BRIEFS June 11.pmd - Ingham County Bar Association

INGHAM C OUNTY B AR A SSOCIATION
BRIEFS
JUNE 2011
District judge rules that the Michigan State Police
do not use reliable blood alcohol testing procedures
The Michigan State Police toxicology lab does not
use scientific testing procedures that are reliable enough
to allow the admission of a blood alcohol estimate in an
OWI case in Michigan. Prosecutors in Mason County
attempted to admit a blood alcohol estimate but were
denied in a ruling received by lawyers for the accused
citizen. 79th Judicial District Judge Peter J. Wadel found
that the state police lab witnesses refused to account for
the sources of uncertainty in the testing and reporting
process. The court held: “This court therefore finds that
the blood test results are not reliable until the state police
crime lab calculates an uncertainty budget or error rate
and reports that calculation along with the blood test
results.”
The lead counsel for the defense is OWI/DUI expert
Mike Nichols of Lansing, author of the West “OWI
Handbook” for Michigan lawyers and an adjunct law
professor at Thomas M. Cooley Law School in Lansing.
“We are pleased that the judge took the time to
require the Michigan State Police lab witnesses to
verify that the lab follows the procedures and
methods that have been recommended for years
to ensure that juries and judges are not misled,”
Nichols said. “The judge got it absolutely right
when he said that to report the blood alcohol
estimate as a single number without a range of
uncertainty is not the proper scientific procedure.”
Judge Wadel took testimony over the course
of nearly two years and five separate hearings.
The opinion is not binding on other judges but
Nichols said “we expect other judges around
Michigan to use this thoughtful opinion and order as
persuasive authority when analyzing similar issues. We
have to be careful not to catch people who did not violate
the law by being so aggressive in trying to catch those
who did. No one wants to lose a loved one in a tragic OWI
The court held: “This court therefore
finds that the blood test results are not
reliable until the state police crime lab
calculates an uncertainty budget or
error rate and reports that calculation
along with the blood test results.”
accident but no one wants to be a convicted or have a loved
one convicted of a lifelong offense if they are not guilty.”
The case will now go to a circuit judge in Ludington
for further proceedings.
ICBA proud to be
going paperless!
Michigan’s Medicinal Marihuana Act
and the Casias decision
by Liisa R. Speaker
[email protected]
This certainly has been the year of change for
the ICBA (see Pat Gallagher’s President’s Message,
page 4). Moving into the next fiscal year, ICBA is
bringing its members more changes, including its
paperless project.
Does the MMMA negate employer drug testing policies?
BRIEFS moving to electronic
Most significantly,
ICBA’s BRIEFS will
become an electroniconly publication starting
with the September 2011
issue. Giving up the hard
copy newspaper was
certainly
a
tough
decision, but in the face
of growing economic
challenges
and
increasing printing costs,
the ICBA Board and especially its Publications
Committee, could not continue on its current path.
For some, not receiving BRIEFS in the mail will
be a disappointment. I know I have enjoyed opening
up the paper and reading the articles contained
within. For many others, the move to an electronic
format is an exciting prospect. It will be easier to
share articles with our friends, families, and
colleagues. It will be easier to access old articles. We
won’t have to dig through a stack of papers on the
side of our desks to find the issue we want to read or
re-read. Some of our members have happily noted
that over the past few months they have been receiving
BRIEFS in the mail and electronically via a link
Please see Paperless, page 4
by Brandon Gardner1
[email protected]
On December 4, 2008, Michigan became the
sixteenth state to enact legislation permitting the
medicinal
use
of
marihuana. The purpose
of Michigan’s Medicinal
Marihuana Act (MMMA)
(MCL 333.26421, et seq)
is to provide protection
to qualifying patients who
lawfully use marihuana
under the MMMA from
prosecution. Under the
MMMA,
qualifying
patients who lawfully use
and possess marihuana
Brandon Gardner
are exempt from civil
prosecution by a business
(MCL 333.26424(a)). This means that it is unlawful for
a business to penalize a qualifying patient who lawfully
uses marihuana under the MMMA.
However, nothing in the MMMA requires an
employer to accommodate a qualifying patient’s ingestion
of marihuana or a qualifying patient’s work while under
the influence of marihuana. (MCL 333.26427(c)(2))
Most states with statutes permitting the use of medicinal
marihuana to some extent have a version of one of these
two provisions. But no state has both provisions. So,
while employers cannot penalize an employee who
lawfully uses under the MMMA, employers do not have
to accommodate an employee’s ingestion or intoxication.
This left employers and employees alike confused as to
how to lawfully comply with the MMMA. Such confusion
lead one district court judge to declare the statute as
“probably one of the worst pieces of legislation I’ve ever
seen in my life.” (People v Redden, __ Mich App __; __
NW2d __ (2010).) This confusion appears to now have
been cleared up.
A recent case from the Federal District Court for the
Western District of Michigan appears to have settled
much of the headache, (Casias v Wal-Mart Stores Inc, __ F
Please see MMMA on page 9
What’s in
BRIEFS?
Local Legal Events ................................................ 2
In Brief .................................................................. 3
President’s Message ............................................. 4
Inspiring Pro Bono ............................................... 5
iPick and restaurant review ................................ 6
Lawyers Got Talent .............................................. 7
U.S. Dept. of Labor new phone app ................... 8
Points to Practice ................................................. 8
To pay or not to pay ............................................. 9
Mediation in neglect/abuse cases ...................... 10
Veteran benefits and probate ........................... 10
Estate planning for surrogates & frozen embryos .. 11
Shrimp Dinner highlights .................................. 12
Change of Venue ................................................ 13
Referrals and advertisements ............................ 15
On the Docket ................................................... 16
Spotlight on WLAM ........................................... 16
2 BRIEFS June 2011
Local Legal Events
Softball Charity Fundraiser
coming in August
The Young Lawyers Section of the Ingham County
Bar Association will be hosting
a Softball Charity Fundraiser.
Originally scheduled in June,
the event will now take placein
August. Keep watching your email and the ICBA website for
details!
Interested in playing?
Contact Brendon Basiga at
[email protected] or
Steve Feigelson at
[email protected]
Discussion group seeks
pension-/retirement incomerelated practitioners
The Mid-America Pension Rights Project, housed
and operated by Elder Law of Michigan in Lansing,
invites any and all professionals working with individuals
who may have pension or other retirement-income
concerns to join the new LinkedIn “Pension Rights and
Resources” discussion group. The group is targeting
professionals such as attorneys, accountants, and actuaries
who assist with ERISA and non-ERISA pension issues or
other retirement-income concerns.
To join, search for “Pension Rights and Resources”
on LinkedIn and then request membership.
See you in September!
YLS mixer June 24
An ICBA Young Lawyer Section mixer will be June
24 from 5:30 to 8 p.m. at Dublin Square, 327 Abbot
Road, East Lansing. The price is $5 per person. Register
online at the ICBA website, on or before June 20.
Students welcome!.
Get your picture
displayed on the
courthouse wall!
ICBA has arranged to display photos of all its
members on a wall composite in the Ingham County
Courthouse!
All photos displayed
must be taken by Prestige
Portraits Studio, which
has provided a group rate
for this service. Photo
shoots will take place
between noon and 8 p.m.
on June 13, 17, 20 and 24
at Prestige Portraits
Studio, 2187 Jolly Road,
Okemos. You must
registration in advance.
The fee for the service is $40, which includes six
poses on a neutral grey background and lowresolution images suitable for website posting. After
the sitting, the proofs will be mailed to you, allowing
you the opportunity to order additional portraits.
Due to deadline restrictions, only those members
that are photographed by Prestige Portraits, on one
of the offered dates, will be represented on the wall
composite. Other images cannot be used in the
composite.
To schedule and pay for your sitting, please visit
http://www.prepaysystems.com/events/9/
If you have any questions., please call Michael Sdao,
Prestige Portraits Studio supervisor, at
517-349-0950 or e-mail him at [email protected] .
Ingham County
Bar Association
P.O. Box 66
Grand Ledge, MI 48837
www.inghambar.org
BRIEFS
Published by the Ingham County Bar Association
10 times a year
September through June
Editor: Becky Scott, [email protected] 517-290-3158
e-mail [email protected]
ICBA BOARD OF DIRECTORS
Officers
President B. Pat Gallagher, Jr. 853-1500 [email protected]
Pres-Elect Scott Mandel 371-8185 [email protected]
V-Pres. Stacia Buchanan 303-1630 [email protected]
Secretary Brendon Basiga 332-5323 [email protected]
Treasurer Liisa Speaker 482-8933 [email protected]
Past Pres. David Lick 371-8100 [email protected]
Directors
Josh Ard 655-9782 [email protected]
Lisa Babcock 580-3485, [email protected]
Hon.Thomas Brennan Jr. 351-9124 [email protected]
Jessica Fox 663-3306 [email protected]
Catherine Groll 703-1100 [email protected]
Mary Chartier-Mittendorf 482-2000, [email protected]
Jason Hanselman, 374-9181, [email protected]
Michael Shoudy 347-7211 [email protected]
YLS Rep: Ross Bower 381-0100 [email protected]
YLS Rep: Melissa Keener 324-8700 [email protected]
Ex Officio
Mid-Michigan Women Lawyers Angela Brown, 377-0710
[email protected]
Legal Assistants, Ida Farhat 371-8258; [email protected]
Ingham County Bar Auxiliary, Sally Lawrence, 323-7211
[email protected]
Staff
Madelyne Lawry, Executive Director [email protected]
Becky Scott, Editor 290-3158; [email protected]
Contributions to BRIEFS are encouraged. Please send ideas for
articles or completed articles to the ICBA office. A file attached
to e-mail usually works well. Display and classified advertising:
inghambar.org. All material should be in by the 15th of the month
prior to month intended, e.g., April 15 for the May issue.
BRIEFS COMMITTEE
Liisa Speaker, Chairperson, 482-8933; Fax: 482-8936; E-mail:
[email protected]; 230 N. Sycamore, Lansing, MI 48933.
If you’d like to join the Publications Committee, call the ICBA office
or the editor, Becky Scott, for meeting times, usually one hour once
a month, 12 to 1 p.m. the second Monday of the month.
Josh Ard, [email protected], 655-9782
Lisa Babcock, [email protected], 580-3485
Scott Breen, [email protected], 324-1021
Christine Caswell, [email protected], 487-8950
Mary Chartier-Mittendorf, [email protected], 482-2000
Pat Claire, [email protected], 351-6200
Derrick Etheridge, [email protected], 410-7677
Jessica Fox, [email protected], 663-3306
Deborah B. Frederick, [email protected], 483-6302
Jason T. Hanselman, [email protected], 374-9181
Carrie Huff, [email protected], 482-0222
Richard Kraus, [email protected], 371-8100
Valerie Lafferty, [email protected], 349-6660
Jodi Latuszek, [email protected] 482-8933
Fred Lovejoy, [email protected] 371-7180
Kyler McGillicuddy, [email protected]
Dan Moraniec, [email protected] 332-3800
Michael J. Nichols, [email protected], 432-9000
Gregory Palmer, [email protected], 616-459-6700,303
Lori Pourzan, [email protected] 394-2985x240
Sherri Smith, [email protected], 881-0174
Kevin Schumacher, [email protected] 482-3800
Joshua S. Smith, [email protected], 335-1238
Amy Timmer, [email protected] 371-5140
Charles R. Toy, [email protected] 371-5140
BRIEFS June 2011 3
In Brief
Foster Swift Collins & Smith, P.C. is pleased to
announce the addition of attorney Archana Rajendra.
She is a member of the firm’s Workers’ Compensation
Practice Group.
Rajendra
has
substantial experience
preparing and litigating
appellate, insurance
defense and workers’
compensation cases. She
was previously an adjunct
professor at Michigan
State University’s School
of Criminal Justice, an
attorney at Kluczynski,
Girtz & Vogelzang and an
attorney at Garlington &
Associates. She received
her law degree from
Archana Rajendra
Indiana University School
of
Law
and
her
undergraduate degree from Michigan State University.
The Hubbard Law Firm, P.C. is pleased to welcome
Troy Langer to its municipal and drain practice areas.
In addition to his legal
expertise, Mr. Langer
brings with him over 15
years
municipal
experience outside the
legal field. He received
both his B.A. and M.A.
from Minnesota State
University at Mankato,
and his J.D. from
Michigan State University
College of Law. Mr.
Langer lives in Dewitt with
his wife and family.
Troy Langer
Recent Thomas M. Cooley Law School graduate
Jessica Gonzalez is one of only 24 individuals who have
been chosen to participate in the 2011-2012
Congressional
Hispanic Caucus
Institute (CHCI),
www.chci.org, and
one of only seven to
be selected into its
Graduate Fellowship
Program (GFP).
GHCI, located in
Washington, D.C.,
was founded in 1978
by a small group of
Hispanic members
of Congress with the
vision of bringing the
promise of the
American dream to
the next generation
Jessica Gonzalez
of
Latinos
by
developing their
leadership skills.
Gonzalez graduated cum laude with a doctorate of
jurisprudence from Cooley’s Lansing campus last fall.
She passed the bar exam in her home state of Texas,
where she practices as an attorney at the law office of
Domingo Garcia. While attending law school, Gonzalez
spent many hours working on social justice and civil
rights issues by volunteering and involving herself in
political campaigns. She gained valuable experience
during the spring of 2010 while performing an
externship as a clerk for the Department of Justice, Civil
Rights Division, Voting Section.
The requirements of the GFP Fellowship include:
participating in weekly leadership sessions, working 32
hours, writing a public policy paper, participating in a
group community service project and developing and
executing a policy summit.
The Women Lawyers Association of Michigan
(WLAM), Mid-Michigan Chapter, elected new officers
for the 2011-12 year.
Valerie Lafferty,
president, focuses in Real
Property and Elder Law/
Probate Mediation. Val is
pleased to take on the
challenge of growing
membership at the MidMichigan Chapter with the
new leadership.
Val Lafferty
Tish Vincent, vice
president, practices in the
area of physician and
provider legal issues in
health law, ADR and
collaborative practice. She
is an evaluator and provider
for the State of Michigan’s
Health
Professionals
Tish Vincent
Recovery Program and the SBM’s Layers and Judges
Assistance Program. Tish is an MSW and as experienced
healthcare provider she offers knowledgeable
representation to other healthcare providers.
Nicki Proulx, secretary, practices civil litigation at
Fraser Trebilcock Davis &
Dunlap, P.C. in Lansing,
where she focuses on
employment litigation,
insurance
defense,
commercial litigation and
premises liability. Nicki is
a 2001 graduate of the
University of Michigan
where she was a member of
the women’s track and field
team, and she is a 2004
graduate of the University
of Michigan Law School.
Nicki Proulx
In her spare time, Nicki
enjoys playing and watching sports, spending time with
family and friends, and volunteer work, which she does
through the Junior League of Lansing and Lunch with
a Purpose.
Kris Arnett, an
attorney at The Hubbard
Law Firm, P.C., practices
in the areas of estate
planning, probate and
trust administration and
domestic matters. She
attended Michigan State
University
for
undergraduate studies and
West Virginia College of
Law, from which she
graduated in 2002. She has
Kris Arnett
been a WLAM member
since 2003 and a past
president of the state board for the 2007-2008 year.
Mike Nichols has
agreed to author a chapter
on Michigan metrology
litigation for a national text
on forensic metrology. The
text is authored by attorney
Ted Vosk, a Michigan
native.
Michael Nichols
Fraser Trebilcock is pleased to announce that Melisa
Werkema Mysliwiec has joined the firm as an associate
attorney in its’ Grand
Rapids and Lansing
offices. Ms. Mysliwiec
practices in the areas of
estate planning, estate and
trust administration,
guardianships
and
conservatorships, as well as
elder law and Medicaid
Planning. She will be
spending time in both
Lansing and Grand Rapids
to better service clients.
Melisa Werkema Mysliwiec
Ms. Mysliwiec is an
active member of the State Bar of Michigan as a member
of the Probate and Estate Planning and the Elder Law and
Disabilities Rights Sections. Currently Ms. Mysliwiec
serves on the Amicus Curiae Committee of the Probate
and Estate Planning Council of the State Bar of Michigan,
in addition to acting as Assistant Editor of the Probate and
Estate Planning Journal.
Ms. Mysliwiec received her J.D. from the Thomas M.
Cooley Law School and received a B.A. from Grand Valley
State University.
Matthew C. Wyman has joined the law firm of Fahey
Schultz Burzych Rhodes PLC in Okemos.
Matt joins the firm’s growing practice in the
representation of franchised businesses and businesses
involved in the hospitality
industry. His practice
focuses on the prosecution
of trademark and copyright
registrations, general
franchise and corporate law,
and general business
litigation. He is admitted to
practice in all Michigan and
Illinois state and federal
courts.
Matt joins the firm after
practicing law in Chicago
for three years. His practice
in the greater Chicago area
focused on litigation and
Matthew C. Wyman
he had the opportunity to
handle numerous hearings and jury trials. Matt credits his
early trial and courtroom experience as one of the best
“boot camps” that a young attorney can experience.
Matt is a 2007 graduate of the DePaul University
College of Law and a 2003 graduate of the University of
Michigan. While in law school, Matt served as the
president of the DePaul Chapter of the Phi Delta Phi
honors fraternity.
Attorney Brendon Basiga has recently been added to
the CJA Panel for the Federal Public Defender’s Office
for the Western District of Michigan. In addition to his
private practice, he will be
handling federal cases as
well.
Brendon graduated
from the Thomas M. Cooley
Law School in 2005 and has
been primarily focused on
criminal law cases. He is
licensed in Michigan and in
Illinois. Brendon first began
in the criminal law field at
the Washtenaw County
Public Defender’s Office. He
is now an Associate Attorney
at Bodwin & Associates, P.C.
Brendon Basiga
where he works out of both
the East Lansing and Chicago offices.
Beyond his practice, Brendon served as the Secretary
for the Ingham County Bar Association as well as the PastPresident of the Young Lawyers Section. He is very
excited to be serving on the CJA Panel, and looks forward
to working with the other Panel attorneys as well as the
Federal Public Defenders.
4 BRIEFS June 2011
President’s Message
by Byron “Pat” Gallagher, Jr.
[email protected]
My term as ICBA president ends June 30. The
ICBA Board addressed a number of difficult issues and
put in place some new
programs for members.
First, the money
issues. Most importantly
we strengthened our
financial footings. Prior
year revenues were only
$94,000 and expenses
were $101,000. Not good.
This year revenues
(through June 30) are
projected at $102,000
and expenses at $86,000.
Running a budget
surplus, however small,
Byron “Pat” Gallagher, Jr.
relieves a lot of pressure
from any organization.
We addressed and eliminated a long-standing $9,000
liability associated with the publication of Briefs. We
squared up a $24,700 liability with the Ingham County
Bar Foundation which resulted from a lack of
communication and oversight. We resolved that we
would not lose any money on any event we held, thus
eliminating a $2,000 annual loss for the Shrimp Dinner,
ongoing losses from Luncheon Lectures, Section
Meetings and other items. Of course some of these
changes caused some aggravation for members who
were used to the way things used to be. As I sometimes
say, there is the right way the wrong way and the ICBA
way! However, members quickly realized that ICBA
could not go on any longer without these changes.
Second, management. Treasurer Liisa Speaker was
often the bearer of bad news and generally the source
of creative solutions through her countless hours of
efforts fixing our problems. We hired Madelyne Lawry
Paperless, continued from page 1
contained in the member e-blasts. We will work on
making BRIEFS easily-readable on mobile devices,
including smart phones and tablets.
Of course, one of the main instigating factors for
switching BRIEFS to electronic format was money. As
part of this process, ICBA has ended its contract with
Ingham County Legal News, the publication that has
been printing and mailing BRIEFS since 2005. But don’t
worry, ICBA members will still receive their Legal News
in the mail. In fact, ICBA members will continue to
receive a free subscription to Legal News for the next
three years.
as our new Executive Director and she has been doing a
wonderful job. She and her staff have greatly increased
efficiencies in ICBA operations. We hired a new accounting
firm for our monthly accounting and annual tax return.
Third, technology. We implemented a listserv thanks
to the efforts of Josh Ard. Our website was made more
user-friendly. Electronic balloting for future elections
was put in place thanks to Jason Hanselman’s election law
and corporate governance expertise.
Fourth, events. Our core events improved. The
Shrimp Dinner had better-than-ever attendance thanks
to Phil Vilella’s 40 years of experience in running this
event. Over 190 people attended, which may be a record
and the event likely broke even or better – final accounting
pending. The length of the Annual Dinner was
considerably shortened per member comments – you
would be surprised at the overwhelming positive feedback
on this one! Catherine Groll spearheaded the first Lawyers
Got Talent which exceeded everyone’s expectations and
no doubt will become an annual event (Catherine says she
needs a rest from ICBA for 90 days!).
Fifth, we began the process of getting a new composite
photo of ICBA members on the courthouse wall, as the
last one is 20 years old. There is still time to have your
photograph taken so please register on the website. Also,
the surprisingly complicated process of getting a room at
the courthouse for a lawyers lounge continued.
Sixth, our people. The progress we made was not
possible without the efforts of a hardworking board and
other attorneys who volunteered their time to help make
things happen. A number of people came forward as
candidates to get involved in the Boards of Young Lawyers
and ICBA.
Seventh, based on member concerns we began the
process of looking into how the Judicial Candidate
Qualification Committee conducts ratings and how
recipients of ICBA awards are selected. Examination of
these items will continue with the new board.
I sincerely thank our current board for all of their
efforts and support:
Josh Ard
Lisa Babcock
Bredon Basiga (Secretary)
Thomas Brennan
Ross Bower (YLS President)
Stacia Buchanan (Vice President)
Mary Chartier
Jessica Fox
Pat Gallagher (President)
Catherine Groll
Jason Hanselman
Melissa Keener (YLS President-Elect)
David Lick (Immediate Past President)
Scott Mandel (President-Elect)
Michael Shoudy
Liisa Speaker (Treasurer)
Electronic voting
hope that electronic voting will result in higher voter
turnout.
Next year when ICBA members vote for their board
of directors, they will do so electronically. The ICBA
board amended the bylaws in April 2010 to allow for
electronic balloting. No paper ballots will be sent. Just
think how much paper this saves: the ballot, the envelope
for mailing the ballot to the members, the two return
envelopes for the completed ballot (one envelope is
signed by the member and another unmarked envelope
goes inside the signed envelope to maintain
confidentiality). ICBA and its members will not only save
paper and the expense of mailing ballots back and forth,
but we will also save on the administrative expense of
processing the ballots. Not to mention the hours it took
for the election committee to count the ballots! We also
I wish the next board the best in continuing to
improve the ICBA:
Josh Ard
Lisa Babcock
Thomas Brennan
Stacia Buchanan (President-Elect)
Hon. Clinton Canady
Mary Chartier
Jessica Fox
Pat Gallagher (Immediate Past President)
Catherine Groll
Jason Hanselman
Mark Hoover
Melissa Keener (YLS President)
Mark Kellog
Scott Mandel (President)
Liisa Speaker (Treasurer)
I have enjoyed my term as President and really
appreciated the positive feedback from members during
my term. Thanks!
E-Blasts
This is not the first year that ICBA has sent e-blasts
to its members, but we have certainly gotten better about
communicating with our members by email. We have
received a lot of positive feedback about the email
communications. They have kept our members in the
loop, and saved on some paper costs by eliminating some
of our mailings. We will continue to send ICBA members
regular e-blasts.
Liisa R. Speaker is the chair of the Publications Committee,
an ICBA board member and officer. Liisa is also an appellate
attorney who loves to e-file her briefs at the Court of Appeals!
Fraser Trebilcock forms crisis management team for when reputation is at risk
One of Michigan’s oldest law firms announced that
it has formed a new practice group to assist clients in
responding to crises or otherwise deal with the media
when a client’s reputation is at risk.
“Avoiding and dealing with potential crises is critical
to an organization’s success,” said Thaddeus Morgan,
president of Fraser Trebilcock. “Successfully identifying,
mitigating and managing risk in today’s business
environment calls for a team of business-savvy and
experienced legal and PR professionals with the insight
and experience to create effective and immediate solutions
in such a volatile market. Based on the need of our clients,
we decided to create an in-house practice group to help
our clients deal with the media, particularly when litigation
may be involved.”
Food, cosmetics, pharmaceuticals, cars and other
consumer products are increasingly being subjected to
product recalls. A recall attracts attention, affects the
manufactures reputation and could result in litigation or
even a class action lawsuit. In this mobile age, where news
breaks as it happens, reputations that took years to create
can change in an instant. Attorneys are the first responders
to help minimize the risk and help their clients respond
or react.
Daniel Cherrin, the former communications director
for the city of Detroit and press secretary to former Mayor
Kenneth V. Cockrel, Jr. will be leading the newly formed
“Crisis Management, Litigation and Strategic
Communications” practice group, with a team of
experienced litigators and other media-savvy attorneys.
Lawyers are uniquely positioned to deal with crises
and only one firm in Michigan is experienced to handle
the media. Through our experienced senior-level
litigation team, we can quickly mobilize our attorneys to
advise companies, associations and individuals on issues
that may result in litigation, or better yet, advise them on
how to avoid it in the first place. Our team of public policy
attorneys and lobbyists will help clients address major
legislative challenges at a local, state and federal level and
work with policy makers in responding to a crisis. And our
experienced public relations team will work with the
media and other stakeholder groups to ensure the right
messages are being communicated at the right time, as
attorneys, to ensure attorney-client privilege.
“We are equipped to assist clients in every aspect of
a corporate crisis, from avoiding crises in the first place,
to the initial response and serving as the on site
spokesperson, to assisting the company with any on
going investigations and if necessary litigation or
regulatory and legislative support,” said Cherrin.
Now, Fraser Trebillcock and its’ subsidiary, Fraser
Consulting, can help companies avoid, manage and
recover from very difficult situations. Our experienced
attorneys have worked on cases involving:
Land Use
Employment discrimination
Environmental clean ups
Infrastructure disputes
Municipal issues
Criminal matters
Off shore wind projects
Class action lawsuits
We work with in-house and outside counsel, as well
as public relations professionals, to help develop an
effective communications strategy that supports any legal
strategy. We work with organizations to manage every
aspect of a crisis, from initial response to corrective
action, investigations and if needed, representation
Please see Fraser, page 5
BRIEFS June 2011 5
Inspiring Pro Bono
Column by Amy Timmer, Associate Dean of Students and Professionalism and Professor of Law at Cooley Law School, and contributing writers.
Pro bono work:
the Midas touch
by Christopher Treudeau
[email protected]
Four years ago, I started offering pro bono services
at Cristo Rey Community Center. At the time, Cristo Rey
provided numerous social and medical services to the
community, but it did not provide any legal services. So
with the unfailing support of my employer, Cooley Law
School, I decided to help fill that void by spending three
mornings a month meeting with clients and either
representing them directly or connecting them with the
appropriate person to handle the matter.
When I started pro bono
work, I was immediately
drawn to it for a number of
reasons: it gave me a sense
of community involvement;
it helped fulfill my altruistic
desire to help people; and it
enabled me to re-engage in
practicing law, which I had
missed since leaving practice
for academia. To be sure,
pro bono work provided all
of these benefits, but it
provided so much more.
To me, pro bono work
Christopher Trudeau
is the most worthwhile,
productive hobby an attorney can undertake. When I
started, I considered pro bono to be an extension of work.
But soon after I began, it became more like a hobby that
I looked forward to each week. What could be better than
an intellectually stimulating hobby that keeps you growing
as an attorney, all while helping those in need? There are
very few win-win situations in life, but providing pro bono
legal services is one of them.
Plus, I never imagined just how uplifting pro bono
work could be. Every time I was having a bad day (or a bad
week) and I went to Cristo Rey, my bad day suddenly
turned into a good day. Almost every week, I would have
a client thank me for taking the time to help or tell me
that I helped turn their life around. Nothing is as uplifting
as positively influencing someone’s life. Simply put, pro
bono work is like the Midas touch – your life turns to gold
after you start doing it.
Christopher Trudeai is an associate professor at Cooley Law
School.
Because I can
by Karen Truszkowski
[email protected]
Why do I do pro bono work? Because I can.
Look around you. Think about the people you know
who volunteer. For the most part, in my experience
anyway, those people are typically good–natured, well–
adjusted, content individuals. Because it is good for their
soul.
When I think of the devoted, consummate volunteer,
I think of Jimmy Carter.
Sure, he was the president
of the United States. But
30 years later, at age 86, he
is still outside swinging a
hammer for Habitat for
Humanity. And whenever
you see President Carter,
he always has a smile on
his face. He is content. He
doesn’t rest on his laurels.
He walks the walk. Doing
pro bono work makes me
feel content. I get as much
out of it as the people I
Karen Truszkowski
help.
When I say that being able to practice law is an honor
and a privilege, I say that with all sincerity. And in my eyes
it is an even greater privilege to be able to sit down with
someone who cannot afford a lawyer and explain to them
how they can fight back when they are being treated
unfairly by their insurance company, keep their autistic
6-year-old child in school, or stop their home from going
into foreclosure. Sometimes they just need somebody to
listen to their story with the knowledge that their story
stays between the two of us. We all need that sometimes,
don’t we?
I started volunteering in the free legal clinic at
Common Ground Sanctuary in Oakland County in 1999.
Since then, I have volunteered in many other capacities,
and I currently participate in the Service to Soldiers
Program at Thomas M. Cooley Law School. Along with
Cooley law students, we draft wills and powers of attorney
for deploying soldiers, and help the soldiers with civilian
legal issues when they return.
So why do I do pro bono work? It’s simple. Because
I can.
Karen Truszkowski is a professor at Cooley Law School.
Helping those who
helped me
by Anthony Flores
[email protected]
In August of 2005, I made the transition from being
a career assistant prosecuting attorney to full-time law
professor. I had a passion for both teaching and
prosecution, so I was hoping for a smooth transition. In
that first month a colleague approached me about doing
some training for the Child Welfare Institute. This is the
organization responsible for the training of new protective
service investigators and foster care workers.
I had spent years
working with these people
when I was a prosecutor,
spending
hours
on
testimony
and
investigation, and even
socializing after various
cases were complete. It had
been my experience that
the majority of these
individuals
were
committed to protecting
children and to their job —
Anthony Flores
a job that is filled with angst,
and that consistently exposes these workers to the cruelest
part of our humanity. I remember joking with these
workers that nobody wanted to know how they spent their
day.
It was with this background that I proceeded to
volunteer my time, and eventually the time of my mock
trial students, to training for the Child Welfare Institute.
The transition to being a full time teacher did not come
without some reflection. During that reflection, I
recognized how much I enjoyed working with those
people who spent their days making my community a
better place because of the job they did and the way they
did their job. Spending your days either investigating
child neglect and abuse or trying to reunify a family that
has been placed under the supervision of the court is an
extraordinary responsibility. The workers who I had
been involved with inspired me to work hard on every
case and reminded me that despair is not a word used
when dealing with child neglect and abuse issues.
To this date, I have trained close to 800 new child
protective investigators and foster care workers. I have
been able to expose my students to these workers and the
law that governs child protection issues. To their credit,
my students have not only participated in these trainings,
they have immersed themselves in this area of the law,
creating a student training manual to assist new students
in the training program.
The training given my students the opportunity to
support those people who have chosen a career based on
supporting and protecting children. The training has
given me the ability to give something back to all of the
investigators and foster care workers who helped me do my
job. It is routine to say in the pro bono arena “you get back
more than you give.” This is said, only because it is true.
Anthony Flores is an associate professor at Cooley Law
School.
Fraser, continued from page 4
during civil and criminal and legislative actions. Our
lawyers are available and accessible 24 hours a day to
assist in any crisis — from environmental accidents and
disasters to crashes, explosions, homeland security issues,
whistle blower claims, bankruptcy, indictments, product
reveals, and disaster preparedness. Our team of lawyers
use a combination of legal prowess, relationships and
political acumen to assist clients in times of crisis.
6 BRIEFS June 2011
iPic
kT
ec
hnology
iPick
Tec
echnology
by Derrick Etheridge
[email protected]
This month iPick The Civil War Today. The Civil War
Today is an iPad application that launched on April 12,
2011, the 150th anniversary of the beginning of the Civil
War. Those who know me,
and know me well, know that
I love to read and study
Abraham Lincoln and the
Civil War. So, this pick
should not surprise anyone
who knows me.
This app provides a
great way to learn about the
Civil War. Beginning April
12, 2011, and continuing
through April 26, 2015, the
app will update its contents
daily. The daily updates will
precisely mirror events of
150 years ago. The app
Derrick Etheridge
provides
access
to
“thousands of original documents, photos, maps, diary
entries, quotes, and newspaper broadsheets.” Its features
include: “This Day in Civil War History,” “A Day in The
Life,” “In the Headlines,” running tallies of the North
and South casualty counts, photo galleries, “Photo of the
Day,” “Quote of the Day,” articles and videos on featured
topics, authentic period maps from key battlegrounds,
and a “Daily North-South Quiz.”
This app is well designed and uses the iPad’s multi-
touch interface to allow you to touch history using
gestures to interact and explore the Civil War. Some of
the most interesting
material in the app
are the personal
letters and diary
entries of those who
lived through the
war, such as Mary
Boykin
Miller
Chestnut. Their
observations of what
happened
are
priceless, and the
app places their
observations
in
context of the daily
events of the Civil
War. These firstperson accounts of
events are well worth the price of the app.
If you are interested in the Civil War, you should try
The Civil War Today app. It is available on the iTunes
Store for $7.99. It is an iPad-only app. It is well worth the
price. Remember for $7.99, you receive daily content for
four years.
H. Derrick Etheridge, J.D., LL.M., of the Law Offices of
Derrick Etheridge, PLLC, is a solo practitioner, whose law
practice focuses on criminal defense.
Restaurant Review
A Flight with Icarus: Chicken Wings at Fresh Fish
by Joshua S.Smith
Aside from giblets and gizzards, the most forsaken
part of the chicken has often been the wing. This had
been the case with most poultry and fowl — the
delicate instruments of flight have traditionally been
left to languish in the refrigerator, long after the
breasts, legs and thighs have gone to higher — or
lower — places. Decades ago, the brightest minds in
Buffalo made a concerted culinary effort to find a
place for the forgotten wing. Now, the wing populates
the menu of every pizza joint on Main Street and even
has a chain restaurant devoted to it. But the world has
waited for true winged perfection.
It need wait no more.
Many months ago, a colleague recommended
that we order some wings for lunch from Fresh Fish on
3140 S Martin L King Jr Blvd in Lansing. Having
nothing better to eat, I followed his advice. We placed
our order about a half hour ahead of time, as is the
custom at Fresh Fish, which makes each batch of wings
to order.
I picked the wings up at the restaurant — Fresh
Fish does not deliver — along with some fries. The
establishment has many varieties of fish on hand,
lending a wharf-like scent to the place. The wings
themselves were rather small and, unlike the average
wings, were not slathered in sauce. Instead, they were
lightly dusted with spices; hot sauce came on the side.
I was skeptical. No Buffalo or BBQ sauce on the
wings? How dare they! Nonetheless, I paid my cash
and transported the cargo back to my office. Upon
arriving, I piled several on a plate and commenced
eating.
The fried wings had a just-right amount of
breading, lending a delectable crispness enhanced
rather than obscured the chicken. But the real surprise
was that light dusting of spices. Pure heaven — sharp,
but not bitter, with a bite balanced by sweetness. I can’t
quite place the combination of spices used, but they
brought a nearly narcotic level of bliss to my tastebuds.
I ate one. Then another. And another. But I
didn’t chow them down with indiscriminate speed. I
slowly bit into the crisply, spice-enhanced skin,
savoring the combination of spices, moist chicken
meat and crisp-fried skin. Icarus had never soared to
the heights to which these wings flew my euphoric
tastebuds. The hot sauce tasted good as well, but these
wings needed nothing more. Perfection had already
been achieved.
Much to my delight, the fries had the same
irresistable spices. And, at about $1.50 or so for a
plateful, there were a bargain. As were the wings, at
about 50 cents apiece.
On subsequent visits, I tried the fried clams, fried
shrimp and fried — do you detect a trend? — scallops.
All excellent. The shrimp and scallops were jumbo
size, meaty and rich. I’ve yet to try the actual fish at
Fried Fish, but I’d wager it would send my sense of
taste dancing as well.
In short, if you want the best wings in Lansing,
look no further than Fresh Fish. In fact, if you want the
best fried food in Lansing, check them out. But
practice moderation — that spice will induce you to
eat far more fried food than your doctor would
recommend and you don’t want to soar too high. Just
ask Icarus.
Josh Smith is the assistant attorney general for the
Health, Education and Family Services Division of the State
of Michigan.
Although I do not have any special training or education in
the field of technology, I am a huge technology enthusiast. The
tips, reviews, recommendations, and commentary in this column
are solely mine and should be treated as just what they are - tips,
reviews, recommendations, and commentary.
For information about me, visit my website at
www.derricketheridge.com or my blog, the Michigan Criminal
Law Blog at www.micrimlawblog.com. Past iPick Technology
articles are available on my blog, and the articles include
hyperlinks.
For comments, please send me an e-mail at
[email protected]. Follow me on Twitter at
www.twitter.com/micrimlawtweets.
Movie Review:
Thor
by Becky Scott
I have to admit I wasn’t expecting much when
buying tickets for Thor. It looked like a fun comic
book movie. Who knew it would include themes from
Aristotle’s Poetics?
Thor (Chris Hemsworth), son of Odin (Anthony
Hopkins), is in line for the kingship of the
otherworldly realm of Asgard, and is eager for power.
Brash and war-loving, he seems an unwise choice as
a heir to the
throne,
compared
to
his
thoughtful
brother
Loki.
When
Thor and
his buddies
invade an
enemy’s
realm as
retribution
for
an
attack, it
h
a
s
unintended
consequences
and Thor is
sent
to
Earth. He
finds his
time there a
humbling
Chris Hemsworth as Thor
experience
despite his
mighty strength. And naturally the influence of a
good woman (Natalie Portman) helps set him straight!
As you can see in the photo, Hemsworth is easy
on the eyes, but he also proves very adept as an actor,
which is always a pleasant surprise when dealing with
body builders. Portman, Hopkins, and the rest of the
cast also give fine performances, and the special
effects are spectactular.
But the plot itself is the real star, with twists and
turns to keep the audience guessing. Directed by
noted Shakespearean actor Kenneth Branaugh, the
movie never drags despite its two-hour run time.
Infused with humor, pathos, and thrills, Thor is fine
fare in the summer and at any time of year. I give it
four and a half stars.
Becky Scott is editor of BRIEFS.
BRIEFS June 2011 7
On Thursday, June 2, 22 brave souls (and 2 dogs) put
on their entertainer hats to amuse their fellow lawyers
and raise money for the ICBA.
Above: Cooley comediennes Dean Cynthia Ward and Dean Amy Timmer keep audiences laughing
Vocal solos range from the
sublime to the ridiculouos,
with an anti-war song by
John La Pietra (left)...
Kel Scott wows the audience with his smooth
rendition of “Mack the Knife.”
... and “Framed”, an
original song by Ron
Bretz (right).
Above: Julie Clement shows her vocal skill with “Big Bad
Handsome Man” accompanied by her own handsome man,
guitarist Rush Clement.
No show is complete without pet tricks! Angela Brown and
Ann Andrews brought their dogs to oblige.
Kathryn Meninga and two friends give a
memorable Zhumba dancing performance.
Above: Greg Hodge tickles the ivories during his standout
performance of “Great Balls of Fire.”
Jim Hofer’s “Twisted
Sister” impression gets the
audience going.
8 BRIEFS June 2011
U.S. Dept of Labor ’s new phone app
will increase “
Time W
ork
ed” claims
“Time
Work
orked”
against employers
By Gregory M. Palmer, attorney/shareholder
Palmer & Wood, PC – Grand Rapids
What this is all about
Paid time lawsuits and investigations obviously never
went away entirely. There has just been more of a focus in
recent years on overtime claims. Most who are active in
this area of the law would
agree that this has been due
to two things, increased
compliance awareness with
the 2004 revisions to the
“Part 541” (29 C.F.R. 541.1
et seq) overtime regulations
under the Fair Labor
Standards Act (“FLSA”) and
also due to amount of
money typically involved.
Overtime litigation has
become so lucrative that a
number of managementside attorneys have “gone
over to the other side” in
Gregory Palmer
recent years, joining or
forming plaintiff-oriented
law firms that specialize in bringing claims against
employers. This includes many of the so-called “national
boutique” labor specialty firms.
The announcement three weeks ago of a new “phone
app” from the U.S. Department of Labor (DOL) is
already generating increased inquiries about “paid time”
claims, however. Remember that the statutory duty is to
pay the non-exempt employee for all hours worked. (29
U.S.C. 301.) The DOL now offers employees an iPhone
or iPod Touch application that lets the employee selfrecord his or her hours and if they dispute what they are
getting paid they can email directly to the DOL as an
attachment.
The “app’ is being provided to employees at no
charge , and is available in both English and Spanish. It
also provides the employees with statutory regulations,
and related material from its website.
DOL is also considering Android and BlackBerry
capability in the future, and also updates to the apps to
facilitate employee reporting to DOL of additional types
of pay, such as tips, commissions, bonuses, deductions,
holiday pay, pay for weekends, shift differentials, and the
like.
Additionally, the DOL’s press release states, “For
workers without a smartphone, the Wage and Hour
Division [of the DOL] has a printable work hours calendar
in English and in Spanish to track rate [sic] of pay, work
start and stop times, an arrival and departure times. The
calendar also includes easy-to-understand information
about workers’ rights and how to file a wage violation
complaint.”
What it means, and what to do
The clear thrust of this new program is to provide a
quicker way for employees to bring ad time claims (and
maybe other claims in the future, as noted above), and
also to improve the employee’s chances of winning.
Many employees have made complaints over the years
but without their own records so much of the time, the
employer’s records have been all the DOL or the courts
have to go on. With employees now being told exactly to
preserve their evidence, there will likely be more
complicated investigations and lawsuits where both sides
have records and they are in conflict.
Here are some practical suggestions, in addition to
the usual one from law firm marketers about reminding
clients that the law firm does payroll audits as well as
everything else under the sun. Not all of my practice is
management-side but since most of it is, I will write from
a management lawyer’s perspective here. But to provide
a balanced, neutral article that all sectors f the bar can use,
let me just suggest that plaintiff attorneys will find enough
clues from my comments to employer lawyers in this
article to help you formulate your own plaintiff-side due
diligence drill on this topic.
1) Provide your employer clients with advice — what
the regulations to FLSA say about start and stop times,
keeping calendars, and the like. It’s important to get this
advice from an employment lawyer with wage-hour
expertise, since the regulations are often confusing,
complicated, and the subjects of great dispute. To get
some general familiarity if they have not done this
before, employer clients can start with the DOL website,
www.dol.gov. Despite what they told us in law school
about not making assumptions, I am assuming here that
your clients are trying to comply with the workplace laws,
not avoid them. The alleged evader who gets apprehended
is often asked in discovery whether they were truly babes
in the wood or whether they had been to seminars,
compliance websites etc. before. A truthful “yes” answer
is obviously the appropriate response if that really is the
case, but bear in mind that a consequence will be a
finding of a “willful” violation because the employer did
“know better” by virtue of the class or seminar attended.
Whatever you do, as I have said in many of these
articles for BRIEFS over the years, make sure attorneyclient privilege protection is in place before your client
proceeds. This is so easy to do, and inexpensive. Those
of you who practice full-time in the employment area
know all too well that the profession (thinking referrals
would increase, we were always told) has ceded much of
its employment “desk practice” to nonlawyers, which
many in my generation do not understand or forgive
With employees now being told
exactly to preserve their evidence,
there will likely be more
complicated investigations and
lawsuits where both sides have
records and they are in conflict.
because: a) facilitating the unauthorized practice of law
has obvious legal and ethical problems; b) many of these
nonlawyer “employer’s associations,” trade groups,
accountants, and “consultants” have little to no training
on this complicated subject; and c) the “advice” generally
is not privileged. The business owner who engages in
discussions about legal topics through “blogs,” “ employer
hotlines,” “business roundtables,” “Young Presidents”
meetings, and the like is often quite upset to find out in
discovery by an able and aggressive plaintiff or
government attorney that such “advice” is NOT
privileged! Many times there is the embarrassment of
recalling an actual “This is not legal advice” disclaimer
on the program materials. We have to be more active with
our clients in reminding them of the dangers of
unqualified and unprivileged advice.
2) If the Employer have not had a recent compliance
review from employment counsel as to who is exempt and
who is not, discuss that with them also. We recommend
this because many times an employer will discover it does
not have any time records for an employee because it was
thought the individual was “exempt,” when in fact it turns
out the employee was not. In that instance the employer
obviously has a problem of proof.
3) Make sure your client’s employee handbook has
a legally-compliant policy telling employees to report
any pay record discrepancies (pay “stubs”, etc.) to
management (a specific person or position) immediately.
Consider whether you want to require them to fill out a
form.
4) Make sure your client’s handbook also has
appropriate language about starting and stop times,
breaks, and how early or late can they be on the premises
Points
to Practice
Naomi Nielsen
Networking and small talk
by Naomi Gaynor Nielsen, J.D.
[email protected]
We encourage our law students to actively network
as a way to meet and interact with attorneys.
Networking is not just for law students; it is a big part
of the legal culture today. Networking can be scary
for many people however. We recently had Michelle
Mitchell, a local certified etiquette consultant, talk to
our students about networking basics. Two of the
many areas she discussed were small talk and how to
break into a conversation. These are areas that many
of us could use some tips, whether you are a new
attorney or an attorney who has been practicing 40
years.
Ms. Mitchell said people often struggle with
what to talk about if they attend a networking event.
Therefore, you need to go into the event with some
general topics in mind. About.com lists the top five
networking topics: the weather, arts and
entertainment, sports, news, and family. These are
all “safe” topics and for the most part, easy to talk to
a stranger about without concern. Who hasn’t engaged
in conversation with someone in line at the grocery
store about the weather, for instance?
Depending on the event, you may find it easier
to introduce yourself quickly. Last year at the Ingham
County Bar Association Shrimp Dinner, I found
myself talking to the man in front of me in line. After
commenting on the length of the line and the spacious
Ingham County Fairgrounds location, we introduced
ourselves and turned to where we both worked.
Perhaps we reached this stage quicker than we might
have at a more formal gathering. Another strategy is
that if you attend the event with a colleague, and one
of you starts up a conversation with someone, make
sure the other person is also introduced and included
in the conversation. As a side note, when attending
an event with another person, be cognizant of not
using that person as a crutch to not talk to anyone
else.
Breaking into a conversation is a more daunting
prospect. I read an article by Lisa Braithwaite called
“Speak Schmeak: Things I’m thinking about speakers
and speaking”. Her opinion was that the reason
breaking into a conversation is difficult is because we
are taught it is rude to interrupt. Whether this is true
or not, her philosophy is a good one. A person’s
mindset must be that they are there to network and
interrupting or engaging yourself in the conversation
is perfectly acceptable. Use this approach the next
networking opportunity you attend.
How does one actually break into a conversation?
When she talked to our students, Ms. Mitchell
suggested that you approach the group of people
and listen to the conversation. Oftentimes the person
you are standing next to will move over to include
you in the conversation. When you have “caught
up,”,simply break into conversation with a response.
Make sure to introduce yourself though.
For many of us, networking forces us to move
outside of our comfort zone. Start small. Select an
event to attend and set a goal, such as meeting one or
two new people, and don’t leave until you’ve achieved
that goal.
when not working.
5) Make sure your client’s handbook also requires
employees to get ahead-of-time permission for “excess
work,” work from home, and the like. Also, remember
that such a policy does your client no good if it is not
enforced. We encounter that situation frequently.
6) Consider also whether this particular client would
benefit from a “verified calendar” type of document for
Please see DOL app page 9
BRIEFS June 2011 9
To pay or not to pay, that is the question
by Kevin V.B. Schumacher
[email protected]
So, your client of 20 years is calling to say, “I have this
friend and he’s kind of in a financial bind and I’m
wondering what he should do.” Yeah, I’ve been getting
those calls too. I call it the “I’m too rich to file bankruptcy,
but too broke to pay my bills call.” What’s a lawyer to do?
Hiding a million dollars in the middle of an open field,
yet out of reach of the bankruptcy court or creditors is
possible, but entails risk, only works when done technically
correct and is best left to professionals. Violating the
Uniform Fraudulent Transfer Act or various provisions
of the Bankruptcy Code is a no-no and the bankruptcy
court, its trustees and creditor’s counsel all seem to have
a sixth sense for that kind of thing. Best to tread carefully
when trying to engineer a perfect storm.
Counseling clients on bankruptcy involves getting
them to see their current reality (you’re broke, cut your
losses, swallow your pride, move on) as well as their
future reality (you’re 50, you’ve got maybe 15 years of
working life left, you really don’t want to move in with
your kids for your golden years, so get real about the
future when your working days are done). There are
three simple rules I always follow when counseling a
client on bankruptcy/debtor/creditor issues: First, Get
the Money Up Front! Second, Your client is broke.
Third, Get the Money Up Front! But seriously folks, if
there’s one rule I can get you to remember to tell your
clients, it’s this one: Leave your retirement assets alone!
For the middle-aged and older client, that little retirement
nest egg that took 30 years to save up cannot be replaced
with only 15 working years remaining. Besides, retirement
assets are exempt from collection and you get to keep
them after bankruptcy. A win/win for you and zilch for
your creditor.
Different clients have different needs and there is no
one size fits all. Elderly clients who are receiving Social
Security as their only means of support, with little equity
MMMA, continued from page 1
Supp 2d __ (WD Mich 2011).). In Casias v Wal-Mart
Stores Inc, a Wal-Mart employee suffered an injury
while at work and, pursuant to company policy, was
subjected to a mandatory drug test. The employee was
a qualifying patient under the MMMA and possessed
a valid registry card at the time of his drug test, which
he presented to the drug-testing staff and his shift
manager. Nevertheless, the employee was fired after
he tested positive for marihuana and filed a lawsuit
against Wal-Mart and his shift manager alleging that
defendants wrongfully terminated plaintiff in violation
of public policy and the MMMA. The Court found that
the MMMA contained absolutely no evidence that the
legislature intended the MMMA to apply to a private
employer and therefore held that plaintiff had no right
of action against Wal-Mart under the MMMA. (Id.
(citing Lash v City of Traverse City, 479 Mich 180, 19293; 735 NW2d 628 (2007)) Therefore, plaintiff’s
termination was not in violation of the MMMA.
Moreover, the Court rejected plaintiff’s argument
that the MMMA created a new public policy in Michigan
prohibiting a private employer from taking disciplinary
action against an employee based on conduct protected
from criminal prosecution under the MMMA.
According to the Court “Plaintiff cannot possibly [show
that the statutory policy at issue applies to this case] . .
. because the MMMA addresses potential adverse action
by the state; it does not regulate private employment.”
Plaintiff’s claims for wrongful discharged were then
dismissed.
So what effect does this decision have on private
employers and employees?
First, it must be remembered that this decision
comes from a federal district court. Even though it is
interpreting a Michigan statute, the decision is not
precedent on Michigan state courts. However, such
decisions are persuasive and can guide Michigan courts
where there is a lack of case law in Michigan on the
subject. (Mich Dept of Civil Rights ex rel v General Motors
Corp, 412 Mich 610, 646; 317 NW2d 16 (1982)).
It appears that the Casias decision allows private
employers to terminate a qualifying patient who tests
and no liquid assets, are by and large “judgment proof.”
Creditors cannot garnish Social Security and even after
the Social Security is deposited into a bank account, the
deposited Social Security funds retain that character and
are exempt from garnishment. What about pension
funds? That’s a horse of a different color. Creditors
cannot garnish the monthly pension payment, but they
can garnish the account where the pension
is deposited the second the funds are there.
What advice do you give? Teach your client
how to live in the cash economy. Maintain
an account that receives the Social Security
and make sure that only Social Security
funds get deposited there. Take the pension
check to the bank, cash it and use the cash
to buy groceries or half a tank of gas.
How can clients keep their creditors at
bay? Good question. I find paying them
keeps them quiet, try that. You say you can’t
because you don’t have enough to pay them
in full? I never said pay them in full.
Creditors who collect their own accounts
usually hate collection agencies and lawyers as much as
debtors do. Why? We charge for our services, duh. If your
client owes a hospital $1,200, making monthly payments
of $100.00 buys you time and makes the hospital think
they’ll be able to retire this claim within a year. No
collection agency fee, no lawyer fee equals a happy
creditor and higher margins.
What if your creditor isn’t that patient? I find that the
further you get into the collection process, the more
reasonable the other side becomes. Yes, this is
counterintuitive, but think about it: the more of a deadbeat
you become, the more grateful the creditor is that they
get a dime. This does require a more risk-tolerant client.
If the creditor goes to a collection agency, they’ll pay a
contingent collection fee of anywhere from 10 to 50
percent. The collection agency really wants to collect
because then the collection agency earns the entire fee.
If the collection agency is unsuccessful, it goes through
a cost benefit analysis for litigation: are we likely to
recover the filing fee and process server bills and is the
defendant working? If the answer is no, the claim will not
likely get referred to litigation. If the claim goes to
litigation, attorney fees are infrequently awarded. Net
result? Creditor clients should seriously consider
reasonable offers of settlement.
Segue to next topic: can I settle debts for ten cents
on the dollar? Maybe. I frequently have clients with
I find that the further you get into the
collection process, the more reasonable the
other side becomes. Yes, this is counterintuitive,
but think about it: the more of a deadbeat you
become, the more grateful the creditor is that
they get a dime.
positive for marihuana, even if the qualifying patient
presents a valid registration card. It also appears that
employees of private companies who carry valid cards
under the MMMA are not protected from their private
employer’s discipline or discharge if the employee
tests positive.
This is good news for private employers with drug
testing policies for several reasons: 1) employers do not
have to engage in a back and forth of whether the
employee was intoxicated at the time the employee was
tested or on the job, all that is needed is a positive test;
2) employers can legally enforce their drug testing
policies; and 3) employers do not have to engage in an
investigation as to whether an employee is in fact a
qualifying patient and holds a valid registration card.
For employees who are qualifying patients, the
decision essentially upends any protections the MMMA
may have provided in regard to marihuana use and
employer discipline. However, the Casias decision
deals only with private employers. The decision may
have left some protection for state employees who test
positive. Much of the Court’s decision reasons that the
purpose of the MMMA is to prevent qualifying patients
from being prosecuted and penalized by the state. It
may be that qualifying patients have a cause of action
against the state if the patient otherwise complies with
the MMMA.
Medicinal marihuana use in the workplace is an
emerging and evolving field of law, especially in
Michigan. This field will continue evolve until the
Legislature revises the statute to make it more clear for
courts to interpret. For now, however, it appears that
private employers can rest easy about their drug testing
policies and employees should use marihuana at their
own risk. However, employment lawsuits against the
state or a state agency involve many complex issues that
are beyond the scope of this article. Consult an attorney
experienced in the field for further advice..
Brandon Gardner is the principal attorney at The Gardner
Law Firm, PLC; a law firm specializing in employment law,
business matters and personal injury litigation. He can be
reached at [email protected].
modest debt that they can’t service. Maybe they have a
white knight waiting in the wings who can underwrite a
settlement.
Maybe their earnings are so low that
garnishment is not an option for the creditor. Maybe
your client has hidden assets that could be used to pay off
the creditor (note I said your client, my clients never
have hidden assets). The old adage of money talks and
BS walks has some validity. The trick is to skillfully
present the client’s circumstances to the creditor such
that the creditor is willing to accept a reduced amount to
resolve the claim. Um, yeah...I charge some serious
change for that kind of advice, so that’s about as much
as I’m going to say on that topic for free.
Keep track of your communications with debt
collectors and don’t promise what you can’t deliver.
Debt collectors track every communication through
software that keeps notes on each call, each letter, etc. If
a debtor says they sent a payment yesterday and the
payment doesn’t arrive, the debtor’s credibility is shot
and the creditor/collection agency has now documented
why they should never, ever believe the debtor again.
Same holds true for you, as counsel: don’t overpromise
what your client can do.
Enough about debtor side credibility. What about
the nasty third party collector? Again, depending on
your client’s risk tolerance, there are two paths to follow.
Path one; tell your client to get caller id and do a friend
or foe analysis before answering the phone. There is no
law dictating that we answer the phone. Any parent who
raised a teenager in the days before cell phones knows
that. Path two; tell your client to get a spiral notebook
and walk the collector caller through the following
dialogue: What is your name? How do you spell that?
What is the name of your employer? How do you spell
that? What is the name of the creditor you represent?
How do you spell that? What is the account number you
are calling on? Thank you. Do not call me or contact me
again.
If the third party collector calls your client again, get
counsel involved to evaluate a potential claim for violation
of state and federal debt collection statutes. If collectors
are abusive, have the client make note of who called
them, the dates of the calls, the caller name and what was
said. Some collectors cross the line and there may be a
cause of action that the debtor can bring for violation of
state or federal statutes. Then the debtor can go on
offense.
Finally, what do you do when your client has a lot of
cash, a lot of debt, no exemptions and six months to live?
Easy, get them a copy of the movie Brewster’s Millions,
tell them to pay their lawyer for excellent advice and
wish them bon voyage as they depart on a round the
world cruise.
Kevin Schumacher is a member of Glassen Rhead McLean
Campbell & Schumacher and advises some clients to pay their
bills and others to hide behind the curtains. It just sorta
depends. As with any free legal advice, it’s worth what you paid
for it so extreme caution is urged for the reader of this article.
The author can provide serious legal advice, but only when
paid.
10 BRIEFS June 2011
SEMINARS, SECTIONS, AND LECTURE SERIES
Mediation in neglect/abuse – time and cost savings?
by Val Lafferty
[email protected]
Linda Glover, executive director of the Resolution
Service Center (RSC) in Lansing, spoke recently to Ingham
County Bar Association’s Child Welfare Section about the
use of mediation in neglect/abuse (N/A) proceedings.
Linda has prior experience as a foster care worker, foster
care supervisor and as a mediation administrator for the
Supreme Court Administrator’s Office (SCAO), among
other relevant experience, before heading the RSC.
Linda’s comments, along
with earlier thoughts
shared via Children’s Law
listserv, demonstrate the
success of mediation in
Michigan counties where it
is used.
In 2005, the seven pilot
projects then using
mediation in Michigan N/
A cases were evaluated by
the Michigan State
University School of Social
Work. The evaluators
concluded that agreements
Linda Glover
were reached in more than
80 percent of mediated
cases between 2000 and 2003, and that children involved
in the mediated cases achieved a permanent placement
an average of eight months sooner than children in
unmediated cases. The evaluators also found that
mediation resulted in substantial savings of funds that
would otherwise have been spent on court hearings or
out-of-home placement costs.
In Charlevoix County every N/A case reported is sent
to mediation at the adjudication stage. Sanilac County
uses mediation at several junctures during the 1 to 3 year
or more process. The parties can agree to mediate at the
preliminary hearing or the judge might order it
somewhere along the line – especially where a neutral
third party could bring perspective for extremely
adversarial hearings. Prosecutor Eric Scott of Sanilac
noted that while mediation is used at all stages of the
process he believes pre-trial is the best place to achieve
resolution.
Probate Judge Kenneth Tacoma in Wexford County
uses Permanency Planning Mediation (PPM) versus
Permanency Planning Conferences (PPC). PPCs came
about as a result of a lawsuit settlement with the state.
PPCs are aimed at case management and differ from
mediation in several important ways:
• mediation is under the auspices of the court,
• all parties are present at a PPM,
• parties are represented by counsel in mediation
and
• the process is facilitated by a neutral mediator
(PPCs are facilitated by DHS employee).
Where termination of parental rights is being sought,
Wexford County estimated 75 percent are settled in a
PPM. Judge Tacoma believes the big difference is that
mediation makes parents feel they are being listened to
(versus ganged up on) and therefore the PPM process
presents more opportunities for parents to develop what
truly is best for the child.
Mediator/attorney/trainer Susan Butterwick from Ann
Arbor clarifies that PPCs used to be called TDMs and
originated as a requirement of an Anne E. Casey grant,
even before the law suit. A PPM can be
used at any stage in the case, not just
the Permanency Planning Hearing
(PPH) stage, adds Susan, which was
why “we changed the name of our
program from PPM to Child
Protection Mediation because
stakeholders thought it was a process
that was to be used only at the PPH
stage.”
In Marquette County, Probate
Judge Michael Anderegg reiterates
the value of PPM over PPCs: unlike
PPC all parties must be present. Plus,
if agreement is reached, it is
incorporated into the court order.
Marquette was one of the SCAO program’s pilot sites.
Since SCAO’s funding for mediation was terminated,
Marquette funds the operation of their PPM program
from local sources.
In Wayne County, mediation is being used in the 3rd
circuit court at most points along the N/A continuum
from post-adjudication through (contested) adoptions.
Susan Butterwick reports the program has been in place,
through the Wayne Mediation Center, for about three
years. “One of the Wayne Coounty DHS district offices is
also using mediation as part of a pilot on unsubstantiated
CPS cases as a way to resolve the underlying dispute that
Child
Welfare
Section
causes repeated unsubstantiatiable reports, “ said Susan.
She further clarified that the entire pilot program through
SCAO from 1998 to 2003 showed children reached
permanency approximately 12.5 months sooner when
mediated versus non-mediated.
Also, while this is not an exhaustive list, there are
other models to draw upon. Mediation is used in every
abuse/neglect case in Washington D.C. Family Court and
in San Jose, Calf. Cook County (Chicago) uses mediation
on every case after the first shelter hearing if the child is
...children involved in the mediated cases
achieved a permanent placement an average
of eight months sooner than children in
unmediated cases. The evaluators also found
that mediation resulted in substantial savings
of funds...
placed out of home (which is most cases).
One of the virtues of mediation compared to litigation
is the increased prospect of maintaining relationships
after the process – certainly ideal for the family related
issues in family and probate court. But by far the larger
potential benefit is cost savings – not by cutting services
but by utilizing more effective procedures to resolution.
Given Governor Snyder’s mantra of value for services,
perhaps an opportunity to revisit the benefits of mediation
is at hand. It would seem logical to pursue a more
systematic use of mediation in abuse and neglect cases
through the state.
Veteran benefits and probate
by Christine Caswell
[email protected]
Amy Tripp of the Chalgian & Tripp Law Offices,
PLLC, spoke to the Probate Section on May 17 about
veterans’ benefits, focusing on those for health care.
Tripp defined who qualifies as a veteran for these benefits
and noted that Michigan has two veteran facilities with
one in Grand Rapids and the other in Marquette. Both
facilities provide skilled and basic nursing care, special
needs unit, a domiciliary unit, and rehabilitation therapy.
Tripp added, however, that these facilities will not honor
powers of attorney because, even though they are run by
the state, they are sitting on federal land.
One program that Tripp highlighted was the Aid &
Attendance (A & A) pension for war-time veterans, as well
as their spouses if the veteran is or was providing support
for a disabled spouse. These benefits do not require a
service-related injury for qualification. A & A pension
maximums for the three qualifying categories are:
• $1,645 per month for the veteran or spouse
• $1,950 per month for a couple
• $1,057 per month to a surviving spouse
To be eligible for A & A, the veteran must have served
for 90 consecutive days of active duty with at least one day
during a period of conflict; not have received a
dishonorable discharge; and the veteran and/or spouse
must meet the medical and financial requirements of the
program. Tripp explained that to meet medical eligibility,
the veteran or surviving spouse must need assistance to
perform daily activities, and that a person who is blind,
in a nursing home, or in assisted living also qualifies.
The Veterans Administration (VA) calculates financial
eligibility under criteria that differ from those for Medicaid
planning. The basic
formula includes total
countable assets, monthly
income less medical
expenses,
and
life
expectancy. Under the VA
requirements, IRA’s and
401(k) accounts count as
both assets and income.
The value of jointly owned
assets
is
divided by
the number
of owners.
However,
Tripp noted
Amy Tripp
that special
accreditation
is necessary to help veterans with these
benefits. For example, ICLE (Institute of
Continuing Legal Education) offers a threehour certification course. Additionally,
Tripp said that no fees can be collected for
helping the veteran actually apply for the
benefits, but there can be charges to advise
Probate
Section
the veteran on eligibility. Applications should be filed at
the local or regional VA office. The application may then
take six to 12 months to process.
In conclusion, Tripp pointed out that some
organizations claiming to help veterans actually exploit
them and to “be very wary” of such organizations offering
free services to apply but which also have a product to sell,
such as annuities.
Christine Caswell is an attorney at Caswell Law PLLC.
Tripp noted that special accreditation is
necessary to help veterans with these
benefits...ICLE offers a three-hour
certification course. No fees can be collected
for helping the veteran actually apply for
benefits, but there can be charges to advise
the veteran on eligibility.
BRIEFS June 2011 11
Estate planning for surrogates and frozen embryos
[email protected]
by Christine Caswell
Lawyers, judges, and
law clerks discussed the
latest issues at The Institute
of Continuing Legal
Education’s (ICLE) 21 st
Annual Probate & Estate
Planning Institute in Acme,
Michigan from May 19-21
(a second session will be
held in Plymouth June 1718), including “The New
Christine Caswell
Biology: Estate Planning in
a Brave New Womb.”
Lawrence W. Waggoner from the University of Michigan
Law School presented on “Class-Gift and Intestacy Rights
of Children of Assisted Reproduction” and Susan S.
Westerman of Westerman & Morrissey PC explained her
office’s practice for including language to address
biological children who are conceived through artificial
means and after death.
However, Waggoner noted that it is limited in scope
in that it only addresses the children of married women
and is “inapplicable to posthumous conception by a
deceased husband’s widow, even if he deposited the
sperm before his death and signed a record
indicating…intent to be treated as the father….”
Waggoner also said that class gifts under EPIC §2707
only covers adopted and illegitimate children, indicating
that specific language is needed in estate planning
documents to include children from assisted reproduction
in class gifts; otherwise it will be left to the discretion of
the courts to determine who qualifies.
Although not yet adopted in Michigan, the 2008
Uniform Probate Code (UPC) now addresses these issues.
Assisted reproduction is defined in the code as “any
method of causing pregnancy other than sexual
intercourse,” including artificial insemination, egg and
embryo donations, in vitro fertilization, and sperm
injection, as long as the mother intends to be the child’s
mother. Her marital status is irrelevant. However, the
issue becomes cloudier if the woman is serving as a
surrogate or if the genetic father is merely a “sperm
donor” for compensation.
Under the UPC, these thirdparty donors never have a
parent-child relationship.
Additionally, entering into a
surrogacy agreement alone is not
sufficient to establish a parentchild relationship without
additional evidence of intent to
be the mother. Waggoner also
noted that under the UPC that
“enforceability or legality of the
surrogacy agreement is irrelevant….[v]oluntary
performance of an illegal or unenforceable contract still
produces a child who is entitled to be treated as someone’s
child.” Under the UPC, it would require either a court
order or “evidence that the intended parents…carried
out their…obligation by functioning as the child’s
parents…no later than two years after the child’s birth.”
In posthumous conception, there must be a genetic link
and some showing of intent for the decedent to have been
regarded as the child’s parent. Waggoner explained that
...with all of the modern conceptual
technologies... attorneys should consider language
carefully in determining who qualifies as a child in
estate planning documents.
Class Gifts and Intestacy Rights
In Waggoner’s presentation, he explained the issues
with class gifts and the intestacy rights of children resulting
from assisted reproduction. In Michigan, EPIC only
addresses this issue in §2114, stating: “A child conceived
by a married woman with the consent of her husband
following utilization of assisted reproduction technology
is considered as their child for purposes of intestate
succession. Consent of the husband is presumed unless
the contrary is shown by clear and convincing evidence.”
the two-year limit was determined to give the surviving
spouse time to grieve before deciding to have an afterdeath child.
As for class gifts, Waggoner explained that it is not
enough for such children to be considered members of
the class; they must also qualify under the class closing
rules. Under the UPC, a child conceived posthumously is
“treated as in being on the date when the child is in
utero.”
The New Family Tree
In her presentation, Westerman started by reviewing
the case of the estate of John F. Dodge of the Dodge
automobile manufacturers from 1920. Westerman drew
out the complicated Dodge family tree which resulted in
financial wrangling for years to come after John F.
Dodge’s death. She then turned to the “New Dodge
Family Tree.” In this tree, Westerman has “twiblings,”
who were created by donated eggs and a husband’s
sperm, carried by different surrogates, and born a few
days apart. There is also the “grandmother-mother” who
serves as a surrogate for her child, and, according to
Westerman, the issue “most troubling the courts today” is
children who are conceived after death. In Westerman’s
documents, the deceased parent is presumed to be the
parent if the couple were married at the time either the
eggs or sperm were donated and the conception occurred
within five years of death. However, this does not provide
for parental rights when the surviving spouse decides to
have a child after the other spouse’s death without prior
approval from that spouse. A child can only be legitimate
if conceived during marriage, and the one spouse’s death
has ended the marriage.
While Westerman indicated it may be best not to go
into all of the infinite possibilities with clients, she did
note that with all of the modern conceptual technologies
that attorneys should consider language carefully in
determining who qualifies as a child in estate planning
documents. She also recommended including time
limitations, such as two to five years, to determine who
qualifies as a child after the death of one spouse, so the
parental possibilities are not infinite. Welcome to estate
planning in the 21st century.
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12 BRIEFS June 2011
Highlights from the Shrimp Dinner on May 25, 2011
Judge Hugh Clarke and Phil Vilella prepare the shrimp.
Judge Peter Houk and Frank Reynolds are two of the
friendly servers.
The serving line gives Don Reisig his food.
Above: Tracy Winston and Judge Amy
Krause
David Mittleman and James Bradley
Below: Steven Feigelson and Liisa
Speaker
Above: Brenda Frezell and Jessica Fox
Guests unwinding at the bar -- though at least one person (John Hintz) is aware
of his picture being taken!
ICBA President Pat Gallagher prepares to read raffle winners with the
help of Catherine Groll
A packed house enjoying shrimp and each other.
BRIEFS June 2011 13
A Trip to Istanbul and Bosnia and Herzegovina
CHANGE OF VENUE
by Josh Ard
[email protected]
I was fortunate enough to visit two fascinating places
this spring—Istanbul, and Bosnia and Herzegovina. My
wife was invited to be a keynote speaker at a conference
sponsored by International Burch University, a private
university in Sarajevo where the medium of instruction is
English, a type of institution that is becoming much more
The beautiful landscape of Bosnia
common around the world. The cheapest flights were via
Istanbul, so we spent 2½ days there on the way over and
a day there on the way back.
Istanbul is an amazing place. Now a part of Turkey, it
had been by far the leading city in the Christian world for
a millennium. It was one of the two or three largest cities in
the world at a time when cities like Rome, Paris, and
London were mere small towns. The city escaped the Dark
Ages because the knowledge of the richness of the intellectual
culture of Greece and Rome was never lost, as it had been
in the West. In fact, one of the spurs to the Renaissance was
the departure of scholars for Western Europe after Istanbul
was finally conquered by the Turks in 1453. The first
Muslim assault on the city occurred 800 years earlier, led
by a man who actually served under Mohammed.
We visited Hagia Sophia, formerly the cathedral
known as Holy Wisdom. It was the largest church in the
Christian world for over 1000 years, until St. Peter’s in
Rome was built. It’s amazing that such a structure was
completed before the year 600.
Istanbul is the only city in the world both in Europe
and Asia. Most of the attractions are on the European
side. In addition to the former cathedral, we visited the
Blue Mosque, the Topkapi Palace, the palace of the
sultans, and the Archeological Museum. We went to
several bazaars, including the aptly named Grand Bazaar,
which contains thousands of different shops. We took a
cruise along the Bosphorus, the waterway that divides
Europe and Asia and connects Istanbul to the Black Sea.
We had lunch at a seafood restaurant on the Asian side.
We only scratched the surface of what Istanbul has to
offer. It is definitely worth visiting. The street food is
absolutely wonderful. My most memorable discovery was
fresh squeezed pomegranate juice, which is delicious.
Sarajevo, the capital of Bosnia and Herzegovina, is
well known for two things: it was the site of the Winter
Olympics in 1984 and the scene of terrible destructions
during the wars involving the break-up of Yugoslavia in
the 1990s. We landed in Sarajevo Airport, the place
where Hilary Clinton didn’t really dodge bullets as she
had once claimed. At one point during the wars, Sarajevo
was completely surrounded and constantly shelled by
ethnic Serb forces, except for that airport which was
controlled by international forces. It was the longest
siege of a capital city in the history of modern warfare.
Partisans dug a kilometer-long tunnel under the airport
to the slopes of a mountain on the other side. That tunnel
was the only source of supplies, including food and
medicine, to the city for most of the siege. We visited the
tunnel museum, where we walked through a bit of the recognizably from the Turkish period or the Austrotunnel that still remains. Most of the city has been rebuilt; Hungarian period. The Turks left wonderful street food;
it contains the largest U.S. Embassy in the Balkans. the Austrians left breweries.
Despite the rebuilding, there are mere shells of buildings
We were fortunate to be taken on tours by locals, both
destroyed by the artillery. One of the more shocking in the Sarajevo area and in a nearby town, Mostar, which is
aspects of the conflict is that the Serb forces deliberately in what was historically Herzegovina. Mostar is most famous
tried to destroy items of cultural importance. Sarajevo for a beautiful bridge, which was destroyed by bombing in
had one of the most important libraries in Europe, with the 1990s and carefully rebuilt. What is unusual is that the
many
priceless destruction was by Croat forces, at a time of a falling out
handwritten manuscripts. with what was usually an allied relationship with Bosnians.
The library suffered heavy The bridge was apparently destroyed almost solely because
bombing, even though it it was a symbol of Bosnian history; it was of no military use.
was of no military While there we saw videos of the bombing. Today, one side
significance. We learned of of the city of the city is predominantly Bosnian and the
one family that risked their other is Croatian. It is amazing to think that people who
lives running into the were killing each other a generation ago now live near each
library trying in vain to other, with signs of the destruction all around. Mostar has
save some of the treasures. not been rebuilt as thoroughly as Sarajevo; there are many
Shortly after we left, the destroyed buildings and others with numerous bullet and
commander of the ethnic shell holes.
Serb forces, Ratko Mladic,
We were particularly impressed by the language
was captured by the skills of the professor who was our primary host. He and
Serbian government after his wife are natives of Samarkand, a silk road city in
years in hiding.
Uzbekistan, formerly a part of the Soviet Union. He and
Bosnia
and his wife grew up fluent in both Russian and Uzbek. He is
Herzegovina
became now fluent in about nine languages, including English.
independent after the He received his Ph.D. in South Korea, so Korean is
Dayton peace accords, but another one of his languages. They are trying to maintain
it is still a strange place. this multilingualism with their children. They speak
There are three groups both Russian and Uzbek at home and try to restrict
Photo by Susan Gass divided almost solely on the television to Russian. The children go to an international
basis of religion. They all school, where English is the language of instruction. Of
speak the same language and are genetically identical. The course, at the playground, they have to contend in
Bosnians are Muslim; the Croats are Catholic; the Serbs are Bosnian. It is certainly a great opportunity for them, but
Orthodox. There once was a large Jewish minority, as well, definitely a challenge.
but it was largely destroyed during World War II. The
This was my first trip to this fascinating area, so I
National Museum contains the famous Sarajevo Hagaddah, cannot really say what it was like before. It appears to me
a book for Passover, which miraculously survived both that Islamic countries are now trying to establish a strong
World War II and the expulsion of Jews from Spain in 1492 presence in one of only two countries in Europe with an
and everything in between. The sultan of the Ottoman Islamic majority, the other being Albania. There are major
Empire, based in Istanbul, invited those Jews to settle in Turkish influences, including much tourism. Apparently,
lands under his control. The Sarajevo Hagaddah is estimated many traditions are better preserved in Bosnia and
to be the most valuable book in the world. The Spanish Herzegovina than in Turkey itself after the reforms of
authorities required the book to be insured for $7 million Ataturk and the Young Turks. We saw embassies of many
before it could be displayed there
in the 1990s. Most experts
believe it could sell for many
multiples of that. Unfortunately,
it is so well protected now that
one cannot get close enough to
see it in any detail.
Bosnia and Herzegovina
now has almost everything
divided along ethnic lines.
Schoolchildren learn different
histories of the fighting in the
1990s, depending on the school
they attend. The division is
sharper between the Serbs and
the other two groups. There is
still quite a bit of pressure to
incorporate Serb-controlled
areas into a Greater Serbia.
UEFA, the European soccer
association, recently suspended
Bosnia and Herzegovina
A juxtaposition of a rebuilt building (one of Tito’s many homes) next to a building still
because it could not agree on a
in the state following the bombings. Photo by Susan Gass.
single association, having one
for the Serbs and one for everyone else.
countries, including Iran. There have signification
The area has had an interesting history. It was in the donations for rebuilding from both governments and
fringe of areas receiving influences both from the Catholic individuals, including the Queen of Jordan.
west and Orthodox east. Many Christians belonged to a
Josh Ard practices mainly in the areas of elder law, probate,
local church, considered heretical by both established consumer, and administrative law. He is the former chair of the
churches. The Ottoman Turks captured the area, State Bar’s Elder Law and Disability Rights and Consumer
establishing Sarajevo as capital in the middle of the 15th Law sections and the Unauthorized Practice of Law Committee.
century, around the time of the conquest of Istanbul. He currently sserves on the Representative Assembly, the Probate
Many people, especially members of smaller Christian and Estate Planning Council, and the Ethics Committee of the
sects, converted to Islam, which also bestowed tax benefits State Bar. He administers several e-mail lists for the State Bar
on converts. Later the area was conquered and as well as ICBA. He has written numerous articles for local,
incorporated into the Austro-Hungarian Empire. In state, and national publications.
today’s rebuilt Sarajevo, there are many parts that are
14 BRIEFS June 2011
MSU College of Law
Housing Law Clinic Series
EDITOR’S NOTE: This is part of a series of articles by MSU College of Law students who are involved with the MSU Rental Housing Clinic. The series began in January 2010.
What is Section 8?
by Tiffany Thornton
@msu.edu
The Housing Choice Voucher program is the result
of the Section 8 of the
Housing and Community
Development Act of 1974,
which began under the
administration of President
Richard M. Nixon. The
Housing Choice Voucher
Program
is
more
commonly known as
“Section 8,” due to its
citation in the original law.
Tiffany Thornton
(Husock, Howard, “Public
Housing and Rental
Subsidies,“ Manhattan Institute for Policy Research, June
2009.)
Section 8 differs from the Public Housing Program,
in which the government specifically provides public
housing for eligible low-income tenants. The Housing
Choice Voucher Program allows eligible low-income
tenants to reside in privatized housing in mixed-income
communities. The theory behind Section 8 was that by
allowing low-income tenants to live in privatized housing,
tenants would be more apt to not only take better care of
the housing, but ultimately be motivated by their
surroundings to seek to eventually not require any
government assistance.
How tenants qualify for Section 8 vouchers
Although Section 8 vouchers differ from the Public
Housing Assistance Program, the application process
still goes to their Public Housing Commission (“PHC”),
and is subject to the requirements. (“Housing Choice
Vouchers Fact Sheet,“ available at http://www.hud.gov/
offices/pih/programs/hcv/about/fact_sheet.cfm (last
accessed Jan 13, 2011))
First, the applicants must be United States citizens or
a specified category of non-citizens who have eligible
immigration statuses. Most importantly, applicants need
to meet the low-income requirements for their particular
county, which is based on the median income. The
median income for Ingham County is $65,900. By law the
PHC must give at least 75 percent of its Section 8 Housing
Vouchers to “extremely low income tenants.”
Despite the obvious need there may be in Michigan
for Section 8 vouchers, the segment of the population
that receives the majority of the vouchers are citizens who
are in the extremely low-income limits. This practice, in
large part by the PHC, leaves many people who are in
low- or very low-income limits without assistance. The
income requirements of a tenant must be in the lowincome bracket in order to have a good chance at receiving
a voucher.
The PHC must take several steps to verify the low
income level of the family. Next, the PHC will verify the
income with the bank of the tenant, the tenant’s employer
(if one exists), and any other local agency that may be
providing support to the tenant. Upon the completion of
those interviews, the PHC will decide if a person qualifies
for a voucher. Once again, that decision is largely
determined by the income bracket a person falls within.
I am qualified…
After the prospective low-income tenant qualifies for
Section 8 housing, a tenant is then placed on a waiting
list. Due to the amount of tenants in need there is usually
a greater need than there are vouchers in most areas of
the country. Some centers will not even accept applications
for vouchers until the waiting list is low. When a PHC is
accepting vouchers it is called “open enrollment season”
– this is because centers have such long waiting list that a
tenant is allowed to be on multiple waiting lists at one
time.
How tenants are chosen from the waiting list varies by
locality, such as living in the PHC specific town, being
homeless, paying more than 50 percent of the income for
rent, being disabled, or having been involuntarily
displaced. Families who qualify for any such local
preferences move ahead of other families on the list
because of immediacy.
I have my voucher!
Now a tenant must find housing that is appropriate
for the number of occupants in the home and housing
that will pass a health and safety inspection. After the
tenant and landlord agree to the terms of the lease, the
PHC representative must determine if the rental income
is acceptable under applicable regulations. Regularly, a
tenant plays 30 percent of their gross income towards the
rent and the Section 8 voucher pays the rest. If the rental
income is higher than the acceptable amount, the tenant
must pay the additional difference.
Once the PHC agrees that the rental unit is sufficient,
the signing of the lease finally occurs. The lease must at
least last for one year. The landlord and the PHC sign a
housing assistance payments contract that runs for the
same term as the lease.
The tenant’s obligations are to keep PHC informed
of any changes in family size or income, maintain the
rental unit, and pay their portion of the rent on time. The
landlord will automatically receive the payments from
the PHC directly so the tenant is only responsible for
paying the 30 percent of their gross income. Tenants are
allowed to move into another rental unit, as long the
tenant informs the PHC of the move and it meets the
health and safety requirements of the PHC.
If you would like to learn more about Section 8
vouchers, visit your local Public Housing Commission, or
visit www.hud.gov and search “Section 8 Housing
Vouchers.”
The Income for 2010 Limits for Ingham County, Michigan
FY 2010 Income Limit Category
1Person
2 Person
3 Person
4 Person
5 Person
6 Person
7 Person
8 Person
Low (80%) Income Limits
$36,900
$42,200
$47,450
$52,700
$56,950
$61,150
$65,350
$69,600
Very Low (50%) Income Limits
$23,100
$26,400
$29,700
$32,950
$35,600
$38,250
$40,900
$43,500
Extremely Low (30%) Income Limits
$13,850
$15,800
$17,800
$19,750
$21,350
$22,950
$24,500
$26,100
Individual HUD Income Limits, HUD.gov.
Cooley Law School notable books authors tour campuses
Cooley Law School hosted Michigan Court of Appeals
Judge William C. Whitbeck and former Ingham County
Circuit Court Judge Lawrence M. Glazer this week as part
of Cooley’s 2011 Michigan Notable Books Tour.
Judge Whitbeck wrote “To Account for Murder,” a
legal thriller set in Michigan in the 1940s. The real-life
1945 murder of State Sen. Warren G. Hooper in 1945
served as Judge Whitbeck’s inspiration for the book. The
book has been dubbed a page-turner and is filled with
political intrigue, tale of corruption, courtroom drama,
and Michigan history.
Judge Whitbeck was appointed to the Michigan
Court of Appeals in 1997, was elected to the position in
1998, and re-elected in 2004 and 2010. Previously he was
in private practice. He also served in the administrations
of Michigan governors George Romney, William Milliken,
and John Engler. He also served on the transitions teams
for Engler and for President Ronald Reagan.
Judge Glazer wrote a political biography, “Wounded
Warrior: The Rise and Fall of Michigan Governor John
Swainson.” Glazer chronicles the life of Swainson, who
lost both legs as a teenage soldier in a World War II
landmine explosion, then was elected to the Michigan
Senate, the governor’s office, and the Michigan Supreme
Court, before getting indicted on federal charges of
bribery and perjury in 1975. Judge Glazer’s book closely
examines the FBI investigation and the trial.
Judge Glazer served as a Michigan assistant attorney
general, as special counsel and chief legal advisor to Gov.
James Blanchard, and as an Ingham County Circuit
Court judge. He also worked in private practice,
The authors visited all four Cooley Law School
campuses to discuss their books and answer questions
from the audience.
Above: At Cooley Law School’s Lansing campus,
former Ingham County Circuit Court Judge
Lawrence M. Glazer gave some insight into his
book about former Gov. John Swainson when the
Michigan Notable Books Tour visited May 18.
Left: Enthusiastic readers kept Michigan Court of Appeals
Judge William C. Whitbeck answering questions about his
book, “To Account for Murder,” during the Michigan
Notable Books Tour stop at Cooley Law School’s Lansing
campus on May 18.
BRIEFS June 2011 15
Lawyer-to-Lawyer Referral
INTELLECTUAL PROPERTY
Duby & Associates, PLC, with offices in East
Lansing, can assist clients in resolving any Internet
and e-commerce issues and protecting and defending
their copyright, trademark and trade secret rights.
The firm counsels clients in the
selection and use of trademarks and
conducts trademark searches at the
federal, state and international levels.
The firm also prosecutes state and
federal trademark applications and
copyright applications and can assist with
drafting Website Development, Hosting,
and Use Agreements and License and Assignment
Agreements. For more information, please contact
James R. Duby, Jr. at 517-371-9835.
APPELLATE ADVOCACY
Do you want to spend more time developing your
trial practice? Then LIISA R.
SPEAKER and the SPEAKER LAW
FIRM can help you accomplish your
goals. Let the Speaker Law Firm
research and write your appellate
briefs for you. Many options are
available for trial counsel who do
not have the time to devote to their
appeals.
MichiganAppellateAdvocacy.com
Speaker Law Firm, PLLC
,
230 N. Sycamore St., Suite D
Lansing, MI 48933
517-482-8933 Fax: 482-8936
[email protected]
Blog: www.Michigan Appeals.blogspot.com
Help Wanted
Office Space
East Lansing
Office space available in downtown East Lansing to
share with established attorneys, including conference
room/library, kitchen and receiptionist area, free parking
and with shared amenities. Rent is negotiable.Please
contact us at [email protected] or 517-337-4600.
East Lansing/Meridian office share, excellent
location and facilities with 4 experienced attorneys. $640
rent p/month plus possible share fax, copier, Westlaw.
337-7677, c/o Patricia.
Professional Office space available located at 3511
Coolidge Road, East Lansing, MI 48823. For more
details call Jim Duby at 371-9835.
Looking for Office Space in East Lansing? Attractive
office space available in a professional setting located on
Lake Lansing Road. Share office space occupied by
experienced attorneys. Conveniences include free parking,
fax/copier, telephone system, paid utilities, library, kitchen,
3 conference rooms, a reception area and receptionist.
Possible overflow available. E-mail Jim at [email protected]..
Office space available for rent in East Lansing.
Amenities include, free parking, free heat and electricity
access to law library, reception area, copier, fax machine,
2 conference rooms and internet access. Rent is $350 to
$500 per month. There are five attorneys available for
mentoring and/or referrals Call 517-332-5323, or e-mail
[email protected].
Okemos
NEW SHARED OKEMOS OFFICES. New building
designed for and fully occupied by office sharing
attorneys. First openings since completed in Oct 2004.
Save money and have a top quality office by sharing
facilities and expenses with other attorneys! Information
or tour, Call: Don Frank 349-0000.
Lansing
DO YOU WANT
SPACE IN LANSING?
For sale or lease — 330 S. Martin Luther King Blvd.
Call Chris at 517-325-3161 to discuss terms for a sale
or lease of this building. 1040 square feet with ample
parking and a full basement. This location will allow you
to reach all parts of the Lansing area conveniently. Seller
is willing to finance a sale and assist with space
modifications for a lease or sale. Photo and more details
available
at:
http://bit.ly/dq1xrA”
Part-time attorney wanted
AV-rated East Lansing insurance defense firm looking for
a part-time attorney with 2-10 years experience in auto
negligence, premises liability, no-fault insurance, general
liability defense. Experience w/ Word helpful. Pay
commensurate w/ ability. Forward resume to: ATTN: Recruiting
Supervisor, P.O. Box 4733, East Lansing, MI 48826.
Attorney experienced in automobile no-fault
The Sinas Dramis Law Firm, located in Lansing, is
hiring an associate attorney who will work in matters
involving automobile accidents, including first party
insurance claims and third party claims against at-fault
drivers. It is preferred, not required, that the ideal candidate
have at least 2-3 years of plaintiff’s personal injury and
automobile no fault experience.
The position offers excellent potential, and a
competitive benefits package and an attractive
compensation structure. Send resume accompanied
by a cover letter and salary requirements to Julie
Mann, CEO & President of JMann Consulting Group
at [email protected]. Candidates are
not to contact the law firm directly.
Legal assistant/secretary wanted
Two-attorney paperless law firm specializing in appeals
in downtown Lansing. Computer experience required.
Word processing/Internet skills essential. Case
management/billing/accounting skills a plus. MondayFriday/30+ hrs/wk, 6 hrs/day. Competitive hourly pay/no
benefits. Email [email protected] and send resume/
CV in PDF format with references included.
220 S. Washington Sq.
Lansing MI 48933
517-913-1400
~FREE WIFI~
Please visit us and receive a
free 16oz brew with the
purchase of a breakfast
sandwich!!!!!!!
~SANDWICHES, WRAPS, ICE CREAMS, TEAS,
SMOOTHIES, LATTES AND MUCH MORE~
220 S. Washington Sq.
Lansing MI 48933
517-913-1400
~FREE WIFI~
Please visit us and receive a
free Combo with the
Purchase of a lunch
sandwich!!!!!!!
~SANDWICHES, WRAPS, ICE CREAMS, TEAS,
SMOOTHIES, LATTES AND MUCH MORE~
Paralegal wanted
An outstanding opportunity is available for an
individual to join The Sinas Dramis Law Firm, an
established Lansing law firm specializing in personal
injury, as a paralegal to assist two partners. The ideal
candidate will be experienced in client interactions, have
experience with all aspects of litigation and will be able to
work independently. This person must be exceedingly
well-organized, flexible and enjoy the challenges of
supporting two partners in a mid-sized office.
This position requires a minimum of a high school
diploma. Three to five years of total previous legal secretary/
paralegal experience required with at least two to three
years of prior experience as a paralegal; experience in the
auto no-fault/PIP law preferred. Must possess strong writing
and organizational skills. General knowledge of Michigan
no-fault law, PIP and medicine/medical terminology
preferred.Benefits included: health insurance, life,
disability, 401(k), and paid vacation.
Send resume accompanied by a cover letter and salary
requirements to Julie Mann, CEO & President of JMann
Consulting Group at [email protected].
Candidates are not to contact the law firm directly.
Seeking volunteers
The Michigan Attorney Grievance Commission seeks
licensed attorneys to serve as pro bono volunteer. Receivers
pursuant to MCR 9.119(G), to assist in winding up the
practice of lawyerswho are deceased, incapacitated, missing,
suspended or disbarred.Attorneys interested in serving in
such capacity should submit a letter of interest to:
Rhonda S. Pozehl
Senior Associate Counsel
Attorney Grievance Commission
243 W Congress, Ste 256
Detroit, MI 48226
313.961-5819 fax
Accounting Services
for Small Law Firms
As a QuickBooks Certified Pro Advisor,
our services include installation and
instruction in using professional
services accounting software up to
helping with a full range of accounting
needs. References available.
Vista Solutions LLC, Haslett, MI
Rich and Joy Schaberg
[email protected]
517-339-9525
16 BRIEFS June 2011
On the Docket
Day
Date
Program
Start Time
Location
Cost
Friday
June 24
ICBA YLS End-of-the-Term Mixer
Young Lawyers Section
Students welcome!
5:30 p.m.
Dublin Square
327 Abbot Road
East Lansing
$5/person
RSVP
Yes, by June 20
* Visit the ICBA website at www.inghambar.org for up-to-the-minute information on event
* Reservations for above events can be made online at www.inghambar.org/calendar or via e-mail to [email protected]
Spotlight on the Women Lawyers Association of Michigan
Established in1919, Woman Lawyers Association of
Michigan (WLAM) has more than 700 member attorneys,
judges and law students, who join to enjoy collegiality and
promote the rights of women in society by supporting
worthy efforts and each other. Many local attorneys and
judges have supported the WLAM Mid-Michigan chapter
over the past years – an impressive and extensive list of
individuals who have contributed much to women and
WLAM May mixer at
Gilbert & Blakes
the mid-Michigan area.
The Mid-Michigan chapter hosts the annual Stell
Scholarship event, scheduled this year on Thursday,
October 13th at Copper Restaurant at Walnut Hills in East
Lansing. It underwrites members to support womencentered initiatives, in Elder Law of Michigan, the
Women’s Center, MSU Safe Place, etc. The next mixer
will be at Bluegill Grill in Haslett on Thursday August 11th
at 5:30. Chapter events are held on the second Thursday
of every other month.
Your involvement is welcomed! To join, talk to one
of the chapter officers for the 2011-12 year: Valerie
Lafferty, Tish Vincent, Nicki Proulx or Kris Arnett, or go
to http://www.womenlawyers.org/. Contact Val Lafferty
at [email protected] if you have questions.
WLAM June mixer at trôppo
Left: Sandra
Wisnewski listens as
Jessica Fox chats with
another attendee.
Above: The group attending the June mixer.
Right: Judge Hugh Clarke
Kendra Weaver, Meredith
Krause, and Veronica
Springer.
Judge Laura Baird and Lori Pourzan.
A run in the sun for a good cause
JUNE 2011
BRIEFS
Ingham County Bar Association
P.O. Box 66
Grand Ledge, MI 48837
Deadlines
WLAM supported Women’s Center of Greater Lansing by sponsoring members to participate in a 5k run/walk on Sunday,
June 5.
BRIEFS is published
10 times a year,
September-June.
BRIEFS submissions
should be received the
15th of the month prior
to publication, e.g., May
15 for the June issue.
Publications Committee
Liisa Speaker, Chairperson
482-8933; fax: 482-8936
[email protected]
ICBA Executive Director:
Madelyne Lawry, 627-3938
[email protected]
Editor: Becky Scott
290-3158
[email protected]