President`s Letter Holiday Wish List Manias Coaxed Out of Ex

Transcription

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Permit No. 416
Vol. 50 | No. 5 | January 2011
Bar Association of Erie County
BULLETIN
w w w. e r i e b a r. o r g
President’s Letter
“March Madness” Comes to the Bar Association
By Scott M. Schwartz
The Bar Association will host a “Division I NCAA
Men’s Basketball Championship” event featuring
games, pizza, wings, and other “health food” on the
afternoons of March 17 and 18 at Bar Headquarters,
438 Main Street in downtown Buffalo. Tip-off is at
noon both days with staggered start times so members
are welcome to drop in anytime between noon and
5:00 p.m. either or both days.
“At the suggestion of our president and point guard,
Scott Schwartz, this inaugural ‘March madness’ event
will offer an opportunity for camaraderie and competition as two large-screen TVs provide access to all the
action CBS and Turner Broadcasting can cram onto
the airwaves,” according to BAEC director and former
Canisius basketball star Kevin W. Spitler, who is head-
ing up the front line for this event, along with former
board members and basketball players Peter F. Brady
and Kathleen M. Sweet.
Participants will have the opportunity to choose the
winners within each bracket for a $10 fee. All winnings
will be donated to the participant’s organization of
choice, including Lawyers for Learning, the Volunteer
Lawyers Project, Legal Services for the Elderly and the
Erie County Bar Foundation.
Mark your calendars now and watch for further
details – including (we hope!) photos of the organizing
committee in full uniform – in the February Bulletin.
(They are all really tall!)
[B]
MARTIN LUTHER KING, JR. DAY | JANUARY 17, 2011
“Let it never be said by future generations that indifference,
cynicism or selfishness made us fail to live up to the ideals of humanism…
Holiday Wish List
Let the strivings of us all prove Martin Luther King Jr. to have
been correct when he said that humanity can no longer be tragically
bound to the starless midnight of racism and war.”
In the time-honored tradition – started last
year by Bob Convissar – I hereby disclose, for
in-camera inspection, in no particular order,
my Hanukkah, Christmas, Kwanzaa and winter solstice wish list as follows:
That Joel Daniels have a year with no
attorneys as clients.
~ Nelson Mandela
Feroleto to Receive Kulick Memorial Award
The Lawyers Helping Lawyers
Committee of the Bar Association of
Erie County recently presented the
2010 Sandy Kulick Memorial Award
to Hon. Paula L. Feroleto in a private
ceremony hosted by the Committee.
That Judge Fahey get a gift card from
LensCrafters – wouldn’t you love to see him in
designer specs?
That the Seneca Indians be able to sell,
with no sales tax, nicotine patches instead of
cigarettes.
That Buffalo Place sign Bob Dylan for
Thursday in the Square.
That the Erie Institute of Law have a CLE
on how to use the television digital cable
remote control.
That Mark and Tom, the hot dog cart guys
at Franklin & West Eagle and Delaware &
West Eagle, have a mild winter and add chicken breast sandwiches to next year’s menu.
That Chief Justice Roberts render future
opinions as warm and engaging as he is in person.
That Judge Skretny rule unconstitutional
the new blue and orange license plates as a
violation of the good taste clause of the
Constitution.
That all Erie County Attorneys and Law
Firms list e-mail addresses in the Court
Directory so when you have to call, but really
hope for voicemail, you can e-mail instead.
That Judge Caruso not sign that contract
to appear nightly in the lounge at the Bellagio
continued on page 4
Feroleto
Attorneys experience alcohol and
drug addiction at nearly twice the
rate of the general population. The BAEC’s Lawyers
Helping Lawyers Committee was established in 1978
to provide a confidential channel of communication for
attorneys and judges experiencing alcohol or drugrelated difficulties. The group consists of volunteer
lawyers and judges who have experienced dependency
on alcohol and drugs and are now in recovery. All
aspects of the committee’s work are completely conficontinued on page 4
Manias Coaxed Out of Ex-Presidential Cave
Former Bar Association of Erie
County president Giles P. Manias has
graciously agreed to lend his artistic
talents to the Bulletin in the form of
editorial cartoons. Manias, who
served as BAEC president from
2008-09, is also a painter who initiManias
ated the “Artful Lawyer” exhibit to
showcase the artistic, musical and
photographic talents of local attorneys. He promises
that the exhibit will return from time to time when
sponsorship funding can be raised. During his year as
president, Manias also chose to host the 2009
President’s Ball at the newly built Burchfield-Penney
Art Center at Buffalo State College.
Manias has often referred to “the cave” into which
ex-presidents are banished within moments of relinquishing the gavel. Our intrepid reporters discovered
the cave “somewhere here in Carl Country” but
refused to disclose its exact whereabouts (“or else we’d
have to kill you…”).
The former prez was recently sighted peeking out of
a cave littered with drawings. When asked whether he
“used to be somebody,” Manias just kept repeating a
line from an old Mel Brooks movie: “It’s good to be
King! It’s good to be King…” After a few double espressos and a cold shower, he was coerced (oops, we mean
convinced) to put pen to paper and create some editorial cartoons for the benefit of Bulletin readers.
continued on page 4
THE BOARD OF DIRECTORS AND STAFF OF THE
BAR ASSOCIATION OF ERIE COUNTY EXTEND OUR VERY BEST WISHES
FOR A NEW YEAR FILLED WITH PROMISE AND POSSIBILITY.
PAGE 2
www.eriebar.org | January 2011
Vol. 50 | No. 5 | January 2011
BAR ASSOCIATION OF ERIE COUNTY
Organized 1887
438 Main Street, Sixth Floor | Buffalo, New York 14202
(716)852-8687 | fax (716)852-7641 | www.eriebar.org
Bulletin correspondence: obrian@eriebar.org
EDITORIAL BOARD
Editor ............................................Bonnie D. O’Brian
Law Editor ....................................Jeffrey A. Spencer
Tax Notes Editor ..........................Gary D. Borek
Art Editor ......................................Giles P. Manias
Hon. David J. Mahoney
(1960-2008)
Photography ................................Susan L. Kohlbacher
Glenn Edward Murray
Editorial Assistant ........................Susan L. Kohlbacher
OFFICERS AND DIRECTORS | 2010-2011
President ......................................Scott M. Schwartz
Vice President ..............................Arthur A. Russ, Jr.
Treasurer........................................Vincent J. Moore
Deputy Treasurer ..........................Paula M. Eade Newcomb
Executive Director........................Katherine Strong Bifaro
©
BOARD OF DIRECTORS
Lawrence C. Franco, Daniel J. Henry, Jr., E. Michael Semple, Kevin W.
Spitler, Patrick J. Brown, Jennifer M. Dillon, Lynn D. Gates, Bridget M.
O’Connell, Emilio Colaiacovo, Paul V. Crapsi, Jr., Howard Frank, Brenda M.
Freedman.
LIFE MEMBERS
Mark A. Adrian, Carol J. Alaimo, Brian D. Baird, Lynn A. Clarke, William J.
Cunningham, Eric P. Doherty, Victor J. Gagliardi, Sharon Stern Gerstman,
Jean E. Gittler, Donald J. Holzman, Stanley Kwieciak III, J. Eldon Owens,
Lauren D. Rachlin, Jeffrey A. Spencer, James M. Wadsworth.
Would you like to see your name here? See page 4 to find
out how to become a contributing member.
CONTRIBUTING MEMBERS
Joan Casilio Adams, Peter S. Aiello, Donald A. Alessi, Grace Marie Ange,
Richard J. Attea, Hon. Rosalie M. Stoll Bailey, Hon. Tracey A. Bannister,
Stephen E. Barnes, Edwin T. Bean, Jr., Thomas R. Beecher, Jr., Ronald P.
Bennett, Leonard Berkowitz, David W. Beyer, Richard S. Binko, Richard N.
Blewett, Michael M. Blotnik, Harold J. Brand, Jr., Peter J. Brevorka, Phillip
Brothman, T. Alan Brown, Joel Brownstein, David Buch, James P. Burgio,
Michael C. Burwick.
John F. Canale, John J. Carney, Peter B. Carr, Alan S. Carrel, Thomas R.
Cassano, Stephen E. Cavanaugh, Ferdinand J. Ciccarelli, John F. Collins,
William B. Collins, Anthony J. Colucci, Jr., Robert B. Conklin, Robert N.
Convissar, Edward C. Cosgrove, Peter L. Costa, Paul Crapsi, Jr., Douglas S.
Cream, Hon. John T. Curtin, Steven P. Curvin, Roger T. Davison, Dennis J.
Dee, John M. Dempsey, Richard F. DiGiacomo, Anne C. DiMatteo, David A.
Doll, Dean M. Drew, Hon. Timothy J. Drury, Marvin T. Dubin, Robert E.
Dwyer, Donald B. Eppers, Leo J. Fallon, Victor N. Farley, Mark G. Farrell,
Gabriel J. Ferber, Michael E. Ferdman, Robert P. Fine, Peter J. Fiorella, Jr.,
Brian P. Fitzgerald, Richard E. Forrestel, Jeffrey M. Freedman, Maryann
Saccomando Freedman, Robert Friedman, John J. Fromen.
Thomas J. Gaffney, William H. Gardner, Eugene M. Gaughan, Stuart A.
Gellman, Robert M. Goldstein, Wayne R. Gradl, Josephine A. Greco, Hon.
Samuel L. Green, John C. Grennell, Richard F. Griffin, John J. Gruber, Mark
W. Hamberger, Barbara Ellen Handschu, Thomas J. Hanifin, James P.
Harrington, John E. Haslinger, Mary Louise Hayden, Herbert J. Heimerl, Jr.,
William R. Hites, Susan S. Hogan, Edwin P. Hunter, Melvyn L. Hurwitz,
Norman E. Joslin, James B. Kane, Jr., Judith D. Katzenelson, Daniel L. Kaye,
Christopher C. Kerr, James J. Kirisits, William J. Kita, Wells E. Knibloe,
Christian G. Koelbl III, Dan D. Kohane, Ellen M. Krebs, Karl W. Kristoff,
Thomas E. Krug.
Stephen R. Lamantia, John P. Lane, Richard J. Lehner, John N. Lipsitz,
Richard Lipsitz, Arthur A. Lorenzo, William J. Love, Jr., Leo M. Lynett, Jr.
James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Arthur J.
Maloney, Giles P. Manias, Richard C. Marcus, John Markarian, Mary Dee
Martoche, Hon. Salvatore R. Martoche, Hon. Jeremiah J. McCarthy,
Maureen A. McCready, Thomas I. McElvein, Jr., Diane J. McMahon, Hon.
John A. Michalek, Raymond T. Miles III, Joseph D. Mintz, Albert J.
Mogavero, Richard E. Moot, Peter J. Murrett, Jr., Arthur F. Musarra, Joseph
M. Nasca, Paul T. Nesper, Stephen M. Newman, Anthony M. Nosek, James
J. O’Brien, Robert L. O’Connell, Hon. John F. O’Donnell, Timothy M.
O’Mara, Francis J. Offermann, Jr., William J. Ostrowski.
Carl P. Paladino, Frank R. Papa, Thomas C. Pares, James A. Partacz, Robert
E. Pearman, Hon. Erin M. Peradotto, Robert H. Perk, Jeffrey A. Perla, Joel
M. Poch, Samuel G. Puleo, Theodore J. Pyrak, James P. Renda, Mary K.
Roach, Earl T. Robinson III, Jay N. Rosenthal, Marcella Rosinski, Hon.
Mario J. Rossetti, Victor A. Rossetti, Richard P. Rosso, Arthur J. Rumizen,
Ross L. Runfola, Louis J. Russo, Thomas Santa Lucia, Scott M. Schwartz,
Edward J. Schwendler, Jr., Richard B. Scott, Donald P. Sheldon, Richard J.
Sherwood, David Siegel, Louis H. Siegel, Myron M. Siegel, Robert G.
Sillars, Richard Charles Slisz, Charlotte Smallwood-Cook, Oscar Smukler,
Robert B. Sommerstein, Gregory Stamm, Robert S. Stephenson, Milton J.
Strebel, David L. Sweet.
Dominic J. Terranova, Phillip A. Thielman, Gordon D. Tresch, Thomas V. Troy,
Frederick D. Turner, Dimitri J. Tzetzo, Peter A. Vinolus, Joseph C. Vispi, Dale
M. Volker, Matthew X. Wagner, Jr., James R. Walsh, John B. Walsh, Neil
Weinberg, Peter C. Wiltse, Wayne D. Wisbaum, Raymond V. Wylegala,
Richard D. Yellen, George M. Zimmermann, H.A. Terri Zionts.
No, Counsel ! I don’t want to be your friend on Facebook !
Letter to the Editor
Editor’s Note: The following letter appeared in the
NY Daily Record recently in response to a column
written by Michael Giuliano.
Dear Mr. Giuliano:
I read with interest your recent column entitled “A
Tammany-style judgeship machine?” I don’t disagree
with your premise that judicial elections are too political, and that candidates’ nominations are subject to the
whim of party bosses to dictate the pool of potential
judges. It is a terrible selection process which unfortunately has been ruled constitutional. But assuming we
have to play by the existing rules of the game, why
should a bar association, such as Monroe or Erie, not
express its opinion on the qualifications of judicial candidates? You suggest, and here I must disagree, that the
public is provided “nothing of importance” by the Bar
Association, upon which to base their vote. Inherent in
the present judicial nomination system, is that there is
no merit selection committee to propose nominees from
the prospective candidates. That being the case, and
assuming that no one appears before sitting judges, or
works with attorneys who have become candidates
more than litigation attorneys and colleagues, why
shouldn’t their collective opinion be “something of
importance” for the voting public to consider? Bar
Association ratings are there for the public’s consideration – to be given whatever weight the voter chooses.
Our Judiciary Committee rating process is as apolitical as it can possibly be. Our committee membership
is required to be divided equally by party affiliation,
and no member is allowed to support, endorse or contribute to any judicial candidate in the current election
year, or in the preceding election year. Membership on
our committee is intended to be diverse by gender, eth-
nicity and practice specialty. Members are selected
from practice areas which put them in court on a regular basis.
The reason behind the ultimate rating of a candidate
cannot be easily articulated when a significant number
of people are voting, with each one voting their individual conscience. Nevertheless, the ratings are based
upon a consensus. If the public wishes to elect a candidate rated “not qualified,” so be it. Was it, as your column suggests, “ballot position, name recognition, or
party affiliation?” We will never really know, as the
reason for each vote is in the eye of the beholder.
Again, I believe that the voice of the Bar Association is
material and relevant and should be heard.
I suggest that a fair representation of litigation attorneys, representing plaintiffs and defendants in civil
actions, representing the People and criminal defendants in criminal matters, representing husbands and
wives in matrimonial matters, would know more about
who is and who will be a “good judge” than, perhaps,
the butcher, the baker or the political column maker.
Regarding your reference to our local Ken Case for
County Court television ad, citing the censure of his
opponent 20 years prior, such is not and was not,
standing alone, deemed improper campaign material.
What was deemed improper by our Bar Association was
the harsh and sensational manner of delivering that
message, in addition to its failure to refer to the opponent as Judge McLeod, a designation to which the
Judge is entitled. While the censure information
imparted was within the specific rules, why do judicial
campaigns have to travel the same southerly path that
political campaign advertising has taken? Is the public
better served by a lack of judicial decorum in campaign
material? The Rules of the Chief Administrative Judge,
continued on page 4
Letters to the editor and short articles of general interest to our readers are always
welcome. All materials submitted for publication in the Bulletin are subject to editing
for reasons of style, space and content.
Send all submissions as Word documents to obrian@eriebar.org (preferred) or by mail
to: Bulletin Editor, 438 Main Street, Sixth Floor, Buffalo, NY 14202.
•
DEADLINE
•
•
February 2011 Bulletin D E A D L I N E
•
•
•
The next deadline for ALL Bulletin contributors and advertisers is
THURSDAY, December 30, 2010.
Call Susan Kohlbacher at Bar Headquarters for more information, 852-8687.
PAGE 3
January 2011 | www.eriebar.org
Women Lawyers Name
Officers, Lawyer of the Year
bench and bar in the news
How to place an announcement:
If you are a BAEC member in good standing
and you’ve moved, been promoted, hired an
associate, taken on a partner, or received an
award, we’d like to hear from you. Talks,
speeches (unless they are of national stature),
CLE presentations and political announcements are not accepted. In addition, we will
not print notices of honors determined by
other publications (e.g., Super Lawyers, Best
Lawyers, etc.). Notices must be submitted in
writing and limited to 100 words. They are
printed at no cost to members and are subject
to editing. E-mail your notice and high-resolution photo (300 dpi) to obrian@eriebar.org.
Charles D. J. Case has joined the
law firm of Rupp, Baase, Pfalzgraf,
Cunningham & Coppola LLC as an
associate, where he will focus his
practice on commercial litigation. A
graduate of St. Bonaventure
University, Case received his JD from
Case
the University at Buffalo School of
Law. He formerly represented mortgage lenders in foreclosure proceedings and title disputes and also has experience in government affairs
and representing municipalities and legislative bodies
in a wide range of matters. Case also worked for the
New York State Assembly for four years and directed
the government affairs department of a large,
statewide organization. During law school, he served as
vice president of the Buffalo Moot Court Board and as
a member of the Special Education Law Clinic, which
advocates for students with disabilities.
Mucha
Jennifer A. Mucha has joined
Phillips Lytle LLP as an associate in
its litigation group. She will concentrates her practice on business litigation matters, including representing
emerging and established technology-focused companies. Mucha is the
prior owner and operations manager
of a Buffalo-based Internet technolo-
gy developer. She serves on the board of infoTech
Niagara and is the Buffalo representative of the
Upstate Tech Corridor. Mucha also volunteers for the
Make-A-Wish Foundation. A magna cum laude graduate of the University at Buffalo Law School, Mucha
serves as an alumni coach for UB Law’s Jessup Moot
Court, is a GOLD Group member of the school’s alumni association and a member of the Phi Alpha Delta
Law Fraternity.
Johanna
Healy
(formerly
Johanna Dash), a partner at Rupp,
Baase, Pfalzgraf, Cunningham &
Coppola LLC, has received the 2010
Pro Bono Award from the Judiciary
of the Western District of New York
for her “exemplary pro bono work
Healy
representing low-income clients in
civil cases.” The award was presented by Hon. William Skretny and Hon. Jeremiah
McCarthy at the 20th annual Bench and Bar Dinner
recently sponsored by the Monroe County Bar
Association and the Bar Association of Erie County.
Healy is a litigation attorney who focuses her practice
on insurance coverage and insurance defense including
premises liability, lead paint, toxic torts, New York
State Labor Law, products liability and subrogation for
insurance carriers.”
Maryann
Saccomando
Freedman and Michelle M. F.
Schwach of Cohen & Lombardo
have been named officers with the
Association for a Buffalo Presidential
Center (ABPC). Freedman, who is Of
Counsel to the firm, has been elected
Freedman
inaugural president of the group.
Schwach, an attorney at Cohen &
Lombardo was elected secretary. The
APBC is dedicated to exploring the
legacies of Presidents Grover
Cleveland and Millard Fillmore and
the roles of other western New
Yorkers who helped to shape our
nation’s history. The Association will
Schwach
also focus on contemporary issues
related to the presidency, including elections and
national policies. They will provide educational programs, public symposia, electronic publications, and
exhibitions to advance WNY as a center for the development of the U.S. Presidency throughout history.
continued on page 20
The Company of
The Erie County Bar Foundation exists
to provide a helping hand to lawyers in need.
DePrima
Gina Marie DePrima has been
named president of the Women
Lawyers of Western New York
(WLWNY). The group was founded
in 1913 and is the first and oldest
women’s organization in the region.
WLWNY is dedicated to the advancement of women in the legal profession, scholarships for female law students, and charitable and educational causes related to women and the
law.
Treneeka Cusack will serve as vice
president; Kimberly Colaiacovo as
treasurer, Amy Hemenway as secSchultz
retary, Noralyn Dillon as assistant
secretary and Ayoka Tucker,
Shannon Filbert and Mary Anne Connell as directors. Membership dues are $35 and all are welcome
to join.
Claudia S. Schultz has been awarded the Woman
Lawyer of the Year Award by the Women Lawyers of
Western New York. Schultz is currently the deputy
administrator of the Assigned Counsel Program, where
she has educated, trained, supervised and mentored
countless criminal defense attorneys in Erie County.
Prior to her arrival in Buffalo in 2004, Shultz spent 24
years in Nassau County as a criminal defense attorney
for both private firms and the Legal Aid Society. Shultz
was selected for the award due to her “commitment to
the highest standards of legal advocacy for her clients
and our community.”
[B]
Lawyers Helping
Lawyers…
A confidential channel
of communication for members
of the bench and bar struggling
with substance abuse.
The New Year is the perfect
time for a fresh start.
Call 852-1777 to learn more.
The need may be based on medical problems,
job loss, emotional difficulties, family crises or
many other situations. No person or problem
is categorically excluded.
If you need assistance – or know a friend or
colleague who does – please call Kelly
Bainbridge at 628-4892. All services are
individualized and completely confidential.
It’s great to belong to something this good.
PAGE 4
President’s Letter
continued from page 1
in Vegas, so he is available for future Judicial Candidate
gigs.
That all Bank and Insurance Companies phone
systems answer “Hello, if you know your party’s extension, please dial it now” before another word is spoken,
in English or Spanish.
That judicial campaign parties in the Eighth
Judicial District be for candidates running in the
Eighth Judicial District.
That our next President, Art Russ, be able to enjoy
next year’s election campaign season more than we all
did this year.
That our State Legislature, if nothing else, pass a
law that prohibits a magazine from sending a “your
subscription is expiring” notice within the first eleven
months after you have renewed your subscription.
That Mike Daumen, Kurt Sajda, Jeff Spencer,
Mike Nowak, Jim Arcadi and Sharon Gerstman
enjoy their retirements from public service, and that
the state add three years of contributions to the 401Ks
of us private practice attorneys.
That Lipsitz Green Scime Cambria LLP continue to believe that I work there and continue to be supportive of my time and effort for the Bar Association
and its members.
That the new Special Commission on Judicial
Compensation sees fit to award our state Judges the
raises that they have waited over a decade to receive.
(Kindly note that’s S-C-H-W-A-R-T-Z.)
That Future Judicial Candidates understand that
the public deserves and expects more of their campaign
ads than they do of party political ads.
That the Erie Institute of Law, along with live
seminars, CDs, DVDs, and soon-to-be Webinars, offer
CLE presentations in tablet or gel-cap form.
That the rhythmic citations of Jeff Spencer keep
coming – as he is the Bar Bulletin resident poet, though
now retiring, we have appreciated his efforts – and we
certainly want to be sure he knows it.
That very soon, light bulbs start popping in My
Head for my final Bar Bulletin columns.
That Judge NeMoyer, as the only - or one of two Supreme Court candidate(s) next year gives the roastmaster at the Judicial Candidates Luncheon more to
work with than Judge Fahey did this year.
‘Twas the night before Judicial Welcoming
and all through the Courts,
That Mark Grisanti earns as a legislator the same
respect that a criminal defense attorney deserves.
That health care providers called as witnesses by
Personal Injury Attorneys give them a no-fee guarantee (or at least a reasonable fee).
No cases were being tried, not even the torts
We all will be celebrating, lawyers, clients and judges
Then it’s back to the courtrooms to settle old grudges.
On January 11, we welcome six judges
some old and some new
At County Hall’s Ceremonial Courtroom
up on floor two
Manias Coaxed Out of
Ex-Presidential Cave
All the judges will attend, in their robes, what a sight!
Join us, but ‘til then, to our members,
staff and families
Happy Holidays and good night. [B]
Former BAEC president Hon. David J. Mahoney
served as editorial cartoonist for the Bulletin from 1960
until his death in 2008. Manias began doing the annual presidential caricatures which line the walls at Bar
Headquarters after Justice Mahoney’s passing. He
promises to supply us with cartoons “as long as there is
light in the cave and lawyers and judges continue to be
funny.”
Manias’ inaugural cartoon appears on page 2 of this
issue. The Mahoney cartoons will continue to appear
from time to time “whenever snow blocks the entrance
to the cave, or if lawyer advertising is removed from
TV,” Manias said.
[B]
Feroleto to Receive Kulick
Award
dential and members remain anonymous. If you or a
colleague need assistance, please call 852-1777 for further information.
Feroleto was selected to receive the award “because
of her outstanding support for the efforts of the
Committee to work with attorneys suffering from alcoholism or other substance abuse,” according to a
spokesperson for the Lawyers Helping Lawyers group.
Justice Feroleto was elected to the New York State
Supreme Court in 2004. In September of 2009, she
was appointed as Administrative Judge of the Eighth
Judicial District and continues to serve in that capacity,
in addition to handling her Supreme Court civil caseload. The Eighth Judicial District includes the western
New York counties of Allegany, Chautauqua,
Cattaraugus, Erie, Genesee, Niagara, Orleans and
Wyoming Counties. It is one of the largest in the state
of New York, containing 11 city courts and 197 town
and village courts.
The award is named in honor of Buffalo attorney
Sanford C. “Sandy” Kulick, a Buffalo attorney and
longtime member of the Lawyers Helping Lawyers
Committee. “His dedication and love for attorneys in
recovery was inspirational,” according to a statement
about the award, which is “given only when there is a
deserving candidate” and not necessarily on an annual
basis.
Justice Feroleto was the president of the State
Supreme Court Justices Association of the Eighth
Judicial District in 2009. She was the recipient of the
Women Lawyers of Western New York Lawyer of the
Year award in 2006 and is a former president of the
Western New York Trial Lawyers Association. She has
served as an officer of the Western New York Trial
Lawyers Association, the Bar Association of Erie County,
and the University at Buffalo Law Alumni Association.
For many years, Feroleto has been a tutor with Lawyers
for Learning at School 18. She is a graduate of
Georgetown University and earned her JD at the
University at Buffalo School of Law. In 1991, she
became the first female partner in the Buffalo law firm
of Brown & Kelly, LLP, where she acted as coordinator
for the firm’s involvement in the Volunteer Lawyers
Project, Inc., winning an award from VLP in 1999 for
the firm’s substantial contributions to the program. [B]
Letter to the Editor
in Section 100.5A(4)(a) provide that a judge or a nonjudge candidate for election to a judicial office “… shall
maintain the dignity appropriate to judicial office and
act in a matter consistent with the impartiality,
integrity and independence of the judiciary….”
Become a
Contributing
Member!
The BAEC bylaws confer “contributing
member” status on any member who resides
or maintains an office in Erie County and
elects to pay an additional $40 in annual
dues to help support Association programs. Contributing members have the same
rights and privileges as regular members and
“such additional rights and privileges as the
board of directors shall bestow,” including
special recognition in the Bulletin, annual
dinner program and other publications.
Our Judicial Election Oversight Committee found, in
the manner of its presentation, the TV ad to be outside
the dignity appropriate to judicial office. That finding
is consistent with the committee’s charge, “to ensure
that campaigns for judicial office are conducted in a
dignified manner.” Our local candidates agreed, in
writing, to campaign accordingly. I don’t see how anyone is better served otherwise.
Very truly yours,
SCOTT M. SCHWARTZ
President
PAGE 5
Annual Food Drive Effort to Focus
on Monetary Donations
Welcome
New Members
The Bar Association
of Erie County is pleased
to welcome the
following new members:
Christina Akers
Carol A. Becker
Steven G. Biltekoff
Allison Bozinski
Stephanie J. Calhoun
Michael S. Das
William A. Evans, III
Michael Hecker
Ashley J. Litwin
Barbara H. O’Neill
Matthew A. Parham
Tyson R. Prince
Peter J. Savage
Stefanie Wiegand
Kimberly Worling
It’s great to belong to something this good.
Did you know that a donation of just $15
can feed a family of four for a week? Or that
– contrary to popular belief – the hungry people
in our community and across the nation are not
just the homeless? They are often employed, or
live in a household with someone who is. They are the
working poor who struggle to
provide the daily necessities
that so many of us take for
granted. For the past 20
years, the Bar Association of
Erie County has expressed its
commitment to helping the
hungry in our community
through its Have-A-Heart
food drive. Over the history
of the drive, several tons of
food and substantial financial
support have been provided
to the Food Bank of Western
New York.
This year’s drive will again focus primarily on
monetary contributions. Law firms that wish to
collect non-perishable food items may continue to
do so and the Food Bank of
Western New York will arrange
to pick up the donated items.
Please help the hungry in our
community by mailing your
donation to the Food Bank of
Western New York, 91 Holt
Street, Buffalo, New York 14206.
Checks should be made payable
to the Food Bank of Western
New York and received by
Valentine’s Day, Monday,
February 14th. All donors will
receive written confirmation of
their contribution directly from
the Food Bank.
PAGE 6
Introducing the Attorney Grievance Committee
By Deanne M. Tripi, Chair
Eighth Judicial District Grievance Committee
The goal of this article and future
monthly articles to come is to give
attorneys a better understanding of
the Attorney Grievance Committee,
the attorney grievance process, rules
frequently implicated, and advice to
avoid a grievance complaint.
The
Attorney
Grievance
Committee of the Eighth Judicial
District is an auxiliary agency of
the Appellate Division, Fourth
Judicial District. The Committee
investigates complaints containing
allegations of attorney misconduct
and ethical rule violations.
“Failing to
Judicial Department located in Buffalo, Rochester and
Syracuse.
The Grievance Committee is also comprised of 21
volunteer members, which includes the chair, Deanne
M. Tripi, the vice chair, Dale Robbins and three members who are non-lawyers. The attorneys appointed to
the Committee for the Eighth Judicial District are from
Allegany County, Chautauqua County, Cattaraugus
County, Erie County, Genesee County, Niagara County,
Orleans County and Wyoming County,
all appointed by the Presiding Justice of
the Appellate Division to serve threerespond to
year terms.
a complaint and/or
failing to cooperate with
a Grievance Committee
investigation is sanctionable and frequently
compounds and
aggravates the severity
of the allegations.”
The Eighth Judicial District
Grievance Committee has four staff
attorneys; Roderick Quebral and
Margaret Callanan are principal
counsel and Susan Eagan and Guy
Giancarlo are associate counsel.
The Committee has three investigators, as well as a very hard working staff of employees who
participate in ensuring the efficiency, professionalism and confidentiality of the
Grievance Committee’s work. Gregory Huether is the
Chief Counsel of the three different Grievance
Committees that are contained within the Fourth
When a complaint is filed with the
Grievance Committee, a response from
the attorney the complaint is concerning
(the respondent attorney) is frequently
requested. Please do not ignore letters from the Grievance Committee.
Failing to respond to a complaint and/or
failing to cooperate with a Grievance
Committee investigation is sanctionable
and frequently compounds and aggravates the severity of the allegations
before the Grievance Committee.
There are approximately 2,400 to
2,500 complaints filed each year in the
entire Fourth Department, which consists of the Fifth,
Seventh and Eighth Judicial Districts. The Eighth
Judicial District has approximately 1,100 to 1,200
complaints filed each year, which represents about 46
percent of the filings in the Fourth Department. A large
majority of complaints filed are dismissed. However,
those not dismissed are either presented to the chair for
determination or to the Committee. The Fourth
Department is unique in that the respondent attorney
may appear before the Committee and orally present
their position, as well as answer questions from the
Committee. The Committee then deliberates and can
do the following:
Dismissal of the Complaint: When the evidence
produced does not establish probable cause for a finding of professional misconduct, the Committee may
vote to dismiss the complaint against the respondent
attorney.
Letter of Caution: This is a non-disciplinary and
non-public disposition of a complaint which informs
the respondent attorney that the conduct complained
of has violated the spirit, if not the letter, of an ethical
standard. The letter is meant to educate the attorney.
A Letter of Caution is reserved for minor violations of
the ethical standards not resulting in detriment to the
public.
Letter of Admonition: This is a non-public discipline by the Committee and does not interrupt the
respondent’s privilege to practice law. Admonition represents a violation of the ethical rules and is the least
serious form of disciplinary sanctions.
Referral to the Appellate Division: If the evidence before the Committee demonstrates probable
cause to believe that serious misconduct has occurred,
referral to the Appellate Division is appropriate. If the
Committee votes for the Fourth Department to hear
the matter, a formal petition is filed against the respondent attorney and the attorney must then file an
answer. The Appellate Division may then dismiss the
petition, return the matter to the Committee, censure,
suspend or disbar the respondent attorney.
[B]
WE ARE NOW BEGINNING WORK ON THE
2011-12
ATTORNEY DIRECTORY.
If you have ANY CHANGES
to your current listing,
you MUST submit them
no later than MARCH 1.
See page 5 of the
current Directory
for further details.
New York’s Voluntary
Disclosure and
Compliance Program
By Diane M. LaVallee, Senior Investigative
Counsel, New York State Department of
Taxation and Finance; and William J.
Comiskey, Partner, Hodgson Russ LLP and former Deputy Commissioner of the Department
of Taxation and Finance.
Imagine Mr. Smith and Mr. Jones
have each failed to file their New
York state income tax returns for the
past four years. Both owed substantial amounts of money each year.
Both are potentially facing substantial civil penalties and interest on top
of the tax owed. Both are facing possible felony and misdemeanor
charges and criminal prosecution by
the state of New York. Mr. Smith,
was, in fact, publicly charged and
convicted of criminal tax fraud, and faced sentencing
as well as civil penalties. Mr. Jones, on the other hand,
confidentially repaid the tax without civil penalty and
was not prosecuted.
Why were these two people, in identical situations,
treated differently? Because Mr. Jones’ attorney
advised him to take advantage of New York’s Voluntary
Disclosure and Compliance Program (“VDCP”) before
the Tax Department found out about his tax liabilities.
The scenario above is not fiction. Repeatedly, individuals and businesses under criminal investigation
have had their criminal cases closed because prior to
the commencement of the investigation (or civil audit),
they had applied for and were accepted into VDCP.
One need not retain an attorney or a representative to
participate in this program.
VDCP has also been hugely successful and a great
source of revenue for the state, bringing in over
$155,000,000 since its inception, with a projected
$75,000,000 in proceeds this fiscal year alone. Over
5,600 people and businesses have applied for the procontinued on page 9
PAGE 7
Bar Association of Erie
County Professional
Ethics Opinion
Topic: Disclosure of confidential information
Digest: A lawyer who obtains information from a
prospective client concerning the physical well being
of the client’s adult parents may disclose such information in order to protect the physical well being and
safety of the parents.
Rules: 1.18, 1.6(b)(1).
QUESTION
May a lawyer, who obtains information from
prospective clients concerning risks of physical harm
and well being to the client’s elderly parents at the
hands of a sibling, but who is not later retained, disclose that information in an effort to seek protection for
the elderly parents?
FACTS
The lawyer was approached by several adult children of two elderly parents. They described what they
believed to be a situation of elder abuse at the hands of
another sibling, including financial, emotional and
physical abuse. Due to disagreements among the siblings, the lawyer has not been retained.
OPINION
Subject to exceptions not relevant here, Rule 1.18 of
the New York Rules of Professional Conduct expressly
provides that
“(b) even when no client-lawyer relationship
ensues, a lawyer who has had discussions
with a prospective client shall not use or
reveal information learned in the consultation….”
Rule 1.6 directs that a lawyer may not knowingly
reveal confidential information, which is defined in the
Rule as “information gained during or relating to the
representation of a client, whatever its source, that is
(a) protected by the attorney-client privilege, (b) likely
to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested
be kept confidential.” Given the details imparted by
the prospective clients to the lawyer, such information
likely would be characterized as “confidential information” under the Rule.
The enactment of the Rules of Professional Conduct
in 2009 added a new provision, at Rule 1.6(b)(1)
which permits a lawyer to “. . . reveal or use confidential information to the extent that the lawyer reasonably believes necessary: (1) to prevent reasonably
certain death or substantial bodily harm….” If the
information, therefore, does not fall within the definition set forth in Rule 1.6, then it is not “confidential”
and may be disclosed. If, however, the information can
be deemed “confidential,” and if the lawyer “reasonably believes” that the information will “prevent reasonably certain . . . substantial bodily harm,” the
information, though “confidential,” nonetheless may
be disclosed by the lawyer.
CONCLUSION
A lawyer who receives “confidential information”
from a prospective client may disclose that information
if the lawyer reasonably believes it necessary in order to
prevent reasonably certain death or substantial bodily
harm.
[B]
Meet the Ethics Committee
By Thomas S. Wiswall, Chair
The ethics of persons in the public
eye, including many in the legal profession, are coming under increasing
scrutiny. Those viewed as falling
short are a favorite subject of media
attention. The consequences of ethical lapses can be severe. And as the
focus on ethics has intensified, the
growing complexity of the applicable rules makes compliance challenging. With the adoption last year of the
New York Rules of Professional Conduct in place of the
Code of Professional Responsibility, and with the
mushrooming growth in ethics opinions interpreting
the rules, understanding the sometimes counterintuitive ethics rules applicable to the legal profession has
become more problematic than ever before.
opinion is drafted, and further deliberations result in a
written recommendation to the board of directors. The
committee’s recommendation is then considered by the
board, which is responsible for adopting the final formal opinion. If considered to be of general interest to
the profession, a formal opinion may be published in
the Bulletin. All responses, formal and informal, are
provided free of charge.
There are a number of limitations in the scope of the
Ethics Committee’s acceptance of inquiries for consideration. The Committee generally limits its deliberations to inquiries from attorneys about the application
of the rules of ethics to their own conduct. When an
attorney instead presents a complaint about the conduct of another attorney, he or she may be advised to
consider presenting the complaint to the appropriate
attorney grievance committee. Similarly, the Ethics
Committee generally refrains from giving opinions on
As one of its services to the bar, the BAEC has long
matters that are pending before courts
offered guidance to its members on
or other tribunals in ongoing adversary
matters of legal ethics. The Bar
proceedings. Finally, the Committee
Association’s
Committee
on
generally refrains from recommending
Professional Ethics is composed of
“The Committee is
opinions on issues involving substantive
volunteer members from diverse
law rather than legal ethics.
composed of volunteer
practice areas with experience in
interpreting the rules of ethics and
In addition to making recommendamembers from diverse
with an interest in promoting ethical
tions as to the application of the Rules
behavior by attorneys in our compractice areas with an
of Professional Conduct in particular
munity. The Committee, together
situations raised by inquiring attorneys,
interest in promoting
with the directors of the bar associthe Committee also works with other
ation, in their ongoing efforts to
ethical behavior by attorBar Association entities, such as the Erie
assist our attorneys in becoming role
Institute of Law, to present Continuing
neys
in
our
community.
”
models of ethical behavior, encourLegal Education seminars from time to
ages the submission of inquiries
time on matters relating to legal ethics.
relating to matters of legal ethics.
Such CLE programs are announced in
The procedures used in addressing
the Bulletin, on the Bar Association’s
such inquiries are described below.
Web site (www.eriebar.org), in mailings,
The procedures are intended to be flexible, so as to fit
the needs of the inquiring attorney for a prompt, helpful response, while also serving the legal community as
a whole by generating written formal opinions. Thus,
when time is of the essence, inquiries can be initiated
informally by a telephone call, either to the Bar
Association office or to the current chair of the Ethics
Committee. Such inquiries normally provide a fast,
confidential response. When research and analysis in
addition to such an informal talk-through appears necessary, or when a formal written opinion is desirable,
the Committee will address the inquiry at their
monthly meetings.
Generally, one of the committee members is assigned
the inquiry for research and analysis; a recommended
and through other publicity.
The Ethics Committee welcomes participation by
additional lawyers interested in promoting the understanding of and adherence to the rules of ethics.
Although membership on the Committee requires
approval by the president of the bar association, any
lawyers who would like to be considered for membership on the committee are urged to inform the Bar
Association or me of their interest.
Elsewhere on this page, you will find a recent ethics
opinion for your review. The next several editions of the
Bulletin will contain similar opinions which I hope you
will find helpful. As always, your questions and comments are invited and encouraged.
[B]
PAGE 8
cyberlaw: the brave new e-world
By Anne F. Downey
Craigslist Legal Issues
Craigslist is an online network of free classified ads.
If you want to sell a used set of law books or the
hideous oil painting that the managing partner insists
on hanging in your firm’s reception area, you can post
an ad on Craigslist and hope to connect with a buyer.
Craig Newman launched Craigslist in 1995 as an email distribution list among friends in the San
Francisco Bay area. The next year, the service switched
from e-mail to a Web site at www.craigslist.org. By
2003, the service had expanded into 14 cities, and
today it operates throughout the U.S. and in many
other countries. According to Wikipedia, the site serves
over 20 billion page views per month, putting it 33rd
overall among Web sites worldwide. The Buffalo-area
listings on Craigslist can be found at
http://buffalo.craigslist.org/
Most ads can be posted without charge, but there are
a few exceptions, including job postings in select cities
(not Buffalo), brokered apartment rental listings in
New York City, and “therapeutic services.” A quick
check of the Therapeutic Services category indicates a
heavy emphasis on massage and “bodywork.” Hmm.
Postings are limited to one metropolitan area; you
cannot post an ad across the entire nationwide network. Postings may cover a wide variety of matters,
such as merchandise or services for sale, community
events, personals, housing, jobs, résumés, and discussion forums.
Across the U.S. and locally, some attorneys are using
Craigslist to post law firm ads. The ads can be seen by
clicking on the Legal Services link. One local law firm
recently ran an ad under the heading “Grieved?
Discipline Problems?” and another local attorney had
an ad under “Criminal and Immigration Law Attorney
Accepting New Clients.” In the ad copy itself, some law
firms include their address as required by the ethics
rules, while others do not. All the ads of local attorneys
use the ATTORNEY ADVERTISING disclaimer.
The Legal Services link includes a number of postings that appear to be from non-lawyers. A recent posting by New York State Liquor License Services says
“DO YOU NEED YOUR NYS LIQUOR LICENSE
FAST? WE CAN HELP!” Another company’s colorful
posting includes “We will stop Trustee sale and continue to stop it, letting you live in your house…WE
HAVE STOPPED MANY TRUSTEE SALES, WE
SURE AS HELL CAN STOP YOURS!”
CENSORED: Questionable Postings
Despite the deactivation of Adult Services, the
Craigslist link for Therapeutic Services continues, and
similar ads are cropping up under the Personals category. Craigslist CEO Jim Buckmaster noted that taking
down the Adult Services link was unlikely to stop the
ads, saying “it is not as though we would be getting rid
of the ads – we would be dispersing them through
other parts of the site.”
Inappropriate postings may be flagged by other
users. When a posting is flagged by a certain number of
users, the posting is taken down. The magic number of
flaggings is unknown except to Craigslist staff. Items
are supposed to be flagged only if they are misplaced,
prohibited or spam. Nevertheless, sometimes persons
flag a posting on inappropriate grounds, such as a
competitor trying to take down the competition’s legitimate posting. There is a Flag Help Forum, but oddly
enough, it is run by volunteers not affiliated with
Craigslist. The Forum’s postings are unmoderated and
sometimes evildoers known as “trolls” post malicious
statements in the Forum.
Over the past few years, Craigslist has come under
fire for allowing postings related to prostitution and
similar activities. The original name of the link in question was Erotic Services. In March 2009, a Brooklyn
Adult Services aren’t the only legal headache for
man was stabbed to death allegedly by a teen who had
Craigslist. Craigslist is also waging a legal battle with
answered an Erotic Services ad.
eBay. In August 2004, eBay purchased a
In April 2009, Philip Markoff, a
25 percent interest in Craigslist. Four
medical student at Boston
years later, eBay sued Craigslist, claiming
University, was arrested for the
that Craigslist executives unfairly diluted
“One posting reads:
murder of a masseuse he allegedly
eBay’s interest and caused eBay to lose its
met through the Erotic Services
seat on the board. In September 2010, the
WE HAVE
link. In May 2009, a Queens prosDelaware Court of Chancery ruled that
titution ring that advertised on
Messrs. Buckmaster and Newmark vioSTOPPED MANY
Craigslist was busted by New
lated their fiduciary duties to eBay by
York authorities. That same
adopting a rights plan. The Delaware
TRUSTEE SALES,
month, Craigslist changed the
court noted, however, that a state court in
Erotic Services name to Adult
California will be deciding – in a counterServices and set up a team of
WE SURE AS HELL suit brought by Craigslist – whether eBay
attorneys to review the postings.
unlawfully made use of confidential inforNevertheless, heavy criticism conCAN STOP YOURS!” mation, i.e., whether eBay invested in
tinued from many sources, and
Craigslist in order to spy upon and gain
eventually the attorneys general
an advantage over Craigslist.
from 18 states (not New York)
Another legal issue arose earlier this
demanded that Craigslist remove
year.
The
controversy related to postings that
the Adult Services link. On September 4, 2010,
offered
to
sell
tickets
to Shakespeare in the Park perCraigslist suddenly deactivated the Adult Services link
formances
in
New
York
City. The tickets were free but
and posted a “CENSORED” banner in its place. By
limited in number, and operators were snatching up
September 8, the Adult Services link was completely
the tickets and selling them on Craigslist for $100 or
removed.
more per pair. In June 2010, New York Attorney
Could Craigslist have told the state attorneys genGeneral Andrew Cuomo announced that Craigslist had
eral to take a hike? The legal issues are complex. One
agreed to disallow any further postings related to the
of the laws that Craigslist has cited in its favor is
tickets.
Section 230 of the Communications Decency Act,
The legal issues and battles related to Craigslist
which protects online service providers from actions
are
not
likely to end any time soon. Craigslist is another
based on third-party content. On the other hand,
innovative
online network that is raising fascinating
Section 230 explicitly exempts from its protection any
legal
issues,
along with considerable opportunities and
claims under criminal law.
challenges for lawyers.
[B]
PAGE 9
policy and technical problem, there are several key elements to be considered.
lost in (techno) space
By Martha Buyer
Spectrum Utilization and Interference:
Issues for a Wireless-Driven World
As the New Year begins, many of us are sporting and using- new wireless communications-driven gadgets that were welcomed into homes and businesses
during the holiday season. In fact, the expansion in use
of wireless devices is expected to grow by as much as
37 times over the next five years, according to research
done by Cisco Systems and the Yankee Group, among
others. Every day, we can communicate from an
incredible array of locations (including close to the
summit of Mt. Everest) without the limitation or
bother of being tethered by a cord. The issue that the
ubiquitousness of wireless devices has created is that
spectrum, which is the highway that enables these connections, is a limited commodity that’s supporting an
increasingly unlimited number of service offerings.
These range from radar to broadcast radio to handheld
mobile devices to beepers, and include just about
everything in between.
Spectrum is a limited commodity. Once it’s gone
(either in use or allocated for future use), it’s gone.
Given the huge growth (both actual and anticipated) in
the wireless sector of telecommunications, the only
option to support the onslaught of additional wireless
services is for the National Telecommunications and
Information Administration, the FCC (which is respon-
Disclosure and
Compliance Program
gram, with the vast majority of those being accepted
by the Tax Department. Over 3,300 of those have
reached agreements with the department.
The program was created by statute in July, 2008
(Tax Law Section 1700) as a “flip side” to the department’s ramped-up enforcement efforts. Since its inception, it has provided thousands of New York taxpayers
with the opportunity to become tax compliant and get
out from under the burden of many old tax liabilities
while avoiding any penalties and possible criminal
prosecution. It provides strong protections and
enhanced benefits to those who self-disclose delinquent
tax liabilities that are unknown to the department. In
addition, it is easy to understand and easy to access
and it is available to almost all taxpayers. Taxpayers or
their representatives apply online, answer four simple
questions to determine eligibility and then tell the
department, in their own words, who they are and
what they owe. The program is designed to help taxpayers “clean the slate” on old tax debts and become
good tax citizens in the future by getting a fresh start.
The primary goal of this program is to help thousands of taxpayers clear up old state tax debt and,
more importantly, become tax compliant in the future.
To accomplish this important objective, the program
guarantees that taxpayers can make their disclosures to
the department, confident that the information they
give to us – including their identity – will never be used
against them or shared with any other agency if they
withdraw their application or if they join the program
and comply with their obligations.
All Information Remains Confidential
The department takes this statutory requirement
seriously. Neither the taxpayer’s identity nor the substance of their disclosure is shared outside the unit
administering the program. The information provided
sible for the licensing of such spectrum) and other
affected government agencies to work together to raise
the level of spectrum efficiency to a higher level while
minimizing interference. Additionally, the sale of spectrum by the federal government raises a decent chunk
of change. A 2008 auction of some prime real estate
spectrum in the C Band raised a whopping $19.6 billion dollars.
In late June, President Obama directed the NTIA, an
agency which operates under the Department of
Commerce, and the FCC to work together to identify
and secure 500 MHz of additional spectrum during the
next 10 years to support the burgeoning industry without harming essential users of such service including,
among others, the Department of Defense, the
National Security Agency and the FAA.
The first “found” spectrum is 115 MHz which will be
secured from two distinct sources. The first segment of
100 MHz currently is allocated to federal radar bands
within the U.S. that are beyond the reach of radar currently in use. The second segment of spectrum is the
result of the consolidation of spectrum bands currently
used for meteorological observation systems. (There’s a
weather joke here, but I’m not biting). There also
remains a great deal of un- and under-utilized spectrum which is currently assigned to commercial users,
including television stations and satellite phone service
providers. Reallocation of this spectrum lies up ahead,
although such action is not expected to happen in the
near term (one year). In any case, freeing up unused
spectrum so that it can be put to work is in everyone’s
best interest.
Increasing Interference on the Horizon
However, as more devices use the spectrum that is
available, the problem of interference will increase.
Interestingly, at least to me, is the fact that harmful
interference is caused not by transmitting devices but
rather by receivers. As various governmental and academic experts confront what’s likely to be a significant
First, many wireless devices are not licensed. In
2006, FCC Commissioner Michael Copps said “The
genius of this unlicensed technology is that no central
authority controls or manages how and where these
networks spring up. Instead, any private or commercial
operator who sees a need for a local Wi-Fi network may
build and operate one. The price that Wi-Fi users pay
for this freedom is that they… must accept interference
from other devices in the unlicensed bands. But the
nation’s half-decade of experience with this new technology has made it quite plain that this trade-off is
more than worth it. When it comes to providing broadband over the unlicensed bands, the airwaves are truly
the people’s airwaves.” However, in the four years since
Commissioner Copps’ comments, attitudes may have
changed, particularly as more people scramble for
more spectrum.
One of the problems is that since such services are
unlicensed, interference problems are difficult to
resolve because it’s virtually impossible to find someone to hold accountable for the interference. Given that
interference is time-sensitive, the amount of time necessary to identify, locate and work with an unintentional bad actor (not every entity that creates
interference is aware of the problem it creates) makes
speedy problem solving virtually impossible. Secondly,
interference isn’t always a deal-breaker. As Ellen
Goodman, a Professor of Law at Rutgers said in a
recent paper, “harmful interference should be a yield
sign, not a stop sign.” Her position is that harmful
interference (and the word “harmful” is important)
should be both “a tool to define rights AND a tool to
assign liability [for interference].”
Secondly, an unwillingness or inability to deal with
interference problems created by receiving devices
places obligations on those who aren’t even aware of
the problems that their equipment is causing. In other
words, the entity wreaking havoc on a wireless operation may have no idea about the consequences of its
seemingly harmless devices. For the time being, the
FCC has not set standards which monitor or manage
receiver performance. Given that the FCC is probably
the only entity that might be successful in seizing such
an opportunity, this too creates additional challenges
for managing interference.
There is an Italian proverb which reads “the best
armor is to keep out of range.” While this is true, in a
wireless world, it’s neither practical nor possible. With
this in mind, creative academicians and regulators
must look to find innovative and practical ways to utilize spectrum as efficiently as possible, while simultaneously minimizing interference.
[B]
PAGE 10
more than $1,000 in 2011). After exhausting the
TWP and “three-month grace period,” all future
wages for the life of their BOND project participation will be subject to the $1 for $2 offset formula.
in the public service
By James R. Sheldon, Jr.,
Neighborhood Legal Services, Inc.,
Supervising Attorney
Social Security Awards NLS Demonstration Grant;
“BOND Project” Offers Alternative for Disability Beneficiaries
The Social Security Administration has awarded
Neighborhood Legal Services, Inc. (NLS) a seven-year
grant, totaling $1.7 million, to serve as the lead agency
for the “Go BOND” (Benefits Offset National
Demonstration) project in western New York. NLS will
team with six partners to provide both short-term and
long-term work incentives, counseling, and related
services to an estimated 2,000 to 3,000 beneficiaries in
25 counties of western and central New York and five
counties of northern Pennsylvania.
SSDI Beneficiaries Face Loss of Benefits
Based on Earnings
The Social Security Disability Insurance (SSDI) program pays monthly benefits to adults who have paid
into the trust fund through payroll deductions. The
SSDI applicant must earn enough “credits” (typically
by working in five of the last 10 years) and meet a very
strict disability test. Some adult dependents, including
disabled adult children and disabled widows/widowers, can also qualify for SSDI payments against the
wage earner’s account. The average SSDI payment is
about $1,100 per month, with some beneficiaries getting as little as $300 and some getting more than
$2,000 per month.
SSDI beneficiaries are given a nine-month trial work
period (TWP), during which they can earn any amount
of money and still qualify for SSDI. After nine TWP
months (in 2011, months with $720 or more in gross
earnings), the individual who performs “substantial
gainful activity” (SGA) by earning more than $1,000
gross per month ($1,640 if statutorily blind), will
receive three more benefit checks and then lose their
entire SSDI payment. Several work incentives can
potentially soften the blow of this “all or nothing” rule
(including the right to return to benefits status if earnings fall below the SGA level), but sustained SGA-level
earnings will mean the loss of the entire SSDI payment
along with any payments to dependents. (For more
information on the current rules, see Sheldon, J. &
Lopez, E., Social Security Disability Insurance,
Medicare and Work: A Review of the SSDI and Medicare
Rules Related to Work Activity. Guidelines for
Proactively Using the SSDI and Medicare Work
Incentives to Help Individuals with Disabilities
Maximize Independence through Work, available at
www.ilr.cornell.edu/edi/nymakesworkpay/docs/SSDI%
20Brief-2.0.pdf.)
The current SSDI work incentives work very well for
some individuals. In fact, NLS, through its Work
Incentives and Benefits Advisement Project, has provided no-cost benefits counseling for many individuals
who then have successfully moved from benefits status
to self-sustaining employment. Unfortunately, many
others, faced with the loss of all their SSDI benefits by
working for as little as $1,000 per month, have shied
away from any substantial work. By working as little as
30 hours per week at $10 per hour, the $1,290 of gross
wages (30 x $10 x 4.3 weeks) would, in most cases,
eventually result in the loss of SSDI and dependents’
benefits (if any). The BOND project will offer individuals a much better incentive to seek employment,
knowing they would face only a gradual decrease in
SSDI payments as their wages increase.
BOND Participants Protected by Better
Work and Benefits Rules
If an individual is offered an opportunity to participate in BOND, elects to do so, and is then randomly
assigned to one of two participant groups, his or her
work activity will be subject to the following rules:
• The participant will still be allowed a nine-month
trial work period under the usual rules, with the
ability to retain both SSDI checks and paychecks.
• The participant will then receive three more SSDI
checks, under the usual rules, when he or she performs substantial gainful activity (i.e., by earning
• Under the benefits offset formula, “countable
wages” up to the SGA level for the year in question will not affect the SSDI check. Gross wages
can be reduced by certain allowable amounts, like
impairment-related work expenses, to determine
if countable wages are more than the SGA level.
• For every $2 of countable gross wages above the
monthly SGA level, the SSDI payment is reduced
by $1.
• So long as the participant qualifies for any SSDI
payment, the benefits of all dependents (including
those of minor children) will continue. However, if
the SSDI payment in a month is reduced to $0, all
dependent beneficiaries will also lose their benefits in that month.
This benefits offset formula is best understood
through an example:
Mary has a mental illness and was receiving $1,100
in monthly SSDI and her two minor children were each
receiving $275 per month when Mary went to work.
Mary worked for seven months at the same rate of pay,
30 hours per week at $10 per hour ($1,290 per month
gross) when she officially enrolled in the BOND project.
We assume that Mary has no impairment-related work
expenses or other expenses that would reduce her
countable wages when measuring them against the
$1,000 SGA level.
Under the usual rules, Mary would have two months
left on her nine-month trial work period and would lose
her right to an SSDI check after completing the TWP
and three-month grace period. This means Mary would
get five more SSDI checks and then receive no SSDI as
she continued to work at this rate of pay. Both children
would also lose their $275 dependent checks after the
three-month grace period. By earning $1,290 per
month, Mary and her children stood to lose $1,650 in
combined Social Security benefits.
As a BOND participant, Mary’s wages after the TWP
and grace period will be subject to the special benefits
offset test. First, Social Security will estimate her
annual wages (12 x $1,290 = $15,480). If the total
exceeds the annual SGA level (12 x $1,000 =
$12,000), the excess amount is divided by 12 to determine how much each month is subject to the $1 for $2
offset test. Mary will have $3,480 in projected excess
income or $290 per month that is subject to the offset
test.
Here is how Mary’s SSDI check will be calculated:
$290
Gross excess wages per month
-145
Fifty percent excluded ($1 for $2 offset)
$145
Countable wages
$1,100
Regular SSDI payment
-145
$ 955
Countable wages
New SSDI payment amount
Mary has now earned $1,290 per month and her
SSDI check is reduced by $145, with her children’s
benefits untouched.
BOND Participants to Receive Incentives
Counseling Services
Individuals recruited by Social Security’s contractor,
Abt Associates, will be assigned to a control group (getcontinued on page 16
PAGE 11
News from Kent, Our Sister City in Great Britain
By Jonathan Smithers
I recently read a quotation which
went along the lines of “there is
plenty of room on the extra mile.”
This reminded me of a question
raised by my late father when, as a
youngster, he asked me about the
tune that I was humming. I admitted
that it was “I am in with the in crowd.” I then received
a lecture about how the people that get things done are
not those that follow the herd. They don’t necessarily
have to be leaders – although they often turn out to be
– but are usually those not afraid to think their own
thoughts. Thus being with the “in crowd” was not
what I should be striving for!
As a teenager, I am sure that I was quite resentful of
this parental direction, however true and necessary the
sentiment. I suspect my father knew that but, like all
good parents, said it anyway in the hope that it might
sink in somewhere. Well, judging from the fact that I
am writing this well over 30 years later, his hope was
not in vain.
I have recently signed off on a piece of work for the
Law Society of England & Wales relating to real estate
contracts. The idea has been around for a long time,
but I and a couple of others kick-started it as a first
draft. It has been looked at by many people and pulled
into what should now be an industry-standard document for all residential property transactions in the
country.
As a very interested observer, I think without exception all the people who actually contributed had taken
the time and trouble to read the whole document and
make an informed comment. It became very clear to
the authors that some of the correspondents simply
wanted a voice without reading that upon which they
were commenting; others used it as a soapbox to voice
an opinion, sometimes at a complete tangent to the job
at hand.
A thorough debate has, I hope, brought us to a position where professionals can rely on policies and procedures that have been well thought through and are
designed to assist not only themselves, but more
importantly their clients.
The extra mile that I was talking about? Those of
us who commenced the project were not compelled to
do so. Nobody twisted our arm or forced us, but we
saw an opportunity and have run with it. Although we
asked for and received opinions, because we went out
on our own, we had the freedom to push boundaries
and explore how we might change things for the better.
Time will tell whether we can overcome
some entrenched positions – you all know what
lawyers are like!
[B]
Become a fan of your
favorite Bar Association
on Facebook, follow us
on Twitter, and join our
group on LinkedIn.
PAGE 12
The Surrogate ordered a hearing, at which Robert
refused to participate. The sisters put in evidence that
their brother as trustee received $127,000, which was
entirely unaccounted for. They also put in evidence
that Robert had engaged in day trading with the trust’s
assets.
death and taxes
By Peter J. & Jillian E. Brevorka
Recent Surrogate’s Court Decisions and Other
Estate Planning Matters
Matter of Woolworth, 76 A.D.3d 160 (4th
Dept., 2010)
This case deals with creation of a Supplement Needs
Trust (SNT) by court order to shelter a tort recovery.
Generally speaking, a trust funded by an individual’s
own assets (a so-called self-settled trust) will disqualify
the individual from qualifying for Medicaid. However,
42 USC 1396p(d)(4)(A) and N.Y. Social Services Law
§366(2)(b)(2)(iii) provide that a self-settled SNT will
not disqualify an individual if: (1) the individual is
under 65 and disabled; (2) the trust was created by a
parent, grandparent, or guardian of the individual, or
by a court; and (3) the trust provides that at the death
of the individual, Medicaid will be reimbursed for
assistance given to the individual.
Ronald Woolworth died as the result of medical malpractice. His widow, as administrator of his estate,
commenced an action seeking damages for wrongful
death and conscious pain and suffering. The action was
settled, and $516,876 was paid into the decedent’s
estate, of which the widow’s share was $283,438.
The widow was disabled and on Medicaid. Since she
had no parent or grandparent living, and no guardian
who could create an SNT for her, her lawyer filed a
petition in the Surrogate’s Court seeking an order of
the court directing that her share of the estate be
placed in an SNT drawn in conformity with the language contained in EPTL 7-1.12.
There then occurred an exchange of correspondence
between the Surrogate and the widow’s lawyer, in
which the Surrogate indicated his distaste for SNTs to
shelter resources of a person on Medicaid. This culminated in a letter in which the Surrogate wrote that he
would only permit a trust of $100,000, and said:
In the end, I believe that I have a responsibility to the public fisc that takes priority. I
recognize that to have someone pay from
their own resources when somehow, [some
way] we can get the government to pay is an
old-fashioned thought but it is a thought I
agree with. ...[I]f my only choice is to establish a trust with the entire amount or to
decline the request, my inclination would be
the latter.
The Surrogate denied the petition to the extent that
it sought the approval of an SNT funded by the
widow’s entire share of the settlement. The widow
appealed.
In an opinion by Justice Samuel Green, the Appellate
Division unanimously reversed and granted the petition in its entirety.
The Fourth Department held that, while the decision of whether to establish or approve an SNT is discretionary with the Surrogate, in this case the
Surrogate had abused his discretion by denying the
request.
The Court reviewed the background of SNTs, and
especially noted the Court of Appeals’ discussion in
Matter of Abraham XX, 11 NY3d 429, that the SNT
represents a bargain struck between the SNT beneficiary and the state in which the state agrees to continue
providing Medicaid assistance in exchange for the possibility of reimbursement from the SNT upon the death
of the beneficiary.
The Surrogate held that where the fiduciary fails to
meet his burden to prove an accurate account, and
where the objectant provides evidence as to inaccuracies, the burden then shifts back to the fiduciary to
prove by a fair preponderance of the evidence that the
account is accurate and complete. The fiduciary having failed to participate at all, the Surrogate surcharged
him for $127,000.
The trustee appealed to the Fourth Department
which affirmed the bulk of the decision below. The
court held that although the trust agreement directed
that New Jersey law would apply to the trust, since the
trustee resided in Monroe County, the Surrogate had
jurisdiction to hear the case and apply New Jersey law,
including that state’s version of the Prudent Investor
Act, which had been enacted after the date of the trust.
The Appellate Division did hold, however, that under
New Jersey law, the Surrogate lacked jurisdiction to
surcharge the trustee for the sisters’ legal fees.
[B]
The Court noted:
In refusing to approve the funding of the proposed
SNT with a sum greater than $100,000, the
Surrogate skewed the balance fashioned by the
legislature in favor of the state and to the detriment of the petitioner. By placing that limitation
on the funding of the SNT, the Surrogate ensured
that petitioner would lose her eligibility for
Medicaid, a result that is inconsistent with the
public policy underlying SNTs and the Surrogate’s
function in approving and supervising their establishment.
Matter of Srozenski, 2010 NY Slip Op
8276; 2010 N.Y. App. Div. LEXIS 8444
(Nov. 12, 2010)
This case confirms the jurisdiction of a New York
court over a trust created out of state and provides
some instruction on how to deal with a recalcitrant
trustee.
While a resident of New Jersey, Joseph Srozenski created a living trust some time prior to 1997, and
appointed his son, Robert, as trustee.
Robert’s sisters, who were the beneficiaries of the
trust, were residents of Monroe County, as was Robert.
The sisters brought a proceeding in Monroe County
Surrogate’s Court to compel an accounting by Robert.
Robert refused to account, claiming the since the trust
was a New Jersey trust, the Monroe County Surrogate’s
Court lacked jurisdiction to hear the matter.
It’s a Brave
New E-world…
…and
your
favorite
Bar
Association is now available on your
favorite social networking sites!
In addition to our Web site,
www.eriebar.org, news, information
and updates can now be found on
Facebook, Twitter and LinkedIn.
As part of our ongoing effort to
communicate timely information to
our members, you will also receive
e-newsletters from us about
upcoming CLE programs, career
opportunities and news items
that come to our attention between
issues of the Bulletin. If for any reason, you have not been receiving
these materials or choose not to
receive them, please contact Susan
Kohlbacher at 852-8687 ext. 21 or
skohlbacher@eriebar.org.
As always, your comments, questions and suggestions are invited.
PAGE 13
western district case notes
By Paul K. Stecker and Kevin M. Hogan
ENVIRONMENTAL LAW
In NL Industries, Inc. v. Halliburton Co. (10-CV89A, 11/2/10), the court granted in part and denied in
part defendants’ motion to dismiss plaintiff’s amended
complaint seeking reimbursement under CERCLA of
response costs plaintiff incurred pursuant to a consent
order with EPA. The court held that plaintiff was entitled to pursue recovery of its response costs under §107
of CERCLA because it had directly incurred those costs
by performing the clean-up work itself, but that plaintiff could not pursue an action for contribution pursuant to §113 of CERCLA, at least at this time,
because it had never been sued and no CERCLA liability had yet been imposed on it.
ERISA/INSURANCE
In Brondon v. Prudential Insurance Co. (09-CV6166T, 11/9/10), plaintiff sued after the defendant
insurer denied his claim for life insurance benefits following his wife’s death. The insurer contended that no
benefit was payable and that it was entitled to rescind
the policy because the wife’s application for insurance
did not disclose that she suffered from mitral valve prolapse, information the insurer contended she should
have disclosed in response to a question asking whether
the applicant had been diagnosed with or taken medication for “heart trouble.” The court granted plaintiff’s motion for summary judgment and awarded him
the death benefit (plus prejudgment interest and attorneys’ fees pursuant to ERISA), holding that (i) the
question about “heart trouble” was ambiguous as a
matter of law, (ii) the insured’s answer to that question
accordingly could not be used as evidence of a misrepresentation, (iii) the question should instead be interpreted as asking for the applicant’s opinion as to
whether she suffered from “heart trouble,” and
Recycle your Bulletin
PAGE 14
citations
By Jeff Spencer
SEWER SUIT WON’T GET THE BOOT
With the sound of a mighty gush
The sewer backed up
In a reverse flush!
The smell invaded all the more
As sewage spread
Across the basement floor.
The sewer district’s street work
Just days before
Was clearly a culprit to explore.
The county’s dismissal motion couldn’t hide
That factual issues of causation
Did surely abide.
Desrosiers v. County of Erie, __AD3rd__, 4th Dept.,
11/19/10, #1163
CONTEMPT CONVICTION CANNED
An incarcerated defendant’s conviction for criminal
contempt was reversed by our Fourth Department,
noting that he was called to testify before the grand
jury without notifying his attorney (Peo. v. Nagel,
__AD3rd__, 11/19/10, #1000.1).
PARTIES’ CHOICE STILL HAS VOICE
An application for child support modification may
consider a lower threshold if that was agreed to by the
parties in their stipulated agreement (In the Mtr. of
Lomanto v. Schneider, __AD3rd__, 4th Dept.,
11/12/10, #1203).
PAYBACK PARAMETERS
In a thorough opinion by Justice Rose Sconiers, our
Fourth Department has held that a county department
of social services is entitled to recover Medicaid payments from the estate of a decedent recipient including
funds from a tort settlement (In the Mtr. of the Estate
of Heard, __AD3rd__, 11/12/10, #971).
CASH OR CAN OK’D
Our Fourth Department has approved the use of a
cash undertaking to enable a nonpaying parent to
purge himself of a six-month Family Offense conviction
(In the Mtr. of Riggs v. Vandusen, __AD3rd__,
11/12/10, #1282).
“COLLAPSE” CLASH
The meaning of the word “collapse” in a homeowner’s insurance policy was found to be a fact issue which
precluded summary judgment in Khuns v. Bay State
Ins. Co., __AD3rd__, 4th Dept., 11/12/10, #1090.
FINE LINES THAT BIND
Clarifying the border between two lakefront lots
required the determination of an unasserted adverse
possession claim to a triangular parcel which affected
both neighbors (Margetin v. Jewett, __AD3rd__, 4th
Dept., 11/12/10, #1011).
In Bond and Bootey v. Turner et al. (__AD3rd__,
11/12/10, #1045), our Fourth Department reviews the
impact of a public-dedicated easement on property
owners.
“SERIOUS” SENSITIVITIES
Chiropractic and medical submissions that plaintiff
had a “serious” injury after a “rear ender” motor vehicle accident precluded summary judgment to defendant in Howard v. Robb, __AD3rd__, 4th Dept.,
11/12/10, #1309, affirming Justice Ralph Boniello.
ARBITRATION ELEVATION
In Yoonessi v. Givens (__AD3rd__, 11/12/10,
#1373), our Fourth Department affirms Justice Frank
Sedita’s confirmation of an auto accident arbitration
award.
PAGE 15
Are You Up For A Night
of Stories?
By Paul Wolf
Being a lawyer is a tough but noble
profession. We help people in some of
the most important accomplishments
of their lives, such as purchasing a
home, starting a business and adopting a child. We also help people in
some of the most difficult times of
their lives, such as when they are arrested, filing bankruptcy and getting divorced.
SPECIAL THANKS TO ERIE COUNTY BAR FOUNDATION CAMPAIGN ‘10 SPONSORS Pictured above at the reception for the Erie
County Bar Foundation’s Campaign ‘10 are, left to right, Matthew Wilkinson of Arbor Capital Management Company,
Campaign ‘10 chair Roger L. Ross, Lawrence T. McGowan of Arbor Capital Management Company, Mark A. Lotterer and Peter
Battaglia of Chicago Title Insurance Company and Foundation president William Ilecki. Support from Arbor Capital
Management Company, Chicago Title Insurance Company and M&T Bank Corporation helps defray campaign costs, allowing
contributions to be used directly for the Foundation’s attorney assistance programs and services. Photo by Susan L. Kohlbacher
Annual Dinner Awards Recognize Outstanding
Contributions to the Profession
Each year at the annual dinner, the BAEC recognizes
lawyers and judges who have made outstanding contributions to the Association, the legal community and the
profession.
All members are encouraged to send in their nominations to the awards committee. The board of directors
reviews the recommendations of the awards committee
and makes the final determinations.
It is our goal to honor the most deserving recipients
each year and to make certain that all members have the
opportunity to participate in the process. Please consider
submitting your nomination(s) for the following awards:
The Lawyer of the Year Award
There are no specific criteria for this award. In the
past, the award has been bestowed on attorneys who
have made considerable contributions to the legal profession and community, or devoted considerable time
and efforts to Bar Association activities. Recent Lawyers
of the Year include David Gerald Jay (2009) and
Terrence M. Connors (2010).
All Bar members are eligible for this award. Those
nominated should:
1. Promote the good will of the profession both within and outside the legal community.
2. Foster respect for the legal profession.
3. Elevate the standard of integrity, honor and courtesy in the profession.
4. Encourage the spirit of brotherhood and sisterhood
among members of the Bar.
5. Protect and promote the interests of the public and
the profession and advance the administration of
justice.
6. Promote the protection of American institutions
and principles.
The Outstanding Jurist Award
This award is only presented when a jurist’s devotion
to the profession and the judicial system warrants singular recognition. The award recipient must receive a twothirds vote of the board of directors in order for the
award to be conferred. Recent recipients include Hon.
Joseph D. Mintz (2009) and Hon. Thomas P.
Franczyk (2010).
The Special Service Award
This award is also not presented annually, but whenever a person has contributed to the good and welfare of
the Bar Association of Erie County and its members in
an exceptional manner. Daniel T. Lukasik received the
award in 2009 and Robert H. Lawrence and John
Nuchereno were recognized in 2010.
Award of Merit
There are no criteria established for the Award of
Merit. Its presentation often reflects extraordinary circumstances that deserve special recognition. Robert M.
Elardo was honored in 2009 and the award was presented to Scott A. Bylewski in 2010.
In their representation of clients, lawyers encounter
people from all walks of life in all kinds of situations. As
an attorney for 19 years, I have had the opportunity
while waiting for my case to be called to hear fellow
attorneys tell stories that were funny, sad, inspirational
and educational about their work.
Telling and hearing stories can be a great experience.
I think it would be fun to gather a room full of lawyers
together in a pub on a cold winter night to share stories
about our profession. I envision a comfortable setting
where people can enjoy a drink and hear stories about
being a lawyer such as:
• A colleague who mentored you;
• Your most rewarding moment as an attorney;
• Your most humorous or embarrassing moment as
an attorney; and
• Your most difficult moment as an attorney.
If you are interested in such an event - whether to tell
a story or to just listen - let me know at
paulwolf2@gmail.com or by telephone at 435-4976. If
there is enough interest, with the help of others, I will
set something up.
[B]
Charles H. Dougherty Civility Award
The Bar Association of Erie County established the
Charles H. Dougherty Civility Award to recognize a
lawyer in our community for demonstrating the highest
standards of professionalism and civility in the practice
of law. Joseph B. Mistrett and Richard N. Blewett
were recognized in 2009 and the award was given to
John F. Canale in 2010.
Attorneys or judges nominated for this award should:
1. Demonstrate courtesy and professionalism in dealings between lawyers, judges, court personnel, witnesses and clients.
2. Promote the resolution of legal matters and avoids
undue burden and expense.
3. Elevate the standard of integrity, honor and courtesy in the legal profession.
How to Nominate a Candidate for an Award
Nomination forms for each of the awards are available
at www.eriebar.org or by calling Sharlene Hall at 8528687, Ext. 20. Completed forms should be forwarded to
E. Michael Semple, Awards Committee Chair, at the Bar
Association office. The deadline for receipt of nominations is March 4, 2011.
[B]
PAGE 16
In the Public Service
Western District Case Notes
ting no special rules or services not otherwise available)
or one of two participant groups: Work Incentives
Counseling (WIC) or Enhanced Work Incentives
Counseling (EWIC). Neighborhood Legal Services will
be the lead agency for the WIC group, with those individuals getting the benefit of the $1 for $2 offset test
and benefits counseling services. Erie I BOCES (West
Seneca) will also work with several partners and serve
the EWIC group. Those in the EWIC group will get, in
addition to benefits counseling, employment-related
services to assist them in finding work or vocational
rehabilitation/educational services necessary to prepare
for work. Both NLS and Erie I BOCES will serve participants in the same 30-county region.
(iv) there was no evidence suggesting that plaintiff’s
wife had considered her condition to be “heart trouble.” (Although the court held that the ERISA “arbitrary and capricious” standard of review did not apply,
and instead applied the de novo standard, the court
found that the same result would obtain under an
“arbitrary and capricious” standard.)
With more than 10 years experience in providing
benefits counseling to SSDI and Supplemental Security
Income (SSI) beneficiaries, NLS understands how this
service can help someone like Mary understand both
the impact of work on benefits and the work incentives
that can help her as she pursues her work goals. The
benefits counseling provided by NLS or its partners
would help Mary understand, for example: how the
benefits offset formula will work for her and her family
at various earnings levels; that she would retain
Medicare as she moved forward with work activity;
and that she could qualify for the Medicaid Buy-In for
Working People with Disabilities, providing a source of
no-cost or low-cost Medicaid coverage. We would also
work with Mary and others, based on their unique circumstances, to identify other benefits and/or services to
help meet their needs as they progress with work goals.
BOND Project to Begin in April 2011
The BOND project is scheduled to begin serving
SSDI beneficiaries (and some who receive a combination of SSDI and SSI) within the 30-county western
New York site in early April. Services will also commence in nine other demonstration sites in various
parts of the country. Before the full project begins, NLS
and Erie I BOCES will handle a very small number of
BOND pilot participants, starting in February 2011, to
make sure all the protocols are in place for this ambitious seven-year project.
Individuals with questions about the BOND project
or any other issues related to benefits and work can call
the NLS toll-free Work Incentives Hotline at 1-888224-3272 (sponsored by the NY Makes Work Pay
Project).
[B]
FEDERAL TORT CLAIMS
In Grace v. United States (08-CV-6006 CJS,
11/3/10), plaintiff brought malpractice claims against
the Department of Veterans’ Affairs (“VA”) and the
University of Rochester arising out of his treatment by
a University of Rochester physician under contract to
the VA. The court granted the Government’s motion to
dismiss plaintiff’s claims, except insofar as plaintiff
claimed that VA employees were negligent in failing to
reschedule an appointment, on the ground that the
physician was an independent contractor and that the
“strict control” test for determining whether the physician was an employee was not satisfied merely because
the VA directed when and where she would work. The
court also held that plaintiff’s state law medical malpractice claims against the University and the physician were time-barred because the amended complaint
adding them as defendants did not “relate back” to the
filing of the original complaint against the government
because the defendants were not united in interest.
Law Line Educates
Public on Legal Issues
Since 1997, The Law Line has engaged the
minds of thoughtful western New Yorkers who
tune in to WNED-AM (970) at 10:00 on
Saturday mornings. Host Mike Desmond talks
to lawyers and judges from our legal community on wide-ranging topics related to the law.
The program provides a valuable public service
that reaches about 8,400 listeners each week.
We appreciate the time that the following
members of our Association have taken to educate the public about legal matters by volunteering their time to appear on The Law Line.
William P. Moore
Premises Liability from A-Z
Hon. Carl L. Bucki
The Chapter 13 Program in
Bankruptcy Court
PUBLIC EMPLOYEES
In Mac Fall v. City of Rochester (09-CV-6113L,
10/27/10), the court granted defendants’ motion dismissing §1983 and other claims by police officers who
sued after they were suspended with pay following an
altercation with civilians. Among other holdings, the
court held that plaintiffs’ claims that they were unable
to earn overtime pay during their suspensions could
not form the basis of a due process claim because the
collective bargaining agreement did not guaranty that
officers could receive overtime pay, and plaintiffs
therefore did not have a sufficient property interest to
support such a claim arising out of their having been
placed on paid leave.
Stephanie A. Cole
Social Networking Issues
The Law Line is underwritten by the Erie
County Bar Foundation and the Lawyer
Referral and Information Service of the BAEC.
If you would like to appear as a guest on the program, please contact Maureen Gorski at 8528687 or by e-mail at mgorski@eriebar.org.
TAXABLE COSTS
In Byrne v. Telesector Resources Group, Inc. (04-CV76S, 11/2/10), plaintiff moved to strike the defendant’s
bill of costs. Although the court denied the motion,
it denied as non-taxable the defendant’s request
for costs for condensed deposition transcripts and computer disks, and also for postage unrelated to the cost
of service.
[B]
Citations
CHEERLEADER SUIT GOES
DOWN THE CHUTE
A suit arising out of a fall during a cheerleading stunt
was dismissed in Larson v. Cuba Rushford Cent. Sch.
Dist., __AD3rd__, 4th Dept., 11/19/10, #1346.
GAZEBO MUST GO
Our Fourth Department has upheld the enforcement of
development’s restrictions, precluding defendant’s gazebo
and statuary in Spaulding Law Club, Inc. v. Jiang,
__AD3rd__, 11/19/10, #1284. See also Camperlino v.
Town of Manlius et al., __AD3rd__, 4th Dept., 11/19/10,
#1303.
PAGE 17
Young Lawyers Look to the Future
By William P. Moore, Chair
BAEC Young Lawyers Committee
Our “Evening with the Judiciary”
was nothing short of a success! We
had nearly 80 attorneys and 25
judges in attendance at the Saturn
Club. The main lounge was filled
with conversation, food, drink and
the sounds of the crackling fireplace.
It was a great opportunity for the young lawyers accustomed to their cozy offices and world of briefs to get
out and meet the judges with whom they rarely interact. Thank you to the judges who took the time to
interact with the young bar members.
BAEC Young Lawyers Committee vice chairs Leah R. Nowotarski
and Joshua Dubs.
Photos by Sharlene Hall
Special thanks also go out to our sponsors:
BAEC president Scott M. Schwartz and BAEC Young
Lawyers Committee chair William P. Moore.
Gold: Lipsitz Green Scime Cambria; Phillips Lytle,
LLP; Hodgson Russ LLP; Jaeckle Fleischmann &
Mugel, LLP; Cellino & Barnes; and Plaintiff Support
Services.
Silver: Cohen & Lombardo and Kenney Shelton
Liptak Nowak LLP.
Bronze: Law Offices of Howard Cadmus; Law
Offices of Harvey Siegel; Law Offices of Leroi Johnson;
Zoom Copy; Moore Family Dental and Pour L’Amour
du Chocolat.
By the time of publication, the “Young Lawyers
Yuletide Challenge” toy drive challenge results should
be in. You can expect results in next month’s Bulletin.
Thank you to all who participated – I am sure your
generosity brought smiles to many children.
The New Year will bring us the high school mock
trial tournament. Please stop by our next meeting on
January 21 at Bar Headquarters. We are looking for
more young lawyers to join our committees, especially
as they relate to the mock trial program. I strongly
encourage you to attend our next meeting, as we will
be planning our 2011 events schedule, including ways
to interact with other young professional groups, such
as CPAs and financial planners.
Katy M. and Timothy R. Hedges, Destin C. Santacrose, James J. and Lauren Nash.
Hon. Gerald J. Whalen
We are always looking for new committee members
and ideas. Finally, if you have not yet joined the Bar
Association of Erie County, please do so. The
Association has a great deal to offer you as an attorney
and is an invaluable resource.
All the best in 2011!
BAEC president Scott M. Schwartz, Kelly A. Connors, Hon. William M.
Skretny and Amanda Goun.
Brittany Penberthy and BAEC Young Lawyers
Committee membership chair Melissa A.
Cavagnaro.
Hon. Eugene F. Pigott, Jr. and Craig R. Bucki
Who are we? Inquiring minds need to know! Please e-mail
Bonnie O’Brian at obrian@eriebar.org.
Hon. Jerome C. Gorski welcomes members of the Young Lawyers Committee.
PAGE 18
Wedding Food Error & Emotional Distress: Remedy Please!
By Lindy Korn
A Jewish family and their rabbi
cannot recover damages for the emotional distress they allegedly suffered
when a wedding caterer mistakenly
served non-kosher food, a U.S.
District Court in the District of
Columbia ruled. (U.S. District Court for the District of
Columbia. Siegel v. Ridgewells, Inc. No. 05-1717. Sept.
30th, 2007).
The family contracted with a caterer for their daughter’s wedding reception. The agreement was understood to be for a “semi-kosher” menu. At the reception,
non-kosher items were served, including a non-kosher
sushi tray.
• Does the family recognize the vagueness in “semikosher” menu?
The family and their rabbi sued, claiming negligent
infliction of emotional distress. The caterer sought
summary judgment.
• Are there issues of understanding the importance
of kosher food at a wedding reception based on
practicing Judaism?
The judge granted the caterer’s motion, finding the
uncertainty over whether the rabbi actually ate nonkosher sushi was not sufficient to place him in the
“zone of danger.” The court stated, “there is no evidence here that the rabbi ate any sushi that contained
non-kosher items.”
• Does the rabbi feel misled and offended?
Further, the court found no “severe and verifiable”
mental disturbance on the part of the family.
“Other than the tainted memories of the wedding
reception, plaintiffs point to no evidence indicating any
physical manifestation of this alleged emotional distress
or long-term mental disturbance caused by the emotional distress showing that the emotional distress was
‘severe and verifiable’,” the court said.
There are certain events that remain memorable
over time. One’s wedding reception constitutes such a
time. The conflict caused by misunderstandings in this
matter remain as a memory and survive the granting of
[B]
the summary judgment!
• Has the conflict overshadowed the wedding?
• Can each party provide education to the other, so
that this mistake is not repeated?
• What can be done to restore relationships between
the parties?
There are issues of emotional distress that cannot be
dealt with in a motion practice. The severity of distress
cannot be defined by legal parameters or “zone of danger” analysis. Rather, apologies for mistakes made,
recognition of a religious practice, and the possible lack
of clarity in regard to the menu contracted for the wedding reception need to be acknowledged.
Perhaps the remedy in this case cannot be reached
via litigation and is more suitable for mediation. What
interests do the parties share that still remain? Can
emotional distress be understood in the context of violating religious dietary laws? Reading this fact pattern,
it seems that money resulting from the caterer’s mistake may not wholly solve the plaintiff’s complaint.
The following questions remain:
• What do the parties want from one another?
• Has the caterer acknowledged a mistake in the
menu and its severity?
Domestic Violence
is NEVER Okay.
Domestic abuse doesn’t discriminate. It happens within all age ranges, ethnic backgrounds,
and financial levels. If it happens once, it will
happen again. The abuse may occur during a
relationship, while a couple is breaking up, or
after a relationship has ended.
Despite what many people believe, domestic
violence is not due to an abuser’s temporary
loss of control over his or her behavior. In fact,
violence is a deliberate choice made by the
abuser in order to take control of a spouse or
partner.
Look What You Made Me Do! In spite of
the abuser’s efforts to “blame the victim,”
domestic violence is NEVER your fault. If you
or a loved one are suffering, help is just a phone
call away. Please call 852-1777 in complete
confidence today to be referred to a colleague
who can help.
Don’t Suffer in Silence.
Let Us Help You Find Your Voice.
PAGE 19
Erie County Bar Foundation: Helping Those
Who Help Others
By Sharon Osgood
Lawyers are strong, aren’t they?
Clients look to them to solve their
legal problems. Other lawyers look to
them as worthy adversaries. Friends
and family look at them as smart,
confident, capable people (and
maybe available for free services).
The community looks to them for financial and political support.
But is it always true that lawyers are
so strong? Fortunately, that concept is
often true, but unfortunately, not always.
Therein lies a two-pronged dilemma.
Frequently, it is extremely difficult for
lawyers to acknowledge to their fellow
professionals, the court, clients, friends
and family, and most of all, to themselves,
that they are in need of help. Reasons can
be many for needing help – medical conditions, mental problems, aging, loss of
employment or of significant clients, or
other financial catastrophes. Sometimes
substance abuse leads an otherwise strong
person to limited functioning. Pride and
embarrassment often result in a crippling
inability to reach out for help from any
source. We are supposed to be the strong
ones, after all.
enabling them to return to full function or helping
them to adapt to new circumstances as successfully as
possible.
What is the second prong of the dilemma? Because
we view each other as strong, and those needing services are afraid to acknowledge their need, we are slow
to recognize the importance of a resource like the Bar
Foundation and even slower at supporting it financially.
“To continue to
provide support,
our otherwise quiet,
gentle Bar Foundation
must get noisy and
pushy once a year.
Please do not cringe.
Just write a check.”
In Erie County, however, we are fortunate to have the Bar Foundation, a
unique resource to assist lawyers and their families who
find themselves in crisis. With empathy and a desire to
help, the Bar Foundation, through its social worker and
Foundation members, stands ready to provide confidential consultation that can lead to advice on practice
and financial issues, referrals to agencies or counselors,
and cash grants and loans.
In its over 50 years of existence, the Foundation has
quietly assisted scores of attorneys through crisis, often
To continue to provide support, our otherwise quiet, gentle
Bar Foundation must get noisy
and pushy once a year. We need
your help financially. We urge
you to give generously to our
current campaign. You have
received donor cards. You are
likely to receive calls. Please do
not cringe. Just write a check.
In Memoriam
“Memory is a way of holding on
to the things you love,
the things you are, the things you
never want to lose.”
~ Kevin Arnold
We wish to honor the memory of the following members of our Bar Association. Memorial
gifts to the Erie County Bar Foundation are
an excellent way to remember friends and
colleagues, as gifts are used for the benefit
of the entire profession.
And please also keep an eye
out around you for attorneys
who may be in distress. Do not
hesitate to encourage them to
contact us. The Bar Foundation
is here, making a positive difference in the lives of our members
who reach out to us.
[B]
Mary M. Donogher
Richard C. Marcus
Luke C. Owens, Jr.
Anthony L. Pusateri
PAGE 20
Bench and Bar
John G. Schmidt Jr., a partner
with Phillips Lytle LLP, has been
elected to a two-year term on the
National Kidney Foundation of
Western New York’s board of directors. The Foundation works to prevent kidney diseases, improve the
Schmidt
health of those affected by them and
increase the availability of organs for
transplantation. Schmidt has also been appointed to
the Campaign Cabinet of the Regional Center of
Excellence for Transplantation and Kidney Care at the
Erie County Medical Center. This center will support
patients from diagnosis through the transplant process
and post-transplant care. Schmidt concentrates his
practice in commercial litigation, business torts, class
action defense, federal practice, e-commerce litigation
and computer forensics. He serves as co-leader of the
firm’s commercial litigation practice team and is
involved in many local civic organizations.
Hon. Lisa Bloch Rodwin was
recently honored by the WNY
Women’s Bar Association as the
recipient of the 2010 President’s
Award for her service to the families
and children of the community. Bloch
Rodwin will also be honored
Rodwin
in January by the National
Federation for Just Communities of
WNY with the 2011 Community Leader Award for
Legal Service. In addition, she recently organized and
led a local conference for judges, attorneys and social
workers in Family Court entitled “Working with
Muslim and Immigrant Families: Breaking Cultural
Barriers.”
Coyle
John Coyle has been named an
associate at Chelus, Herdzik, Speyer
& Monte, P.C., where he will focus on
litigation and general practice matters. Coyle will work from both the
firm’s downtown Buffalo office and
its branch office in Cheektowaga. He
received his JD from Wake Forest
University School of Law and his BA
in Political Science from Niagara
University.
Mary C. Fitzgerald has joined
Brown & Kelly, LLP as Of Counsel,
where she will focus her practice on
insurance coverage and defense litigation, including toxic torts, motor
vehicle accidents, premises liability
and appeals. Fitzgerald is a graduate
of the University of Chicago and
Fitzgerald
Cornell University, where she
received her JD cum laude. A past president and former
director of the Women Lawyers of WNY, Inc., she has
also been active with Women’s Bar Association of the
State of New York, WNY Chapter, the Buffalo
Zoological Society and Westminster Early Childhood
Programs. Fitzgerald received the Special Service
Award for outstanding performance as pro bono counsel from the United States District Court, Western
District of New York. She is admitted to practice in
New York and in the United States District Court for
the Western District of New York.
Disare
Schmit
Swift
Jaeckle Fleischmann & Mugel, LLP has named partner Melinda G. Disare, special counsel James N.
Schmit and associate Sharon A. Swift to the firm’s
labor and employment practice group. The group will
now have seven attorney members. Disare formerly
served as partner and chair of the labor and employment practice group at Damon Morey LLP and concentrates her practice on labor and employment matters. She currently serves as vice president of the
Volunteer Lawyers Project and on the board of trustees
of D’Youville College. She earned her BA magna cum
laude from West Virginia University, and her JD cum
laude from Cornell University.
Schmit was formerly special counsel with Damon
Morey’s labor and employment practice group, where
he served as chair for several years. He represents
employers in contract negotiations, arbitration proceedings, wrongful termination in addition to trial and
appellate practice in state and federal courts. Schmit
received his BA from Canisius College and his JD from
Boston College.
authors, including 20 New York judges. It is published
by a joint venture between West Publishing and the
New York County Lawyers Association, and is part of
West’s New York Practice Series. Curran was also
recently appointed by Chief Administrative Judge Anne
T. Pfau as a member of the New York State Court
System E-Discovery Working Group. The group is
comprised of electronic discovery experts and will work
to improve the management of electronic discovery in
the New York State Courts. Curran has been designated as chair of the education subcommittee, which will
develop training programs on electronic discovery and
technology issues for judges and court personnel.
Timothy P. Murphy has joined
Lipsitz Green Scime Cambria LLP as
an associatein the firm’s criminal
defense department. Murphy concentrates his practice in criminal and
civil appeals at both the state and
federal level and has handled more
Murphy
than 150 appeals in his career.
He also serves as a Town Justice in
the Town of Pendleton. A former Niagara County prosecutor, Murphy handled white collar and environmental prosecutions as well as appeals. He also served on
the U.S. Attorney’s Office Environmental Law
Enforcement Coordinating Committee. Murphy
earned his JD from the University of Dayton and holds
a BA from Fordham University.
[B]
Swift focuses on discrimination, harassment, wrongful termination and unemployment issues. She was
formerly an associate at Damon Morey, and previously
served as corporate counsel for Manning and Napier
Information Services, LLC. She is vice president of the
Board of Literacy New York, and former chair of
Literacy Volunteers of America for Buffalo and Erie
County, Inc. Schmit holds a BS and MBA from
Canisius College and a JD magna cum laude from the
University at Buffalo Law School.
Sharon Stern Gerstman has
retired from the NYS Court System
where she served as court
attorney/referee in Niagara County
and for 28 years as confidential law
clerk to Hon. Joseph D. Mintz. She
will now be Of Counsel to Magavern
Gerstman
Magavern Grimm LLP, concentrating in neutral evaluation/mediations,
arbitrations and appellate work. Gerstman is a former
director of the BAEC and also served as president and
director of the Erie County Bar Foundation. She is the
BAEC’s delegate to the ABA House of Delegates and
also teaches at the University at Buffalo School of Law.
Curran
Hon. John M. Curran has published a chapter in the recentlyreleased
Third
Edition
of
“Commercial Litigation in New York
State Courts” (Robert L. Haig,
Editor-In-Chief), entitled “Trial and
Post-Trial Motions.” This edition
contains the work of 144 principal
Are You An Attorney
Struggling With
Depression?
If so, you’re definitely not alone. A recent
Johns Hopkins study of 108 occupations
found that lawyers topped the list of those
who suffered from depression. Attorneys
were found to suffer from depression at a
rate of four times that of the general population.
Depression is a treatable illness and the
right combination of medications and therapies can significantly improve the quality of
life for those who suffer from it.
Help and support are just a phone call
away. The Lawyers with Depression
Support Group meets monthly to share
stories and fellowship. The group meets
every other Friday (except holidays). See the calendar on the back page for meeting
dates. Meetings are held at Bar Headquarters,
438 Main Street, Sixth Floor, at 12:30 pm and
lunch is provided. There is no need to pre-register.
If you or a colleague are struggling with
depression, there is no need to suffer in
silence. For further information, visit
www.lawyerswithdepression.com or contact
Daniel T. Lukasik at 852-1888. All calls are
strictly confidential. We invite you to join us
and share your story.
PAGE 21
Disclosure and
Compliance Program
Contributions to the Erie County Bar Foundation provide an excellent
vehicle for recognizing and honoring members of our profession.
Memorial gifts to the Foundation become a lasting tribute to the entire
legal profession, as funds are used exclusively to assist attorneys and
by the taxpayer will not be used for audit selection, and
it will be purged from our databases if the taxpayer is
ultimately determined to be ineligible or if the taxpayer
decides not to participate. However, the department
can exchange actual returns or reports filed by voluntary disclosure program participants with the IRS and
state and local agencies that it has exchange agreements with (as the department does with returns and
reports filed by all taxpayers). There’s an important
exception to this secrecy rule: if a taxpayer intentionally violates the terms of the voluntary disclosure
agreement, the department may use the disclosed
information against them.
promote understanding of our legal system.
Information on the department’s Web site at
www.nystax.gov spells out these protections in unmistakable terms.
As an additional incentive for taxpayers who owe
back taxes for more than three years, the program
gives taxpayers the opportunity to request a limited
look-back clause during the online application process.
Under a look-back clause, taxpayers can settle their
entire tax liability by only paying the amounts owed for
the look-back period. Depending upon the reason for
the non-payment and the type of tax not remitted, the
look-back may be limited to three or six years. The
availability of the limited look-back will be determined
on a case by case basis and requires the consent of the
Tax Department.
Taxpayers who participate and live up to their obligations under the program receive protection from
state criminal prosecution that far exceeds any assurances that the department was able to provide taxpayers before the law was enacted. Simply stated, the new
statute creates an absolute bar prohibiting state prosecutors and district attorneys from initiating tax prosecutions based on the disclosed conduct against eligible
taxpayers who are participating in the program and
complying with their obligations under that program.
The criminal protections for taxpayers electing a
look-back clause are slightly different but still greater
than those that existed before the statute was enacted.
The statute only creates an absolute prohibition for
prosecutions based on tax obligations that are disclosed
and fully paid. By taking advantage of the look-back
clause, the taxpayer settled his or her case by paying
for only the years in the look-back period. Thus, only
the years within the look-back period receive statutory
protection. This does not mean that taxpayers receive
no protection against criminal prosecutions for the
prior years. Instead, for those prior years the department’s agreement with the taxpayer provides that the
department will not investigate the taxpayer for those
prior years, share the taxpayer’s disclosure with any
other agency, or refer the taxpayer to a prosecutor.
Taxpayers accepted into the program who cannot
pay their full tax debt immediately may be allowed to
pay their debt over time, under generous terms
designed to ensure that they stay in business.
New York’s Voluntary Disclosure and Compliance
Program offers tremendous benefits to taxpayers but it
is only available to taxpayers who act before they are
selected for audit, review or criminal investigation. It is
hoped that practitioners will counsel all of their eligible
clients to take advantage of the program because it is
much preferred to achieve compliance through invitation rather than through enforcement. Applying to the
program is risk free, and the potential benefits are substantial and real. It is recognized, however, that some
taxpayers will only come into the program if they fear
the risk of being caught. This risk has increased substantially since the department has beefed up its
enforcement efforts, and have coupled these increases
with improvements in the technological capabilities to
identify these tax scofflaws.
Detailed information on the program is available on
the Department’s Web page (www.nystax.gov) and all
practitioners are urged to review that information and
judge for themselves.
[B]
The Foundation gratefully acknowledges
the following contributions:
In Honor of Michael Perley’s
presentation for the Horse
Business School on
November 19, 2010:
Cornell Cooperative Extension
of Ontario County
In Honor of Peter J. Battaglia:
Jodyann Galvin
In Honor of Jeffrey M. Freedman:
Kevin P. Wicka
In Honor of Daniel T. Lukasik:
Anonymous
In Memory of Maureen R. L.
Mussenden:
Anthony D. Mancinelli
Frank & Leslie Housh
Nancy W. Saia
In Memory of Mary Donogher:
Barone & Barone, PC
Dean S. Puleo
James M. Hazel
Helen Ferraro-Zaffram
In Memory of James N. Carlo:
David P. Evans
J. Mark Gruber
Jim & Mary Shea
Lawrence C. Franco
Leo M. Lynett, Jr.
Nancy J. Bizub
Personius Melber LLP
Philip H. Magner, Jr.
William E. Carey
In Memory of Michael Rooth:
Thomas C. Farley, Jr.
In Memory of James T. Duggan:
Coleman Volgenau
Helen & George Zimmermann
Jessica J. Burgasser
Jim & Mary Shea
Joel L. Daniels
Philip Celniker
The Family of James T. Duggan
In Memory of Donald Fulkerson:
Courtland R. LaVallee
In Memory of John J. Nasca:
Anthony D. Mancinelli
Hon. Donna M. Siwek &
Timothy G. McEvoy
Philip Celniker
In Memory of Hon. Michael F.
Dillon:
Hon. James B. Kane
In Memory of John F. Lane, Mary A.
Lane and Robert J. Lane:
Hon. John P. Lane
In Memory of W. Barry Mallon:
Geralyn A. Schiffler
In Memory of James & Ellen
Walker:
Hon. Timothy J. Walker
In Memory of Ross L. Runfola:
Christopher C. Willett
Coleman Volgenau
George & Barbara Riedel
Helen & George Zimmermann
J. Mark Gruber
Jim & Mary Shea
Joel L. Daniels
Richard D. & Loretta K. Yellen
In Memory of Hon. Norman J. Wolf,
Jr.:
J. Michael Wolf
In Memory of Andrew
McLaughlin:
Roman J. Fontana
In Memory of Verna Lauriha:
Jacquelyn A. McGillicuddy
In Memory of the deceased members of the UB Law School Class
of ‘58:
Sue Dealy Murszewski
In Memory of Alvin M. Glick:
Daniel T. Roach
In Memory of David Jay:
In Memory of Hon. Vincent E.
Doyle:
Mary Goslin
In Memory of Paul Peters:
Jeffrey M. Freedman
In Memory of Glen, Gordon & Ron
Gannon:
John W. Dorn
In Memory of Richard C. Marcus:
Edward J. Carland
Kimberly A. Phelan
In Memory of Marlene Klein
(Mother of Mark Klein):
Lauren D. Rachlin
In Memory of John & Joan
Condon:
In Memory of Brenda Moynihan:
In Memory of Steven Gittler:
Vince Hauber & Jean E. Gittler
In Memory of Jack Frizzell:
Wilder & Linneball, LLP
In Memory of William R. Brennan:
Geralyn A. Schiffler
Mark R. McNamara
In Memory of Joseph D.
Bermingham, Jr.:
Mary Goslin
In Memory of John P. Bartolomei,
Jr. (Son of John P. Bartolomei):
In Memory of Peter Gilfillan:
Lisa P. Meyers
In Memory of H. Walker
Hawthorne:
J. Mark Gruber
In Memory of Carl Cole:
Mark A. Montour
In Memory of Luke C. Owens, Jr.:
In Memory of Raymond J.
McNamara:
Mark R. McNamara
In Memory of Michael & Eleaine
Dillon:
Jennifer M. Dillon
In Memory of Joseph A. Marion,
Jr.:
Matthew X. Wagner, Jr.
In Memory of William L. Principe:
David L. Principe
In Memory of Mark Matthew
Jasen:
Peter M. Jasen
In Memory of Thomas J. Ryan, Jr.:
R. Colin Campbell
In Memory of Hon. John H.
Doherty:
Daniel T. Roach
PAGE 22
ERIE INSTITUTE OF LAW
PROVIDING CONTINUING LEGAL EDUCATION FOR YOUR PROFESSIONAL ADVANTAGE
PLEASE NOTE: The Erie Institute of Law is unable to issue partial credit for seminars, except for multiple session programs such as the Tax and
Leadership Institutes. If you have questions about whether a program qualifies for partial credit, please call Mary Kohlbacher at 852-8687.
Date/Time/Location
Topic
CLE Credits
Price
Wednesday, January 19, 2011
1:00 p.m. – 2:00 p.m.
Adelbert Moot CLE Center
438 Main St.
Buffalo, NY
Litigation in the Court of Claims
(Noonday Lecture presented by Judge Michael Hudson)
1.0 credit
$20 members
$25 non-members
Wednesday, January 26, 2011
1:00 p.m. - 2:00 p.m.
Adelbert Moot CLE Center
438 Main St.
Buffalo, NY
Summary Jury Trial
(Noonday Lecture presented by Judge Lucindo Suarez)
1.0 credit
$20 members
$25 non-members
SAVE THE DATE!
.
Still A-Twitter Over Facebook? A Deeper Look at Social Networking Issues Every Lawyer Needs to Know
Friday, March 25, 2011 | Location to be determined
Mail or fax to: Erie Institute of Law • 438 Main Street, Sixth Floor, Buffalo, New York 14202
(716) 852-8687 • Fax (716) 852-7641
ERIE INSTITUTE OF LAW
REGISTRATION FORM
Name ______________________________________________________________________________________________________
Please register me for the following
Erie Institute of Law sponsored events:
Firm ______________________________________________________________________________________________________
1. ________________________________________
Address ____________________________________________________________________________________________________
2. ________________________________________
City ________________________________________________________ State ____________ Zip ________________________
3. ________________________________________
Phone ___________________________ Fax __________________________ E-mail
Cancellation Policy: If you are unable to
attend a seminar, for which you have already
registered, call Mary Kohlbacher at 852-8687
ext. 15. For a full refund, notice of your
cancellation must be received before the
date of the program. Registrants who are
pre-registered and fail to attend will receive
course materials in lieu of a refund.
Enclosed is my check in the amount of $ ____________________❐ Visa
__________________________________
❐ MC
Card Number ______________________________________________________________ Exp. Date ______________________
Cardholder Signature ________________________________________________________________________________________
CLE Passbook Order Form
We’ve Got Your Ticket to Savings!
CLE Passbook Savings
How it Works
Total Saving ............................................................$80
Passes are available in books of six for $400 ~ six seminars for the price of five. Attach a pass when you mail
your advance registration form, or bring the pass with
you when you register at the door. If you intend to use
the pass for a walk-in registration, please be sure to call
ahead and confirm the date, location and available seating. The seminar pass will cover your registration in full.
Guaranteed.
Save money every time
you use a seminar pass.
The passes are completely transferable and can be
shared with other members of your firm, including staff
members and paralegals. If you are a sole practitioner,
you can share the passes with other practitioners.
Number of discount passes........................................6
Total fees for BAEC members
without passbook.................................................$480
Total fees for BAEC members
with passbook ......................................................$400
Simply stated, the Bar Association of Erie County CLE
Passbooks give you the opportunity to attend highquality, convenient, half-day educational programs at a
bargain rate. One pass buys any half-day seminar for
only $67 ($13 off the regular seminar price). If you
want to minimize your CLE expenses and maximize
educational experiences for yourself or your firm, then
the CLE Passbook program is for you. The passbook
guarantees the reduced price of $67 for any half-day
seminar for the next two years, despite any fee increases during that time period.
Guidelines
Passbooks are valid for two years from the date of purchase and are not replaceable if lost. No cash refunds
are available for unused or expired passes. Each pass is
valid for admission to any half-day BAEC CLE seminar.
There is no limit to the number of passbooks an individual or firm can purchase, but all passes must be used
within two years from the date of purchase, or they
become void. If a scheduling conflict arises after you
have registered for a seminar, just inform our office 48
hours in advance of the program, and we will return
your pass for future use.
Please send me _____ seminar passbooks
(one book of six passes: $400)
Total: $ _________________
Name: _____________________________________
Firm Name: ____________________________________
Address: _______________________________________
City: ___________________________________________
State: __________________ Zip: ___________________
Phone: _________________________________________
E-mail: _________________________________________
[ ] Check enclosed; Payable to the Erie Institute of
Law 438 Main Street, Sixth Floor, Buffalo, NY 14202
[ ] Visa
[ ] MasterCard
Credit Card #: __________________________________
Exp. Date: ______________
Signature:______________________________________
PAGE 23
COMPUTER & TECHNOLOGY TRAINING
Technology. At its best, it helps us to process information more efficiently and effectively. But the rapid-fire changes in the way we
communicate can easily become overwhelming. If the Information Age sometimes makes you feel like you’re drowning in a sea of
confusion, this Computer and Technology Training program was developed especially for you.
By investing just one lunch hour a week, you can quickly begin to master the basics of such popular programs as Microsoft Word,
Excel, and Outlook. You’ll also learn how to use Internet Explorer to navigate the World Wide Web and bring a whole world of
resources to your fingertips.
Class size is small – just six students per session to allow for personalized attention – so sign up today!
Mail or fax to: Erie Institute of Law • 438 Main Street, Sixth Floor, Buffalo, New York 14202
(716) 852-8687 • Fax (716) 852-7641
Pre-registration required - Limited to six people per session – Register early!
Computer Classes are continually offered – if these don’t fit your schedule. Check www.eriebar.org for upcoming programs.
✃
Class (No CLE Credit)
Major Topic
Date
Getting Started in Excel
• Recognize Excel features
Tuesday
• Navigate Excel
2/1/11
Sign Me Up!
Class (No CLE Credit)
Major Topic
Using Templates in Word
• Create/modify a custom template Tuesday
a template
Merging Data in Word
Tuesday
• Good for financial analysis and
2/8/11
• Create a data & main document
Tuesday
• Create form letters
3/22/11
• Create mailing labels
other accounting needs
Using Excel to
Using formulas can assist you in
How to Use PowerPoint
Tuesday
Why pay for expensive blow-ups
Tuesday
3/29/11
Determine the Value
determining the value of your case. 2/15/11
for the courtroom? This class is
of Your Case*
Learn to use case data from Verdict
designed to show you how to make
Using Long Documents
in Word
Sign Me Up!
• Create a letter, memo or fax from 3/15/11
• Use basic spreadsheet features
Using Formulas in Excel* • Construct a formula
Date
Search or other means to help determine
simple slides to explain your case to
if you should settle or go to trial.
the jury or even others in your law firm.
• Using a master document
• Organize with styles
Tuesday
Microsoft Office
3/1/11
2003 Tour
This is an introduction to each
Tuesday
program in the Microsoft Office
4/5/11
• Control page breaks
Suite. We will explain the tasks for
• Prepare the document for binding
which each program is designed.
• Create a running header & footer
Utilizing the Internet
• Review basic features of
Internet Explorer
Introduction to
This is a beginner class for those
Tuesday
Microsoft Word
new to Microsoft Word 2003.
3/8/11
Tuesday
4/12/11
• Share some Web searching tips
• E-mailing hyperlinks
This class will teach you how to
draft letters and other documents.
•Getting Started in Excel is pre-requisite
Enclosed is $___________ for _____ reservation(s) for: ❐ BAEC Member $30
COMPUTER &
TECHNOLOGY
TRAINING
❐ Legal Staff $30
❐ Non-member $40
Prices are $30/$40 per class.
Registrant(s) ____________________________________________________ E-mail ____________________________________
REGISTRATION FORM
Organization ____________________________________________________ Fax ______________________________________
12:15 p.m. – 1:30 p.m. (noon registration)
Address ________________________________________________________ Phone ____________________________________
D4 Tech Center
438 Main Street, Suite 202
Buffalo, NY
PRE-REGISTRATION IS REQUIRED
(Same building as Bar Association of Erie County)
Erie Institute of Law
438 Main Street, 6th Floor
Buffalo, NY 14202
[No food or beverages allowed in Tech Center]
Please enclose check payable to the Erie Institute of Law and send to:
If you wish to charge this program, please complete the following and fax to (716) 852-7641 or mail to address above.
Please check: ❐ Visa
CANCELLATION POLICY: Within three business days
of registering, if you can no longer attend, another
individual from your organization may attend or you
may transfer your registration to another program
that is within three months of the original program.
(A balance due to registration fee difference may apply.)
No reimbursement or transfers for cancellations not
made within the three days or for not attending.
❐ MC
Exp. Date_________________
Card Number _______________________________________________________________________________________________
Cardholder Signature ________________________________________________________________________________________
Become a fan of the Erie
Institute of Law on Facebook.
PAGE 24
"Angel with Snow in Horn" by Glenn Edward Murray
SAVE THE DATE FOR THE 2011 PRESIDENT’S BALL!
Mark your calendar now and plan to attend the annual gala in honor of President Scott M. Schwartz and the Association’s past presidents. This year’s event
will be held on Saturday, March 26, 2011 at the Mansion on Delaware. Watch your mail and next month’s Bulletin for further details.
JANUARY 2011
ALL MEETINGS HELD IN THE BAR CENTER, 438 Main Street, Sixth Floor, unless otherwise noted.
The Adelbert Moot CLE Center is also located at 438 Main Street, Sixth Floor.
MONDAY 3
TUESDAY 11
TUESDAY 18
Professional Ethics Committee
12:15 p.m. - Thomas S. Wiswall, Chair
Labor Law Committee
12:15 p.m. - Sean P. Beiter, Chair
TUESDAY 4
Matrimonial & Family Law Committee
12:15 p.m. - 25 Delaware Ave, 5th
Floor
Catherine E. Nagel, Chair
Board of Directors
8:00 a.m. - Scott M. Schwartz,
President
Corporation Law Committee
12:15 p.m. - Offices of Hodgson Russ
Kevin R. Talbot, Chair
MONDAY 24
Federal Practice Committee
12:15 p.m. - Adelbert Moot CLE Center
Timothy W. Hoover, Chair
Alternative Dispute Resolution
Committee
12:15 p.m. - Steven R. Sugarman,
Chair
Board of Directors
8:00 a.m. - Scott M. Schwartz,
President
Committee on Consumer Protection
12:15 p.m. - Joanne A. Schultz, Chair
WEDNESDAY 5
Legal Nurse Consultants Committee
12:00 p.m. - Adelbert Moot CLE
Center
Christine A. Trojan, Chair
International Law Committee
12:15 p.m. - Jason B. Desiderio, Chair
THURSDAY 6
Negligence Committee
Center
Gregory V. Pajak, Chair
FRIDAY 7
Commercial & Bankruptcy Law
Committee
12:15 p.m. - Daniel E. Sarzynski,
Chair
Committee to Assist Lawyers with
Depression
12:30 p.m. - Bar Center, Brennan
Room
Daniel T. Lukasik, Chair
Real Property Law Committee
Center
Michael J. Lombardo, Chair
Committee to Assist Lawyers with
Depression
Room
Daniel T. Lukasik, Chair
WEDNESDAY 19
TUESDAY 25
Judicial Welcoming Ceremony
1:00 p.m. - Ceremonial Courtroom,
92 Franklin Street
Erie County Bar Foundation
8:00 a.m. - William Ilecki, President
WEDNESDAY 12
Appellate Practice Committee
Room
Edward J. Markarian, Chair
Elder Law Committee
Center
Charles Beinhauer, Chair
Intellectual Property, Computer &
Entertainment Law Committee
8:00 a.m. - Towne Restaurant
Ellen Swartz Simpson, Chair
Health Care Law Committee
12:15 p.m. - Lawrence C. DiGiulio,
Chair
THURSDAY 13
Criminal Law Committee
12:15 p.m. - Rodney O. Personius,
Chair
Unlawful Practice of Law Committee
12:15 p.m. - Harry G. Meyer, Chair
THURSDAY 20
Committee on Veterans’ & ServiceMembers’ Legal Issues
Room
Michael C. Lancer, Chair
Municipal & School Law Committee
12:15 p.m. - Michael B. Risman, Chair
WEDNESDAY 26
P&P in Family Court Committee
12:15 p.m. - Family Court Building
Mindy L. Marranca, Chair
THURSDAY 27
Human Rights Committee
12:15 p.m. - Alan J. Bozer, Chair
FRIDAY 14
Environmental Law Committee
12:15 p.m. - Adelbert Moot CLE Center
John T. Kolaga, Chair
Committee for the Disabled
12:15 p.m. - Jessica V. Murphy, Chair
P&P in Surrogate’s Court Committee
12:15 p.m. - 438 Main Street, 12th
Floor
Catherine T. Wettlaufer, Chair
FRIDAY 21
Small Law Office Technology
Committee
1:00 p.m. - Bar Center, Brennan Room
Alvin M. Greene, Chair
MONDAY 17
Office Closed ~ Martin Luther King, Jr.
Day
Young Lawyers Committee
12:15 p.m. - William Patrick Moore,
Chair and
Joshua Dubs and Leah R. Nowotarski,
Vice Chairs
www.eriebar.org

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