1 PRSRT STD U.S. Postage Paid Buffalo, NY Permit No. 416 Bar Association of Erie County Vol. 50 No. 8 April 2011 BULLETIN President s Letter By Scott M. Schwartz Don t Let Them Try This at Home Daddy, could you (fill in the blank)? No, Jonathan, you ll have to do it yourself. I could fill in the blank with 5,000 things asked by Ben or Jonathan over the years. How many times have our kids or a spouse asked us or did we, as kids, ask our parents or we, as adults, ask a spouse or significant other to do something to which the response was you can do it yourself. There are a lot of things we can do ourselves, though personally, I exclude anything to do with carpentry, plumbing, electricity or cars, other than driving and even that s questionable (ask Mary Wydysh!) We can go to Car Repairs for Dummies or some of us (excluding me) can go to Home Depot or Lowe s to learn how to do some of those fairly elementary tasks. In addition to neurosurgery, there is another task that people can t do for themselves and that is effectively be their own lawyer. Just ask Mo Hassan. While this legal community provided him one of our finest jurists, an excellent and respectful legal advisor, and fair and honorable prosecutors, he failed miserably to convey to the jury whatever cockamamy legal defense he was trying to present. He got his day in the spotlight, but did not effectively present himself or represent himself. Perhaps no lawyer - save for Perry Mason, Matlock, or my cousin Vinny - could have done much for him, but I am confident no lawyer would present a defense which would help to convict their own client or would present a civil case against a client s interests. Abrams to Deliver Keynote Address on Law Day Floyd Abrams, an expert on constitutional law and preeminent First Amendment attorney, will deliver the keynote address at the BAEC s 2011 Law Day luncheon, to be held on Thursday, April 28 at the Hyatt Regency Buffalo. The luncheon will begin at 12:00 noon and the ticket price is $25. Watch your mail for an invitation or call Sharlene Hall at for reservations. The national 2011 Law Day theme is The Legacy of John Adams: From Boston to Guantanamo. The theme is intended to foster greater understanding of the historical and contemporary role of lawyers in defending the principle of due process and the rights of the accused. John Adams became our nation s first lawyer-president in Just five years before the American Revolutionary War began, he represented the British officer and soldiers charged with firing into a crowd of protestors and killing five civilians in the Boston Massacre. Adams ably defended those soldiers, despite risks to his own safety and livelihood, and regardless of the fact that many saw them as agents of an oppressive British rule. He did so because of his faith in the due process of law, in what he would later famously phrase as a government of laws, not of men. Law Day is a day on which we take time to reflect upon and renew our commitment to the rule of law, according to BAEC President Scott M. Schwartz. John WNY Trial Lawyers Elect Officers Adams is but one example of many noteworthy cases in American history in which lawyers have stepped forward to defend unpopular clients and the fundamental principles of our system of justice. Such representation of unpopular clients is an obligation that we take seriously, one that plays out in courts in this community and across the nation on a daily basis. Annual Awards 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. The Liberty Bell Award, presented annually in recognition of service that has strengthened the American system of justice, will be presented to John J. Jack O Connor, Mentor Coordinator, Buffalo Veterans Treatment Court, Peter Reibel Mentor Group. 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. Upon retirement from his position as Director of Medicaid Services for the Erie County Department of Social Services, O Connor helped City Court Judge continued on page 4 Seated at left is newly-elected president Kevin D. Walsh and at right, vice president Michael F. Perley. Standing from left to right are director James D. Schultz, Jr., secretary Courtney G. Scime, deputy treasurer David M. Goodman, director Michael Applebaum, director Therese R. Wincott, treasurer Regina A. DelVecchio and director Daniel J. Marren. Not pictured are directors Frank LoTempio, III and Michael C. Scinta. Photo by Susan L. Kohlbacher continued on page 2
2 PAGE 2 April 2011 Vol. 50 No. 8 April 2011 BAR ASSOCIATION OF ERIE COUNTY Organized Main Street, Sixth Floor Buffalo, New York (716) fax (716) Bulletin correspondence: EDITORIAL BOARD Editor...Bonnie D. O Brian Law Editor...Jeffrey A. Spencer Tax Notes Editor...Gary D. Borek Art Editor...Giles P. Manias Hon. David J. Mahoney ( ) Photography...Susan L. Kohlbacher Glenn Edward Murray Editorial Assistant...Susan L. Kohlbacher OFFICERS AND DIRECTORS President...Scott M. Schwartz Vice President...Arthur A. Russ, Jr. Treasurer...Vincent J. Moore Deputy Treasurer...Paula M. Eade Newcomb Executive Director...Katherine Strong Bifaro For your retirement... I suggest that you not retire! BOARD OF DIRECTORS Lawrence C. Franco, Daniel J. Henry, Jr., E. Michael Semple, Kevin W. Spitler, Patrick J. Brown, Jennifer M. Dillon, Lynn D. Gates, Bridget M. O Connell, Emilio Colaiacovo, Paul V. Crapsi, Jr., Howard Frank, Brenda M. Freedman. LIFE MEMBERS Mark A. Adrian, Carol J. Alaimo, Brian D. Baird, Lynn A. Clarke, William J. Cunningham, Eric P. Doherty, Victor J. Gagliardi, Sharon Stern Gerstman, Jean E. Gittler, Donald J. Holzman, Stanley Kwieciak III, J. Eldon Owens, Lauren D. Rachlin, Jeffrey A. Spencer, James M. Wadsworth. Would you like to see your name here? See page 6 to find out how to become a contributing member. CONTRIBUTING MEMBERS Joan Casilio Adams, Peter S. Aiello, Donald A. Alessi, Grace Marie Ange, Richard J. Attea, Hon. Rosalie M. Stoll Bailey, Hon. Tracey A. Bannister, Stephen E. Barnes, Edwin T. Bean, Jr., Thomas R. Beecher, Jr., Ronald P. Bennett, Leonard Berkowitz, David W. Beyer, Richard S. Binko, Richard N. Blewett, Michael M. Blotnik, Harold J. Brand, Jr., Peter J. Brevorka, Phillip Brothman, T. Alan Brown, Joel Brownstein, David Buch, James P. Burgio, Michael C. Burwick. John F. Canale, John J. Carney, Peter B. Carr, Alan S. Carrel, Thomas R. Cassano, Stephen E. Cavanaugh, Ferdinand J. Ciccarelli, John F. Collins, William B. Collins, Anthony J. Colucci, Jr., Robert B. Conklin, Robert N. Convissar, Edward C. Cosgrove, Peter L. Costa, Paul Crapsi, Jr., Douglas S. Cream, Hon. John T. Curtin, Steven P. Curvin, Roger T. Davison, John M. Dempsey, Richard F. DiGiacomo, Anne C. DiMatteo, David A. Doll, Dean M. Drew, Hon. Timothy J. Drury, Marvin T. Dubin, Robert E. Dwyer, Donald B. Eppers, Leo J. Fallon, Victor N. Farley, Mark G. Farrell, Gabriel J. Ferber, Michael E. Ferdman, Robert P. Fine, Peter J. Fiorella, Jr., Brian P. Fitzgerald, Richard E. Forrestel, Jeffrey M. Freedman, Maryann Saccomando Freedman, Robert Friedman, John J. Fromen. Thomas J. Gaffney, William H. Gardner, Eugene M. Gaughan, Stuart A. Gellman, Robert M. Goldstein, Wayne R. Gradl, Josephine A. Greco, Hon. Samuel L. Green, John C. Grennell, Richard F. Griffin, John J. Gruber, Mark W. Hamberger, Barbara Ellen Handschu, Thomas J. Hanifin, James P. Harrington, John E. Haslinger, Mary Louise Hayden, Herbert J. Heimerl, Jr., William R. Hites, Susan S. Hogan, Edwin P. Hunter, Melvyn L. Hurwitz, Norman E. Joslin, James B. Kane, Jr., Judith D. Katzenelson, Daniel L. Kaye, Christopher C. Kerr, James J. Kirisits, William J. Kita, Wells E. Knibloe, Christian G. Koelbl III, Dan D. Kohane, Ellen M. Krebs, Karl W. Kristoff, Thomas E. Krug. Stephen R. Lamantia, John P. Lane, Richard J. Lehner, John N. Lipsitz, Richard Lipsitz, Arthur A. Lorenzo, William J. Love, Jr., Leo M. Lynett, Jr. James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Arthur J. Maloney, Giles P. Manias, Richard C. Marcus, John Markarian, Mary Dee Martoche, Hon. Salvatore R. Martoche, Hon. Jeremiah J. McCarthy, Maureen A. McCready, Thomas I. McElvein, Jr., Diane J. McMahon, Hon. John A. Michalek, Raymond T. Miles III, Joseph D. Mintz, Albert J. Mogavero, Richard E. Moot, Peter J. Murrett, Jr., Arthur F. Musarra, Joseph M. Nasca, Paul T. Nesper, Stephen M. Newman, Anthony M. Nosek, James J. O Brien, Robert L. O Connell, Hon. John F. O Donnell, Timothy M. O Mara, Francis J. Offermann, Jr., William J. Ostrowski. President s Letter continued from page 1 Unrepresented parties can t do it themselves. They can t effectively litigate or negotiate an equitable divorce or family court dispute, devise and preserve an estate, buy or sell real property, buy or sell a business, negotiate a contract or protect themselves in court as a civil or criminal litigant. These can be life altering circumstances people just can t do it themselves. No Custody Matters for Dummies or Foreclosure Depot. That, when it s all disassembled, is our professional identity as lawyers. We hold the legal rights of our clients in our hands. That is our responsibility our place in the professional circle of life. And while we talk about cases or files, we are talking about people. Files and cases are inanimate objects people are not. I am tired of anti-lawyer rhetoric. We represent people who come to us, whether by advertising or otherwise, to protect, preserve, or advance a client s interests. Whether it s Cellino and Barnes or any firm representing injured persons, whether it s Sam Maislin or another member of the criminal defense bar, that s what we do. That s what we are obligated to do. While we owe it to each other to respect and defend our profession, we also owe legal representation to those in our community who need, but cannot afford legal representation. Chief Judge Lippman is pressing legislation for civil Gideon, the right to counsel in specific civil matters such as housing, foreclosure, Family Court, and access to health care. As Bob Dylan wrote in Subterranean Homesick Blues, you don t need a weatherman to know which way the wind blows. The state of the state is such that it will be a long wait before we have assigned counsel for needy civil litigants. Our bar association and we, its members, must make a value judgment that the unrepresented in civil adver- sarial matters are entitled to representation because they cannot effectively do it themselves. We have the Assigned Counsel Program for criminal defendants, we have our Lawyer Referral & Information Service for those with means but no lawyer, we have Legal Services for the Elderly and Neighborhood Legal Services. Notwithstanding these fine and necessary programs, there remains a low-income population whose needs do not fall within these programs. The ECBA Volunteer Lawyers Project (VLP) is our pro bono program to fulfill that need. While there are some staff attorneys, the Volunteer Lawyers Project primarily relies upon volunteers to take referrals of their cases. We can be regular volunteers or special project volunteers, such as the Attorney of the Morning Project for low-income tenants facing eviction or in-house volunteers working within VLP s offices with clients and VLP staff. The legal system works when each side in an adversarial matter is represented. It would have worked better for Mo Hassan. At least he may have been able to present a defense, if he didn t feel the perverse need to do it himself. I urge all of us to contact the Volunteer Lawyers Project at to see how we can fulfill our professional obligation. If 3,800 members of the Bar Association of Erie County each take one case per year, it would further promote our self-respect as attorneys, along with the public s respect for us. Pentagon Papers, Party Leaders and Other Happenings What are your officers and directors working on these days? There is Law Day (see article on page one), with our awards for special services to the legal community and public. Our Awards Committee has proposed and the board has selected very worthy recipients. Floyd continued on page 4 Carl P. Paladino, Frank R. Papa, Thomas C. Pares, James A. Partacz, Robert E. Pearman, Hon. Erin M. Peradotto, Robert H. Perk, Jeffrey A. Perla, Joel M. Poch, Samuel G. Puleo, Theodore J. Pyrak, James P. Renda, Mary K. Roach, Earl T. Robinson III, Jay N. Rosenthal, Marcella Rosinski, Hon. Mario J. Rossetti, Victor A. Rossetti, Richard P. Rosso, Arthur J. Rumizen, Ross L. Runfola, Louis J. Russo, Thomas Santa Lucia, Scott M. Schwartz, Edward J. Schwendler, Jr., Richard B. Scott, Donald P. Sheldon, Richard J. Sherwood, David Siegel, Louis H. Siegel, Myron M. Siegel, Robert G. Sillars, Richard Charles Slisz, Charlotte Smallwood-Cook, Oscar Smukler, Robert B. Sommerstein, Gregory Stamm, Robert S. Stephenson, Milton J. Strebel, David L. Sweet. Dominic J. Terranova, Phillip A. Thielman, Gordon D. Tresch, Thomas V. Troy, Frederick D. Turner, Dimitri J. Tzetzo, Peter A. Vinolus, Joseph C. Vispi, Dale M. Volker, Matthew X. Wagner, Jr., James R. Walsh, John B. Walsh, Neil Weinberg, Peter C. Wiltse, Wayne D. Wisbaum, Raymond V. Wylegala, Richard D. Yellen, George M. Zimmermann, H.A. Terri Zionts. DEADLINE 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 (preferred) or by mail to: Bulletin Editor, 438 Main Street, Sixth Floor, Buffalo, NY May 2011 Bulletin D EADLINE The next deadline for ALL Bulletin contributors and advertisers is Friday, April 1, Call Susan Kohlbacher at Bar Headquarters for more information,
3 April PAGE 3 bench and bar in the news How to place an announcement: If you are a BAEC member in good standing and you ve moved, been promoted, hired an associate, taken on a partner, or received an award, we d like to hear from you. Talks, speeches (unless they are of national stature), CLE presentations and political announcements are not accepted. In addition, we will not print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers, etc.). Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. your notice and high resolution photo (300 dpi) to Richard A. Grimm, III, a partner in Magavern Magavern Grimm LLP, has been named to the 2011 board of directors of Upstate New York Transplant Services (UNYTS). He formerly served on the board from 1999 through UNYTS Grimm assists organ and tissue donor families throughout the eight counties of western New York, coordinates the donation process, and works to increase community awareness and knowledge about transplantation. The group also operates Community Blood Services, which offers blood banking to area hospitals. Amy J. Vigneron, a partner at Cohen & Lombardo, has been elected president of the board of directors of the Joan A. Male Family Support Center for a two-year term. A nonprofit organization founded in 1973 by three volunteers, the Center is Vigneron now the only 24-hour phone and inhome crisis intervention program in Erie County. The group works to support families in crisis and to end the generational circle of violence and empower families through confidential assistance programs that are provided without charge. A graduate of SUNY Oswego, Vigneron holds a JD from Syracuse University College of Law and focuses her practice on corporate and business law. James P. Domagalski has been re-elected to a three-year term as managing director of the Buffalo office of Hiscock & Barclay. Domagalski chairs the firm s construction and Surety practice area and focuses his practice on construction law, labor and employment law, Domagalski discrimination defense, general business and municipal litigation. A graduate of the University of Notre Dame, he received his JD from Syracuse University College of Law. Domagalski formerly chaired the Erie County Republican Committee and also received the Am-Pol Eagle s Citizen of the Year for Law award. Barbara E. Handschu has announced the closing of her Buffalo law office after 40 years of practice in Erie County. She will continue to practice law as special counsel to Dobrish Zeif Gross, LLP, in New York City. Handschu has served in this Handschu capacity for the past three years, handling the firm s matrimonial trials and appeals. She will continue to spend some time at her Buffalo home and hopes that this will be a long goodbye. Handschu can be reached at 757 Third Avenue, Suite 1500, New York, NY 10017, , or J. David Sampson has been appointed by Governor Cuomo as executive deputy commissioner of the NYS Department of Motor Vehicles (DMV). Sampson is responsible for managing the overall operations of the DMV with direct supervision of Sampson the divisions of Operations and Customer Service; Safety, Consumer Protection and Clean Air; Administration; Legal Affairs; Integrity; Audit and Communications. The DMV employs 2400 employees, titles over 10 million vehicles, examines and licenses nearly 12 million drivers and serves more than 28 million customers each year. It also administers the state s Vehicle and Traffic Law and promotes highway safety through a variety of programs. Sampson previously served as deputy attorney general in the NYS Attorney General s Office, fol- continued on page 24 Speaking Out About the Law The Bar Association wishes to thank the following members of the Speakers Bureau who volunteered their time to help make particular areas of the law more comprehensible to students and other lay people in western New York. Kevin W. Spitler Criminal Justice/Law as a Career Lovejoy Discovery School #43 Kevin S. Mahoney Law as a Career Niagara University If you haven t already done so, why not consider becoming a member of the Speakers Bureau? Take the opportunity to share your valuable insight on the legal topics of your choice. Not only is speaking out about the law a great community service, but it is also an effective practice-building technique. Call Maureen Gorski at the Bar Association ( ext. 118) to sign up today! Law Day 2011 The Legacy of John Adams: From Boston to Guantanamo The Company of The Erie County Bar Foundation exists to provide a helping hand to lawyers in need. Pay tribute to America s first lawyer-president at the Law Day luncheon on April 28 (see story on page one). Law Day another great way that your Bar Association helps people learn about the law. The need may be based on medical problems, job loss, emotional difficulties, family crises or many other situations. No person or problem is categorically excluded. If you need assistance or know a friend or colleague who does please call Kelly Bainbridge at All services are individualized and completely confidential. It s great to belong to something this good.
4 PAGE 4 April 2011 President s Letter continued from page 2 Abrams to Deliver Keynote Address (Law Day) continued from page 1 Abrams, a preeminent First Amendment attorney (New York Times v. United States - the Pentagon Papers case), will be our speaker. We have approved a program with Verizon to market to our members a discount on firm phone lines and attorney wireless lines. Our judicial evaluations are being tabulated, with a meeting scheduled with Justices Feroleto, Whalen and Caruso to promote the constructive use by our judges of your evaluations and to hear their concerns. Rather than issuing only a written report to all the respective judges, I have offered to meet with any judge interested in a more specific review of their results. Speaking of judges, Art Russ, Nelson Zakia, our Judiciary Committee Chair, and I recently met with the leaders of the Democratic, Republican and Conservative parties. We wanted to promote greater awareness and consideration of our judicial candidate ratings. We were somewhat surprised to hear that only one of the parties has a screening committee for Supreme Court candidates but they do for judicial races for which there is a primary. We resolved to get our ratings out earlier, to get them directly to the parties, and the parties have agreed to notify us of those who have expressed to them an interest in running. We also talked about the new proposal of Chief Judge Lippman, to disallow any judge who receives a campaign contribution of $2,500 or more from an individual or attorney from being assigned for two years to any case involving that party or attorney. The limit for an attorney and his or her firm collectively is $3,500. There is a 60-day comment period through April 29 - and I trust that a number of additions or corrections will have to be made to address reverse judge shopping, that is, contributing to a judge to insure disqualification. Personally, I think the need illustrates the problems with our system of selecting judges, where not only are we absent merit selection or screening committee involvement but also what the New York Law Journal termed, the often choreographed judicial nominating system for Supreme Court seats Lastly, we continue our efforts to keep our CLE programs interesting and topical, to look for member benefits on services you can use, provide events for social interaction among the membership, and to be the voice of our legal community. Barring a Mubarak-type uprising, we will continue to do so. As always, we look to you for your membership, your CLE enrollment, your committee participation and your attendance at our events. [B] Robert T. Russell, Jr. to establish a unique problemsolving court to assist veterans in the criminal justice system. The Buffalo Veterans Treatment Court was the first of its kind in the nation and has served as a model for similar courts across the country. As a veteran of the Vietnam War who served with the 82nd Airborne Division, O Connor understood that veterans respond better to fellow veterans in difficult circumstances. He now serves as Volunteer Chief Coordinator and mentor for the Peter Reibel Veterans Mentor Group. The group has grown to include 47 mentors who assist 146 veterans in the Buffalo Veterans Treatment Court. O Connor regularly travels across the county - as a volunteer at his own expense - to assist in establishing similar veteran mentor groups and veterans courts. We would be hard pressed to try to count the innumerable lives Jack has made better by his dedication and service to the Veterans Treatment Court in Buffalo, according to Chief Administrative Judge Paula L. Feroleto. The Justice Award is bestowed only when circumstances warrant and not necessarily on an annual basis. It is given to either a lawyer or non-lawyer whose efforts have contributed substantially to improvements in the justice system. This year s award will be presented to Colleen M. Rahill-Beuler and Michael J. Quarantillo, Senior United States Probation Officers for the Western District of New York. Both have earned the respect of not only their colleagues in the Probation Office, but also of the judges, court staff, prosecutors and defense attorneys with whom they come into regular contact, according to a report of the BAEC Awards Committee chaired by E. Michael Semple. Rahill-Beuler and Quarantillo currently work in the pre-sentence unit which requires them to interact with defendants and their counsel, prosecutors, crime victims, law enforcement personnel and members of the public. They must also deal with the intricacies of the United States Sentencing Guidelines and the reports they generate are relied upon by the court in imposing sentence. The two were chosen for their ability to deal with a myriad of conflicting issues in a professional and pleasant manner which substantially contributes to the improvement of the justice system, the report says, adding that the principal beneficiary of their high level of technical competence and professionalism is the justice system itself. The Special Service Award is traditionally 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. This year, the award will be presented to Oliver C. Young, Principal Court Attorney Referee for the Eighth Judicial District. Young has served in this capacity since 1980 and one of his duties is ensuring that the 100 plus pro se applications received each month - including habeas corpus and prisoner complaints - are in proper form. His efforts directly preserve the Constitutional and due process rights of these individual and assure them their day in court. Among his other responsibilities, Young oversees the Unified Court System s Student Ambassador Program which helps educate high school students about the justice system. He also supervises the Judicial Internship Program, which is designed, in part, to attract dedicated lawyers into the professional ranks of the court system. A member of the Eighth Judicial District Gender and Racial Fairness Committee and the Diversity Steering Committee further, Young is always willing to stimulate a deeper sense of individual responsibility and to foster recognition in fellow citizens of their duties and rights under the Constitution, according to the BAEC Awards Committee. 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 2011 recipient is Kevin Kendall, Senior Investigator for the New York State Police s Violent Felony Warrant Squad. For the past seven years, Kendall has dealt with violent offenders every day, leading a team of investigators who pursue and capture violent felons on the run from the law. He consistently brings a level of professionalism and dignity to his work that is a credit not only to all in law enforcement but to our system of justice as a whole, according to the Awards Committee report. He treats those he apprehends not as bad guys who need to be subdued, but as actual citizens. A 1988 graduate of the New York State Police Academy, Kendall was promoted to his current position in He has received five Superintendant Commendations and 15 Troop Commander Letters of Commendation for various cases, including a heroic attempt to save the life of a woman in a burning car that had been struck by a tractor trailer on the Thruway. Throughout his career, Kendall has exemplified the spirit of the Constitution which imposes upon police officers the unique duty to balance the rights of society against the rights of the accused. 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 2011 award will be presented to Michael Beebe, a retired reporter from The Buffalo News. A veteran news reporter, columnist and published author, Beebe covered local news and criminal law in the courts for three decades. He is the recipient of statewide and national awards for excellence in investigative journalism from the Associated Press, New York Newspaper Publishers Association and the National Press Club. He closely followed and reported on a wide range of high profile cases, including WNY s Bike Path Rapist, which ultimately led him to co-author a novel entitled The Bike Path Killer. He also covered the Lackawanna Six continued on page 6
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6 PAGE 6 April 2011 Abrams to Deliver Keynote Address (Law Day) continued from page 4 case, the murder of Dr. Barnett Slepian, and the crash of Flight Beebe was absolutely one of the toughest reporters I ever worked with, according to fellow Buffalo News reporter Dan Herbeck. But as tough as he was, being fair and accurate were just as important to him. He cares about people and about his community. Student Awards are presented each year for a variety of law-related education programs sponsored by the Bar Association. Elementary and high school students who submitted the top designs in the Association s annual poster contest based on the Law Day theme will receive their awards at the luncheon. The winning team from the 2011 high school mock trial tournament will be recognized as well. Candidates running for officer and director positions in the Association s upcoming annual elections are allowed to begin campaigning at the luncheon. About Floyd Abrams Floyd Abrams is a partner and member of the executive committee at the New York City law firm of Cahill Gordon & Reindel LLP. A member of the litigation practice group, Abrams has a national trial and appellate practice and extensive experience in high-visibility matters, often involving First Amendment, intellectual property, insurance, public policy and regulatory issues. He has frequently argued Supreme Court cases dealing with such issues as the scope of the First Amendment, the interpretation of ERISA, the nature of broadcast regulation, the impact of copyright law and the continuing viability of the Miranda rule. Most recently, Abrams prevailed in his argument before the Supreme Court on behalf of Senator Mitch McConnell as amicus curiae, defending the rights of corporations and unions to speak publicly about politics and elections in Citizens United v. Federal Election Commission. His clients have also included The McGraw-Hill Companies, The New York Times in the famed Pentagon Papers case and others, ABC, NBC, CBS, CNN, Time Magazine, Business Week, The Nation, Reader s Digest, Hearst, AIG, and more in trials, appeals and investigations. Abrams defended the Brooklyn Museum of Art in its legal battles with Mayor Rudolph Giuliani; he represented two of the nation s largest insurers in litigation under Section in California; he has represented one of the nation s largest credit rating agencies; and has frequently testified before congressional committees and prepared clients to do so. In 1998, he represented CNN in investigating and issuing a report on its broadcast accusing the United States of using nerve gas on a military mission in Laos in 1970, and again in 1999 in seeking to persuade the United States Senate to permit the public to view its deliberations as it determined whether or not to convict President Clinton of alleged high crimes and misdemeanors. He represented Nina Totenberg and National Public Radio in the 1992 leak investigation conducted by the United States Senate arising out of the confirmation hearing of Justice Clarence Thomas and, in 2004 and 2005, Judith Miller and Matthew Cooper in their efforts to avoid revealing their confidential sources. A graduate of Cornell University and Yale Law School, Abrams was recently elected to the American Academy of Arts & Sciences and is the recipient of numerous awards, among them the William J. Brennan, Jr. Award for outstanding contributions to public discourse; the Learned Hand Award of the American Jewish Committee; and the Thurgood Marshall Award of the Association of the Bar of the City of New York. SPECIAL THANKS TO OUR SPONSORS! The Bar Association of Erie County gratefully acknowledges the following for their generous support of the Law Day luncheon Law Day Sponsors GOLD Avalon Document Services Counsel Press, LLC Jack W. Hunt & Associates, Inc. M & T Bank Settlement Professionals, Inc. Verizon Wireless SILVER Apex Engineering Legal Med LAW FIRM SPONSORS Anspach Meeks Ellenberger, LLP Brown Chiari LLP Colucci & Gallaher, P.C. Greco Trapp, PLLC Hagelin Kent LLC Harter Secrest & Emery LLP HoganWillig Hurwitz & Fine, P.C. Lipsitz Green Scime Cambria LLP Nixon Peabody LLP Become a Contributing Member! The BAEC bylaws confer contributing member status on any member who resides or maintains an office in Erie County and elects to pay an additional $40 in annual dues to help support Association programs. Contributing members have the same rights and privileges as regular members and such additional rights and privileges as the board of directors shall bestow, including special recognition in the Bulletin, annual dinner program and other publications.
7 April PAGE 7 What are These Funny Icons Doing in my Bulletin?! By Elizabeth M. Midgley Okay, okay, you caught us. We ve been scattering new icons and information on social network sites through the last couple of Bulletins. And there s nothing you can do about it! Or can you? The Bar Association of Erie County has gone all high tech. Sorta. And we want you to join us. Here are some interpretations and explanations (I know, I know, of course you know what all of these things mean. But here they are just in case you have to find out for a friend ): This funny little icon means we re on Facebook. Yes, this almighty movie-inspiring page can be a little daunting. But trust me, it s not that scary. If my 82- year-old grandmother can work it, so can you. Get one of your law clerks to help you out during one of their hourly must-check-facebook-status-updates sessions. Oh, you re already on Facebook, you say? Well then, why aren t you a fan of the Bar Association s Facebook page? Did you know there are 3,800 of us bar members and only a measly 206 people like the Bar Association? Poor showing, guys. Here s what liking the page will get you: reminders about upcoming events, access to photographs for recent events that just didn t make the cut for inclusion in the Bulletin, links to the electronic version of the Bar Bulletin and other articles, CLE information, links to surveys and submission forms, and much, much more. Don t worry. By liking the page, your inbox will not be taken over by the listserv for the Bar Association. It will simply include any posts made by the Bar to your news feed on your Facebook home page. And really, who can t use a few friendly reminders of when those nominations are due? Even better if you like the Bar, no one even has to know! The general public or friends of the BAEC can t even see the other people who like it. So you, and your profile picture of you and Rita, your Shih Tzu, are still completely anonymous. Here is where you can find us: book.com/home.php#!/pages/bar-association-of- Erie-County/ Then click Like at the top. Now, how about this little guy? This means you can follow us on Twitter. For all of you Tweetheads, or whatever you re calling yourselves these days, follow the Bar Association and be kept up to date on what s going on, just like on the Facebook page. If you re on Twitter already, no further explanation is needed. If not, it s a great way to stay updated on current events it s like having a living, breathing CNN send you the most up-to-date news. And I hear that Charlie Sheen is looking for more followers, too. Help a guy out. So you should start to follow us here: THIS is where the networking happens. If you re looking for a safe and relatively low-information-generating social networking experience, this, my friends, is for you. Join the BAEC group, where members can share articles they have written, upcoming Bar Association or committee events, links to articles in local newspapers and media about bar members and committees, and so much more. The BAEC LinkedIn group is a great way to find and connect with other local attorneys. And with the opportunity to share your newest article on The Impact of the Wherefore Clause, you never know what kind of employment opportunity will fall in your lap with these new connections. Alas, there are still only 116 members of this group. Here s to hoping this article makes a difference. Find this page, become a member of the group: = Well? What are you waiting for? Save yourself from the threat of paper cuts and check us out online. Or - like most bulk mail you get - pass this on to your secretary and have him do it for you. You re going to like what we ve done. It s a Brave New E-world and your favorite Bar Association is now available on your favorite social networking sites! In addition to our Web site, news, information and updates can now be found on Facebook, Twitter and LinkedIn. As part of our ongoing effort to communicate timely information to our members, you will also receive e-newsletters from us about upcoming CLE programs, career opportunities and news items that come to our attention between issues of the Bulletin. If for any reason, you have not been receiving these materials or choose not to receive them, please contact Susan Kohlbacher at ext. 121 or As always, your comments, questions and suggestions are invited.
8 PAGE 8 April 2011 death and taxes As those of you who have seen the movie Body Heat will recall, a thorough knowledge of the Rule Against Perpetuities is vital for every lawyer. Two recent cases, one from the Court of Appeals and one from the Fourth Department, re-emphasize that. Bleeker Street Tenants Corp. v. Bleeker Jones LLC, 2011 NY Slip Op1360 (2011) In this case, the Court of Appeals held that the Rule Against Perpetuities does not apply to options to renew leases. The plaintiff/landlord leased the subject premises to the predecessor of the defendant/tenant. The lease provided for an initial term of 14 years, with nine consecutive options to renew for a 10-year period. The landlord was supposed to give notice of the option to renew seven months prior to the end of the term. The tenant then had 60 days to exercise the renewal option. If the term expired, the tenant could remain as a month-tomonth tenant. The original 14-year term did expire, and the tenant continued on a month-to-month basis for over 10 years. Without giving any notice with respect to the renewal options, the landlord sued seeking summary judgment that the renewal options violated the Rule Against Perpetuities [EPTL 9-1.1(b)]. The tenant crossmoved for summary judgment dismissing the complaint. The Supreme Court granted the tenant s crossmotion and dismissed the complaint. The Appellate Division reversed, declaring the renewal options void under EPTL 9-1.1(b). The First Department determined that the lease term had expired prior to the renewal option being exercised, and concluded that the option could not be appurtenant to the lease. By Peter J. & Jillian E. Brevorka Recent Surrogate s Court Decisions and Other Estate Planning Matters The Court of Appeals, in a decision by Judge Jones in which four of the judges joined, reviewed the history of the Rule Against Perpetuities as it related to options, and noted that the established rule under common law is that options to purchase land are subject to the rule against remoteness in vesting. It is that uncertainty of title which renders the property inalienable for an unreasonable period of time, the decision reads. But the court held that this does not apply to options to renew which are appurtenant to a lease. The court held because the Rule Against Perpetuities did not apply to options to renew leases under American common law, and since EPTL purported to codify American common law, it follows that options to renew leases also fall outside of the scope of EPTL The court noted that the option in this case is exercisable pursuant to the lease, and thus, it is inherently appurtenant to the lease. The court also noted that the option lacks power to divest title of the property to the option holder. In a concurring opinion, Judge Read held the option to renew a lease is not an exception to the Rule, but simply is outside of the Rule because covenants to renew leases, without time limit, do not suspend the power to alienate the land. In her dissent, Judge Graffeo pointed out that the court s 1996 decision in Symphony Space v. Pergola Props. recognized a three-pronged exception to the application of the Rule for an option appurtenant to a lease: (1) it must originate in the lease; (2) it may not be exercised after lease expiration; and (3) it is incapable of separation from the lease. Judge Graffeo viewed the subject lease as permitting renewal after the term had expired, thereby imposing an impediment upon the owner s ability to sell the property, and thus, violating the Rule against Perpetuities. Martinsen v. Camperlino, 913 N.Y.S.2d 454 (4th Dept., 2010) Compared to Bleeker Street Tenants, this case is rather straightforward. In 1981, Marie-Louise Tiffany sold 115 acres of land to the defendant, a developer. Ms. Tiffany retained an adjoining parcel of about 8.5 acres, upon which her residence was located. As part of the transaction, Ms. Tiffany gave the defendant a right of first refusal with respect to the 8.5 acres. It provided that if Ms. Tiffany or her heirs ever attempted to sell the parcel, the defendant would have a right to match the offer up to $250,000, or, if a higher price was offered he could purchase for $250,000. After Ms. Tiffany s death, the property passed to the plaintiff, who commenced the within action to have the right of first refusal declared invalid. The trial court found for the plaintiff, holding the right of first refusal violated the Rule Against Perpetuities (EPTL 9-1.1). On appeal, the Fourth Department in an opinion by Justice Smith unanimously affirmed. The Rule provides that (1) any present or future estate is void if it suspends the absolute power of alienation for a period beyond lives in being at the creation of the estate plus 21 years; and (2) any estate in property is invalid unless it must vest, if at all, within the same period. The Fourth Department held that: This Right of First Refusal violates the rule against remote vesting because it purports to bind Tiffany s heirs and assigns without temporal limitation, and thus defendant s interest under the Right of First Refusal could vest against those unknown possible owners more than 21 years after Tiffany and defendant had died. The defendant claimed that the Right was personal to him, and therefore, did not violate the Rule because he is a life in being. But the court noted that the Right purported to be a covenant running with the land, which would continue to encumber the subject property even in the event that the defendant declined to exercise the Right. The defendant also argued that the Right was exempt from the Rule because it involved a commercial transaction. But the Fourth Department cited the Court of Appeals decision in Morrison v. Piper that the commercial exception to the Rule contained in Metropolitan Transp. Auth. v. Bruken Realty Corp. would not be extended to private, non-commercial transactions between individuals in which there is no governmental or public interest. The Appellate Division noted that the Right of First Refusal in this case prohibited Ms. Tiffany and her heirs from using the continued on page 18 St. Thomas More Guild Inc. An Organization for Lawyers in the Diocese of Buffalo, New York President J. Patrick Lennon Vice President Michael L. McCabe Secretary J. Michael Lennon II Treasurer David C. Mineo Directors John J. Aman K. John Bland Laurie Styka Bloom Craig R. Bucki Cornelia Farely Hon. Sharon M. LoVallo Daniel T. Lukasik Hon. Patricia A. Maxwell Hon. Jeremiah J. McCarthy Paula M. Eade Newcomb Mary L. Slisz Vincent J. Sorrentino Kevin W. Spitler Donna Hoelscher Suchan FOR FURTHER INFORMATION, call J. Patrick Lennon at or write to: PO Box 35, Buffalo, New York
9 April PAGE 9 Full Service at the Erie County Bar Foundation By Timothy P. Noonan If you are a regular reader of the Bulletin or familiar with what goes on at the Erie County Bar Foundation, you know the great work that the Foundation does for local lawyers and their families. We often see attorneys suffering through the hardship of unemployment or families devastated by illness or disease. And we see families suffering through depression, alcohol abuse, and ethical or business concerns. But we re also able to help qualifying applicants with another common problem faced by many in our profession: tax issues. Yes, that s right. I fill the obligatory spot on the board designated for a tax guy. Some may suggest I m a necessary evil. So in addition to assisting attorneys and their families facing the hardships discussed above, it s possible that we can also assist in helping to resolve tax issues. Indeed, this is no time to be lax on tax responsibilities. Officials at the IRS and especially those in the New York Tax Department are cracking down on professionals - including lawyers - who fail to file returns or pay their taxes on a timely basis. New York state has gone so far as to initiate numerous criminal investigations of attorneys who don t file their tax returns (likely recognizing the public support they might get from going after lawyers!). In fact, Bill Comiskey - who used to head-up tax enforcement at the New York Tax Department but has since become one of my partners at Hodgson - wrote a piece last year in the New York Law Journal addressing this very issue (see Comiskey/Scarsella, Note to Attorneys: File Tax Returns or Face Consequences, New York Law Journal, 4/13/10). Nice title, right? In the article, Bill mentions that 17 attorneys were arrested in 2009 and charged with failing to file returns. The article also points out the disciplinary consequences this can cause, including the potential for automatic disbarment over a felony conviction. So again, we attorneys need to be extra careful about issues like this, even when we fall on hard times. The good news is that the Foundation has a tax guy who can help qualifying applicants. More good news? The Tax Department does have a voluntary disclosure program that allows non-filing taxpayers to come forward and resolve open tax issues free of civil and criminal penalties. You just have to get to them before if you re fortunate enough to never need the services of the Foundation, that s okay too. they find you. So don t let these issues linger. If you or a colleague are struggling with this issue, now is the time to fix it. This is one of the great things about the Foundation s board. We come in all shapes and sizes. In my short term so far on the board, there hasn t been a problem that someone wasn t able to handle. We exist to help members of the bar and their families. And if you re fortunate enough to never need the services of the Foundation, that s okay too. Just send us some money, and be assured we ll put it to good use! Welcome New Members The Bar Association of Erie County is pleased to welcome the following new members: Denise M. Brown Elizabeth A. Bruce Alexander C. Collichio Thomas R. Elliot Holly A. Erick Jeffrey P. Gleason McKenzie M. Higgins Margaret A. Hurley Amy Kaslovsky Julie Kruger Victor Mui John C. Nelson Jason D. O Hare Erinn K. Prestidge Rebecca E. Sarles Daniel J. Schuller Keisha Williams Adam S. Wynn It s great to belong to something this good.
10 PAGE 10 April 2011 New Admittees Welcomed The Bar Association of Erie County recently sponsored a reception at Harry s Harbour Place Grille to welcome newly-admitted attorneys to the practice of law in Erie County and introduce them to members of the local bench and bar. Photos by Susan L. Kohlbacher Hon. T. Robert Russell, Jr., Charles R. van Ee, Scott D. Woodruff, BAEC vice president Arthur A. Russ, Jr., Jordan Walbesser, BAEC president Scott M. Schwartz, Hon. Frederick J. Marshall and Neil A. Pawlowski. New members of the bar Yimell M. Suarez and Scott D. Woodruff. Pictured from left to right are Kristen L. Schaub, Cory J. Weber, former BAEC president and chair of the Admission to the Bar Committee Stephen R. Lamantia, Melanie J. Beardsley and Matthew S. Baszkowski. Hon. Susan M. Eagan and Michael J. Lombardo, who chairs the BAEC s Real Property Law Committee. Lee M. Sobielski, Hon. Deborah A. Chimes, Hon. Gerald J. Whalen, BAEC Awards Committee chair E. Michael Semple and BAEC president Scott M. Schwartz. Rodney O. Personius, at left, who chairs the BAEC s Criminal Law Committee, is pictured with Hon. John M. Curran, at right. Special thanks to the following sponsors for their generous support of this event: Gold Sponsors Avalon Document Services Counsel Press, LLC Jack W. Hunt & Associates, Inc. M&T Bank Settlement Professionals, Inc. Verizon Wireless Law Firm Sponsors Anspach Meeks Ellenberger LLP Brown Chiari LLP Colucci & Gallaher, P.C. Greco Trapp, PLLC Hagelin Kent LLC HoganWillig Lipsitz Green Scime Cambria LLP Nixon Peabody LLP Hon. David Manz, BAEC Young Lawyers Committee vice chair Leah R. Nowotarski, Hon. Frederick J. Marshall, and BAEC Young Lawyers Committee vice chair Joshua E. Dubs, are pictured with newly-admitted attorney Emma L. Buckthal. Peter C. Obersheimer, Joseph P. Heins, former BAEC president Hon. Jeremiah J. McCarthy, Soyoung Ahn and Alan J. Bozer, who chairs the BAEC s Human Rights Committee.
12 PAGE 12 April 2011 Cyberlaw continued from page 11 Violations can be brought to YouTube s attention by other users who flag the video. YouTube staff reviews the flags and will take down videos that violate the Guidelines. There has been controversy when political videos have been flagged and taken down. Businesses are waking up to the possibilities and challenges presented by YouTube. In 2009, when two Domino s Pizza workers posted a YouTube video showing the making of a pizza with filthy bodily substances, Domino s not only fired the workers, pressed charges, and had the offensive video taken down (although it has resurfaced on YouTube), Domino s also posted its own public relations video discussing the extensive efforts that Domino s takes to ensure quality food and services. (N.B. Domino s does not control user comments posted below its video, many of which are highly critical of the company and its food.) Two months ago, we discussed the Tiffany v. ebay case, in which the Second Circuit shot down Tiffany s claim that ebay should be held liable for contributory trademark infringement because of the acknowledged high volume of sales of counterfeit Tiffany jewelry on ebay. There is similar litigation involving YouTube, in which Viacom has sued YouTube because of the acknowledged high volume of copyright infringement at the video Web site. Viacom seeks $1 billion in damages, alleging that it has found more than 150,000 unauthorized clips of Viacom material on YouTube that have been viewed an astounding 1.5 billion times. In June 2010, the U.S. District Court for the Southern District of New York denied Viacom s motion for summary judgment and granted summary judgment to YouTube on grounds that, under the Digital Millennium Copyright Act, general knowledge of copyright infringement is not enough to impose liability. Viacom has appealed to the Second Circuit, and three big guns are representing Viacom in the appeal: Jenner & Block, Shearman & Sterling, and former Solicitor General Ted Olsen of Gibson Dunn. For its own part, Google states that it has spent $100 million on the case so far. Many amicus briefs have been filed with the Second Circuit. Stay tuned. [B] lost in (techno) space By Martha Buyer A Call to Action on a National Public Safety Network On a single day during a late January snowstorm in the Washington D.C. metropolitan area (Prince George s and Montgomery Counties, MD, precisely), Verizon Wireless dropped a whopping 10,000 calls to 911 from its network. That s right. According to the FCC, 10,000 calls made over a five-hour period to 911 disintegrated before making it to the first responders whose raison d etre is to answer calls and solve crises quickly. Thankfully, this issue didn t happen in western New York. But it easily could have, and the consequences could have been monumental. What is amazing (and not in a good way) is that five and a half years after Hurricane Katrina, there is still no nationwide wireless network for public safety. Even more surprising is that there remains no federal 911 law. The FCC s Emergency Access Advisory Committee (key word is advisory ) defines its mission as making recommendations to the FCC regarding policies and practices for the purpose of achieving equal access to emergency services by individuals with disabilities, as a part of the migration to a national Internet protocolenabled emergency network, also known as NG911. That s nice, but certainly without power or teeth. To me, this is a serious concern. There is a glimmer of hope. In mid-february, Congressman Pete King (R-NY), with not only bipartisan support but White House support as well, proposed H.R. 607, the Broadband for First Responders Act of 2011 (http://thomas.loc.gov/cgibin/query/z?c112:h.r.607:). The Act, which has been referred to the House Committee on Energy and Commerce, makes several very important steps toward a national emergency responders network. The Act: 1. allocates and licenses a set segment of spectrum bands ( megahertz and megahertz), referred to as the D Block; (Under this proposal, the D Block would be allocated for public safety broadband communications.) Until a federal government entity with authority and the budget line is in charge, this concept, which seems so obviously critical, will remain on the drawing board. Five and a half years after Katrina is simply too long to have talked about change without implementing it. 2. establishes rules permitting a public safety broadband licensee to authorize public safety service providers to construct and operate a wireless public safety broadband network in the licensee s spectrum, if such authorization would expedite public safety broadband communications; 3. requires that any wireless public safety broadband network be fully interoperable, provide for user roaming, be disaster survivable, have the appropriate level of cyber security, and be consistent with the Statewide Interoperable Communications Plans and the National Emergency Communications Plan; 4. establishes regulations to authorize the shared use of the public safety broadband spectrum and network infrastructure by entities that are not defined as public safety services; 5. establishes regulations to allow use of the public safety broadband spectrum by emergency response providers; and 6. develops a public safety agency statement of requirements that enables nationwide interoperability and roaming across any communications system using public safety broadband spectrum. According to Mark Fletcher,* the E911 Product Manager for Avaya and an expert in emergency response, The section of spectrum, the D-Block, is ideal for first responder utilization for several reasons. This block will link public safety networks nationwide while supporting next generation 911. This section of spectrum also has the ability to support the transmission of specific and critical incident data, like location, building floor plans, and medical telemetry data to first responders. In addition, it will provide links between the public and first responders, and first responders and their back links (hospitals), so that the back links are in the best position to manage crises as they develop. Without the D block, Fletcher continued, first responders must rely on wireline technology to transmit all of the intelligent data. This was one of the problems during Katrina. When the wireline telephone systems went down (much telecommunications equipment was housed in the basements of buildings in downtown New Orleans), they were inoperative, and the wireless networks were not reliable. Wireline telephony has traditionally been more reliable (the Katrina example aside), but America s first responders are mobile by nature and must be able to respond to disasters without being tethered in any way. If you re still reading, you re probably wondering why these capabilities don t exist now. You re also probably wondering who would oppose legislation that seems like such a duh. No single government entity has secured the power to take control of a national first responder s network. Interested parties include primarily DHS, DoD, the FCC and the NTIA, among others. Can you say turf war? Platitudes are great, but until a federal government entity with authority and the budget line is in charge, this concept, which seems so obviously critical, will remain on the drawing board. Five and a half years after Katrina is simply too long to have talked about change without implementing it. In terms of opposition, ham radio operators, who currently occupy some of this spectrum real estate, are unhappy about losing capacity. In addition, there are those who argue that the D-Block, with its nationwide capability, should be sold to the highest bidder, with funds raised being devoted to closing the federal budget gap. Okay, this isn t an unreasonable argument except for two important facts: If the spectrum were to be sold and then donated to public safety officials (or even if part of the sold spectrum were donated back), there s an extra layer of complexity and participation, thus extending the amount of time it will take to actually make the network work. Secondly, the last time the D-Block spectrum was put up for auction, bids didn t even reach the reserve, so it was pulled off the market. There are a number of reasons why the reserve wasn t met, but the fact remains that the national network doesn t exist yet, and the spectrum lays fallow. To encourage this legislation through the system, push Congress to H.R If you take the affirmative step of reaching out to Congressman Higgins or Congresswoman Slaughter, know that you will be standing with the public safety industry (including police and fire chiefs and other first responders, among many, many others). When you think about it, what s more important than public safety. As Fletcher put it during a recent conversation, who has priority parking at the mall? RVs or ambulances? It really is a matter of life and death. *As an interesting side note, while this area of telecommunications has always been the focus of Mark Fletcher s professional career, his life was saved several years ago by the first responders who answered his 11- year-old daughter Haley s call to 911 in his New Jersey community when he suddenly fell ill. [B]
13 April PAGE 13 Hollywood s Version of Mediation and a Mediator By Nadia Shahram About a month ago, as I finished the first session of mediating a divorce between a couple, the husband looked at his soon-to-be exwife and then at me. Nadia, I have a question outside of what we have discussed, he said, moving uncomfortably in his seat. Yes? I asked, feeling a little concerned. Nadia, is mediation legal? I crossed my legs and looked at him and then at his wife. Both sets of eyes were on me. Without waiting for a response, he continued. Have you watched the episode of Fairly Legal, which is about this sexy mediator who runs in high heels, holding a cappuccino as she hails a cab to her exhusband s office, after she just slept with him the night before? The ex-husband is an assistant district attorney, and she goes to steal a file of a young man accused of assault with a deadly weapon that she ends up visiting in prison later on that day to try to save him from falling between the cracks and saving his scholarship to a prestigious university. I almost choked on my last sip of cappuccino as I uncrossed my legs in a desperate attempt to hide my high heels from view. She pounds with her high heels on an expensive collector s item watch, the client continued, which she meant to demonstrate for a couple in her office the sentimental value of things. Is even mediation legal? She seems like someone who has no respect for the law. Not based on what he described, I thought. For those who may not have seen the new show airing on Thursday nights, it is about resolving conflicts outside of courtrooms and the confrontational win-lose environment that the courts created. Interesting to know that our courts were built upon criminal laws and that is where criminals perhaps should go. I wonder sometimes why couples with relationship problems Become a fan of your favorite Bar Association. Like us on Facebook, follow us on Twitter and join our group on LinkedIn. continued on page 14
14 PAGE 14 April 2011 Hollywood s Version of Mediation and a Mediator continued from page 13 should end up in court at all. For those of us who have resisted the passive watching of TV, we know this show portrays a stereotype of mediation and mediators. Although I do have to admit that as a grateful professional, I am happy mediators have made it into Hollywood for a change, where for years starting with Perry Mason four out of five TV shows involve at least one lawyer! Let us analyze a scene from the show: The mediator is in a 7-11 type of store and a robbery is taking place in front of her. She quickly takes charge of the situation and the gun, finds out what the basic needs of the robber are, and convinces the store owner to pay a certain sum. By satisfying the needs of both with very little (e.g.: the robber gets beer/beef jerky and the store owner loses minimal money and no longer has a gun pointed at his head), she ends the situation peacefully. Both parties get what they hope for or - as mediators say - their needs are satisfied. Even great mediators, such as professors Rogers and Sanders from Harvard, have failed to account for this scenario in their numerous books on getting to the need from the position, giving a number of real life examples. Hollywood s sensationalization of the profession of mediation of course highlights some basic differences between mediation and litigation. The basic difference, which is marginalized in the show, is the emotional aspect that the mediator looks for as she confronts a situation. In contrast, attorneys look for the law to fit the case under its guidelines. It is a distorted image on the show that a mediator is a lawless, disobedient, flaky, yet lovable creature. The mediator focuses on the needs of the people in question, thinking of both parties. In contrast, a litigator focuses on the position of the person represented, creating a one-sided and combative environment. Mediation Addresses Emotions, Disappointments As an attorney of mediation, I am guided by the law but not limited by the law. We as mediators give meaning to the law through the uniqueness of the case at hand and not by the traditional scenarios of win-lose when dealing with relationships breaking up. This removes us from the traditional model used in courts, but only in our approach, as the law still holds. When a relationship ends, regardless of the situation, there are usually no winners. For example, when a marriage comes to an end, a mediator looks at the situation not from the perspective of formulas and guidelines but of emotions and disappointments. A mediator then focuses on how to avoid further damage to other parts of the relationship as he or she works to gently end the spousal relationship. Addressing mistakes does wonders for the healing of the wounded parties, which ends up resolving the differences in a more meaningful and respectful manner. When people are hurting, they are also angry. Where they go to talk about their anger largely determines what their next moves will be. I as a mediator do not represent the anger of my client but rather their interest. And if that interest involves apology, in so many words, I recommend it. Have you heard of an attorney recommending that a client acknowledge his or her mistakes? In television shows like Fairly Legal, mediators are portrayed as loose cannons and unpredictable. In one case, a judge refers to the mediator as just a mediator who has no respect for the law. Mediators respect the intention of our Constitution, which sometimes gets lost in court. Recently in a court when the opposing attorney showed me the spousal maintenance and child support numbers which would have put my client in the red, I naively asked, What about my client? The attorney replied, What about him? That is not my problem. I think we as attorneys sometimes look at guidelines as laws, whereas perhaps we should truly see them as guidelines. Mediators do act outside of the box and get results - not because we are a lawless group of flakes - but because we are dedicated to resolving issues outside of courts. I found myself without hesitation calling an out-of-state client on Valentine s Day because I knew she needed to hear a friendly voice and asking her to get in touch with the soon- to-be ex-husband because he might also need to hear kind words. A client called me on a Sunday evening to see if I could call his wife and ask on his behalf to put the whole thing on hold because - based on my recommendation - he had called a counselor. I will not hesitate to hug my clients at the end or even in the middle of a session or whenever I know it will help them to move on. You may wonder what I told the client who asked me if mediation is even legal? I pretended to take off one of my heels, looked at his wife and asked, Does he have a collector s item watch? And of course we are also lovely creatures, just as the show depicts! [B]
15 April PAGE 15 B E G R E E N R E C Y C L E Y O U R B U L L E T I N
16 PAGE 16 April 2011 Stimulus Funding Causes NLS Caseload to Increase by 27 Percent in 2010 By William J. Hawkes, Executive Director Neighborhood Legal Services, Inc. The much debated American Recovery and Reinvestment Act of 2009, (ARRA), also known more commonly as the stimulus bill, was signed into law in February It was the ARRA with which the federal government bailed out Wall Street investment firms, major banks, insurance companies, mortgage companies, General Motors and Chrysler, as well as numerous other major industries. Few people know that the bill also contained funding to prevent homelessness across the United States. In the spring, summer and fall of 2009, NLS supervising attorneys and I worked through multiple applications for stimulus funding from the U.S. Department of Housing and Urban Development, (HUD), which was made available under a newly created grant program known as Homelessness Prevention and Rapid Re-Housing Program (HPRP). We applied in the various HPRP jurisdictions which were created in Erie, Niagara, Orleans, Genesee and Wyoming counties. The HPRP program had two primary goals: (1) to assist people at risk of homelessness, or those already homeless; and, (2) to stimulate the local economy. The program was designed to last no longer than three years, although the grant funding could be exhausted sooner, depending on the rate of third party payments made on behalf of people facing homelessness. In the fall of 2009, we were notified that we were awarded separate grants from the City of Buffalo, Erie County, the Town of Tonawanda and the City of Niagara Falls. Neighborhood Legal Services then entered into collaborations with Belmont Housing Resources for Western New York, Crisis Services, Catholic Charities, the Buffalo Chapter of the American Red Cross, the Col. Matt Urban Center, and the YWCA in Niagara Falls, all of which became our partners in delivering an array of services in each jurisdiction. The services were designed to assist people who were facing homelessness and housing instability due to loss of income, high utility bills, sudden disability of a wage earner, inadequate public assistance benefits and similar issues. Each household faced a financial crisis which made them either at risk of homelessness, or caused them to already be homeless. continued on page 18
17 April PAGE 17 Bar Association of Erie County Professional Ethics Opinion western district case notes Opinion No:10-06 Topic: Retention and Disposal of Client Matter Files Digest: A lawyer should retain records in accordance with the instructions of the client, the Rules of Professional Conduct, and any other applicable rules or laws. Rules: 1.15; 1.16; 3.4; 7.1; 7.3; 22 NYCRR and Question: The inquiring lawyer proposes to send to clients, following the settlement of their personal injury claims, the following notice: We will retain any file materials in connection with your personal injury case in our possession for thirty (30) days. You may pick these materials up at any time during office hours by calling in advance to make arrangements. If we have not received instructions from you regarding these materials within thirty (30) days, the file materials will be destroyed due to space limitations. The inquiring lawyer requests an opinion concerning whether the furnishing of such a notice, and the destruction of the clients file in accordance therewith, is ethically permissible. Opinion: The Rules of Professional Conduct contain a number of provisions specifically requiring lawyers to retain for various periods particular types of records described in those provisions. For example, Rule 1.15(d), entitled Required Bookkeeping Records, states as follows: (1) A lawyer shall maintain for seven years after the events that they record: (i) the records of all deposits in and withdrawals from the accounts specified in Rule 1.15(b) and of any other bank account that concerns or affects the lawyer s practice of law; these records shall specifically identify the date, source and description of each item deposited, as well as the date, payee and purpose of each withdrawal or disbursement; (ii) a record for special accounts, showing the source of all funds deposited in such accounts, the names of all persons for whom the funds are or were held, the amount of such funds, the description and amounts, and the names of all persons to whom such funds were disbursed; (iii) copies of all retainer and compensation agreements with clients; (iv) copies of all statements to clients or other persons showing the disbursement of funds to them or on their behalf; (v) copies of all bills rendered to clients; (vi) copies of all records showing payments to lawyers, investigators or other persons, not in the lawyer s regular employ, for services rendered or performed; (vii) copies of all retainer and closing statements filed with the Office of Court Administration; and (viii) all checkbooks and check stubs, bank statements, pre-numbered canceled checks and duplicate deposit slips. Other relevant provisions in the Rules of Professional Conduct include Rule 1.10(e) [Records of Engagements]; 1.15(a) [Property Belonging to Another]; 1.15(c)(4) [Property that a Client or Third Person Is Entitled to Receive]; 1.16(e) [Papers and Property to which the Client Is Entitled]; 7.1(k) [Advertisements]; 7.3(c)(3) [Solicitation Information]. To the extent that an attorney s file includes the types of records referenced in these provisions, the lawyer s continued on page 20 CONSUMER PROTECTION In Santino v. Financial Systems, Inc. (09-CV-982C, 2/23/11), plaintiff sued under the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act of 1991 ( TCPA ), claiming that defendant mistakenly made numerous automated telephone calls to plaintiffs residence for the purpose of collecting a debt owed by an unrelated third party. The court granted defendant s motion to dismiss the TCPA claim based on repeated rulings by the Federal Communications Commission that pre-recorded debt collection calls are excluded from the TCPA, even when the debt collector contacts a non-debtor in error. FAIR HOUSING In Taylor v. Harbour Pointe Homeowner s Association (09-CV-257C, 2/16/11), plaintiff sought injunctive relief and damages under the Fair Housing Act ( FHA ), alleging that the defendants, her Homeowner s Association and one of its officers, failed to accommodate her clinical depression, which allegedly prevented plaintiff from maintaining her residence to the Association s satisfaction. The court granted the defendant s motion for summary judgment dismissing the FHA claim, holding that plaintiff s statements to the officer did not amount to a request for reasonable accommodation and that there was no evidence that having someone else clean her patio amounted to a denial of plaintiff s right to the use and enjoyment of her dwelling. LABOR LAW In Teoba v. Trugreen Landcare LLC (10-CV CJS, 2/15/11), plaintiffs alleged that defendant s failure to reimburse recruiting, visa and transportation expenses of temporary foreign workers hired pursuant to the H-2B visa program violated the Fair Labor Standards Act ( FLSA ) and state minimum wage laws because the expenses amounted to de facto involuntary deductions from or kickbacks of wages. The defendant moved to dismiss on the grounds, among others, that By Paul K. Stecker and Kevin M. Hogan the expenses were primarily for plaintiffs own benefit since they were not integral to the performance of their job duties. Noting the split of authority as to whether employers are required to pay recruiting, visa and transportation expenses of H-2B visa guest workers, the court denied defendant s motion, observing that such expenses are unique costs of doing business, primarily benefiting employers, which cannot be passed on to employees either directly or indirectly, if doing so would reduce the employees wages below minimum wage. In Brickey v. Dolgencorp., Inc. (06-CV-6084L, 2/23/11), another FLSA case, the court denied plaintiffs motion to certify a collective action on behalf of plaintiffs who alleged that defendants failed to pay overtime by reason of an internal payroll hours allocation policy which gives each store a certain number of work hours, or labor budget, in which typical functions are expected to be performed, and rewarding managers who are able to stay within their recommended allocation. Noting that plaintiffs appeared to concede that defendants policy did not on its face violate FLSA, the court found that plaintiffs had failed to show that they were subject to a common policy or practice that violated the law, as opposed to unlawful actions by individual, anomalous managers. RICO In Ozbakir v. Scotti (09-CV-6460L, 2/10/11), the court granted defendants motion to dismiss plaintiffs RICO claims without prejudice, finding that plaintiffs allegations of fraud, alleging essentially that defendants engaged in a series of transactions to inflate the apparent value of real property sold to them by defendants, did not meet the specificity requirement of Rule 9(b), Fed. R. Civ. P.; because plaintiffs did not allege that they were injured through the investment of income derived from a pattern of racketeering activity; and because plaintiffs allegations of a similar scheme by defendants did not show a pattern of racketeering activity.
18 PAGE 18 April 2011 Stimulus Funding Causes NLS Caseload to Increase by 27 Percent in 2010 continued from page 16 HPRP was essentially a program of last resort for people facing homelessness. In order to qualify, households first needed to apply for any benefits which may have been available from the Departments of Social Services before they could become eligible for HPRP funding. The locally designed HPRP delivery system had four basic functions: (1) intake and referral; (2) public benefits analysis and eviction defense; (3) case management; and (4) financial management/cash disbursements. NLS provided the benefits analysis and eviction defense components of the services funded by HPRP. Death and Taxes continued from page 8 retained parcel for commercial use, and required that the parcel must be maintained as a residence thusly: By structuring the transaction in that manner, the parties to the agreement created an estate that could vest well beyond the limit in EPTL 9-1.1(b), and thereby violated the rule against remote vesting. Matter of Estate of Petote, 2011 NY Slip Op 939 (4th Dept., 2011) The decedent s sister petitioned for intestate administration. The Respondent appeared and claimed he was married to the decedent and, therefore, had priority to Letters of Administration. Pending the determination of that issue, the Surrogate appointed the Public Administrator to administer the estate. At trial, the putative spouse presented a certified copy of a marriage certificate from Orange County, California. The sister presented the testimony of a handwriting expert who said that the decedent s signature on the marriage certificate was a forgery. The Surrogate in dismissing the sister s petition, found some holes in the testimony of the handwriting expert, and held the presumption of marriage resulting from the marriage certificate was not overcome. The Surrogate also awarded the husband costs against the sister for the fees charged by the public administrator and the fees of the husband s lawyer. On appeal the Fourth Department affirmed the holding that the sister had failed to rebut the presumption of marriage raised by the marriage certificate. But, the court reversed the award of costs against the sister for the fees of the Public Administrator and the fees of the attorney for the husband: In our view, petitioner did not engage in frivolous conduct warranting the imposition of sanctions against her... [P]etitioner had a good faith basis to question whether the decedent was married to respondent. Many of the clients served by the HPRP funding in Erie and Niagara Counties were people with little or no prior experience receiving public benefits. Many came from two wage-earner working class families that suffered the loss of one or more jobs due to layoffs and were quickly thrust into a financial downward spiral. Many were people who were facing eviction or utility shutoffs because their minimum wage jobs were inadequate to cover the cost of rising heating costs or a rent increase. All were desperate and all needed assistance to prevent their families from becoming homeless. Matter of Estate of Stanley, 79 A.D.3d 1620 (4th Dept., 2010) The decedent, a New York resident, was killed in an accident in Florida. His wife was named executor of his estate by the Erie County Surrogate s Court. She commenced a wrongful death action in Florida, which was eventually settled. The settlement agreement said that it was subject to the approval of the Erie County Surrogate s Court and the Florida Court. A proceeding was filed in the Erie County Surrogate s Court to approve the settlement of the Florida action, and guardians ad litem were appointed for the decedent s minor children. Meanwhile, a proceeding in a Florida court approved the settlement. The executor then sought to terminate the proceeding in Erie County Surrogate s Court, claiming that the Florida decision approving the settlement was entitled to full faith and credit. The guardians ad litem argued that the settlement agreement, by its terms, required the Erie County Surrogate s Court to approve the settlement, and that the Surrogate was not required to defer to the approval of the settlement by the Florida court. The Surrogate so held, and the executor appealed. The Appellate Division held that the settlement agreement did not attempt to confer jurisdiction upon the Surrogate, but rather made such approval a condition of the settlement. Further, the Fourth Department held that the Surrogate s review did not fail to afford credit, validity and effect to the orders of the Florida court. Rather, the Florida court approved the settlement in accordance with Florida law. The Appellate Division noted that the Surrogate would be reviewing the settlement in accordance with New York law, as required by statute and by the Agreement. The Appellate Division also approved the Surrogate s exercise of discretion, granting the application of one of the guardians ad litem to authorize members of his law firm to assist him and perform various duties on his behalf. The court noted that any question at this time concerning reasonableness of the guardian s fee was premature. [B] Third Party Payments Designed to Prevent Homelessness The HPRP payments they received were made on their behalf to third parties in order to prevent homelessness or to rapidly re-house them once they were homeless. Thus, landlords, housing authorities, utility companies, moving companies, and storage facility companies were the types of local interests which were paid directly with these stimulus funds to prevent the homelessness of our clients. In 2010, NLS served 2,706 such households. The HPRP clients and the general increase in demand for our services created by the ongoing effects of the recession, created a record number of newly opened cases at NLS. In 2010, we completed our first full year of HPRP-related services. In our recent year end case reporting and compliance activities, we determined that, with the influx of HPRP cases, we d set a record for new cases with 9,126 cases closed. That number was 27 percent higher than the prior year s total of 7,181 cases closed. In one typical case example, NLS represented an elderly, disabled tenant who was staying in a shelter after losing her Section 8 subsidy through Rental Assistance Corporation (RAC). Her Section 8 subsidy was terminated because she could not find an apartment in the time frame that RAC demanded. We contacted RAC and negotiated with them. The tenant s Section 8 assistance was reinstated and she was given additional time to find an apartment. The tenant was able to move from a shelter and better afford her own apartment. The NLS staff and the staff of our partner agencies have worked very hard to serve the thousands of people who faced eviction and homelessness in our community. We continue delivering these services, although the HPRP funding will likely be exhausted this year. NLS is concerned about the potential for losing large amounts of additional federal, state and county funding in and the impact those cuts will have on our ability to respond to the ever-increasing demand for legal services. We are also concerned that the people who continue to face homelessness may not be assisted without another federal homelessness program to pick up when the HPRP program ends later this year. Faced with enormous fiscal uncertainty again this year, civil legal services programs around the state are relying on the NYS Office of Court Administration Chief Judge Jonathan Lippman s funding proposals. He has included in the OCA budget an amount to replace $15 million dollars of lost New York State Interest On Lawyer Account Fund (IOLA) funding caused by the recession and lowered interest rates. He has also added $25 million dollars for civil legal services to fund programs like NLS and the other local providers, without which the New York state court system would quickly become overwhelmed with pro se litigants. [B]
19 April PAGE 19 in the public service With a Little Help from Our Friends While I may get frustrated that I have relatively limited resources to do my work at the Volunteer Lawyers Project s (VLP) Immigration Program, I feel very lucky sometimes like now. The New York City law firm Akin, Gump, Strauss, Hauer and Feld, LLP is representing one of my clients pro bono before the U.S. Court of Appeals for the Second Circuit (and assuming all the costs as well), and just filed its very well-prepared brief with the court. Additionally, the Legal Aid Society of Manhattan has written an amicus brief in the case. Previously, the Cornell University Law School Immigration Appellate Law and Advocacy Clinic represented this same client before the Board of Immigration Appeals (BIA) after I lost at trial before the immigration court. Not too long ago, Shearman and Sterling, LLP, also in New York City, represented another client of mine before the Second Circuit, obtaining a remand to the administrative tribunals. We won the case on remand. Currently, New York University Law School s Immigrant Rights Clinic, under the direction of Nancy Morawetz, who argued a major immigration case before the U.S. Supreme Court many years ago, is representing another of my clients before the Second Circuit on a compelling legal issue. The local pro bono attorneys who handle VLP immigration cases are wonderfully talented. We could not represent as many clients as we do without their dedication to our program, and their involvement is critical. Nonetheless, when we are fortunate enough to have pro bono counsel at the federal Court of Appeals, my heart really leaps. By Sophie Feal, Volunteer Lawyers Project, Inc. Supervising Immigration Attorney The case being handled by NYU Law School involves an important immigration issue: whether a 32-year lawful permanent resident of the United States may be removed from this country for unlawfully registering to vote many years ago at the insistence of a social services worker who told him he had to register in order to receive disability benefits under the National Voter Registration Act of I met this client at the detention facility in Batavia in October of 1999, only one month after I had moved back to Buffalo to accept my current position at VLP, so I am especially committed to seeing a favorable result for him in this case. After some back and forth (the matter first went to the District Court on a habeas motion, and then before the BIA on eligibility for relief on another issue), Eric Schultz of Hiscock and Barclay, LLP in Buffalo readily stepped in to assist me pro bono with the litigation. Unfortunately, the immigration court held that the immigration provision regarding unlawful voter registration calls for strict liability, and no mens rea is required to justify deportation. The BIA affirmed the decision below without opinion, although New York Election Law requires willfulness or knowledge for a conviction (note: our client was never charged nor convicted of any voter-related offense. The government simply located old voter registration forms he had signed). Indeed, in 2005, the U.S. Court of Appeals for the Ninth Circuit held that a noncitizen was deportable for unlawful voting only if he or she had the requisite mens rea under the relevant state statute. In that case, the noncitizen had been urged to register by the Department of Motor Vehicles to renew her driver s license under California s motor voter law. Recognizing the importance of the issue present in this case, and the precedent in the Ninth Circuit, I wanted to get into federal court after we had lost our administrative appeal. I was extremely pleased when NYU agreed to take the case after I pitched it to Professor Morawetz. Indeed, two eager law students from the clinic traveled to Buffalo a few months ago to continued on page 20
20 PAGE 20 April 2011 In the Public Service continued from page 19 pore over the massive file and meet our very affable client. These days, I get calls from immigration lawyers nationwide about this important case asking for strategy, to borrow briefs, or for updates on the rulings. We are anxiously awaiting a decision. Assistance from NYC Firm Leads to Second Chance for Wrongfully Detained Client The matter which Shearman and Sterling, LLP handled for us was finally resolved after 10 years of litigation. It involved another long-term permanent resident I had met at the Batavia facility in October of During the time my client s case was pending, which included an appeal before the New York Court of Appeals handled by the New York State Defender s Association, his mother passed away and the youngest two of his five children were born. Thankfully, after Shearman and Sterling (adding to a wonderful team of pro bono lawyers from Buffalo and Ithaca) became involved, we were able to petition for review at the Second Circuit, given that both of the administrative tribunals below had wrongly characterized our client as a drug dealer undeserving of relief from removal despite his numerous equities in the United States. Ultimately, on remand, the BIA finally agreed our client deserved a second chance. It recognized a letter from the District Attorney in the jurisdiction where our client had pled guilty to marijuana possession, in which the DA cited the negative effects of an absent father on the development of children. Additionally, the attorney for the Department of Homeland Security conceded, in her appellate response brief, that this permanent resident had accrued strong equities, and that he is a devoted father and husband, is gainfully employed, and has contributed to his community in a positive way. At the federal detention facility in Batavia, I also met the man who Akin, Gump et al now represents. His case raises the novel legal issue of whether a criminal informant - in this case, a permanent resident who assisted law enforcement in the arrest and prosecution of a murderer and a drug dealer - should be spared Eighty-four percent of detained noncitizens who face removal proceedings have no legal representation. from deportation for his criminal offense because he fears retribution in his native country, where the gang members on whom he snitched now reside. Despite the testimony of two police officers and a supporting letter from a District Attorney, the immigration court ruled against my client at trial. Cornell University Law School students prepared and filed an appellate brief for my client, but the BIA affirmed the decision of the immigration judge. Only the U.S. Circuit Court of Appeals for the Eighth Circuit has thus far extended protection, under special laws to protect those who fear persecution and torture, to a noncitizen in this situation, and the issue is controversial. I know that the cost of this extraordinary representation runs several thousands of dollars for each client. However, these are not extravagant defenses we wage, given what is at stake. It is one that anyone should be entitled to present when he or she faces permanent banishment from the United States, the country they ve called their own for decades, and where they ve set deep roots; or when they fear persecution, even death, at home. Eighty-four percent of detained noncitizens who face removal proceedings, like the three clients in this article once were, have no legal representation, not even for their first hearings before the immigration court, let alone for any appeals. As a legal community, this should profoundly trouble us. One last but important note: several years ago, before his premature retirement from the practice of immigration law in 2007 due to his health, my friend and colleague, Mark T. Kenmore, was a prolific litigator before the Court of Appeals for the Second Circuit. For incredibly modest fees and incomparable commitment, he represented a number of VLP s immigrant clients and obtained reversals and remands of unfavorable decisions. Each and every one of the clients (all of whom had fled persecution and torture) whose cases were remanded by the federal court ultimately prevailed before the immigration court on remand, sometimes with the help of a new local pro bono lawyer as trial counsel. We miss Mark deeply, and in his absence, are trying our best to get by. [B] As a legal community, this should profoundly trouble us. Name: Company: Sign me up at the new reduced cost! Sponsorship Opportunities Platinum Sponsor - $7,000 Gold Sponsor - $2,250 Silver Sponsor - $1,500 Auction/Raffle - $500 Tee Sign Sponsor - $199 Golf (includes cart, lunch, dinner and goody bag) - $179 per golfer Dinner Only - $75 Donation only Address: Phone: Mail or Fax to: Legal Services for the Elderly 237 Main Street, Suite 1015 Buffalo, NY Phone: (716) x213 or 205 Fax: (716) LSED Golf Tournament Monday, June 20, 2011 Transit Valley Country Club Exclusive Limited Sponsorships Ball Sponsor $2,500 Towel Sponsor $2,500 Cart Sponsor $2,500 Dinner Sponsor $1,250 Cocktail Hour Sponsor $1,500 Program Advertising Full Page Ad - $300 Half Page Ad - $200 Bar Association of Erie County Professional Ethics Opinion continued from page 17 destruction of the file before the expiration of the period stated in the rules would violate those rules, notwithstanding the express or implied consent of the client. As reflected in Rules 1.15 and 1.16, a client will normally expect the lawyer to return whatever papers and things were originally entrusted to the lawyer by the client for use in the matter, rather than unilaterally destroy them. In addition, lawyers who handle lawsuits in the First or Second Departments involving personal injuries and other specified claims should heed the court rules found in 22 NYCRR (First Department) and (Second Department). Those rules direct attorneys for both plaintiff and defendant to preserve, for seven years after any settlement or judgment, the pleadings and other papers pertaining to the claim. The inquiring lawyer did not specify whether any of the personal injury claims he handles are in the First or Second Department. To the extent that any claims are subject to those rules, the proposed early destruction of those files would appear to violate the court rules cited above, and would thus also violate Rule 3.4(c), again regardless of whether the client consented to the destruction of the file. Additional issues are raised by the inquiring lawyer s proposal to destroy files by relying on the lack of any instructions from the client during the specified 30-day period. The New York Court of Appeals addressed the client s rights in the lawyer s file in Sage Realty Corporation v. Proskauer Rose Goetz and Mendelsohn, 191 N.Y.2d 30 (1997). In that decision, the Court of Appeals held that a client has the right to inspect and copy any documents possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse access. The court further stated that, even without a request, an attorney is obligated to deliver to the client, not later than promptly after representation ends, such documents relating to the representation as the client reasonably needs. The client s right of access has been described as a property right in the subject files. Sage Realty Corporation v. Proskauer Rose Goetz and Mendelsohn, 294 A.D.2d 190 (1st Dep t 2002). Since the client has a property right to the lawyer s files, it is the opinion of this committee that the proposal to destroy the file a mere 30 days after the conclusion of the matter, based only on the client s failure to respond within that brief period, is not consistent with the lawyer s ethical obligations to the client. If the client gives express informed consent (preferably in writing) to the destruction by the lawyer of file materials that are not required to be retained by any laws or rules such as those referenced above, the lawyer would then be free to destroy those particular records. 1 Also, even without express consent, it may be reasonable in some circumstances to infer that a client has given implied consent to the destruction of a file (e.g., when many years have passed since the conclusion of the representation, during which the client has not requested any materials, and the lawyer has determined that the file does not contain any materials the client would reasonably require in the future). However, the 30-day unilateral destruction proposal made by the inquiring lawyer here does not present such circumstances. Not all clients will be capable of giving informed consent to the disposition of the file. Some clients may be minors or may lack sufficient mental or emotional capacity to appreciate the ramifications of the various alternatives, notwithstanding conscientious explanations by the lawyer. The individual differences that exist among clients and cases weigh against the type of blanket destruction policy proposed by the inquiring lawyer here. There have been several published opinions by other ethics committees on issues related to the question raised here. See e.g., ABA Committee on Ethics and Professional Responsibility in formal Opinion 1384 (1977) ( A lawyer should use care not to destroy or dis- continued on page 22
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