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1 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:00 AM Page 1 PRSRT STD U.S. Postage Paid Buffalo, NY Permit No. 416 Non-Profits: The Need to Evolve pg 5 Medico-Legal Ethics pg 21 Lawyers for Learning Bowling Tournament pg 20 Bulletin B A R A S S O C I A T I O N O F E R I E C O U N T Y V O L. 5 4 N O. 8 A P R I L President s Letter K E V I N W. S P I T L E R I recently started to read The History of the Bar Association of Erie County, published in That history was the brainchild of late past President Michael J. Flaherty, and followed through by his immediate successor, James M. Shaw. Both Mike and Jim realized the need for a historical record. As Jim wrote in his introduction, quoting Oliver Wendell Holmes, When I want to understand what is happening today, or try to decide what will happen tomorrow, I look back. Looking back, our Bar Association was incorporated on June 17, In December of 1887, Jacob Stern was elected the first president. From that beginning, over these many years we have continued to grow. As we continue to serve the needs of lawyers who serve the legal needs of the residents of Erie County, I wonder if the original 215 members of the Bar Association ever thought about where the Association would be 129 years later. Consider these changes over the years: the number of women and minority lawyers lawyer advertising the advent of no-fault insurance the growth and involvement with the University of Buffalo Law School the adoption of Bar Association ratings for candidates for judicial offices continued on page 2 Law Day Luncheon Scheduled for April 21 Hon. Eugene F. Pigott, Jr., Senior Associate Judge, New York State Court of Appeals, will deliver the keynote address at the BAEC s annual Law Day Luncheon. The luncheon will be held on Thursday, April 21 at the Hyatt Regency Buffalo beginning at 12:00 noon. Tickets are $35 per person and can be ordered at or by calling There will be no assigned seating this year. The 2016 national Law Day theme is Miranda: More than Words. This year marks the 50th anniversary of Miranda v. Arizona, perhaps the nation s best- known Supreme Court case. Law Day 2016 events will explore the procedural protections afforded by the U.S. Constitution, how these rights are safeguarded by the courts, and why the preservation of these principles is essential to our liberty. About Hon. Eugene F. Pigott A graduate of LeMoyne College, Judge Pigott served on active duty in the United States Army from 1968 to While in the service, he was stationed in the Republic of Vietnam, serving as a Vietnamese interpreter. He graduated from SUNY at Buffalo School of Law in 1973 and was admitted to the New York State Bar in Judge Pigott practiced law in Buffalo with the firm of Offermann, Fallon, Mahoney & Adner from 1974 to In 1982, he was appointed Erie County Attorney and served in that position until In 1986, he became chief trial counsel for the firm of Offermann, Cassano, Pigott & Greco. In 1997, he was appointed to the New York State Supreme Court by Governor George E. Pataki and thereafter was elected to a full 14-year term. In 1998, he was designated to the Appellate Division, Fourth Department and was appointed Presiding Justice in In 2006, he was nominated by Governor Pataki to the Court of Appeals and his nomination was confirmed by the New York State Senate shortly thereafter. President s Ball to be Held at Twentieth Century Club clubhouse played an important role during the Pan American Exposition that was held in Buffalo in Plan now to enjoy an elegant evening of camaraderie and good cheer with your friends from the bar! Special thanks to the following sponsors for their support of this event: Gold Sponsors Counsel Press, Inc. EFPR Group, LLP Paramount Settlement Planning, LLC Precision Resolution, LLC continued on page 4 LISTEN, LEARN AND EARN! pg 23 The 2016 President s Ball, in honor of President Kevin W. Spitler and the Association s past presidents, will be held on Saturday, April 16 at the Twentieth Century Club from 7:00 until 10:00 p.m. The black-tie optional gala will include cocktails, hors d ouevres, food stations and dancing to the sounds of Total Eclipse. Tickets are $125 per person; contact Susan Kohlbacher at or skohlbacher@eriebar.org to make reservations. Located at 595 Delaware Avenue in downtown Buffalo, the Twentieth Century Club was designed by E.B. Green and serves as an elegant reminder of the city s outstanding architectural history. Opened in 1894, the classic revival Law Firm Sponsors Gibson, McAskill & Crosby, LLP Greco Trapp, PLLC Hodgson Russ LLP Lipsitz Green Scime Cambria LLP Lipsitz & Ponterio LLC Nixon Peabody LLP Law Office of Timothy M. O Mara 2016 Law Day Luncheon Plan now to attend the 2016 Law Day Luncheon see lead story for details.

2 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:00 AM Page 2 PAGE 2 Vol. 54 No. 8 April 2016 BAR ASSOCIATION OF ERIE COUNTY Organized Main Street, Sixth Floor Buffalo, New York (716) fax (716) Bulletin correspondence: obrian57@comcast.net EDITORIAL BOARD Editor Bonnie D. O Brian Editorial Assistant... Elise M. Rahner Editorial Cartoon.... Giles P. Manias Hon. Thomas P. Franczyk Photography Susan L. Kohlbacher Glenn Edward Murray OFFICERS President Kevin W. Spitler Vice President Gregory T. Miller Treasurer Thomas F. Hewner Deputy Treasurer.... Ericka N. Bennett Executive Director... Katherine Strong Bifaro BOARD OF DIRECTORS Jeffrey F. Baase, Laura C. Doolittle, Anne E. Joynt, Douglas P. Stiller, Cheryl A. Aloi, Jennifer A. Beckage, Sophie Feal, Michael J. Roach, Elizabeth M. Midgley, James J. Nash, Melissa Hancock Nickson, Michael F. Perley. LIFE MEMBERS Mark A. Adrian, Carol J. Alaimo, Brian D. Baird, Patrick J. Bannister, Lynn A. Clarke, Eric P. Doherty, Sharon Stern Gerstman, Jean E. Gittler, Susan J. Grelick, Donald J. Holzman, Melvyn L. Hurwitz, Michael Kuzma, Stanley Kwieciak III, Michael P. McClain, J. Eldon Owens, Lauren D. Rachlin, Michael A. Smith, Jeffrey A. Spencer, James M. Wadsworth. Would you like to see your name here? See page 4 to find out how to become a contributing member. CONTRIBUTING MEMBERS Joan Casilio Adams, Peter S. Aiello, Grace Marie Ange, Richard J. Attea, Hon. Tracey A. Bannister, Stephen E. Barnes, Thomas R. Beecher, Jr., Ronald P. Bennett, Leonard Berkowitz, Richard S. Binko, Richard N. Blewett, Peter J. Brevorka, Charles Patrick Bridge, Timothy P. Bridge, Phillip Brothman, Patrick J. Brown, T. Alan Brown, Joel Brownstein, David Buch, Donna L. Burden, James P. Burgio, Michael C. Burwick. John F. Canale, John J. Carney, Alan S. Carrel, Thomas R. Cassano, Stephen E. Cavanaugh, Emilio Colaiacovo, John F. Collins, William B. Collins, Anthony J. Colucci, Jr., Robert N. Convissar, Edward C. Cosgrove, Paul V. Crapsi, Jr., Douglas S. Cream, Steven P. Curvin, Roger T. Davison, Regina A. Del Vecchio, John M. Dempsey, Richard F. DiGiacomo, Anne C. DiMatteo, Dean M. Drew, Hon. Timothy J. Drury, Donald B. Eppers, Leo J. Fallon, Victor N. Farley, Gabriel J. Ferber, Michael E. Ferdman, Robert P. Fine, Peter J. Fiorella, Jr., Brian P. Fitzgerald, Lawrence C. Franco, Bernard B. Freedman, Hon. Brenda M. Freedman, Jeffrey M. Freedman, Maryann Saccomando Freedman, Robert Friedman, John J. Fromen. Thomas J. Gaffney, William H. Gardner, Lynn D. Gates, Eugene M. Gaughan, Stuart A. Gellman, Jerome C. Gorski, Wayne R. Gradl, John C. Grennell, Richard F. Griffin, John J. Gruber, Mark W. Hamberger, Thomas J. Hanifin, James P. Harrington, Mary Louise Hayden, William R. Hites, Susan S. Hogan, Edwin P. Hunter, Norman E. Joslin, James B. Kane, Jr., Judith D. Katzenelson, James J. Kirisits, William J. Kita, Dan D. Kohane, Karl W. Kristoff, Thomas E. Krug. President s Letter continued from page 1 the change in expectations for pro bono work the formation of the Bar Association s Aid to Indigent Prisoners program the requirement for Continuing Legal Education the creation of the Volunteer Lawyers Project What can we predict now that will be true 129 years from now? Could your client be charged with assaulting a robot? Will you be closing real estate deals on the moon? Will attorneys generally work past the age of 100? It s just fun to think about. Although it is difficult to predict what the practice of law will be like 129 years from now, I do believe that the purpose of the Bar Association in the year 2145 will continue to be meeting the legal needs of the residents of Erie County and western New York. So as we evolve, our fundamental reason for being remains the same. Citizens who find themselves in need of legal assistance, in any and all legal matters, will rely on the good services of the women and men who populate the Bar Association of Erie County. I like the idea that we lawyers are the placeholders for those who came before us, and the standard bearers of those who come after us. Back to the present. I always like to give shout-outs to individual lawyers or groups of lawyers who engage in activities that help the public come to better understand what we do. As you are all aware, the Bar Association sponsors the annual Moot Court competition amongst local high schools. For the upcoming year, Craig Bucki has graciously agreed to chair the Moot Court Competition Committee. Craig relies on many attorneys to assist him as judges and evaluators. Other attorneys give of their time to act as advisors to these teams. The outcome is that these high school students come to understand what role the law plays in their lives. I am certain that these students discuss with their peers and their families what they learned from their involvement. It s great that this information becomes so widely disseminated throughout the high schools and the households. While some of these students may become lawyers, the majority will enter other professional fields, with an understanding of the law and an appreciation for the rule of law. They will be our jurors in our future cases, and good jurors they will be. Speaking of the moot court competition, I want to thank the Western New York Trial Lawyers Association for graciously agreeing to help fund the new additional cost associated with using space at the UB law school to hold this competition. I recently attended and was able to serve as MC at the reception for newly-admitted attorneys. I would like to thank all the judges who attended, and I would like to extend the BAEC s gratitude to our sponsors. It was the first time I have attended a bar-sponsored event at the Buffalo Marriott Harborcenter. Every time I am in that area, I am excited for the future of Buffalo. Although it will have already taken place by the time you read this letter, as I write it, I am looking forward to the reception that we will cosponsor for Justice Gerald J. Whalen, presiding Judge of the Appellate Division for the Fourth Judicial Department. I am also looking forward to the Law Day Luncheon, to take place later this month, and our annual dinner, to be held in June. These social functions are wonderful opportunities to enjoy the camaraderie of one another. I encourage those who can to join us at these events. Have a great spring! [B] Stephen R. Lamantia, John P. Lane, Richard J. Lehner, John N. Lipsitz, Arthur A. Lorenzo, Frank LoTempio III, Leo M. Lynett, Jr. James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Giles P. Manias, Mary Dee Martoche, Salvatore R. Martoche, Norman J. Mattar, Hon. Jeremiah J. McCarthy, Maureen A. McCready, Thomas I. McElvein, Jr., Donald G. McGrath, Diane J. McMahon, Brian M. Melber, Raymond T. Miles III, Joseph D. Mintz, Albert J. Mogavero, Peter J. Murrett, Jr., Joseph M. Nasca, Paul T. Nesper, Paula M. Eade Newcomb, Anthony M. Nosek, Hon. Henry Jos. Nowak, James J. O Brien, Hon. John F. O Donnell, Timothy M. O Mara. Carl P. Paladino, Frank R. Papa, Anthony D. Parone, James A. Partacz, Robert E. Pearman, Hon. Erin M. Peradotto, Robert H. Perk, Jeffrey A. Perla, Michael F. Perley, Arcangelo J. Petricca, Joel M. Poch, Theodore J. Pyrak, James P. Renda, Mary (Molly) K. Roach, Jay N. Rosenthal, Richard P. Rosso, Arthur J. Rumizen, Arthur A. Russ, Jr., Thomas Santa Lucia, Scott M. Schwartz, Edward J. Schwendler, Jr., Richard B. Scott, Donald P. Sheldon, Richard J. Sherwood, Louis H. Siegel, Myron M. Siegel, Robert G. Sillars, Richard Charles Slisz, Robert B. Sommerstein, Gregory Stamm, Robert S. Stephenson, Milton J. Strebel, David L. Sweet, Kathleen M. Sweet. Gordon D. Tresch, Thomas V. Troy, Frederick D. Turner, Dimitri J. Tzetzo, Peter A. Vinolus, Dale M. Volker, Matthew X. Wagner, Jr., John B. Walsh, Neil Weinberg, Wayne D. Wisbaum, Richard D. Yellen. CORRECTION: An article on page 25 of the March issue incorrectly listed the cost of registering for the Lawyers for Learning Bowling Tournament. The correct price is $175 per team. Register on page 20. 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 obrian57@comcast.net (preferred) or by mail to: Bulletin Editor, 438 Main Street, Sixth Floor, Buffalo, NY Deadline May 2016 Bulletin The next deadline for ALL Bull etin contributors and advertisers is Friday, April 1, 2016 Call Elise Rahner at Bar Headquarters for more information,

3 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:00 AM Page 3 PAGE 3 Appellate Practice Committee Offers Moot Court Panel bench and bar in the news The BAEC s Appellate Practice Committee offers a Moot Court Panel ( MCP ) to members. The MCP includes a roster of well qualified attorneys who serve on ad hoc threeattorney panels that hear practice oral arguments for upcoming appeals. How to place an announcement: If you are a BAEC member in good standing and you ve moved, been promoted, hired an associate, taken on a partner, or received an award, we d like to hear from you. Talks, speeches (unless they are of international stature), CLE presentations and political announcements are not accepted. In addition, we will not print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers, etc.). Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. your notice and high resolution photo (300 dpi) to obrian57@comcast.net. Elizabeth Bergen has been named chair of the board of directors at Journey s End Refugee Services. Bergen is special counsel to Gibson, McAskill & Crosby, LLP and has been a member of the Journey s End Board since Anne Doebler has been named vice chair. With more than 15 years of expebergen rience in immigration law, Doebler has been a member of the board since She is credited with an instrumental role in the creation and expansion of Journey s End legal department, and continues to mentor its staff. Jennifer J. Phillips has joined the insurance coverage practice team at Hurwitz & Fine, P.C. She formerly served as a law clerk in both the U.S. District Court and the Appellate Division of the NYS Supreme Court, most recently serving as a law clerk to the Hon. William M. Skretny. A magna cum Phillips laude graduate of Long Island University, Phillips earned her J.D. magna cum laude from Syracuse University College of Law. Peiper Steven E. Peiper has been named cochair of the insurance coverage department at Hurwitz & Fine, P.C. Head of the firm s first party team, he writes a column on recent developments in first party coverage disputes for the firm s enewsletter. A graduate of Shippensburg University, Peiper received his JD from SUNY at Buffalo Law School. This MCP procedure is intended for any attorney who has an appellate oral argument presently scheduled. This opportunity is for both new and experienced attorneys. State, federal, criminal and civil cases are all welcome. Birmingham Blanchet Smith Kristen M. Birmingham, Joel A. Blanchet and Joseph C. Smith have joined Phillips Lytle LLP. Birmingham is a partner in the firm s corporate practice group. She is a cum laude graduate of Franklin Marshall College and a cum laude graduate of Syracuse University College of Law, where she served as associate editor of the Syracuse Law Review. Bermingham is a member of NYSBA and active in the ABA. Blanchet is a partner in the firm s litigation group who will work from both the Buffalo and New York City offices, focusing on complex litigation matters. He is a magna cum laude graduate of both Canisius College and the University of Illinois College of Law. Smith is an associate who focuses his practice on environmental law, including land use, environmental reviews and regulatory compliance. He is a cum laude graduate of St. John Fisher College and a magna cum laude graduate of SUNY at Buffalo Law School. Komin LoTempio Whether you ve never argued an appellate case before, you just feel rusty, or perhaps you are an experienced attorney that has a difficult issue to argue, this process can help, according to Timothy P. Murphy, who chairs the Appellate Practice Committee. This practice argument may be conducted either in private at the Bar Association or a law office, or in public at the Ceremonial Courtroom in Supreme Court. Justice Feroleto has kindly permitted us to utilize the courtroom for this, subject to schedule availability. The attorneys on the panel will have become familiar with the briefs and the case beforehand. Questions will be posed of the arguing attorney and feedback will be provided afterwards. Arguments may be conducted in confidence if the arguing attorney so chooses The growing roster of MCP attorneys now includes Paul J. Cambria, Jr., Joel L. Daniels, Herbert L. Greenman, James P. Harrington, John V. Elmore, Cheryl Meyers-Buth, continued on page 4 Nicole M. Komin has joined Cohen & Lombardo P.C. as an associate attorney. She holds a MA and BA degrees from the University at Buffalo and a JD from its Law School. While in Law School, Komin was awarded Best Brief in the Desmond Moot Court Competition. She will focus on matrimonial and family law and insurance defense litigation. Vincent G. LoTempio, a registered patent attorney and partner at Kloss, Stenger & LoTempio, was recently featured on A&E History Channel s Million Dollar Genius program. He appeared along with his client, inventor Wayne Fromm, on an episode entitled Selfie Made Man. Fromm created the world s first selfie stick, known as the Quik Pod. continued on page 21 Connect with your colleagues at the President s Ball on April 16th and the Law Day Luncheon on April 21st (see details on page one). The need may be based on medical problems, job loss, emotional difficulties, family crises or many other situations. No person or problem is categorically excluded. If you need assistance or know a friend or colleague who does please call Kathie Bifaro at All services are individualized and completely confidential. It s great to belong to something this good.

4 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:00 AM Page 4 PAGE 4 Law Day Luncheon Scheduled for April 21 continued from page 1 Annual Awards to Be Presented at Luncheon Each year, as legal communities across the country pay tribute to the justice system, the Bar Association of Erie County honors those who have distinguished themselves in service to the law. Liberty Bell Award Established in 1964, the Liberty Bell Award is the highest award bestowed at the Law Day program. The purpose of this award is to recognize community service that has strengthened the American system of freedom under the law and to accord public recognition to those who, among other criteria, have encouraged a greater respect for the law and the courts; fostered a better understanding and appreciation of the rule of law; and stimulated a deeper sense of individual responsibility so that citizens recognize their duties as well as their rights. The recipient of this year s Liberty Bell Award is Bethany A. Solek of the Erie County District Attorney s Office. She will be recognized for eight years of dedicated service as coordinator of the Bar Association of Erie County s Stop DWI Student Assembly Program. Solek has organized teams of presenters and also presented the program herself at countless school assemblies. Her leadership and exceptional service have provided thousands of students with essential information about their rights and responsibilities, according to nominating materials. The information presented at these assemblies can have positive, life-altering consequences for young people in our community and Solek will be cited for her efforts to empower them and protect their rights. Justice Award The Justice Award is bestowed only when circumstances warrant and not necessarily on an annual basis. The purpose of this award is to recognize individuals and programs that have substantially contributed to the improvement of our system of justice. This year s award will be presented to Kimberly L. Beaty, Deputy Commissioner of the Buffalo Police Department. She will be recognized for her 28-year career with the Police Department, during which she facilitated greater community engagement and communication with the Buffalo Police and served as a significant force behind the advancement of community policing and problem-solving strategies in racially diverse neighborhoods. Beaty is the first African-American woman to serve as Deputy Police Commissioner and the first female Chief of the E District, which encompasses several diversely populated city neighborhoods. Special Service Award The Special Service Award is presented each year to a non-lawyer connected with a governmental agency or the court system who has provided outstanding service to the legal community. Christine C. Biggie, Volunteer Attorney Coordinator at the Volunteer Lawyers Project, Inc., will receive this year s award. Biggie was selected for her uncanny ability to efficiently and correctly match up volunteer attorneys to clients in desperate need of legal services and assist with any problems they encounter. She will also be recognized for her work in planning and coordinating CLE programs; running VLP s annual attorney recognition award ceremony; and volunteering her time at Haven House and the Domestic Violence Legal Clinic. Police Officer Award The Police Officer Award is presented to a member of the local law enforcement community in recognition of service that strengthens the justice system; encourages respect for the law; and demonstrates a concern for society and appreciation of the dignity of all people. The 2016 recipient is Detective David A. Kubiak (Ret.) of the Amherst Police Department. Detective Kubiak was selected in recognition of his dedicated service, outstanding achievements, and respect for the rule of law as a Detective with the Amherst Police Department for the past 23 years. Nominating materials cite him for always going above and beyond the call of duty, dedicating his time to solving crimes as an accident investigator, arson investigator, and crime scene evidence team member. His 16 years of service with the ERT/SWAT team were also noted, as was his work as an instructor at the Erie County Law Enforcement Academy, as a certified Fire Instructor, and as a teacher at Amherst PD training programs. Media Award The Media Award is intended to recognize exceptional achievement in the print and electronic media which strengthens our system of justice under the law. The 2016 award will be presented to Susan Arbetter, host of the Capitol Press Room (heard nightly on WBFO in Buffalo). Her analysis of current events in New York is among the reasons for her selection, along with her way of presenting and explaining issues about legislation and the courts. Arbetter s interviews of important newsmakers including the Governor, legislators, cabinet officials and journalists are said to help to make our justice system more accessible to a wide audience. Rev. A. Joseph Bissonette Pro Bono Award The Bar Association s Rev. A. Joseph Bissonette Pro Bono Award honors the memory of Father Bissonette, who received the Liberty Bell Award posthumously in Created through the generosity of Raymond Bissonette, Father Bissonette s brother, the award recognizes and memorializes Father Bissonette s life s work with the inner city poor and his commitment to social justice. This year s recipient is attorney Katherine J. Bestine. She will be recognized for her extraordinary commitment to providing pro bono legal services to those in need in our community. Since 1991, Bestine has closed 164 cases for the Volunteer Lawyers Project, donating a remarkable 755 pro bono hours. According to VLP, she not only handles a large number of cases, but often accepts very difficult cases which require extra skill and tenacity to protect the client s position. In addition, she will be recognized for her service as a trusted and frequent volunteer with the Haven House Counsel & Advice Clinic for victims of domestic violence. Mock Trial Award An award will also be presented to the winning team of the 2016 High School Mock Trial Tournament. Special appreciation goes out to the Western New York Trial Lawyers Association for covering the technology fee at UB Law School for the Tournament. SPECIAL THANKS TO OUR SPONSORS! The Bar Association of Erie County gratefully acknowledges the following for their generous support of the Law Day luncheon. Gold Sponsors Counsel Press, INC. EFPR Group, LLP Paramount Settlement Planning, LLC and Precision Resolution, LLC Silver Sponsors Avalon Document Services Bronze Sponsors Digital Transcription Systems Jack W. Hunt & Associates, Inc. LaBella Associates, D.P.C. M&T Bank MVP Network Consulting, LLC Winthrop Financial Inc. Law Firm Sponsors Gibson, McAskill & Crosby, LLP Greco Trapp, PLLC Hodgson Russ LLP Lipsitz Green Scime Cambria LLP Nixon Peabody LLP Law Office of Timothy M. O Mara Appellate Practice Committee Offers Moot Court Panel continued from page 3 Joseph M. LaTona, Barry N. Covert, Timothy W. Hoover, Marianne Mariano, Rodney O. Personius, Angelo Musitano, Barbara J. Davies, John A. Collins, David C. Schopp, Brian M. Melber, Vincent E. Doyle, III, Daniel M. Killelea, Joseph A. Agro, Edward J. Markarian, James W. Grable, Jr., Timothy J. Graber, Ruthanne Wannop, Bethany Adamy, Michael S. Deal, John K. Rotaris, Kristin Klein Wheaton, Carmen J. Gentile, Michael Willett, Greg Pajak, Dan Kohane, Keith Bond, Richard Grimm, III, Sharon Stern Gerstman, Stephen Lamantia, Joseph A. Matteliano, Ann Campbell, Debra Norton, Kevin Shelby, Susan C. Ministero and Timothy P. Murphy. Attorneys interested in having their cases heard before the MCP should contact the Appellate Practice Committee at one of the following addresses tmurphy@lglaw.com, emarkarian@magavern.com, or wrirene@hotmail.com at least three weeks before the attorney wishes to have his or her case heard. Questions can be directed to Timothy P. Murphy. [B] Become a Contributing Member! The BAEC bylaws confer contributing member status on any member who resides or maintains an office in Erie County and elects to pay an additional $50 in annual dues to help support Association programs. Contributing members have the same rights and privileges as regular members and such additional rights and privileges as the board of directors shall bestow, including special recognition in the Bulletin, annual dinner program and other publications.

5 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:00 AM Page 5 PAGE 5 cyberlaw: the brave new e-world By Anne F. Downey Non-Profits: The Need to Evolve After 30 years of law practice covering a variety of business and non-profit issues, I find myself currently spending about half of my time on intellectual property issues and the other half on exempt organizations. This interesting mix has led me to ponder the state of non-profits in our region and beyond. I will try to connect the two areas of law in this month s column. A number of my non-profit clients were formed in the late 1800s, and many were formed before 1970, when the New York Not-For-Profit Corporation law took effect. How are these nonprofits faring in the 21st century? We know that our society is trending away from involvement in organized religion, unions, social clubs, fraternal orders, and political parties. The typical 25-year-old today is not likely to become a member of the local lodge, probably does not attend weekly religious services, and may or may not vote. On the other hand, he or she is probably connected 24/7 to the local, national and global community through Instagram, Twitter, Gmail, Netflix, and/or other digital communication channels. Exempt organizations, like law firms, must adapt and evolve or they will go the way of the Dodo bird. One of my exempt organization clients is currently going through the throes of a difficult and contentious fight over the bylaws. The average age of the entity s members is probably 80. I have encouraged the organization to find a way to connect to the younger generation, whether through Facebook or some other digital activity likely to resonate with persons under 50. So far, my advice has fallen on deaf ears (no pun intended), and I fear that if the organization survives the bylaws fight the next big project will be a dissolution a few years from now. I met recently with another local non-profit s board. The organization distributes its newsletters via snail mail, some directors don t have , and its Facebook page is boring and seldom updated. The organization tries to recruit new members by having volunteers staff a table at the county fair, where they hand out printed brochures. Membership is decreasing. Meanwhile, similar organizations in western New York organized through Meetup.com are gaining new members daily. The Meetup website makes it easy for persons interested in a particular hobby or mission to meet with like-minded persons. There are Meetup groups for persons interested in hiking, kayaking, wine tasting, creative writing, and many other interests, with hundreds of active members in our region. I urged the board to consider paying the $14.99 per month to host a larger scale Meetup group, a cost that would be offset if the group managed to attract even one dues-paying member per month, but the suggestion was met with resistance. Sad to say, I predict that if the group does not find ways to join the online world soon, with timely and interactive digital content, the organization will not be around much longer. Exempt organizations, like law firms, must adapt and evolve or they will go the way of the Dodo bird. Digging in one s heels and insisting on last century s norms will not cut it. Organizations must be willing to step outside their comfort zone and find new ways to operate and recruit. It is tragic to watch laudable and likeable non-profits sputter and flame out because they cling to the 20th century. I hope our non-profit clients will be open to advice about the ever-present need to evolve and keep evolving. [B] LAWYERS HELPING LAWYERS I Thought I Was The Same From my earliest recollections, I do not believe that I felt the same as other kids. I just did not fit in. All that changed instantly when I began using alcohol and other drugs. Those feelings of being less than or not part of immediately disappeared and for the first time that I can recall, I felt good. I have heard it said that alcoholics and drug addicts are mis-wired in the factory. I can certainly identify with feeling that way. I now realize that I was using the alcohol and other drugs to run away from my problems. I continued running, finding myself in and out of trouble until one morning in January, In the midst of my morning ritual, which involved the consumption of alcohol and other drugs to thrust myself into a state of consciousness in which I could feel comfortable on the planet, I had a moment of clarity. I suddenly realized that my continued alcohol and drug abuse would lead to my demise. Somehow, I knew inside that I didn t have much longer to live. I soon found myself involved in the program of Alcoholics Anonymous. In AA, I felt at home for the first time in my life. I began to become acquainted with a Higher Power which I now realize was always present in my life. Several years later, I became involved with the Bar Association s Lawyers Helping Lawyers Committee. The Committee members are acutely aware of the life-and- death nature of alcoholism and drug addiction. These individuals became my heroes and I am genuinely proud to be one of them. Many of us devote a great deal of our time and resources to helping attorneys, judges, law students and their families recover from seemingly hopeless states of mind and body. In addition to our LHL Committee meetings, we meet for lunch once a week, have a weekly 12-Step meeting and are always in touch with one another. One of the founders of the Committee is my AA sponsor (mentor). His help to me and countless others is immeasurable. The Committee members accept me as I am, without expectations. I have found a real home, unconditional love and acceptance. I have found the fellowship that I craved and an opportunity to be of service to others. I have stopped running and I am at peace. Editor s note: If you or a colleague are struggling with substance abuse, help is readily available. Call for completely confidential assistance.

6 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 6 PAGE 6 citations By Jeff Spencer A SLIPPERY SLOPE Plaintiff sped down the slope But suddenly went out of control Sliding into a snow machine Like a speeding bowling ball. After suit, defendant moved for dismissal With papers served very brisk Asserting no liability Claiming assumption of the risk. Not so fast, Responded plaintiff s counsel Well studied and alert You must first consider our ski trail expert. He had expounded at great length On the placement of the machine Asserting it was in a place Where skiers were likely to careen. Denied, said the thoughtful court Looking down in robes most black Finding that the expert Had raised a serious question of fact! Dailey v. Labrador Development Corp., AD3rd, 4th Dept., 2/11/16, #56 Liberty Under Law Film Screening Set for April 13 Liberty Under Law: The Robert H. Jackson Story will be shown on Wednesday, April 13 from 4:00 to 5:00 p.m. in Hon. William M. Skretny s courtroom on the ninth floor of the U.S. District Federal Courthouse. A reception will follow and cost of admission is $10. You may register online at Space is very limited for this event so register soon if you wish to attend. Contact Maureen Gorski at mgorski@eriebar.org or with any questions. From a county seat lawyer to President Franklin Roosevelt s inner circle, Robert H. Jackson became Solicitor General, Attorney General, U.S. Supreme Court Justice and Chief U.S. Prosecutor of the most important international trial in history - Nuremberg. Jackson remains the only one in United States history to serve in three federal legal positions. In addition to being the story of Jackson s life, Liberty Under Law explores the reaches of presidential power during wartime; the tenuous balance between civil liberties and national security; and the global application of international law. This year marks the 70th anniversary of the Nuremberg Trials over which Jackson presided from November 20, 1945 until. October 1, President Harry S. Truman appointed then- Associate Supreme Court Justice Jackson as chief prosecutor for the United States in the trials of Nazi war criminals. Jackson considered the most important work of his life to be at Nuremberg, where his diligence and vision set legal precedents that continue to affect the international law community today. [B] This screening was made possible by The Robert H. Jackson Center in Jamestown, NY, with support from Phillips Lytle LLP. Foundation Contributions to Benefit Profession Contributions to the Erie County Bar Foundation provide an excellent vehicle for recognizing and honoring members of our profession. Memorial gifts to the Foundation become a lasting tribute to the entire legal profession, as funds are used exclusively to assist attorneys and promote understanding of our legal system. The Foundation gratefully acknowledges the following contributions: In Honor of Hon. John M. Curran s Appointment to the Appellate Division: Jeffrey M. Freedman In Honor of Hon. Patrick H. NeMoyer s Appointment to the Appellate Division: Jeffrey M. Freedman In Honor of Hon. Shirley Troutman s Appointment to the Appellate Division: Jeffrey M. Freedman In Honor of the older generation of great criminal lawyers and cocounsel Charles J. McDonough, William B. Mahoney, Paul Shanahan from Syracuse and Nate Seeberg: Richard D. Grisanti In Memory of Louis DiPasquale (Father of Linda DiPasquale): Robert S. Stepehson In Memory of Herbert J. Heimerl, Jr. Bar Association of Erie County Coleman Volgenau Joel L. Daniels In Memory of James Kennedy Dady: UB Law School Class of 1980 In Memory of John H. Napier: Bar Association of Erie County Coleman Volgenau In Memory of my late father, Nicholas D. Grisanti, the 1st: Richard D. Grisanti In Memory of Joan M. Gerstman (Mother of Alan P. Gerstman): John E. Ballow In Memory of Joseph M. Augustine: Bar Association of Erie County Coleman Volgenau Frank & Leslie Housh Joel L. Daniels Robert S. Stephenson In Memory of Joseph M. Ralabate: Thomas Whissel In Memory of William E. Lawson: Bar Association of Erie County Coleman Volgenau Heidi Mahon Jeffrey M. Freedman Victor C. Silverstein In Memory of Michael Clohessy: Frank & Leslie Housh Joel L. Daniels Joseph J. Terranova In Memory of my dear friend Herbert J. Heimerl, Jr. known since CHS days: Richard D. Grisanti In Memory of Malcolm Buckley, Jr.: Law Class of 61 In Memory of John R. Nuchereno (Husband of Catherine E. Nagel): Henry W. Schmidt, Jr. Joseph & Peggy Terranova Robert S. Stephenson Thomas Whissel Victoria Schmidt Gleason In Memory of John P. Patti: Joel L. Daniels Thomas Santa Lucia In Memory of Rocco Potenza (Father of Matthew Potenza): Philip Celniker Robert S. Stephenson In Memory of Joe LoTempio, Vince Bontante and Earl Gist who bailed out our clients over the years: Richard D. Grisanti In Memory of Hon. Kevin M. Dillon: David L. Sweet Kathleen M. Sweet

7 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 7 PAGE 7 News from Kent, Our Sister City By Jonathan Smithers I finished my last piece in transit to Vienna, en route to the European Bar leaders conference, held each year to coincide with the Vienna ball season. Amid the splendor of the meetings and dinners held in the wonderful palaces dotted about the city, some real business was being discussed. The refugee crisis is, for many here, a tragic scenario played out each day in the media coverage. For many of our near European neighbors, it is very real, on their doorsteps and in the offices. Some of the humanitarian issues lead on from legal points as to legitimacy of travel but getting legal advice to people arriving on boats is not always seen as a priority. There are stories of arbitrary treatment by local officials, overwhelmed by sheer numbers. To give some scale, I understand that on one Greek island some 500,000 people have arrived while the indigenous population is little over 10,000 and exacerbated by difficult local economic conditions. Bar associations are offering assistance but that must of course, be dealt with in a regulatory context, as advice may be specific to that jurisdiction and not cross European borders. On a different note, most delegates wanted my opinion on the possibility or probability of a British exit from the European Union. Of course, if I knew the answer I would be laying bets but, as with the Presidential race, the unexpected might happen. Politics (frighteningly) is sometimes less about the real issues and more about instinct and feeling. The culture and mindset of mainland Europe, especially the southern countries, is quite different to the United Kingdom, perhaps generating a natural antipathy in the minds of some. In what looks to be a close race, that may tip the balance. But things can change, as is oft repeated here, in a quotation from Harold Wilson, Prime Minister in the 1970s: A week is a long time in politics. This gets more interesting still for us as the Lord Chancellor and Minister of Justice, Michael Gove, longterm and close personal friend of David Cameron, has declared for the Leave campaign, (so is opposing official party policy). If he resigns or is removed, our relationship with the government will be changed and the delicate moves around the future of the profession which we have sought to nurture could be upset, a real left-field situation. The big event of the conference was to attend the Juristen Ball at the Hofburg palace. It is the legal social event of the year attended by 3,000 party goers with a strict dress code of white tie for men and floor length ball gowns for women. We Dancers at the legal social event of the year the Juristen Ball at Vienna s Hofburg Palace. were treated to a display of cotillion dancing by the young Viennese debutants quite a sight and not one matched by my feeble efforts. The recent unhappy history of the Austrian nation was brought home to me on discovering that the Ministry of Justice in Vienna was housed in this splendid palace, used as headquarters by the occupying Russian army as late as The country has come such a long way in a relatively short time. My year in office rushes by, trips to Istanbul, Beijing, Shanghai, St Petersburg and possibly even Kazakstan are still to come, as well as a quick hop over the pond to NYC for the ABA Section on International Law meeting from April If you are there, please come and say hi! [B] Presidents of four UK jurisdictions are pictured above at the Austrian ball. From left to right are Simon Murphy, Ireland; Jonathan Smithers, England and Wales; Christine Mclintock, Scotland; and John Guerin, Northern Ireland. Palais Ferstel was the setting for the European Bar Leaders recent conference in Vienna.

8 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 8 PAGE 8 Bar Association of Erie County Professional Ethics Opinion The BAEC s Professional Ethics Committee is available to respond to your ethics questions and issues facing the legal community. This Committee, chaired by Terence B. Newcomb, cannot, however, consider complaints about unethical practices, or any grievance matters. They are available to entertain inquiries about whether or not prospective activities of counsel fall within accepted guidelines. For further information, please contact Susan Kohlbacher at or skohlbacher@eriebar.org. Opinion Topic: Personal Guarantee of Client s Water Charges at Real Estate Closing Digest: Seller s Attorney Guarantee of Water Charges, with Escrow of Twice the Amount of the Current Water Bill, Would be De Minimis And Raise No Ethical Conflict Under Rule 1.7(a)(2) Rule: 1.7(a)(2) Question: Does an ethical conflict arise when the attorney for the seller of certain real property guarantee payment of all water charges for the property through the date of closing and agree to hold a sum equal to the greater of: (i) two times the paid amount shown on the most recently receipted bill for the water account or (ii) $250 in escrow for payment of all unpaid water charges attributable to the property through closing? Opinion: This inquiry seeks an opinion as to the propriety of the above-stated guarantee, which the Bar Association s Real Property Committee seeks to include among form agreements for the sale of real estate. Pursuant to Rule 1.7(a)(2) of the New York Rules of Professional Conduct, a seller s attorney s guarantee of payment for water charges accrued for the seller s property through the date of closing would present an ethical conflict only if such a guarantee entails the representation of differing interests, or if there is a significant risk that the lawyer s professional judgment on behalf of a client will be adversely affected by the lawyer s own financial, business, property or other personal interests. Neither circumstance arises from the putative guarantee. It does not cause the seller s attorney to represent the interests of the purchaser. It also does not present, in general, a significant risk of an adverse affect on the seller s attorney s professional judgment, because the risk of payment of water charges would be de minimis in light of the escrow issue. Because of the escrow agreement involved in the proposed guarantee, there is not a significant risk that the lawyer s professional judgment on behalf of a client will be adversely affected by the lawyer s own financial, business, property or other personal interests under Rule 1.7(a)(2). [B] In Memoriam Taking to the Slopes The BAEC recently sponsored a Ski Day for members at the HoliMont Ski Area in Ellicottville. Attendees enjoyed a full day of skiing, followed by an après-ski party with drinks and hors d oeuvres. Photos courtesy of Laurie Styka Bloom The heart hath its own memory, like the mind. And in it are enshrined the precious keepsakes, into which is wrought the giver s loving thought. ~ H.W. Longfellow 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. Michael Clohessy Joseph M. Augustine William E. Lawson John H. Napier

9 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 9 PAGE 9 in the public service By Rebecca Hoffman, Staff Attorney, Civil Legal Services Unit, Legal Aid Bureau of Buffalo and Julia Gilgurd, Pro Bono Scholar, Legal Aid Bureau of Buffalo Applying the Child Support Cap to Arrears that Accrued During Incarceration Individuals reentering society after incarceration are faced with numerous obstacles and the Legal Aid Bureau of Buffalo is working with various groups to address the civil legal issues these returning citizens face. We are especially honored to be working with Hon. Hugh B. Scott on the WDNY Federal Reentry Court team in Buffalo. The most common problems our reentry clients face are: employment discrimination; issues with licensing from state agencies such as the Department of Health and the Education Department; re-obtaining a driver license; and child support arrears. The New York Family Court Act provides that parents with children under the age of 21 are charged with supporting their children if possessed of sufficient means or able to earn such means. 1 Section 413(1)(g) states: Where the noncustodial parent s income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue. For a non-custodial parent ordered to pay the basic child support obligation of $25 or less per month, Erie County Child Support Enforcement ( CSE ) has applied the $500 cap automatically because child support orders for $25 or less per month are only available where the non-custodial parent is below the federal poverty line or where a higher child support payment would bring the parent below the poverty line. 2 For parents who fall below the poverty line after a court order for child support has been entered but do not immediately seek a modification of their child support order, the courts have applied the cap to the child support arrears that accrued while the parent was below the poverty line. 3 Applying the cap after the fact does not violate 451 s prohibition on reducing arrears because by operation of 413(1)(g), the arrears have not accrued. 4 Where some arrears accrued before the parent was below the poverty line, the courts will preserve those arrears and cap only the portion that accrued after the parent fell below the poverty line. The issue is whether non-custodial parents returning home from prison are entitled to a cap on arrears that accrued during their incarceration. Incarcerated persons are below the federal poverty level and are not possessed of sufficient means or able to earn such means necessary to pay child support. While the answer may seem obvious, incarcerated persons have historically faced special obstacles with regard to child support modifications, regardless of whether their incarceration was related to their failure to pay child support. The Act provides that the court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. 5 However, for decades, support magistrates have followed the rule created by Matter of Knights v. Knights, 6 which held that the Family Court had not abused its discretion in concluding that it would be unfair for an individual who had freely chosen to commit a crime to be relieved from the accrual of a support obligation. As a result, thousands of parents were burdened with insurmountable child support debts upon their release from prison. In 2010, the state legislature intervened to add the language that incarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of nonpayment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. 7 For reasons that have yet to be examined, the courts have not since been inundated with petitions by incarcerated parents to modify child support orders. What we have found is that many parents leaving prison receive letters from CSE informing them they owe tens of thousands of dollars in child support arrears. These arrears not only cause their bank accounts to be frozen and driver licenses to be suspended, but also mean that if the parent is able to find work after leaving prison, up to 65 percent of his or her paycheck can be garnished to cover current and past due child support. The Federal Department of Health and Human Services has implored states to address this issue because these enormous sums discourage formal employment and hurt family relationships. 8 Parents calling the toll-free number listed in the statement from CSE are told that nothing can be done about their arrears and that the only available relief is to petition the court for a modification of the prospective child support obligation. These parents, who have finished serving their prison sentences, find themselves sentenced to years of trying to live on 35 percent of the after-tax income from what are often lowwage jobs. Even an individual earning a gross income of $50,000 per year would find themselves trying to live on less than $300 per week. In reality, our clients are more likely to be working 30 hours a week earning minimum wage, which puts them below the Self Support Reserve established by New York state. 9 Most of our clients will be making minimum wage when they start working, yet very few of our clients will allow us to pursue a modification of the prospective child support obligations. They want to pay child support going forward and only seek help with the arrears so they have money left in their paycheck when they start working. In practice, it appears to be uncommon for magistrates to lower the child support figures, absent the consent of the other party, because of the Act s prohibition against reducing child support arrears. Further, non-custodial parents facing a substantial change in circumstances that puts them below the poverty line are likely seeking timely child support modifications. As such, we believe it is unusual for support magistrates to be asked to reconsider the calculation of the arrears. Indeed, there is little case law regarding applying the child support cap to a larger balance, but much of what exists has in fact come from the Fourth Department. 10 Many of our clients entered prison at a time when modifications were not available for incarcerated parents. Hypothetically, a person entering prison tomorrow could petition the court today for a downward modification of the child support to $25 and leave prison in five or 10 years with a $500 arrears balance. 11 A person leaving prison today is just as entitled to that $500 cap. If the cap was not applied automatically, the remedy is to ask the court to apply the cap. 1 N.Y. Fam. Ct. Act 413(1)(a) (McKinney). 2 See N.Y. Fam. Ct. Act 413(1)(d) (McKinney). 3 See e.g., Matter of Chomik v. Sypniak, 81 A.D.3d 1259 (4th Dep t 2011); Blake ex rel. Ashley v. Syck, 230 A.D.2d 596, app. denied, 90 N.Y.2d 811 (4th Dep t 1997). 4 Id. 5 N.Y. Fam. Ct. Act 451(3)(a) (McKinney). 6 Matter of Knights v. Knights, 71 N.Y.2d 865, 866 (1988). 7 N.Y. Fam. Ct. Act 451(3)(a) (McKinney). 8 Realistic Child Support Orders for Incarcerated Parents, Administration for Children & Families, U.S. Department of Health and Human Services, Child Support Fact Sheet Series Number 4. 9 The 2016 Self-Support Reserve is $16, See footnote iii. 11 Plus any arrears that existed before incarceration.

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12 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 12 PAGE 12 The documents total over 50 pages. We will try to analyze them for our next column. Be aware, however, that any fiduciary who was required to file a form 706 after July 31, 2015 is supposed to issue the new form days after filing the form 706, or March 31, 2016, whichever is later. Initial review of the Proposed Regulations has identified a number of problems, and the AICPA has written to the IRS requesting an extension of the March 31 deadline to May 31. death and taxes By Peter J. and Jillian E. Brevorka Federal Basis Reporting Requirements On March 4, shortly before the deadline for this column, the Internal Revenue Service published the Temporary Regulations for Section 6035 and the Proposed Regulations for Section 1014(f) with regard to the new basis reporting required of fiduciaries filing form 706 after July 31, Presbyterian Home for Cent. NY v. Thompson, 2016 NY Slip Op (4th Dept., 2016) This is an action by a nursing home to recover the costs of care from the patient s responsible party when the patient was denied Medicaid coverage. The defendant s mother was admitted to the plaintiff s nursing home, and defendant executed a private pay agreement on her mother s behalf. The agreement named the defendant as responsible party, and (1) obligated her to pay for her mother s care from the mother s resources, (2) not transfer any of the mother s assets in a manner that would result in Medicaid ineligibility, and (3) pay for the mother s care if Medicaid coverage were denied solely as the result of [defendant s] actions. The action was brought by the nursing home because Medicaid was denied as the result of transfers made by defendant from the mother s revocable trust, of which defendant was a co-trustee. The court below denied motions for summary judgment by both parties. On appeal, the Fourth Department affirmed. While the Appellate Division concluded that plaintiff established its prima facie entitlement to a determination that defendant breached the private pay agreement by demonstrating defendant s control over her mother s resources, defendant s agreement to pay plaintiff from those resources, and the existence of approximately $54,000 in the revocable trust on the date the mother was admitted, which could have been, but was not, used to pay the nursing home. The record established that defendant accepted personal responsibility to utilize her access to her mother s funds to pay for the mother s care and then breached that agreement by failing to apply available assets to pay nursing home bills. However, summary judgment was denied because there remained some triable issues of fact relating to the amount of damages, and whether a payment of $133,000 made by defendant to plaintiff, allegedly gratuitously compensated the nursing home for any damages flowing from the defendant s breach of the contract. Fishman v. Daines, 2016 U.S. Dis. LEXIS (E.D.N.Y. 2016) This case involves notice requirements for revocation of Medicaid, and the interpretation of the state Medicaid manual. But it is particularly interesting reading with respect to its extensive discussion of administrative regulations and continued on page 14

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14 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 14 PAGE 14 Death and Taxes continued from page 12 administrative interpretations of statutes, and the deference which a court must give to those regulations and interpretations. This could have application in other areas of administrative law, such as the Internal Revenue Service. In the decision the court noted, An agency s interpretation of its own statute and regulation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation. In this case, that interpretation was used against the administrative agency. The pertinent regulation (32 C.F.R provides that the state may deny or dismiss a request for a hearing if [t]he [claimant] fails to appear at a scheduled hearing without good cause. Plaintiff read this regulation as requiring the state to ascertain whether the claimant lacked good cause for failing to appear, before immediately acting. Plaintiff contended that the regulatory history and agency interpretations (through the state Medicaid manual) of the regulation support this reading. The court determined that due process might not require such an additional finding and notice, but that the relevant statute (42 USC 1396a(a)(3)) went beyond bare minimum due process requirements. This case involved a decision by DSS to revoke Medicaid after the claimant has defaulted in appearing at a fair hearing with respect to an appeal of such revocation. The plaintiff on behalf of himself and a class similarly situated, was seeking an injunction directing DSS to issue post-default notices, giving the class members an opportunity to show that their default was as the result of good cause. The court found that the manual required that a fair hearing request may be considered abandoned when neither the claimant nor his representative appears at a scheduled hearing, provided that DSS mails the claimant an inquiry as to whether he wishes any further action on his request for a hearing, and after 10 days no reply is received. The court then granted a preliminary injunction requiring such a 10-day notice be mailed to all class members whose Medicaid assistance was revoked for failure to appear at their scheduled fair hearing. [B] St. Thomas More Guild Inc. An Organization for Lawyers in the Diocese of Buffalo, New York President J. Michael Lennon II Vice President Donna Hoelscher Suchan Secretary Katherine M. Liebner Treasurer David C. Mineo Directors K. John Bland Laurie Styka Bloom Craig R. Bucki James J. Contino Cornelia Farley J. Patrick Lennon Thomas E. Liptak John W. Looney Daniel T. Lukasik Mara McCabe Michael L. McCabe Hon. Patricia A. Maxwell Susan C. Ministero John L. Sinatra, Jr. Mary L. Slisz Vincent J. Sorrentino FOR FURTHER INFORMATION, contact J. Michael Lennon II at stmgwny@gmail.com or visit our website at Are You An Attorney Struggling With Depression? If so, you re definitely not alone. A recent Johns Hopkins study of 108 occupations found that lawyers topped the list of those who suffered from depression. Attorneys were found to suffer from depression at a rate of four times that of the general population. Depression is a treatable illness and the right combination of medications and therapies can significantly improve the quality of life for those who suffer from it. Help and support are just a phone call away. The Lawyers with Depression Support Group meets on a weekly basis to share stories and fellowship. The group meets every Friday (except holidays). See the calendar on page 24 for meeting dates, times and locations. If you or a colleague are struggling with depression, there is no need to suffer in silence. For further information, visit or contact Daniel T. Lukasik at or danieltlukasik@gmail.com. All calls are strictly confidential. We invite you to join us and share your story.

15 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 15 PAGE 15 Become a fan of your favorite Bar Association. Like us on Facebook, follow us on Twitter and join our group on LinkedIn.

16 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 16 PAGE 16 lost in (techno) space By Martha Buyer Information Security: The New IT (or It ) Issue Part II The Safe Harbor is No Longer Safe Context is incredibly important in all things. As I have been preparing for a conversation about information security and privacy at a major international event, I decided that by means of introduction, I should come up with a (totally unscientific) list of people who have changed the contemporary world. Other than leaving off mass murderers and war criminals, I was open to just about anyone, and that s what I got. Although the list is long, some obvious choices were, in no particular order, Bill, Steve, Malala, Gordon and Eleanor (no last names needed). And of course Mother Teresa, Margaret Sanger and Indira Gandhi. Among the less traditional choices were David Bowie, Billie Jean King, Magic Johnson, Robert Oppenheimer, the Pope and Elvis. If nothing else, it s been a very interesting exercise. The point of gathering this information has been to put in context the person who has had a dramatic effect on the world with respect to information security and privacy. Like it or not, Edward Snowden has changed the world. Whether you agree with his actions or not, he has and will continue to have a significant impact on all of us, both personally and professionally, particularly where technology enables entities to reach more deeply into our personal lives than has ever before been considered, let alone possible. In the first part of this series, I presented information that was focused more intensely on the domestic side of this issue. That is, how American entities need to consider the data that they have in order to fully manage it. In this part, we ll look at least a bit more globally, with particular attention to the relationship between the US and the European Union (EU) with respect to information security. The decision in Schrems v. Data Protection Commissioner (Case C- 362/14) has already had an impact for those entities that both intentionally and unintentionally transfer data across the Atlantic to the US as a result of using the cloud for storage and/or processing. Before digging into what this decision means technically, it s important to consider a critical distinction between the US and EU with respect to privacy. In the US, individuals and businesses consider privacy a matter of commerce. It s not that Americans don t care about the security of their personal data, but they rely on themselves and the institutions with which they share this information to keep what s private private. In the E.U., however, privacy is considered a fundamental right. In fact, in quoting from the statement made by the Court of Justice of the European Union, legislation permitting public authorities to have access on a generalised (sic) basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life. It is essential to understand this vastly different standard when considering the post- Schrems environment. One of the challenges with cloud computing generally is the question of where the data actually is. Following this decision, the location of the cloud matters more than ever. Once data leaves the European Union s borders for the US, the Schrems decision (and the rules that will follow) becomes crucially important. As such, it s important, particularly for EU entities to know where the cloud they are using is located. It matters! The Case Austrian Maximillian Schrems brought suit in an Irish court following the disclosures made by Edward Snowden. Specifically, Schrems claimed that the US did not offer sufficient protection from US surveillance for data that was transferred from an EU location (in this case, Ireland) to the US Specifically, Mr. Schrems claimed that the information that he provided to Facebook was stored at Facebook s Irish subsidiary, and some or all of his data was then transferred to other Facebook servers in the US for processing. No one disputes these facts. In 2000, the EU adopted its Safe Harbor decision, which enabled US companies to self-certify that their own internal company practices ensured a sufficient level of protection for data coming from the EU to the US, under the terms of the EU Data Protection Directive 95/46/EC. This EU s safe harbor was effective until last October, when the EU Advocate-General determined that the protections provided by it were insufficient. Further, in its opinion, the court determined in a potential conflict of laws case that while an EU court made this decision individual court members (i.e. EU member countries) have power, independent of the EU, to not only investigate claims about the level of data protection between respective EU countries and the US, but to suspend data transfers if, on an individual and not collective basis, each determines that the US doesn t provide a sufficient level of protection of private information. Key Take-aways Many EU-based companies utilize US-based cloud services. As such, although an entity may assume that its company keeps all personal data outside of US jurisdiction, it is now time to verify and then take steps to secure that information, as necessary. These same entities can no longer rely on safe harbor selfcertification. Entities need to independently verify that company transfers of personal data from the EU to the United States meet the level of data privacy protection considered adequate by the EU Data Protection Directive. The European Commission has recommended that companies consider using the EU-approved standard contractual clauses, the EU-approved Binding Corporate Rules, or the enumerated derogations under which data can be transferred. There are two sets of standard contractual clauses for transfers from data controllers to data controllers established outside the EU/EEA and one set for the transfer to processors established outside the EU/EEA. Loss of safe harbor protection could be a deal breaker for entities that process and store data coming from the European Union. These changes have had and will continue to have a significant impact on the cloud-based businesses where processing is handled stateside. If you have questions or concerns, now is the time to learn the new rules. They re continuing to evolve, but current knowledge of obligations will certainly make the difference between maintaining an EU-client relationship and losing it. [B] You and the Law Educates Public on Legal Issues We appreciate the time that the following members of our legal community have taken to educate the public about legal matters by volunteering their time to appear on You and the Law. The program airs every Friday at 5:45 p.m. during NPR s All Things Considered. Kelly M. Barrett Health Law Florina Altshiler Debunking the Myths of DNA Evidence Andrew J. Freedman Transgender Student Rights in Public Schools Elizabeth A. Kraengel Proper Court (Venue/Jurisdiction) for a Dispute You and the Law is underwritten by the Erie County Bar Foundation and the Lawyer Referral and Information Service of the BAEC. If you would like to appear as a guest on the program, please contact Celeste Walsh at call ext. 118 or by at cwalsh@eriebar.org.

17 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 17 PAGE 17 Lawyer Depression and What You Can Do About It Lawyers for the Arts The fifth anniversary Lawyers for the Arts show sold out the Tralf and doubled the amount of money raised last year. A grand total of $37,000 will be distributed among various arts groups through Give for Greatness, as administered by Arts Services Initiative. The sold-out standing room only crowd was dancing and clapping to ten bands jamming on two stages to music from rock to klezmer, according to organizers. All the musicians are lawyers and judges from western New York and the event was a singular success, according to Buffalo attorney Sandra Cassidy, who chaired the event. We stepped it up quite a notch this year, she said. The music was fantastic, we changed venue to the Tralf for more room after we sold out last year - then we sold out again and doubled the money raised! The annual event, which also sells fine art created by lawyers, is held the last week in February and is an extension of Artvoice s Give for Greatness campaign. It is run through a committee composed of Sandra Cassidy; Ken Africano; Leroi Johnson; Joanna Dickinson; Amber Poulos; Les Greenbaum; Keri Callocchia; Jim Peterson; Dennis Bischof; Mike Scinta; David Block; Ann Rutland; Joe O Donnell;Lucy Dadd and Connie Campanaro of ASI. Presenting sponsors this year were Key Bank and Hodgson Russ LLP. Other sponsors included: Artvoice; Dansa & D Arta LLP; Harter Secrest & Emery LLP; Lipsitz Green Scime Cambria; Vacco Farms; Avalon Document Services; Joe Matteliano; Phillips Lytle LLP and Brown Chiari. Photos by Glenn Edward Murray By Daniel T. Lukasik Are you a lawyer suffering from depression? Do you know a colleague that struggles with it? If so, you re not alone. Researchers at John Hopkins University found statistically significant elevations of major depressive disorder in only three of 104 occupations surveyed. When adjusted for sociodemographic factors, lawyers topped the list, suffering from depression at a rate of 3.6 times higher than employed persons generally. 1 Tragically, lawyers rank fourth in proportion of suicides by profession. 2 A new landmark study conducted by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs published last month reveals that 21 percent of licensed, employed attorneys currently qualify as problem drinkers, 28 percent struggle with some level of depression and 19 percent demonstrate symptoms of anxiety. 3 Forty-six percent reported concerns with depression with depression at some point in their legal careers. When put in perspective, that means that of the nearly 4,000 lawyers in Erie County, over 1,000 are struggling from depression right now. It can be mild, moderate or severe in intensity. According to the National Institute of Mental Health 4, symptoms include: Difficulty concentrating, remembering details, and making decisions; Fatigue and decreased energy; Feelings of guilt, worthlessness, and/or helplessness; Insomnia, early morning wakefulness, or excessive sleeping; Irritability, restlessness; Loss of interest in activities or hobbies that were once pleasurable; Loss of pleasure in life; continued on page 18

18 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 18 PAGE 18 Lawyer Depression and What You Can Do About It continued from page 17 Overeating or appetite loss; Persistent sad, anxious or empty feelings; and Thoughts of suicide or suicide attempts. Whether or not you re clinically depressed can only be determined by a mental health professional. To be so deemed, you must have at least five of the above symptoms for at least two weeks. But many people never get to the point of receiving such an evaluation or treatment because they or others see their symptoms as a slump, sadness, or even burnout. Perhaps a vacation will cure the blues, some say. Others take the tough love approach and tell the depressed lawyer to snap out of it. But none of this works. That s because depression isn t sadness. Richard O Connor, Ph.D., author of the best-selling book, Undoing Depression, writes: The opposite of depression is not happiness, but vitality the ability to experience a full range of emotions, including happiness, excitement, sadness, and grief. Depression is not an emotion itself; it s the loss of feelings; a big heavy blanket that insulates you from the world yet hurts at the same time. It s not sadness or grief, it s an illness. 5 What Causes Depression? Depression has many causes: A genetic history of depression in one s family, hormone imbalances, and biological differences, among others. Certain personality traits, such as low self-esteem, a pessimistic outlook, chronic stress at work or home, childhood trauma, drug or alcohol abuse and other risk factors increase the likelihood of developing or triggering depression. Why Do Lawyers Experience Depression at Higher Rates? According to Patrick Krill: (The) answer is less straightforward, but the rampant, multidimensional stress of the profession is certainly a factor. And not surprisingly, there are also some personality traits common among lawyers self-reliance, ambition, perfectionism and competitiveness that aren t always consistent with healthy coping skills and the type of emotional elasticity necessary to endure the unrelenting pressures and unexpected disappointments that a career in the law can bring. 6 According to Martin Seligman, Ph.D., it has to do with negative thinking: One factor is a pessimistic outlook defined not in the colloquial sense (seeing the glass as half empty) but rather as the pessimistic explanatory style. These pessimists tend to attribute the causes of negative events as stable and global factors ( It s going to last forever, and it s going to undermine everything. ) The pessimist views bad events as pervasive, permanent, and uncontrollable, while the optimist sees them as local, temporary and changeable. Pessimism is maladaptive in most endeavors. But there is one glaring exception: Pessimists do better at law. Pessimism is seen as a plus among lawyers, because seeing troubles as pervasive and permanent is a component of what the law profession deems prudent. A prudent perspective enables a good lawyer to see every conceivable snare and catastrophe that might occur in any transaction. The ability to anticipate the whole range of problems and betrayals that non-lawyers are blind to is highly adaptive for the practicing lawyer who can, by so doing, help his clients defend against these far-fetched eventualities. If you don t have this prudence to begin with, law school will seek to teach it to you. Unfortunately, though, a trait that makes you good at your profession does not always make you a happy human being. 7 Tyger Latham, Ph.D., a psychologist in Washington, D.C., who treats many lawyers with depression, writes: I ve come to recognize some common characteristics amongst those in the profession. Most, from my experience, tend to be Type A s (i.e., highly ambitious and overachieving individuals). They also have a tendency toward perfectionism, not just in their professional pursuits but in nearly every aspect of their lives. While this characteristic is not unique to the legal profession nor is it necessarily a bad thing when rigidly applied, it can be problematic. The propensity of many law students and attorneys to be perfectionistic can sometimes impede their ability to be flexible and accommodating, qualities that are important in so many non-legal domains. 8 What Can You or Someone You Care About Do? Join a support group that was created by lawyers in Erie County almost ten years. The group meets once a week every Friday from 12:30 to 1:30 at the Bar Association. The meetings are strictly confidential. It s a place for lawyers to share their struggles with depression and gain the encouragement and support they need to recover and remain well. A support group is not group therapy. This group is run by the members. We re all practicing lawyers so we know all too well about the stress that our demanding profession puts on all of us. While law has many satisfying and wonderful qualities, most of us experience the wear and tear on our psyches from perpetual stress that our adversarial profession dishes out. If you would like to learn more about the Bar Association s support group for lawyers with depression in Erie County, contact me at or danieltlukasik@gmail.com. For further information on lawyer depression, visit Editor s Note: A seminar on Stress, Anxiety and Depression in the Legal Profession will be held on April 7. See page 22 for details. 1 See William W. Eaton, et al. Occupations and the Prevalence of Major Depressive Disorder, 32 Journal of Occupational Medicine, 1079, 1083 (1990) 2 Why Are Lawyers Killing Themselves? Rose Flores and Rose Marie Arce, CNN, 1/20/14 3 Patrick Krill, JD, LLM, Ryan Johnson, MA, and Linda Albert, MSSW, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, JOURNAL OF ADDICTION MEDICINE, Volume 10 (Jan/Feb 2016) 4 National Institute of Mental Health 5 Richard O Connor, Ph.D., Undoing Depression: What Therapy Can t Teach You and Medicine Can t Give You 6 Patrick Krill, JD, Why Are Lawyers Prone to Suicide? CNN, 1/21/14 7 Martin E.P. Seligman, Paul R. Verkuil & Terry Kang, Why Lawyers Are Unhappy, 10 DEAKIN L.REV. 49 (2005) 8 Tyger Latham, Psy.D., The Depressed Lawyer, Psychology Today, 5/2/11 Welcome New Members The Bar Association of Erie County is pleased to welcome the following new members: Sarah A. Bertozzi Joel A. Blanchet Lauren Creighton Daniel Fabian Laura Fetto M. Mark Howden Katherine Jost Stephen Joyce Anthony J. Kuhn Patrick A. Little Caryn M. Markert Kirstie A. Means Michael J. Menchini Jean E. Mulligan Marthe J.B. Ngwashi Emily G. Riordan Steven J. Schrader Sara J. Scime Jonathan R. Smyth Blake Zaccagnino It s great to belong to something this good.

19 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 19 PAGE 19 western district case notes By Kevin M. Hogan and Sean C. McPhee Domestic Violence is NEVER Okay. Domestic abuse doesn t discriminate. It happens within all age ranges, ethnic backgrounds, and financial levels. If it happens once, it will happen again. The abuse may occur during a relationship, while a couple is breaking up, or after a relationship has ended. Despite what many people believe, domestic violence is not due to an abuser s temporary loss of control over his or her behavior. In fact, violence is a deliberate choice made by the abuser in order to take control of a spouse or partner. Look What You Made Me Do! In spite of the abuser s efforts to blame the victim, domestic violence is NEVER your fault. If you or a loved one are suffering, help is just a phone call away. Don t wait. Please call the 24-hour domestic violence hotline at CONDITIONAL CLASS CERTIFICATION In Augustyniak v. Lowe s Home Center, LLC, No. 14-CV JJM (Feb. 8, 2016), plaintiff brought an action against her employer seeking recovery on behalf of herself and others similarly situated, alleging that she was misclassified as a salaried employee for the purpose of avoiding the overtime provisions of the Fair Labor Standards Act. Plaintiff later filed a motion for conditional certification of a nationwide class, which the court denied. Before the motion was filed, however, more than 50 individuals from several states filed consents to opt-in to the action. Defendants argued that the court s denial of conditional certification required dismissal of the opt-in plaintiffs claims without prejudice, but the court rejected that argument, holding that the sole consequence of denying conditional certification was that notice would not be sent to potential class members. It did not, however, automatically require dismissal of those plaintiffs who opted-in without receiving such notice. Nonetheless, the court held that the opt-in plaintiffs could only join the action if they were similarly situated to the individual plaintiff who brought the suit, and that it was plaintiff s burden to make that showing. Although the plaintiff will face an uphill battle in demonstrating that the opt-in plaintiffs are similarly situated to her, the court granted her the opportunity to make that showing. STAY OF PROCEEDINGS In Zink v. First Niagara Bank, N.A., No. 13-CV RJA-JJM (Mar. 1, 2016), a putative class action in which plaintiff seeks to recover statutory damages for defendant s alleged systematic failure to timely file mortgage satisfactions, plaintiff filed a second uncontested motion requesting preliminary approval of the parties settlement following the denial of his initial uncontested motion. In support of the second uncontested motion, defendant argued that the settlement should be approved now because the Supreme Court is currently considering a case concerning Article III standing that could affect the viability of [plaintiff s] claims. In that case (Spokeo v. Robins), the Supreme Court is expected to decide whether Congress can confer Article III standing upon a plaintiff who suffers no concrete harm by authorizing a private right of action based on a bare violation of a federal statute. Although both parties urged the court not to stay the action pending the Supreme Court s decision in Spokeo, and the defendant decided not to press the question of standing at this time, the court determined that it could not ignore the issue because it has an obligation to assure itself that Article III jurisdiction exists. Ultimately, the court questioned whether the belated filing of plaintiff s satisfaction of mortgage amounts to a palpable deprivation sufficient for Article III standing and concluded that a stay of limited duration was appropriate. FAIR DEBT COLLECTION PRACTICES ACT In Andino v. Mercantile Adjustment Bureau, LLC, No. 14- CV-59-JTC (Feb. 18, 2016), plaintiff brought an action to recover actual and statutory damages under the Fair Debt Collection Practices Act ( FDCPA ) based on defendant s alleged conduct in attempting to collect a debt incurred by plaintiff s mother. Upon completion of discovery, defendant moved for summary judgment, contending that plaintiff failed to come forward with evidence rebutting its records showing that it called plaintiff s telephone number on only two occasions over a 10-day period, a volume and pattern that defendant claimed was insufficient as a matter of law to constitute a violation of the FDCPA. Observing that courts have not hesitated to grant defendants summary judgment where the evidence demonstrates an intent to contact debtors rather than an intent to annoy, abuse, or harass them, the court found that defendant met its burden on the motion. Turning to whether plaintiff had come forward with specific facts showing a genuine issue for trial, the court held that plaintiff s unresponsive deposition testimony and self-serving statements in his unsworn declaration failed to suggest anything other than a legitimate effort to collect a debt. As a result, plaintiff s complaint was dismissed. AUTOMATIC STAY In FTC v. Unified Global Group, LLC, No. 15-CV- 422W(F) (Feb. 9, 2016), the FTC brought suit under the Federal Trade Commission Act to enforce the Fair Debt continued on page 20 Don t Suffer in Silence. Let Us Help You Find Your Voice.

20 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 20 PAGE 20 Case Notes continued from page 19 Collection Practices Act, and sought to enjoin defendants allegedly deceptive, abusive and unfair debt collection practices, which the FTC claimed had caused consumers to pay millions of dollars to the defendants, resulting in unjust enrichment. After defendants assets were frozen and a receiver was appointed for the corporate defendants, one of the individual defendants filed for bankruptcy under Chapter 11 of the Bankruptcy Code and sought to stay the FTC lawsuit pursuant to the automatic stay provision in 11 U.S.C. 362(a)(1). The court declined to stay the lawsuit under the governmental unit or police powers exception to the automatic stay, which applies when a governmental unit is suing a debtor to prevent or stop a violation of anti-fraud, consumer protection, or similar police or regulatory laws, such as the FTC was doing in this case. INTERPLEADER AND ATTORNEYS FEES In Metropolitan Life Insurance Co. v. DeSabio, et al., No. 15-CV-691EAW (Feb. 1, 2016), plaintiff filed a complaint in interpleader seeking to deposit the proceeds of a life insurance policy with the court and discharge plaintiff from further liability pending a determination of the policy s proper beneficiaries. After granting plaintiff s motion seeking that relief, the court denied plaintiff s request for an award of attorneys fees to be paid from the life insurance proceeds. The court acknowledged that it possessed equitable discretion to award costs and fees to a disinterested stakeholder who deposits a disputed res into the court, but noted that, in matters involving the payment of insurance proceeds, an award of attorneys fees to an insurer is appropriate only when the incurred expense exceeds the ordinary cost of doing business, which the court found plaintiff had failed to establish in this case. The court also was troubled that the requested fees and costs totaled nearly seven percent of the amount of life insurance proceeds at stake. DISCOVERY In Bausch & Lomb, Inc., et al. v. Vitamin Health, Inc., No. 13-CV-6498JWF (Feb. 9, 2016), a patent infringement action, the court previously issued a discovery order directing plaintiff to supplement a response to an interrogatory prior to depositions being taken, but defendant deposed three witnesses before the supplemental response was served, and then moved to preclude plaintiff s infringement claim. The court agreed that plaintiff had violated the discovery order, but refused to preclude the infringement claim as a sanction, finding that preclusion would be disproportionate to the relative harm sustained by defendant as a result of plaintiff s discovery violation. Rather, the court ordered that, at plaintiff s expense, defendant could re-depose the witnesses with regard to those facts disclosed in plaintiff s supplemental interrogatory response. PLEADING In United States ex rel. Takemoto v. The Hartford Financial Services Group, Inc., et al., No. 11-CV-613S (Jan. 20, 2016), plaintiff commenced a qui tam action on behalf of the United States, who elected not to intervene, pursuant to the False Claims Act ( FCA ), seeking to recover damages from defendants for their alleged failure to reimburse the government for payments made to Medicare beneficiaries. Defendants moved to dismiss under both Rule 8(a)(2) and Rule 9(b). After first granting plaintiff s request for leave to drop a knowingly concealed allegation and proceed solely with a claim that defendants knowingly and improperly avoided or decreased an obligation to pay money to the government under Section 3729(a)(1)(G) of the FCA, the court granted the motion to dismiss, finding that plaintiff failed to allege facts sufficient to allow each defendant to understand the basis of plaintiff s claims against it. The court found that the amended complaint grouped related corporations together without differentiating as to the involvement of each, in violation of Rule 8(a), and that a plaintiff was not permitted to rely on discovery to determine whether or not, and against whom, a cause of action might lie. Moreover, the court found that the amended complaint failed to identify any particular payment obligation which defendants had avoided, knowingly or otherwise. The court proceeded to dismiss the amended complaint with prejudice, and without leave to replead, noting that plaintiff had made only a bare-bones request for leave to replead without explaining how any new pleading would cure the deficiencies identified by the court. The court also concluded that plaintiff lacked a good faith basis for certain allegations in the complaint, a factor the court could consider when deciding whether to allow plaintiff to replead. Finally, having concluded the amended complaint failed to satisfy the more relaxed pleading standard under Rule 8(a), the court concluded it did not need to decide whether plaintiff s knowing and improper avoidance claim under the TCA were subject to the heightened pleading standard under Rule 9(b). [B] 17th Annual Bowling Tournament May 19, :00 p.m. - 8:30 Airport Lanes LAWYERS FOR LEARNING B OWLING TOURNAMENT! It s that time of year again! Organizers are gearing up for the 17th Annual Bowling Tournament to benefit Lawyers for Learning. Please join us for another fun evening of bowling and camaraderie in support of the students at Buffalo Public School 18. In addition to the weekly one-on-one tutoring the group has provided for the last 18 years, contributions from the legal community have allowed Lawyers for Learning to send dozens of inner city children to summer camp at the YMCA s Camp Weona, sponsor many educational field trips, and to continue work on the community garden across the street from the school. The Bowling Tournament sold out last year and some teams could not join in the festivities. Sign up early to be a part of this annual tradition! Checks should be made payable to LFL, Inc. All donations are tax deductible. Donations can be sent directly to our Bowling Tournament Committee c/o Garvey & Garvey, 416 Pearl St., Buffalo, New York Questions? For further information, contact Matt Garvey at , or by at mgarvey@garveyandgarvey.com. TEAM REGISTRATION FORM $175/team Team One Team Name: Contact: Circle one: Men Women s Mixed Bowler (name): Bowler (name): Bowler (name): Bowler (name): Bowler (name): # $25/ea: Amount encl: Please indicate if there is another team with whom you would like to bowl: TEAM REGISTRATION FORM $175/team Team Two Team Name: Contact: Circle one: Men Women s Mixed Bowler (name): Bowler (name): Bowler (name): Bowler (name): Bowler (name): # $25/ea: Amount encl: Please indicate if there is another team with whom you would like to bowl: Name of Sponsor: Contact Name: Address: Address: Phone Number: Applications due on or before Thursday, May 12, but hurry!! Lanes will sell out quickly. BECOME A SPONSOR!! Visit and click on Upcoming Events. Please return this form to: LFL, Inc. Bowling Tournament Committee c/o Matthew J. Garvey, Esq. Garvey & Garvey 416 Pearl Street Buffalo, New York 14202

21 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 21 PAGE 21 Bench and Bar continued from page 3 Alba Vranjes Samuel A. Alba has joined the law firm of Friedman & Ranzenhofer, PC as an associate attorney. A graduate of Buffalo State College, he received his JD from SUNY at Buffalo Law School. He is currently the president of the Williamsville Central School District PTSA District Council. He concentrates his practice in civil and estate litigation and criminal defense. Michael N. Vranjes has joined Simpson & Simpson, PLLC as a registered patent attorney, where he handles all phases of intellectual property law. A graduate of SUNY Buffalo Law School, Vranjes focuses his practice on prosecution and protection of technology in various technical disciplines. He was formerly an associate at International Business Machines Corporation and has experience in all aspects of patent law. The Holocaust-Inspired Roots of Medical Informed Consent and Current Medico-Legal Ethics: Concerns for Physicians and Attorneys Missing Records The Bar Association frequently receives calls from clients, court staff and member attorneys who are attempting to locate the records of deceased attorneys. If you have any information concerning the files of a deceased member, please contact Darren Canham at or dcanham@eriebar.org so that we can update our records. Your assistance is greatly appreciated! Artal A program will be held on Thursday, May 5 from 5:30 until 8:00 pm at Temple Beth Zion on Delaware Avenue to explore the corruption of medical ethics in Nazi Germany, the foundations for modern-day understandings of informed consent in the Nuremberg trials, and current issues of informed consent and patients rights, including euthanasia, and the Human Genome Project. This program will be sponsored by the Holocaust Resource Center of Buffalo, the Robert H. Jackson Center, the Medical Societies of Erie and Chautauqua Counties, the Bar Association of Erie County Human Scharf Rights Committee, and the Women s Bar Association of the State of New York, WNY Chapter (WBASNY-WNY). Participants will earn 2.0 CLE credits in Ethics. Speakers include Raul Artal, MD, of the St. Louis University School of Medicine and Jennifer R. Scharf, president of WBASNY-WNY. Dr. Artal was born in 1943 in Bersad, a concentration camp in a part of Ukraine called Transnistria administered by Romania under Nazi control. His history inspired him to become an obstetrician who specializes in high-risk pregnancies. Now the retired chair of chair of the department of obstetrics, gynecology and women s health at St. Louis University, Dr. Artal was named a champion for the Center for Medicine after the Holocaust in Houston, focusing on the atrocities committed by physicians during World War II, and educating physicians, nurses and scientists to never allow history to repeat itself. Jennifer R. Scharf is associate general counsel at Roswell Park Cancer Institute. She previously served as a litigation attorney at Duke, Holzman, Photiadis & Gresens, LLP and Connors & Vilardo, LLP, where she focused her practice on representation of physicians and other professionals, personal injury litigation, commercial litigation, employment law, as well as other civil litigation. Expenses for this program generously underwritten by Dr. Mont Stern and family.

22 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 22 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 Date/Time/Location Topic CLE Credits Price Friday, April 1, Cross Border Dispute Resolution 7.5 credits Registration: 8:30 a.m. 4:35 p.m. Conference: Lessons & Insight for Effective Use and Application of DR $100 NYSBA/BAEC members Buffalo Marriott Harborcenter (Live Seminar co-sponsored by the NYSBA and the BAEC) $150 non-members 95 Main Street To register, call Beth Gould at Buffalo, NY Thursday, April 7, 2016 Stress, Anxiety & Depression in the Legal Profession: 3.0 credits Registration: 9:00 p.m. 12:00 p.m. What s the Problem & What Can We Do About It? $65 members Bar Association of Erie County (Live Seminar presented by the Committee to Assist Lawyers with Depression) $95 non-members 438 Main Street Thank you to our sponsors, the Erie County Bar Foundation Buffalo, NY and the Mental Health Association of Erie County Friday, April 8, 2016 Employment Law Update 5.5 credits Registration: 10:00 a.m. 4:00 p.m. (Live Seminar presented by the Erie Institute of Law, WBASNY and the $125 Bar Association of Erie County Labor Law Committee of the BAEC) 438 Main Street If you register 3 or more attorneys from your firm, you will receive a 10% discount. All 3 registrations Sun Room Auditorium must be received at the same time. Call for details. Buffalo, NY Thank you to our sponsor BNA. Thursday, April 14, 2016 The Basics of Litigating a Moror Vehicle Accident Case 1.0 credit Registration: 1:00 p.m. 2:00 p.m. (Midday Learning Lecture) $20 members Bar Association of Erie County $25 non-members 438 Main Street Buffalo, NY Friday, April 15, 2016 Risk Management credits Registration: 9:00 a.m. 1:00 p.m. (Live Seminar presented by the Negligence Committee) $80 members Bar Association of Erie County $110 non-members 438 Main Street Sun Room Auditorium Buffalo, NY Wednesday, April 27, 2016 DWI Practical Tips and Traps: 1.0 credit Registration: 1:00 p.m. 2:00 p.m. Specific topic TBA $20 members Bar Association of Erie County (Midday Learning Lecture) $25 non-members 438 Main Street Buffalo, NY Thursday, April 28, 2016 A Refresher Course on Intellectual Property 4.0 credits Registration: 9:00 a.m. 1:00 p.m. for all Attorneys $80 members Bar Association of Erie County (Live Seminar presented by the Intellectual Property, Computer and $110 non-members 438 Main Street Entertainment Law Committee) Buffalo, NY Friday. April 29, 2016 Life After Law School: Day One 5.5 credits Registration: 8:45 a.m. - 2:40 p.m. (Live Seminar presented by the Admission to the Bar Committee) $55 Day One Bar Association of Erie County Day Two scheduled for June TBA and Day 3 scheduled for October 7, 2016 $40 Day Two 438 Main Street Thank you to our sponsors: Counsel Press, Erie County Bar Foundation, $65 Day Three Buffalo, NY Paramount Settlement Planning LLC, and Precision Resolution, LLC. Saturday, April 30, 2016 Working Smarter, Not Harder TBA credits Registration: 9:00 a.m. - TBA (Live Seminar presented by the Professional Continuity Committee) TBA Bar Association of Erie County Watch our website for more details 438 Main Street Buffalo, NY Check our calendar for updates and added programming at Please register me for the following Erie Institute of Law sponsored events: Erie Institute of Law Registration Form Name: Firm: Street Address: City: State: Zip: Phone: Enclosed is my check in the amount $ [ ] Check enclosed Charge my: [ ] Visa [ ] MasterCard Card Number: Exp. Date: Cardholder Signature: Cancellation Policy: If you are unable to attend a seminar for which you have already registered, The CLE department at For a full refund, notice of your cancellation must be received before the date of the program. Registrants who are pre-registered and fail to attend will receive course materials in lieu of a refund. Mail or Fax to: Erie Institute of Law, 438 Main Street, Sixth Floor, Buffalo, New York 14202, (716) , Fax (716)

23 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 23 PAGE 23 LISTEN, LEARN & EARN! Deal of the Month In today s competitive, fast-paced legal environment, effective time management is essential. Take advantage of the Erie Institute of Law tape library and start earning your CLE credits when the time is convenient for you. Part 36 Receivership Training Product Code CLE credits: 0.5 Ethics, 2.0 Areas of Professional Practice, 0.5 Skills Presented on December 16, 2015 Available on CD, DVD or ON DEMAND at CD or DVD: $75 BAEC Members, $125 Non-Members ON DEMAND: $85 Member (Use PROMO CODE: member), $135 Non-Member For Part 36 training only (no CLE credit): $35 This three-hour program provides an overview of the types of situations in which a receiver is available; instructions on applying for and obtaining a receiver; and the compensation, duties, and powers of a receiver in various contexts. This seminar is important for individuals interested in receiving training to serve as court-appointed receivers. Attorneys working in a practice area in which the appointment of a receiver may be a necessary or helpful provisional remedy such as mortgage foreclosures, creditors enforcement actions and corporate dissolutions will also find this useful. Client Document Pr eservation and Destr uction Product Code CLE credits: 2.0 Ethics, 1.0 Law Practice Management Presented on October 30, 2013 Available on CD and DVD $75 BAEC Members, $125 Non-Members This seminar addresses what lawyers must do to preserve and protect client files and documents after a matter has been closed; and also presents helpful strategies for managing legal records. Among the questions discussed are: How must I preserve a file? For how long? What can be destroyed? What must be preserved and safeguarded? Where may files be stored? How may they be destroyed, and by whom? What must I do with funds remaining in my IOLA account? Surr ogate s Court Guar dian Ad Litem Training Product Code CLE credits: 0.5 Ethics, 2.5 Areas of Professional Practice, 1.0 Skills Presented on May 21, 2014 Available on CD and DVD $90 BAEC Members, $150 Non-Members For Part 36 only (no CLE credit): $60 This program is designed to provide the information necessary to allow a participating attorney to qualify as a Guardian Ad Litem in Surrogate s Court proceedings by providing the attendee with information concerning Part 36 and the duties of a Guardian Ad Litem in various types of Surrogate s Court proceedings. The Erie Institute of Law is now offering our most recent CLE seminars on CD and DVD. All of our seminars are professionally edited and are accompanied by a full set of written course materials. During this program, you will learn what you need to be aware of with respect to Part 36 of the NYCRR, the required forms and appointment process. In addition, you will be instructed as to your obligations as a Guardian Ad Litem in various types of proceedings. New Maintenance Guidelines Product Code CLE credits: Areas of Professional Practice Presented on November 19, 2015 Available on CD or ON DEMAND at CD: $50 BAEC Members, $100 Non-Members ON DEMAND: $60 Member (Use PROMO CODE: member), $110 Non-member On September 25, 2015, Andrew Cuomo signed into law the Maintenance Guidelines Legislation, which makes major amendments to New York s Domestic Relations Law and the Family Court Act in enacting new guidelines for both temporary and post-divorce maintenance and spousal support. Organized by the Matrimonial and Family Law Committee, this two-hour presentation provides a timely review of the legislation s features as they relate to matrimonial cases. Labor and Employment Law Symposium Product Code CLE credits: 1.0 Ethics, 3.0 Areas of Professional Practice, 1.0 Skills Presented on May 9, 2014 Available on CD $100 BAEC Members, $160 Non-Members The Labor Law Committee developed this program to help practitioners understand changes in employment laws and regulations. Topics covered include: Ethical pitfalls Revisions to Section 193 of the NYS Labor Law The National Labor Relations Act in the Non-Union Workplace An Update on the PPACA Burdens of Proof in Title VII, ADEA and ADA Cases Effective Preparation and Representation of Clients in Employment Discrimination Mediation; and more. 15% off if all three seminars are purchased The Art of Persuasion: Three-Part Series How to Persuade a Jury $25 BAEC Members, $35 Non-Members Product Code 2252 Presented on December 8, Skills CD Speaker: Jeffrey Marion, Law Offices of Jeffrey J. Marion How to Persuade Your Opponent $25 BAEC Members, $35 Non-Members Product Code 2254 Presented on December 15, CLE credit: 0.5 Ethics; 0.5 Skills CD Speaker: Leonard D. Zaccagnino Shaw & Shaw, P.C. Learn how to create an extraordinary practice through the art of persuasion. Don t Say That! The Ethical Rules of Persuasion $25 BAEC Members, $35 Non-Members Product Code 2256 Presented on January 27, CLE credits: Ethics CD Speaker: Steven Fox, Law Office of Steven Fox Learn to distinguish shading from lying; opinion from fact; arm-twisting from arm- breaking; content from character. We have obligations to be truthful to clients and courts and ourselves, yet we can still use logic, rhetoric and argument to make them an offer they can refuse, but don t want to. pe Package - $170 Members, $ Non-Members 3 Seminar Package $63.75 Members - $89.25 Non-Members Contact Celeste Walsh ext. 118 or cwalsh@eriebar.org To order, please send check payable to: The Erie Institute of Law 438 Main Street, Sixth Floor Buffalo, New York Be sure to include your name and address for mailing purposes; add $5.00 shipping and handling for each tape purchased. Tapes are mailed via UPS, no P.O. boxes please. To order by phone using your Visa or MasterCard, please call For a complete listing of taped CLE programs, visit and click on the Continuing Legal Education link or call

24 Bulletin_April_2016_for web.qxp_layout 5/3/16 11:01 AM Page 24 PAGE 24 Spring adds new life and new beauty to all that is. Jessica Harrelson Photos by Glenn Edward Murray APRIL 2016 ALL MEETINGS HELD AT THE BAEC, 438 Main Street, Sixth Floor, unless otherwise noted. The Adelbert Moot CLE Center is also located at 438 Main Street, Sixth Floor. FRIDAY 1 Commercial & Bankruptcy Law Committee 12:15 p.m. James C. Thoman, Committee to Assist Lawyers with Depression 12:30 p.m. Daniel T. Lukasik, MONDAY 4 Professional Ethics Committee 12:15 p.m. Terence B. Newcomb, TUESDAY 5 Board of Directors 8:00 a.m. Kevin W. Spitler, President Federal Practice Committee 12:15 p.m. Timothy J. Graber, WEDNESDAY 6 Human Rights Committee 12:15 p.m. Sharon Nosenchuck, THURSDAY 7 Negligence Committee 12:15 p.m. Adelbert Moot CLE Center Dennis J. Bischof, FRIDAY 8 Committee for the Disabled 12:15 p.m. Jeffrey E. Marion, Committee to Assist Lawyers with Depression 12:30 p.m. Daniel T. Lukasik, TUESDAY 12 Matrimonial & Family Law Committee 12:15 p.m. 25 Delaware Ave, 5th Floor Michelle Schwach Miecznikowski & Elizabeth DiPirro, Co-s Criminal Law Committee 12:15 p.m. Old Surrogate Court Courtroom 1st Floor of 92 Franklin Street. Joseph J. Terranova, Real Property Law Committee 12:15 p.m. Adelbert Moot CLE Center Keri D. Callocchia, Labor Law Committee 12:15 p.m. Josephine A. Greco, WEDNESDAY 13 Intellectual Property, Computer & Entertainment Law Committee 12:15 p.m. Jordan L. Walbesser, Health Care Law Committee 12:15 p.m. William Patrick Keefer, THURSDAY 14 Committee on Eminent Domain & Tax Certiorari 12:15 p.m. - Mark R. McNamara, FRIDAY 15 Young Lawyers Committee 12:15 p.m. Katie M. Ireland & Laura B. Berloth, Co-s Committee to Assist Lawyers with Depression 12:30 p.m. Daniel T. Lukasik, TUESDAY 19 Federal Practice Committee 12:15 p.m. Timothy J. Graber, WEDNESDAY 20 Erie County Bar Foundation 8:00 a.m. Garry M. Graber, President Environmental Law Committee 12:15 p.m. Jeffery C. Stravino, Appellate Practice Committee 12:15 p.m. Timothy P. Murphy, THURSDAY 21 Committee on Veterans & Service- Members Legal Issues 12:15 p.m. David J. State & Jeffery E. Marion, Co-s FRIDAY 22 Committee to Assist Lawyers with Depression 12:30 p.m. Daniel T. Lukasik, MONDAY 25 Alternative Dispute Resolution Committee 12:15 p.m. Bridget M. O Connell, TUESDAY 26 Elder Law Committee 12:15 p.m. Edward C. Robinson, WEDNESDAY 27 Regulatory Compliance Committee 5:30 p.m. SUNY Buffalo Law School Brad J. Davidzik and Brian C. Kearns, Co-s THURSDAY 28 P&P in Surrogate s Court Committee 12:15 p.m. 438 Main Street, 12th Floor Sharon L. Wick, P&P in Family Court Committee 12:15 p.m. Family Court Building Tina M. Hawthorne & Bernadette Hoppe, Co-s FRIDAY 29 Solo & Small Firm Practice Committee 12:15 p.m. Lana V. Tupchik, Committee to Assist Lawyers with Depression 12:30 p.m. Daniel T. Lukasik,