November 2010 - Bar Association of Erie County

Transcription

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Vol. 50 | No. 3 | November 2010
Bar Association of Erie County
BULLETIN
w w w. e r i e b a r. o r g
President’s Letter
Chief Justice Speaks at Buffalo Lecture Series
Chief Justice of the United States
John G. Roberts, Jr. recently
appeared in Buffalo as part of the
Frank G. Raichle Lecture Series on
Law in American Society at
Canisius College.
By Scott M. Schwartz
Roberts
“A Conversation with the Chief
Justice” took place on October 19
on the Canisius campus, along with
a separate event for students.
Buffalo native John G. Roberts, Jr. was nominated as
Chief Justice of the United States by President George
W. Bush and assumed the office on September 29,
2005. Roberts served as a law clerk for Judge Henry J.
Friendly of the U.S. Court of Appeals for the Second
Circuit from 1979-1980, and as a law clerk for thenJustice William H. Rehnquist of the Supreme Court of
the United States during the 1980 term.
We love our judges. Have I said yet in this
article that we love our judges? We love our
interactions with them as attorneys for clients
in matters before the court, we love our interactions with them at Mark’s hot dog cart at
Franklin and West Eagle, we love their court
rulings, we love their scheduling orders, and
we love making jokes at their expense at our
Judicial Candidates’ Luncheon. Did I say we
love our judges yet?
What we don’t love are the significant
account withdrawals we make during judicial
campaign season for parties, events, VIP memberships, gold and silver club memberships.
And these endowments are many times for
candidates who don’t get a party nomination
or for candidates who get the nomination, and
in our cockamamie (Latin for screwy) system,
though bipartisan endorsements, have no
opponent. That is certainly not the case this
year however, with ten candidates for Supreme
and two for County. It is not unusual to be
asked to pony up $250 for a single ticket and
the opportunity to grab a few wings and meatballs or $1,000 to be a host, even $2,500 to be
an event sponsor. With five seats for Supreme
Court this year and the number of invitations
for candidates’ parties, I felt like I was 13 again
and on the bar mitzvah circuit, invitations
coming every week. My guess is the candidates
like it even less than we do.
He served as a special assistant to the Attorney
General of the United States from 1981-1982, as associate counsel to President Ronald Reagan from 19821986, and as Principal Deputy Solicitor General from
1989-1993. From 1986-1989 and 1993-2003, he
practiced law in Washington, D.C. He served as a judge
on the Court of Appeals for the District of Columbia
Circuit from 2003-2005.
Roberts received an AB from Harvard College in
1976 and a JD from Harvard Law School in 1979.
Born in Buffalo in 1955, he married Jane Sullivan in
1996 and they have two children, Josephine and John.
The Frank G. Raichle Lecture Series is sponsored by
the Frank G. Raichle Pre-Law Center, established at
Canisius College in 1981. The center was made possible by a gift from the late Frank G. Raichle, a leader of
the American Bar Association and former member of
the Canisius College board of trustees. For information
about upcoming programs, visit www.canisius.edu. [B]
Plans to Develop Attorney Succession Registry Underway
What if? It’s something most of us don’t ask ourselves. It’s not easy to consider circumstances that
might interrupt one’s ability to continue a law career.
The reality is that accidents, illness, disability and sudden death do occur.
working with the Bar Association in a coordinated
effort to resolve these recurring emergencies by creating a Confidential Lawyer Succession Registry.
Our Bar Association routinely receives calls from secretaries, spouses, colleagues and others who want to
know what to do next. They look to us for help when
an attorney dies suddenly or is somehow incapacitated
and has made no provision for handling his or her
client’s affairs.
A brief registry card is filled out by each attorney
naming a “designee attorney.” These cards are
returned to the Bar Association and the information
entered into a data base. The originating attorney is
given a three-page document on which to record confidential office information, which will then be shared
with the designee. The form is meant to be kept on file
and includes information such as where active files are
located, who has access to those files, the name of the
person who has passwords for the computer, combinations, keys, where outstanding billing for client matters
can be found, IOLA, escrow and operating account
information and the like. That document is held in
safekeeping by the “designee attorney.”
Attorney professionalism is often equated with dedication to clients, service, competence and good judgment, and while there is no specific requirement for a
lawyer to protect his or her clients in the event of sudden death or a debilitating illness, there are rules that
provide guidance on the issue. It is clear that a lawyer
has a duty to protect clients from adverse circumstances, and making advance arrangements for managing such circumstances will help avoid missing a
court date, delaying a closing, or otherwise compromising a client’s interests.
The Erie County Bar Foundation assists attorneys
and their families during times of crisis and is now
The Way it Works
“We hope that eventually the data base will contain
a large number of attorneys practicing in Erie County,”
BAEC president Scott M. Schwartz said, “so that we
can put an efficient system in place that allows for
immediate response when the unexpected happens.”
continued on page 4
I know what you are saying: “Schwartz, you
were on the Bar Association Judiciary
Committee, you’ve been on the board of directors, and now as an officer, you are prohibited
by the Bar Association bylaws from contributing
or attending” and that’s all true. The problem
is, this gig is up in June and so I will feel the
unspoken obligation, as you may, to be enjoying
wings and meatballs at many future campaign
functions, and I’m also guessing the prices won’t
go down. And many contributions and events
are for Supreme Court seats, where there can be
no primary and thus a very limited campaign.
“The Pilgrims made seven times more graves than huts.
No Americans have been more impoverished than these
who, nevertheless, set aside a day of thanksgiving.”
~ H.U. WESTERMAYER
May each of us set aside a time this Thanksgiving to be grateful,
to drink in the crisp autumn air, to count our blessings, and to find
joy in the small, simple pleasures that make us glad to be alive.
continued on page 4
Photo by Glenn Edward Murray
PAGE 2
www.eriebar.org | November 2010
Vol. 50 | No. 3 | November 2010
BAR ASSOCIATION OF ERIE COUNTY
Organized 1887
438 Main Street, Sixth Floor | Buffalo, New York 14202
(716)852-8687 | fax (716)852-7641 | www.eriebar.org
Bulletin correspondence: [email protected]
EDITORIAL BOARD
Editor ............................................Bonnie D. O’Brian
Law Editor ....................................Jeffrey A. Spencer
Tax Notes Editor ..........................Gary D. Borek
Art Editor ......................................Hon. David J. Mahoney
(1960-2008)
Photography ................................Susan L. Kohlbacher
Glenn Edward Murray
Editorial Assistant ........................Susan L. Kohlbacher
OFFICERS AND DIRECTORS | 2010-2011
President ......................................Scott M. Schwartz
Vice President ..............................Arthur A. Russ, Jr.
Treasurer........................................Vincent J. Moore
Deputy Treasurer ..........................Paula M. Eade Newcomb
Executive Director........................Katherine Strong Bifaro
BOARD OF DIRECTORS
Lawrence C. Franco, Daniel J. Henry, Jr., E. Michael Semple, Kevin W.
Spitler, Patrick J. Brown, Jennifer M. Dillon, Lynn D. Gates, Bridget M.
O’Connell, Emilio Colaiacovo, Paul V. Crapsi, Jr., Howard Frank, Brenda M.
Freedman.
LIFE MEMBERS
Mark A. Adrian, Carol J. Alaimo, Brian D. Baird, Lynn A. Clarke, William J.
Cunningham, Eric P. Doherty, Victor J. Gagliardi, Sharon Stern Gerstman,
Jean E. Gittler, Donald J. Holzman, Stanley Kwieciak III, J. Eldon Owens,
Lauren D. Rachlin, Jeffrey A. Spencer, James M. Wadsworth.
“I decided, what the hell?! Why not wear it everywhere?”
Would you like to see your name here? See page 4 to find
out how to become a contributing member.
CONTRIBUTING MEMBERS
Joan Casilio Adams, Peter S. Aiello, Donald A. Alessi, Grace Marie Ange,
Richard J. Attea, Hon. Rosalie M. Stoll Bailey, Hon. Tracey A. Bannister,
Stephen E. Barnes, Edwin T. Bean, Jr., Thomas R. Beecher, Jr., Ronald P.
Bennett, Leonard Berkowitz, David W. Beyer, Richard S. Binko, Richard N.
Blewett, Michael M. Blotnik, Harold J. Brand, Jr., Peter J. Brevorka, Phillip
Brothman, T. Alan Brown, Joel Brownstein, David Buch, James P. Burgio,
Michael C. Burwick.
John F. Canale, James N. Carlo, John J. Carney, Peter B. Carr, Alan S. Carrel,
Thomas R. Cassano, Stephen E. Cavanaugh, Ferdinand J. Ciccarelli, John
F. Collins, William B. Collins, Anthony J. Colucci, Jr., Robert B. Conklin,
Robert N. Convissar, Edward C. Cosgrove, Peter L. Costa, Paul Crapsi, Jr.,
Douglas S. Cream, Hon. John T. Curtin, Steven P. Curvin, Roger T. Davison,
Dennis J. Dee, John M. Dempsey, Richard F. DiGiacomo, Anne C. DiMatteo,
David A. Doll, Dean M. Drew, Hon. Timothy J. Drury, Marvin T. Dubin,
Robert E. Dwyer, Donald B. Eppers, Leo J. Fallon, Victor N. Farley, Mark G.
Farrell, Gabriel J. Ferber, Michael E. Ferdman, Robert P. Fine, Peter J.
Fiorella, Jr., Brian P. Fitzgerald, Richard E. Forrestel, Jeffrey M. Freedman,
Maryann Saccomando Freedman, Robert Friedman, John J. Fromen.
Thomas J. Gaffney, William H. Gardner, Eugene M. Gaughan, Stuart A.
Gellman, Robert M. Goldstein, Wayne R. Gradl, Josephine A. Greco, Hon.
Samuel L. Green, John C. Grennell, Richard F. Griffin, John J. Gruber, Mark
W. Hamberger, Barbara Ellen Handschu, Thomas J. Hanifin, James P.
Harrington, John E. Haslinger, Mary Louise Hayden, Herbert J. Heimerl, Jr.,
William R. Hites, Susan S. Hogan, Edwin P. Hunter, Melvyn L. Hurwitz,
Norman E. Joslin, James B. Kane, Jr., Judith D. Katzenelson, Daniel L. Kaye,
Christopher C. Kerr, James J. Kirisits, William J. Kita, Wells E. Knibloe,
Christian G. Koelbl III, Dan D. Kohane, Ellen M. Krebs, Karl W. Kristoff,
Thomas E. Krug.
Stephen R. Lamantia, John P. Lane, Richard J. Lehner, John N. Lipsitz,
Richard Lipsitz, Arthur A. Lorenzo, William J. Love, Jr., Leo M. Lynett, Jr.
James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Arthur J.
Maloney, Giles P. Manias, Richard C. Marcus, John Markarian, Mary Dee
Martoche, Hon. Salvatore R. Martoche, Hon. Jeremiah J. McCarthy,
Maureen A. McCready, Thomas I. McElvein, Jr., Diane J. McMahon, Hon.
John A. Michalek, Raymond T. Miles III, Joseph D. Mintz, Albert J.
Mogavero, Richard E. Moot, Peter J. Murrett, Jr., Arthur F. Musarra, Joseph
M. Nasca, Paul T. Nesper, Stephen M. Newman, Anthony M. Nosek, James
J. O’Brien, Robert L. O’Connell, Hon. John F. O’Donnell, Timothy M.
O’Mara, Francis J. Offermann, Jr., William J. Ostrowski.
Carl P. Paladino, Frank R. Papa, Thomas C. Pares, James A. Partacz, Robert
E. Pearman, Hon. Erin M. Peradotto, Robert H. Perk, Jeffrey A. Perla, Joel
M. Poch, Samuel G. Puleo, Theodore J. Pyrak, James P. Renda, Mary K.
Roach, Earl T. Robinson III, Jay N. Rosenthal, Marcella Rosinski, Hon.
Mario J. Rossetti, Victor A. Rossetti, Richard P. Rosso, Arthur J. Rumizen,
Ross L. Runfola, Louis J. Russo, Thomas Santa Lucia, Scott M. Schwartz,
Edward J. Schwendler, Jr., Richard B. Scott, Donald P. Sheldon, Richard J.
Sherwood, David Siegel, Louis H. Siegel, Myron M. Siegel, Robert G.
Sillars, Richard Charles Slisz, Charlotte Smallwood-Cook, Oscar Smukler,
Robert B. Sommerstein, Gregory Stamm, Robert S. Stephenson, Milton J.
Strebel, David L. Sweet.
Dominic J. Terranova, Phillip A. Thielman, Gordon D. Tresch, Thomas V. Troy,
Frederick D. Turner, Dimitri J. Tzetzo, Peter A. Vinolus, Joseph C. Vispi, Dale
M. Volker, Matthew X. Wagner, Jr., James R. Walsh, John B. Walsh, Neil
Weinberg, Peter C. Wiltse, Wayne D. Wisbaum, Raymond V. Wylegala,
Richard D. Yellen, George M. Zimmermann, H.A. Terri Zionts.
Letter to the Editor
Dear Editor:
much as 25 percent. This is costly to the individuals
involved as well as to the state, with an enormous toll
on men, women, children and also taxpayers who pick
up the bill for the economic and social upheaval that
can follow.
I am writing in response to the article of Peter J.
Fiorella, Jr. appearing in the October 2010 Bulletin celebrating the advent of no-fault divorce law in New
York state. Long-time readers of the Bulletin may
recall that in 2005 Mr. Fiorella and I wrote about our
opposing viewpoints on this topic.
I could raise many arguments against no-fault
divorce, but the new law is upon us and will remain in
effect unless and until a further legislative change
occurs. Therefore, I am urging my fellow opponents of
no-fault divorce to join me in turning our attention
now to individuals and couples who are considering
divorce but may wish to see if they can make their
marriage work. After all, in one major study of over
5,000 married adults, 645 persons reported marital
dissatisfaction. When the unhappy spouses were surveyed five years later, those who had remained married
were more likely than divorced subjects to state that
they were happy. Indeed, the most dissatisfied spouses
had the most dramatic turnarounds: 78 percent of
people who stayed in “very unhappy” marriages said
that their marriages were currently happy.
Mr. Fiorella celebrates the passage of S3890A
Hassell-Thompson/A9753A Bing, which was approved
by the Senate in June, by the Assembly in July, and
signed into law by Governor Paterson in August. The
statute, which took effect on October 12, 2010, adds
“irretrievable breakdown” as a ground for divorce.
I was part of a statewide coalition of persons who
fought hard against this legislation for years. Our coalition was comprised of an interesting mix of groups,
including various religious and policy groups and both
liberal and conservative women’s rights groups. While
our groups approached the topic of no-fault divorce
from divergent backgrounds and viewpoints, we were
united in believing passionately that no-fault divorce
will be bad for our state.
For those New Yorkers who are interested in working
on saving and strengthening their marriages, there are
many resources in our state that can provide information and assistance. These resources include churches
and other religious organizations. The Buffalo-area
Catholic Charities office (839-4406) has a marriage
counseling unit with significant experience and expertise. Also available in our state are the Marriage and
Family Savers Institute in Newburgh (www.marriage-
No-fault divorce is a failed experiment that began in
California in the 1970s. It is ironic that at a time when
legislators in a number of states are rethinking this
experiment, New York has jumped on board the sinking ship. New York, rather than embracing its success
as a state with one of the lowest divorce rates, has
decided to join the no-fault system. In other states that
have adopted no-fault divorce, studies show that eliminating fault has led to an increase in divorce rates, as
continued on page 6
Letters to the editor and short articles of general interest to our readers are always
welcome. All materials submitted for publication in the Bulletin are subject to editing
for reasons of style, space and content.
Send all submissions as Word documents to [email protected] (preferred) or by mail
to: Bulletin Editor, 438 Main Street, Sixth Floor, Buffalo, NY 14202.
•
DEADLINE
•
•
January 2011 Bulletin D E A D L I N E
•
•
•
The next deadline for ALL Bulletin contributors and advertisers is
WEDNESDAY, November 24, 2010.
Call Susan Kohlbacher at Bar Headquarters for more information, 852-8687.
PAGE 3
November 2010 | www.eriebar.org
Brock Named Defense
Trial Lawyer of the Year
bench and bar in the news
This “members only” column is published
each month to share news and information
among BAEC members. Submissions should
be limited to 100 words and will be edited for
space and other considerations.
Bench & Bar in the News is reserved to
announce items such as: new members of a
law firm; name change or relocation; formation, merger, or new affiliation of law practice(s); change in job status; and professional
appointments,
honors,
or
awards.
Announcements which do not fall into these
categories may be published in the Bulletin as
paid advertisements.
Kimberly S. Conidi has joined
the law firm of Rupp, Baase,
Pfalzgraf, Cunningham & Coppola
LLC as an associate where she works
in the insurance defense practice
group. Conidi focuses her practice on
insurance coverage and insurance
Conidi
defense issues and also has experience in municipal law, corporate law
and collections. She formerly served as law clerk to the
Federal Magistrate Judge Leslie G. Foschio, Conidi
received her BA from the University at Buffalo and her
JD from its Law School. She is a member of the board
of directors for the Erie County Commission on the
Status of Women.
Keenan
Lisandrelli
John J. Keenan has been named
special counsel at Colucci & Gallaher,
P.C. and Kathryn A. Lisandrelli
has joined the firm as an associate
attorney. Keenan is a graduate of
Queen’s University at Kingston,
Ontario, the University of New
Brunswick, Faculty of Law, Syracuse
University College of Law and York
University, Osgoode Hall Law
School. He focuses his practice on
complex corporate and commercial
litigation, both nationally and internationally. Keenan served on the
NYSBA committee that drafted new
ethics rules for NYS judges. He is the
only WNY lawyer who appears in
both U.S. Bankruptcy Courts and also represents
clients in bankruptcy proceedings in Canada. Keenan is
admitted to practice in New York, California and the
Province of Ontario. Lisandrelli is a graduate of the
University at Buffalo (BA, English) and its Law School.
She focuses her practice on counseling commercial and
municipal entities on general corporate, compliance
and contract matters.
Alisa Lukasiewicz, special counsel at Phillips Lytle LLP, has received
a Distinguished Leadership Award
from The Advocates Club of WNY.
Each year, the group honors outstanding Polish-Americans who have
“made contributions to western New
Lukasiewicz
York and Polonia.” Lukasiewicz concentrates her practice in labor and
employment law and is a former corporation counsel
for the City of Buffalo. At Phillips Lytle, she focuses on
general litigation matters. Lukasiewicz received her JD
cum laude from the University at Buffalo Law School
and her BA summa cum laude from Canisius College.
She serves on the board of the Buffalo & Erie County
Historical Society.
Daniel P. Joyce has joined
the Buffalo headquarters of
Hodgson Russ LLP as a partner
in the firm’s Immigration and
International/Cross-Border Practice
Groups. He focuses his practice on
U.S. immigration and cross-border
Joyce
business matters. Joyce has more
than 20 years of experience advising
U.S. and Canadian companies in the transportation
industry, among others, on numerous aspects of crossborder transactions, including the establishment of
operations in the United States, various regulatory
issues, federal and state taxation, and legal concerns
for emerging companies.
Terrie Benson Murray, an associate at Cohen & Lombardo,
has been elected to a three-year term
on the board of directors of
Neighborlink, Inc. Neighborlink is a
not-for-profit corporation that uses a
Web-based network to connect peoMurray
ple in need with volunteers willing to
help, especially in the case of natural
disasters. Benson Murray earned her JD from the
University at Buffalo Law School and her BA summa
cum laude from the State University of New York at
Fredonia.
The Defense Trial Lawyers of
Western New York will recognize trial
lawyer David Brock with the highest honor bestowed by that organization. Brock will receive the Robert M.
Kiebala Memorial Award and recognition as the 2010 Defense Trial
Brock
Lawyer of the Year. The award is
made to an attorney who best exemplifies the Association’s mission of “promoting the highest standard of trial conduct through member
education and advocating the defense position in civil
cases with the judiciary and where appropriate in the
New York State legislature.” Brock is a partner at
Jaeckle Fleischmann & Mugel LLP.
The group’s annual meeting is scheduled for
Wednesday, December 8, from 5:30 to 7:30 in The
Franklin Room at the Buffalo Chophouse. Board
members Joel Java and Nicole Palmerton will be
honored as their terms come to a close. President
Hilary Banker will turn over her duties to current
vice-president Nelson Schule and remain on the
board for a one-year emeritus term.
The slate for the election of 2010 officers includes:
Nicole Palmerton (vice-president/president-elect);
Thomas Kawalec (treasurer); Joel Java (secretary)
and new board members Jennifer Adams,
Ryan Mills and Vicky-Marie Brunette. Sharon
Angelino will serve the final year remaining on
Kawalec’s term.
For information about attending the annual meeting,
contact any officer or board member: David Adams,
Sharon Angelino, Dan Archilla, Hilary Banker, Carl
Brownell, Bill Christ, John DePaolo, Joseph Goergen,
Nicole Heary, Joel Java, Tom Kawalec, Bill Nitterauer,
Jerry O’Connor, Nicole Palmerton, Michelle Parker,
Kelly Philips, Nelson Schule or John Wallace.
Lawyer Referral &
Information Service
continued on page 20
More than 5,000 new clients
are referred to members of the
LRIS each year.
The Company of
The Erie County Bar Foundation exists
to provide a helping hand to lawyers in need.
If you’re not already a member,
call 852-3100 today to become one.
The Lawyer Referral & Information
Service…one more way that the
Bar Association is good for your practice.
The need may be based on medical problems,
job loss, emotional difficulties, family crises or
many other situations. No person or problem
is categorically excluded.
If you need assistance – or know a friend or
colleague who does – please call Kelly
Bainbridge at 628-4892. All services are
individualized and completely confidential.
It’s great to belong to something this good.
PAGE 4
President’s Letter
continued from page 1
In trying to place some limits or restrictions on this
process, I realize there are First Amendment issues,
along with other issues I am not versed enough to articulate. But how about “let’s get reasonable” issues. Our
Code of Judicial Conduct requires it. With bipartisans,
which seemed to happen every year before this year, we
don’t even elect most judges anymore, the political
parties appoint them, and on election day, we just
affirm their appointments. We deserve better, and the
public deserves better. The Supreme Court, the
supreme Supremes in Washington, have ruled that
while our New York system is stupid, it’s also constitutional. Constitutionally stupid, though I had hoped
they would rule it unconstitutionally stupid. While the
parties have the green light to nominate who they want
without any mandated screening process, you would
also at least expect them to respect the opinions of the
local bar, as expressed through our Judiciary
Committee evaluations. One of the political parties, not
long ago, endorsed a candidate rated “not recommended” by the Bar Association, but I have digressed.
Contributions Pose Threat to Public
Confidence
avoid the appearance of impropriety, and to instill public trust in the judicial system. It’s not a mandatory program and I will be interested to see the response, though
one local judge warned me that “it will never work.”
An editorial in the New York Times published the day
I submitted this column noted that as spending has
escalated in judicial races so has the “…threat to public confidence in judicial neutrality that is fundamental
to the justice system.”
So let me summarize. We are bombarded with invitations to buy expensive tickets for campaign events.
Many of these candidates will not see their names on
the ballot, this year notwithstanding. Many of the
names we do see on the ballot have, in years past, been
endorsed by both the parties and did not necessitate a
real campaign. I guess we have really been paying to
support candidates’ bids to get bipartisan support from
the parties so they won’t have to campaign. I know
unspent funds are required to be returned but a candidate for this term’s election, who held a fundraiser, and
withdrew from that race within weeks, told me the
return rate was only 40 percent.
There are ethical considerations involving judicial
campaign contributions, and recently held constitutional issues as well. Our New York Code of Judicial
Conduct, Canon 5(A)(5) restricts judicial campaign
contributions to a committee, which may “… solicit
and accept reasonable campaign contributions.” If you
want to read a most egregious case of excessive contributions to a judicial campaign by a private party, provoking constitutional implications, read Caperton v.
A.T. Massey Coal Co., Inc., 129 S. Ct. 2252. What is
the public perception, knowing lawyers are contributing sponsorship or hosting type money for a judge’s
election? Caperton tells us recusal of a judge may be
required, “whether or not actual bias exists or can be
proved.” The inquiry is whether a contributor’s influence “would offer a possible temptation to the average… judge to… lead him not to hold the balance
nice, clear and true.” Citing Tumey v. Ohio.
It’s time for reform, and we, the profession that represents the people whose cases are before our judges
everyday, and who are bombarded with invitations and
solicitations, should lead the way. I would be interested
in your thoughts. I have asked our Judiciary
Committee, after they recover from their “extended
run” of candidate evaluations, to consider some recommendations for change, which we might then pass
along to the New York State Bar Association. I will pass
along any thoughts you may have on the subject. In the
meantime, point me toward the voting booth, and let
me exercise my right to vote for six of the 12 candidates
to whom you have contributed. The system remains in
place for party agreement on bipartisans, and perhaps
for sitting judges, this, or a retention vote, is appropriate. In any event, I am starting a 222 plan, putting
pre-tax dollars into a judicial campaign party ticket
account. I don’t know if it’s kosher, but neither are the
$250 Swedish meatballs.
In response to this runaway judicial campaign contribution train, the Indianapolis Bar Association has
created a political action committee called “Attorneys
for an Impartial Bench.” The committee will receive
and distribute voluntary contributions to the local trial
court candidates. Contributions are made, with no
regard to political affiliation or a named candidate and
the contributions are designated for equal distribution
to all judicial candidates certified by the elections
board, for that election year. The plan is intended to
I remind all our members that we seek nominations
for our non-lawyer awards at the Law Day luncheon
and lawyer/jurist awards at our annual dinner. Those
who we choose to honor are a reflection of who we are
and what we value as an Association. I also ask that any
member who seeks consideration for our board of
directors, deputy treasurer or president-elect position
to please let me know. If you do seek to run for a bar
office, Swedish meatballs and campaign wings are not
permitted.
[B]
Plans to Develop Attorney
Registry Underway
Majority of BAEC Members are Solo or
Small Practitioners
“We recognize that larger firms have resources in
place to manage an attorney’s clients and caseloads in
these situations,” according to Foundation president
William Ilecki. “However, more than 50 percent of our
bar’s membership is made up of solo and small firm
practitioners.”
Schwartz and Ilecki plan to ask the boards of directors of the Bar Foundation and Bar Association to participate in this effort. The Erie County Bar Foundation
sponsored a seminar last month (Planning Ahead: Key
Issues for the Lawyer Approaching Retirement), at
which attendees were provided with registry cards and
urged to participate. More information can be found on
www.eriebar.org or by contacting Katherine Bifaro at
852-8687 or [email protected]. As always, member
comments and questions are invited.
[B]
Become a
Contributing
Member!
The BAEC bylaws confer “contributing member”
status on any member who resides or maintains an
office in Erie County and elects to pay an additional
$40 in annual dues to help support Association programs. Contributing members have the same rights
and privileges as regular members and “such additional rights and privileges as the board of directors
shall bestow,” including special recognition in the
Bulletin, annual dinner program and other publications.
WORTH QUOTING
“I would rather have a mind
opened by wonder than one
closed by belief.”
~ Gerry Spence
PAGE 5
cyberlaw: the brave new e-world
By Anne F. Downey
Facebook Legal Issues
Last month, we talked about what Facebook is, and
this month we will touch on some of the fascinating
legal issues that have arisen related to Facebook.
Are there ethics rules governing attorneys’ participation in Facebook? You bet! Not only do the general
rules on attorney advertising apply, but other considerations come into play. Attorneys should be careful to
preserve confidential information, follow the rules on
solicitation, and comply with the restrictions on communicating with persons known to be represented by
another lawyer in a matter. In addition, pursuant to
New York County Lawyers Association Committee on
Professional Ethics Formal Opinion No. 737 (2007),
private non-governmental attorneys should keep in
mind the rule that it is generally impermissible to use
an investigator who provides false information as a
pretext to gain information from another person, such
as making false statements to become a Friend of a
third party on Facebook in order to gain information
about that third party. The New York State Bar
Association has also weighed in, with Ethics Opinion
843 issued in September 2010, approving a lawyer’s
accessing the Facebook profile of a party other than his
or her client in pending litigation in order to secure
information about the party for use in the lawsuit,
including impeachment materials, so long as the
lawyer does not Friend (or direct another to Friend) the
party and instead relies solely on public profile data.
Likewise, there are ethics considerations for judges
who participate in Facebook. According to the New
York Advisory Committee on Judicial Ethics Opinion
08-176 (2009), judges may participate in social networking sites but need to avoid impropriety or the
appearance of impropriety, refrain from creating “close
social relationships” that require disclosure or recusal,
stay away from comments on pending and impending
matters, and steer clear of violating the general prohibition on practicing law. The New York opinion does
not contain an outright prohibition against a judge’s
Friending an attorney or others who appear before the
judge, but a Friend relationship can be tricky (and it
should be noted that other states have their own ethics
rulings on this particular issue).
Problems have arisen when jurors log into Facebook
and seek information about parties or witnesses in a
case on which they are serving. Recently in the United
Kingdom, a judge was not amused upon learning that
a juror posted comments on Facebook during jury
deliberations about the fact that the jury was split on
an issue. In our own state, in February 2010, Judge
Margaret L. Clancy in the Supreme Court, Bronx
County, had to deal with a juror who, after deliberations began, signed onto Facebook and sent a Friend
request to one of the witnesses from the trial. In the
unreported opinion in People v. Rios, 26 Misc.3d
1225(A), Slip Copy, 2010 WL 625221, Judge Clancy
wrote that “Ms. Krell’s conduct was unquestionably a
serious breach of her obligations as a juror and a clear
violation of the court’s instructions.” Nevertheless, the
judge refused to grant defendants’ motion to set aside
the verdict for juror misconduct because defendants
failed to establish that the misconduct prejudiced a
substantial right.
Illegal or Just Plain Stupid?
Stupid postings on Facebook have tripped up many
other persons as well. College students post photos of
their illegal activity in a dorm and find themselves in
trouble with their school. People post wild photos or
statements and end up not being hired for a job or
admitted to a graduate school. A wife who suspects that
her husband is having an affair finds incriminating
photos on the other woman’s Facebook page. And we
recall the news story in February 2010 about the use of
Facebook by Lockport police to learn the workplace
and schedule of fugitive Christopher Crego. The information was passed along to the U.S. Marshals, who
picked up Crego at his place of employment. The
Lockport police posted a cheeky thank-you note on
Crego’s Facebook page saying “It was due to your diligence in keeping us informed that now you are under
arrest.”
Some Facebook activities move beyond stupidity to
illegality. People have been arrested for using Facebook
to post child porn, threats of violence, photos of a baby
using a bong, for blackmail, and in the Bahamas, posting photos of two people barbecuing and eating a rare
iguana. Others have been arrested for Facebook communications that violated an order of protection or
solicited sex from a minor.
Attorneys have been successful in subpoenaing
records from Facebook. Recently, however, in Crispin v.
Audigier, CV 09-09509-MMM-JEMx (C.D. Cal. May
26, 2010), a federal district court in California quashed
continued on page 6
PAGE 6
EXPERT TESTIMONY
western district case notes
By Paul K. Stecker and Kevin M. Hogan
CONSTITUTIONAL LAW
In HealthNow New York, Inc. v. State of New York
(10-CV-345S, 9/13/10), the plaintiff health insurer
sued the state and the state attorney general for
declaratory and injunctive relief, claiming that the
2009 amendment to the General Obligations Law precluding insurers from asserting subrogation or reimbursement claims against personal injury settlements
(the “Anti-Subrogation Law”) is preempted by ERISA
and violates the due process and contract clauses of the
U.S. Constitution. Plaintiff withdrew its claims against
the State in response to defendants’ motion to dismiss,
but argued that its suit was proper as against the
Attorney General under the Ex Parte Young exception
to Eleventh Amendment immunity, which permits a
plaintiff to proceed against a state officer when the
complaint alleges an ongoing violation of federal law
and the defendant is required to enforce the state
statute in question. In this case, however, the court
found that the attorney general did not have any particular enforcement duty and had not threatened any
enforcement action under the Anti-Subrogation Law,
and the court therefore dismissed the complaint for
lack of subject matter jurisdiction.
ERISA
In Stanton v. Lincoln Life & Annuity Co. (09-CV6430 CJS, 9/1/10), the plaintiff’s decedent died in an
Letter to the Editor
andfamily.org), the downstate bilingual resources of
Living Mission Ministries/Mision Para Vivir (www.livingmission.net or www.misionparavivir.org), and general resource Web sites like www.MarriageSavers.org.
In addition, attorneys may be interested to know that
there is a nationwide group called Marriage Friendly
Therapists with members listed state by state at
www.MarriageFriendlyTherapists.org.
If any Bulletin readers are themselves struggling with
marriage problems, I encourage you to consider taking
steps to strengthen and heal your marriage. I believe
marriage is worth fighting for on both a legislative level
and, more importantly, on an individual level. May you
find courage, hope, and blessings.
Very truly yours,
Anne F. Downey
Boston, New York
Do you agree with this writer? Disagree?
Either way, we want to hear from you. Send
your letters to [email protected] All letters
are subject to editing for content, space and
other considerations.
alcohol-related snowmobile accident, and the defendant insurer denied a claim for death benefits under
the subject group accidental death policy, which
excluded coverage for loss caused “by driving a motor
vehicle while intoxicated.” Applying the “arbitrary and
capricious” standard of review, the court upheld the
insurer’s interpretation of “motor vehicle” to include a
snowmobile, noting that some New York statutes
exclude snowmobiles from their definition of “motor
vehicle,” while others do not.
In Automobile Ins. Co. of Hartford v. Electrolux
Home Products, Inc. (08-CV-623(A)(M), 9/15/10),
plaintiff, as subrogee, sued the manufacturer of a gas
clothes dryer that allegedly caused a fire in the home of
the plaintiff’s insured. The magistrate judge granted
plaintiff’s Daubert motion to preclude the proposed
testimony of the defendant’s expert to the extent that
his opinion – namely, that excessive lint had accumulated in the insured’s dryer – was based on his testing
of, or experience inspecting, other dryers. Although the
judge held that testimony concerning other dryers was
admissible with respect to general causation (i.e., to
prove that reduced airflow could cause lint accumulation), he found that such testimony was not sufficiently reliable to prove specific causation (i.e., that reduced
air flow caused lint accumulation in the insured’s
dryer) because the expert failed to rule out other
potential causes of lint accumulation in that dryer. The
Cyberlaw
a subpoena as to certain private Facebook postings
because of the protections of the Stored
Communications Act. Specifically, the court ruled that
Crispin could not subpoena copies of private messages
(similar to e-mails) that Crispin and Audigier
exchanged through Facebook. The judge remanded on
the issue of whether Facebook wall postings, which are
less private, could be subpoenaed.
The Facebook Web site contains information about
subpoenas at its Help Center, stating that “requests for
account information are…better obtained through
party discovery. Federal law and Facebook policies
prohibit the disclosure of user information. Specifically,
the Stored Communications Act, 18 U.S.C. § 2701 et
seq., prohibits Facebook from disclosing the contents of
a user’s Facebook account to any non-governmental
entity, even pursuant to a valid subpoena or court
order. The most Facebook can provide is the basic subscriber information for a particular account.” The Help
Center goes on to provide information about how to
subpoena basic subscriber information, stating “If you
are or represent a party to a civil case and believe basic
subscriber information is indispensable and is not
within the possession of a party, you must personally
serve a valid California or Federal subpoena on
Facebook. Out-of-state civil subpoenas must be
domesticated in California.” The Help Center page
gives detailed instructions, including information on
the $500 processing fee per user account.
Just Sign Me “Whipping Boy at
McDermott, Will & Emory”
Even without a subpoena, lots of interesting posts
are readily available for anyone to see. Corporate
employers may be dismayed to find that their ever-creative employees have established gripe pages on
Facebook. Large law firms were no doubt alarmed this
summer
when
an
article
appeared
at
AboveTheLaw.com listing Facebook Community Pages
with names such as “Bimbo at Baker & McKenzie” and
“Whipping Boy at McDermott, Will & Emory,” all
because associates of the firm used the phrase “bimbo”
or “whipping boy” in their Facebook profiles, which
also mentioned their place of employment.
In the past, many corporate employers have adopted
written policies governing employees’ use of corporate
Internet and e-mail systems. Now many employers are
adopting social networking policies as well. Usually
such policies are worded carefully in an effort to strike
a balance between recognizing the rights and desires of
employees to use social networking sites to speak their
minds and yet restricting clearly problematic behavior
such as revealing company trade secrets, defaming
customers, and inappropriate use of the corporate logo.
Intellectual property attorneys have found Facebook
to be responsive to claims that a Facebook user is
infringing copyright or trademark rights. For example,
a movie studio may find unauthorized use of a movie
trademark and copyrighted images from the movie.
The first step in seeking relief is to refer to the Facebook
policy on intellectual property infringements, which
can be found at http://www.facebook.com/terms.php.
That page includes a link regarding How to Report
Claims of Intellectual Property Infringement. Facebook
will review a claim and, if it appears to be reasonable,
promptly take down the infringing content, notify the
infringer, and terminate repeat infringers.
These are just some of the many interesting legal
issues related to Facebook. It will be interesting to see
how case law on this topic continues to develop.
PAGE 7
citations
By Jeff Spencer
“BEGGING” THE QUESTION
Can asking another
For their loose coins
By our fair state
Be enjoined?
Surely not, said the court
This statute must be impeached
It clearly runs afoul
Of freedom of speech.
Peo. v. Hoffstead, __AD3rd__, 905 NYS2nd 736,
6/10/10.
plaintiffs failed to rebut defendants’ prima facie evidence that there was no connection between the illegal
sale of alcohol and the accident. (Kaufman et al. v.
Quickway, Inc. et al., 14 NY3rd 907, 905 NYS2nd 532,
6/8/10)
FOLIATION OF PROPERTY TAXATION
The Court of Appeals has upheld the special status of
qualified “forest land” requiring a reduced level of
property taxes. (Mtr. of Gordon v. Town of Esopus et
al., 15 NY3rd 84, 905 NYS2nd 545, 6/15/10)
OPTION ADOPTION
Surrogate’s Court did not abuse its discretion by
invoking its equitable authority to grant specific performance of an option agreement for the purchase of
property. (In re Lamberti v. Angiolillo, 73 AD3rd 463,
905 NYS2nd 560, 5/6/10)
JUSTIFICATION ELABORATION
The justification defense was properly not charged
where defendant shot out the door at the alleged victim
after allegedly hearing a gunshot. (Peo. v. Kravitz,
__AD3rd__, 905 NYS2nd 696, 3rd Dept., 7/22/10)
GETTING THE SCOOP ON
NONCONFORMING USE
In Jones et al. v. Town of Carroll et al. (15 NY3rd
139, 905 NYS2nd 551, 6/17/10), the Court of Appeals
upheld Justice Timothy Walker’s finding that the operators of a landfill were entitled to a prior nonconforming use exception to the town’s zoning restriction.
ARBITRATION ELEVATION
The Appellate Division has upheld an arbitration
award in a dispute between estranged spouses given by
a tripartite rabbinical court in Mtr. of Glatzer v.
Glatzer, (73 AD3rd 1173, 905 NYS2nd 607, 2010)
ROOF GOOF BUCKET BASH
The bucket fell down
With a terrible crash
Upon plaintiff’s head
Leaving a really big bash.
Our workers didn’t do it
The roofer did implore
Please let us out
The summary judgment door.
Denied! Said the court
A trial you must endure
For this is clearly a case
Of “res ipsa loquitur.”
Montalvo v. Mumpus Restorations, Inc., __AD3rd__,
905 NYS2nd 659, 8/3/10
CUTTING TO THE CORE
In a concise but thoughtful opinion by Justice
Eugene F. Pigott, Jr., the Court of Appeals held that an
accusatory instrument’s failure to describe defendant’s
alleged “gravity knife” in other than conclusory terms
was a jurisdictional defect not waivable by his guilty
plea. (Peo. v. Dreyden, 15 NY3rd 100, 905 NYS2nd
542, 6/15/10)
DRAM SHOP SUIT GETS BOOT
Our Court of Appeals has held that a convenience
store clerk’s out-of-court statements to a state trooper
as to the defendant driver’s intoxication, but that
DOG CHAIN CLAIM DOWN THE DRAIN
Plaintiff was allegedly injured when he became
entangled in the chain of defendant’s dog. The
Appellate Division dismissed the claim, noting a failure
to show any prior knowledge of the dog’s aggressive or
vicious propensities. (Egan v. Hom, 74 AD3rd 1133,
905 NYS2nd 624, 2010)
See also Kidder v. Moore (__AD3rd__, 4th Dept.,
10/1/10, #947) where factual issues as to vicious
propensities precluded summary judgment; and
Tesmer v. Colonna, __AD3rd__,4th Dept., 10/1/10,
#951.
EVERYTHING YOU EVER WANTED
TO KNOW ABOUT BOAT BAILMENTS,
BUT WERE AFRAID TO ASK
Our Fourth Department has upheld breach of bailment damages awarded to plaintiff when his boat was
damaged after being left at defendant’s marina to be
winterized and stored. (Tweedy v. Bonnie Castle Yacht
Basin, Inc., 73 AD3rd 1455, 905 NYS2nd 727, 2010)
YOUNG ALIEN HAS SOFT LANDING
BETWEEN TWO WORLDS
Overturning a Family Court finding, the Appellate
Division (2nd Dept.) has allowed a juvenile alien to
petition for special immigrant juvenile status by making findings that he is dependent on Family Court. (In
the Mtr. of Jisun L. v. Young Sun P., 75 AD3rd 510, 905
NYS2nd 633, 7/6/10)
SLIP TIPS AND STUMBLE BUMBLES
Our Fourth Department affirmed Justice Rose
Sconier’s denial of third party defendant’s motion for
summary judgment where plaintiff fell after stepping
out of a truck into a snow bank. (Trazska et al. v. Allied
Frozen Storage, Inc., __AD3rd__, 10/1/10, #930)
See also Hayes v. Norstar Apartments, LLC and Siara
Management, Inc. (__AD3rd__, 4th Dept., 10/1/10,
#987), where plaintiff allegedly slipped on ice in defendant’s parking lot. Summary judgment was denied, with
the court noting that meteorological reports raised a
question as to when ice had formed.
[B]
PAGE 8
High Court Denies FCC Power
to Regulate Internet
lost in (techno) space
By Martha Buyer
Network Neutrality: Finally a Mainstream Issue
“The bottom line is that we must protect the open
Internet. If Congress can’t act, the FCC must.”
~ House Commerce Committee Chairman
Henry Waxman (D-CA)
As I write this November column, I’m at the Society
of Telecommunications Consultants’ annual meeting in
Dallas. There are about 100 independent (non-vendor
affiliated and non-vendor compensated) consultants
here talking about not only the latest and greatest technology offerings in the market, but also technology and
industry trends as we look ahead as far as five years.
This is a tech-savvy group whose members pay attention to subtle policy shifts at the federal and state levels. What the consultants and vendors gathered here
didn’t anticipate was that the issue of regulating - or
not regulating - the Internet would become a hot topic.
So hot in fact, that legislation drafted jointly by both
Republicans and Democrats, under the leadership of
Henry Waxman (D., California), was
scrapped at the last minute when House
Republicans pulled their support.
It wasn’t that long ago that the Internet
was a powerful tool that increasing numbers
of individuals, businesses and governments
began to lean on to support operations. But
the fact that its regulation and management
has become an election issue is a sign of
exactly how important it has become to our
daily lives, whether in a professional, governmental, or personal context.
The issue really, is who - or which entity regulates the Internet. At the base of this
question is whether or not the largest of
providers can discriminate (read: charge
more) against some users (read: ginormous
ones) than others, or whether the Internet
will remain “open” and unencumbered by
either regulation or cost to all. The largest
players, including Comcast among others,
believe that as a business entity that provides
Internet services, it has the right to charge
some users for high volume and high speed
usage.
cations’ service?” are now of interest beyond the deepest recesses of the FCC’s office space. To explain, back
in the days when voice services were voice services (a
ringing phone meant someone was on the other end
wanting to talk) and data services were data services
(okay, let’s start with the fact that data services really
began to permeate corporate environments in the last
quarter of the last century), regulations were drafted
which never took into account the fact that these two
technologies would morph into a single type (or possible types) delivering both forms of information (voice
and data) over a single pipe. Telecommunications services were/are regulated, and information services
were/are not.
Without getting much further into the details than
most non-telecom cognoscenti care about, those services that were originally classified as “telecommunications services” remain subject not only to FCC
regulation, but to the imposition of taxes, surcharges
and fees. Most “information
services” are not. As a result,
when regulations including
those which created the
Universal Service Fund (in
2010, the USF will distribute
“The twists and
$8.7 billion within the U.S.)
were drafted, the burden for
turns of this issue
generating funds to support
these worthy endeavors fell and continue to fall - most
over the past six
heavily, but not exclusively, on
those who use traditional voice
services.
months would
Now that the Internet is
used
heavily for both, what
rival those of any
formerly was traditional voice
services, and large content
reality TV show.”
information (read: among
other things, television programming), the taxation/surcharge/fee regime is not
applied fairly. Neither are
other regulations which burden some voice delivery mechanisms while leaving others
alone. Voice provided over cable, as well as voice proInformation vs. Telecommunication
vided over the Internet is not subject to the same - if
any - levies as is “traditional” voice. This is the case
The twists and turns of this issue over the past six
even though you have a person at one end using a
months would rival those of any reality TV show. In
device to exercise a human voice to communicate with
fact, such seemingly arcane questions as “from the
another person at another location. It’s one of those
government’s perspective, what’s the difference
cases where it may look like a duck and sound like a
between an ‘information’ service and a ‘telecommuniduck, but it just isn’t a duck.
Up to early 2010, the FCC derived its authority to
regulate the Internet under its “ancillary authority”
granted by Title I of the Communications Act of 1934.
When the Obama Administration issued its National
Broadband Plan in March of this year, it hoped to
address the issue of Internet regulation, with specific
attention on the issue of Network Neutrality. Either
with, or in spite of, depending on your point of view the
“encouragement” of some of the best lobbyists in the
business, the FCC sought to take on the issue by using
its defining the Internet as a “telecommunications service,” which was within its rights. However, in April,
2010, the U.S. District Court of Appeals for the D.C.
Circuit issued its decision in the FCC v. Comcast
(pacer.cadc.uscourts.gov/common/opinions/201004/
08-1291-1238302.pdf) case, which — simply put denied the FCC the power to regulate the Internet.
Back to the drawing board for the administration.
FCC Chairman Julius Genachowski drafted a plan
he called “The Third Way,” which sought to apply a
light regulatory hand by giving the FCC, among other
things, the authority to regulate the transmission-only
portion of the Internet. However, throughout the summer, Congressional negotiators from both parties
worked to craft legislation to achieve the following
goals:
- Restoration of the FCC’s authority to prevent
blocking of Internet content, applications, and
services, which was struck down by the court in
the Comcast decision;
PAGE 9
the pet or 21 years, whichever occurred earlier. Thus,
applying the Rule Against Perpetuities to such trusts.
Effective May 5, 2010, such trusts will now terminate
when “the beneficiary or beneficiaries of such trust are
no longer alive.”
death and taxes
By Peter J. & Jillian E. Brevorka
Recent Surrogate’s Court Decisions and Other
Estate Planning Matters
In spite of all of its highly publicized dysfunction, the
New York State Legislature was able to pass some
helpful legislation this year in the estate and trust area.
EPTL 2-1.13 provides that if either the federal
estate tax or GST is re-enacted prior to January 1,
2011, then the statute will be deemed to refer to the
effective re-enacted tax, rather than January 1, 2011.
Will Construction in 2010
The statute authorizes the executor to bring a proceeding to determine what the decedent intended, and
provides that extrinsic evidence may be admitted to
establish the decedent’s intent, thereby avoiding the
usual limitations on parole evidence in will construction
cases. But such proceeding must be instituted within
12 months of the death of the grantor, “and not at any
time thereafter.” The reason for inclusion of this last
quoted language is not clear from the face of the
statute, and we are not aware of any legislative explanation.
The repeal of the federal estate tax for 2010 created
a problem for wills which were written in formula language relating to the federal estate tax, such as “I leave
to my wife the smallest amount which would result in
my estate paying no federal estate tax.” In an environment where there is no such tax, what does that clause
mean?
To address this, §2-1.13 has been added to the
Estates, Powers and Trusts Law. The former EPTL 21.13 (Right to Recover Estate and Gift Taxes Where
Decedent Retained Interest) was renumbered to 21.14, and the former EPTL 2-1.14 (Consequences of
Partly Ineffective Dispositions of Trust Principal) was
renumbered to 2-1.15.
The new 2-1.13 applies only to decedents dying
after December 31, 2009, and before January 1, 2011,
and is effective retroactively to January 1, 2010. It provides that a disposition in a will or trust based upon the
amount of property which may be sheltered from federal estate tax using any of a list of words, including
those such as “unified credit,” or “estate tax exemption,” or “marital deduction,” will be deemed to refer
to the federal estate tax law as applied with respect to
decedents dying on December 31, 2009.
Similarly, disposition referencing the federal generation skipping transfer tax (GST) will be deemed to
refer to the federal generation-skipping transfer tax in
effect on December 31, 2009.
These provisions will not apply, however, to a will or
trust executed or amended after December 31, 2009.
This could create something of a problem for wills or
trusts executed or amended in 2010, in which the
draftsperson anticipated the re-enactment of the estate
tax and used formula language, and then the decedent
died in 2010.
Amendments to the Renunciation Statute
EPTL 2-1.11 (Renunciation of Property Interests)
has had a few modest amendments:
A new Paragraph (a) has been added to the statute
containing the admonition that “A renunciation made
in compliance with the provisions of this section shall
not necessarily constitute a qualified disclaimer within
the meaning for §2518 of the Internal Revenue
Code....”
We cannot recall any similar user warnings on
statutes. Perhaps this is a whole new regime of consumer protection.
Some touch-up language was added to make clear
that a disclaimer could be made with respect to an
interest in a joint tenancy interest or tenancy by the
entirety and a security registered in beneficiary form
under Article 13 of the EPTL.
Pet Trusts No Longer Limited by Rule
Against Perpetuities
EPTL 7-8.1 (Honorary Trusts for Pets) formerly
provided that the trust for a pet could last for the life of
Thus, such trusts can extend more than 21 years.
Presumably, “the beneficiary” of the trust means the
subject animal.
This seemingly innocent change to the pet trust
statute could have some interesting implications. New
York residents attempting to create dynasty trusts, who
direct that the law of another state which no longer has
a Rule Against Perpetuities will apply to the trust, must
have some contacts with that other state, such as a
trustee who is a resident of that state. The reason for
this is that a trust of which the grantor, trustees and
beneficiaries are all New Yorkers could not elect to be
interpreted under the laws of another state if such
other laws are in conflict with the public policy of New
York. The New York Rule Against Perpetuities has generally been considered to be the public policy of this
state.
If the Rule Against Perpetuities is no longer applicable to trusts for doggies and kitties, could it be argued
that the Rule does not rise to the level of public policy
of the state?
Exempt Property
EPTL 5-3.1 has been revised effective January 1,
2011.
The value of household items which automatically
vest in the surviving spouse or minor children has been
increased from $10,000 to $20,000. Further, jewelry
not disposed of by will, clothing of the decedent, and
electronic and photographic devices have been added
to the list of such property. However, a limitation has
been added that the list shall not include items used
exclusively for business purposes.
The family library items included as exempt property have been expanded to include DVDs, CDs and
other electronic storing devices, and the maximum
value has been increased from $1,000 to $2,500.
To the list of domestic animals and their food for 60
days, tractors, etc., has been added farm animals, and
the value has increased from $15,000 to $20,000.
A provision has been added which permits the spouse
or the decedent’s children to purchase any of the listed
exempt items which have values that exceed the monetary limitations. If any of those items was the subject
of a specific bequest, the money paid will vest in the
PAGE 10
Lost in Techno Space
Death and Taxes
- Prevention of phone and cable companies from
unjustly or unreasonably discriminating against
any lawful Internet traffic;
- Prohibition by wireless broadband providers from
blocking Web sites, as well as applications that
compete with voice or video conferencing, while
preserving the FCC’s authority to adopt additional safeguards under its existing authorities; and
- Direction to the FCC to issue transparency regulations so consumers know the price, performance, and network management practices of their
broadband providers.
Under the proposal, the FCC could have begun
enforcing these open Internet rules immediately with
maximum fines increased from $75,000 to $2,000,000
for violations.
specific legatee. A purchase provision such as this was
already in the statute with regard to motor vehicles.
The value of “money or other personal property”
which is exempt is increased from $15,000 to $25,000.
“Personal property” is now defined to include cash and
various forms of bank accounts. But the statute makes
clear that if the decedent’s assets are not sufficient to
pay his or her funeral expenses, then cash and other
items of personal property must first be applied to the
funeral bill.
The statute now also provides that any set off to a
child under 21 not exceeding $10,000 may be paid to
the parent or some competent adult under SCPA 2207.
Amounts in excess of $10,000 shall be subject to the
normal guardianship rules.
Genetic Marker Testing in Inheritance
However, as is often the case when the midnight
oil is burning in what could be a tumultuous election
year, the agreement, which had been tentatively
reached, fell apart just before the House of
Representatives closed for business until after the
November election. And while Congressman Waxman,
who is currently chair of the House Energy and
Commerce Committee, may have lost this round, his
public support of the reclassification of the Internet as
a Telecommunications Service may give the FCC the
authority to regulate it, albeit without legislative intervention.
EPTL 4-1.2 (Inheritance by Non-marital Children)
has been amended to implement statutorily a decision
of first impression by Surrogate Howe.
Bipartisanship is great unless it’s a contentious
election year. Then everything, including good legislation, gets tossed out in favor of short term political
opportunity.
[B]
Thus, the language of the statute appeared to require
that the genetic marker test had to be administered to
the father during his life. In Matter of Morningstar, an
unpublished decision, Judge Howe ruled that post-
EPTL 4-1.2 previously provided that paternity of an
out-of-wedlock child for purposes of inheritance could
be shown under a two-pronged test which required
clear and convincing evidence of paternity and the
father openly and notoriously acknowledging the child
as his own. Alternatively, paternity could be proven by
a blood genetic marker test administered to the father
which, together with other evidence, established paternity by clear and convincing evidence.
Western District Case Notes
judge also held that the expert could not testify based
on his experience inspecting other dryers because the
expert did not adequately explain how that experience
supported his conclusion or applied to the facts of this
case.
FRAUDULENT CONVEYANCE
In CNB International, Inc. Litigation Trust v. Lloyds
TSB Bank plc (08-CV-774A, 9/20/10), both parties
appealed from the bankruptcy court’s order finding
defendant liable for a constructively fraudulent transaction. The parties did not challenge the bankruptcy
court’s conclusion that the transaction constituted a
constructively fraudulent conveyance under Debtor &
Creditor Law §§273 and 274, but the defendant,
which had received the funds at issues, argued that the
bankruptcy court had erred in holding that it was a
“subsequent transferee” rather than an “initial transferee” for purposes of Bankruptcy Code §550. The district court agreed, holding that the defendant qualified
as an initial transferee, even though it was not the first
recipient of the contested funds, because the first recipient was a mere conduit that never exercised any
dominion or control over the funds. The court also held
that the bankruptcy court had not abused its discretion
in applying the federal rate of prejudgment interest, as
opposed to the New York statutory rate, in light of the
lack of uniformity in the case law as to the interest rate
that applies in fraudulent conveyance cases and the
bankruptcy court’s determination that the federal rate
of prejudgment interest fairly reflected the time value
of money.
INSURANCE LAW
In Woodworth v. Erie Insurance Co. (05-CV-6344
CJS, 9/21/10), the plaintiff insureds, whose home was
destroyed in an explosion and fire, sued to recover
amounts allegedly owed under their homeowner’s
insurance policy. The defendant insurer moved for partial summary judgment dismissing plaintiffs’ claim for
living expenses (i) beyond a 10-month period during
which a replacement house allegedly could have been
built or, (ii) alternatively, beyond the policy’s maxi-
mum 12-month period for recovery of such expenses. The court granted plaintiff’s motion to strike
defendant’s expert’s opinion concerning how long it
would take to rebuild the house because defendant
failed to disclose that opinion in its expert’s Rule
26(a)(2)(B) report, in which the expert had
addressed only the cost to rebuild. As to the 12month limitation, the court held that, although
expenses beyond 12 months might have been sought
as consequential damages resulting from defendant’s
alleged breach of the policy in failing to pay plaintiffs
the amount they needed to rebuild, plaintiffs were
not entitled to seek that relief because they had plead
no such claim in their complaint.
JURISDICTION
In Armstrong Pump, Inc. v. Hartman Co. (10-CV446S, 9/9/10), plaintiff sued to enjoin one defendant from selling certain patents to the other defendant on the ground that the sale was prohibited by
a license agreement. Among other holdings, the
court denied the defendants’ motion to dismiss for
lack of personal jurisdiction on the ground that the
first defendant’s long-term contractual relationship
with the plaintiff, a New York corporation, amounted to transacting business in New York, while the
second defendant had an office and representatives
in New York.
[B]
death DNA testing could be offered to prove paternity
without open and notorious acknowledgment, and the
Fourth Department affirmed.
However, the Second Department in Matter of Davis,
held that open and notorious acknowledgment was
required before another party could be directed to submit to DNA testing.
EPTL 4-1.2 has now been amended to provide that
paternity may be established by clear and convincing
evidence, which may include, but is not limited to, evidence derived from genetic marker testing or evidence
that the father openly and notoriously acknowledged
the child as his own.
Prudent Management of Institutional
Funds Act
Effective September 17, 2010, New York has
adopted its version of the Uniform Prudent
Management of Institutional Funds Act, which, as the
title suggests, sets standards for the management of
endowments by charitable corporations and charitable
trusts. The latter includes split interest trusts, such as
CRUTs and CRATs, after the non-charitable interest
has expired.
The Act requires that each person responsible for
managing and investing an institutional fund invest in
good faith and with the care an ordinarily prudent person in a like position would exercise under similar circumstances. The Act includes a number of
considerations which the institution should take into
account in investing.
While the standard of care is that of a “prudent person,” an individual who has special skills or expertise
has a duty to use those skills or expertise in managing
and investing institutional funds. Thus, professionals
on non-profit boards should be especially aware of the
requirements of the Act.
The Act requires that each institution shall adopt a
written investment policy setting for guidelines on
investments and delegation of management and investment functions. The document creating a gift to a
charitable institution may impose restrictions upon the
use of the funds, which may at times override the provisions of the Act.
The Act contains provisions if the institution wishes
to modify restrictions on a gift, requiring consent of the
donor or notice to the donor if a court proceeding is to
be brought seeking such modification.
Those advising any charitable organizations, and
those who sit on the boards of charitable organizations,
would be well advised to review this Act in detail, and
make certain that the institution maintains corporate
records which reflect compliance with the new Act. [B]
PAGE 11
Bar Foundation Addresses
Wide Range of Issues
By Susan Hogan
Over 50 years ago, the Erie
County Bar Foundation was created
by a few attorneys concerned about a
friend, and has since been providing
guidance and assistance to many colleagues in crisis.
Following a belief that anyone in
the profession is “one illness, one crisis, or one step”
away from needing help, the Foundation provides evidence of the lawyers’ commitment to serve others, particularly “their own.” The support is provided in many
ways and in the strictest of confidence.
Ever since I started to participate in the Foundation’s
fundraising several years ago, I began to realize how
varied the problems and solutions were, from a young
lawyer needing a loan for a first computer, to providing
employment counseling, or extending financial assistance to a lawyer or lawyer’s family faced with unexpected illness, disability or even death. In such cases, a
lawyer can seek help in confidence, or the foundation
reaches out to the affected attorney, or the attorney’s
family, and provides the needed resources, including
short-term loans. Anyone with questions or who may
need help can simply contact the Bar Association at
852-8687 and receive appropriate information and
contacts.
The Foundation is also instrumental in more generally addressing problems found in our profession. As an
example, the documentary film “A Terrible
Melancholy: Depression in the Legal Profession” produced by Buffalo attorney Daniel T. Lukasik, was
made possible in part by a grant from the Foundation.
The Foundation has also helped fund the very popular
lawyers in transition/senior lawyers’ seminars.
Young lawyers just starting their careers, lawyers
facing difficulties, either professional or personal, and
lawyers at the end of their active practice may all benefit from services offered by the Foundation. Guidance
and support are just a phone call away. There is a fulltime social worker on staff, along with Bar Foundation
board members and other professionals, who are
always available to help.
As evidenced by its long existence, the Erie County
Bar Foundation is an example of the legal community
taking care of its own. As we enter our fund raising season, we should all, as part of that community, make a
“A bend in the road is not the end of the
road...unless you fail to make the turn.”
~ AUTHOR UNKNOWN
commitment to contribute. Any amount is welcome,
100 percent participation is the goal.
The Erie County Bar Foundation specializes in helping attorneys navigate the “bends in the road.” Please
give generously to Campaign 2010.
PAGE 12
Updated Guidelines from the American Psychological
Association for Custody Evaluations
By Kenneth N. Condrell, Ph.D.
A custody evaluation is a family
study to assist the court in making
wise decisions regarding what is in
the best interests of the children
when parents separate. In theory,
custody evaluations are a great idea.
An expert takes the time to interview,
test and observe parents, children and relatives in order
to collect as much information as possible, which is
then passed onto judges who do not have the time or
the expertise to really get to know the family before
them. There is no doubt from my experience that over
the years, custody evaluations have been proven to be
helpful.
However, custody evaluations have also caused a fair
amount of misery for parents when they are not properly done. Initially, a long time ago, there were no
guidelines for how a custodial evaluation should be
conducted. Each psychologist did their own thing. But
the American Psychological Association responded to
this confusion 15 years ago and came forth in 1994
with a set of guidelines. In 2009, the APA updated these
guidelines, which will now be in effect for the next 10
years.
In this article, I will focus on some critical essentials
in the new APA guidelines and then describe a major
flaw that is showing up in custody evaluations and
compromising their helpfulness to the court.
The New APA Guidelines for Psychologists
1) The new APA guidelines are no longer written as if
they are limited to matrimonial matters. There are
many custodial conflicts in today’s society that do not
involve married parents such as:
• Grandparents struggling to maintain custody of a
grandchild they have raised because the primary
parent is incompetent.
• Couples who were only at the dating stage when
a pregnancy resulted.
• Unmarried couples with children who were in a
long term relationship.
• Couples in the process of adopting a child are
then challenged by a birth parent who had abandoned, neglected or abused the child.
• Matters of child protection.
In brief, the APA guidelines now recognize that custody disputes are not exclusively “marital” and therefore may not involve “divorce” per se.
2) The new APA guidelines now more strongly
emphasize that psychologists have the responsibility to
provide the court with valid and reliable information
and to strive to be as objective and as scientific as possible. The new guidelines therefore stress that psychologists need to rely on multiple methods of data
gathering that include psychological testing, clinical
interviews, behavioral observations, reviewing all relevant documents and interviewing extended family,
friends, acquaintances and other collateral sources.
3) The new APA guidelines continue to emphasize
that the purpose of the evaluation is to assist in determining the psychological best interests of the child. In
other words, psychologists are expected to focus on factors that pertain specifically to the psychological best
interests of the child. The new guidelines further state
that, “psychologists seek to maintain an appropriate
degree of respect for and understanding of parent’s
practical and personal concerns; however, psychologists are mindful that such considerations are ultimately secondary to the welfare of the child.
4)The new APA guidelines clearly state that when
psychologists are not conducting child custody evaluations per se, that it is acceptable for a psychologist to
evaluate one parent, or only the child, or another professional’s assessment methodology, as long as the psychologist refrains from comparing the parents.
Misleading Conclusions Can Compromise
Validity of Evaluations
There is no question that the guidelines have helped.
However, mistakes continue to be made in the way
custody evaluations are conducted and these mistakes
have lead to erroneous conclusions and recommendations regarding the best interests of the children. I
believe family law and matrimonial attorneys need to
be aware of these mistakes. I will focus on one of the
more common mistakes that can result in recommendations that can be misleading to the court.
A major error that occurs too often in custody evaluations involves the reliance on computerized tests such
as the MMPI-2 (Minnesota Multiphasic Personality
Inventory-2). Computerized tests like the MMPI-2 are
often administered in a custody evaluation because
they can be helpful and because they are based on
extensive scientific research. Nevertheless, despite the
scientific foundation of the MMPI-2 and other computerized personality test, the actual interpretation of the
scores from such tests can be interpreted in different
ways. The interpretation often is determined by the
clinical judgment of the psychologist conducting the
evaluation.
For example, a high PD score on the MMPI-2 can
indicate a psychopathic personality. However a high Pd
score can also indicate that a person is angry, irritable,
dissatisfied, energetic, creative and non-conforming. I
have seen psychologists latch onto one negative interpretation of a high PD score (antisocial personality) and run
with it to the detriment of the parent being tested. This
is wrong. The right way to handle scores like this is to
look upon them as an educated guesses that need to be
verified by the administration of a second personality
test that is different from the MMPI-2 and by also looking into the lifestyle of the parent being examined. In
other words, two questions need to be asked by the evaluating psychologist regarding significant test scores.
One, is there a pattern between two different tests that
supports a negative conclusion concerning a parent?
Two, is there evidence in the life of this parent that this
negative conclusion actually exists?
To summarize, a major mistake that occurs in custody evaluations is when the evaluator jumps to concontinued on page 18
PAGE 13
Nominations Sought for Bar Association Leaders
The Bar Association of Erie County is seeking active,
involved leaders to run for officer and director positions
for the 2011-12 year.
The Nominating Committee chaired by president
Scott M. Schwartz is now accepting applications from
interested members of the Bar Association of Erie
County for the positions of vice president, deputy
treasurer and director. You may nominate yourself or
other members you feel would be qualified and willing.
Candidates should be able to demonstrate a history of
activity within the organized bar.
Vice President
The vice president performs the duties of the president if he or she is absent or unable to perform the
duties of the office. The vice president serves a one year
term followed by a one-year term as president. The
president is the chief executive officer of the Association
and presides at all meetings of the Association and all
meetings of the board of directors. The president is the
Association’s spokesperson.
Deputy Treasurer
The deputy treasurer is a member of the Finance
Committee and performs as treasurer in his or her
absence or inability to perform the duties of the office.
The deputy treasurer serves a one-year term followed
by a one-year term as treasurer. The treasurer is the
Association’s chief financial officer.
Director
The affairs of the Association are managed by a 16member board of directors. Four directors rotate off the
board annually and four new directors are elected.
Directors are elected to a three-year term and are not
eligible for re-election as a director until the expiration
of one year after he or she has left that position.
Interested persons should send a resume along with
the position title to: Nominating Committee, Bar
Association of Erie County, 438 Main Street, Sixth
Floor, Buffalo, New York 14202. The Nominating
Committee is actively soliciting nominations from the
membership.
Nominating Committee
Scott M. Schwartz, Chair
Richard F. DiGiacomo
James M. Shaw
Gerald P. Gorman
John J. Molloy
Michael A. Brady
Cheryl Meyers-Buth
Recycle your Bulletin
PAGE 14
News from Kent, Our Sister City in Great Britain
By Jonathan Smithers
Editor’s Note: Jonathan Smithers
penned this piece after spending three
weeks of vacation time in the U.S.,
including several American beaches.
For the Englishman, the question
of beach attire can be something of a
quandary.
In his own country, it is less of a worry, as the probability of spending any time less than fully attired is
rather remote.
On the near continent and around the
Mediterranean, however, anything goes. Styles are well
and truly mixed although one can normally spot the
pasty Englishman striding proudly amongst his continental cousins.
It is only as one ventures further overseas that matters are less certain. Handy guidebooks will give advice
on matters of currency, asking for directions, culinary
delights and many other irrelevant things but rarely
venture into acceptable beach attire.
Last summer, I spent three weeks in various parts of
your great continent: DC, LA and Las Vegas, from the
sublime architecture of the Capitol, the Lincoln
Memorial and Washington Monument to the plastic
statuary of Caesar’s Palace and the elegance of the
Bellagio Fountains via the eclectic Venice Beach and
the Goldfish Bowl of Hollywood and Beverly Hills.
Turning to my earlier dilemma, it was in Venice
Beach with the mercury rising to the point where lying
in the sand and paddling in the freezing pacific seemed
an acceptable pastime that I strode from our holiday
apartment, past the Muscle Beach enclosure towards
the gently drifting sands.
I tend to travel light so as not to be over burdened
with apparel on my journey of just a few hundred
yards. My teenaged daughters kept a certain distance,
such is the general embarrassment of parents but
unusually, on this occasion, my wife also strode a few
paces ahead.
We were followed by four young gentlemen whom I
observed were wearing trousers which were seemingly
held up by magic, belted somewhere around the upper
thigh. One such called out to me, “Hey dude, nice
Cruising with Your
Friends from the Bar
Plan now to enjoy an exotic escape to Belize, Costa
Maya and more! Join your colleagues for a western
Caribbean cruise aboard the Holland America
Ryndam, sailing from Tampa, February 27 to March
6, 2011. Ports include Key West, Belize, Roatan,
Honduras, and Costa Maya, Mexico.
The cost for a balcony stateroom including
taxes/port charges, round trip transfers from airport to
pier, and round trip airfare from Buffalo is just $1,943
per person. With a Dutch worldwide exploration
theme, the décor of the ms Ryndam features art and
artifacts from the 17th, 18th, and 19th centuries.
Guests will encounter elegance at every turn while also
escaping another notoriously frigid February in
Buffalo. For more information or to book your escape
today, contact Ann Blask at Visions Travel, 667-1459.
A $700 deposit per person is needed by November 15
to hold your reservation and guarantee the price; if
space remains available after the deadline, it may be at
a higher rate.
Become a fan of your
favorite Bar Association
on Facebook and join
our group on LinkedIn.
PAGE 15
MBAWNY in the Community
The Minority Bar Association of Western New York,
Inc. recently held its 28th Annual Scholarship and
Awards Dinner at the Buffalo Niagara Convention
Center. The Association is celebrating its 40th anniversary this year and the program included comments
from numerous trial and appellate court judges, as well
as proclamations and letters from political officials,
including Governor David A. Paterson.
Hon. John F. O’Donnell, Hon. Mark A. Montour, BAEC president Scott M. Schwartz and MBAWNY president Sheldon K. Smith
Barbara M. Sims and Christopher L. Hayes
Hon. Lisa Bloch-Rodwin, Hon. Betty Calvo-Torres, Jennifer
Parker and Hon. Barbara Howe
George M. Hezel, Booker T. Washington and former BAEC
director Oliver C. Young
Amir McKelvey, Frank Mesiah, Terrence D. McKelvey and
former BAEC president Richard F. Griffin
“Remember…that
the fellowship of
human beings is
more important than
the fellowship of race
and class and gender
in a democratic society.”
~ MARIAN WRIGHT
EDELMAN
BAEC director Kevin W. Spitler, Hon. Betty Calvo-Torres and Mark Spitler
Photo by Glenn Edward Murray
Eric Walker and Jennifer Metzger
PAGE 16
Champions for Justice Bash Raises Funds for VLP, LSED
By Amanda Warner, Eighth Judicial District
Pro Bono Coordinator, ProBonoNY
If you were unable to attend the
recent 2010 Champions for Justice
Bash fundraiser for the ECBA
Volunteer Lawyers Project, Inc.
(VLP) and Legal Services for the
Elderly, Disabled or Disadvantaged
of WNY (LSED), you missed a great party!
The evening of celebration at the Rich Renaissance
Atrium started with the VLP V.I.P. Reception, where the
following attorneys and law firms were recognized for their
financial and pro bono contributions to VLP this year:
VLP Benefactors (donation of $7,500 or more):
Cellino & Barnes, Hodgson Russ, LLP and
Phillips Lytle, LLP.
VLP Partners (donation of $3,500 or more):
Damon Morey, LLP, Jaeckle, Fleischmann &
Mugel, LLP, and Lipsitz Green Scime Cambria,
LLP.
2010 Award
Recipients:
Hon. Paula L. Feroleto
(Judicial Award); Catherine
Nagel, (VLP “V.I.P.” Award);
Brown & Kelly, LLP and
Damon
Morey,
LLP
(Law Firm Commitment
Awards); Michael Anton
Sciortino, (Attorney of the
Morning, Landlord-Tenant);
Suzanne Tomkins, (Haven
House Project, Assistance to
Domestic Violence Victims);
Alan Birnholz, (Family Law); Brian Welsh,
(Divorce); Barbara Ridall, (Bankruptcy); Leah
Nowotarski, (Unemployment Benefits Claims);
Kathleen Devereaux, (Income Tax Controversy);
Jason Boticelli, (Litigation); Rachel Baldassaro,
(Ruth Ritchell Memorial Award , In-House Volunteer);
Phillips Lytle, LLP (Immigration).
Pictured at left are Robert B.
Fleming, Jr., partner at Hodgson
Russ, LLP; Michael Shanahan;
and Philip A. Perna, member of
VLP board of directors and president/CEO of Supermarket
Management, Inc.
VLP and ProBonoNY 2010 Pro Bono Award recipients
include, left to right, Marylou Roshia, (member of VLP
board of directors and partner at Damon Morey LLP, winner of the Law Firm Commitment Award); Barbara Ridall,
(winner of the Bankruptcy Award); Jason Boticelli, (Colucci
& Gallaher, P.C., winner of the Litigation Award); Suzanne
Tomkins, (clinical professor and co-director of Clinical Legal
Education at UB Law, winner of the Haven House Project
Award); Michael Anton Sciortino, (assistant director of
information technology services at the School of Public
Health and Health Professions at UB, winner of the
Attorney of the Morning Award); Hon. Paula L. Feroleto
(Administrative Judge for the Eighth Judicial District, winner of the Judicial Award); Melinda Disare, (partner at
Damon Morey, LLP, winner of the Law Firm Commitment
Award); Brian Welsh, (partner at Siegel Kelleher & Kahn,
LLP, winner of the Divorce Award); Leah Nowotarski, (winner of the Unemployment Benefits Claims Award); Patricia
Ciccarelli, (partner at Brown & Kelly, LLP, winner of the
Law Firm Commitment Award); Rachel Baldassaro, (winner
of the Ruth Ritchell Memorial Award); and Kathleen
Devereaux (winner of the Income Tax Controversy Award).
Photos by Gregory Stewart, VLP Supervising Attorney
VLP Benefactor law firms receiving Certificates of
Appreciation included, left to right, Ryan K. Cummings,
partner at Hodgson Russ, LLP; Hon. Paula L. Feroleto,
Administrative Judge of the Eighth Judicial District; William
J. Brennan, partner at Phillips Lytle, LLP and member of VLP
board of directors; and Robert M. Elardo, managing attorney/CEO of ECBA Volunteer Lawyers Project, Inc.
Concetta Ferguson, associate vice president of People
Inc. is pictured above with Tracy Scott Harrienger.
Pictured above are Geanne M. Blazkow and Monika Bhatt,
associates at Hodgson Russ, LLP.
VLP Partner law firms receiving Certificates of Appreciation
included, left to right, Robert L. Boreanaz, senior partner
at Lipsitz Green Scime Cambria, LLP; Melinda G. Disare,
partner at Damon Morey LLP and VLP board vice president;
Hon. Paula L. Feroleto, Administrative Judge of the Eighth
Judicial District; David G. Brock, partner at Jaeckle
Fleischmann & Mugel, LLP; and Robert M. Elardo, managing attorney/CEO of ECBA Volunteer Lawyers Project, Inc.
Staff members from LSED include, left to right, Joanna
Esquilin, Nicole Blackwell and Sarah R. Galvan.
PAGE 17
Young Attorneys Show Up in Force for Opening Event
By William P. Moore, Chair
Young Lawyers Committee
The September kick-off event for
the Young Lawyers Committee was
an absolute success! We had over 50
lawyers in attendance. Even our
president, Scott Schwartz, squeezed
through the door to greet the attorneys in attendance. We had large showings from
Damon Morey, LLP, Lipsitz Green Scime Cambria,
Hodgson Russ and Phillips Lytle. It was a good mix of
attorneys from our community: several DAs, solo practitioners, brand new attorneys and U.S. attorneys. It
made for a great evening at Venue. I would like to
thank Elizabeth Midgley, Brittany Penberthy and
Lenny Sette-Camara for their hard work. I would also
like to thank Counsel Press for sponsoring the event
and the crew at Venue for accommodating us. In all,
the sentiment seemed to be, why don’t we do this
more? I agree and we will!
As this issue went to press, plans for an October 27
event were underway, a nuts ’n’ bolts program focused
on session running a solo practice from A to Z. Kevin
Condon was scheduled to present.
It is important to have a social side to the committee
as well as an educational component with broad ranges
of topics. That is what we intend to bring you this year.
Remember that all committee meetings are the
third Friday of each month at 12:15 at Bar
Headquarters.
Join us, lend your thoughts and let’s continue
to build this committee.
For future reference, we intend to plan another social
in November. This one will likely involve an invitation
Pictured above are Paul Parisi, John Gerken and Renee M.
Falbo.
Robert C. Brucato, Jr., of Counsel Press, sponsor of the
event, is pictured with James J. Nash, David M. Block and
John E. Abeel.
Pictured above are Richard E. Updegrove, Stephanie A.
Mack, Carrie R. McElroy and Colleen M. Murphy.
to the judiciary to join us. It’s a great opportunity for
any young lawyer to meet the judges in our community. You can expect to hear more about this soon.
December will bring the YLC two events. First, we
are feverishly planning the Moot Court Competition.
Anyone who is interested, please e-mail me at
[email protected]. This is a great program and
really the crown jewel of our committee. It showcases
what we do for high school students who are potentially interested in the legal field. They look to the
young lawyers for guidance and if they see that we are
involved and enthusiastic about our profession, it can
only strengthen their determination to join us in the
future.
Finally in December, we will plan an event – a challenge – for the young lawyers: a toy drive that will
challenge the large firms, small firms, DAs, U.S. attorneys and any solo practitioner to unite and give. We
will tally your contributions and whoever has the
largest contribution will be featured in the January
Bulletin. We are in the preliminary stages of planning
and determining a worthy group to receive the toys.
While we usually donate to the same groups, I invite
you to think out of the box and e-mail me with any
suggestions you have for a worthy charity
([email protected]). This will be a great challenge
and opportunity for us to give back at a time of year
when something so small can mean the world to a
child. As a father of two, it’s the little things that count
and bring the most joy to the young. Remember that
they “believe” and it is our duty to keep that alive.
BAEC Young Lawyers Committee chair William P. Moore is
pictured above with YLC membership chair Elizabeth M.
Midgley.
BAEC vice president Arthur A. Russ, Jr., Jennifer A. Ehman,
E. Meghan Barnett and BAEC president Scott M.
Schwartz were all in attendance at the opening event.
I think Sinatra said it best: “The best is yet to come,
and babe, won’t that be fine…You think you’ve seen the
sun, but you ain’t seen it shine.” See you at the next
Photos by Susan L. Kohlbacher
meeting!
Also in attendance were J.P. Touhey, Lisa D. Primerano and
Rebecca M. Stadler.
Michael Smith, Rene Juarez, Ashley R. Small, Michael H.
Kooshoian and James Gardner enjoy themselves at the
social.
PAGE 18
Champions for
Justice Bash
Following the awards reception, over 300 people
from the legal community joined in the celebratory
bash in honor of the volunteers and staff of VLP and
LSED. Guests enjoyed complimentary food and drink
ranging from sushi, dumplings and stir fry to tortellini,
pesto and carbonara, a premium open bar to a Belgian
chocolate fountain and an international flaming coffee
station. There was plenty of space for guests to mingle
leisurely with colleagues and check out the fantastic
gift opportunities through silent and basket auctions, as
well as the very popular “Judicial Branch,” where
everyone is a winner of a gift certificate from a local
merchant.
At the time this article went to print, the numbers
from this year’s Bash were still being counted; however, the 2009 Champions for Justice Bash raised more
than $56,000. With those funds, LSED and VLP were
able to provide services to some of our area’s most vulnerable people: the elderly victim of abuse, the family
at risk of losing their home to foreclosure, the father
wrongfully denied unemployment insurance benefits.
During these hard economic times, many families are
losing their incomes, homes and investments. Often,
the services provided by agencies such as VLP and
LSED are the only barrier that stands between them
and abject poverty. These services are needed now
more than ever.
To everyone who attended this year’s reception and
Champions for Justice Bash, VLP and LSED thank you
for your continued support of our agencies and the clients
we serve. We hope to see you again next year!
[B]
Things You Need to Know
Special Notice from the U.S. Attorney’s Office
If any attorney has information about the following
scheme or believes that he or she or a colleague has
been a victim or intended victim, please contact
Criminal Chief, Assistant U.S. Attorney Joseph Guerra
at 843-5824.
Example of the scheme: a law firm is contacted by
an individual who claims to be a representative from a
business entity (“the putative plaintiff”) which is owed
a substantial sum of money by another individual or
business (“putative defendant”). The putative plaintiff
indicates that it would like the law firm to provide representation during litigation. Before any official paperwork is sent, the putative plaintiff indicates that the
putative defendant is ready to settle and it will pay
through the law firm. The firm is provided with an offi-
The “official checks” appear to be authentic and, in
at least one instance, a Web site was created for their
“company” that made it look like a multi-million dollar/year client. They pirated contract information from
legitimate companies to add to their apparent legitimacy. This is a well-executed scheme specifically targeting law firms in WNY. Several law firms have
In Memoriam
“Memory is a way of holding on
to the things you love,
the things you are, the things you
never want to lose.”
Are You An Attorney
Struggling With
Depression?
~ Kevin Arnold
We wish to honor the memory of the following member of our Bar Association. Memorial
Updated Guidelines for
Custody Evaluations
cial-looking check to cash and instructed by the putative plaintiff to cash the check, deduct legal fees and
wire the remainder of the funds to an overseas bank.
The check is counterfeit.
gifts to the Erie County Bar Foundation are
an excellent way to remember friends and
colleagues, as gifts are used for the benefit
of the entire profession.
If so, you’re definitely not alone. A recent
Johns Hopkins study of 108 occupations
found that lawyers topped the list of those
who suffered from depression. Attorneys
were found to suffer from depression at a
rate of four times that of the general population.
Depression is a treatable illness and the
right combination of medications and therapies can significantly improve the quality of
life for those who suffer from it.
clusions on certain test scores without verifying this
score by the administration of a different personality
test and by checking out to see if there is evidence in
the parent’s life to support the detrimental conclusion.
Help and support are just a phone
call away. The Lawyers with Depression
Support Group meets monthly to share
stories and fellowship. The group meets every
other Friday (except holidays). See the calendar on the back page for meeting
dates. Meetings are held at Bar
Headquarters, 438 Main Street, Sixth Floor,
at 12:30 pm and lunch is provided. There is
no need to pre-register.
Custody evaluations are very challenging for mental
health professionals to conduct. They involve many
hours of work and thoughtful consideration of many
factors. Those of us who conduct custody evaluations
must do everything possible to remain fair and objective. And attorneys need to be aware of mistakes that
can compromise the validity of the recommendations
found in a custody evaluation report.
Dr. Condrell is a clinical psychologist and author
practicing in Williamsville, N.Y.
George D. Crofts, Jr.
If you or a colleague are struggling with
depression, there is no need to suffer in
silence. For further information, visit
www.lawyerswithdepression.com or contact
Daniel T. Lukasik at 852-1888. All calls are
strictly confidential. We invite you to join us
and share your story.
Contributions to the Erie County Bar Foundation provide an excellent
vehicle for recognizing and honoring members of our profession.
Memorial gifts to the Foundation become a lasting tribute to the entire
legal profession, as funds are used exclusively to assist attorneys and
promote understanding of our legal system.
The Foundation gratefully acknowledges
the following contributions:
In Honor of the attorneys who were
named to Who’s Who in Law by
Business First:
Jeffrey M. Freedman
In Memory of Charlotte Bender
(Mother of Thomas and Paul
Bender):
Personius Melber LLP
In Memory of George D. Crofts, Jr.:
Bar Association of Erie County
Coleman Volgenau
PAGE 19
Alternative Dispute Resolution and Islamic Legal Practice
By Nadia Shahram
In 2003, a Texas appeals court
referred a divorce case to a local tribunal called the Texas Islamic Court.
In 2005, a federal appeals court in
New Orleans affirmed an award in
employment arbitration by the
Institute for Christian Conciliation,
which uses Biblical teachings to settle disputes. And
state courts routinely enforce the decisions made by a
Jewish court, known as a bet din, in commercial and
family law cases. (Adam Liptak, “When God and the
Law Don’t Square,” February 17, 2008.)
matrimony. However, many women go to the mosque
for the sole purpose of getting help in a domestic abuse
situation. While the goal of Islamic mediation between
married couples is usually reconciliation, it is most vital
for the heads of mosques to recognize abuse and not
send the women back after giving verses from the holy
book interpreted as if these women should build tolerance for the abuse.
Muslims also go to their Imam so they may stay
straight on their path to God in the afterlife. They want
moral guidance as well as wisdom and counsel.
Although religion is very important to the majority of
Americans, they separate their legal from their religious
matters. Even devout Christians or Jews who try to
apply religious principles to their everyday lives would
do so privately without discussions with the mediator.
And no one would expect the mediator, unless they sign
up for a Christian mediation service, to quote scripture
in the session. A 2003 Gallup poll found that 61 percent
of Americans felt that religion was very important to
them, and 24 percent said it was fairly important.
(Frank Newport, “A Look at Americans and Religion
Today,” George E. Irani and Nathan C. Funk, “Rituals
of Reconciliation: Arab Islamic
Perspectives,” Arab Studies
Quarterly. Vol. 20, Issue 4.)
Muslims have a strong preference for the use of alternative dispute resolution methods within their communities because the cultural and religious contexts of
Muslim dispute resolution practices emphasize the use
of familiar faces within their known community. More
access to alternative dispute resolution is needed for
this population, since the American Muslim population
has increased drastically. (Smith, “Patterns of Muslim
Integration.”) According to the Hartford Institute for
Religious Research, about 25 percent of Muslims in the
United States are of Arabic origin; exact statistics are very difficult to obtain. Estimates of
the Muslim population in the United States
range from 2,000,000 to 7,000,000.
“...it is most vital for the
The Western model of mediation which has
heads of mosques to
been steadily gaining in popularity as a better
recognize abuse and
way to settle conflict for the last several years
has several distinguishable characteristics from
not send the women
the Islamic way of mediation. Yet our Western
back after giving
model of mediation does not attract many
American Muslims as an alternative to settle
verses from the holy
conflict. The challenge, then, is to explore the
book interpreted as
possibility of re-examining secular mediation
as a tool and option for Muslims in the United
if these women
States by taking into account the necessity of
should build tolerance
culture and religion to be a force for peace.
Americans will focus on each
party’s choices, rights, goals and
satisfactions, and they will tend
to seek a mediator who is neutral
and possesses the expertise to
guide them in dealing with the
other individuals involved.
Americans feel important attributes of a mediator are professional knowledge, neutrality and
impartiality, lack of influence
from either side by a prior influential relationship or knowledge
for the abuse.”
of the facts, ability to focus on
George E. Irani and Nathan C. Funk, intereach individual’s needs, international relations specialists, have established
ests, desires and rights, and
that, despite modernization, Arab-Islamic culmaintaining an emphasis on
tures still differ from Western societies. It
achieving
a
fair
deal
for
both sides.
appears that Arabic roots tend to dominate Islamic culture worldwide. Middle Easterners are loyal to family
Traditional Muslims in the United States desire to
units and kin-based collectives in most social, ecoresolve their conflicts, especially family conflicts, within
nomic and political community functions and the basic
the parameters of their faith’s religious teachings.
unit of identification for the individual is their family
When these parameters are not clearly defined, indirather than the state. The Arab-Islamic culture is also
viduals and couples look to the mosque and conservapatriarchal; the father’s authority is an integral and
tive community members for mediation based on
powerful part of both decision-making and the father
Ijtihad (interpretation) of their duties to one another.
usually acts as a referee for family disputes and repreThis is similar to the Christian Conciliation Service that
sents the family within the community.
provides mediation using Christian principles.
Therefore, it is vital that those members who are
An extensive study of American Muslims by Yvonne
approached for religious consultation on marital rights
Yazbeck Haddad and Adair T. Lummis showed that the
do not misinterpret the teachings of the Koran.
role of the head of the mosque (Imam) is different in
the United States than it is in the rest of the Muslim
Should the government courts defer to religious courts
world, where his primary duty is to lead prayers. In the
in settling marital conflicts at the time of a divorce? The
United States, it is the Imam instead of the father who
answer may depend on whether the people involved
counsels and arbitrates family disputes, and oversees a
authentically consented to religious adjudication,
mosque where the economic, political, social and reliwhether they are allowed to change their minds, and
gious functions of a society take place.
whether the decisions of those tribunals are offensive to
fundamental concept of the notion of fairness.
Following Faith in U.S. Requires
Knowledge of Both Cultures
American Muslims want their Imam to have knowledge of the Islamic faith, Islamic law, and counseling
skills. (Yvonne Yazbeck Haddad and Adair T. Lummis,
“Islamic Values in the United States,” New York:
Oxford University Press, 1987.)
They also want someone who understands American
society and will assist them with following their faith in
a non-Muslim society with full recognition of gender
equality. These are very high expectations to fulfill by
these religiously appointed Imams who are usually
born and raised in Islamic traditions where they lead
prayers and give religiously-based and supported
advice.
Women who seek help from within the Muslim community usually are seeking counseling as to their marital duties and obligations within the parameters of
what they understand of Islam. And because Muslims
emphasize collective rights and values over individual
rights, women are encouraged to return back to the
As a side note, growing up in Iran during the previous regime and in a culture in which religion was not a
determinative factor of one’s exclusion or inclusion, I
had the good fortune of having been exposed to the
great benefit of seeing how wise elders within the communities advised the members who consisted of Jewish,
Baha’i, Christians, Muslims and several other sects
with their own distinctive characteristics but who
always identified themselves as Persians. It was only
here in my adopted country that I learned about Islam
verses Judaism and other religions.
Sometimes when I am mediating a high-conflict
divorce or dealing with my own two teenage daughters,
I wish I had my wise grandmother to ask for guidance.
Luckily, I have the benefit of my wise parents living in
LA. However, the last time I called to ask advice on a
separation contract in which the husband – after signing – was refusing to perform one of the agreed upon
articles, my precious parents suggested that the wife
could always sue the husband on the theory of “specific
performance” or “breach of contract!”
[B]
Domestic Violence
is NEVER Okay.
Domestic abuse doesn’t discriminate. It happens within all age ranges, ethnic backgrounds,
and financial levels. If it happens once, it will
happen again. The abuse may occur during a
relationship, while a couple is breaking up, or
after a relationship has ended.
Despite what many people believe, domestic
violence is not due to an abuser’s temporary
loss of control over his or her behavior. In fact,
violence is a deliberate choice made by the
abuser in order to take control of a spouse or
partner.
Look What You Made Me Do! In spite of
the abuser’s efforts to “blame the victim,”
domestic violence is NEVER your fault. If you
or a loved one are suffering, help is just a phone
call away. Please call 852-1777 in complete
confidence today to be referred to a colleague
who can help.
Don’t Suffer in Silence.
Let Us Help You Find Your Voice.
PAGE 20
Bench and Bar
Griffin
Former BAEC president Richard
F. Griffin has been appointed to the
executive committee of the
Alternative Dispute Section of the
New York State Bar Association.
Griffin will serve as the representative for the Eighth Judicial District.
Counsel to Kavinoky Cook LLP, he
focuses his practice on alternative
dispute resolution (ADR).
Phillips Lytle LLP received the Amherst Chamber
of Commerce Commitment to Excellence Award at the
group’s 2010 Business of the Year awards banquet. The
firm was also recognized by the Volunteer Lawyers
Project’s Immigration Project for pro bono work done
by several Phillips Lytle attorneys on behalf of lowincome immigrants.
Assistant U.S. Attorney Joseph M.
Tripi has received the Attorney
General’s Award for Outstanding
Contributions by a New Employee.
He was honored specifically for his
“outstanding efforts to dismantle
gang activity” in Buffalo. Tripi forTripi
merly served as an assistant district
attorney in Nassau County. Assigned
to the Narcotics and Violent Crimes Division, he has
spent the last two years working to reduce gun violence
in Buffalo. His discussions with Buffalo police officers
and others led to the establishment of a task force
charged with investigating gang activity on Buffalo’s
West Side, resulting in indictments of more than two
dozen members of the 10th Street Gang on racketeering and murder charges. Tripi is a graduate of Canisius
College and the University at Buffalo Law School. He
received the award in Washington D.C.
Erin Cole has been named an
associate at Cohen & Lombardo,
where she will concentrate her practice in insurance defense. Cole formerly focused her practice on workers’ compensation defense. She
earned her JD cum laude from the
Cole
University at Buffalo Law School,
where she served as an associate editor of the Buffalo Women’s Law Journal. While in law
school she clerked at the U.S. Attorney’s Office for the
Western District of New York in Rochester, and for a
workers’ compensation defense law firm. Cole received
a BA magna cum laude from SUNY Oswego.
Frank C. Muggia has been
named a partner and Tristan D.
Hujer an associate with the Buffalo
office Harris Beach PLLC. Muggia
was formerly the named partner of
Muggia & Associates in Orchard
Park, where Hujer was an associate.
Muggia
Muggia practices in the firm’s business & commercial litigation and
corporate practice groups. He has more than 20 years
of experience in trials and arbitrations involving product liability, motor vehicle, premises liability and business matters, as well as complex commercial and corporate transactions. He is also experienced in veterinary law and is a member of the American Veterinary
Medical Law Association. Admitted to practice in both
New York and Massachusetts, Muggia received his JD
from Boston University School of Law and his BA from
Middlebury College.
Tristan D. Hujer practices in the business & commercial litigation practice group. He counsels and litigates on behalf of two national rental car companies
and their affiliate companies and insureds. He also litigates commercial cases involving non-compete agreements, requests for injunctive relief, and declaratory
judgment actions. A member of the New York State
Defenders Association, Hujer received his JD from the
University of Maine School of Law and his BA cum
laude from Alfred University.
Timothy W. Hoover, an attorney
with Phillips Lytle LLP who chairs
the BAEC’s Federal Practice
Committee, has been appointed to
the executive committee of the New
York State Bar Association’s Criminal
Justice Section, where he will serve
Hoover
as a “member-at-large” of the governing panel. Hoover focuses his
practice on litigation in state and federal courts,
including white collar criminal defense matters, as well
as government and internal investigations. He earned
his JD from Vanderbilt University School of Law.
Kelly E. Marks, an associate with
Phillips Lytle, has been elected a
member of Buffalo’s Irish Classical
Theatre Company’s board of
trustees. A magna cum laude graduate of the Albany Law School of
Union University, Marks focuses her
Marks
practice in federal and state taxation.
She is experienced in working with
tax-exempt organizations, acquisitions and dispositions, partnerships, executive compensation and tax
audits, along with cross-border transactions.
Craig R. Bucki, an attorney
with Phillips Lytle, has been
named New York State Democratic
Committeeman representing the
148th Assembly District. He will take
part in party policy discussions and
make endorsements for statewide
public offices. Bucki focuses his
Bucki
practice on litigation involving dtate
and municipal government, public authorities, and
similar entities. He served as campaign manager for
Deborah Bruch Bucki for Amherst Town Board and
Amherst Town Clerk. A graduate of Columbia
University School of Law, Bucki earned his BA magna
cum laude from Yale University.
Speaking Out
About the Law
The Bar Association wishes to thank the following members of the Speakers Bureau who
volunteered their time to help make particular
areas of the law more comprehensible to students and other lay people in western New York.
Stephen R. Silverstein
Health Care Proxy, Durable
Power of Attorney
Erie Community College
Craig R. Bucki
Law as a Career
Edward Town Middle School
If you haven’t already done so, why not consider becoming a member of the Speakers
Bureau? Take the opportunity to share your
valuable insight on the legal topics of your
choice. Not only is speaking out about the law a
great community service, but it is also an effective practice-building technique. Call Susan
Kohlbacher at the Bar Association (852-8687
ext. 21) to sign up today!
PAGE 21
News from Kent
Speedos!” I might have heard a little laughter – but
may have been mistaken. I paused slightly, turned and
greeted them – one would expect no less from an
Englishman – with the words “thank you so much,
how kind.” They were not particularly menacing but,
apart from a beach towel, I had nothing else for them
to take so calculated that I was reasonably safe.
Law Line Educates
Public on Legal Issues
Since 1997, The Law Line has engaged the
minds of thoughtful western New Yorkers who
tune in to WNED-AM (970) at 10:00 on
Saturday mornings. Host Mike Desmond talks
to lawyers and judges from our legal community on wide-ranging topics related to the law.
The program provides a valuable public service
that reaches about 4,000 listeners each week.
We appreciate the time that the following
members of our Association have taken to educate the public about legal matters by volunteering their time to appear on The Law Line.
My daughters were mortified, not only was I wearing
inappropriate clothing for the circumstances, but that
it had drawn ironic humour from some local residents.
The Bar Association
of Erie County is pleased
to welcome the
following new members:
If you are still with me, you may be wondering what
parallel one might draw to the life of a lawyer but it is
simply this: that despite what others think, you must
be prepared to plough your own furrow. Public opinion, like fashion, comes and goes, but the ability of the
individual to follow his or her own conscience (not just
unwillingness to spend money on infrequently used
swimwear) is an essential quality for any lawyer. Doing
the right thing sometimes requires some determination
or in my case, being oblivious to all criticism, constructive or otherwise.
Patrick R. A’Hearn
I think I may try my experiment on the Italians
next year – as they say, “When in Rome, do as the
Romans do!”
[B]
Welcome
New Members
Rosanna Berardi
Beat the Holiday Border Blues
Sarah Antos
Glenn Pincus
Criminal Law/Minors
Ashley M. Arcangeli
Dale J. Bauman
Edward A. Betz
Jennifer P. Stergion
City of Buffalo Property
Ownership
Jessica Brown
Michael Cimasi
Erin E. Cole
Daniel K. Comerford
Kathleen Lynch
Mortgage Fraud Task Force
Candace Filipski
Chloe Hall
Rebecca Koval
Trini E. Ross
John LaMancuso
Donald M. Lewinski
Glenn R. Morton
William J. Hochul, Jr.
Christopher G. Murrer
Ann M. Nichols
Eric G. Paul
Glenn Pincus
Nicholas A. Romano
Scott M. Schwartz and
Nelson F. Zakia
Judicial Candidate Ratings and
the Process of the Bar Association
of Erie County
Susan Rueckwald
Aaron M. Saykin
Andrew J. Stimson
Erin M. Brady Swenson
Michael A. Turbush
The Law Line is underwritten by the Erie
County Bar Foundation and the Lawyer
Referral and Information Service of the BAEC.
If you would like to appear as a guest on the program, please contact Katherine Bifaro at 8528687 or by e-mail at [email protected].
Charles von Simson
Jordan Zeranti
It’s great to belong to something this good.
Things You Need to Know
already been victimized by the scam and others have
been targeted as potential victims.
***
BAEC member Bryant Kurtzman of Niagara Falls
writes: “If you have a time sensitive document to be
recorded at the Erie County Clerk’s Office, you should
take it to the office directly for recording. If you mail it,
there is a six-week backlog and it won’t be recorded for
at least six weeks. This is important to let bar members
know.”
[B]
PAGE 22
ERIE INSTITUTE OF LAW
PROVIDING CONTINUING LEGAL EDUCATION FOR YOUR PROFESSIONAL ADVANTAGE
PLEASE NOTE: The Erie Institute of Law is unable to issue partial credit for seminars, except for multiple session programs such as the Tax and
Leadership Institutes. If you have questions about whether a program qualifies for partial credit, please call Mary Kohlbacher at 852-8687.
Date/Time/Location
Topic
CLE Credits
Price
Tuesday, November 2, 2010
8:30 a.m. - 4:15 p.m.
Millennium Hotel
2040 Walden Avenue
Cheektowaga, NY
57th Annual Tax Institute (FULL DAY)
(Live Seminar)
12 credits
(total)
$350 members and
non-members
Wednesday, November 3, 2010
8:30 a.m. - 1:00 p.m.
Millennium Hotel
2040 Walden Avenue
Cheektowaga, NY
57th Annual Tax Institute (HALF DAY)
(Live Seminar)
12 credits
(total)
$350 members and
non-members
Friday, November 5, 2010
12:30 p.m. - 3:30 p.m.
Genesee County Courts Facility
Grand Jury Room, 2nd Floor
Routes 63 and 5,
Batavia, NY
2010 An Ethical Year in Review
(Live Seminar)
3.5 credits
$70 members and
non-members
$60 Gov’t employees
Wednesday, November 10, 2010
1:00 p.m. - 2:00 p.m.
Adelbert Moot CLE Center
438 Main St.
Buffalo, NY
Drafting Management and Exit Strategy
Provisions in Limited Liability Company Operating Agreements
(Noonday - Presented by the Corporation Law Committee)
1.0 credit
$20 members
$25 non-members
Friday, November 12, 2010
1:00 p.m. - 2:00 p.m.
438 Main St.
Buffalo, NY
The SSA Application Umbrella
(Noonday - Presented by the Committee for the Disabled)
1.0 credit
$20 members
$25 non-members
Thursday, November 18, 2010
1:00 p.m. – 2:00 p.m.
438 Main St.
Buffalo, NY
Fundamentals of ERISA Benefit Claim Litigation
(Noonday - Presented by the Federal Practice Committee)
1.0 credit
$20 members
$25 non-members
Saturday, November 20, 2010
9:00 a.m. - 12:00 p.m.
University at Buffalo Law School
106 O’Brian Hall
Amherst, NY 14260
Significant Bankruptcy Decisions in the Western
3.0 credits
District of New York
(Live Seminar - Presented by the Commercial & Bankruptcy Law Committee)
Mail or fax to: Erie Institute of Law • 438 Main Street, Sixth Floor, Buffalo, New York 14202
ERIE INSTITUTE OF LAW
REGISTRATION FORM
$65 members
$100 non-members
$65 UB Law Alumni
(716) 852-8687 • Fax (716) 852-7641
Name ______________________________________________________________________________________________________
Please register me for the following
Erie Institute of Law sponsored events:
Firm ______________________________________________________________________________________________________
1. ________________________________________
Address ____________________________________________________________________________________________________
2. ________________________________________
3. ________________________________________
City ________________________________________________________ State ____________ Zip ________________________
Phone ___________________________ Fax __________________________ E-mail
Cancellation Policy: If you are unable to
attend a seminar, for which you have already
registered, call Mary Kohlbacher at 852-8687
ext. 15. For a full refund, notice of your
cancellation must be received before the
date of the program. Registrants who are
pre-registered and fail to attend will receive
course materials in lieu of a refund.
Enclosed is my check in the amount of $ ____________________❐ Visa
__________________________________
❐ MC
Card Number ______________________________________________________________ Exp. Date ______________________
Cardholder Signature ________________________________________________________________________________________
PAGE 23
COMPUTER & TECHNOLOGY TRAINING
Technology. At its best, it helps us to process information more efficiently and effectively. But the rapid-fire changes in the way we communicate
can easily become overwhelming. If the Information Age sometimes makes you feel like you’re drowning in a sea of confusion, this Computer and
Technology Training program was developed especially for you.
By investing just one lunch hour a week, you can quickly begin to master the basics of such popular programs as Microsoft Word, Excel, and Outlook.
You’ll also learn how to use Internet Explorer to navigate the World Wide Web and bring a whole world of resources to your fingertips.
Class size is small – just six students per session to allow for personalized attention – so sign up today!
Mail or fax to: Erie Institute of Law • 438 Main Street, Sixth Floor, Buffalo, New York 14202
(716) 852-8687 • Fax (716) 852-7641
Computer Classes are continually offered – if these don’t fit your schedule. Check with www.eriebar.org for upcoming programs.
✃
Class (No CLE Credit)
Major Topic
Date
Using Charts in Excel
• Planning & Designing a Chart
• Creating a Chart
• Modifying Chart Properties
Tuesday
11/9/10
Sign Me Up!
How to Use Excel to Keep This class is designed to show
Tuesday
Track of Your Billing
attorneys how to use Excel to
11/16/10
keep track of expenses, client
billable hours. This will allow
you to project your expenses and
do some basic profit/loss projections.
Using E-mail with Outlook • Create & Send Messages
• View Incoming Messages
• Reply & Forward to Messages
• Organize Messages
• Delete & Recover Messages
Tuesday
11/23/10
Managing Your Time
with Outlook
Tuesday
11/30/10
REGISTRATION FORM
Major Topic
Date
Utilizing the Internet
• Review Basic Features of
Internet Explorer
• Share some Web searching Tips
• Emailing Hyperlinks
Tuesday
12/7/10
How to Use PowerPoint
Why pay for expensive blow-ups
Tuesday
for the court room? This class is
12/13/10
designed to show you how to make
simple slides to explain your case to
the Jury or even others in your law firm.
Sign Me Up!
D 4 W I L L P ROV I D E A “ L U N C H TO G O ” F O R E AC H
• Schedule Meetings
• Create & Assign Tasks
• Flag Messages for Follow-Up
• Customize Outlook Today
• Print Your Schedule
• Assign Delegates & Permissions
• View Activity in the Journal
COMPUTER &
TECHNOLOGY
TRAINING
Class (No CLE Credit)
AT T E N D E E AT T H E E N D O F E AC H C L A S S .
Watch your e-mail and this space for the
next schedule of computer classes!
Enclosed is $___________ for _____ reservation(s) for: ❐ BAEC Member $30
❐ Legal Staff $30
❐ Non-member $40
Registrant(s) ____________________________________________________ E-mail ____________________________________
Organization ____________________________________________________ Fax ______________________________________
12:15 p.m. – 1:30 p.m. (noon registration)
Address ________________________________________________________ Phone ____________________________________
D4 Tech Center
438 Main Street, Suite 202
Buffalo, NY
[No food or beverages allowed in Tech Center]
If you wish to charge this program, please complete the following and fax to (716) 852-7641 or mail to address above.
Please check: ❐ Visa
❐ MC
Exp. Date_________________
Card Number _______________________________________________________________________________________________
Cancellation Policy: Within three business days
of registering, if you can no longer attend, another
individual from your organization may attend or you
may transfer your registration to another program
that is within three months of the original program.
(A balance due to registration fee difference may apply.)
No reimbursement or transfers for cancellations not
made within the three days or for not attending.
Cardholder Signature ________________________________________________________________________________________
Become a fan of the Erie
Institute of Law on Facebook.
The Federal Practice Committee
recently held a seminar entitled
“The Supreme Court’s Decision
in Padilla v. Kentucky: Counsel’s
Role in Giving Advice on the
Immigration Consequences of
Criminal Convictions.” Pictured at
left are James W. Grable, Jr. and
James W. Grable, Sr. At right are
James W. Grable, Jr., Joanne Macri,
BAEC Federal Practice Committee
chair Timothy W. Hoover and
James W. Grable, Sr.
PAGE 24
Tightrope Walker
Our intrepid photographer captured this incredible image in late September as a
French tightrope walker made a precarious trek from one Lady Liberty to the next,
high atop downtown Buffalo’s Liberty Building. A world-renowned high wire
walker named Didier Pasquette traveled to Buffalo to open for the annual art
showcase, “Beyond/In Western New York.”
The high wire act has a long history in Niagara Falls, dating back
for centuries. It is also no coincidence that Didier chose the Liberty
Building, as the original statue was a gift to the United States from
France more than 100 years ago. To learn more about “Beyond/In
Western New York, visit www.beyondinwny.org.
Tightrope Walker at Buffalo by Glenn Edward Murray
ALL MEETINGS HELD IN THE BAR CENTER, 438 Main Street, Sixth Floor, unless otherwise noted.
The Adelbert Moot CLE Center is also located at 438 Main Street, Sixth Floor.
NOVEMBER 2010
MONDAY 1
Professional Ethics Committee
12:15 p.m. - Thomas S. Wiswall,
Chair
TUESDAY 2
Committee on Consumer Protection
12:15 p.m. - Joanne A. Schultz, Chair
Elder Law Committee
12:15 p.m. - Adelbert Moot CLE
Center
Charles Beinhauer, Chair
Matrimonial & Family Law
Committee
12:15 p.m. - 25 Delaware Ave,
5th Floor
Catherine E. Nagel, Chair
FRIDAY 5
MONDAY 15
FRIDAY 19
Commercial & Bankruptcy Law
Committee
12:15 p.m. - Daniel E. Sarzynski,
Chair
Banking Law Committee
12:15 p.m. - Offices of Phillips Lytle
LLP
Alexandra E.J. Townson, Chair
Young Lawyers Committee
12:15 p.m. - William Patrick Moore,
Chair and
Joshua Dubs and Leah R. Nowotarski,
Vice Chairs
TUESDAY 9
TUESDAY 16
Board of Directors
8:00 a.m. - Scott M. Schwartz,
President
Corporation Law Committee
12:15 p.m. - Offices of Hodgson Russ
Kevin R. Talbot, Chair
Labor Law Committee
12:15 p.m. - Sean P. Beiter, Chair
Federal Practice Committee
Center
Timothy W. Hoover, Chair
Real Property Law Committee
Center
Michael J. Lombardo, Chair
WEDNESDAY 10
Appellate Practice Committee
12:15 p.m. - Bar Center, Brennan
Room
Edward J. Markarian, Chair
Health Care Law Committee
12:15 p.m. - Lawrence C. DiGiulio,
Chair
Unlawful Practice of Law Committee
12:15 p.m. - Harry G. Meyer, Chair
THURSDAY 18
THURSDAY 11
Legal Nurse Consultants Committee
Center
Christine A. Trojan, Chair
Office Closed - Veterans Day
THURSDAY 4
Negligence Committee
Center
Gregory V. Pajak, Chair
Erie County Bar Foundation
8:00 a.m. - William Ilecki, President
Intellectual Property, Computer &
Entertainment Law Committee
8:00 a.m. - Towne Restaurant
Ellen Swartz Simpson, Chair
WEDNESDAY 3
International Law Committee
12:15 p.m. - Jason B. Desiderio, Chair
WEDNESDAY 17
FRIDAY 12
Committee for the Disabled
12:15 p.m. - Jessica V. Murphy, Chair
Lawyers with Depression Support
Group
Room
Daniel T. Lukasik, Chair
Committee on Veterans’ & ServiceMembers’ Legal Issues
Room
Michael C. Lancer, Chair
MONDAY 22
Alternative Dispute Resolution
Committee
12:15 p.m. - Steven R. Sugarman,
Chair
TUESDAY 23
Board of Directors
8:00 a.m. - Scott M. Schwartz,
President
Municipal & School Law Committee
12:15 p.m. - Michael B. Risman,
Chair
WEDNESDAY 24
P&P in Family Court Committee
12:15 p.m. - Family Court Building
Mindy L. Marranca, Chair
January Bulletin Deadline
THURSDAY 25 & FRIDAY 26
Office Closed - Thanksgiving Holiday
Criminal Law Committee
12:15 p.m. - 438 Main St., 12th Floor
Rodney O. Personius, Chair
Environmental Law Committee
12:15 p.m. - Bar Center,
Arbitration Room
John T. Kolaga, Chair
www.eriebar.org

November 2010 - Bar Association of Erie County

Transcription

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