to a beneficiary.
explanatory letter could accompany the Schedule A being
sent to the beneficiary, most lawyers would be reluctant to
give legal advice to beneficiaries who are not their clients.
receipt, or other information relevant for the estate’s records.
As noted, in the case of a bequest to a trust, the Schedule
A must be given to the trustee of the trust, not all of the
potential trust beneficiaries. The instructions indicate that if
there are multiple trustees, providing Schedule A to one
trustee is sufficient.
Some commentators have wondered whether Form 8971
must be filed in the case of an estate, the value of which is
less than the federal exemption, but for which a Form 706 is
being filed in order to preserve the exemption for the estate
of surviving spouse – so-called “portability” of the exemption.
While an argument can be made that the Form 706 which is
filed to preserve portability is not “required” to be filed, until
regulations are issued making that clear, the better choice
would be to file the Form 8971 and serve Schedule A on the
spouse.
Also, it appears that the surviving spouse who is the executor of the decedent’s estate must serve Schedule A on herself.
The instructions do not contain any exemption for such a situation, nor provide for waiver of service.
The instructions say that a penalty will be imposed for failure to timely file or to include all of the required information
on form 8971. While the Instructions say that one penalty
will apply to all failure and that the penalty is $50 per Form
8971 if filed within 30 days of the due date, the maximum
penalty is said to be $532,000 per year. How the penalty
reaches that height is not clear. The penalty is $260 if the
form is filed more than 30 days after the due date, and the
maximum penalty is said to be $3,193,000!
If all of this were not enough, the Schedule A contains the
following Notice to Beneficiaries:
You have received this schedule to inform you of the value
of property you received from the estate of the decedent
named above. Retain this schedule for tax reporting purposes. [Emphasis added.]
As noted above, the information on Schedule A relates to
the value of assets which appear on the Form 706, and it
may, or may not, describe assets which are in fact distributed
to the beneficiary. Further, the value appearing on the form
706 may, or may not, be the basis of the property received by
the beneficiary. For instance, “Income in Respect of a
Decedent” is reported on form 706 at full market value on
the date of death, but that value is not necessarily the basis of
that property in the hands of the beneficiary.
But the most troubling part of the above-quoted Notice to
Beneficiaries is the words “you received from the estate.” In
many cases where a federal estate tax return is being filed,
distribution of some of the estate will not have taken place
when the form 706 is filed. Indeed, in most federally taxable
estates, final distribution will not take place until the federal
and state estate tax closing letters have been received.
The language of the Notice to Beneficiaries on Schedule A
could give the beneficiary the impression that the executor
should have distributed the property and the executor has
failed to carry out his or her fiduciary duties. While an
Hopefully, the promised regulations will be issued soon to
clarify things. If you have a form 8971 due date fast
approaching, you might check the Federal Register.
Postscript: On February 11, 2016, as we were going to
press, the IRS issued Notice 2016-19, which states in part:
This notice provides that executors and other persons
required to file or furnish a statement
under
section
6035(a)(1) or (a)(2) before March 31, 2016, need not do so
until March 31, 2016. This notice is being issued in order
to provide executors and such other persons the opportunity
to review the proposed regulations to be issued under sections 1014(f) and 6035 before preparing a Form 8971 and
any Schedule A.
So the heat is off for now, and it appears new regulations
are on the way.
[B]
PAGE 12
PAGE 13
PAGE 14
Lost in Space
changes to the General Business Law require that “persons or
businesses conducting business in New York must disclose
any breaches of computerized data which includes private
information by notifying the offices of the New York
Attorney General; the NYS Division of State Police; and the
Department of State’s Division of Consumer Protection.”
The changes to State Tech. Law 208 require that entities
that are subject to the reach of state law that “experience
breaches of computerized data which includes private information must file notices with the New York Attorney
General; Department of State’s Division of Consumer
Protection; and the Office of Information Technology
Services’ Enterprise Information Security Office.”
Quick review. Step 1. Identify what information is
retained. Step 2. Identify where it is stored. Step 3. Be
aware of applicable state and federal regulations that outline
security obligations and notification requirements in the
event of a breach. Step 4. Be compliant with international
obligations (if applicable).
1. Identify what information is retained. It’s absolutely
essential that any entity that has access to client information (note the lack of the word “confidential”) know
what it has. This may sound simple, but it’s not. In fact,
many entities may not even realize what information is
retained from customers, clients, vendors or others. Are
social security numbers, tax IDs, banking information or
credit card numbers stored somewhere? Protecting the
information is impossible until the storer (whether
intentionally or not) knows what it has.
2. Identify where the information is stored. In-house? In
the cloud? How secure is it? Has the security been verified? How often is it tested? Has there ever been a
breach? What are the steps in the event of a breach?
3. Be aware of and compliant with applicable state and
federal regulations. Most levels of government have
taken a keen interest in protecting the security of confidential data. If you’re unfamiliar with the general and
particular rules that apply to data security in your work
environment, get familiar with them. In a hurry. As
always, cluelessness is not a viable defense.
GOING GREEN
The Erie Institute of Law will move to electronic delivery of CLE course materials by March 1.
Handout materials will now be sent to registrants via email. Hard copies may still be
requested, at an additional cost of $20 for a seminar and $5 for a midday learning lecture.
Thank you for helping us to conserve resources, keep costs down and be more respectful
of Mother Earth!
4. Be aware of and compliant with international regulations (if applicable).
Will of the WISP
A WISP is a Written Information Security Program/Plan.
If your firm and your clients don’t have one, they should. In
some states, they’re required, but in all states, they’re certainly advisable. A WISP is an essential tool and not only in
the actual protection and management of data. More importantly, it is an essential tool in the defense of claims related
to data breaches. A well-constructed WISP will address not
only what’s done “in-house,” but also how data that’s been
shared beyond the home location (with vendors, employees
and other outsiders) is protected. An effective WISP should
be a carefully crafted document that is both industry-specific
and clearly oriented toward the entity that it’s seeking to protect. As always, writing it is only part of the challenge.
Adopting it, modifying it, and relying upon it is the other.
An effective WISP is a living, breathing document.
In the interest of space, I won’t be able to fully address the
international issues associated with data protection. For now,
suffice it to say that the October 2015 decision in Schrems v.
Data Protection Commissioner (Case C-362/14) made it clear
that the mechanism historically used by United States businesses to comply with existing safe harbor protections is now
insufficient to meet European Union standards. Stay tuned
for next month’s column when I’ll have the space and additional experience to really dig into this issue.
[B]
PAGE 15
Welcome to the Bar! New York State Bar Admission Ceremony Remarks
A slightly edited version of the remarks
delivered by Hon. Lawrence J. Vilardo at
the New York State Bar Admission
Ceremony appears below.
Vilardo
Today, you do more than simply start
a career. Today, you join a profession.
And I congratulate all of you on having
the intelligence, the perseverance, and
the commitment to get to where you are.
If you came here hoping to hear a scholarly and erudite
address on the legal profession or some cutting-edge legal
issue, boy are you going to be disappointed! … I am, however, going to talk about what you need to know in order to
become a successful attorney. … Legal rules can be looked up
in a book. But life’s rules you need to know, to remember,
and to live every minute of every day.
So here are my life’s rules – ten commandments that have
helped me be a better person and a better lawyer.
Number 1: Treat everyone with the same respect. We are
all different. Some of us are more gifted physically. Some
have better personalities. Some are more intelligent. Some
have better hair. But every one of us is a person, an individual, and therefore entitled to the same respect as everyone
else.
I was blessed to start my legal career as a law clerk for one
of our nation’s truly great lawyers, judges, and legal minds:
Judge Irving Goldberg of Dallas, Texas. … He taught me
that one gains respect as a lawyer and a judge not by showing off how much you know and making others feel small in
the process, but by the exact opposite – by being humble and
showing respect for everyone. That lesson served me well
when I began my career as a lawyer.
Number 2: When you borrow something, give it back in
better shape than it was when you took it. When I was
young, we did not have a car. To visit family or run errands,
my dad would have to borrow a car from a friend or family.
And whenever he did, he always would return it with a full
tank of gas. In the same way, whenever we stayed with
friends or family out of town, my mother would make sure
that the beds were made and the rooms cleaned a little more
neatly than when we arrived. My parents were always grateful for what others had given us, and they showed that gratitude by leaving things a little better than they found them.
That lesson translates well into what you do as a young
lawyer. When you use a form pleading that has been drafted
by someone else, don’t just go through the motions of filling
in the blanks. Instead, take some time to make it a little better. Proofread that notice of motion and fix the typos. Add a
question to that deposition script. Show your gratitude. And
make yourself a better lawyer in the process.
Number 3: Share what you have. This is one that we
learned, or should have learned, in kindergarten or before.
And it applies to much more than just your professional life.
Of course, just as you will benefit from those form pleadings
that a partner or associate shares with you, it stands to reason
that you should share your work with others. But that is just
the start. Those of us who have been blessed with the opportunity to practice law owe a debt to society. Try to repay that
debt – by representing those who cannot afford legal services;
by volunteering to serve on boards of charitable or educational institutions; by donating your time – and your dollars
– to serve those who are less fortunate. I don’t know about
you, but I would rather have my tombstone read “He left the
world a better place” than “He had a lot of stuff.”
Number 4: Don’t be a bully. This one can be especially
tough for young lawyers. You want to be Joe or Josephine
Lawyer. You want to show the world how much you learned
in law school.You want to show the judge how smart you
are. When you have the better of the argument, you want to
rub your opponent’s nose in it.
Don’t do it. Resist the temptation. No matter how smart
you are, I promise you that there are lawyers smarter than
you out there. And no matter how good your case is this
time, there will be times when your opponent will have the
better of the argument.
My dad taught me a valuable lesson about life on the West
Side of Buffalo that applies equally to life in the courtroom.
“Always leave the other guy a graceful way to exit,” he would
say. “If you back him into a corner and leave him no choice,
you will force him to fight. And even if you think you can
take him, you might lose when you fight a desperate opponent.”
I have put that lesson into practice many times in my legal
career. I never tried to embarrass an opponent. Even when
fighting hard for my client, I never lost sight of the dignity
of my opponent and the client on the other side. And I like
to think that is why I was never embarrassed in a courtroom
by opposing counsel, even when she had the chance to
embarrass me.
Number 5: Don’t ever start a fight, but if someone else
starts one, don’t back down. At trial, during depositions, and
even in difficult negotiations, tempers can get short. And
while fist fights between lawyers are thankfully rare, verbal
fights can be just as nasty and hurtful.
But that does not mean that you should back down when
your adversary throws the first verbal blow, or even when a
judge tries to push you around. Instead, it means that you
should keep your wits about you and find ways to fight back
without resorting to the same tactics.
PAGE 16
determination that the prevailing applicant was best able to
represent the interests of the potential class.
western district case notes
By Kevin M. Hogan and Sean C. McPhee
DISCOVERY
In Steuben Foods, Inc. v. Oystar Group, et al., No. 10-CV780EAW(JJM) (December 21, 2015), the court rejected various proposals exchanged by the parties concerning limitations on the number and duration of depositions, and decided to lift the limitations imposed by Rule 30(a)(2)(A)(i) and
(d)(1) and instead rely on the parties’ obligation to cooperate
by conducting only that discovery that is reasonably necessary
for the prosecution and defense of the claims.
In so ruling, the court emphasized two recent amendments
to the Rules. First, the court noted that Rule 26(b)(1) now
provides that parties “may obtain discovery regarding any
non-privileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case” (emphasis
added). The court also pointed out that Rule 1 had been
amended to require not just the court, but now also the parties,
to employ the Rules “to secure the just, speedy and inexpen-
Welcome to the Bar!
sive determination of every action and proceeding.” The
court concluded by noting that any abuses of the approach
which the court was implementing could be addressed under
Rule 11 or pursuant to the broad discretionary authority vested in the court to manage the litigation and deter intentional or unnecessary delay.
CLASS ACTION COUNSEL
In Fero, et al. v. Excellus Health Plan, Inc., et al., No. 15CV-6569EAW (January 25, 2016), five law firms or combinations of law firms filed separate motions to be appointed
interim lead counsel on behalf of a putative class until such
time as the court determined whether to certify 14 consolidated matters as a class action. Noting that courts generally
look to the same factors used in determining the adequacy of
class counsel under Rule 23(g)(1)(A), the court granted one
of the applications, and denied the other four, based on its
In addition to the work the successful applicant had done
in this action, their knowledge of the applicable law, their
willingness to commit significant resources, and their experience in handling complex class actions, the court found that
they had demonstrated an ability to work with the other
firms representing the plaintiffs in an expeditious and cooperative manner. They had also proposed a structure that
would not overly burden the putative class with unnecessary
fees and expenses, and their proposal was the only one with
significant involvement from a local firm, which the court
believed was important to effectively represent the class.
ARBITRATION AWARDS
In VanBuren, et al. v. Cargill, Inc., No. 10-CV-701S
(January 18, 2016), the court previously stayed the lawsuit
pending an arbitration before the National Grain and Feed
Association (“NGFA”) as contemplated by a written agreement between the parties. After plaintiffs’ claims were disallowed by the arbitration committee, and that decision was
affirmed by an arbitration appeals committee, plaintiffs
moved to vacate the arbitration award, which defendant
cross-moved to confirm. The court confirmed the arbitration
award, holding first that plaintiffs repeatedly and affirmacontinued on page 22
Several years ago, my mentor, former partner, and the best
lawyer I know, Terry Connors, was involved in a very long
and heated trial. As the trial approached its conclusion, Terry
was arguing a point that the judge just did not want to hear.
In fact, the judge told Terry exactly that and tried to bully
him out of making [his] point. Instead of raising his voice
and insisting as many lawyers might have done – and instead
of sitting on his hands and meekly shutting his mouth as
many others might have done – Terry said this: “Your
Honor, this has been a very long trial. I’m sure you are
exhausted. I know that I am. But I have a job to do on behalf
of my client, and I’m going to do that. I’m going to make this
argument on the record so that an appellate court can consider it later on, if necessary. And I am going to do that
regardless of how difficult the court makes it for me to do my
job.”
What else could the judge do other than let him argue his
point? So if you are in a deposition a few years from now and
your opponent is badgering you with objections, or the witness is avoiding answering your questions or baiting you with
insults, try this: “Ms. Attorney or Mr. Witness, it’s my job to
ask questions and get answers. I plan to do that. I’ve tried to
do that respectfully, and I will continue to try to do it
respectfully. But I am going to ask the questions – some of
them hard questions – and I am going to get answers. If that
means we have to stay here hours longer, we’ll do that. And
if I have to get the court to help me get the answers to my
questions, we’ll do that too. But your objections or insults or
dirty looks are not going to stop me from doing my job…that
I need to do on my client’s behalf.
You’d be surprised at how often that will disarm your
opponents and get you to where you need to go. And if it
doesn’t – if the other side is simply intent on starting a fight
– the judge who decides who wins that fight will be
impressed with your efforts to resolve it reasonably.
Number 6: Never take more than you give. I’ll bet when
some of you were kids, you saw “The Lion King” at the
movies. … And I’ll bet you all know the song “The Circle of
Life.” But there is a verse from that song that’s been cut from
the version most often played on the radio:
“Some say eat or be eaten; Some say live and let live.
But all are agreed, as they join the stampede:
You should never take more than you give.”
The lesson is simple and obvious: To keep the stampede
going, all have to give at least as much as they take.
Otherwise, the stampede is diminished and eventually falls
apart. Substitute “legal profession” – or, even better, “world”
– for “stampede,” and you get the point.
Number 7: If it has your name on it, try to make it perfect.
My dad was a printer. The name of his print shop was
Vilardo Printing. My first job, when I was a teenager, was
working in the print shop. When my dad would print letterheads or business cards or invitations, they not only had to
look straight, they had to be straight. That meant measuring…by using…a metal rule to make sure that the line on
one end of the card or page was the same distance from the
edge of the paper as the same line at the other end.
And…you had to use a brass rule, not a lead rule, to measure. That’s because lead is a soft metal and your fingernail
might make a slight indentation in the lead, which would
cause the measurement to be off slightly. Brass was hard, so
your measurement would be more precise.
Of course, no one’s eye is good enough to have noticed any
difference between a line measured with a brass rule and a
line measured with a lead rule. Regardless, my dad wanted it
to be perfect. Especially because the business name was
Vilardo Printing, he refused to take even minor short cuts
because he wanted people to associate our name with only
the highest quality. When you practice law, every letter you
write, every pleading you sign, every brief you submit has
your name on it. Make sure it is perfect – or at least as close
to perfect as you can get it. Proofread everything, and then
proofread everything again. Check and double-check your
citations. Don’t ever send a letter, sign a pleading, or file a
brief unless and until you are proud of it. Remember: that’s
your name on it.
Number 8: And remember that reputations are hard to
earn but easy to lose. The quality of your work is not the only
thing that others will associate with your name. More important, others will judge you by your integrity. So be scrupulously honest in everything you do. Never make a factual
statement in a brief or at oral argument unless you are sure it
is true. It will take many years to build and earn a reputation
for honesty and integrity, but it will take only one lie to an
opponent or one false statement in a brief to destroy that reputation. A lawyer’s reputation may be her most valuable
asset.
There are lots of jokes about dishonest lawyers. Don’t be
the punch line for one of them.
Number 9: Understand that your character is what you do
when no one is watching. Temptations are everywhere for all
of us. No one will ever know that you worked only six-tenths
of an hour on that letter even though you billed a point
seven. Why actually work on those motion papers when you
can get by with – and bill your client for – a set of papers that
someone did already? And I can do a passable cross-examination without preparing. Who will ever know?
You will. Even when you’re alone in your office, do what
you would do if the whole world were watching. Do it for
yourself. And if that’s not enough reason, do it because if you
fudge and take short cuts, all that will eventually catch up
with you. Karma is not something to take lightly.
In Family Court, in the vast majority of cases, substituted
service means service by publication. Service by publication is
specifically authorized under CPLR 315. Locally, this often
means a notice in the Buffalo Law Journal, a weekly publication which costs two dollars and is read almost exclusively by
members of the legal community. That means that a typical
respondent who is unable to be served by traditional means
would need to purchase a copy of the Buffalo Law Journal
and scan through 10 plus pages of notices on the week in
which they were served via publication. Whether or not they
see the notice, the respondent is then considered served and
a default judgment may be entered against them.
in the public service
By Sarah J. Duval, Staff Attorney
Legal Services for the Elderly, Disabled or Disadvantaged of WNY, Inc.
Service by Facebook
Service of process is an essential part of our justice system.
If one is the subject of a complaint or petition, in order for
them to confront that allegation in court, service of process is
required as an essential part of due process. While service of
process is required for all kinds of litigation, I will be focusing on Family Court, specifically Orders of Protection. In
Family Court, when an order of protection is granted, it is
only effective once it has been served on the respondent.
Although in the majority of cases service can be done by the
local police department tasked with serving the order at no
cost to the petitioner, in those cases where this does not happen, it can lead to strain for the courts and petitioners.
When police are unable to locate a respondent, they notify
the Family Court that they were unable to serve him or her.
It then falls on the petitioner to do personal service, which is
when the required documents including the Order of
Protection are given to the respondent (or someone 18 years
or older in their household) by someone 18 years or older
who is not a party to the action. According to
NewYorkProcessServer.Org, process service fees in New
PAGE 17
York range from $85 to $95 for service of process within two
to five business days – that is, if you have an address for the
respondent.
There are several problems with using this method of service by publication. Most glaringly, there is a due process concern; is it even remotely effective to publish in a (relatively)
Unfortunately, due to the rise of the heroin epidemic in
obscure professional publication that the chances of a
Erie County, the respondents in orders of protection cases
respondent even knowing exists, much less reading, is next to
are increasingly children or grandchildren
zero? Second, it leaves petitioners on
who are financially exploiting their parents
edge; without personal service responor grandparents in order to secure money
dents do not know there is an order of
“Service through this
for drugs. They are often without a permaprotection, leaving petitioners in danger.
nent home address and are therefore diffimedium, while not
A recent court decision in New York,
cult to locate and serve. In addition, paying
Baidoo v. Blood-Dzraku (N.Y. Mar. 27,
a process fee is difficult for many of our
perfect, seems to
2015), marks yet another decision in
clients who are low-income.
favor of allowing service through social
make
a
lot
more
If a respondent is unable to be served via
media, in this case Facebook, as an
personal service, CPLR section 308(5)
sense than the existing acceptable alternative method of service.
provides a final option: alternative service.
With the advent of social media and the
go-to method.”
That is, a method not specifically premillions of adults in the United States
scribed by the CPLR. To approve alternachecking their accounts regularly, service
tive service, a petitioner must make a
through this medium, while not perfect,
motion that the methods are “impracticaseems to make a lot more sense than the
ble” under the circumstances. If the court agrees, they can
existing go-to method of service by publication. Often, my
then allow an alternative method of service. The legal
clients will be aware that the respondent has a Facebook
requirement for any such customized alternative method is
account, and while this may not have a home address, it is the
that it satisfy principles of due process “reasonably calculated,
respondent’s home on the Internet. The aforementioned
under all the circumstances, to apprise [the defendant] of the
decision allowed service of process via Facebook in a divorce
pendency of the action.”
PAGE 18
PAGE 19
PAGE 20
In the public service
In Memoriam
case. On a federal level, the decision in Baidoo v. Blood
Dzraku notes that there is an even split among the courts
between approving and rejecting service via Facebook. After
examining the split, the court noted:
When choosing CLE programs and providers, the evidence clearly shows that earning credits through the Erie
Institute of Law is the best option for BAEC members.
• Our faculty is comprised entirely of members of the
LOCAL bench and bar who share knowledge and
expertise that is directly relevant to your practice.
• Because we’re local, we’re able to respond quickly when
new developments arise, creating timely programs to
help you keep pace.
• Our members receive discounted pricing on all programs.
• All Erie Institute programs are focused on New
York State law, not the generic cookie-cutter content
offered by “bargain” providers.
View our latest offerings at www.eriebar.org or call 8528687 for further information.
“Grieve not, nor speak of me with tears,
but laugh and talk of me
as if I were beside you there.”
~ Isla Paschal
Richardson
There is a much better chance that a notice sent to a
respondent’s Facebook account will be received rather than
the respondent reading it in the Buffalo Law Journal. The
court in this case cited three major concerns:
First, that the Facebook account was indeed that of the
defendant, and not a fake account. To ease concerns, the
court required a supplemental affidavit with evidence that
the Facebook account is indeed that of the respondent,
including photographs and interactions on the Facebook
page which would provide evidence that it was indeed the
defendant’s.
The second concern was the frequency with which the
defendant logged into his Facebook account. The plaintiff’s
supplemental affidavit also addressed this issue, showing frequent messaging between the parties via Facebook.
The third concern is whether or not service by Facebook is
sufficient on its own, or another form of service should also
be employed. Other courts had required additional forms of
service, for example email, be performed alongside the
Facebook service. However, in this case the plaintiff had neither an email nor a home address, and the court found that
“plaintiff has a compelling reason to make Facebook the sole,
rather than the supplemental, means of service, with the
court satisfied that it is a method reasonably calculated to
give defendant notice that he is being sued for divorce.”ii
In addition to granting service via Facebook, the court
made a compelling argument against continuing to use service via publication as the default method, which it notes is “a
means of service of process that has been used in New York
in one form or another since colonial times” and remains the
preferred alternative method to this day.iii
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.
Malcolm K. Buckley, Jr.
Joseph F. Biondolillo
James Kennedy Dady
James A. Falletta
Herbert J. Heimerl, Jr.
John R. Nuchereno
John P. Patti
In the final analysis, constitutional principles, not the lack
of judicial precedent or the novelty of Facebook service, will
be ultimately determinative here. The central question is
whether the method by which plaintiff seeks to serve defendant comports with the fundamentals of due process by
being reasonably calculated to provide defendant with notice
of the divorce. Or more simply posed: If the summons for
divorce is sent to what plaintiff represents to be defendant’s
Facebook account, is there a good chance he will receive it?i
Missing Records
The Bar Association frequently receives
calls from clients, court staff and member
attorneys who are attempting to locate the
records of deceased attorneys. If you have any
information concerning the files of a deceased
member, please contact Darren Canham at
852-8687 or [email protected] so that we
can update our records. Your assistance is
greatly appreciated!
The court in Baidoo also notes that service by publication
“is almost guaranteed not to provide a defendant with notice
of the action for divorce, or any other lawsuit for that matter.” Therefore, I urge the expansion of service to Facebook
be accepted locally. As the court concludes, though service by
Facebook is “novel and non-traditional, (it) is the form of
service that most comports with the constitutional standards
of due process.” This method of service would ease a considerable burden on the courts and petitioners in family court,
and would serve to protect the constitutional rights of
respondents.
i Baidoo v. Blood-Dzraku, 48 Misc. 3d 309, 310, 5 N.Y.S.3d 709, 711
(N.Y. Sup. Ct. 2015)
ii Baidoo v. Blood-Dzraku, 48 Misc. 3d 309, 310, 5 N.Y.S.3d 709, 711
(N.Y. Sup. Ct. 2015)
iii Baidoo v. Blood-Dzraku, 48 Misc. 3d 309, 310, 5 N.Y.S.3d 709, 711
(N.Y. Sup. Ct. 2015)
PAGE 21
Foundation Contributions to Benefit Profession
Contributions to the Erie County Bar Foundation provide an excellent
vehicle for recognizing and honoring members of our profession.
Memorial gifts to the Foundation become a lasting tribute to the entire
legal profession, as funds are used exclusively to assist attorneys and
promote understanding of our legal system.
The Foundation gratefully acknowledges
the following contributions:
Welcome
New Members
The Bar Association
of Erie County is pleased
to welcome the
following new members:
Daniel J. Altieri
Brian D. Barnas
Rachel Blachowicz
Tamara Bland
Erin C. Borek
Daniela Camacho
Jennifer M. Cameron
Erica Carducci
Marcus Catlin
Maila M. Clark
Erin E. Connare
Kevin G. Cope
Amy L. Counter
Heather L. Dechert
Catherine M.E. Dines
Christine L. Donovan
Rebecca A. Fioravanti
Bernadette Gargano
Zachary Hebert
Lauren A. Heimer
Shannon B. Howley
Daniel E. Berger
Nicole D. Jones
Nicole Komin
Timothy P. Kucinski
Rebecca Kujawa
Arianna E. Kwiatkowski
Anna S.M. McCarthy
Katherine Meier-Davis
Candace L. Morrison
Benjamin L. Nelson
Tolulope F. Odunsi
Martha M. Pigott
Delroy Pinnock
Yuliya Pollack
Irene Rekhviashvili
Jill Roloff
Joseph C. Smith
Edward A. Sundquist
Thomas H. Tierney
Joseph A. Todoro
Amanda R. Webber
Charlotte Werner-Kohler
Liesel A. Zimmerman
It’s great to belong to something this good.
In Honor of Hon. Gerald J. Whalen
upon becoming Presiding Justice
of the Appellate Division 4th
Department:
Heidi L. Mahoney
In Honor of Larry Vilardo, DCJ
upon his appointment to the
Bench:
John E. Ballow
In Honor of Terry Connors,
Recipient of the UB Law School
Edwin F. Jaeckle Award:
Jeffrey M. Freedman
Stephen E. Cavanaugh
In Honor of Rick W. Kennedy
being named President & CEO of
Hodgson Russ LLP:
Jeffrey M. Freedman
In Memory of Edward J. Dee
(Father of Julie Dee):
Denis A. Scinta
In Memory of Hon. Kevin M.
Dillon:
Allan M. & Dana R. Lewis
Coleman Volgenau
Diane F. Bosse
Frank & Leslie Housh
Garry M. Graber
Hon. Michael E. Hudson
Jeffrey M. Freedman
Jim & Mary Shea
Joel L. Daniels
John E. Ballow
Kathleen M. Reilly
Michael & Nancy Brady
Michael Paskowitz
Paula & Terry Newcomb
Philip Celniker
Stephen E. Cavanaugh
Susan S. Hogan
Thomas Santa Lucia
Warren M. Emerson
In Memory of Donald S. Day:
Brian N. Lewandowski
In Memory of Steffi Bloch (Mother
of Hon. Lisa Bloch Rodwin):
Jeffrey M. Freedman
In Memory of Catherine Haslinger:
Andrea L. Sammarco
In Memory of John P. Patti:
Michael Paskowitz
Sandra & Victor Silverstein
In Memory of Bernard Freedman
(Father of Jeffrey M. Freedman):
Lauren D. Rachlin
In Memory of Linda Chiari (Wife of
Donald P. Chiari):
Denis A. Scinta
John Ballow
In Memory of Joseph S. Bengart:
Steven B. Bengart
In Memory of My Father, Norman J.
Wolf:
Kristen M. Wolf
In Memory of Joseph F. Biondolillo:
In Memory of Aaron I. Feuerstein
(Father of Alan Feuerstein):
John Ballow
In Memory of Mildred A. Fiorella
(Wife of Peter J. Fiorella, Jr.):
Denis A. Scinta
Lauren D. Rachlin
In Memory of John R. Nuchereno
(Husband of Catherine E. Nagel):
Attorney Grievance Committee
8th District Staff
Colleen Curtin Gable
Daniel D. Shonn, Jr.
Frank & Leslie Housh
Garry M. Graber
Howard B. Frank
Michael & Nancy Brady
Michael M. Blinkoff
Michael Paskowitz
Mr. & Mrs. Stephen E. Cavanaugh
Paula & Terry Newcomb
PAGE 22
case notes
Welcome to the Bar!
tively accepted the NGFA procedures and arbitrators
assigned to hear their claims and, therefore, waived any
objection that the NGFA was inherently biased or that the
arbitrators were unqualified.
Notwithstanding that waiver, the court also ruled that
plaintiffs merely speculated that defendant exercised undue
influence over the NGFA in its arbitration proceedings, and
that plaintiffs failed to allege that any specific arbitrator had
any direct bias against them. According to the court, there
was no basis to set aside the arbitration award based on the
NGFA panels’ delays in issuing their decisions, and that the
NGFA arbitrators had not acted in manifest disregard of the
law. Finally, the court held that the plaintiffs had not established that the arbitration fees were cost prohibitive, nor any
less economical than a Federal Court proceeding, and therefore plaintiffs had not established that the arbitration fees
rendered the arbitration agreement unconscionable and
unenforceable.
CLASS ACTION SETTLEMENTS
In Zink v. First Niagara Bank, N.A., No. 13-CV-1076A
(Jan. 12, 2016), a putative class action in which plaintiff
sought to recover damages for defendant’s alleged “systematic failure” to timely file mortgage satisfactions, plaintiff filed
an “uncontested” motion requesting conditional certification
of a proposed settlement class and preliminary approval of a
class settlement under Rule 23. In support of his motion,
plaintiff argued that the settlement should be approved
because he “faces substantial hurdles in establishing liability”
in part because the court previously questioned whether subject matter jurisdiction existed. Noting first that “uncertainty as to subject matter jurisdiction cannot be treated merely
as a factor to be weighed in the settlement equation,” the
court observed that application of a statute of limitations
defense to narrow the amount in controversy is irrelevant to
the jurisdiction determination, and assumed (for purposes of
the uncontested motion) that plaintiff will be able to establish subject matter jurisdiction.
never received a copy of the agreement and therefore did not
agree or otherwise consent to arbitration. Recognizing that
an agreement to arbitrate is a “creature of contract,” the court
held that the question of whether the parties agreed to arbitrate must be determined by state law. The court then held
that, under New York law, regular use of a credit card constitutes sufficient evidence of the card user’s consent to the
terms of the agreement governing the account. In light of
the uncontested evidence that plaintiff used the credit card to
make certain purchases, the court concluded that plaintiff
agreed to the terms of the arbitration agreement and stayed
the action pending the outcome of the arbitration.
ERISA
In Clouthier v. Becker, No. 08-CV-6441L (Jan 21, 2016),
plaintiff alleged that defendants had reduced his pension
benefits in violation of the Employee Retirement Income
Security Act (“ERISA”). In particular, plaintiff sought additional retirement benefits calculated without applying a socalled “phantom account offset.” Defendants moved for summary judgment on the ground that plaintiff had previously
released defendants from the claims presented in the suit and
because the claims were time barred. In opposition, plaintiff
argued that the release did not bar his claims because, at the
time he signed it, he was unaware that Xerox would later
determine that he was not entitled to pension benefits based
on the phantom account method. The court rejected plaintiff’s argument because plaintiff signed the release “with full
notice of the phantom account’s existence” and because the
release applied to all claims, “known or unknown.” The court
also held that the statute of limitations began to run when
plaintiff was first apprised of the phantom account offset
and, therefore, plaintiff’s claims were time barred. Based on
both rulings, the court granted defendants’ motion and dismissed the complaint.
[B]
Turning then to the merits of the motion, the court found
that the numerosity, commonality, and typicality requirements were satisfied, but expressed concerns about the adequacy of plaintiff’s representation of the class. The court
questioned the “reasonableness” of the proposed settlement,
stating that it “fail[ed] to see why such a substantial discount
from the maximum recovery is warranted.” The court therefore denied the uncontested motion because “the proposed
settlement fails to adequately protect the interests of absent
class members,” without prejudice to renewal “upon a more
detailed and substantial showing.”
Become a fan of your
favorite Bar Association
on Facebook, follow us
on Twitter and join our
group on LinkedIn.
Welcome to the Bar.
[B]
St. Thomas More Guild Inc.
An Organization for Lawyers
in the Diocese of Buffalo, New York
President
Directors
J. Michael Lennon II K. John Bland
Laurie Styka Bloom
Craig R. Bucki
Vice President
James J. Contino
Donna Hoelscher
Cornelia Farley
Suchan
J. Patrick Lennon
Thomas E. Liptak
John W. Looney
Secretary
Katherine M. Liebner Daniel T. Lukasik
Mara McCabe
Michael L. McCabe
Treasurer
Hon. Patricia A. Maxwell
David C. Mineo
Susan C. Ministero
John L. Sinatra, Jr.
Mary L. Slisz
Vincent J. Sorrentino
FOR FURTHER INFORMATION,
contact J. Michael Lennon II at [email protected]
or visit our website at www.stthomasmorewny.org.
MOTION TO COMPEL ARBITRATION
In McCormick v. Citibank, N.A., No. 15-CV-46 (Jan. 8,
2016), defendant sought to compel arbitration of plaintiff’s
Telephone Consumer Protection Act claims based on an
arbitration clause contained in plaintiff’s credit card account
agreement. Plaintiff opposed the motion, arguing that he
All that leads us to the tenth commandment – sort of a
summary of the first nine – and that’s the golden rule: Do
unto others as you would have them do unto you. Do the
kind of work for your partners that you will want an associate to do for you someday. Work as hard for every client as
you would want a lawyer to work for your mother or your
brother or yourself. Treat opposing counsel the way you want
them to treat you. Do all that and you will have a long and
rewarding career in a fabulous profession in the greatest legal
system in the world.
Become a
Contributing
Member!
The BAEC bylaws confer “contributing member”
status on any member who resides or maintains an
office in Erie County and elects to pay an additional
$50 in annual dues to help support Association programs. Contributing members have the same rights
and privileges as regular members and “such additional rights and privileges as the board of directors
shall bestow,” including special recognition in
the Bulletin, annual dinner program and other publications.
PAGE 23
Supreme Court
Admissions
The Bar Association of Erie County organizes and schedules annual “in person” admissions to the United States Supreme Court Bar.
The next excursion to Washington, D.C. is
scheduled for Monday, April 25. Bar
Association members are admitted in open
court before all nine justices and listen to oral
argument.
Washington Lawyer magazine has listed
“observing oral arguments at the Supreme
Court” as the number one alternative for
“expanding the mind and improving one’s
practice.” The U.S. Supreme Court is “distinctly American in concept and function,” as
former Chief Justice Hughes has observed. It
is a unique experience to observe an entire
branch of the federal government in action and
participants always rate this event highly.
Interested applicants must be admitted to
practice for three years, free from any adverse
disciplinary action, and sponsored by two
members of the U.S. Supreme Court Bar. A
$200 fee is required. Applications are due by
March 25. For further information, please
contact Dennis J. Bischof, who coordinates the
admissions program, at 630-6500.
Holocaust illustrates the
consequences of prejudice, racism
and stereotyping on a society.
The Holocaust-Inspired Roots of Medical
Informed Consent and Current Medico-Legal
Ethics: Concerns for Physicians and Attorneys
A program will be held on Thursday,
May 5 from 5:30 until 8:00 pm at
Temple Beth Zion on Delaware Avenue
to explore the corruption of medical
ethics in Nazi Germany, the foundations
for modern-day understandings of
informed consent in the Nuremberg trials, and current issues of informed consent and patients’ rights, including
euthanasia, and the Human Genome
Project.
Dr. Artal was born in 1943 in Bersad, a concentration
camp in a part of Ukraine called Transnistria administered by
Romania under Nazi control. His history inspired him to
become an obstetrician who specializes in high-risk pregnancies. Now the retired chair of chair of the department of
obstetrics, gynecology and women’s health at St. Louis
University, Dr. Artal was named a “champion” for the
Center for Medicine after the Holocaust in Houston, focusing on the atrocities committed by physicians during World
War II, and educating physicians, nurses and scientists to
never allow history to repeat itself.
This program will be sponsored by the
Holocaust Resource Center of Buffalo,
the Robert H. Jackson Center, the
Medical Societies of Erie and
Chautauqua
Counties,
the
Bar
Association of Erie County Human
Scharf
Rights Committee, and the Women’s
Bar Association of the State of New
York, WNY Chapter (WBASNY-WNY).
Jennifer R. Scharf is associate general counsel at Erie
County Medical Center. She previously served as a litigation
attorney at Duke, Holzman, Photiadis & Gresens, LLP and
Connors & Vilardo, LLP, where she focused her practice on
representation of physicians and other professionals, personal
injury litigation, commercial litigation, employment law, as
well as other civil litigation.
“The
It forces us to examine the
responsibilities of citizenship
and confront the powerful
ramifications of indifference
and inaction.”
~ Tim Holden
Artal
Expenses for this program generously underwritten by Dr.
Mont Stern and family.
Speakers include Raul Artal, MD, of the St. Louis
University School of Medicine and Jennifer R. Scharf, president of WBASNY-WNY.
Celebrating. Recognizing. Commemorating.
Honoring. Appreciating. Sympathizing.
Acknowledging. Memorializing. Congratulating.
Whenever you have cause for celebration, need a special
way to say “thank you,” or want to convey your sympathies
with a personal touch, the Erie County Bar Foundation welcomes year-round gifts to help express your sentiments to
family and friends.
A new partnership. Happy holidays! Thanks for a job well
done. Law school graduations. Weddings and anniversaries.
New offices. Get well soon and “it’s a girl!” The list is endless - and so is the Foundation’s need.
Visit us online at www.eriebar.org or call 852-8687 to
make your contribution today.
PAGE 24
Bar Association of Erie County Professional
Ethics Opinion
The BAEC’s Professional Ethics Committee is available
to respond to your ethics questions and issues facing the legal
community. This Committee, chaired by Terence B.
Newcomb, cannot, however, consider complaints about
unethical practices, or any grievance matters. They are available to entertain inquiries about whether or not prospective
activities of counsel fall within accepted guidelines. For further information, please contact Susan Kohlbacher at 8528687 or [email protected].
sibility. We do not believe that is the proper portrayal of the
arrangement. Personal injury attorneys are familiar with
dealing with Medicaid liens in their practice, but that does
not put them in the position of representing Medicaid.
Similarly, attorneys who are on notice of an I.R.S. lien also
have a responsibility to the lienor, but do not represent the
lienor. NYCLA Eth. Op 732, (2004). Therefore, this does
not present a conflict of interest situation under Rule
l.7(a)(l), as the lawyer would not be representing “differing
interests.”
Opinion No. 2010-05
Neither does this situation appear to present a conflict
between the client’s interest and the lawyer’s own interests
within Rule l.7(a)(2). The inquiring lawyer has advised that
he believes that the provision requiring payment first to the
insurance company may not be valid. The lawyer owes the
client competent representation (Rule 1.1) and should assist
the client in making informed decisions relating to the representation (Rule 1.4). In considering whether to sign the
document prepared by the insurance company, or to attempt
to modify it through negotiation, or to refuse and challenge
the provision of the health insurance contract, the lawyer
should consult with his client. In such consultation, the
lawyer should review the advantages and disadvantages of the
alternative courses of action that are available, to enable the
client to make an informed decision. The lawyer should
respect and endeavor to abide by the client’s lawful directions
(Rule 1.2).
Topic: Lawyer’s Duties to Health Insurer
Digest: When a client’s health insurer claims a contractual
right to be reimbursed for its expenses out of the proceeds of
any personal injury award or settlement, and demands that
the lawyer agree to comply, the lawyer should consult with
the client and follow the client’s lawful directions.
Code: Rule 1.1, Rule 1.2, Rule 1.4, Rule 1.7
Question: May an attorney who is representing a plaintiff
in a personal injury case, sign an agreement with the client’s
health insurer to abide by the health insurance policy provisions requiring that any recovery under the policy be paid
first to the health insurer to reimburse it for its expenses for
the client’s health care?
Opinion: An attorney represents a plaintiff in a personal
injury action. The client has health insurance which requires,
as a condition of paying for her treatment, that she and her
attorney agree that the health insurer will receive full payment of the amounts it has paid for her healthcare out of the
proceeds of her claim before any distribution to the attorney
for fees or to the client. The attorney asks if it is ethical for
him to sign the agreement.
The attorney has posed the question as if he would be representing the insurance company if he takes on this respon-
Conclusion: When a client’s health insurer claims a contractual right to be reimbursed for its expenses out of the
proceeds of any personal injury award or settlement, and
demands that the lawyer agree to comply, the lawyer should
consult with his client concerning the alternative courses of
action that are available in response to the health insurer’s
position, and follow the lawful directions of the client in
accordance with Rules 1.1(c), 1.2(a), and 1.4(b).
Lung Association Schedules Annual
“Fight for Air” Climb
The American Lung Association’s “Fight for Air” Climb
in Buffalo, presented by the Niagara Frontier Transportation
Authority (NFTA), will be held on Saturday, March 12 at
One Seneca Tower. Organizers expect the sixth annual climb
to draw 600 climbers and hope to raise $144,000. Last year’s
event had approximately 550 participants, including firefighters, from western New York and beyond, and raised
more than $127,000. Participants “fight for air” by climbing
the building’s 800 stairs, all to raise money to fight lung disease and support clean air initiatives.
“We’re hoping that anyone who has ever thought about
climbing with us in Buffalo but hasn’t signed up in the past
will make it a point to do so this year,” said Jeff Seyler,
President & CEO of the American Lung Association of the
Northeast. “Our participants all agree that this climb is an
experience that’s challenging, rewarding and memorable.”
The Climb attracts both athletes and novice stair climbers
alike. Participants can choose to race, run, or walk up the
stairs. Questions about the event, including sponsorship
opportunities, can be directed to Event Manager Kelli
Hanson at 585-666-1402 or [email protected].
“While we accept registrations all the way up to the day of
the climb, we encourage early registration because those who
register early are generally most successful in their fundraising,” Hanson said. “Every dollar raised for this event helps us
prevent lung disease and supports people who are living with
lung disease. We do everything we can to help our climb participants be successful.”
To register, or to learn more about the Fight for Air Climb
in Buffalo, visit the event website at fightforairclimb.org.
The registration fee is $35 until March 9. Those who register on the day of the event pay a $50 registration fee. All participants must raise $100 by event day.
The Fight for Air Climb is also made possible with the
support of Kindred Healthcare.
The American Lung Association is the oldest voluntary
health organization in the United States. Established in
1904 to combat tuberculosis, its current mission is to save
lives by improving lung health and preventing lung disease.
The group’s work focuses on air quality, asthma, tobacco
control, and all lung diseases.
Learn more at
www.LungNE.org.
Skadden Fellow to
Help Small Businesses
Through Law Center
tion a reality. The turning point for Salcedo was when he
walked into Amada Kool’s Community Enterprise Project, a
clinical program of Harvard’s Transactional Law Clinics.
Through his work in Kool’s program, it became clear how he
could use his skills to form a career based on serving those in
need.
Starting in September 2016, Salcedo will be creating a
program similar to the Community Enterprise Project, helping small business owners, entrepreneurs, and community
groups in Buffalo. Through the program, Salcedo and the
Law Center will help underserved business owners and
entrepreneurs create businesses, obtain permits and licenses,
and negotiate contracts, along with other transactional services.
“As Buffalo continues to grow, it is imperative that small
businesses have an opportunity to succeed and flourish as
part of the economic growth in the region,” according to
Joseph Kelemen, executive director of the Western New
York Law Center. “Through Salcedo’s work, the Law Center
will be able to provide needed resources to the underserved
small business community in Buffalo.”
[B]
bench and bar
Erin Molisani, an associate at Cohen
& Lombardo, has been appointed to the
board of directors for the Defense Trial
Lawyers Association of Western New
York for a three-year term. A defense
attorney focusing on personal injury and
liability, Molisani is a graduate of SUNY
Buffalo Law School. She is admitted to
Molisani
practice in Federal Court in the
Northern and Western Districts of New
York. Molisani is a member of the Women’s Bar Association
of the State of New York.
[B]
PAGE 25
17th Annual Bowling Tournament
May 19, 2016 6:00 p.m. - 8:30 Airport Lanes
LAWYERS FOR LEARNING B OWLING TOURNAMENT!
It’s that time of year again! Organizers are gearing up for
Senior Partner - $750
Benefits of sponsorship
- recognized as premier sponsor at the event in
announcements and signage.
- recognized as premier sponsor by publication in
the Bar Bulletin, distributed to over 3,700 members.
- entitled to send up to two teams of five bowlers
with prime center lane assignments and two
spectators to the event.
the 17th Annual Bowling Tournament to benefit Lawyers
for Learning.
Please join us for another fun evening of bowling and
camaraderie in support of the students at Buffalo Public
School 18. In addition to the weekly one-on-one tutoring
the group has provided for the last 18 years, contributions
from the legal community have allowed Lawyers for
Partner - $500
Learning to send dozens of inner city children to summer
Benefits of sponsorship
- recognized at the event in announcements and
signage.
- recognized by publication in the Bar Bulletin,
distributed to over 3,700 members.
- entitled to send up to one team of five bowlers
camp at the YMCA’s Camp Weona, sponsor many educational field trips, and to continue work on the community
garden across the street from the school.
Thank you for your continued support of Lawyers for
Learning, which makes these programs possible.
The Bowling Tournament sold out last year and some
teams could not join in the festivities. Sign up early to be a
part of this annual tradition!
Checks should be made payable to
LFL, Inc. All donations are tax
deductible. Donations can be sent
directly to our Bowling Tournament
Committee c/o Garvey & Garvey,
416 Pearl St., Buffalo, New York
14202. If you have any questions
or need any further information,
please do not hesitate to contact
Matt Garvey at 854-4800,
or by email at
[email protected].
Associate - $250
- recognized at the event in announcements and
signage.
- recognized by publication in the Bar Bulletin,
distributed to over 3,700 members.
- entitled to send up to one team of five bowlers
Team Only - $175 each
- includes two games, shoe rental, pizza,
pop and beer
Spectator Only - $25 each
- Cheer on the teams while enjoying
the refreshments.
Donations
BECOME
A SPONSOR!
TEAM REGISTRATION FORM — $150/team
Team One________________________________
Team Name:______________________________
Contact: ________________________________
Email: __________________________________
Circle one: Men
Women’s
Mixed
Bowler (name): __________________________
Bowler (name): __________________________
Bowler (name): __________________________
Bowler (name): __________________________
Bowler (name): __________________________
# Spectators @ $20/ea: ____________________
Amount encl: ____________________________
Please indicate if there is another team
with whom you would like to bowl:__________
________________________________________
- Merchandise, gift certificate to be used
in raffle at the event AND/OR
- Camping equipment for kids going to camp
this summer.
TEAM REGISTRATION FORM — $150/team
Team Two________________________________
Team Name:______________________________
Contact: ________________________________
Email: __________________________________
Circle one: Men
Women’s
Mixed
Bowler (name): __________________________
Bowler (name): __________________________
Bowler (name): __________________________
Bowler (name): __________________________
Bowler (name): __________________________
# Spectators @ $20/ea: ____________________
Amount encl: ____________________________
Please indicate if there is another team
with whom you would like to bowl:__________
________________________________________
Name of Sponsor: ____________________________________________________________________
Contact Name:________________________________________________________________________
Address:
Please return this form to:
LFL, Inc. Bowling Tournament Committee
c/o Matthew J. Garvey, Esq.
Garvey & Garvey
416 Pearl Street
Buffalo, New York 14202
____________________________________________________________________________
Email Address: ________________________________________________________________________
Phone Number: ______________________________________________________________________
Applications due on or before Thursday, May 12, 2016 - but hurry!! Lanes will sell out quickly.
BECOME A SPONSOR!! Visit www.lawyersforlearning.org and click on “Upcoming Events.”
PAGE 26
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
Thursday, March 10, 2016
1:00 p.m. – 2:00 p.m.
Adelbert Moot CLE Center
438 Main Street
Buffalo, NY
The CSI Effect: Explaining Forensic Evidence to
Defeat Jurors’ Inflated Expectations
(Midday Learning Lecture)
Saturday, March 12, 2016
8:00 a.m. deluxe breakfast
8:30 a.m. – 1:00 p.m.
The Foundry
1738 Elmwood Avenue
Buffalo, NY
26th Annual Real Estate Conference
5.0 credits
(Live Seminar presented by the Real Property Law Committee)
Thanks to our sponsors: Cash Realty & Auctions, Chicago Title
Insurance Company, Holland Land Title & Abstract Company,
NYSBA Real Property Law Section, and Nussbaumer & Clarke,
Inc., Engineers and Land Surveyors, Steward Title and Wells Fargo Home Mortgage
Registration:
$90 members
$130 non-members
add $20 for Hard Copy Materials
1:00 p.m. – 2:30 p.m.
438 Main Street
Buffalo, NY
An Introduction to Practice in the U.S. Court of
1.5 credits
Appeals for the Second Circuit & Ethical Issues in Appellate Practice
(Midday Learning Lecture presented by the Appellate and Federal Practice Cmtes)
Thanks to our sponsor, Counsel Press, for providing snacks.
Registration:
$25 members
$35 non-members
(add $5 for hard copy
materials)
Tuesday, March 22, 2016
1:00 p.m. – 3:00 p.m.
438 Main Street
Buffalo, NY
Deposition Basics in Personal Injury Litigation
2.0 credits
Registration:
$40 members
$50 non-members
materials)
1:00 p.m. –2:00 p.m.
438 Main Street
Buffalo, NY
Immigration Options for Canadians Under NAFTA
1.0 credit
Registration:
$20 members
$25 non-members
materials)
1.0 credit
mediation and arbitration for businesses and their
counsel. Co-sponsored by the BAEC and NYSBA.
Save the Date
2016 Cross Border Dispute Resolution Conference:
Lessons & Insights for Effective Use and Application of DR
Friday, April 1, 2016
8:30 a.m. – 4:30 p.m.
Marriott Harbor Center
95 Main Street
Buffalo, NY 14203
Cross Border Canadian and US Dispute Resolution Experts
from industry and private practice will present programs on
Panelists include:
William Barrett, Louise
Barrington, Stephanie Cohen, Marc Goldstein,
Richard Griffin, Krista Gottlieb, Carolyn E. Hansen,
Douglas Harrison, Thomas B. Metzloff, Randy
Oppenheimer, Lauren Rachlin, James M. Rhodes,
Jennifer Scharf, Margot P. Schoenborn, Steven
Skulnik, Steven Sugarman and Hon. Lawrence J.
Vilardo.
Price
Registration:
$20 members
$25 non-members
materials)
GOING
GREEN
Visit www.eriebar.org or call 852-8687 to register
today!
Check our calendar for updates and added programming at www.eriebar.org
✃
Erie Institute of Law Registration Form
Please register me for the following Erie Institute of Law sponsored events:
1. ___________________________________________________ 2. _________________________________________________ 3. _____________________________________________
Name:____________________________________________________________________________________________
Firm:_____________________________________________________________________________________________
Street Address:__________________________________________________________________________________
City: _______________________________________________State: ______________________Zip:_____________
Phone: _____________________________________________Email:______________________________________
Enclosed is my check in the amount $_______________ [ ] Check enclosed Charge my: [ ] Visa
[ ] MasterCard
Card Number:__________________________________________ Exp. Date:______________________ Cardholder Signature:___________________________________________
Cancellation Policy: If you are unable to attend a seminar for which you have already registered, The CLE department at 852-8687. For a full refund, notice of your
cancellation must be received before the date of the program. Registrants who are pre-registered and fail to attend will receive course materials in lieu of a refund.
Mail or Fax to: Erie Institute of Law, 438 Main Street, Sixth Floor, Buffalo, New York 14202, (716) 852-8687, Fax (716) 852-7641.
PAGE 27
LISTEN, LEARN
Deal of
the
Month
& EARN!
In today’s competitive, fast-paced legal
environment, effective time management
is essential. Take advantage of the Erie Institute
of Law tape library and start earning your CLE
credits when the time is convenient for you.
Planning Ahead: Key Issues
for Lawyers Approaching
Retirement
The Erie Institute of Law is now offering our most
recent CLE seminars on CD and DVD. All of our
seminars are professionally edited and are
accompanied by a full set of written course
materials.
It’s never too early to plan for retirement. This program
covers the Sale of a Law Practice, Health Care Aspects of
Retirement Planning, Long Term Care Insurance, Business
Succession Issues, Financial Aspects of Retirement
Planning, and a Checklist for Closing or Purchasing a Law
Practice.
_____________________________________
Getting Paid: A Series on Ethics and
Practice Management Issues
Product Code 2190, 2191 and 2192,
Entire Series Product Code #2193
Entire Series 6.0 CLE Credits: 3.0 Ethics, 3.0 Law
Practice Management
Each Session separately 2.0 CLE Credits: 1.0 Ethics,
1.0 Law Practice
Management
Presented on April 4, April 11 and May 16, 2012
Available on CD only
To purchase entire series:
$120 BAEC Members, $170 Non-Members
To purchase per session: $50 BAEC Members,
$100 Non-Members
(Please specify which part by product code
when ordering)
#2190 – On April 4, 2012, Allison Shields of Legal Ease
Consulting presented Retainers & Billing. Part 1 of 3.
#2191 – On April 11, 2012, William Ilecki of Chiari and
Ilecki discussed Collections and April Orlowski of
William Mattar’s office covered Retaining & Charging
Liens. Part 2 of 3.
________________________________________
Presented on December 2, 2011 • 4.5 CLE
credits: 1.0 Ethics; 3.5 Skills • CD
How to Get It, How to Use It:
Elements of Discovery in Family Court
and Matrimonial Court Practice
Product Code 2110
7.5 CLE credits: 1.0 Ethics, 6.5 Law Practice Management
Presented on April 27, 2007
Available on CD
CD: $150 BAEC Members, $200 Non-Members
Presented by knowledgeable Erie County attorneys, judges and
experts with special knowledge of these areas of increasing
importance in both Family and Supreme Court, this noteworthy program explores the elements of discovery that are essential for today’s family law practitioner to master. Among the
key areas that this program addresses are tape recordings, key
capture, criminal records, reputation evidence, wiretapping
and subpoena powers,
________________________________________
New Maintenance Guidelines
Product Code 2250
2.0 CLE credits: Areas of Professional Practice
Presented on November 19, 2015
Available on CD or
ON DEMAND at www.eriebar.org
CD: $50 BAEC Members, $100 Non-Members
ON DEMAND: $60 Member (Use PROMO CODE:
member), $110 Non-member
On September 25, 2015, Governor Cuomo signed into law the
Maintenance Guidelines Legislation, which makes major
amendments to New York’s Domestic Relations Law and the
Family Court Act in enacting new guidelines for both temporary and post-divorce maintenance and spousal support.
Organized by the Matrimonial and Family Law Committee, this
two-hour presentation provides a timely review of the legislation’s features as they relate to matrimonial cases.
________________________________________
Product Code 2223
The Erie Institute of Law
438 Main Street, Sixth Floor
Buffalo, New York 14202
Be sure to include your name and address for mailing purposes; add $5.00 shipping and handling for
each tape purchased. Tapes are mailed via UPS, no
P.O. boxes please. To order by phone using your
Visa or MasterCard, please call 852-8687.
For a complete listing of taped CLE programs,
visit www.eriebar.org and click on the
Continuing Legal Education link or call 8528687.
Product Code 2188
Topics covered during the seminar include:
● Getting Your Client Through It All: From
the Late Night Phone Call Through License
Restoration;
● DWI Statutory and Case Law Update;
● Direct and Collateral Consequences of DWI;
● Defending the DWI: Motion Practice; and
● Ethical Representation of Your Client.
______________________________________
An Overview of Traffic
Procedures
Product Code 2245
Presented on October 15, 2015 • 1.0 CLE
credit: Areas of Professional Practice • CD
Topics covered include:
Hackers, Breaches & Spies: Privacy and
Security in the Digital Age
To order, please send check payable to:
Defending the DWI Defendant:
From the Basics through Recent
Developments
#2192 – On May 16, 2012, Deanne Tripi covers
Grievances & Fee Disputes. Part 3 of 3.
Product Code 2246
4.0 CLE credits: 1.5 Ethics, 2.5 Law Practice
Management
Presented on October 17, 2015
Available on CD, DVD or
ON DEMAND at www.eriebar.org
CD or DVD: $90 BAEC Members,
$150 Non-Members
ON DEMAND: $100 Member
(Use PROMO CODE: member), $160 Non-member
15% off if all three seminars are purchased
4.5 CLE credits: 0.5 Ethics, 3.5 Areas of Professional
Practice, 0.5 Law Practice Management
Presented on April 11, 2014
Available on CD and DVD
As highlighted by the recent hacking, spying, and breach-related headlines, security and privacy in the digital age are topics
that everyone must take seriously, and attorneys doubly so.
Between counseling clients on precautions they should take
and ensuring that their own computers and privileged information aren’t compromised, every attorney needs to be an
expert in what to do, and more importantly, what not to do, to
stay safe. The presenters at this seminar discuss current regulations and the steps you can take to ensure that you and your
clients are protected.
● Practical approaches
● Pleadings
● Special Issues
● Traffic Violations Bureau
● The New Buffalo Traffic Violations Agency
______________________________________
Nice Lawyers Finish First
Product Code 2185
Presented on August 10, 2011 • 2.0 CLE
credits: Ethics • CD
Increasingly, lawyer civility and congeniality is
becoming a thing of the past. Yet it doesn’t have
to be that way. Civil litigation need not lead to
all-out civil war. As legal professionals, lawyers
have an obligation to act just that way - professionally. In this humorous presentation, veteran
attorney and legal humorist Sean Carter reminds
you that zealous advocacy does not require you
to be a zealot. It’s possible to be courteous, kind,
accommodating and effective. In fact, for the
continued well-being of the profession (and
yourself), it’s necessary. Carter discusses
practical ways to: 3 T
● Reduce the hostility in interactions with even
the most difficult opposing counsel;
● Increase camaraderie among colleagues;
● Diffuse tensions among warring clients;
● Secure accommodations from opposing
counsel;
● Structure more mutually beneficial arrangements with clients;
● And much more.
pe Package - $170 Members,
Seminar Package
$297.503Non-Members
$140.25 Members, $242.25 Non-Members
Contact Celeste Walsh 852-8687
ext. 118 or [email protected]
PAGE 28
Photo by Glenn Edward Murray
ALL MEETINGS HELD AT THE BAEC, 438 Main Street,
Sixth Floor, unless otherwise noted. The Adelbert Moot
CLE Center is also located at 438 Main Street, Sixth Floor.
MARCH 2016
WEDNESDAY 2
Human Rights Committee
12:15 p.m. – Sharon Nosenchuck,
Chair
Federal Practice Committee
12:15 p.m. – Adelbert Moot CLE
Center
Timothy J. Graber, Chair
THURSDAY 3
Negligence Committee
Center
Dennis J. Bischof, Chair
FRIDAY 4
Commercial & Bankruptcy Law
Committee
12:15 p.m. – James C. Thoman,
Chair
Committee to Assist Lawyers with
Depression
12:30 p.m. – Daniel T. Lukasik,
Chair
MONDAY 7
Professional Ethics Committee
12:15 p.m. – Terence B. Newcomb,
Chair
Matrimonial & Family Law
Committee
12:15 p.m. – 25 Delaware Ave, 5th
Floor
Michelle Schwach Miecznikowski,
Co-Chair
Elizabeth DiPirro, Co-Chair
Criminal Law Committee
12:15 p.m. – Old Surrogate Court
Courtroom
92 Franklin Street, 1st Floor
Joseph J. Terranova, Chair
Real Property Law Committee
Center
Keri D. Callocchia, Chair
Labor Law Committee
12:15 p.m. – Josephine A. Greco,
Chair
Board of Directors
8:00 a.m. – Kevin W. Spitler,
President
TUESDAY 22
Committee for the Disabled
12:15 p.m. – Jeffrey Marion, Chair
Board of Directors
8:00 a.m. – Kevin W. Spitler,
President
Elder Law Committee
12:15 p.m. – Edward C. Robinson,
Chair
Depression
Chair
THURSDAY 24
TUESDAY 15
Corporation Law Committee
12:15 p.m. – Craig M. Fischer,
Chair
WEDNESDAY 16
Erie County Bar Foundation
8:00 a.m. – Garry M. Graber,
President
Environmental Law Committee
12:15 p.m. – Jeffery C. Stravino,
Chair
Appellate Practice Committee
12:15 p.m. – Timothy P. Murphy,
Chair
WEDNESDAY 9
Intellectual Property, Computer &
Entertainment Law Committee
12:15 p.m. – Jordan L Walbesser,
Chair
Health Care Law Committee
12:15 p.m. – William Patrick
Keefer, Chair
THURSDAY 10
TUESDAY 8
FRIDAY 11
Committee on Eminent Domain &
Tax Certiorari
12:15 p.m. - Mark R. McNamara,
Chair
THURSDAY 17
Committee on Veterans’ & ServiceMembers’ Legal Issues
12:15 p.m. – David J. State &
Jeffery Marion, Co-Chairs
FRIDAY 18
Young Lawyers Committee
12:15 p.m. – Katie M. Ireland &
Laura B. Berloth, Co-Chairs
Depression
Chair
P&P in Surrogate’s Court
Committee
12:15 p.m. – 438 Main Street, 12th
Floor
Sharon L. Wick, Chair
P&P in Family Court Committee
12:15 p.m. – Family Court
Building
Tina M. Hawthorne & Bernadette
Hoppe, Co-Chairs
Solo & Small Firm Practice
Committee
12:30 p.m. – Lana V. Tupchik,
Chair
FRIDAY 25
Office Closing at 11:30 a.m.
MONDAY 28
Alternative Dispute Resolution
Committee
12:15 p.m. – Bridget M.
O’Connell, Chair
WEDNESDAY 30
Regulatory Compliance Committee
12:15 p.m. – SUNY Buffalo Law
School
Brad J. Davidzik, Chair
www.eriebar.org

March - Bar Association of Erie County

Transcription

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