ON
AL ITI ide.
I
EC ED ins
SP ON ent
I
CT plem
E
EL sup
e
Se
PRSRT STD
U.S. Postage
Paid
Buffalo, NY
Permit No. 416
Vol. 50 | No. 9 | May 2011
Bar Association of Erie County
BULLETIN
w w w. e r i e b a r. o r g
President’s Letter
By Scott M. Schwartz
Eagan to Receive 2011 Lawyer of the Year Award
Buffalo attorney Gayle L.
Eagan will receive the 2011
Lawyer of the Year Award at the
Bar Association of Erie County’s
124th annual dinner to be held
on Wednesday, June 8, 2011 at
the Hyatt Regency Buffalo. The
evening will begin with a cocktail hour at 6:00 p.m., followed
by dinner at 7:00. Further
Eagan
details will be mailed shortly and
advance reservations may be
made by calling Sharlene Hall at 852-8687.
A partner in Jaeckle Fleischmann & Mugel, LLP,
Eagan currently practices in the firm’s estates and
trusts group. In addition to her legal practice, Eagan
has devoted considerable amounts of her “time, energy
and talent to the western New York community,”
which was noted by the Awards Committtee, chaired
by E. Michael Semple, among the reasons for her selection.
Parting Words
My days are numbered. I’ve been told I don’t
have much time left. Another four, five weeks if
I’m lucky. Nothing more can be done. I realize
it’s time to get my affairs in order, and say my
goodbyes. Art Russ is already measuring my
office for new curtains. Therefore, being, in my
opinion, of sound mind, I make this, my Last
Column and Testament, and do bequeath as
follows:
FIRST: To Kathie Bifaro, Sharlene Hall,
Bonnie O’Brian, together with Donna, Dana,
Leslie, Marcia, Heidi, Sue, Mary, Maureen and
Marie, the staff of our Bar Association, my
heartfelt appreciation for what you do on our
behalf, and what you have done on my behalf.
You do not just perform a job, you are truly
committed to the interests of the lawyers in this
community – that, and you let me think I
made some decisions along the way.
SECOND: To Sharon Schwartz, my thanks
for your support throughout this presidency
year – though I bequeath nothing further at
this time – as you bequeathed generously to
our credit card bill on the president’s trips to
Chicago, New York, San Francisco and San
Antonio.
THIRD: To the lawyers of Lipsitz Green
Scime Cambria LLP, especially Jim Scime and
Tom Mercure, I give now 100 percent of my
working hours with my thanks for accepting
less over the past year. Also, my sincere appreciation to my secretary Lori Butera for
her extra work on my behalf and consequently
the Association’s behalf.
FOURTH: To the managing partners of the
firms and the heads of the legal public sector
offices with whom we met over the year, especially Frank Sedita and Bill Hochul, our thanks
continued on page 2
“This award was established to honor a lawyer who
has made significant contributions to the legal profession and the community,” according to BAEC President
Scott M. Schwartz. “In so doing, the recipient of this
award elevates the standard of integrity, honor and
commitment in our profession and promotes the best
interests of clients, members of the bench and bar, and
the community as a whole.”
Dillon
Stevens
Scott
Numerous letters supporting Eagan’s nomination
were received from the CEOs of community organizations in which she has been actively involved. Her
involvement with Legal Services for the Elderly,
Disabled and Disadvantaged of WNY, Inc. (LSED)
“dates back virtually to its inception,” according to the
report. “Her leadership is credited with guiding the
agency through periods of strife resulting in it becoming the significant service organization it is today.”
Although retired from the board, Eagan continues to
volunteer her time to help manage a Supplemental
Needs Trust which oversees the assets of approximately 200 disabled persons.
A graduate of Medaille College, Eagan holds a master’s degree from Canisius College and began her
career as a teacher. She then decided to attend law
school and graduated from The University at Buffalo
Law School, cum laude, in 1985.
continued on page 4
Secrets of Successful Mediators to be Revealed on June 9
Sussman
“Settlement rates in mediation are
said to be on the order of 85 to
90 percent and are achieved long
before the traditional ‘court house
steps’ at a significant saving of
cost and time for the parties.”
~ Edna Sussman
In recognition of the increasing number of attorneys
who are representing clients in mediation proceedings,
the Erie Institute of Law has scheduled a special
Continuing Legal Education program entitled “Secrets
of Successful Advocates in Mediation” for Thursday,
June 9 at Templeton Landing beginning at 1:00 pm.
Guest speaker at the seminar will be New York City
arbitrator and mediator Edna Sussman, who is the
Distinguished ADR Practitioner in Residence at
Fordham University School of Law. Sussman is also the
current chair of the New York State Bar Association’s
ADR Section.
In addition to Sussman, the program will be presented by experienced advocates who have handled personal injury and business mediations. It will cover such
topics as preparing the client for mediation, the suggested tone and content of the mediation materials,
selection of a mediator, and presentation dos and
don’ts, among others. The seminar has been designed
to prepare practitioners to effectively represent their
clients in mediation in order to achieve a satisfactory
settlement.
continued on page 6
2011 Open Enrollment Period for Health Insurance
Representatives from the Bar
Association’s Health Insurance Plan will
be available at Bar headquarters on
Friday, June 3, from 9:00 a.m. to 1:00
p.m. to discuss members’ current insurance needs and options.
During the open enrollment period:
• Current subscribers can change their plan choice and/or
add dental coverage for the 2011-2012 year;
• New subscribers can join the group during this period. If
you currently have coverage through other sources or no
coverage at all, now is the time to join.
• All changes/enrollments will take effect July 1, 2011.
Completed applications are due by June 15, 2011.
For further information, please contact Crissy Tringali at
831-8180 or ctringali@financialguide.com.
PAGE 2
www.eriebar.org | May 2011
Vol. 50 | No. 9 | May 2011
BAR ASSOCIATION OF ERIE COUNTY
Organized 1887
438 Main Street, Sixth Floor | Buffalo, New York 14202
(716)852-8687 | fax (716)852-7641 | www.eriebar.org
Bulletin correspondence: obrian@eriebar.org
EDITORIAL BOARD
Editor ............................................Bonnie D. O’Brian
Law Editor ....................................Jeffrey A. Spencer
Tax Notes Editor ..........................Gary D. Borek
Art Editor ......................................Giles P. Manias
Hon. David J. Mahoney
(1960-2008)
Photography ................................Susan L. Kohlbacher
Glenn Edward Murray
Editorial Assistant ........................Susan L. Kohlbacher
OFFICERS AND DIRECTORS | 2010-2011
President ......................................Scott M. Schwartz
Vice President ..............................Arthur A. Russ, Jr.
Treasurer........................................Vincent J. Moore
Deputy Treasurer ..........................Paula M. Eade Newcomb
Executive Director........................Katherine Strong Bifaro
BOARD OF DIRECTORS
Lawrence C. Franco, Daniel J. Henry, Jr., E. Michael Semple, Kevin W.
Spitler, Patrick J. Brown, Jennifer M. Dillon, Lynn D. Gates, Bridget M.
O’Connell, Emilio Colaiacovo, Paul V. Crapsi, Jr., Howard Frank, Brenda M.
Freedman.
LIFE MEMBERS
Mark A. Adrian, Carol J. Alaimo, Brian D. Baird, Lynn A. Clarke, William J.
Cunningham, Eric P. Doherty, Victor J. Gagliardi, Sharon Stern Gerstman,
Jean E. Gittler, Donald J. Holzman, Stanley Kwieciak III, J. Eldon Owens,
Lauren D. Rachlin, Jeffrey A. Spencer, James M. Wadsworth.
“If you’re having trouble deciding, we have a Mediation Station.”
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, Lawrence C. Franco, 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, Mary Louise Hayden, Herbert J. Heimerl, Jr., William R. Hites,
Susan S. Hogan, Edwin P. Hunter, Melvyn L. Hurwitz, Norman E. Joslin,
James B. Kane, Jr., Judith D. Katzenelson, Daniel L. Kaye, Christopher C.
Kerr, James J. Kirisits, William J. Kita, Wells E. Knibloe, Christian G. Koelbl
III, Dan D. Kohane, Ellen M. Krebs, Karl W. Kristoff, Thomas E. Krug.
Stephen R. Lamantia, John P. Lane, Richard J. Lehner, John N. Lipsitz,
Richard Lipsitz, Arthur A. Lorenzo, William J. Love, Jr., Leo M. Lynett, Jr.
James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Arthur J.
Maloney, Giles P. Manias, Richard C. Marcus, John Markarian, Mary Dee
Martoche, Hon. Salvatore R. Martoche, Hon. Jeremiah J. McCarthy,
Maureen A. McCready, Thomas I. McElvein, Jr., Diane J. McMahon, Hon.
John A. Michalek, Raymond T. Miles III, Joseph D. Mintz, Albert J.
Mogavero, Richard E. Moot, Peter J. Murrett, Jr., Arthur F. Musarra, Joseph
M. Nasca, Paul T. Nesper, Stephen M. Newman, Anthony M. Nosek, James
J. O’Brien, Robert L. O’Connell, Hon. John F. O’Donnell, Timothy M.
O’Mara, Francis J. Offermann, Jr., William J. Ostrowski.
Carl P. Paladino, Frank R. Papa, Thomas C. Pares, James A. Partacz, Robert
E. Pearman, Hon. Erin M. Peradotto, Robert H. Perk, Jeffrey A. Perla,
Nicholas A. Pierino, 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., John B. Walsh, Neil Weinberg, Peter C.
Wiltse, Wayne D. Wisbaum, Raymond V. Wylegala, Richard D. Yellen, George
M. Zimmermann, H.A. Terri Zionts.
President’s Letter
continued from page 1
for your efforts in meeting with us, encouraging membership within your offices, and your suggestions on
how we can better serve our attorneys.
cers and board have been. Not only committed and
willing to work, but a fun group to meet for coffee and
bagels at 8:00 a.m. every other Tuesday.
FIFTH: To the committee chairs, my thanks for your
undertaking the responsibility to provide meaningful
programs in committee meetings and CLEs to the benefit of any member seeking to participate. This year, I
must especially commend the Young Lawyers
Committee for its social events, charitable work, CLEs,
and the significant work involved in the highly successful High School Mock Trial Program. Also, its members
help with our Facebook, Twitter and LinkedIn communications.
NINTH: To the Feds, Judge Skretny, our acceptance
of your offer to foster a stronger relationship between
the Federal Court bench and the Bar Association, and
to Magistrate McCarthy, my appreciation for your support and encouragement throughout the year.
SIXTH: To our judges, on a personal level, and on
behalf of the membership - our appreciation for your
recognition that you have been - and are - lawyers
first. You understand our challenges and are part of our
community of lawyers, not a segregate body.
SEVENTH: To Vince Doyle, our pride, admiration,
and gratitude for your upcoming service as president of
the New York State Bar, our commitment to work with
you, and a reminder that New York lawyers’ interests
do not just rise and fall south of Albany.
EIGHTH: To Art Russ, Kathleen Sweet or Richard
Sullivan and to every future president of the Bar
Association of Erie County, my hope that you enjoy a
group of officers and directors as committed to their
responsibilities to our membership as this year’s offi-
TENTH: To Art Russ, the president’s gavel and the
Oval Office (check it out – it really is oval!), my thanks
for your steady hand, wise counsel, and your friendship, along with my confidence that you will be a
tremendous bar president.
ELEVENTH: To Erin Peradotto, not the judge, but
the person, my thanks for reasons I am sure you well
know.
TWELFTH: To the members of the Bar Association
of Erie County, my deepest appreciation for your
encouragement and support throughout the year - and
my challenge to continue to respect who we are and
what we do…and in the face of unwarranted criticism,
to defend our judges, our fellow attorneys, our profession, and our system of justice.
ATTESTATION: It has truly been an honor to serve
as the 104th president of the Bar Association of Erie
County. Thank you all for the privilege.
Letters to the editor and short articles of general interest to our readers are always
welcome. All materials submitted for publication in the Bulletin are subject to editing
for reasons of style, space and content.
Send all submissions as Word documents to obrian@eriebar.org (preferred) or by mail
to: Bulletin Editor, 438 Main Street, Sixth Floor, Buffalo, NY 14202.
•
DEADLINE
•
•
Summer 2011 Bulletin D E A D L I N E
•
•
•
The next deadline for ALL Bulletin contributors and advertisers is
Friday, June 3, 2011.
Call Susan Kohlbacher at Bar Headquarters for more information, 852-8687.
PAGE 3
May 2011 | www.eriebar.org
bench and bar in the news
How to place an announcement:
If you are a BAEC member in good standing
and you’ve moved, been promoted, hired an
associate, taken on a partner, or received an
award, we’d like to hear from you. Talks,
speeches (unless they are of national stature),
CLE presentations and political announcements are not accepted. In addition, we will
not print notices of honors determined by
other publications (e.g., Super Lawyers, Best
Lawyers, etc.). Notices must be submitted in
writing and limited to 100 words. They are
printed at no cost to members and are subject
to editing. E-mail your notice and high resolution photo (300 dpi) to obrian@eriebar.org.
Former BAEC president Richard
N. Blewett, an attorney at Cohen &
Lombardo who has a general practice with a focus on litigation and
municipal law, recently acted as a
judge for the American Mock Trial
Association’s Great Lakes Regional
Blewett
Tournament at Buffalo State College
(AMTA). The AMTA sponsors undergraduate mock trial tournaments around the country.
Twenty-eight teams of eight to 10 students participated; each trial had two to three judges ruling on objections and evidentiary procedure. The judges also scored
and rated the performance of the student attorneys
and witnesses. Blewett is a former recipient of the
BAEC’s Lawyer of the Year Award and also of the
LaSalle Medal awarded by Canisius College. During
WWII, Blewett was awarded the Combat Infantry
Badge and the Purple Heart for military service in the
Colmar Pocket in France.
Domagalski
James P. Domagalski, managing
director of the Buffalo office of
Hiscock & Barclay, has been named
chair of the firm’s construction &
surety practice area. Buffalo marketing partner Roger F. Cominsky has
been named chair of the firm’s
financial institutions & lending practice area. Both partners will oversee
attorneys in their respective practice
areas in all eight of the firm’s offices.
Domagalski is a trial lawyer with
experience in both federal and state
courts, and before administrative
agencies. He focuses his practice on construction law,
labor and employment law, discrimination defense and
general business and municipal litigation. Cominsky is
experienced in transactional business law, including
mergers & acquisitions; banking law and regulation;
commercial and municipal real estate financing and
development, syndication and leasing; and related
areas.
Ashley R. Westbrook has joined
the Buffalo headquarters of Hurwitz
& Fine, P.C. as an associate on the
firm’s litigation team, where she will
focus on mass tort/environmental
law and automobile liability. A former law clerk for U.S. Magistrate
Judge Marian Payson in the Western
Westbrook
District of New York, Westbrook previously served as a legal intern and volunteer for
organizations that provide legal aid to the poor and
underserved, including a Latino community organization and a refugee shelter. She earned her JD in
International Law at the University at Buffalo School
of Law, where she was student co-director of the
Buffalo Human Rights Center and an editor of the
Buffalo Human Rights Law Review. Westbrook holds a
BA from Hamilton College and also studied at La
Universidad de Buenos Aires in Argentina. Fluent in
both Spanish and Japanese, she also served as a counselor to adjudicated youth.
Klein
Lawrence
Trachtenberg
Mark S. Klein and Joshua K. Lawrence of
Hodgson Russ, along with Jack Trachtenberg, New
York State’s Taxpayer Rights Advocate and a former
Hodgson Russ attorney, have authored New York Sales
and Use Tax Answer Book, recently published by CCH.
The guidebook, written primarily for tax practitioners,
is a comprehensive resource that covers the full range
of statutes, regulations, and legal rulings that govern
New York State’s sales and use tax. It also includes
examples and practice tips that illustrate real-world
applications of the rules. Klein, Lawrence and
Trachtenberg wrote the Answer Book with Hodgson
Russ attorneys Timothy P. Noonan and Joseph N.
Endres as contributing authors. The guide will be
published on an ongoing basis by CCH and updated
annually. For further information, visit www.cchgroup.com.
continued on page 32
Pictured left to right, are BAEC president Scott M.
Schwartz, Kathleen M. Sweet, Michael C. Burwick, Kevin
W. Spitler, Peter F. Brady and Erie County Bar Foundation
President William Ilecki. Photo by Susan L. Kohlbacher
March Madness Wrap-up
By Kevin W. Spitler
Our first March Madness is in the books and the
committee is very pleased with the results. As can be
seen from the accompanying photo, Bracket guru Mike
Burwick (and we thought all he knew was real estate
law), by correctly picking 38 out of the first 48 games,
was able to present to Bill Ilecki, the president of the
Bar Foundation, a check for $1,000.The response of all
who participated was greatly appreciated.
Some ideas for next year that we hope will help
increase the number of participants and the attendance
at Bar headquarters to watch the games include:
• Putting up a plaque in the Bar office named the
“Vince Moore 16 for 16 Club” - the honoree
would be anyone who correctly picks all 16 winners on one side of the bracket as Vince Moore did
this year.
• The Top Jurist recognition plaque given to the
judge who has the top score for the first 48 games
- if we had instituted the award this year, the
Hon. Gerald J. Whalen would have been the
proud recipient.
As to attendance, it is my estimate that during the
two-day viewing period we had between 100 and
100,000 people pass through to eat, drink and watch.
This is my estimate based upon my own observations
and does not purport to be absolutely accurate. Maybe
hiring the same accounting firm who makes sure that
continued on page 6
Cultivating
Lawyer
Excellence
Cominsky
It’s what the Erie Institute
of Law does best. You won’t
find local CLE programs as
The Company of
compelling, convenient
and cost-effective
anywhere else.
The Erie County Bar Foundation exists
to provide a helping hand to lawyers in need.
The need may be based on medical problems,
job loss, emotional difficulties, family crises or
many other situations. No person or problem
is categorically excluded.
If you need assistance – or know a friend or
colleague who does – please call Kelly
Bainbridge at 628-4892. All services are
individualized and completely confidential.
It’s great to belong
to something this good.
PAGE 4
www.eriebar.org | May 2011
Eagan to Receive 2011 Lawyer of the Year Award
continued from page 1
In addition to her activities with LSED, Eagan serves
on the board of the Community Foundation of Greater
Buffalo, whose CEO cites her “tireless efforts in the
community above and beyond her professional responsibilities.” She recently co-founded a new not-for-profit entity, Canopy of Neighbors, Inc., the mission of
which is helping the elderly to continue living in their
homes rather than nursing facilities.
Eagan has also served on the UB Law Alumni
Association board, and as past president of the WNY
Chapter of the Women’s Bar Association of the State of
New York, as well as its statewide president. An active
longtime member of the BAEC, Eagan “freely gives her
time lecturing on the most complex areas of estate
practice and elder law and is recognized by her peers
as having attained the highest degree of competency in
her field.”
Dillon, Stevens, Scott to be Honored
The recipient of the 2011 Outstanding Jurist Award
is New York State Supreme Court Justice Hon. Kevin
M. Dillon. This award is given only when the BAEC
board of directors believes there is a jurist whose devotion to the judicial system warrants singular recognition. According to the Awards Committee report, “the
candidate should create the award rather than the
award creating the candidate” and “few judges in the
history of our Bar Association merit this award more
than Justice Kevin M. Dillon.”
Dillon began his legal career in the Erie County
District Attorney’s Office. He then maintained a private
practice for approximately 10 years, “trying a wide
variety of difficult and significant cases.” Dillon was
subsequently elected Erie County District Attorney,
where he served for eight years, creating such programs as the Domestic Violence Unit, the White Collar
Crime Unit, the Homicide Unit and the Community
Prosecution Program. He was first elected to the
Supreme Court in 1997 and has since served as a civil
trial justice. Dillon has also served as an adjunct professor at the University at Buffalo Law School for the
past two decades “successfully molding future
lawyers.” He was chosen by the senior class of 1996 to
be its faculty commencement speaker and he was
recently honored by the Buffalo Law Review for his
contributions to the Law School.
“Numerous letters from judges and attorneys urged
us to award Justice Dillon the Outstanding Jurist
Award,” according to President Schwartz. “He was
routinely described by judges and attorneys as an
extremely intelligent jurist upon whom other justices
rely for counsel and assistance.”
Dillon was further praised for his “dedication to the
ideal of justice; his courtesy towards lawyers and litigants; his quiet and effective manner in dealing with
issues affecting members of the bar who need assistance; his inspiration to the countless law students he
teaches; and his grace in confronting his recent physical afflictions.” One justice described him as “a joy to
work with because of his special combination of wit
and humanity and his ability to analyze complex situations and issues.”
Justice Dillon has followed in the footsteps of his late
father, Hon. Michael F. Dillon, former Presiding Justice
of the Appellate Division, Fourth Department and
District Attorney of Erie County. “The son, in exceptional fashion, has managed to fully fill the shadow cast
by his respected and admired father,” according to the
Awards Committee report.
Stevens to Receive Award of Merit
Posthumously
The Award of Merit is intended to recognize the
recipient’s conduct in the face of extraordinary circumstances. “Throughout his life, E.W. Dann Stevens
faced many extraordinary circumstances and consistently dealt with each in an extraordinary fashion,”
according to the Awards Committee.
Born in Buffalo in 1926, Stevens graduated from
Harvard University and, following a stint in the Navy,
received his law degree from Cornell University. A
“highly successful estates and trust lawyer,” Stevens
was a founding member of the firm of Williams,
Stevens, McCarville & Frizzell, P.C. He devoted a great
deal of time to the western New York community; of
particular note was his role as a founding director of
the Food Bank of Western New York and later as its
board chair. Stevens’ work with key executives within
the food industry contributed greatly to the Food
Bank’s success, according to a nomination letter. He
also served as chairman emeritus of the Josephine
Goodyear Foundation and as chair of the board of
trustees for Good Will Industries of Western New York.
He remained active as an emeritus trustee until his
death in April, 2010. In September, Good Will
Industries rededicated its shelter workshop in Steven’s
memory. He was also involved at Nichols School as a
board member for 21 years and as board president for
five years. His “extraordinary accomplishments and
involvement in community activities, although too long
to list, reflect his enormous generosity of heart for (our)
community, regardless of status or position in life.
Despite the demands of his law firm and his many
philanthropic activities, Stevens “always put family
first.” The father of two daughters and two sons, he
was the widower of Mary Reed Stevens and is survived
by his wife Elizabeth King Stevens. According to his
colleague and good friend Hon. Gerald J. Whalen,
“Dann was the gold standard for lawyers dedicated to
not only their family and clients, but also their community. He spent his life in service to others and for
that our community is a better place to live.”
Civility Award Honors Memory of Charles
H. Dougherty
This year’s Charles H. Dougherty Civility Award will
be presented to Hon. Hugh B. Scott, United States
Magistrate Judge for the Western District of New York.
This award recognizes that “civility among attorneys,
judges, clients and witnesses is the cornerstone of the
proper administration of justice.”
Since its inception following the death of former
BAEC president Charles H. Dougherty in 2005, this
award has been presented to members of the legal profession who have consistently exhibited the highest
degree of courtesy, civility and professionalism on a
daily basis. “As a jurist, Judge Scott has unfailingly
manifested these criteria and more in the day-to-day
conduct of his court,” according to the Awards
Committee.
Scott began his legal career as an assistant corporation counsel for the City of Buffalo Law Department.
Thereafter, he became an assistant county attorney for
Erie County. He then advanced to the U.S. Attorney’s
Office, becoming the first African-American lawyer to
so serve in the Western District of New York. Scott later
joined the New York Attorney General’s Buffalo office
as the deputy assistant attorney general in charge of
claims and litigation. He went on to become the assistant attorney general in charge of the Buffalo regional
office of the New York State Department of Law, prior
to beginning his judicial career when he was elected to
Buffalo City Court in 1984. The following year, he
became the first African-American appointed to the
federal bench in the Western District of New York.
“As impressive as Judge Scott’s legal career is, what
is more impressive is his thoughtful demeanor and
civility,” according to a nomination letter. “He consistently treats litigants and their counsel with kindness
and respect.” Another submission opined that in all his
years as a judge, he “has never forgotten what it is to
represent a client, argue a weak legal position or have
an unforeseen scheduling problem which can make you
late for court.”
“While the temperature of his courtroom may get
turned up when the stakes are high and the litigation
fierce, Scott’s civility remains a constant that often has
the effect of cooling everyone down and allowing the
matter at hand to proceed as it should,” according to
the Awards Committee.
criteria, the Awards Committee decided to forego presentation of the award this year.
Congratulations and thanks to each of the 2011
award winners for their dedicated service to our members and our community!
Meet the Candidates
Candidates who are running for Bar office will be
introduced to the membership at the dinner. (See the
special election insert in this issue for detailed information on the candidates.) The annual election will be
held on Friday, June 10 at Bar Headquarters, 438
Main Street, Sixth Floor. Members have the option of
voting either in person, online at www.eriebar.org, or
by proxy. Members whose dues are not current are not
permitted to vote. Proxy ballots, which will be mailed
to all members, must be returned no later than
Thursday, June 9 by 5:00 pm in order to be counted.
The Association will also recognize its 25 and 50-year
members at the dinner. (See page 33 for a complete
listing of our gold and silver honorees.) Watch your
mail for further details and plan now to attend this
important collegial evening on June 8 at the Hyatt!
Special Thanks to Our
2011 Annual Dinner
Sponsors!
Gold
Avalon Document Services
Counsel Press, LLC
Jack W. Hunt & Associates, Inc.
M & T Bank
Settlement Professionals, Inc.
Verizon Wireless
Silver
Apex Engineering
LegalMed
Merrill Lynch – The Briggs Group
Bronze
Plaintiff Wealth Strategies
Smart Litigator NY
Law Firm Sponsors
Anspach Meeks Ellenberger, LLP
Brown Chiari LLP
Colucci & Gallaher, P.C.
Greco Trapp, PLLC
Hagelin Kent LLC
Harter Secrest & Emery LLP
Hodgson Russ LLP
HoganWillig
Hurwitz & Fine, P.C.
Lipsitz Green Scime Cambria LLP
Special Service Award
The Special Service Award was created to recognize
an individual’s contribution to the profession which is
the result of unique and compelling circumstances.
Because none of the nominations received met those
Nixon Peabody LLP
May 2011 | www.eriebar.org
PAGE 5
PAGE 6
www.eriebar.org | May 2011
Secrets of Successful Mediators to be Revealed on June 9
Can You Hear Me Now???
continued from page 1
Participants will receive 3.5 CLE credits for attending.
Cost for members is $70, $105 for non-members and
$30 for paralegals. As always, law students are welcome to attend without charge but are required to purchase handout materials if they choose to use them.
There will be a social hour following the program at
4:30 pm
Noted local attorneys who will participate in the
seminar include: Steven R. Sugarman of Pusatier,
Sherman, Abbott & Sugarman, who chairs the BAEC’s
ADR Committee; Vincent E. Doyle III, of Connors &
Villardo, who is vice president-president elect of the
New York State Bar Association; Edward J.
Schwendler III, of the Law Office of Eugene C.
Tenney; former BAEC president Donald B. Eppers of
Brown & Kelly, LLC; Andrea L. Sammarco of The
Sammarco Law Firm; Matthew J. Beck of Duke,
Holzman,
Photiadis
&
Gresens
LLP;
Douglas S. Coppola of Law Offices of Douglas
Coppola; Krista Gottlieb of Mattar, D’Agostino &
Gottlieb, LLP; former BAEC president Richard F.
Griffin of Kavinoky Cook LLP; W. Craig James of the
Law Office of W. Craig James; and E. Michael
Semple of the Law Office of E. Michael Semple.
More about Edna Sussman
Guest speaker Edna Sussman is a full time arbitrator
and mediator and principal of Sussman ADR LLC. She
was formerly of counsel at Hoguet Newman Regal &
Kenney LLP and a litigation partner at the law firm of
White & Case LLP. She frequently serves as an arbitra-
March Madness Wrap-up
the nightly drawings for the lottery are on the up-andup would assist in getting a more accurate count. I’m
going to raise the issue with Brian Welsh, Dean of the
CLE Committee, to see if we can get 10 hours of CLE
credit for watching the games. My thought is that it
would fall under the ethics requirements. Between
games, we could have spirited discussions about the
ethical implications of non-paid student athletes mak-
tor and mediator on complex commercial, energy and
environmental matters, both domestic and international, and is a member of the panel of several of the leading dispute resolution institutions including the
American Arbitration Association (AAA), International
Centre for Dispute Resolution (ICDR), AAA/ICDR
Energy Arbitrators list, ICC Arbitrator database,
International Institute for Conflict Prevention and
Resolution (CPR), Hong Kong International Arbitration
Centre ( HKIAC) Singapore International Arbitration
Centre (SIAC), Chinese European Arbitration Centre
(CEAC), World Intellectual Property Organization
(WIPO), U.S. Institute for Environmental Conflict
Resolution, and FINRA (formerly NASD and NYSE).
As a court certified mediator, Sussman serves on the
mediation panels of the federal, state and bankruptcy
courts in New York. She is certified as a mediator by
the International Mediation Institute. Sussman also
serves as co-editor-in-chief of the New York Dispute
Resolution Lawyer and co-chairs the Arbitration
Committees of the ABA’s Section of International Law
and Section of Dispute Resolution. She serves on the
board of the American Arbitration Association and the
College of Commercial Arbitrators. A graduate of
Barnard College and Columbia Law School, Sussman
received the U.S. Environmental Protection Agency
Environmental Quality Award in 2008. She has lectured and published widely on mediation, arbitration,
energy and environmental issues. Additional information is available at www.SussmanADR.com.
[B]
continued from page 3
ing obscene amounts of money for their coaches,
schools and the NCAA. If we had CLE credits this year,
Scott Schwartz, Peter Brady and I would all have
earned at least eight hours.
Thanks again for all your support. Special thanks to
Scott Schwartz for coming up with this idea and to
Kathleen Sweet and Peter Brady for working on the
committee.
[B]
Don’t let your BAEC e-mails and newsletters inadvertently fall into your “spam”
folder.
Several members have advised us that they are not
receiving our e-newsletter, Bar Notes, and other timely
e-mails sent out to advise you of upcoming CLE programs, new member benefits and other information
about BAEC programs and activities. This is generally
due to the safety settings on your computer that may
be preventing any mass e-mails from getting through
your spam filters.
The e-mails being blocked or defined as “spam”
come from Constant Contact and eriebar.org; therefore, members need to adjust their computer settings to
accept e-mails directly from both of these sources.
Also, if your e-mail address has changed recently,
please contact our office at 852-8687 so that we can
make sure our database is up to date when sending out
these materials.
[B]
MacLitigation on Trial
Lawyers’ Agenda
The Defense Trial Lawyers of Western New York
(DTLA-WNY) have scheduled a noontime lecture program entitled “MacLitigation: How To Use Your iPad
at Trial.” The program will be held in the BAEC’s
Adelbert Moot CLE Center, 438 Main Street (corner of
Main and Court Streets), Sixth floor, on Friday, May
20 from 12:00 noon until 1:00 p.m.
The guest speaker will be application developer
Scott Falbo of Front9 Technologies. Topics of discussion
will include iPad capabilities, how they apply to attorneys, and specific applications that can be useful to
attorneys.
Lunch will be provided through the sponsorship
of mediator and arbitrator Douglas S. Coppola. The
event is free to members of the DTLA-WNY. Nonmembers can attend for a $20 fee. To reserve your
place, please e-mail Michelle Parker at
mparker@anspachlaw.com. You may also e-mail her
for further information about membership in the
organization.
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.
May 2011 | www.eriebar.org
PAGE 7
Special Message from
the President
By Scott M. Schwartz
Court System Budget Cuts
In view of the last-minute $77 million hit taken by the court system in
the April 1, 2011 state budget, I
asked to meet with Administrative
Judge Feroleto concerning the immediate and anticipated cuts in our District. Very graciously, Judge Feroleto met with Art Russ and me
within hours.
As many of you know by now, all JHOs have been
budgeted out, including Judge Lane who was handling
the asbestos calendar. In addition, there will be no
more acting City Court judges from other courts. We
have been advised that the asbestos calendar and trial
dates which are already set will be honored. All overtime has been eliminated;
therefore,
trials going forward
should end proof by
“There has been no
4:30 p.m. and jury
determination made
deliberations will not
extend past 4:30,
so far on the survival
except in special situations granted by the
of ADR, but I believe
administrative judge,
Judge Feroleto will
through Albany.
do everything she
Attorneys will be
encouraged to have
can to preserve it.”
out-of-town
witnesses on the stand in
the early mornings
and judges will be
under pressure to limit the time permitted for testimony. Law Library hours have been shortened and
now run from 9:00 a.m. to 4:30 p.m. Evening Small
Claims Court sessions have also been eliminated, as
with all the shortened closing times, to reduce overtime
costs.
Notwithstanding the unfilled 67 vacancies created by
last year's early retirements, Judge Feroleto must cut
additional positions to meet this unprecedented funding deficiency. Understandably, Family Court and
criminal matters are given priority. We have impressed
upon Judge Feroleto what she already knows, i.e. that
the civil ADR program is vital and saves court time and
money. There has been no determination made so far
on the survival of ADR, but I believe Judge Feroleto will
do everything she can to preserve it.
The specialty courts - Drug, Veterans, and IDV should survive intact. It was clear to us that Judge
Feroleto is pained but well-intentioned while having to
make these critical decisions concerning our judicial
system and the personnel who make it work.
Nevertheless, the ultimate approval or disapproval of
her proposals lies with Judge Pfau and the Office of
Court Administration. All further cuts and layoffs are
expected to be completed by the end of May.
We have asked Judge Feroleto to keep us abreast of
the changes going forward, and we ask you to bring
your concerns to our attention so that we may pass
them along.
Judicial Evaluations
Our Association bylaws provide that sitting judges be
evaluated by our members every five years. This year,
600 members completed the evaluation survey for
Supreme Court judges. The results have been tabulated on the listed criteria of legal ability, demeanor,
and court management with a satisfaction rating on
each of them, with an overall percentage rating then
determined. An overall satisfactory rating percentage of
80 percent or more was considered a satisfactory
result; 70-79 percent considered in need of improve-
ment; and less than 70 percent considered unsatisfactory.
letter will be stated in such a way that the source of the
comments cannot be identified.
The overall rating result, and the result in each category, will be provided to each judge by letter. In addition, if member comments demonstrate a recurring
theme, positive or negative, such will also be included
in the results letter to the individual judge. I will invite
any judge who wishes to do so, to meet personally with
me to discuss the results in detail. The results of each
judicial evaluation will be disclosed only to that judge.
Not to any member, not to any other judge, not to the
Administrative Judge. Any comments provided in the
It is our hope that the judges welcome this evaluation
to either confirm that they are doing a great job, to
learn about areas that may need improvement, or to
learn of significant dissatisfaction by the practicing bar.
Thank you to the membership for your time in completing the survey, and we hope the judiciary will look
at this not in an adversarial way, but as informative
and educational.
As always, your comments, questions and concerns
are invited.
PAGE 8
www.eriebar.org | May 2011
2011 PRESIDENT’S BALL
The Mansion on Delaware was the setting for the BAEC’s annual gala in honor of President Scott M. Schwartz and
the Association’s past presidents. More than 200 members of the bench and bar and their guests turned out to dine,
dance and enjoy the evening.
To view more photos from the event visit the Bar Association’s Facebook page.
President Scott M. and Sharon Schwartz
Seated from left to right, are former presidents Paul Michael Hassett, Executive Director Katherine S. Bifaro, President Scott
M. Schwartz, Vice President Arthur M. Russ, Jr., and former presidents Harold J. Brand, Jr. and Stephen E. Cavanaugh.
Standing are former presidents Garry M. Graber, Cheryl Smith Fisher, Bernard B. Freedman, David R. Pfalzgraf, Joseph V.
McCarthy, Hon. Jeremiah J. McCarthy, Timothy M. O’Mara and Stephen R. Lamantia.
Hon. William M. Skretny, Joseph C. Vispi and president
Scott M. Schwartz
Seated from left to right are Bar Association staff members Sharlene A. Hall, Bonnie D. O’Brian and Executive Director
Katherine S. Bifaro. Standing left to right are Maureen P. Gorski, Donna F. Dalka, Susan L. Kohlbacher, Mary A. Kohlbacher,
Dana D. Banks and Marie A. Boccio. Not pictured are Leslie Housh, Heidi J. Mahon and Marcia M. McKowan.
Danielle and James M. VanDette
Former president Stephen E. Cavanaugh, at left, and Hon. Gerald Whalen, at right, are pictured with their wives Millie and Nora.
PAGE 9
May 2011 | www.eriebar.org
Minority Bar Association President Joseph M. Hanna, John V. Elmore and
immediate past president of the Minority Bar Association, Sheldon K. Smith.
Michael Di Vincenzo and Pietra G. Lettieri
Amanda C. Schieber and Anthony Michael
Rossi
Special thanks to the following sponsors
for their generous support of this event:
Hon. E. Jeannette Ogden and Joseph C. Vispi
Gold Sponsors
Avalon Document Services
Counsel Press, LLC
Jack W. Hunt & Associates, Inc.
M & T Bank
Settlement Professionals, Inc.
Verizon Wireless
Silver Sponsors
LegalMed
Merrill Lynch ~ The Briggs Group
Patrick Garrity and Amy P. Herstek
Law Firm Sponsors
Anspach Meeks Ellenberger, LLP
Brown Chiari LLP
Colucci & Gallaher, P.C.
Gibson, McAskill & Crosby, LLP
Greco Trapp, PLLC
Hagelin Kent LLC
HoganWillig
Lipsitz Green Scime Cambria LLP
Nixon Peabody LLP
The Ballow Law Firm, P.C.
Sharon and former BAEC President Garry M. Graber are pictured at left with
Mark and Joyce Warren
Elizabeth Holmes and Vanessa C. Schmidt
PAGE 10
www.eriebar.org | May 2011
The Value of Doing
Pro Bono Work
western district case notes
By Kimberly A. Georger
By Paul K. Stecker and Kevin M. Hogan
CLASS ACTIONS
In Jim Ball Pontiac-Buick-GMC, Inc. v. DHL
Express (USA), Inc. (08-CV-761C, 2/28/11), the court
denied plaintiff’s motion to certify a class action on
behalf of DHL customers who paid an allegedly
improper “jet fuel surcharge” for packages carried by
ground transportation. Among other holdings, the
court held that the typicality requirement was not met
because plaintiff was a customer of a “DHL Reseller,”
rather than a direct customer of DHL, and that the
predominance requirement was not met because of the
different contractual arrangements and courses of
dealing between DHL and members of the putative
class and the need to apply different standards for
admissibility of extrinsic evidence in deciding claims of
customers in different states.
DISCOVERY
In Star Direct Telecom, Inc. v. Global Crossing
Bandwidth, Inc. (05-CV-6734T(P), 3/21/11), the parties asserted claims and counterclaims arising from
defendant’s termination of plaintiff’s overseas telecommunications services. When defendant relied on an email not previously produced to plaintiffs to support its
motion for summary judgment, one of the plaintiffs
discovered that defendant had not produced internal emails during discovery and moved to compel their production. The magistrate judge granted the motion to
compel, finding that the e-mails were both relevant
and responsive to previous document requests. Among
other holdings, the judge held that the duty to supplement under Rule 26(e), Fed. R. Civ. P. continues even
after the discovery period has closed and rejected
defendant’s argument that producing the internal emails would be unduly burdensome because defendant
had neither raised this objection when it responded to
plaintiffs’ discovery request nor identified its e-mail
archives as a source of potentially responsive informa-
tion that it was not searching pursuant to Rule
26(b)(2).
In Robbins & Myers, Inc. v. J.M. Huber Corporation
(01-CV-201S(F), 3/21/11), the magistrate judge
granted defendants’ motion to compel production of
documents and information pertaining to communications between plaintiff and its customers that occurred
nine years after the lawsuit was commenced and shortly before the close of discovery. The judge held that
Rule 26(e)(1)(A), Fed. R. Civ. P. does not require a
party that previously sought discovery to serve a new
request for supplementation and that plaintiff was subject to sanctions for failing to supplement its prior discovery responses within 30 days of creating the new
documents. The judge also held that the information
was not protected from disclosure by the
attorney/client privilege because the subject matter of
the communications was not intended to be kept confidential, but rather was intended to be disseminated to
plaintiff’s customers; because the documents related to
business rather than legal advice; because a number of
the documents had been circulated to employees who
were not policymakers and did not have a “need to
know”; because the subject matter of many of the documents had been voluntarily disclosed by plaintiff during a deposition in the lawsuit; and because plaintiff
had not served a privilege log in a timely manner following the documents’ creation.
INDEMNIFICATION
In Bloom v. ProMaxima Mfg. Co. (05-CV-6735-CJS,
1/4/11), plaintiffs sued the seller and manufacturer of
a piece of exercise equipment on which the plaintiff was
injured. During trial, plaintiffs reached a settlement
with the seller of the equipment, following which the
jury returned a verdict in favor of the manufacturer.
The seller then moved to discontinue its cross-claim
continued on page 28
I met a man a few months ago who
already has influenced the way I
think about my career as an attorney.
He is not a judge or a lawyer. He is
an out-of-work teacher, and he was
my first pro bono client.
I met Mark through the Volunteer Lawyers Project. I
and two other young attorneys from my firm agreed to
take two pro bono unemployment insurance cases each
in exchange for attending an unemployment insurance
training seminar. A few months later, VLP assigned
Mark’s case to me.
Mark had been teaching at a local school since the
summer of 2002. He had not yet received his master’s
degree, but he was able to teach because he had a provisional teaching certificate which did not expire until
August of 2008.
Mark started the coursework for his master’s degree
in 1999, but he had to take a leave of absence in 2001
to have surgery. He had a disability that was negatively
affecting his school work and his grades were poor for
that semester. When he returned from his leave of
absence, his student teaching requirement was the only
thing standing between him and that master’s degree.
But Mark experienced some bad luck and fell on
hard times. Financial difficulties prevented him from
re-enrolling in college and completing his student
teaching. By this time, Mark was working as a teacher,
and he was using his pay to climb out of the financial
hole that he had fallen into. He had debts to pay to
various creditors and to the college he was attending,
and the college would not let him re-enroll until he
paid his balance. For six years, Mark struggled to catch
up, suffering other setbacks along the way. However,
he was able to obtain a two-year extension from the
State Department of Education to acquire a permanent teaching certificate.
continued on page 28
PAGE 11
May 2011 | www.eriebar.org
Security Administration.
If you’re poor, you may be like one of those women
who need to pursue your children’s father for child
support or alimony but you don’t have anyone to help
you take the necessary steps.
in the public service
By William J. Hawkes, Exectutive Director
Neighborhood Legal Services, Inc.
Law Day and Poverty Law
Law Day is a day to reflect on the nature of our legal
system and to recognize its longstanding contributions
to the orderly functioning of our democratic society.
One only needs to reflect on the revolutions in oppressive Middle East and African regimes over the last several months to appreciate the impact that wholesale
denial of justice and economic opportunity causes in
communities around the world. The “Arab Spring” has
demonstrated that access to justice and economic
opportunity are two of the key foundation blocks to a
free and civil society.
For most Americans, it is an article of faith that you
will not be denied access to the justice system, unless,
of course, you happen to be one of the 43.6 million
Americans who live at or below the official U.S. poverty guidelines (U.S. Census Bureau data for 2009). If
you are one of the 14.3 percent of the U.S. population
who falls into that socio-economic category, your perspective on access to the civil justice system is bound to
be different, and for good reason.
Access to Justice Not Guaranteed for Poor
If you’re poor, you may be like the mother of two
children cut off public assistance because a traffic jam
caused her bus to arrive five minutes late for her workfare job where she polishes brass railings in a county
building. Unable to find a job, she’d been earning her
public assistance grant by working the number of
hours each month required when you divide her grant
by the NYS minimum wage, even though her youngest
daughter was still only nine months old. So when the
workfare supervisor advised her that she would be
“reported” for a work program violation (being five
minutes late for her assignment), she knew it also
meant that she would soon be facing an inability to
feed her children and that the likelihood of an eviction
proceeding was just weeks away. That’s because her
lateness presented a perfect opportunity for the
Department of Social Services to save the taxpayer
money by terminating her public assistance grant and
forcing her to go back through the protracted benefit
application process.
If you’re poor, you may be like the homeless family
whose children have been sheltered because your landlord made your home uninhabitable by refusing to fix
the sewage problem in the basement and left you susceptible to a property condemnation order which suddenly forced you from your home.
If You’re Poor, You Can Choose Between
the Rock and the Hard Place
If you’re poor, you may be like one of the hundreds
of families who are forced to flee domestic violence in
order to escape the escalating brutality of the abuser
who has now turned his venomous behavior towards
your teenage children. You escape to a domestic violence shelter and immediately need assistance getting a
divorce, an order of protection, child custody, child
support, health insurance, income and a secure permanent residence.
If you’re poor, you may be an institutionalized disabled adult whose treatment in a state facility has lead
to unexplained injuries and illnesses related to improper administration of prescribed medications by facility
staff.
If you’re poor, you may be like the retired, lowincome grandparent who seeks assistance to keep her
grandchildren out of foster care by assuming legal custody, but needs assistance with filing for guardianship,
health insurance and public benefits for the children.
If you’re poor, you may be like the mother trying to
establish a permanency plan for your children because
your terminal illness means that you have to plan for
who will raise them when your cancer takes your life
six months from now.
If you’re poor, you may be like one of those
standing in line to get into a free dining center because your minimum wage earnings
force you to choose between heating your
home and having food for your kids after
your food stamp application was illegally
denied.
If you’re poor, you may be like one of those
people with a learning disability, a mental
impairment or a developmental disability
whose life’s course brings repeated periods of
homelessness because you can’t read the
notices you receive from the housing authority, the welfare department or the Social
If you’re poor, you may be one of those families who
were victimized more than once by a voracious lender
who sold you a predatory, sub-prime mortgage that is
forcing you to lose your home to an illegal foreclosure.
It’s critical to recognize that these 42 million people,
now one in every seven
Americans, are only
those whose incomes are
“If you’re poor, you may
at or below the poverty
be like the mother trying
level. There are many
millions more who are
to establish a permanency
within 200 percent of
plan for your children
the poverty level who
because your terminal
are just as unable to gain
meaningful access to the
illness means that you
civil justice system for
have to plan for who will
the most essential needs,
raise them when your
without the benefit of a
free
legal
services
cancer takes your life
lawyer, or a pro bono
six months from now...”
volunteer to assist them.
continued on page 12
PAGE 12
www.eriebar.org | May 2011
In the Public Service
continued from page 11
This group of Americans has their perspective on
access to justice dimmed by the painful reality that historically, more than 80 percent of them have been
turned away in their time of legal need because society
has never provided sufficient funds to make a free legal
services lawyer or advocate available to all who qualify. This burgeoning group will be increasingly isolated,
and their family’s interests increasingly harmed, as the
recent New York State budget cuts for civil legal services and other human services are implemented.
Take Time to Applaud Civil Legal Service
Providers
So, on Law Day 2011, let’s celebrate all of the pro
bono efforts of the attorneys in our communities who
give of their time and resources to do their part to provide access to civil justice to the poor. Let’s encourage
new lawyers to make a lifelong commitment to pro
bono. Let’s encourage lawyers and firms of all sizes to
generously support the legal services providers. Let’s
celebrate the dedicated staff of the local civil legal services providers, including those at Neighborhood Legal
Services, Inc., the Western New York Law Center, Legal
Services for the Elderly, the Volunteer Lawyers Project
and the Legal Aid Bureau of Buffalo, who work tirelessly to serve as many people as possible under difficult funding circumstances for relatively low pay.
Finally, let’s also recognize and celebrate the accomplishments of Chief Judge Jonathan Lippman, who is
an unparalleled champion of access to justice for the
poor. Judge Lippman led by example in his successful
efforts to bring a new stream of funding to the
statewide legal services delivery system in 2011. Judge
Lippman’s vision of creating new funding to maintain
access to justice for low-income people should be an
inspiration for all connected to the legal profession on
Law Day. Let’s use Judge Lippman’s example to continue to close the justice gap in New York state.
[B]
cyberlaw: the brave new e-world
By Anne F. Downey
Wikipedia
As a child living in Hawaii in the 1960s, I remember
that people commonly used the Hawaiian phrase
“wiki-wiki” to mean “hurry, fast,” as in the sentence
“Let’s go to the luau wiki-wiki, and remember not to
eat too much poi.” Somehow these phrases seem less
useful in snow-bound Buffalo.
In the world of cyberlaw, the term “wiki” means a
Web site with content that can be edited by others, i.e.,
a collaborative Web site. The first wiki, WikiWikiWeb,
was launched in 1994. Today, there are many wikis
covering a multitude of topics. For example, there is
Conservapedia, a Christian conservative wiki,
LyricWiki, a music lyrics wiki, and Intellipedia, three
secure wikis accessible by members of the U.S. intelligence community.
tics, including when and where it was sold.
Wikipedia was launched in 2001. It is owned by the
Wikimedia Foundation, but the foundation does not
handle daily operations. A self-organized community of
editors and administrators oversees Wikipedia and utilizes sophisticated software and robots that edit the
public’s entries. Editorial disputes are handled by a
three-person arbitration panel.
Daffodils, Alligators, and the Recently
Dissolved Netherland Antilles
Wikipedia topics cover a wide range of issues. For
example, there is a Wikipedia entry on the U.S. Court
of Appeals for the Second Circuit that lists the district
courts under its jurisdiction, the names and biographiThe best known wiki is Wikipedia, a free online encycal information on the Second Circuit judges, and
clopedia at www.Wikipedia.com. I am
detailed information on former Second
a little embarrassed to admit that I
Circuit judges. There is a similar page for
frequently turn to Wikipedia when I
the U.S. District Court for the Western
want to get an answer wiki-wiki on
“ There is no
District of New York. You can also find
various topics. My embarrassment
pages on local politicians such as County
stems from the fact that Wikipedia
consensus among
Executive Chris Collins, local institutions
allows anyone to edit the encyclopesuch as the Albright-Knox Art Gallery,
courts
about
when
dia entries, and therefore false,
sports teams such as the Buffalo Bills,
incomplete or irrelevant information
it
is
appropriate
to
restaurants like the Anchor Bar and Ted’s
may be included. In other words, you
Hot Dogs, and information on daffodils,
have to readWikipedia.com with a
cite Wikipedia, and
alligators, and the recently dissolved
grain of salt. I saw this firsthand a
country known as the Netherland
citations are not
couple of years ago when my daughAntilles.
ter, then a college freshman, told me
handled
in
a
To edit a page, you click on the “edit”
that her boyfriend inserted a silly senbutton
at the top right corner of a page.
tence about her into a Wikipedia
uniform way.”
If you click on this button on a page
entry. I guess this is the 21st century
related to a living individual, you will see
equivalent of carving your true love’s
a warning that states “This article must
name on a tree trunk.
adhere to the policy on biographies of
Despite the questionable nature of Wikipedia entries,
living persons. Contentious material about living perI’ll be darned if I can think of another online resource
sons that is unsourced or poorly sourced should not be
that is so helpful. For example, if a client is proposing
inserted and, if present, must be removed immediateto use a certain trademark and, in the back of our
ly, especially if potentially libellious.* If such material is
minds, we think the trademark may have been the
repeatedly inserted, or if there are other concerns about
name of an automobile sold in Europe 20 years ago, a
the biography of a living person, please report the issue
quick check of Wikipedia will yield a wealth of inforto this notice board.”
mation about the automobile, with photos and statisBecause of the dubious nature of Wikipedia entries,
many have raised concerns about whether judges
should cite Wikipedia in their opinions. I commend to
you an excellent law journal article “The Citation of
Wikipedia in Judicial Opinions” by Lee F. Peoples, 12
Yale J.L. & Tech. 1 (Fall 2009-2010). Professor
Peoples, noting that citations to Wikipedia in judicial
opinions first appeared in 2004 and have increased
steadily ever since, states that “Courts have taken judicial notice of Wikipedia content, based their reasoning
on Wikipedia entries, and decided dispositive motions
on the basis of Wikipedia content. Wikipedia is not like
other non-legal factual sources that have been appearing in judicial opinions for many years. The impermanence of Wikipedia content, which can be edited by
anyone at any time, and the dubious quality of the
information found on Wikipedia raises a number of
unique concerns. What happens when a future
researcher, lawyer, or judge wants to retrace a court’s
argument but can’t locate the Wikipedia entry cited in
a judicial opinion? How can a future researcher be certain that the Wikipedia entry she is viewing is the same
one the court looked at when deciding the case?”
Professor Peoples states that there is no consensus
among courts about when it is appropriate to cite
Wikipedia, and citations are not handled in a uniform
way. One of the cases highlighted in Peoples’ article is
Helen of Troy, L.P. v. Zotos Corp, 235 F.R.D. 634 (W.D.
Texas 2006), in which the judge, relying on a Wikipedia
entry, took judicial notice that urea is an acid with a
very low pH. Professor Peoples noted with disfavor that
the court did not indicate the date or time on which the
continued on page 18
PAGE 13
May 2011 | www.eriebar.org
death and taxes
Your Law Office
is Needed!
Did you know that there are bright capable
young adults available to help in your law office
for six weeks this summer? While availing
yourself of the teenaged interns’ skills, you may
consider the long-term impression you can
make on a young student’s life and aspirations.
By Peter J. & Jillian E. Brevorka
Recent Surrogate’s Court Decisions and Other
Estate Planning Matters
While the primary mission of this column is to discuss
Surrogate-related cases and estate taxation, we know
that estate and trust practice commonly intersects with
elder law and guardianship issues. This month’s column will deal primarily with some important developments in Medicaid planning, as well as a guardianship
case.
Matter of Balzarini v. Suffolk County
DSS, 2011 Slip Op 1048 (Ct. App., 2011)
This case is a very significant decision with respect to
the Minimum Monthly Maintenance Needs Allowance
(MMMNA) of a spouse living in the community whose
marital partner is in a nursing home on Medicaid.
John Balzarini went into a nursing home and applied
for Medicaid. His wife, Frances, continued to live in
their jointly owned condominium in Suffolk County.
John had Social Security and pension income of
$2,542.27 per month. Frances had monthly Social
Security and pension income totaling $2,444.77.
A community spouse is entitled to an MMMNA computed under the appropriate Department of Social
Services (DSS) regulations. If the income of the community spouse is less than the MMMNA, then some of
the income of the institutionalized spouse will be given
to the community spouse to get him or her up to the
full MMMNA.
The MMMNA of Frances computed under the regulations was $2,378. Because that was less than Frances’
monthly income of $2,444.77, DSS held she was not
entitled to any of John’s income, and directed that all
of John’s income should be applied to his nursing home
expenses.
But John claimed that Frances had exceptional circumstances that resulted in significant financial distress
and required more than the MMMNA of $2,378.
Frances’ monthly expenses for mortgage payments,
common charges, insurance and real property taxes on
their condo, plus food, clothing, and other living
expenses exceeded $4,800. Therefore, argued John, the
MMMNA should be increased for Frances.
DSS denied the increase in the MMMNA, and a Fair
Hearing affirmed that denial. That Fair Hearing decision was appealed to Supreme Court, and the case was
transferred to the Appellate Division, Second
Department.0
The Appellate Division noted that:
The Medicare Catastrophic Coverage Act
allows for some relief from this strict calculation [of the MMMNA] by providing that
where either spouse “establishes that the
community spouse needs income, above the
level otherwise provided by the minimum
monthly maintenance needs allowance, due
to exceptional circumstances resulting in significant financial distress, there shall be substituted for the minimum monthly maintenance needs allowance . . . an amount adequate to provide such additional income as is
necessary.”
Buffalo, New York is now the third poorest
city in the United States. Unemployment for
adult minority males is more than 50 percent
and for Caucasian males it is higher than 40
percent. Bright and capable young adults lack
job opportunities.
The Appellate Division held that the purpose of the
statute was to make sure that the community spouse
retained necessary, but not excessive, income and
assets. For this reason, the court reversed the Fair
Hearing and directed the increase in the MMMNA to
$4,800.
Specifically, although a student may excel in
a pre-law city high school program, he or she
may never have had the opportunity to observe
what it is like to work in an office setting.
On appeal, the Court of Appeals unanimously
reversed the Appellate Division and reinstated the Fair
Hearing decision. The Court held that while the Act
was intended to eliminate the risk that a community
spouse would be reduced to penury, the “exceptional
circumstances” and “significant financial distress” in
the Act meant “out of the ordinary.” The Court held
that everyday living expenses were not exceptional.
The Court noted that “plainly stated, the spousal
impoverishment provisions are not meant to enable the
community spouse to maintain his or her prior lifestyle
and have the public subsidize it.”
This decision will undoubtedly require a substantial
number of community spouses to downscale their standard of living.
Matter of Donald L.L., 916 N.Y.S.2d 451
(Fourth Department, 2011)
This case shows the extent to which the courts will
uphold a stipulation of settlement made in open court.
Donald and Jessie were married in 1966. In May
2005, Jessie suffered a stroke with severe brain damage. Donald was himself in poor health and could not
care for Jessie. Donald started an Article 81 proceeding
in Supreme Court, seeking appointment of the Catholic
continued on page 28
Imagine giving a young adult an opportunity
that he or she may never otherwise have. The
student can perhaps fill in for court runners,
mail room personnel, operators, copiers or
maybe even work on a special project.
Orientation will be provided by Supreme Court
staff in June to train interns on filing papers,
motions and locations of various judges and
court offices.
Think of the exposure he or she will have to
the operation of a law office, as well as the
operation of the courts themselves. Lawyers
may take for granted the fact that a favorable
experience could elevate a keen interest in the
law to a career as one of our bright future
attorneys.
Please consider hiring an intern who will
come from the pre-law programs at Bennett
and McKinley High Schools. Internships run
from approximately June to August, 2011.
These dates are flexible and can be extended at
the discretion of the law firm.
Your law firm, your expertise and your generosity are needed for this win-win program to
succeed. Please contact Mara Dawdy or John P.
Feroleto, 910 Main Court Building, 438 Main
Street, Buffalo, New York, 14202 at 854-0700
for details.
[B]
PAGE 14
www.eriebar.org | May 2011
SLIP TIPS
Insufficient actual or constructive notice of a slippery
ice condition required dismissal of plaintiff’s suit in
Carpenter v. J. Giardino, __AD3rd__, 3rd Dept.,
2/24/11.
citations
By Jeff Spencer
DUCK LOVER’S LAMENT
He loved his ducks
That was surely true
And upon his property
They swam and flew.
But the zoning rules held
That he was out of luck
There wasn’t enough space
To maintain his ducks.
Town of Clifton Park v. Sarris, __AD3rd__, 3rd
Dept, 2/24/11
LONG-ARM GRABS DEVIOUS DOWNLOADER
Our Court of Appeals has upheld long-arm jurisdiction (CPLR 302(a)(3)) in a suit by a New York publisher against an out-of-state defendant who published
copies of plaintiff’s copyrighted books on its Web site.
(Penguin Group (USA) Inc., v. American Buddha,
__NY3rd__, 3/24/11)
“JUSTIFICATION” ELABORATION
In a thoughtful opinion by Justice Eugene F. Pigott,
Jr., the Court of Appeals gives us a good primer on that
subcategory of the justification defense known as the
“choice-of-evils” defense. (Peo. v. Rodriguez,
__NY3rd__, 3/24/11)
AN “INTENTIONAL” ACCIDENT
An insured’s uninsured motorist coverage could be
invoked even where the uninsured driver intentionally
drove into the insured. (State Farm Mutual Ins. Co. v.
Langan,__NY3rd__, 3/29/11)
FOURTH KILLS FUNERAL FRAUD
CONVICTION
The Fourth Department has overturned the fraud
conviction of a funeral director who received a fee for
body parts from cadavers prior to cremation. (Peo. v.
Grayton, __AD3rd__, 3/25/11, #129)
Participants will receive two CLE credits for
each program and the sessions are free of charge
in exchange for commitment to handle one case
in each of the seminar subject areas. For complete program agendas, visit www.eriebar.org
and click on the Publications/Resources tab. You
will then be able to view or download the April
2011 edition of the Bulletin and full details
appear on page 21.
Tuesday, May 10, 2011
Economic Concerns in Family and
Matrimonial Cases: What Has and Hasn’t
Changed Since Fall 2010
Trainers:
John Aman, Support Magistrate, has been
hearing and deciding child support cases in
since his appointment in 1993.
Brenda M. Freedman is a Court Attorney
Referee serving in Supreme Courts in Niagara
and Erie Counties and in Family Court in Erie
County.
SECOND BEST PASSES TEST
A photocopy of a contract was held to be admissible
evidence where the original was not available. Specific
performance of the contract was granted in this case.
(Clarke v. Rodriguez, __NY3rd__, 3/29/11)
BABY TALK TESTIMONY
In a comprehensive opinion by Justice Eugene F.
Pigott, Jr., the Court of Appeals held that a statement
by a scalded three-year-old to his pediatrician was
“non-testimonial” and admissible at trial. (Peo. v.
Duke, __NY3rd__, 3/29/11)
REAL PROPERTY ROUNDUP
A suit based on persistent harassment by a neighbor
was upheld by our Fourth Department in Zane et al. v.
Corbett and Brigham-Manley, __AD3rd__, 3/25/11,
#182.
Specific performance was ordered in the exercise of a
property lease purchase option. (Tsoalis v. Abott Bros.
II Steak Out, Inc., __AD3rd__, 4th Dept., 3/25/11,
#183)
Reminder: VLP to Host Three Family Law
Training Programs This Month
The Volunteer Lawyers Project (VLP) has
scheduled three family law training programs on
consecutive Tuesdays in May, the 10th, 17th
and 24th . All sessions will run from 12:00 noon
– 2:00 pm at the Main Seneca Building, 237
Main Street, Suite 1000, Buffalo.
RELOCATION EVALUATION
The Appellate Division has upheld the modification
of a Pennsylvania custody order, changing custody and
allowing the mother to move with the child to North
Carolina. (In the Mtr. of Lewis v. Tomeo, __AD3rd__,
3rd Dept., 2/24/11)
Tuesday, May 24, 2011
The Fourth Department has reinstated a suit based
on damages resulting from a sewer backup. (Conti v.
City of Niagara Falls Water Board, __AD3rd__,
3/25/11, #270)
Common Tax Issues in Family Law and
General Practice: Avoiding the “Sorry, I
Don’t Know” Tax Law Situation
A good review of contract and tort issues incident to
a “mold” claim can be found in Gallup v. Sumerset
Homes, LLC.,__AD3rd__, 4th Dept., 3/25/11, #334.
Trainers:
Allegations of drainage damage from a neighboring
parking lot are reviewed by our Fourth Department in
Boardman v. Church of the Transfiguration,
__AD3rd__, 3/25/11, #411.
William Winspear has worked for the law office
of Bluestein and Muhlbauer since 2007 and was
admitted to the New York Bar in 2011. Prior to
joining Bluestein & Muhlbauer, he was employed
by the Internal Revenue Service as a revenue officer from 1991 to 2007.
A staff member from the Buffalo office of the
Taxpayer Advocate Service will also present
information at this seminar. The Taxpayer
Advocate Service (TAS) is an independent organization within the IRS dedicated to helping taxpayers resolve problems with the IRS and recommending changes that to prevent future problems.
An exhaust fan which encroached on a neighbor’s
property line was not protected by defendant’s adverse
possession claim. (Dekdebrun v. Kane, __AD3rd__, 4th
Dept., 3/29/11, #294)
An easement for a right-of-way to a landlocked parcel allowed the parcel owner to install underground
utilities on the easement. (Phillips v. Iadarola et al.,
__AD3rd__, 3rd Dept., 2/24/11) See also Marsh v.
Hogan, __AD3rd__, 3rd Dept., 2/24/11.
continued on page 31
R E G I S T R A T I O N
F O R M
ECBA Volunteer Lawyers Project Family Law Training Series
237 Main St., Suite 1000, Buffalo, NY 14203
Name:____________________________________________Year Admitted to Practice:_______________
Signature:_______________________________________Phone:________________Fax:____________
Law Firm: ________________________________________E-mail:_____________________________
Tuesday, May 17, 2011
Address:_______________________________________City:________________Zip:_______________
Representing Non-Parent Custody
Petitioners in Family Court
I am interested in attending the following programs:
Trainers:
❏ Economic Concerns in Family and Matrimonial Cases and I agree to handle either (please check one)
❏ a pro bono child support case or ❏ a pro bono divorce case.
Tracey Kassman, Family Court Attorney, was
a partner in the firm of Kassman and Kassman
for 12 years, concentrating her practice in
Matrimonial and Family law matters.
❏ Representing Non-Parent Custody Petitioners in Family Court and I agree to handle a pro bono non-parent
custody case.
Brian R. Welsh is a partner at Siegel, Kelleher
& Kahn, LLP, where he has practiced law since
1985 and serves as chair of the firm’s
Matrimonial Law Department.
❏ Common Tax Issues in Family Law and General Practice and I agree to handle either (please check one)
❏ a pro bono divorce case or ❏ a pro bono tax case.
Please detach or photocopy and return to: ECBA Volunteer Lawyers Project, Inc., 237 Main Street, Suite
1000, Buffalo, NY 14203, or fax to 847-0307. Each course in the Family Law Training series is appropriate as
a transitional CLE course. For information about VLP’s hardship policy, please contact Bob Elardo at 8470662, ext. 312.
PAGE 15
May 2011 | www.eriebar.org
Mock Trials Showcase
Future Legal Talent
By William P. Moore, Chair
Young Lawyers Committee
With the 2011 mock trial tournament behind us, I want to first congratulate Sacred Heart for their
success in taking the title. Sacred
Heart was coached by attorney
Michael A. Brady of Hagerty & Brady, along with his
wife and Sacred Heart teacher-coach, Nancy Brady. It
was a close final round between a talented and wellprepared Amherst team. In the end, Judge Henry J.
Nowak ruled in favor of Amherst on the merits of the
case and in favor of Sacred Heart as the winner of the
competition. Special consideration needs to be given to
Joshua Dubs, Leah Nowotarski and Sharlene Hall for
their hard work and dedication in pulling together such
a successful tournament. I would also like to thank
Judge Henry Nowak, the countless judges and attorneys who gave of their time in judging the preliminary
rounds. Their efforts truly made this program a success
for our youth.
Our young lawyers were also busy providing the
newly-admitted attorneys with a program that took
place on March 24 to give them insight into many areas
of practice, what they involve and how to be prepared
for court. It was a great panel headed up by Judge John
Michalski and his Law Clerk Michael McHale. I would
like to thank the panelists for their valuable insight in
this pilot program. Feedback from those in attendance
was very positive. I encourage future young attorneys
seeking direction in their career paths to take advantage of this event, which we plan to bring to the newlyminted attorneys again next spring.
As the year wraps up, I again renew my invitation to
new attorneys to join us. We are planning a year-end
social for all young attorneys to come together and celebrate our successful year. I would like to thank
Elizabeth Midgley, Liz Krangle, Jim VanDette, Ryan
Crawford, Joshua Dubs, Tom Burnham, Brittany
Penberthy and Leah Nowotarski for their hard
work and dedication to this committee this year.
Please keep an eye out for information on our final
social, which is in the planning stages as I write. I look
forward to seeing you all at this event!
Pictured above are this year’s Mock Trial champions from Sacred Heart High School with Hon. Henry J. Nowak.
The Mock Trial team from Amherst High School is pictured above with Hon. Henry J. Nowak.
Photos by Sharlene Hall
Pictured above are panelists from the recent Young
Lawyers seminar entitled “Preparing to Practice."
Pictured in front are Elizabeth Midgley and Shannon
Filbert; standing in back are James VanDette, Joseph
Hanna, Brendan Rich, Michael McHale, Hon. John
Michalski, Renee Falbo, John Gerken, Timothy Ball
and James Appler.
Sign me up at the new reduced cost!
LSED Golf Tournament
Monday, June 20, 2011
Transit Valley Country Club
Sponsorship Opportunities
Exclusive Limited Sponsorships
_____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
____ Ball Sponsor—1 @ $2,500
____ Towel Sponsor—1 @ $2,500
____ Cart Sponsor—1 @ $2,500
____ Dinner Sponsor—1 @ $1,250
____ Cocktail Hour Sponsor—1 @ $1,500
Program Advertising
___ Full Page Ad - $300
___ Half Page Ad - $200
Name: __________________________________________________________________
Company:
______________________________________________________________
Address: ________________________________________________________________
Domestic Violence
is NEVER Okay.
Domestic abuse doesn’t discriminate.
It happens within all age ranges, ethnic
backgrounds, and financial levels. If it
happens once, it will happen again. The
abuse may occur during a relationship,
while a couple is breaking up, or after a
relationship has ended.
Despite what many people believe,
domestic violence is not due to an
abuser’s temporary loss of control over
his or her behavior. In fact, violence is a
deliberate choice made by the abuser in
order to take control of a spouse or partner.
Look What You Made Me Do! In
spite of the abuser’s efforts to “blame the
victim,” domestic violence is NEVER
your fault. If you or a loved one are suffering, help is just a phone call away.
Please call 852-1777 in complete confidence today to be referred to a colleague
who can help.
________________________________________________________________________
Phone: ____________________________________E-mail ________________________
Mail or Fax to: Legal Services for the Elderly
237 Main Street, Suite 1015 | Buffalo, NY 14203
Phone: (716) 853-3087 x213 or 205 • Fax: (716) 856-5317
Don’t Suffer in Silence.
Let Us Help You Find Your Voice.
PAGE 16
www.eriebar.org | May 2011
If You Have a Web Site, You are Advertising!
By Deanne M. Tripi, Chair
Eighth Judicial District Grievance Committee
Attorney advertising is not just television and radio spots. The majority
of attorneys advertise every day without even knowing it. If you have a
Web site, phone book ad, or newspaper ad, you are advertising. Take
time to review Rules of Professional Conduct 7.1 to
avoid any violations of ethical rules. Here is a brief
overview of the most common Rules of Professional
Conduct regarding advertising that are violated:
Rule 7.1: Advertising
(f): Every advertisement other than those appearing
in a radio, television or billboard advertisement, in a
directory, newspaper, magazine or other periodical
(and any Web sites related thereto), or made in person
pursuant to Rule 7.3(a)(1), shall be labeled “Attorney
Advertising” on the first page, or on the home page in
the case of a Web site. If the communication is in the
form of a self-mailing brochure or postcard, the words
“Attorney Advertising: shall appear therein. In the case
of electronic mail, the subject line shall contain the
notation “ATTORNEY ADVERTISING”. (Emphasis
added.)
(h): All advertisements must include the name, principal law office address and telephone number of the
lawyer or law firm whose services are being offered.
(i): Any words or statements required by this Rule to
appear in an advertisement must be clearly legible and
capable of being read by the average person, if written,
and intelligible if spoken aloud. In the case of a Web
site, the required words or statements shall appear on
the home page.
Attorneys frequently violate the following:
Rule 7.4: Identification of Practice and
Specialty
(a) A lawyer or law firm may publically identify one
or more areas of law in which the lawyer or the law
firm practices, or may state that the practice of the
lawyer or law firm is limited to one or more areas of
law, provided that the lawyer or law firm shall not
state that the lawyer or law firm is a specialist or
specializes in a particular field of law, except as
provided in Rule 7.4(c) (emphasis added)
Take the time to review your Web sites, phone book
ads and other forms of advertising to be sure that:
(1) The words “Attorney Advertising” appear; and
(2) You do NOT use the words “Specialist” or
“Specializes” in your ads.
A little prevention and forethought can go a long way
toward avoiding a violation of the Rules.
Welcome
New Members
The Bar Association
of Erie County is pleased
to welcome the
following new members:
Soyoung Ahn
Heather J. Anderson
Corey Auerbach
Craig K. Beideman
Emma L. Buckthal
Shannon K. Buffum
Tomas J. Callocchia
Alana P. Carr
Kim Diana Connolly
Carrie L. Conrad
Nola Cornett
Kelly R. Dunn
Jeffrey T. Fiut
Brendan James Gilbert
Robert P. Goodwin
David M. Gottfried
Christopher J. Heller
Denise A. Herman
Elizabeth Ann Holmes
Nathanael C. Kapperman
Stacy M. Katz
Joseph P. Kubarek
Thomas Joseph Lang
Pamela Sue Lanich
Katherine M. Liebner
Daniel J. Ligman
Michael J. LoCicero
Katherine V. Markel
James M. Marra
Kathleen G. Moriarty
Jeffrey B. Novak
Matthew K. Pelkey
Jenna Piasecki
Ryan Pitman
Joshua Ramos
Kyle C. Reeb
Jeremy L. Richards
Fernando C. Rivera-Maissonet
Anthony Michael Rossi
Nicholas Michael Rossi
Amanda C. Schieber
Vanessa C. Schmidt
Lee M. Sobieski
Yimell Marie Suarez Abreu
Charles van Ee
Rebecca J. Wanat
Cory J. Weber
Ashley R. Westbrook
Anne M. Wheeler
It’s great to belong to something this good.
PAGE 17
May 2011 | www.eriebar.org
tax notes
By Gary Bluestein
IRS Collection Defense: Truth vs. Myths
The increase in tax enforcement, although significant, is being outpaced by the proliferation of tax representation companies that promise to negotiate away
any tax problem for a substantial fee. Unfortunately,
the promises often diverge from reality. The statutory
authority for the IRS to accept a settlement is provided
in 26 U.S.C. §7122. The prescribed procedure is
referred to as an Offer in Compromise. An OIC is one of
the most useful methods to resolve a federal tax debt;
however, contrary to the numerous advertisements and
solicitations with which a troubled taxpayer will be
bombarded, it involves a very objective formula and
often is not a viable option. Therefore, they are often
overused, with unrealistic expectations, to the disappointment of the client. Conversely, another useful tool
– bankruptcy - is underutilized. There is a common
misconception that taxes can never be discharged in
bankruptcy. This article provides an overview of both
OICs and bankruptcy, highlighting their strengths and
limitations in solving a tax problem.
Offer in Compromise
The IRS has the authority to settle a tax liability
through a “doubt as to collectability offer in compromise.” The Service must follow an objective formula to
determine the amount required for the offer to be
acceptable. The formula analyzes what can be collected from a taxpayer and is made up of two parts.
The first part consists of the value of the taxpayer’s
assets. Cash assets would include bank accounts, as
well as IRAs and 401Ks, since they are not exempt to
IRS-enforced collection. For OIC purposes, these assets
are valued at 100 percent since the IRS can levy them.
continued on page 30
PAGE 18
www.eriebar.org | May 2011
Cyberlaw: The Brave New E-World
judge accessed Wikipedia. A researcher examining the
Wikipedia entry on urea today would no longer find a
statement about low pH but rather a statement indicating that urea is neither acidic nor alkaline.
Moreover, a researcher looking at the View History tab
for the Wikipedia entry would see that the entry has
been changed over 500 times since the Helen of Troy
opinion was published in April 2006.
Professor Peoples raises concerns about the ethical
implications of citations to Wikipedia by judges and
attorneys. For New York attorneys, there is the New
York State Bar Association Committee on Professional
Ethics,
Op.
709
(1998),
available
at
http://www.nysba.org (click on “For Attorneys” and
then “Ethics Opinions”), which states “To the extent
that the attorney in performing legal research for
clients relies on information obtained from searching of
Internet sites, the attorney’s duty under Canon 6 to
represent the client competently requires that the
attorney take care to assure that the information
obtained is reliable.”
The article cites several New York cases grappling
with the reliability of Wikipedia: Alfa Corp. v. OAO Alfa
Bank, 475 F. Supp. 2d 357 (S.D.N.Y. 2007) (court
allowed expert’s citation of Wikipedia), In re Cairns &
continued from page 12
Assocs., No. 05-10220 (BRL), 2006 WL 3332990, at
*4 n.5 (Bankr. S.D.N.Y. Nov. 14, 2006)(citation to
Wikipedia to explain Wendy’s “Where’s The Beef” ads),
People v. Rodriguez, 860 N.Y.S.2d 859 (Crim. Ct.
2008) and People v. Fernino, 851 N.Y.S.2d 339, 340-41
(Crim. Ct. 2008) (citation to Wikipedia explaining how
MySpace works).
At the end of the article, Professor Peoples concludes,
“Wikipedia entries may be useful for a number of purposes, but their quality and impermanence raises a
number of concerns that the American legal system has
not come to terms with. The bench and bar should be
aware of these concerns and take action to prevent
uncertainty in the law and a decline of confidence in
judicial decisions.”
I commend the rest of the article to you, as it contains many nuggets of interesting and useful information. Meanwhile, I must turn to Wikipedia to start
researching my next monthly column. Until next time,
let’s hope the cold weather ends wiki-wiki, and everyone has a healthy and safe summer.
Law Line Educates
Public on Legal Issues
Since 1997, The Law Line has engaged the
minds of thoughtful western New Yorkers who
tune in to WNED-AM (970) at 10:00 on
Saturday mornings. Host Mike Desmond talks
to lawyers and judges from our legal community on wide-ranging topics related to the law.
The program provides a valuable public service
that reaches about 8,400 listeners each week.
We appreciate the time that the following
members of our Association have taken to educate the public about legal matters by volunteering their time to appear on The Law Line.
* Please note that “libelous” is misspelled by
Wikipedia, which is sort of my whole point!
Frank T. Housh
Is the U.S. Moving Away from
the Death Penalty? (Re: The
Illinois Vote to Repeal Capital
Punishment)
David A. Shapiro
Grandparents’ Rights
The Law Line is underwritten by the Erie
County Bar Foundation and the Lawyer
Referral and Information Service of the BAEC.
If you would like to appear as a guest on the program, please contact Maureen Gorski at 8528687 or by e-mail at mgorski@eriebar.org.
May 2011 | www.eriebar.org
PAGE 19
Calling All Suburban
Lawyers!
“The time has come, the Bar Prez said,
To talk of many things
Of torts and Tweets and ceiling tax
All sorts of legal things
And why the lake is frozen still
And whether we’ll have wings.”*
Just because you don’t get downtown much
is no reason not to enjoy conversation and
camaraderie with your friendly neighborhood
Bar Association leaders. And besides, they’ll
even come to YOU! Mark your calendar now
and plan to have lunch (wings are optional)
with President Scott Schwartz and Vice
President Art Russ at either of the following
locations:
Southtowns Luncheon
Tuesday, May 17 at 12:00 Noon
Romanello’s South
Northtowns Luncheon
Wednesday, May 25th at 12:00 Noon
Sonoma Grille Restaurant
Please call Sharlene Hall at 852-8687 or
e-mail shall@eriebar.org if you plan to attend.
*With sincere apologies to Lewis Carroll
Become a fan of your favorite Bar
Association. “Like” us on Facebook, follow
us on Twitter and join our group on LinkedIn.
PAGE 20
www.eriebar.org | May 2011
Proposal to Amend Bylaws – Article VII (3) Proxy Ballots
An amendment of the bylaws may be proposed by
the board of directors, by a resolution of the board stating the text or texts of the proposed amendment
(Article XI (1).
The Bylaws Committee chaired by former BAEC
President Garry M. Graber recommends adoption of
the following amendment which would restore the
same provision that was in effect previous to 2003.
ARTICLE VII - ELECTIONS
2. VOTING.
(A) The members entitled to vote for officers and
directors shall may vote by paper ballot, except
that the use of voting machines or a system using
electro-mechanical, electronic or any other
means, including the Internet, which may
authorized by the Board.
ARTICLE VIII - MEETINGS
7. VOTING BY MEMBERS AND DIRECTORS.
The vote of the majority of those who are present
and entitled to vote at a meeting of the Board, or
at a meeting of the members, at which a quorum
is present, shall be sufficient for the transaction of
business unless a vote of a greater number is
required by law or by these Bylaws, provided,
however, that directors and elective officers shall
be elected by a plurality of the votes cast in any
election.
8. METHOD OF VOTING BY MEMBERS BY
PROXY. A member or director may vote at a meeting of members or Board of Directors by authorizing the Executive Director, or any other person
designated by the Board to act for him or her by
proxy as hereinafter provided. Such proxy shall be
in writing in a form provided by the Executive
Director and approved by the Board, and shall
recite the names of the nominees for director or
officer, or text of the resolutions or amendments to
these Bylaws, to be considered by the meeting to
which it shall relate, and shall indicate how the
members so voting authorizes the person, acting
for him or her by proxy, to vote for directors and
officers, and whether the member so voting
authorizes the person, acting for him or her by
proxy, to vote in favor or against each of such resolutions or amendments, or to abstain in regard to
any such votes. Such proxy may be revoked at any
time prior to its being exercised by the member
issuing it and, further, shall be revoked by the
death of such member or, by receipt of the
Executive Director prior to such proxy being exercised, of a written notice of an adjudication of
incompetence of such member. Such proxy shall
only relate to a specific Annual Meeting or specific
special meeting of the Association, and shall terminate at the conclusion of such meeting or at the
conclusion of the adjourned meeting thereof.
PAGE 21
May 2011 | www.eriebar.org
Bar Association of Erie County
cAndidates
VICE PRESIDENT
Richard T. Sullivan
Kathleen M. Sweet
DEPUTY TREASURER
Donna L. Burden
Joseph J. Manna
2011
6
DIRECTOR
Daniel T. Lukasik
Regina A. Del Vecchio
Frank LoTempio III
B. Kevin Burke, Jr.
Bethany A. Rubin
Jennifer R. Scharf
Robert M. Lippman
Brian M. Melber
vice president
RICHARD T. SULLIVAN
is a member of Harris Beach
PLLC in Buffalo. He is a
1967 summa cum laude
graduate of Iona College in
New Rochelle, New York,
and a 1970 graduate, With
RICHARD T.
Honors, of the University of
SULLIVAN
Notre Dame School of Law.
Sullivan is a Fellow of the
American College of Trial Lawyers. He taught
New York Practice at the University at Buffalo
School of Law for 29 years, has served on the
board of directors of the Erie County Bar
Foundation; and was also a member of the New
York State Bar Association’s House of
Delegates.
Sullivan chaired the Attorney Grievance
Committee of the New York State Supreme
Court, Appellate Division, Fourth Department
for six years. He frequently lectures on litigation
and professional responsibility topics at CLE
programs sponsored by the New York State Bar
Association. Sullivan serves on the City of
Buffalo Board of Ethics. He was a member of
the board of Gilda’s Club Western New York, a
former chair of the Buffalo Convention Center
board of directors, and deputy town attorney for
Orchard Park.
Sullivan lives in Buffalo with his wife, Alice. He
is a member of the Cherry Hill Club. His son,
Brian, is a graduate of the University at Buffalo
School of Law and is president of Alpha Natural
Resources in Sydney, Australia. His daughter,
Courtney, also a Notre Dame graduate, is a trial
attorney in the United States Department of
Justice,
Counterterrorism
Section,
in
Washington, D.C.
Cast your ballot for officers, directors,
and members of the Nominating Committee.
Exercise Your Right! Members have the option of voting either in person, online at www.eriebar.org,
or by proxy. The annual election will be held on Friday, June 10, 2011 at Bar Headquarters, 438
Main Street, Sixth Floor. Proxy ballots, which will be mailed to all members, must be returned no later
than Thursday, June 9 by 5:00 PM in order to be counted.
“I believe that voting is the first act of building a
community as well as building a country.”
~ JOHN ENSIGN
HELP BUILD OUR LEGAL COMMUNITY
~ USE YOUR RIGHT TO CHOOSE!
A L L C A N D I D AT E S F O R B A R O F F I C E H AV E B E E N
ENCOURAGED TO CAMPAIGN ACTIVEL Y. PLEASE
THOUGHTFULLY CONSIDER THEIR WORDS AND
IDEAS BEFORE CASTING YOUR BALLOT IN THIS
YEAR’S ELECTION.
CANDIDATES FOR NOMINATING COMMITTEE
~ Elect Two ~
PETER J.
BATTAGLIA
ROBERT M.
GOLDSTEIN
HARRY F.
MOONEY
CATHERINE E.
NAGEL
The Bylaws require that dues be paid in full for fiscal year 2011–12
before members are allowed to vote in the annual election.
PAGE 22
2011 Candidates
deputy treasurer
vice president
KATHLEEN M. SWEET is a
partner at Gibson, McAskill &
Crosby, LLP, where she represents doctors and other health
care providers in malpractice
litigation and professional discipline matters. Sweet grew up
KATHLEEN
in Clarence and graduated
M. SWEET
from Clarence High School.
She is a graduate of Boston College, where she
was honored as the Big East Conference Scholar
Athlete of the Year. She graduated from the
Villanova University Law School and is admitted
to practice in Massachusetts and New York. A former confidential law assistant at the Appellate
Division, Fourth Department, she handles several
appeals each year.
Sweet is a member of the American Bar
Association, the New York State Bar Association,
the Bar Association of Erie County and the
Women’s Bar Association of the State of New
York. She served as the regional coordinator of
JALBCA (Judges and Lawyers Breast Cancer
Alert) for over ten years and is on the Health Law
Committee for the Medical Society of the County
of Erie. In 2004 Sweet was recognized among
Business First’s Forty Under 40 and in 2008 she
received the M. Dolores Denman Lady Justice
Award for lifetime achievement from the local
chapter of the Women’s Bar Association of the
State of New York. She served on the board of
directors of the Bar Association of Erie County
from 2007 to 2010.
Sweet taught New York Practice as an adjunct faculty member at the University at Buffalo Law
School in 2010 and she is a certified mediator for
the United States District Court, Western District
of New York. She is AV Rated by Martindale
Hubbell and is listed in “Best Lawyers in
America.” In 2010, she was named to the “Top
50 Upstate New York Super Lawyers.”
Sweet enjoyed her term on the board of directors
and she would be honored to serve the Bar
Association and its members as vice president. She
and her husband, Brian Fredericks, reside in
Orchard Park with their children, Caroline and
Michael.
deputy treasurer
DONNA L. BURDEN is a
founding member of the law
firm of Burden, Gulisano &
Hickey, LLC and has over 20
years of experience as a trial
attorney defending catastrophic personal injury
DONNA L.
cases, primarily in the areas of
BURDEN
trucking and transportation
negligence, premises and product liability. She
graduated from St. Bonaventure University in
1984 with a Bachelor of Arts degree, cum laude,
in History with minors in Business
Administration and French. She then attended
the University at Buffalo Law School and graduated in 1987. After her first year of law school,
Burden was a summer law clerk at the U.S.
Attorney’s Office. She then began clerking with
Hagerty & Hagerty, after which she joined the
firm as an associate and worked there for an additional five years during which the firm was
renamed Hagerty & Brady. During that time, she
worked on a variety of cases in personal injury
both on behalf of plaintiffs and defendants. In
1992, Burden became associated with Hurwitz
& Fine, P.C., where she was an associate in the
litigation department for five years before
becoming a partner. During that time, she headed the firm’s transportation and premises practice
groups. After 10 years as a partner, Burden left
Hurwitz & Fine in 2007 to start her own firm,
Burden, Gulisano & Hickey, LLC.
Burden is a national director of DRI (Defense
Research Institute; the Voice of the Defense Bar),
where she previously served as a chair of the
Trucking Law Committee, as well as program
2 0 1 1
Chair of the Trucking Law Seminar. She is also a
member of TIDA (Trucking Industry Defense
Association) where she has served as chair of the
Advanced Skills Seminar. She has been a speaker
at a variety of programs and seminars, among
them the BAEC’s Negligence Committee, the
ABA Megaconference on Transportation, TIDA,
and numerous seminars for DRI.
Burden’s community activities include a two-year
term chairing the board of Heritage Centers (the
Erie County Chapter of NYARC), where she has
served on the board for 12 years, including service as vice chair and secretary. Heritage Centers,
including Allentown Industries, is a not-for-profit agency delivering all-inclusive services to individuals with developmental disabilities with an
annual budget of approximately $45 million. She
has also served on the Heritage Oak Foundation.
Burden served on the board of directors for the
CHC Learning Center (the Center for
Handicapped Children) for 10 years. She previously chaired the board of SABAH (Skating
Association of the Blind and Handicapped,
presently known as Skating Athletes Bold at
Heart) and is also a former member of the
Buffalo Hearing and Speech Foundation.
She was named to Business First’s 15th annual
"40 Under Forty" ranking of Buffalo leaders
under the age of 40, and was named to their
“Who’s Who in Law” listing in 2008 and 2010.
She is married to Joe Burden and they reside in
Williamsville with their twin daughters,
Alexandra and Danielle.
S p e c i a l
JOSEPH J.
MANNA
JOSEPH J. MANNA is a
trial lawyer and partner in
the law firm of Lipsitz
Green Scime Cambria LLP.
He concentrates his practice in business law, including judicial dissolution of
various forms of business
entities, as well as construction and general contract
litigation.
After graduating cum laude from New
England Boston in 1995, where he served on
the New England Law Review, Manna began
his career at Damon & Morey LLP. At the
time, he practiced almost exclusively on the
defense of professional liability matters, including medical, legal and accounting malpractice.
After five years with Damon & Morey LLP,
Manna joined Gresens & Gillen LLP in 2000
to pursue business and commercial litigation.
After two years, he was named partner at
Gresens & Gillen LLP.
director
DANIEL T. LUKASIK
graduated from the State
University of New York
College at Buffalo, magna
cum laude, and the
University at Buffalo
DANIEL T.
School of Law. In 1988,
LUKASIK
he began his legal career as
an associate at Collins,
Collins & DiNardo, litigating personal injury
cases in New York state and federal courts. He
is currently special counsel to the law firm of
Cantor, Lukasik Dolce & Panepinto, where he
handles personal injury litigation and general
practice matters. In addition to New York state
courts, Lukasik has practiced in the Western,
Eastern, Southern and Northern U.S. District
Courts and the Second Circuit Court of
Appeals.
He is listed in the current edition of The Best
Lawyers in America and SuperLawyers, Upstate
Edition. Lukasik is the recipient of the
Distinguished Alumni Award for Community
Service from The University at Buffalo Law
director
REGINA A. DEL VECCHIO graduated from
Canisius College in 1985,
with a Bachelor of Arts
degree in History, magna
cum laude. While at
REGINA A.
Canisius, she was in
DEL
the All-College Honors
VECCHIO
Program and was inducted
into the Di Gamma and
Phi Alpha Theta Honor Societies. She served
as a two-term member of the Canisius College
Alumni Association’s board of directors and
participated for a number of years in the college’s annual fund campaign.
Del Vecchio attended the University at Buffalo
E l e c t i o n
E d i t i o n
PAGE 23
REGINA A. DEL VECCHIO (Cont’d)
In 2005, Manna joined Lipsitz Green Scime
Cambria LLP as a partner in its business and
commercial litigation practice. In addition, he
now also focuses on the trial of medical malpractice cases. In 2011, Manna was featured in
the Buffalo Law Journal and Buffalo Business
First for his work in business divorce litigation.
Manna serves on the board of the St. John the
Baptist Parish Athletic Association in
Tonawanda. He was also recently elected to
serve on the board of the 600-member
Kenmore Village Improvement Society and is
a member of the New York State Bar
Association.
Manna resides in Kenmore with his wife, Amy,
and their three children, Andrew, Caroline
and Joseph. His oldest son, Andrew, will be
attending St. Joseph Collegiate Institute in the
fall, where Manna’s wife works with alumni as
a development assistant.
with the Assigned Counsel Program through the
Aid to Indigent Prisoners Society, Inc.
In 1990, Del Vecchio joined the firm of Grosse,
Chelus, Rossetti, Herdzik and Speyer, where she
concentrated her practice in insurance defense
litigation, including motor vehicle, premises liability and medical malpractice. She became a
member of the Western New York Defense Trial
Lawyers Association and the Defense Research
Institute, an international organization of attorneys representing business and individuals in civil
litigation. Del Vecchio has also served as a former
director of the Mid-Day Club of Buffalo.
Del Vecchio joined the firm of Colucci and
Gallaher, PC in 1994, where she presently is a
shareholder. Her practice is concentrated in civil
litigation and the representation of major and
mid-sized companies, municipalities and selfinsured corporations. She also provides representation to a local hospital in a variety of healthcare related matters, including Article 81
guardianships and related proceedings under the
Mental Hygiene Law. She recently was elected to
be a member of the Council on Litigation
Management and presently serves as treasurer of
the Western New York Trial Lawyers Association.
Del Vecchio also is a member of the New York
State Women’s Bar Association.
Del Vecchio resides in the Southtowns and is a
member of the Orchard Park Historical Society
and National Trust for Historic Preservation. She
would welcome the opportunity to serve as a
director of the Erie County Bar Association and
sincerely appreciates your consideration of her
candidacy.
director
Alumni Association, the BAEC’s Special
Service Award, and a Certificate of Merit
Award, together with the BAEC, from the
New York State Bar Association. He is on the
board of directors of The St. Thomas Moore
Guild Catholic Lawyer Society, Compeer
Buffalo, BryLin Hospital and the Erie County
Mental Health Association.
Lukasik is the creator of the national Web site
www.lawyerswithdepression.com, which has
been featured in The New York Times, The
Wall Street Journal and several other national
and international publications. He chairs the
BAEC Committee to Assist Lawyers with
Depression and is the executive producer of
the 2010 documentary, “A Terrible
Melancholy: Depression in the Legal
Profession.” He speaks around the country on
the topic of depression in the law to law students, lawyers and judges. Lukasik resides in
Lancaster with his wife, Kelsey, who is also a
lawyer, and their daughter, Iliana, who is a student at Nativity of Mary Catholic School in
Clarence.
Law School and graduated in 1988. After her
admission to the New York State Bar in 1989,
she became an associate with the firm of
Berkowitz and Pace in Orchard Park, where
she engaged in the general practice of law,
including real estate, matrimonial, family law
and estates. At that time, she also was appointed a law guardian panel member by the New
York State Supreme Court, Appellate Division,
Fourth Judicial Department. Del Vecchio has
served on this panel, as an attorney for the
child, in both contested Family Court and
matrimonial actions for over 20 years. She
remains committed to this program because
she strongly believes in the rights and representation of children in such proceedings. She
also served as a Family Court panel attorney
FRANK LOTEMPIO III
graduated
from
the
University of Rochester in
1994 with a Bachelor of Arts
in Political Science and minor
in Business from the Simon
School of Business. At the
FRANK
University of Rochester he
LOTEMPIO
lettered for the Men's Soccer
III
Team and belonged to Theta
Chi Fraternity. LoTempio received his Juris
Doctor in 1997 from the University of Buffalo
School of Law, during which time he clerked for
The United Steal Workers of America General
Counsel. He was admitted to the New York State
Bar in 1998 and the Florida Bar in 2001.
LoTempio concentrates his practice in the areas
of State Criminal Defense, Corporate Law and
Civil Litigation. He has litigated and negotiated
all types of civil actions including serious person-
al injury motor vehicle accidents and breach of
contract cases. He has also successfully negotiated and tried thousands of criminal cases ranging
from DWI and petty larceny to murder and rape.
LoTempio represents a number of local and
international businesses advising them on all
aspects of their business including employment
issues, negotiating contracts and conducting any
necessary litigation.
Regardless of their issues or problems, LoTempio
gives each client individual, personal and professional service, whether it be an injured person,
corporation or criminal defendant. More importantly, he prides himself on understanding and
always carefully considering how each decision
will bear on that person's business and/or life.
LoTempio is a zealous advocate who always
thinks about the best interest of each and every
client.
director
B. KEVIN BURKE, JR.
is a partner in Jaeckle
Fleischmann's litigation practice group with extensive
experience in business law
and commercial litigation.
He regularly counsels busiB. KEVIN
nesses and individuals on a
BURKE, JR.
variety of matters involving
contract and warranty claims,
intellectual property issues, fraudulent trade
practices, construction disputes, mechanic’s liens
and other business related matters. Burke frequently lectures on the topics of non-compete
and non-solicitation agreements. He also provides services in the areas of prelitigation strategic planning, counseling to businesses concerning methods of avoiding litigation and alternative
dispute resolution.
Georgetown University and his JD, from The
George Washington University Law School.
Burke is actively involved with the ECBA
Volunteer Lawyers Project and is a member of
the Bar Association's Alternative Dispute
Resolution and Commercial and Bankruptcy
Committees. He served as an attorney coach in
the Bar Association's mock trial program from
2004-2009 and is a member of the American Bar
Association, Litigation Section, Entertainment
and Sports Forum, along with the New York
State Bar Association, New York State Trial
Lawyers Association, American Health Lawyers
Association and the American Intellectual
Property Law Association. Burke recently completed his term as secretary of the WNY Trial
Lawyers Association and is listed in Who’s Who in
Law, published annually by Business First of
Buffalo.
After graduating from Nichols School in 1991,
he received his AB, cum laude, from
Continued...
2 0 1 1
S p e c i a l
E l e c t i o n
E d i t i o n
PAGE 24
director
BETHANY A.
RUBIN
JENNIFER R. SCHARF (Cont’d)
BETHANY A. RUBIN is
currently with Kaplan,
Hanson, McCarthy, Adams,
Finder & Fishbein, serving
as staff counsel for the
Progressive
Group
of
Insurance Companies.
After growing up in
Tonawanda, Rubin graduated from SUNY
Binghamton in 1995 and obtained her JD
degree in 1999 from Widener University School
of Law - Harrisburg Campus, where she
received an Outstanding Service Award.
Following law school, Rubin returned to western New York, and has practiced in the area of
plaintiffs’ and defendants’ personal injury litigation since her admission to the New York State
Bar in 2000.
She completed the BAEC’s Leadership Institute
in the Fall of 2009 and served as a coach for
Kenmore East High School’s mock trial team
for five years. She has now gone on to act as a
judge for the high school mock trial competitions.
Rubin has been active in the community,
including work for the Town of Tonawanda
Youth, Parks and Recreation Department. She
is currently an active member of the Junior
League of Buffalo. She has also been involved
in many not-for-profit fundraising campaigns
and community service projects through Junior
League, including the 2007 and 2009
Decorators’ Show Houses. She is currently
serving as the group’s Buffalo co-chair for their
Roundtable Committee, which conducts community roundtable discussions about many
issues found in the Women’s Fund Pathways to
Progress.
Rubin would like the opportunity to become
more active in our legal community and the
community at large. She also wishes to continue as a positive role model for others, including
her two-year-old daughter, Kelsey.
director
JENNIFER R. SCHARF is
a litigation attorney at
Duke, Holzman, Photiadis
and Gresens, LLP. She
graduated magna cum
laude from the University
at Buffalo School of Law in
JENNIFER R.
2005, where she was an
SCHARF
editor of the Buffalo Law
Review. Scharf is a 2001 graduate, magna cum
laude, of the University at Buffalo, with a bachelor of arts in Cultural Commerce. She focuses
her practice on business litigation, representation of professionals, labor and employment
law, personal injury litigation, and appellate
practice.
Scharf began her career at Connors & Vilardo,
LLP, where her practice included medical malpractice defense and personal injury litigation.
She currently serves as secretary of the Western
New York chapter of the Women's Bar
Association, and chairs the Judiciary Committee
for that group. Scharf is also on the board of the
UB Law Alumni Association GOLD group.
An instructor of Trial Advocacy, she will teach
Trial Technique at UB Law beginning next
spring. Scharf has been an attorney coach for the
BAEC’s High School Mock Trial Tournament
since 2006, and this year the Cheektowaga
Central School District awarded her its
Community Service award for her dedication to
its mock trial team. In her free time, she enjoys
travel and photography. Scharf displayed her
photographs at the Bar Association of Erie
County’s “Artful Lawyer” exhibit in 2009.
director
ROBERT M. LIPPMAN
is managing attorney of
Lippman
O’Connor
in
Buffalo, and vice president
and regional managing attorney for Selective Insurance
Company of America.
Lippman served as president of the Defense Trial
Lawyers Association of WNY in 2005 and was
presented with the Exceptional Performance
Citation by DRI for his service. He has tried
cases in many courts in New York and
Massachusetts and was admitted to the United
States Supreme Court in 1995.
After growing up in Dunkirk,
he graduated from the University of Pennsylvania
and Boston University School of Law. After practicing law in Boston, he returned home to
Buffalo where he practiced personal injury
defense as a member (partner) at Hurwitz &
Fine, P.C., and then with Fireman Fund’s staff
counsel, Lawrence & Bender, where he eventually became senior trial attorney. Lippman opened
the staff counsel office for Selective in 2004 and
the office has now grown to five attorneys and 10
employees. He became managing attorney for all
three New York state offices, including Albany
and White Plains in 2005.
Lippman has lectured often at CLE courses,
most recently at “Winning Arbitration Tips,
Tools & Techniques” in June 2010. He has been
named a New York state “Super Lawyer” for the
years 2008, 2009 and 2010.
ROBERT M.
LIPPMAN
In his down time ,Lippman is an avid basketball
player and numismatist (coin collector).In the
latter capacity, he won the Wayte Raymond
Memorial Award for distinguished numismatic
achievement from the American Numismatic
Association in 2002.
Lippman resides in North Buffalo with his wife,
Rita, and their two sons, Matthew and David.
director
BRIAN M. MELBER began
his career in private practice
in 1996 as an associate with
Brown & Kelly, LLP. He was
admitted to the New York
State Bar and the U.S.
District Court for the
Western District of New York
BRIAN M.
MELBER
in 1997, and to the U.S.
Court of Appeals for the
Second Circuit in 1998. In 2002, he formed
Personius Melber LLP with his partner, Rodney
O. Personius, and his practice consists principally
of white collar criminal defense and commercial
litigation, largely in federal court.
Melber graduated from Canisius College with a
BA in English and History in 1992. After briefly
pursuing graduate studies in English Language
and Literature at the University of Virginia, he
returned to Buffalo and graduated from the
University at Buffalo Law School in 1996. As a
law student, Melber was active on the Moot
Court Board and as a participant in the Domestic
Violence Clinical Practice Program.
He is a member of the BAEC’s Criminal Law and
Federal Practice Committees. Melber is also an
active member of the UB Law Alumni
Association, having served as both a director and
as treasurer. He currently is a vice president of
that organization, along with being a member of
the New York State Bar Association and the
Western New York Trial Lawyers Association.
Melber is a past vice president of the Educational
Advisory Committee of St. John the Baptist
School in Kenmore.
For over 10 years, Melber has been a coach and
instructor of student trial competition teams for
the University at Buffalo Law School, and is an
adjunct instructor of trial technique for the Law
School. He has addressed newly admitted attorneys and law students on evidence, trial practice,
and criminal law. Melber has also frequently volunteered as a judge and evaluator for student
moot court and mock trial competitions. He and
his wife, Pam, live in Tonawanda with their four
children, Joseph, Kathryn, Maeve and Erin.
Continued...
2 0 1 1
S p e c i a l
E l e c t i o n
E d i t i o n
PAGE 25
May 2011 | www.eriebar.org
News from Kent, Our Sister City in Great Britain
broadcast in educational training establishments.
By Jonathan Smithers
My recent columns have concentrated on the real estate contract
work that I have been doing for
the National Law
Society. I am feeling
like a one-trick
pony; the subject
has become all consuming.
“ I am not
Last month, I wrote about the lecture circuit. I have now migrated
to the small screen, having been
interviewed on my subject for
Legal Network Television (LNTV)
and now producing the new
medium of Continuing Professional
Development, the Webinar.
For the recording, I managed to find a back street
address in north London. Having been led to the basement, I was taken into a tiny, brightly lit studio. I had
been e-mailing the presenter on the
content and had agreed in advance the
questions and broad outline of the
answers. She too is a lawyer and knows
sure that
her subject well, also bearing a passing
resemblance to Jennifer Aniston (though
‘Lawyers Say the
it could just be the “Rachel” haircut!)
Apparently, I was a little “shiny” so had
Funniest Things’
a good dose of powder slapped on me
will be a network
(Note to self: Next time this happens,
make sure you take it off before you get
success.”
back on the train home).
LNTV was available on cable for a
very short time but surprisingly had
few subscribers! They now produce
educational programs which are delivered via DVD or
The director was sympathetic when I
stumbled or mumbled and generous
with allowing re-takes. I did wonder if
they will be compiling an “outtakes”
show but am not sure that “lawyers say the funniest
things” will be a network success.
Anyway, the questions were asked and answered, the
studio staff were generous in their thanks. Realistically,
though, I am the product they are selling. They are not
paying me (Second note to self: I really must get a better agent!) and will want another appearance so this is
perhaps less of a compliment than I had first thought.
My work colleagues are trying to keep me grounded
lest any of this goes to my head – sometimes I think
they are trying a little too hard. It is not often that a
real estate lawyer breaks into the small time!
Stadler and Goldstein
Honored for Assigned
Counsel Service
Stadler
The Assigned Counsel Program
recently held its annual attorney
recognition reception at the Buffalo
Club. “This reception serves as an
annual opportunity for the program’s
administrator and its board of directors to honor the panel attorneys for
the work they do on behalf of their
clients,” according to deputy administrator Claudia Schultz.
The event provided “a chance to
give the thanks that is deserved but
all too often overlooked,” Schultz
continued.
Board
president
Nicholas
Hicks
and
administrator
Goldstein
Robert Lonski spoke of “the great
respect both the Assigned Counsel program and the
legal community at large have for the attorneys who
toil in the trenches every day advocating for their
clients.”
Two attorneys received singular recognition for their
distinguished service to the program’s clients: Joseph
Stadler for his work in Family Court, and Robert
Goldstein for his work in the criminal courts.
The event also provided an opportunity for program
members to “spend a collegial evening simply enjoying
one another’s company, apart from the day-to-day
stresses” of assigned counsel service.
Bar Association of Erie County
Professional Ethics Opinion
Opinion No: 10-4
Topic: Sharing fees with a disbarred lawyer;
reporting misconduct by a lawyer
Digest: A lawyer may pay a disbarred lawyer a
share, on the basis of quantum meruit, of legal
fees accrued prior to the date of disbarment.
Rules: 8.3; N.Y. State Bar Ops. 480, 690,; 22
N.Y.C.R.R. §1022.27
Question: May a lawyer share a portion of a
legal fee with another lawyer who worked on the
matter but has since been disbarred? Must a
lawyer report conduct by the disbarred lawyer,
prior to his disbarment, which the lawyer believes
to be inappropriate?
OPINION
The division of fees among lawyers is governed,
generally, by Rule 1.5 of the N.Y. Rules of
Professional Conduct. The specific issue presented
here, however, is addressed by the
appellate courts as a matter of official rules .and
regulations. Court rules and formal opinions of
the New York State Bar Association, as well as
courts of this state, have addressed directly the
issue of fee sharing with a disbarred attorney. In
the Fourth Department, the Rules of the Appellate
Division provide that:
A disbarred…attorney…may be compensated
on a quantum meruit basis for services rendered
prior to the effective date of the disbarment….
The amount and manner of compensation shall
be
determined,
on
motion
of
the
disbarred…attorney, by the court or agency
where the action is pending…. The total amount
of the legal fee shall not exceed the amount that
the client would have owed if no substitution of
counsel had been required.
22 N.Y.C.R.R. §1022.27. See also, New York
State Bar Association Opinion 690 (5/10/90).
As long as the disbarment was unrelated to the
matter for which the fee was generated, the fees
may properly be shared, as allocated by the court
on motion, with a disbarred attorney for services
performed prior to the date of the disbarment.
See, In Re Adams, 42, A.D.3d 1 (2d dept, 2007);
and Padilla v. Sansivieri, 31 A.D.3d 64 (2d Dept,
2006)
As to the second inquiry, Rule 8.3 requires that:
A lawyer who knows that another lawyer has
committed a violation of the Rules of Professional
Conduct that raises a substantial question as to the
lawyer's honesty, trustworthiness or fitness as a
lawyer shall report such knowledge to a tribunal or
other authority empowered to investigate or act on
such violation.
The question revolves around the quality of the
lawyer’s information, rather than the conduct
itself: actual knowledge of a violation must be
reported; mere suspicion of a violation does not
require reporting, but it would not be improper to
do so. See N.Y. Star Bar Op. 480 (1978). The fact
that the lawyer is currently disbarred (and thus
not now a “lawyer”) does not render inapplicable
the provisions of Rule 8.3, to the extent that the
conduct under scrutiny occurred prior to the attorney’s disbarment.
Conclusion
For the reasons set forth above, a lawyer may
pay to a disbarred attorney a share, determined by
the appropriate court on a basis of quantum
meruit, of legal fees accrued prior to the date of the
disbarment. Depending upon the character of the
information concerning the disbarred lawyer’s
actions (whether “known” by the inquiring attorney, or merely “suspected,” the attorney may be
required - or permitted - to report such conduct to
the appropriate governing body.
PAGE 26
www.eriebar.org | May 2011
Book Review: Third Edition of “Commercial Litigation in New York State Courts”
Edited by Robert L. Haig
Sponsored by the New York County Lawyers’
Association
Review by Edward S. Bloomberg
Beginning as a relatively modest
three-volume First Edition released
Bloomberg
by West Publishing in 1995, Robert
L. Haig’s “Commercial Litigation in
New York State Courts” has now grown to a six-volume Third Edition (with a separate Appendix containing tables of laws, rules and cases). In one sense, it is a
step-by-step practice guide covering every aspect of a
commercial case in New York State Court, from the
investigation and assessment of a claim, through discovery, motions, trial, appeals and then settlement
and/or enforcement of a judgment. In another, and
much more accurate sense, it is an in-depth treatment
of New York civil procedure and the substantive law in
areas most commonly encountered by commercial litigators. And, for good measure, the title notwithstanding, it is also a treatment of federal court practice
(Chapter 10: Removal to Federal Court and Chapter
11: Comparisons with Commercial Litigation in
Federal Courts), Products Liability (Chapter 79) and
White Collar Crime (Chapter 90 and Chapter 91: The
Interplay Between Commercial Litigation and
Criminal Proceedings), as well as arbitration and
mediation (Chapter 48: Alternative Dispute
Resolution).
There are 106 chapters written in a thorough but
easy-to-read style by 144 authors, including three sitting and two retired Court of Appeals Judges and
numerous Appellate Division and Commercial Division
Judges. For those of us practicing in western New York,
it is especially noteworthy that the authors include two
of our former Commercial Division Judges. In alphabetical order, they are Hon. John M. Curran, my former law partner, who authored the chapter on Trial
and Post-Trial Motions (Chapter 49), and Hon. Eugene
M. Fahey, who authored the chapter on Contracts for
Services (Chapter 71). But enough of the straightfrom-the-book-jacket information.
What do commercial litigators get for their
money if they buy this treatise? Plenty!
As to procedure, there is much of value to a commercial litigator at every level of experience. Not certain a plaintiff has brought her action in a court with
subject matter jurisdiction or where your client, the
defendant, is subject to personal jurisdiction? A quick
read through Chapter 2 (Jurisdiction) will give you a
framework by which to analyze the issues. Concerned
that the venue might not be proper? Chapter 3 (Venue)
will help. What about the enforcement of a forum selection clause or an arbitration clause? The exhaustive
analysis in Chapter 12 (Enforcement of Forum
Selection and Arbitration Clauses) will answer most of
your questions.
As to tactics, what about a pre-answer motion to dis-
miss? We all know that a motion to dismiss can be a
valuable tool for the commercial litigator, particularly
where a plaintiff pleads both breach of contract and
fraud or negligence claims or where his or her allegations are conclusively refuted by documentary evidence. A motion to dismiss may also be useful where
the complaint is long on vague and conclusory allegations and short on facts, or
the plaintiff’s counsel simply fails to
plead all the necessary allegations of a
cause of action. Chapter 7 (Responses to
Complaints) contains an in-depth treatment of the many issues to consider in
deciding whether to make the motion
and whether it is likely to be successful.
are also chapters discussing the law relating to particular types of contracts -insurance policies (Chapter 67:
Insurance); bank-issued letters of credit (Chapter 69:
Letters of Credit); UCC Article 2 and contracts for the
sale of goods (Chapter 73: Sale of Goods); and promissory notes and other instruments defined in UCC
Article 3 (Chapter 75: Bills and Notes), to
name a few.
Commercial litigation is almost
always about a party’s perceived injury
and the monetary and other relief he or she is
seeking, balanced, in most cases, against the often
significant costs and delays likely to be incurred by
bringing (or defending) litigation. Multiple chapters of
the treatise deal with these issues. For example,
Chapter 46 (Compensatory Damages), written by former Court of Appeals Judge Stewart F. Hancock, contains a big picture view of contract damages, with
multiple references to Kenford I and Kenford II, the socalled Domed Stadium Cases, decided by the Court of
Appeals while Judge Hancock was a member, but in
which he took no part because he was a member of the
panel which had decided Kenford I at the Appellate
Department Fourth Department (and perhaps for
other reasons as well).
Other chapters include areas of
substantive law occasionally, but less
frequently, faced by commercial litigators in western New York Shareholders Derivative Actions (Chapter 82),
Securities Litigation (Chapter 81), Director and Officer
Liability (Chapter 83), and Antitrust Litigation under
New York’s Donnelly Act (Chapter 89), among others.
They also include chapters on commercial
tort
issues
such
as
Misappropriation of Trade Secrets
(Chapter 93), Theft or Loss of Business
Opportunities (Chapter 92), and
Commercial Defamation (Chapter
94), to name a few more.
To conclude, this treatise is a “must have” reference
work for both experienced and new commercial litigators.
Edward S. Bloomberg is a partner with the Buffalo
office of Phillips Lytle LLP, where he focuses his practice on business litigation. He can be reached at
ebloomberg@phillipslytle.com or 847-7096.
Judge Hancock also discusses special rules for damages under the UCC, as well as tort damages and fraud
damages. Chapter 47 (Punitive Damages) likewise
contains a big picture view of punitive damages under
New York law. For the commercial litigator defending
an ordinary breach of contract case (and most of them
are), the law is clear: The plaintiff needs to find an
independent tort cause of action; otherwise the claim
for punitive damages will be dismissed. In addition to
compensatory damages, an adversary may be seeking
equitable relief - specific performance or rescission
(Chapter 9 by the same name) - or one or more of the
provisional remedies in the CPLR, i.e. attachment,
replevin, preliminary injunction TRO, and so forth.
(Chapter 17: Provisional Remedies). And there are
always the special issues raised by restrictive covenants
in employment contracts (Chapter 72: Employment
Restrictive Covenants and Other Post-Employment
Restrictions).
Of course, at the end of the day, any evaluation of
commercial litigation requires in the first instance an
evaluation of the factual basis for a client’s claims and
defenses based on application of the relevant substantive law. And it is here that Bob Haig’s treatise shines.
Speaking Out
About the Law
Chapters on substantive law include, not surprisingly, a thorough discussion of the law in contracts in
general - formation, interpretation, performance/
breach and defenses (Chapter 66: Contracts). There
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.
Steven K. Long
Law as a Career
Cleveland Hill High School
Melissa A. Cavagnaro
Law as a Career
John F. Kennedy Middle School
If you haven’t already done so, why not consider becoming a member of the Speakers
Bureau? Take the opportunity to share your
valuable insight on the legal topics of your
choice. Not only is speaking out about the law a
great community service, but it is also an effective practice-building technique. Call Maureen
Gorski at the Bar Association (852-8687 ext.
118) to sign up today!
May 2011 | www.eriebar.org
PAGE 27
It’s a Brave
New E-world…
…and
your
favorite
Bar
Association is now available on your
favorite social networking sites!
In addition to our Web site,
www.eriebar.org, news, information
and updates can now be found on
Facebook, Twitter and LinkedIn.
As part of our ongoing effort to
communicate timely information to
our members, you will also receive
e-newsletters from us about
upcoming CLE programs, career
opportunities and news items
that come to our attention between
issues of the Bulletin. If for any reason, you have not been receiving
these materials or choose not to
receive them, please contact Susan
Kohlbacher at 852-8687 ext. 121 or
skohlbacher@eriebar.org.
As always, your comments, questions and suggestions are invited.
BE GREEN — RECYCLE YOUR BULLETIN
PAGE 28
Death and Taxes
www.eriebar.org | May 2011
continued from page 13
Family Center as guardian of Jessie. Robert, apparently
a relative of Jessie, cross-petitioned to be named her
guardian.
Donald and Robert stipulated orally, on the record,
that Robert would be appointed guardian of Jessie, and
that Jessie and Donald would live separately and apart,
but with Donald having visitation. It was also stipulated that the marital property of Donald and Jessie
would be split, and Donald would make weekly maintenance and support payments to Jessie.
Robert later brought the current proceeding seeking
to enforce the stipulation with respect to division of the
marital assets, and to prevent certain transfers by
Donald to a third party.
Donald contended that the Supreme Court erred in
granting relief in the form of equitable distribution
without holding a hearing on the economic issues.
The Fourth Department dismissed Donald’s contentions, holding that the court below did not apply the
equitable distribution provisions of the Domestic
Relations Law because this was not an action for the
abrogation of marital status. Rather, the parties stipulated on the record to the division of the property, i.e.
that they would resolve all economic issues through a
negotiated settlement agreement. Further, the Fourth
Department held that there was no showing by Donald
of good cause to destroy the stipulation.
Medicaid Legislation
As part of the budget process, Governor Cuomo
appointed a Medicaid Redesign Team, which made a
number of proposals for changing the New York State
Medicaid program. While some of those proposals, such
as the cap on conscious pain and suffering damages in
medical malpractice actions, did not pass, there was
one significant change which did pass as part of the
budget legislation.
§369(6) of the Social Services Law is now expanded
to include in the definition of “estate” for Medicaid
recovery purposes, “any ... property in which the individual has any legal title or interest at the time of
death, including jointly held property, retained life
estates, and interests in trusts, to the extent of such
interests...” The Commissioner is directed by the legislation to promulgate regulations in regard to this
change.
This expansion of the definition of “estate” for
Medicaid recovery purposes will have a significant
change in common Medicaid planning devices. For
instance, a transfer of a parent’s house to a child with
a retained life estate will cause the house to be subject
to Medicaid recovery on the death of the parent. This
may well be true even though the transfer took place
outside of the five-year look-back period.
While an “income only” trust created five years prior
to the parent applying for Medicaid would not be considered an available asset for determining whether the
parent qualifies for Medicaid assistance, this language
would appear to make the trust subject to Medicaid
recovery as part of the parent’s estate.
To avoid the reach of this statute, transfers by parents to children will have to be complete transfers. But
what about transfers with an informal retained life
interest? For instance, suppose that a parent transfers
a house to his or her children - without retaining a life
estate - but continues to reside in the house rent-free.
Under §2036 of the Internal Revenue Code, the house
would be considered a part of the parent’s taxable
estate. Will the same theory apply to the new definition
of “estate” under §369(6) of the Social Services Law?
Carryover Basis
In a previous column, we had advised that for those
estates electing out of federal estate tax for 2010, and
into carryover basis, form 8939 allocating basis adjustments was required to be filed at the same time as the
decedent’s final income tax return.
Since form 8939 has not yet been issued by the IRS,
we had suggested that the decedent’s final tax return
would have to be put on extension until form 8939
became available.
The IRS has now issued a press release indicating
that form 8939 is no longer required to be filed at the
same time as the decedent’s final income tax return.
The press release indicates that form 8939 will be
issued some time in the future, along with a date upon
which it is to be filed.
Authors’ Note: Our purpose in writing this column
is to keep practitioners advised of current developments,
including unpublished decisions. If you receive a decision from a Surrogate’s or Supreme Court dealing with
trusts, estates or guardianships which you think would
be of interest to our readers, we invite you to send it on
to us.
[B]
The Value of Doing Pro Bono Work
Circumstances Continue to Conspire
Against Client
By the summer of 2009, Mark was ready to get back
to work on his master’s, and he had the money to pay
for the student-teaching credit hours he needed. But
the fates were not finished with him yet. He contacted
his college to re-enroll and discovered that the New
York State teaching requirements had changed, and he
would now have to take additional courses. He could
not afford to pay for these added courses and had to
wait until January 2010 to be eligible for financial aid.
In January, 2010, Mark re-applied to his college. His
bad luck continued, and the college denied his application because of his poor grades from the semester during which he had taken a leave of absence. He spoke
with three other schools, and they all told him that he
would not be able to complete his coursework by the
time his provisional teaching certificate expired in
August 2010. Thinking that he was finally due for some
good luck, Mark applied for another extension from the
State Department of Education.
Meanwhile, his employer had been telling him that
he would be let go in August unless he obtained a permanent certificate or an extension of his provisional
teaching certificate. The state failed to respond to
Mark’s request for an extension, and Mark was terminated from his position in August of 2010.
He then applied for unemployment insurance benefits but his application was denied because, according
to the Department of Labor, his “failure” to obtain his
teaching certificate amounted to his having voluntarily
quit his job without good cause. In other words, Mark
supposedly “provoked” his own discharge. He
requested a hearing to review this determination.
Here, luck finally was on Mark’s side. Actually, the
law was on Mark’s side. The Court of Appeals has
defined the doctrine of provoked discharge as a “narrowly drawn legal fiction designed to apply where an
employee voluntarily engages in conduct which transgresses a legitimate known obligation and leaves the
employer no choice but to discharge him.” DeGrego v.
Levine, 39 N.Y.2d 180, 183, 383 N.Y.S.2d 250 (1976).
Western District Case Notes
against the manufacturer without prejudice, so that it
could seek indemnification in a new action in Texas.
The court denied the motion and granted the manufacturer’s motion for summary judgment, dismissing
the cross-claim with prejudice, holding that the jury’s
verdict that the manufacturer was not liable to plaintiffs barred the seller’s cross-claim under the doctrine
of claim preclusion.
INSURANCE
In Emerson Enterprises, LLC v. Kenneth Crosby New
York, LLC (03-CV-6530 CJS, 3/1/11), plaintiff sought
indemnity from an insurer under federal and state
environmental laws with respect to a remediation performed by the Department of Environmental
Conservation. The court granted the insurer’s motion
for summary judgment, finding that all three applicable insurance policies excluded coverage for intentional
pollution and that the disposal of waste to a drywell
located on the property was “expected or intended” as
continued from page 10
My argument before the administrative law judge
(ALJ) at Mark’s hearing was two-fold. First, Mark’s
failure to acquire his permanent teaching certificate
was not voluntary by any stretch of the imagination.
He did everything he possibly could do to obtain his
teaching certificate. At every turn, Mark engaged in
prudent actions, the result of which should have
resulted in a permanent teaching certificate. It just did
not work out as planned. Secondly, although Mark
could not be a teacher, there were other positions available at the school, and he was well-qualified for those
positions. His employer, then, did not have to terminate him.
My direct examination of Mark focused on his run of
bad luck and the actions he took to try to obtain his
teaching certificate. When I cross-examined Mark’s
employer, I was able to elicit testimony about the other
positions at the school for which Mark was qualified. I
argued that Mark’s case simply did not fit the definition of provoked discharge because his failure to obtain
a teaching certificate was not voluntary and, in any
event, his employer did not have to terminate him.
The ALJ agreed. On December 31, 2010, the ALJ
issued a decision overturning the prior determination
and awarding benefits to Mark. Mark’s run of bad luck
had finally come to an end!
I am grateful that my firm encouraged me to take a
pro bono case. This experience made me proud to be
an attorney and I am so glad that I was able to help
Mark. As a young attorney, the experience I received
was beneficial to my practice. In preparation for the
hearing, I had to analyze my burden of proof and
decide how to present the evidence necessary to sustain
that burden. I worked closely with Mark to develop our
case. I examined witnesses at the hearing, made a closing argument before the ALJ, and, best of all, I helped
Mark end his bad luck streak.
[B]
Kim Georger is an associate at Rupp, Baase,
Pfalzgraf, Cunningham & Coppola LLC, where she
focuses her practice on commercial litigation and labor
and employment law.
continued from page 10
that term was used in the policy, regardless of whether
the overflow of contamination onto surrounding land
or migration to the subsurface was accidental and
unintended.
MARITIME LAW
In Northeast Research, LLC v. One Shipwrecked
Vessel (04-CV-645A, 3/25/11), the court adopted the
magistrate judge’s report and recommendation and
granted the state’s motion for summary judgment dismissing plaintiff’s claim to a Great Lakes vessel submerged in Lake Erie near Dunkirk. Plaintiff alleged
that the vessel was a schooner built in 1799, to which
it claimed to have an assignment of title, but the court
found that the state held title under the Abandoned
Shipwrecks Act, 43 U.S.C. §2101 because “abandonment” could be inferred from, among other facts, the
absence of any effort to locate and salvage the vessel in
over 150 years.
[B]
PAGE 29
May 2011 | www.eriebar.org
lost in (techno) space
By Martha Buyer
What’s the Big Deal with the AT&T/T-Mobile Deal?
AT&T announced its intention to acquire privately
held T-Mobile for $39 billion dollars on March 20,
2011. This isn’t exactly the ho-hum, oh yeah, another
telecom deal snore-fest that it seems like, for a number
of reasons. First, while AT&T is a publicly-held company, T-Mobile is the property of Deutsche Telekom,
AG, a privately-held firm, making for some creative
deal-making without the uber-scrutiny required when
one publicly-traded firm devours another. Secondly,
and parochially, it may improve AT&T’s service in
western New York, as AT&T will likely take control of
that piece of the pie that is currently operated by TMobile and use it to provide better coverage in this
area. Thirdly, if the acquisition is approved, it is likely
that consumer advocates are correct - there will be less
competition in the mobile space as one mid-size competitor gets absorbed into a big one. This is of particular concern, because T-Mobile has built its business on
being price-competitive, thus forcing its larger rivals to
hold prices down, at least minimally. Without TMobile, it’s fair to assume that prices will creep up even
more quickly than they already have.
As many people who live in western New York know,
AT&T coverage, particularly for broadband applications, isn’t as robust as that provided by Verizon. In
other cities, this isn’t the challenge that it’s been here and for those who don’t stray off the beaten path often,
it may be a non-issue. But the fact is that in terms of
depth of coverage, AT&T has been at a marked disadvantage because of its lack of towers in this area. With
the proposed acquisition of T-Mobile, AT&T expects to
take control of T-Mobile assets, including, both towers
and spectrum license.
On the spectrum side, the jewel that AT&T wanted is
what’s known as the AWS Spectrum in the 1700 megahertz range. AT&T needs this to supplement its current
spectrum holdings to support 4G (fourth generation),
providing faster data rates for wireless broadband. In
addition, by acquiring T-Mobile’s spectrum (an asset
that is clearly a limited commodity), AT&T will be able
to combine T-Mobile’s asset with its own, thus creating
additional efficiency in the management of the spectrum that it has. Finally, a deal like this is all about the
real estate, baby. More towers and more spectrum can
mean better service. If the merger is approved, it’s not
unreasonable to expect better access to a broadband
wireless signal. It’s just that it won’t happen immediately.
It’s not unreasonable to assume that because this
transaction will create some additional consolidation in
the wireless marketplace, the team from the U.S. DOJ
Anti-Trust division will be paying close attention. They
are likely to require, at a minimum, that AT&T divest
itself of some of its assets. Certainly the Obama
Administration has indicated a real interest in examining those transactions which it considers anti-competitive. Because of AT&T’s size and market position, not
to mention the barrage of complaints that it has been
hearing from the third-largest player in the room,
Sprint, it is not unexpected that the DOJ will take its
obligations seriously.
Sprint, along with consumer groups, has claimed
that the elimination of a mid-size player in the market
will be bad for consumers. CEO Dan Hesse went so far
as to say that he has “concerns that [the merger] would
stifle innovation and too much power would be in the
hands of two,” claiming that if the deal is approved,
AT&T and Verizon Wireless will control 79 percent of
the market. Verizon Wireless, on the other hand, has
been, up to this point, rather – and surprisingly – quiet
about the acquisition. Stay tuned.
deployed successfully in many metropolitan areas,
often the inner cities have been left behind. An interesting op-ed piece by Laura Washington, which
appeared in the Chicago Sun-Times in late March, suggested that now is the time for AT&T and T-Mobile,
who both want this merger approved, to reach out,
especially to the Congressional Black Caucus to ensure
that its particular constituency gets access to wireless
broadband.
Washington argues that disadvantaged urban consumers are often left out of broadband deployment,
although they, like their counterparts in rural areas,
have a great need for wireless broadband. She further
suggests that while the Republican members of
Congress will likely support the acquisition, members
of the Congressional Black Caucus, who are predominantly Democrats, should join forces with the
Republican majority to secure concessions that
improve access in urban areas. After all, as she points
out, AT&T will need lots of friends - and with apologies
to William Shakespeare, “politics makes for strange
bedfellows.” Members of the CBC have received campaign contributions from the telecommunications
giant, and perhaps it is now time for the group to
“alert” AT&T about needs that are being unmet.
continued on page 30
Inner Cities Often Ignored in Broadband
Deployment
As is often the case, mergers - even just proposed
ones - can create strange bedfellows. Because this deal
involves AT&T and because AT&T is a generous campaign contributor on both sides of the aisle, it has a
good number of friends in high places (more on that in
a minute). And interestingly, while broadband has been
St. Thomas More Guild Inc.
An Organization for Lawyers
in the Diocese of Buffalo, New York
President
Directors
John J. Aman
K. John Bland
Laurie Styka Bloom
Vice President
Craig R. Bucki
Michael L. McCabe Cornelia Farely
Hon. Sharon M. LoVallo
Daniel T. Lukasik
Secretary
J. Michael Lennon II Hon. Patricia A. Maxwell
Hon. Jeremiah J. McCarthy
Paula Eade Newcomb
Treasurer
Mary L. Slisz
David C. Mineo
Vincent J. Sorrentino
Kevin W. Spitler
Donna Hoelscher Suchan
J. Patrick Lennon
A N N UA L LU N C H E O N
Wednesday, June 1, 2011 • 12:00 Noon
Buffalo Niagara Convention Center
$30 per person • $300 for table of 10
$350 for patron table of 10
Honoring
Michael S. Taheri, Esq.
Speaker
Msgr. Paul J.E. Burkard
Vice Postulator for Father Baker’s Cause
for Canonization
Send checks payable to
the St. Thomas More Guild Inc.
P.O. Box 35, Buffalo, New York 14201
For more information contact
J. Patrick Lennon at 854-1300.
PAGE 30
Tax Notes
www.eriebar.org | May 2011
continued from page 17
Non-cash assets, such as a house, car or boat, however,
would have to be seized and sold in order for the IRS
to reduce the asset to cash. Since the IRS knows that
fair market value will not be realized at a forced sale,
80 percent of the value is utilized. Thus, for example, a
house with a fair market value of $100,000 and an
$80,000 mortgage would be valued at zero in determining the required amount of the offer.
The second part of the equation requires the calculation of the taxpayer’s net monthly income. The net
monthly income is determined by subtracting from the
gross income “necessary” living expenses based on IRS
standards. Unfortunately, but not surprisingly, the
standards are not that generous. For example, the
housing allowance for a family of three in Erie County
would only be $1,553. That includes mortgage, property taxes and utilities. The IRS standards can be
obtained at www.irs.gov. The most common type of
OIC is a cash offer which is calculated by taking the net
monthly income and multiplying it by a factor of 48.
This amount is then added to the total value of the
assets based on the formula referenced above. As a
result of the limited allowable expenses and the magnitude of the 48 multiplier factor, what may seem like a
relatively modest income may make an OIC infeasible.
Twenty percent of the amount being offered, based on
the calculation, must be submitted with the offer. If the
offer is deemed unprocessable or rejected, the 20 percent is not refunded. If the OIC is accepted, the taxpayer must pay the balance over five months from
acceptance.
It is important to note that it is not what a taxpayer
owes, but how their assets, income and allowable
expenses impact the formula described above that
determines if an OIC is a viable option. We have had
many cases in which hundreds of thousands or even
millions of dollars have been compromised for a small
fraction of the outstanding tax debt. Conversely, often
an OIC will not work, regardless of the amount owed.
For these cases, alternative options must be explored.
Bankruptcy is often the best alternative, and in many
cases it may be a better choice, even if an OIC would
be accepted at a significant savings. Bankruptcy may
offer a global solution in that it will also address other
debt problems and, under the right circumstances,
taxes may be discharged without any payment.
Bankruptcy and Tax Debt
In order to determine what impact bankruptcy will
have on a tax debt, the type of tax claim must first be
determined. The type of claims would consist of
secured, priority or general unsecured. A secured tax
claim would arise where the IRS has filed a notice of
Federal tax lien against the debtor prior to bankruptcy
and the lien attaches to equity in an asset. The IRS lien
attaches to all real and personal property. In a Chapter
7 liquidation, the Service will be entitled to payment
from the liquidation of the asset to the extent of the
claim; or if the asset is abandoned by the bankruptcy
trustee or exempted from the estate, the lien may be
enforceable against the asset after bankruptcy. In a
Chapter 11 or 13 bankruptcy involving a payment
plan, the debtor can retain any asset subject to the lien,
but the amount of the secured claim will have to be
paid through the course of the plan, plus interest.
If the IRS does not have a secured claim, either due
to the lack of a filed notice of tax lien or lack of equity,
the next question is whether the claim qualifies as a
priority tax claim under Bankruptcy Code §507(a)(8).
A priority tax claim is paid ahead of unsecured creditors and is excepted from discharge under Bankruptcy
Code §523. Determining whether a tax liability is a
priority claim is complex. The two most common types
of tax debts for an individual would be income and
trust fund taxes. Trust fund taxes, such as payroll withholding or sales tax, always qualify as priority and
therefore are never dischargeable. However, income
taxes, contrary to common belief, can be non-priority
and discharged under the right circumstances.
In determining if an income tax is a priority, a threepart test has to be analyzed. First, if the tax in issue
relates to a return that was due within three years of
bankruptcy, it will be a priority tax. A return is due
either April 15th or October 15th of the following year,
depending on whether an extension was filed.
The second rule states that if the tax was assessed
within 240 days of the bankruptcy filing, it will be a
priority tax. Additionally, if an Offer in Compromise is
submitted during the 240 day period, whatever time is
remaining on the 240 days is tolled while the offer is
under consideration by the Service and 30 days is
added to that time after the offer is rejected or withdrawn. Therefore, if an OIC is submitted after 200
days from assessment, and the offer is pending for a
year and then rejected, the tax will be priority for 70
more days (40 days remaining plus the statutory additional 30 days) under this provision.
It should be noted that certain actions can toll the
above timing periods under the statute. If the debtor
filed a prior bankruptcy or filed an appeal under I.R.C.
§6330 in response to a collection notice, the priority
periods referenced above do not run while these actions
are pending, plus 90 days. It is critical for a practitioner
to obtain a transcript from the IRS prior to filing bankruptcy to ensure that the timing periods have run. All
necessary information will be contained on the transcript, assuming the relevant years are requested.
The third provision states that if the tax is not
assessed but still legally assessable, it is a priority tax. A
tax liability is normally assessable within three years of
the date the return is filed or due, whichever is later.
However, there are instances where the Service has
more than three years, such as a 25 percent omission of
income, which extends the time to six years, a waiver
signed by the taxpayer, or Tax Court litigation. The
Service would also have more than three years if the
return in issue was delinquent or fraudulent, since the
time runs from when the return was filed and the
Services has forever to assess if the return was fraudulent. However, if these are the reasons the tax is still
assessable, it will not be a priority. The policy behind
this provision is that Congress did not want to penalize
other unsecured creditors by having taxes relating to
late or fraudulent returns paid first. Instead, Congress
penalized the taxpayer by making these taxes non-dischargeable under another provision as explained below.
If the tax is not a secured or priority tax, it will still
be excepted from discharge under Bankruptcy Code
§523(a)(1)(B) and (C) if the return is not filed, filed
delinquently within two years of bankruptcy, or fraudulent. If a taxpayer fails to file a return, the Service can
prepare a substitute for return based on income information. This does not constitute a return for discharge
purposes.
Although the bankruptcy rules relating to discharging taxes are complicated and timing is critical, in
many situations income taxes can be discharged in
bankruptcy, giving a debtor a fresh start. Due to an
abundance of misleading advertising, OICs, although
sometimes a great solution, are overused while bankruptcy, due to an abundance of misunderstanding, is
underutilized. Knowing how to use both options maximizes the chances of successfully resolving a client’s tax
problem.
Gary Bluestein is a partner in the Williamsville law
firm of Bluestein & Muhlbauer, P.C.
Lost in Techno Space
continued from page 29
AT&T, which has been involved in high profile activities probably for as long as it has existed, is no stranger
to the workings of Washington. In fact, in anticipation
of something in the works, AT&T, at holiday season,
attempted to curry favor with the FCC in a sweet and
tempting way. Operation Cupcake (not kidding)
deployed 1500 cupcakes to the FCC’s Washington
office, with, according to the New York Times, military
precision. Who doesn’t like cupcakes?
This transaction will remain, I expect, in the news
until it is either approved or denied because it involves
AT&T and because of the significant share of the wireless market that could be shared, primarily between
two big vendors. It’s likely that if approved, consumers
will see little benefit, particularly in the short term, as
AT&T absorbs T-Mobile’s assets, including spectrum
and operating (read: billing) systems. For all of the
platitudes offered by the proponents, it does look, at
least a little bit, like AT&T is dominant again.
Contributions to the Erie County Bar Foundation provide an excellent
vehicle for recognizing and honoring members of our profession.
Memorial gifts to the Foundation become a lasting tribute to the entire
legal profession, as funds are used exclusively to assist attorneys and
promote understanding of our legal system.
The Foundation gratefully acknowledges
the following contributions:
In Memory of James Hagerty
(Father of Thomas V. Hagerty):
Coleman Volgenau
Jim & Mary Shea
Michael J. Flaherty
Paula & Terry Newcomb
Philip H. Magner, Jr.
In Memory of Hon. Thomas P.
Flaherty:
Brian N. Lewandowski
In Memory of John R. Weaver:
Irving C. Maghran, Jr.
In Memory of John J. Flynn:
Irving C. Maghran, Jr.
In Memory of Arnold Gardner:
Jeffrey M. Freedman
In Memory of Victor Gagliardi:
Paula & Terry Newcomb
In Memory of John Cotter:
Irving C. Maghran, Jr.
In Memory of G. Sydney Shane:
Irving C. Maghran, Jr.
In Memory of Kenneth L. Cooper:
Michael J. Cooper
PAGE 31
May 2011 | www.eriebar.org
New Reentry Court Program Works to Reduce Recidivism,
Help High Risk Offenders Return to Community
By Anthony SanGiacomo
Chief U.S. Probation Officer
The Western District of New York
Probation and Pretrial Services
Office has recently commenced a
Reentry Court Program to target
high risk offenders. The Reentry
Court will be conducted by Hon.
Hugh B. Scott in our Buffalo office and Hon. Jonathan
W. Feldman in our Rochester office. The primary goal
of the Reentry Court is to reduce recidivism by establishing a seamless system of offender accountability
and support services throughout the reentry process.
Our policy will focus on accountability aimed at establishing a program of both graduated sanctions and
rewards to influence the participants’ conduct. The
Reentry Court team is comprised of staff from the U.S.
Attorney’s Office, the Federal Public Defender’s Office
and the U.S. Probation Office.
The Reentry Court team will assess and identify barriers and needs of high risk offenders recently released
from the Federal Bureau of Prisons custody into our
communities. The Reentry Court participants will be
linked with services specific to their needs including
treatment, employment, life skills training, and educational programs designed to reduce the likelihood of
recidivism and promote successful reintegration into
the community. Some of these services are conducted
within the probation office while other services are
offered on a referral basis.
The participants will be required to appear before
the court on a regular basis for review and to establish
personalized program plans that focus on following
established goals. Our Reentry Court will work closely
with the offenders to assist with their reintegration
back into society by networking with a variety of agencies that focus on treatment services, employment, and
cognitive behavior life skills programs.
Any participant who favorably completes the oneyear program will receive a recommendation to the
sentencing judge to reduce the term of supervision by
as much as 12 months.
For further information about the Buffalo Reentry
Court, please contact Tammi Rogers, Program
Development Specialist, at 551-4241, ext. 204. To
learn more about the Rochester Reentry Court, contact
Cathy Salvaggio (Buckert), Senior U.S. Probation
Officer, at 585-263-6810, ext. 203.
j
A few days ago, I was approached by a good
friend of mine. He told me that his drinking was
getting “a bit out of hand” and that the time
had come to see what could be done about it.
He informed me that he had tried on his own
many times, and in many different ways, to
address this problem but his efforts were to no
avail. The funny thing about it is, he said he
wanted to “check it out” but didn’t want to
commit to attendance or sobriety at the
moment.
If so, you’re definitely not alone. A recent
Johns Hopkins study of 108 occupations
found that lawyers topped the list of those
who suffered from depression. Attorneys were
found to suffer from depression at a rate of
four times that of the general population.
Depression is a treatable illness and the
right combination of medications and therapies can significantly improve the quality of
life for those who suffer from it.
Help and support are just a phone call
away. The Lawyers with Depression Support
Group
meets
monthly
to
share
stories and fellowship. The group meets every
other Friday (except holidays). See the calendar on
the back page for meeting dates. Meetings are held
at Bar Headquarters, 438 Main Street, Sixth Floor,
at 12:30 pm and lunch is provided. There is no
need to pre-register.
If you or a colleague are struggling with
depression, there is no need to suffer in
silence. For further information, visit
www.lawyerswithdepression.com or contact
Daniel T. Lukasik at 852-1888. All calls are
strictly confidential. We invite you to join us
and share your story.
Speaking with my friend was like looking in a
mirror that reflected the me of years ago. When he
asked me how I had quit booze and drugs, my
reply was simple: Alcoholics Anonymous. He
seemed ambivalent. He expressed concerns about
his professional reputation and his standing in the
community. I told him that he would no longer
have a professional reputation or standing in the
community if he allowed his disease to go
unchecked, and that the ‘Anonymous’ component
of AA addresses concerns such as this.
He finally seemed relieved when I told him
about the Lawyers Helping Lawyers Committee.
I explained to my friend that many attorneys suffer from the disease of alcoholism and would welcome the opportunity to help him. He seemed
surprised to learn that we have a weekly meeting
but he also seemed anxious to attend.
continued from page 14
SUPPORT REPORT
The Fourth Department upheld the award of maintenance with an imputation of $12,000 of additional
income in Coleman v. Coleman, __AD3rd__, 3/25/11,
#272.
A downward modification of support was denied
where the court was not satisfied that the father was
unable to find comparable employment. (Basile v.
Wiggs, __AD3rd__, 2nd Dept., 3/15/11)
Without sufficient contrary proof from the non-custodial parent, the custodial parent was awarded child
support pursuant to the CSSA without being required
to demonstrate need. (Scelow v. Scelow, __AD3rd__,
3rd Dept., 2/24/11)
A support award under a shared custodial arrangement which deviated from the CSSA was upheld by the
Appellate Division in Mtr. of Disidoro v. Disidoro, 3rd
Dept.,2/24/11.
A Friend in Need
Boy, could I relate to that. I had tried to gain
control of my substance abuse problem for
years. The aftermath of each vain attempt
made my life even more chaotic than it had
been before.
Are You An Attorney
Struggling With
Depression?
Citations
i
Last night, my friend met me at a meeting. It
was his first meeting and he seemed as nervous
as I was at my first one. The people there tried
to put him at ease and were friendly. I remember wishing they hadn’t been so friendly when I
began so I wouldn’t be noticed!
It appeared that their attempts to welcome
him worked. I could sense a feeling of relief in
my friend as he looked around the room and
noticed many attorneys in attendance.
After the meeting, I introduced him to my AA
sponsor (a sponsor is a mentor of sorts). He
instantly recognized my sponsor as a prominent
attorney in our area. This also seemed to have
a positive effect on my friend.
I hope my friend comes back. Some come
back right away; others return after a period of
time. Those are the lucky ones. Others lose their
jobs, families, and/or their professional licenses.
Some go to jail. Some are institutionalized.
Many end up dead. The Lawyers Helping
Lawyers Committee really cares. They offer
confidential assistance to attorneys, their families, and others. There is no charge for this help.
We pay a high enough price to qualify, if you
know what I mean.
The people involved give of themselves freely
in a fashion I had been unaccustomed to. They
have literally saved my life.
Editor’s Note: If you or a colleague are struggling with substance abuse, help is readily
available. Call 852-1777 for completely confidential assistance.
PAGE 32
www.eriebar.org | May 2011
Bench and Bar
Liebner
continued from page 3
Katherine M. Liebner has joined
Gross, Shuman, Brizdle, & Gilfillan,
P. C. as an associate attorney. She
will focus her practice in civil litigation, plaintiff personal injury litigation, business and commercial litigation, and employment law. Liebner
received her JD from the University
at Buffalo School of Law and her BA
from Canisius College.
Charlie Roberts has been promoted from corporate counsel to
assistant general counsel for
Delaware North Companies, a global
hospitality and food service company. Roberts will be responsible for
managing Delaware North’s litigaRoberts
tion concerns, including commercial
and employment litigation. He has
been with the company since 2003. Before joining
Delaware North, Roberts was an attorney at Webster
Szanyi LLP and Colucci & Gallaher, PC. He received
his bachelor’s degree from the State University of New
York College at Buffalo and his law degree from the
University at Buffalo School of Law.
Sujata Yalamanchili has been
named practice area leader for the
real estate, finance & bankruptcy
practice group at Hodgson Russ LLP.
As practice area leader, Yalamanchili
will oversee the firm’s real estate,
finance & bankruptcy and restrucYalamanchili
turing & commercial litigation practice groups. The firm’s five practice
areas are the primary business units of the firm. The
other four practice areas are business; litigation;
employment, benefits, and immigration; and tax.
Yalamanchili succeeds John P. Amershadian in her
new role.
Thomas J. Lang has joined the
law firm of Burden, Gulisano &
Hickey, LLC. He was admitted to the
New York bar in March 2011 and he
will concentrate his practice in
defending catastrophic personal
injury cases throughout New York
Lang
state, primarily in trucking/transportation negligence, product liability, premises liability, labor law and municipal law.
Lang received his JD cum laude from the University at
Buffalo School of Law, his MBA from the University at
Buffalo and his BA from the State University of New
York at Fredonia.
Carol E. Heckman, a partner in
Harter Secrest & Emery LLP’s
Buffalo office, has been certified by
the American Arbitration Association
(AAA) as member of the organization’s arbitration and mediation panels. She has recently handled mediations or arbitrations in New York
Heckman
City, Rochester, Albany, Washington
D.C. and the U.S. Virgin Islands. The AAA provides
services to individuals and organizations who wish to
resolve conflicts out of court. Heckman is a former
magistrate judge with over 33 years of experience as a
trial and appellate lawyer. In her current litigation
practice, she primarily represents Fortune 500 companies and a sovereign Native American tribe in a variety
of commercial and business disputes.
Hope R. Jay recently announced
the opening of the Law Office of
Hope R. Jay. A former prosecutor at
the Erie County District Attorney’s
Office, Jay has trial experience at
various levels of the New York courts.
She will concentrate her practice in
Jay
criminal defense, matrimonial and
family law. Other practice areas
include personal injury, immigration, bankruptcy, and
wills, trusts and estates. For further details, visit
www.hopejaylaw.com.
Kubarek
Tzetzo
Banas
Loftis
Swanekamp
Joseph Kubarek and Tim Loftis
have been elected to lead the executive
committee
at
Jaeckle
Fleischmann & Mugel, LLP. Kubarek
has been elected to serve as chair and
managing partner, with Loftis serving as vice chair. Other members of
the firm’s five-person executive committee include recently elected partner Charles C. Swanekamp, along
with partners Nicole R. Tzetzo and
Mitchell J. Banas, Jr. Tzetzo is a
partner in the firm’s tax practice
group; both Kubarek and Loftis are
partners in the firm’s business & corporate practice group; Swanekamp
and Banas are partners in the firm’s
litigation practice group.
Rachel M. Kranitz has rejoined
Pusatier, Sherman, Abbott &
Sugarman, LLP, where she will continue to represent clients in matrimonial, family law and criminal defense
matters. Each member of the firm,
located in Kenmore, focuses on a
Kranitz
particular area of law, including personal injury, social security disability
and estates and also offers professional mediation services. Kranitz earned both her JD and BA from the
University at Buffalo. She is a board member of the
Holocaust Resource Center, which promotes awareness
and education of the Holocaust in western New York.
She also participates in the Big Brothers/Big Sisters
program.
Killelea
Terrie Benson Murray, a partner at Cohen & Lombardo, has
been elected vice president of
the
Philanthropic
Education
Organization (P.E.O.) for its CM
Chapter based in Orchard Park for a
two-year term. One of the founding
Murray
members of the Chapter, Benson
Murray is also project chair for
Cottey College, a private two-year liberal arts college
for women in Missouri. Founded in 1869, the group
now has 250,000 women in chapters throughout the
United States and Canada to help women pursue higher education. A graduate of the University at Buffalo
Law School, Benson Murray received her BA summa
cum laude from SUNY Fredonia. She serves on the
BAEC’s Elder Law, Practice and Procedure in
Surrogate’s Court, Bankruptcy and Intellectual
Property Committees.
Dr. George Hajduczok, special
counsel with Phillips Lytle LLP,
recently presented a special research
lecture titled “Biotechnology: Risks
and Liabilities in a Global Economy”
at Weill Cornell Medical College in
the Middle Eastern country of Qatar.
Hajduczok
At Phillips Lytle, Dr. Hajduczok
practices in the area of medical
device and pharmaceutical products liability litigation.
He holds a doctorate in physiology and was formerly
on the faculty of the department of physiology and biophysics at University at Buffalo School of Medicine. He
now holds a research associate professor position with
the University. Dr. Hajduczok received his BA, JD and
Ph.D degrees from the University at Buffalo. He is a
scientific advisory board member for Oncology
Research Therapeutics, Inc. and also serves on the
board of Suneel’s Light Foundation.
Carolyn Nugent Gorczynski has
joined the firm as an associate attorney who will work in the firm’s corporate department. She will focus
most of her time on corporate clients
but also has experience in education
law and will continue her practice in
Gorczynski
that area as well. Education Law
experience and will be continuing to
practice in that area as well. She holds a BA from
Canisius College and a JD from the University at
Buffalo School of Law.
COMING SOON!
Daniel M. Killelea has joined
Michael M. Mohun to form a new
partnership for the practice of law,
Mohun & Killelea. The firm maintains offices at 344 Kern Road in
Cowlesville. Mohun & Killelea’s
practice is limited to representing
individuals charged with criminal
offenses in state and federal courts;
attorneys in matters before the
Attorney Grievance Committee;
judges in matters before the
Commission on Judicial Conduct;
and law enforcement officers in matters of departmental discipline.
Mohun
The 2011-2012
Directory of Attorneys & the Courts
Get your copy of the completely updated
Directory at the Bar Elections on
Friday, June 10 or reserve
by phone at 852-8687.
PAGE 33
May 2011 | www.eriebar.org
Erie County Bar Foundation: An Organization
for Lawyers in Need
By Joel Brownstein
As we go about our daily tasks as
practicing lawyers in an often very
competitive environment, most of us
have learned to live with the pressure
and can have a congenial relationship with other counsel. We don’t
dwell on what might happen if our
world were to break down. This does
happen and often through no fault of the attorney, due
to many reasons such as serious illness, premature
aging (Alzheimer’s, etc.), reaction to the stress of “winning” and retaining clients (which can result in depression, substance abuse), losing one’s position in a firm,
and more. Some are just unable to cope with the stress
of our chosen field.
As members of the board of the Bar Foundation, we
are witnesses to these unfortunate events. Most of us
have never personally experienced these problems but
the Bar Foundation is there as a backup for lawyers
who fall upon hard times that prevent them from continuing their work as attorneys in a successful way.
This failure not only impacts the attorney, but his or
her family as well. The Bar Foundation does step in
and assist whenever and wherever possible.
With professional assistance and a caring board,
many a struggling attorney and his or her family have
been generously and very confidentially assisted. It is
not only financial assistance, such as paying health
insurance, short-term loans, or assisting the lawyer in
the management of his or her practice, but it is the
advice from those of us who are fortunate to be able to
assist, including the professional staff of the
Foundation.
As a board member who attends the meetings and as
one who can assist, I am thankful to be in a position to
help. There is a great amount of gratification when we
are able to give to lawyers who need assistance.
This is a confidential service available to all bar
members who need it. All it requires is an inquiry or
phone call. Should you become aware of one of our
brethren who is in need, do not hesitate to contact the
Bar Foundation. If you feel shy or reluctant about making contact, call on a board member you know personally.
For those of us who have been thus far able to cope,
make a good living, and maintain reasonably good
health, we should give thanks we do not need this service. But what a comfort it is to know that it’s always
there! A tax deductible contribution is a great way of
giving thanks. If you have not contributed to the latest
campaign, send a check to the Bar Foundation at the
Bar Association office, 438 Main Street, Sixth Floor,
Buffalo, NY 14202.
Bar Association of Erie County
2011 Bill Would Cut Legal
Aid by $15.8 Million
Recently announced legislation would cut the 2011
budget for the Legal Services Corporation (LSC) by
$15.8 million, reducing funds for civil legal assistance
to be made available to low-income Americans.
LSC received $420 million in funding for fiscal year
2010, and the funding bill for 2011 would provide
$404.2 million, a reduction of 3.8 percent. The legislation, the result of a negotiated agreement between the
Congress and the White House to avoid a government
shutdown, is scheduled for votes in the House and
Senate this week.
“Every dollar provided for civil legal assistance helps
low-income individuals gain access to our justice system. We are grateful that funding cuts will not be as
deep as initially proposed, and we look forward to
working with the Congress on fiscal year 2012 funding
to provide even greater access to justice for the growing
number of low-income Americans in need of civil legal
assistance,” LSC Board Chairman John G. Levi said.
The funding reduction would affect the grants that
LSC distributes to 136 independent nonprofit legal aid
programs across the nation, the District of Columbia
and U.S. territories. Last year, these programs closed
nearly 1 million cases, which affected 2.3 million people. The cases involve domestic violence, foreclosures,
landlord-tenant disputes, bankruptcy, consumer issues
and other civil legal matters.
Established in 1974, LSC is an independent
501(c)(3) nonprofit corporation that promotes equal
access to justice and funds civil legal assistance to lowincome individuals and families. LSC-funded programs provide legal services to persons at or below 125
percent of the federal poverty guideline. LSC estimates
that more than 63 million Americans - including 22
million children - qualify for civil legal assistance from
LSC-funded programs.
[B]
25 & 50 Year Members
Congratulations to our Gold and Silver Honorees!
50 YEAR MEMBERS
John R. Bray
Stephen E. Cavanaugh
Stuart A. Gellman
Richard H. Gordon
Henrik H. Hansen
Peter E. Klaasesz
Norman J. Mattar
Sue Dealy Murszewski
Hon. Frank A. Sedita Jr.
Carl E. Snitzer
Dennis J. Speller
Peter C. Wiltse
25 YEAR MEMBERS
Ree Adler
Kenneth W. Africano
Richard R. Anderson
Mitchell J. Banas Jr.
Thomas J. Barnes
Kevin J. Bauer
George F. Bellows
Steven B. Bengart
William C. Bernhardi
Jill K. Bond
Peter K. Bradley
Mark Burhans
Santo A. Campanella
Sandra K. Cassidy
Donna M. Castiglione
Roland M. Cercone
Charles R. Chase
Paul A. Chiaravalloti
Paula M. Ciprich
Neil N. Cuomo
Hon. John M. Curran
Albert J. D'Aquino
Michael A. de Freitas
Damon A. DeCastro
Anne C. DiMatteo
Michael B. Dixon
Anne F. Downey
Brian W. Downey
Gayle L. Eagan
Anne C. Evans
Robert A. Fiordaliso
John J. Flaherty
Andrew P. Fleming
Timothy P. Frank
John C. Garas
Kevin P. Gaughan
Dennis P. Glascott
Ira Mark Goldberg
Andrew A. Gorlick
Cindy Algase Gradl
William E. Grande
Daniel M. Griebel
Susan Hassinger
Douglas M. Heath
Ann Giardina Hess
Frank S. Ieraci
Shaun B. Jackson
Keith I. Kadish
Tracey A. Kassman
James E. Kissel
Geoffrey K. Klein
David W. Kloss
John T. Kolaga
Kathleen Downing Krauza
Kevin A. Lane
Mary Jo Lattimore-Young
Rocco Lucente II
Timothy R. Lundquist
Jill S. Lynch
Edward J. Markarian
Daniel J. Marren
Patrick E. Martin
Virginia C. McEldowney
C. Daniel McGillicuddy
Gail Y. Mitchell
Thomas M. Moll
Rebecca E. Monte
Richard A. Moore
Michael O. Morse
John W. Murray
Molly Jo Musarra
James J. Navagh
Charles R. Notaro
Timothy G. O'Connell
Joseph E. O'Donnell
Kevin M. O'Neill
Deborah A. Olszowka
Rev. Dorothy Burton
Pearman
Mark J. Peszko
Kathleen Platzer
Jeanne M. Ptak
Ian J. Redpath
Hon. Robert M. Restaino
Antonio Savaglio
Daniel T. Sawers
Richard M. Schaus
Geralyn A. Schiffler
Duane D. Schoonmaker
Stephen J. Schop
Michael I. Serotte
Robert E. Spangenthal
Thomas J. Speyer
Patricia J. Starr
Thomas A. Steffan
Donna Hoelscher Suchan
Rosa S. Svisco
Kevin A. Szanyi
Hon. Shirley Troutman
P. Andrew Vona
Catherine T. Wettlaufer
Michael J. Whitcher
Thomas E. Wojtan
James M. Wujcik
Stephen P. Zanghi
Steven M. Zweig
PAGE 34
www.eriebar.org | May 2011
ERIE INSTITUTE OF LAW
PROVIDING CONTINUING LEGAL EDUCATION FOR YOUR PROFESSIONAL ADVANTAGE
PLEASE NOTE: The Erie Institute of Law is unable to issue partial credit for seminars, except for multiple session programs such as the Tax and
Leadership Institutes. If you have questions about whether a program qualifies for partial credit, please call Mary Kohlbacher at 852-8687.
Date/Time/Location
Topic
CLE Credits
Price
Wednesday, May 4, 2011
1:00 p.m. - 2:00 p.m.
Adelbert Moot CLE Center
438 Main St.
Buffalo, NY
Defending Your Municipality in a Federal
1.0 credit
Civil Rights Case
(Noonday Lecture presented by Municipal and School Law Committee)
$20 members
$25 non-members
Thursday, May 5, 2011
1:00 p.m. - 2:00 p.m.
Adelbert Moot CLE Center
438 Main St.
Buffalo, NY
Search Engine/Social Media Marketing
for Law Firms
(Noonday Lecture presented by Jay Butchko, Esq. of LexisNexis)
$20 members
$25 non-members
Friday, May 6, 2011
8:30 a.m. – 1:00 p.m.
Embassy Suites
AVANT Building, 200 Delaware Avenue
Buffalo, NY
Environmental Adventures in Real Estate 2011!
4.5 credits
(Noonday Lecture presented by the Environmental Law Committee)
$80 members
$110 non-members
Friday, May 13, 2011
9:00 a.m. - 4:30 p.m.
Genesee Community College
One College Rd.
Conable Technology Building
Batavia, NY
Eighth Annual WNY Bankruptcy Conference
7.5 credits
(Live Seminar presented by Commercial and Bankruptcy Law Committee
in conjunction with the Monroe County Bar Association)
A special thanks to our sponsors:
Consumer Credit Counseling Service of Buffalo, Inc.
Cricket Debt Counseling
D4
WebTitle Agency
West, a Thomas Reuters Business
$200 members
$240 non-members
After May 6
$210 members
$250 non-members
Wednesday, May 18, 2011
1:00 p.m. - 2:00 p.m.
Adelbert Moot CLE Center
438 Main St.
Buffalo, NY
Emerging Issues: Motor Vehicle Stops
(Noonday Lecture presented by Michael M. Mohun)
1.0 credit
$20 members
$25 non-members
Friday, May 20, 2011
9:00 a.m. - 3:45 p.m.
Hyatt Regency Buffalo
2 Fountain Plaza
Buffalo, NY
Court Certified Article 81 Training
(Seminar Presented by the Elder Law Committee)
6.0 credits
$135 members
$165 non-members
Thursday, May 26, 2011
1:00 p.m. - 2:00 p.m.
Adelbert Moot CLE Center
438 Main St.
Buffalo, NY
New York State Surveillance: Statutes, Caselaw
and Practical Pointers
(Noonday Lecture presented by the Negligence Committee)
1.0 credit
$20 members
$25 non-members
Wednesday, June 8, 2011
8:30 a.m. - 12:50 p.m.
Millenium Airport Hotel
3040 Walden Ave., Cheektowaga NY
Children, Charities, Contests & Clients/Ethics
4.5 credits
(Seminar presented the by Practice & Procedure in Surrogate’s Court Committee)
$80 members
$110 non- members
Thursday, June 9, 2011
1:00 p.m. - 4:30 p.m.
Templeton Landing
Two Templeton Terrace
Buffalo, NY
Secrets of Successful Advocates in Mediation
3.5 credits
(Seminar presented by the Alternative Dispute Resolution Committee)
Cocktail reception following seminar sponsored by
$70 members
$105 non-members
Friday, June 17, 2011
10:00 a.m. - 1:00 p.m.
Ceremonial Courtroom
95 Franklin St., Buffalo NY
Legal Writing and Oral Argument in Civil
Credits TBA
and Criminal Cases
(Seminar presented by the Appellate Practice and Negligence Committees)
Price TBA
1.0 credit
will be providing refreshments
Sponsored by
Mail or fax to: Erie Institute of Law • 438 Main Street, Sixth Floor, Buffalo, New York 14202
ERIE INSTITUTE OF LAW
REGISTRATION FORM
Please register me for the following
Erie Institute of Law sponsored events:
(716) 852-8687 • Fax (716) 852-7641
Name ________________________________________________________________________________________________
Firm ________________________________________________________________________________________________
Address ______________________________________________________________________________________________
1. ___________________________________________
2. ___________________________________________
City ________________________________________________________ State ____________ Zip __________________
3. ___________________________________________
Phone ___________________________ Fax __________________________ E-mail
Cancellation Policy: If you are unable to attend a
seminar for which you have already registered, call
Mary Kohlbacher at 852-8687 ext. 115. For a full
refund, notice of your cancellation must be received
before the date of the program. Registrants who are
pre-registered and fail to attend will receive course
materials in lieu of a refund.
Enclosed is my check in the amount of $______________________________________________________❐ Visa
____________________________
❐ MC
Card Number ______________________________________________________________ Exp. Date ________________
Cardholder Signature __________________________________________________________________________________
PAGE 35
May 2011 | www.eriebar.org
LISTEN, LEARN & EARN!
In today’s competitive, fast-paced legal environment, effective time management is essential.
Take advantage of the Erie Institute of Law tape library and start earning your CLE credits when the time is convenient for you.
The Erie Institute of Law is now offering our most recent CLE seminars on Compact Disc, cassette tape and DVD.
All of our seminars are professionally edited and are accompanied by a full set of written course materials.
Among our most recent selections:
New Bankruptcy and Money
Judgment Exemptions
Product Code 2171
1.0 CLE Credit: Areas of Professional
Practice
Presented on February 16, 2011
Audiotape or CD
$25 BAEC Members, $35 Non-Members
New York’s law exempting assets from
execution and seizure in bankruptcy
proceedings and judgment enforcement
changed on January 21, 2011. Paul Pochepan
reviews the new exemptions available to
bankruptcy and judgment debtors, along with
the new option of claiming federal exemptions
in New York bankruptcies. William Savino
speaks on using life insurance and annuities as
another vehicle to protect clients. This program
was sponsored by the Commercial and
Bankruptcy Law Committee.
The universe of online social networking is
exploding. Lawyers have a greater than ever
need to know how to advise clients across a
broad spectrum of legal practice. This seminar
is designed to provide solid information about
the technology basics behind Facebook, Twitter,
Forsquare, blogging and more. Speakers will
also address intellectual property and privacy
issues and provide insight into the realms of
family law, employment law, criminal law,
education law, and forensics. Ethical and
discovery issues in social media litigation
will also be explored.
Presented on March 12, 2011
Audiotape or CD
$110 BAEC Members,
$165 Non-Members
21st Annual Real Estate Conference
The program also includes a section on ethics
and a demonstration on the new electronic
filing procedure with the Erie County Clerk’s
Office.
Product Code 2174
4.5 CLE credits: 1.0 Ethics, 2.0 Areas of
Professional Practice, 0.5 Law Practice
Management, 1.0 Skills
Topics discussed at this year’s Annual Real
Estate Conference include:
• Current Activities of the Real Property Law
Committee
•New Construction Contracts
•Obtaining a Discharge of Mortgage
•Attorney Guarantees
•Short Sales; and
•Recent Cases and Legislation.
The New No-Fault Divorce Law
To order, please send check payable to: The Erie Institute of Law • 438 Main Street, Sixth Floor • Buffalo, NY 14202
Product Code 2172
Be sure to include your name and address for mailing purposes; add $5 shipping and handling for each tape purchased.
Tapes are mailed via UPS, no P.O. boxes please. To order by phone using your Visa or MasterCard, call Maureen Gorski at 852-8687.
1.0 CLE Credit: Areas of Professional
Practice
Presented on February 23, 2011
Audiotape or CD
$25 BAEC Members, $35 Non-Members
Presented by Melissa Cavagnaro under the
auspices of the Bar Association’s Young
Lawyer’s Committee, this lecture covers the
new no-fault divorce law, temporary
maintenance provisions, and the new child
support re-calculation provisions.
Still A’Twitter Over Facebook?
More on Social Networking That
Every Lawyer Should Know
Product Code 2173
For a complete listing of taped CLE programs, please call Maureen Gorski at 852-8687.
EIGHTH ANNUAL WNY
BANKRUPTCY CONFERENCE
SCHEDULED FOR MAY 13
(SEE PREVIOUS PAGE FOR DETAILS)
Featured Guest Presenter
William Schwab, attorney, Chapter 7 Trustee, and the
successful litigant in the U.S. Supreme Court case
4.5 CLE credits: 0.5 Ethics, 2.0 Areas of
Professional Practice, 1.0 Law Practice
Management, 1.0 Skills
Presented on March 25, 2011
Available on DVD only
$110 BAEC Members, $165 Non-Members
Schwab v. Reilly, will be a presenter at the Eighth
Annual Western New York Bankruptcy Conference to
be held in Batavia, NY, on Friday, May 13. Schwab will
discuss federal exemptions, along with his experience
in the Supreme Court case.
BE GREEN — RECYCLE YOUR BULLETIN
PAGE 36
www.eriebar.org | May 2011
“Three Graces at Forest Lawn ” by Glenn Edward Murray
MAY 2011
ALL MEETINGS HELD IN THE BAR CENTER, 438 Main Street, Sixth Floor, unless otherwise noted.
The Adelbert Moot CLE Center is also located at 438 Main Street, Sixth Floor.
WEDNESDAY 18
WEDNESDAY 25
Professional Ethics Committee
12:15 p.m. - Thomas S. Wiswall, Chair
Health Care Law Committee
12:15 p.m. - Lawrence C. DiGiulio,
Chair
Erie County Bar Foundation
8:00 a.m. - William Ilecki, President
TUESDAY 3
THURSDAY 12
Committee on Consumer Protection
12:15 p.m. - Joanne A. Schultz, Chair
Criminal Law Committee
12:15 p.m. - Adelbert Moot CLE Center
Rodney O. Personius, Chair
Appellate Practice Committee
12:15 p.m. - Bar Center, Brennan Room
Edward J. Markarian, Chair
Northtowns Suburban Lawyers’
Luncheon
12:00 p.m. – Sonoma Grille Restaurant
For more information, please call
Sharlene Hall at 852-8687.
MONDAY 2
WEDNESDAY 4
Legal Nurse Consultants Committee
12:00 p.m. - 438 Main St., 12th Floor
Christine A. Trojan, Chair
International Law Committee
12:15 p.m. - Jason B. Desiderio, Chair
THURSDAY 5
Negligence Committee
12:15 p.m. - 438 Main St., 12th Floor
Gregory V. Pajak, Chair
TUESDAY 10
Board of Directors
8:00 a.m. - Scott M. Schwartz,
President
P&P in Family Court Committee
12:15 p.m. - Family Court Building
Mindy L. Marranca, Chair
THURSDAY 19
THURSDAY 26
Committee on Veterans’ & ServiceMembers’ Legal Issues
12:15 p.m. - Bar Center, Brennan Room
Michael C. Lancer, Chair
Human Rights Committee
12:15 p.m. - Alan J. Bozer, Chair
FRIDAY 13
Committee for the Disabled
12:15 p.m. - Adelbert Moot CLE Center
Jessica V. Murphy, Chair
Committee to Assist Lawyers with
Depression
12:30 p.m. - Bar Center, Brennan Room
Daniel T. Lukasik, Chair
Environmental Law Committee
12:15 p.m. - Adelbert Moot CLE Center
John T. Kolaga, Chair
MONDAY 16
Workers’ Compensation Committee
12:15 p.m. - Philip Scaffidi, Chair
TUESDAY 17
Matrimonial & Family Law Committee
12:15 p.m. - 25 Delaware Ave, 5th
Floor
Catherine E. Nagel, Chair
Southtowns Suburban Lawyers’
Luncheon
12:00 p.m. - Romanello’s South
Restaurant
For more information, please call
Sharlene Hall at 852-8687.
Real Property Law Committee
12:15 p.m. - Adelbert Moot CLE Center
Michael J. Lombardo, Chair
Corporation Law Committee
12:15 p.m. - Offices of Hodgson Russ
Kevin R. Talbot, Chair
WEDNESDAY 11
Federal Practice Committee
12:15 p.m. - Adelbert Moot CLE Center
Timothy W. Hoover, Chair
Intellectual Property, Computer &
Entertainment Law Committee
8:00 a.m. - Towne Restaurant
Ellen Swartz Simpson, Chair
Unlawful Practice of Law Committee
12:15 p.m. - Harry G. Meyer, Chair
FRIDAY 20
Young Lawyers Committee
12:15 p.m. - William Patrick Moore, Chair
and Joshua E. Dubs and Leah R.
Nowotarski, Vice Chairs
MONDAY 23
Alternative Dispute Resolution
Committee
12:15 p.m. - Steven R. Sugarman,
Chair
P&P in Surrogate’s Court Committee
12:15 p.m. - 438 Main Street, 12th
Floor
Catherine T. Wettlaufer, Chair
Solo & Small Firm Practice Committee
1:00 p.m. - Bar Center, Brennan Room
Alvin M. Greene, Chair
FRIDAY 27
Committee to Assist Lawyers with
Depression
12:30 p.m. - Bar Center, Brennan Room
Daniel T. Lukasik, Chair
MONDAY 30
Office Closed for Memorial Day Holiday
TUESDAY 24
Board of Directors
8:00 a.m. - Scott M. Schwartz,
President
Elder Law Committee
12:15 p.m. - Adelbert Moot CLE Center
Charles Beinhauer, Chair
www.eriebar.org