December 2013/January 2014 Volume 24 / Number 5
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CONTENTS
F E AT U R E S
7
Congratulations to the
Newest Members of
the CBA
The Connecticut Bar Association is pleased to welcome its
newest members who were
recently sworn in to the Connecticut state bar.
12
No Average Creditor:
Nominee Liens and Other
IRS Special Collection
Powers
By Jeffrey M. Sklarz
Learn about the less traditional
debt-collection measures in
which the IRS is able to use in
order to collect back taxes.
16
From Idle to Idyllic:
Unleashing the Value in
Contaminated Land with
Tax Increment Financing
By Paul B. Ciarcia
Environmentally contaminated land can be an albatross
around the neck of a local
economy and pose significant
challenges for municipalities
and developers. This article
argues that tax increment
financing might be the catalyst
needed to put many of these
properties back into productive use.
22
Impaired Lawyer Symposium: Identifying, Intervening, and Looking into
the Future of Impairment
in Lawyers and Judges
Dr. Orestes J. Arcuni, MD provided keynote remarks at the
Impaired Lawyer Symposium;
he outlined ways in which legal
professionals can face impairment in both their professional
careers and personal lives as
well as the available treatment
options.
26
COLUMNS
President’s Message...................... 2
Time to Go Pro Bono................... 28
Building Your Practice................. 29
Supreme Deliberations............... 30
Young Lawyers............................ 34
DEPARTMENTS
Upcoming Events Calendar............4
CBA News & Events........................5
Ethics Opinions...............................8
Court Decisions.............................32
Classifieds......................................36
Best Practices Series: How
to Avoid Representing
the Client from Hell
By Wesley W. Horton
In part one of a three-part
series on topics in best practices
in legal ethics, discover how to
spot red flags when choosing
whether or not to represent a
potential client.
Connecticut
LAWYER
2013-2014 Officers
Kimberly A. Knox, President
Mark A. Dubois, President-elect
William H. Clendenen, Jr., Vice President
Alexis H. Smith, Secretary
Jeffrey F. Buebendorf, Treasurer
Jonathan M. Shapiro, Assistant Secretary-Treasurer
Barry C. Hawkins, Immediate Past President
Connecticut Lawyer Advisory Committee
Elizabeth C. Yen (Chair), Myles H. Alderman, Jr., Frank
S. Berall, Joseph A. Cipparone, Dean M. Cordiano, Jeffrey
C. Dannenberg, Proloy K. Das, Brian J. Donnell, Steven J.
Errante, Emily A. Gianquinto, Theodore W. Heiser, Noah
Jon Kores, Charles D. Ray, Fred D. Sette, Gregory A.
Sharp, Jeffrey M. Sklarz, Bolesh J. Skutnik
Have an idea for an article? Contact editor@ctbar.org.
All suggestions are welcome.
Connecticut Lawyer Staff
Advertising: Jessica Pace, jpace@ctbar.org
Editor: Alysha Adamo, aadamo@ctbar.org
Acting Executive Director: Douglas S. Brown,
dbrown@ctbar.org
Graphic Designer: DR Anderson, danderson@ctbar.org
Copyright 2013 by the Connecticut Bar Association. All
rights reserved. The copying, duplication, transferring,
reproducing, reusing, or reprinting of the Connecticut
Lawyer is strictly prohibited without permission. Publication
of advertising does not imply endorsement of products,
services, or statements made concerning them. All advertising copy is subject to approval. The editor reserves the right
to reject advertising. The goal of the Connecticut Lawyer is
to provide a forum for the free expression of ideas. The opinions and positions stated in signed articles are those of the
authors and not those of the Connecticut Bar Association.
The Connecticut Bar Association welcomes the submission
of articles by its members. For editorial guidelines, please
e-mail editor@ctbar.org.
Manuscripts accepted for publication become the property
of the Connecticut Bar Association. No compensation is
paid for articles published.
The Connecticut Lawyer (ISSN 10572384) is published
monthly except in January, June, and September by the
Connecticut Bar Association, 30 Bank Street, New Britain,
CT 06051-2276. CBA membership includes a subscription. Periodicals postage paid at New Britain, CT, and
additional offices.
POSTMASTER: Please send address changes to
Connecticut Lawyer, PO Box 350, New Britain, CT
06050-0350.
PRESIDENT’S MESSAGE
Task Forces Focus
on CBA’s Optimal
Performance
Kimberly A. Knox is a principal of
Horton Shields & Knox PC in Hartford.
She practices in the area of appellate
litigation before the Connecticut
Supreme and Appellate Courts, the
Second Circuit Court of Appeals, and
provides appellate consultation during
trial litigation. She also represents
attorneys on issues of ethics and law
office management.
Happy New Year! As we celebrate the
advent of 2014, it is a time for reflection
upon 2013 and a time for resolutions
for the New Year. It also marks the halfway mark of my presidential term. I am
delighted to report that there is much
to celebrate about being a CBA member.
The CBA is spectacularly busy, happy, and
healthy.
2
Welcome to our acting Executive Director. First, I must recognize the efforts
of Acting Executive Director Douglas S.
Brown, who has brought the knowledge,
skills, and experience to achieve a turnaround required to sustain and improve
the CBA operations. His energy and enthusiasm combined with his management
style and dedication to the association
constantly inspire and support the volunteer leaders and the staff. He is making
each of the agendas and projects that I
will address in this column a reality.
Membership is on the rise The Young
Lawyers Section regularly organizes
events aimed at introducing lawyers to
our association. These events generally
draw in 50 or more attendees and have
been held at law schools—in order to promote law school membership—as well as
venues around the state. In November, at
the New Admittees Reception, the Membership Committee and the Young Lawyers Section leaders personally registered
over 110 new lawyer members. There
is a new CBA Webpage called “Welcome
New Attorneys” (ctbar.org/newattorney),
which is dedicated to programs and benefits especially relevant to the young lawyer. In addition, the Membership Committee together with members of the House
of Delegates are personally contacting the
non-renewed member with success. The
reasons for non-renewals are varied, but
often readily resolved. Finally, many of our
sections are innovating on new meeting
styles, venues, and agendas, constantly
keeping the programming interesting and
innovative and bringing in new members.
Membership benefits offer financial incentives to join. During the fall months,
our membership benefits were critically
reviewed and analyzed. We are actively
in the process of building cost-saving,
Connecticut Lawyer December 2013/January 2014
vendor-collaborative relationships for
our members. We are simultaneously improving our communications about the
new membership benefits. In December,
we launched an enhanced Membership
Benefits Webpage, featuring accessible
links to information and forms, and much
more. Visit ctbar.org/benefits for our
current benefits and how to start saving
money today.
We believe that the financial benefits
of membership far outweigh our modest dues (which come out to about $25/
month for most members). As part of
my focus on continuous improvement
of member benefits, I appointed a Law
Librarians Section Task Force to analyze
available online legal research products,
also referred to as cases and codes products. The task force, which issued a report
in November 2013, reminded me of the
extraordinary knowledge and skills available within our own membership. Our
President-Elect Mark Dubois is presently
coordinating with the Task Force on this
project as part of our overall membership
benefits initiative. Additionally, as noted
in a previous column, I appointed a CLE
Task Force to update policies and processes to help us provide even more quality,
relevant, market-competitive, and affordable continuing legal education programs
and opportunities to our members.
Visit www.ctbar.org
We are a fiscally healthy organization.
While the meaning of financial health for
non-profits can be varied, there is a general consensus that long-term sustainability requires some key factors: operating
within budget, diversifying and considering emerging revenue sources, and maintaining a deliberate, not necessarily equal,
balance between expenditures on the
business-side and expenditures on program services. The CBA, a non-profit organization, underwent difficult financial
times as did nearly every non-profit organization since the economic downturn
in 2008. It was a time for fiscal prudence
and constraint and the association acted
accordingly.
During the previous bar year, the CBA
prioritized its effort to achieve financial
stability and successfully operated within
the budget approved by its Board of Governors. More recently, in November 2013,
the CBA Board of Governors received the
most positive audit report of recent history. It is notable that an enduring strength
of our association has been the delivery
of voluminous program services such as
section meetings, legislative lobbying, legal education, pro bono support and opportunities, symposia on numerous topics, civics education to our schools, and
awards to our members—just to name a
few. See my op ed in the Connecticut Law
Tribune, November 25, 2013.
What will happen during 2014? My
goal is to achieve consistent, efficient,
and effective membership and financial
operations; much needed and improved
technological infrastructure; and a strategic plan for the future. Why are these
priorities? Simply, these are tasks that
have been held in abeyance for too long.
With the benefit of an improved and solid
operations foundation, the CBA will not
only support and enhance its existing array of program services, but it will have
the base to build new programs in the
years to come—a topic that will be discussed in the next President’s Message.
I am mindful that analysts of non-profits
agree that the “lack of focus (by non-profits) on business-related tasks is pervasive,
worrisome, and exacerbated by a philosophy that rewards spending on programs
overspending on business sustainability.”1
Therefore, I have prioritized CBA time
and resources, both staff and volunteer, to
work on the business-side of the CBA.
First, I intend to build on last year’s financial stability and address the other two
sustainability factors: to seek emerging
revenue resources and to make improvements to the business-side of operations.
Acting Executive Director Doug Brown
is leading us though each of these initiatives. We are launching non-dues revenue
campaigns, including a focused sponsorship strategy for our highest value events
and benefits. We are also rethinking how
we conduct our day-to-day business to
find ways to eliminate waste and improve
productivity—all with a focus on increasing membership service and adding new
members to our ranks.
In addition, the CBA Building Task Force,
chaired by former CBA President Louis
Pepe, completed its goal of assessing the
fiscal and physical condition of our ownership of the CBA’s 30 Bank Street location. The task force issued a preliminary
report on both fronts, which was shared
with the Board of Governors in September
2013. This comprehensive report is the
basis upon which future leaders will take
advantage of opportunities, make future
projections, and optimize the use of this
unique facility. It also provides a window
of opportunity to make cost-neutral, energy-saving improvements with projected
significant future cost savings.
I also appointed a CBA Task Force on the
CBA Hardware and Associate Membership Software in July 2013 with an expedited charge to assess our technology
infrastructure. The task force issued its
preliminary report at the end of October
2013. Again, a comprehensive report provided a constructive analysis and offered
both short- and long-term guidance and
action plans. While the independent report exceeded my general knowledge of
technology, there were no surprises and
the CBA budget for 2013-2014 supports
the needed updates. These improvements
in infrastructure will have a direct and immediate improvement in the delivery of
membership services.
As we enter the New Year, I extend my
gratitude to all members of the CBA for
your support, time, and contributions to
making the CBA the “Best Bar Association.”2 I extend a special note of appreciation to each of the volunteers who actively
served on the various task forces for their
time and commitment. I look forward to
our continuing successes in 2014! CL
Notes
1. Pew Research Journalism Project, June 10,
2013
2. CBA voted “Best Bar Association” for the
past seven years by the readers of the
Connecticut Law Tribune.
Bruce Stanger –
What a
Mediator!
Times have changed...We’ve changed with the times.
“Put our experience to work for you and your clients.”
–Bruce H. Stanger, Esq.
Bruce H. Stanger
(860) 561-0651 • 1-888-STANGER
bstanger@stangerlaw.com • www.StangerLaw.com
Connecticut Lawyer December 2013/January 2014
3
CBA UPCOMING EVENTS CALENDAR
January*
13House of Delegates Meeting
6:00 p.m. @ CBA Law Center in New Britain
Professionalism and CLE Committee Meeting
6:30 p.m. @ CBA Law Center in New Britain
14 Federal Practice Section Meeting
27 CLE: Common State and Federal Tax Issues in Bankruptcy Proceedings
6:00 p.m. @ CBA Law Center in New Britain
Pro Bono Committee Meeting
6:00 p.m. @ CBA Law Center in New Britain
29 CLE: Small Claims 101— Small Claims Big Results
5:30 p.m. @ A.A. Ribicoff Federal Building and Courthouse in Hartford
Business Law Section Meeting
6:00 p.m. @ Quinnipiack Club in New Haven
Commercial Law and Bankruptcy Section Meeting
6:00 p.m. @ Union League Café in New Haven
February*
Family Law Section Meeting
6:00 p.m. @ Amarante’s Sea Cliff in New Haven
Veterans & Military Affairs Committee Meeting
7:00 p.m. @ Trumbull Marriott
15 Federal Practice Section Meeting
5:30 p.m. @ Richard C. Lee United States Courthouse
in New Haven
Diversity Committee Meeting
6:00 p.m. @ CBA Law Center in New Britain
Professional Ethics Committee Meeting
6:00 p.m. @ Quinnipiack Club in New Haven
16 Federal Practice Section Meeting
5:30 p.m. @ Brien McMahon Federal Building in Bridgeport
31 CLE: Practice, Procedure, and Protocol in Connecticut 3
4
5
Business Law Section Meeting
6:00 p.m. @ Quinnipiack Club in New Haven
Environmental Law Section Meeting
6:00 p.m. @ Quinnipiac University School of Law Center in Wallingford
12:30 p.m. @ UConn School of Law in West Hartford
24CLE: Planning Ahead: Are You Taking the Right Steps to Secure Your Retirement?
9:00 a.m. @ CBA Law Center in New Britain
12 Federal Practice Executive Committee Meeting
6:00 p.m. @ Quinnipiack Club in New Haven
Paralegals Section Meeting
6:00 p.m. @ CBA Law Center in New Britain
* This listing is subject to change. Visit www.ctbar.org/
calendar for the most up-to-date events schedule.
Connecticut Lawyer December 2013/January 2014
YLS Executive Committee Meeting
6:30 p.m. @ CBA Law Center in New Britain
13 Pro Bono Thunderdome: Uncontested Divorce Overview Training
5:30 p.m. @ CBA Law Center in New Britain
18 Elder Law Section Meeting
6:00 p.m. @ Carmen Anthony Steakhouse in
New Haven
19 Professional Ethics Committee Meeting
For more information or to register, visit www.ctbar.org/
calendar. You may also call (860)223-4400 to register.
6:00 p.m. @ Carmen Anthony Steakhouse in
New Haven
Diversity Committee Meeting
6:00 p.m. @ CBA Law Center in New Britain
6:00 p.m. @ Testo’s Ristorante in Bridgeport
Real Property Section Meeting
6:00 p.m. @ The Farms Country Club in Wallingford
23 CLE: Insurance Coverage 101
Education Law Section Meeting
6:00 p.m. @ Dakota Steakhouse in Rocky Hill
6:00 p.m. @ CBA Law Center in New Britain
Estates & Probate Section Meeting
6:00 p.m. @ Quinnipiack Club in New Haven
11 Family Law Section Meeting
Tax Section Meeting
6:00 p.m. @ Quinnipiack Club in New Haven
Civil Courts
9:00 a.m. @ Trumbull Marriott in Trumbull
10 Board of Governors Meeting
21 CLE: Attorney Training Series: Building Your Brand
4
9:00 a.m. @ CBA Law Center in New Britain
6:00 p.m. @ TBD in New Haven
20 Real Property Section Executive Committee Meeting
6:00 p.m. @ The Farms Country Club in Wallingford
24Health Law Section Meeting: Creating a High Performance Health System
6:00 p.m. @ Quinnipiack Club in New Haven
Visit www.ctbar.org
Connecticut Bar Association
&
News
Events
CBA Ethics
Committee
Presents Service
Award
The Standing Committee on Professional Ethics
honored Charles G. “Chip” Nessler with the Committee Service Award in appreciation of his decades
of extraordinary service to the group at their December 18 meeting at the Graduate Club. CL
(L to R): Wesley W. Horton, award winner Charles G. “Chip”
Nessler, and John R. Logan.
New Structure for Hartford Courthouse Parking
As of October 31, 2013, the Hartford
Parking Authority (HPA) introduced
longer stays and more payment options for anyone parking on the
streets in the immediate area surrounding the Hartford Courthouses.
HPA established the Courthouse
Parking Zone to address information
collected and concerns raised through a parking demand study
recently conducted in conjunction with its subcontracted parking management firm, Republic Parking. The new Courthouse
Parking Zone is bordered by Washington, Lafayette, Russ, Oak,
and Grand Streets in Hartford.
“The parking demand study and site analysis led us to establish
the Courthouse Parking Zone and confirmed that an affordable,
progressive rate schedule allowing for up
to four hours of curbside parking would
be the best solution for all customers in
this area of the City,” said Eric Boone,
HPA Chief Executive Officer. “This is common practice in areas near courthouses,
hospitals, and other areas in which visits frequently exceed two
hours,” Boone added.
For this pilot extended stay program, 14 new SmartMeters were
installed and 30 existing Pay Stations were updated. Accepted
payment methods are coins, credit cards, debit cards, and Downtown Hartford Park-Shop-Dine cards. The meters are solar powered to help minimize the carbon footprint, and will also provide
valuable customer use data for HPA to evaluate future parking
initiatives. CL
YLS Oktoberfest for Charity
The YLS held its Oktoberfest Benefit on October 23 at Hooker Brewery
in Bloomfield to benefit the Children’s Law Center of Connecticut (CLC)
in celebration of the organization’s 20th Anniversary. The CLC protects
the interests of poor children in family court and offers a “Families in
Transition” mediation program as well as Children’s Law Line, a free
statewide legal call-in service—services that are unduplicated by any
other agency or private organization in the state. CL
Connecticut Lawyer December 2013/January 2014
5
Peers and Cheers
David P.
Atkins
Do you have an announcment for the “Peers & Cheers” or “CBA
News & Events” sections? Send submissions to editor@ctbar.org.
David P. Atkins has been named chair of the Litigation Department of Pullman & Comley LLC. He will
remain the leader of the firm’s Professional Liability Section, a role he has held since joining the firm
in 2008, and will continue to practice in the areas
of professional liability, commercial litigation, appeals, and administrative proceedings.
Frank P. Blando, of the Law Office of Frank P. Blando in Stratford, has been appointed by Governor Malloy to serve as chairman on the Board of Firearms Permit Examiners. The board has
been established to provide a means of appeal for citizens whose
pistol permit has been denied or revoked.
Suzanne Brown Walsh, a principal in the West Hartford office
of Cummings & Lockwood LLC, has been appointed to the Uniform Law Commission’s (ULC) Drafting Committee on Trust Decanting.
Glenn E. Coe, a principal at Rome McGuigan PC,
has been asked to join the international board of the
John Henry Weidner Foundation for the Cultivation
of the Altruistic Spirit. The Weidner Foundation
promotes altruistic endeavors in a wide variety of
Glen E. Coe ways in the United States and throughout the world
and, over the years, Attorney Coe has provided
many pro bono legal services to the Foundation.
Lara J.
SchneiderBomzer
Lara J. Schneider-Bomzer has joined the law firm
of CzepigaDaly LLC as an associate in the firm’s
Berlin office and its Vernon satellite office. She will
represent the firm’s clients who are in need of estate planning, asset protection, and Medicaid planning.
Cramer & Anderson LLP is pleased to welcome
Lisa Rivas as an associate in the firm’s Danbury office. She will advise clients on a variety of immigration matters,
including removal proceedings, asylum applications, family petitions, employment petitions, National Visa Center processing,
and Consular processing as well as work on litigation matters
and other practice areas within the firm.
Neubert Pepe & Monteith PC in New
Haven is pleased to announce that
Danielle I. Nicklas, Lindsay H. Sklar,
and Alison H. Weinstein have joined
the firm as associates. Attorney Nicklas
Danielle I. will practice in the areas of health law Alison H.
Nicklas
and corporate business; Attorney Sklar Weinstein
will practice in the areas of health care law, general
corporate law, and commercial litigation; and Attorney Weinstein will practice in the firm’s commercial
litigation and construction practice group. CL
Lindsay H.
Sklar
In Memoriam
William F. Gallagher, of Branford, passed away
on December 25, 2013. Attorney Gallagher
served as president of the Connecticut Bar Association (1999-2000) and was a member of
the CBA Workers’ Compensation Section, Appellate Advocacy Section, and Family Law SecWilliam F.
tion. An attorney for 50 years, he was known
Gallagher
for his tremendous work ethic, passion for the
law, and his civility both in and out of the courtroom. He was
a mentor, friend, and advisor to lawyers throughout the state
and was always willing to assist other lawyers in need of his
wisdom. He was the proud, sole proprietor of The Gallagher
Law Firm in New Haven. Attorney Gallagher was a graduate of
Fairfield University and the University of Connecticut School
of Law and was admitted to the Connecticut bar in 1963, as
well as the U.S. District Court of Connecticut, U.S. Court of Appeals, Second Circuit, and U.S. Supreme Court. Some of his professional accolades included receipt of the Connecticut Trial
Lawyers Association Lifetime Achievement Award, Medal of
Excellence awarded by the UConn School of Law Alumni Association (2008), and New Haven County Bar Association Lifetime Achievement Award.
6 Connecticut Lawyer December 2013/January 2014
Johanna S. Malinowski, of Trumbull, passed
away on November 5, 2013. She practiced elder law and real estate law in Trumbull; she
also taught paralegal classes at Sacred Heart
University. Very active in her community, she
served as treasurer of the American AssociaJohanna S.
tion of University Women (AAUW), and previMalinowski ously served as AAUW branch president as well
as treasurer for The League of Women Voters. She served as a
chairman of the Town of Trumbull School Code Violations Compliance Committee and held membership in the Trumbull Vocational Agricultural Building Committee, the Greater Bridgeport
Bar Association, and was a member of the CBA Elder Law Section. Attorney Malinowski received an AA from Gwynedd-Mercy
College in 1960, a BS from Sacred Heart University in 1979, and
her JD from the University of Bridgeport in 1982. CL
Visit www.ctbar.org
Congratulations
to the Newest
Members
of the CBA
Congratulations to the 150 new CBA members admitted to
the Connecticut Bar on November 8. The CBA community
is excited to work with you and provide support to enhance
your professional growth as an attorney. Welcome to the legal
profession and the CBA!
Iman Abdulrazzak
Tareq Al Ahmad
Courtney K. Allen
Daniel Scott Alterbaum
Carmine Annunziata
David T. Austin
Matthew Brennan Bacon
Emily Sue Bagdonis
Jason Wyman Balich
Joshua O. Balter
Matthew Robert Bardos
Kyle R. Barrett
Zachary Richard Bestor
Melissa Lynn Biggs
Michael Christopher Bivona
Diana R. Blank
Randall Scott Blowers
Joshua Nicholas Bochman
Gregory Louis Borrelli
Kathryn Joyce Bradley
Andrew Stanley Briggs
Sean Matthew Brookman
Christina Marie Brown
Daniel E. Buley
Peter Carpenter
Jenette Nicole Castro
Christopher Andrews Clark
Ryan Michael Cleckner
Lindsay Ann Compton
Brett James Connolly
Jesse David Conrad
Michael John Csere
Spencer Alfred Goe Curtis
David C. Desjardins
Didier Destiné
Matthew A. Dillon
Joseph John DiNardi
Alison Dawn Drobiarz
Andrea Lynn Dupre
Meaghan McGurrin Ehrhard
Mary Katherine Eschuk
Sarah Fattahi
Jeffrey Gordon Fletcher
Logan A. Forsey
Venoal Montee Fountain, Jr.
James R. Fraguela
Aaron Arthur Fredericks
Vishal K. Garg
Frank J. Garofalo III
Katherine C. Garvey
Louis Anthony Gentile
Steven Joseph Georgiades
Christine Lynn Gertsch
Allison C. Giroux
Gregory Scott Goeken
Brooke Elizabeth Grant
Samuel Allan Greenberg
Elizabeth Grimm
Daniel R. Guertin
Laura Jane Halls
Tasia E. Hansen
Hope Helen Harris
Brittany Ann Hepp
Nicholas Ryan Herrel
Adam J. Hirsch
Joseph M. Hochheiser
Thomas Henry Houlihan, Jr.
Chet Lewis Jackson
Anthony Jones
Nicholas Edward Kale
Lan Thi Thu Kantany
Kishore I. Kapoor
Kelly M. Kirby
Lynn Anne Kirshbaum
Jason Klein
Benjamin E. Kuehn
Governor Malloy stopped by the reception to congratulate the
new attorneys and chatted with YLS members and CBA staff.
Michelle Kukk
Justine Le
Matteo James Orsi Leggett
Rachael M. Levine
James Patrick Maguire
Sarah Nilani Mather
Tracy Jo Figueroa Mathis
Anna Matsuo
Clarissa Chanel Matthews
Celeste Jean Maynard
Danielle L. McGee
Connor P. McNamara
Thomas Michael Melfi
Brittney Rachel Merlino
Talia Metson
Tim Miodonka
Christopher M. Morelli
Rosalie Danielle Morgan
Brendan John Murphy
James Robert Nault
David Jacob Norman
Logan Jane O’Connor
Matthew Draper Pechous
Alisa Marie Polaski
Ashley Diana Quido
Daniel Patrick Quinlan
Mark Stephen Randall
John Edward Ranges
Philip Herbert Ratliff
Sara Jean Ray
Lindsay Tierney Reed
Jay Douglas Riback
Kathleen Elizabeth Riley
James E. Ringold
Jessica Rivera
Bryan Matthew Robbins
Channez M. Rogers
Josephine Roggi
Leah C. Rubega
Christopher William Ruscio
Christian T. Sager
Stefan Savic
Kristianna Lynn Sciarra
Olen Z. Shen
Alexis Claire Shevchenko
John Peter Shriver
Joshua C. Shulman
Alyssa Joelle Shwartz
C. Maxwell Solie
Aaron Andrew Spacone
Brian C. Spring
Nicholas Emanuele Stanisci
Richard H. Stannard III
Daniel Robert Salsbery Stoller
Robert Martin Streit
Joshua Nathan Taylor
Kristen Michelle Tedone
Carletha Texidor
Lisa V. Turcio
Mila S. van Kempen
Andrew R. Veale
Qesar Veliu
Marissa Lynn Vicario
Jessica Lynn Vizvary
Robert Joseph Vontell
Michael Joseph Warmflash
Natalie Elizabeth Wayne
Lindsay E. Weber
Benjamin Andrew Wexler
William J. Whewell
Joette Lan Witan
Melissa Ann Youd
Stephen Scott Zimowski
Steven C. Zoni
Connecticut Lawyer
December 2013/January 2014 7
ETHICS OPINION
Cloud Computing
Informal Opinion
2013-07
The question addressed in this Opinion is
whether it is permissible under the Rules
of Professional Responsibility for a lawyer
to use cloud computing in the practice of
law.
Technological change tends to outpace
the law. There is a great deal being written about cloud computing every day.
This opinion is a starting point for issues
raised by a lawyer’s use of cloud computing, but the field will continue to develop
and due diligence will require a lawyer
to keep pace with emerging standards.
For the purpose of this opinion, cloud
computing includes the storage, transmission, and processing of data (client
information) using shared computer facilities owned or leased by a third party
service provider. The facilities and services are typically accessed over the internet by means of different networked
devices, including computers, tablets,
laptops, smart phones, and other devices.1
8
In a familiar model, a user may be provided with applications referred to as
Software as Service (“SAAS”), that operate on a cloud infrastructure which may
be located at remotes sites in and outside
of Connecticut, including foreign countries. The cloud service provider owns
or leases the data processing equipment
and the information technology and
also manages the system. In the modality which this Opinion addresses—called
public cloud computing—the use of the
online computer resources is shared
with other members of the public.2
In related activities, a user may entrust
data for online storage only (i.e., by using such vendors as are located at mozy
.com and cabonite.com) and for online
transmission (e-mail via vendors such as
aol.com, yahoo.com, gmail.com, outlook
.com, etc.). Cloud computing has been the
subject of a great deal of commentary; attempts to describe cloud computing have
been problematic because cloud computing is not a single kind of system, but
instead spans a spectrum of underlying
technologies, configuration possibilities,
service models, and deployment models.3
Cloud computing can provide significant
economy and technological benefit for the
user compared to what is financially available through the ownership or lease of
equipment, direct license of software, and
hired information technology personnel.
The cloud service providers tend to use
a “pay-as-you-go” billing format that offers enormous advantages for users with
limited or irregular cash flow. With cloud
computing, a user has the option to create
a virtual office with only limited ownership of data processing, transmission, and
data storage equipment.
The ultimate responsibility for insuring
the privacy and security of the data resides with the user purchasing the cloud
Connecticut Lawyer December 2013/January 2014
Formal and informal opinions are
drafted by the Committee on Professional Ethics in response to inquiries
from CBA members. For instructions
on how to seek an informal opinion
and to read the most recent informal
opinions, see the CBA Web page
for the Committee on Professional
Ethics at www.ctbar.org/Sections%20
Committees/Committees/ProfessionalEthics.aspx. CBA members may
also research and review formal and
informal opinions in Casemaker.
services. While much of the physical, technical, and administrative safeguards are
handled by the cloud service provider, the
user will still retain responsibility for a
significant portion of these safeguards.
Ordinarily, the cloud service provider offers an agreement to a user, which may be
called Service Level Agreement (“SLA”)
or Terms of Service. The terms of such
agreements can vary amongst the different service providers, and different terms
have different impacts on a lawyer’s obligations under applicable law and Rules of
Professional Responsibility; this Opinion
is limited to discussion of the Connecticut-licensed lawyer’s obligations under
the Connecticut Rules of Professional Responsibility when using cloud computing.
The privilege of practicing law comes
with professional obligations and those
obligations extend to the use of technology. Rule 1.1 Official Commentary (effective [month, year]) expressly provides
that in order “to maintain the requisite
knowledge and skill, a lawyer should
keep abreast of changes in the law and its
practice, including the benefits and risks
associated with relevant technology….”
Lawyers who use cloud computing have
a duty to understand its potential impact
on their obligations under applicable law
and under the Rules of Professional Responsibility. If a lawyer is unable to meet
these obligations when using a given type
of technology or service provider, the lawyer should not use the technology or the
service provider. In order to determine
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whether use of a particular technology
or hiring a certain particular service provider is consistent or compliant with the
lawyer’s professional obligations, a lawyer must engage in due diligence.
Lawyers have professional obligations
which include the duty to preserve client information (Rules 1.6 and Rule 1.15)
as well as the duty to comply with and
respond to legitimate inquiry from disciplinary authorities. Rule 1.15(k) and
Practice Book § 2-27(c). The issue of how
a lawyer stores and processes business
records affects the lawyer’s ability to discharge these duties. Modern technologies
allow for data to be processed, transmitted, and stored some place other than
a lawyer’s workplace. Lawyers’ remote
storage of data is not a new phenomenon;
lawyers have been using off-site storage
providers for many years, and the issues
remain the same whether tangible records are stored in a “brick-and-mortar”
warehouse or intangible data is stored on
third party servers.
Rule 1.6 of the Rules of Professional Conduct governs the confidentiality of client
information. In relevant part, Rule 1.6(a)
provides that “a lawyer shall not reveal
confidential information relating to the
representation of a client unless the client consents after consultation….” The
duty of confidentiality imposed by Rule
1.6(e) (effective January 1, 2014) requires
a lawyer to avoid using means or methods
of holding and delivering data that present an unreasonable risk of unintended
disclosure to and access by unauthorized
third parties. The duty of confidentiality described in Rule 1.6 is rigid but tempered by the recognition that even when
a lawyer acts competently to preserve
the confidentiality of the data, reasonable
safeguards sometimes fail:
The unauthorized access to, or the inadvertent or unauthorized disclosure
of, information relating to the representation of a client does not constitute a
violation of subsection (c) if the lawyer
has made reasonable efforts to prevent
the access or disclosure. Factors to be
considered in determining the reasonableness of the lawyer’s efforts include,
but are not limited to, the sensitivity of
the information, the likelihood of dis-
closure if additional safeguards are not
employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely
affect the lawyer’s ability to represent
clients (e.g., by making a device or important piece of software excessively
difficult to use). A client may require
the lawyer to implement special security measures not required by this Rule
or may give informed consent to forgo
security measures that would otherwise be required by this Rule. Whether
a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other
law, such as state and federal laws that
govern data privacy or that impose notification requirements upon the loss of,
or unauthorized access to, electronic information, is beyond the scope of these
Rules.
Rule 1.6, Official Commentary (effective
January 1, 2014).
This Committee previously addressed issues of client confidentiality presented by
a lawyer’s use of the Internet and remote
access capabilities in Informal Opinion
99-52, in which the Committee concluded
that a lawyer’s use of unencrypted internet e-mail to engage in communication
with a client did not violate Rule 1.6(a) in
ordinary circumstances. However:
[I]f circumstances exist which would
place a lawyer on notice that there is a
greater than ordinary risk of interception or unauthorized disclosure (such
as an email “mailbox” which is accessible to persons other than the intended
recipient), regardless of the relative sophistication of the email recipient, use
of email to transmit confidential information without the express authorization and consent of the client would be
unwise and unethical.
In a similar fashion, where the information sought to be communicated is
of an extraordinary sensitive or highly
confidential nature, such that any unauthorized disclosure could cause serious
injury to the interests of the client, the
lawyer should choose a means of communication that provides a level of security proportional to the heightened
need to avoid any threat of disclosure
of the information. Because of this, the
consent of the client should be obtained
before transmitting any email containing information of an extraordinarily
sensitive or highly confidential nature,
just as a wise and prudent lawyer would
obtain the consent of the client before
communicating significant, consequential, and extremely sensitive privileged
matters through telephone lines, fax
machines, or even regular mail.
Informal Opinion 99-52.
While the specific technology examined
by the Committee in 1999 (for Informal
Opinion 99-52) might now be obsolete,
the need for a lawyer to thoughtfully and
thoroughly evaluate the risks presented
by the use of current technology remains
as vital as ever. The Rules permit a lawyer
to use the Internet to transmit, store, and
process data using shared computer facilities from the reasonably reliable cloud
service provider as long as the lawyer undertakes reasonable efforts to prevent unauthorized access to or disclosure of such
data. As considered by this Committee in
1999, the lawyer’s efforts must be commensurate with the risk presented. The
lawyer should be satisfied that the cloud
service provider’s (1) transmission, storage, and possession of the data does not
diminish the lawyer’s ownership of and
unfettered accessibility to the data, and
(2) security policies and mechanisms to
segregate the lawyer’s data and prevent
unauthorized access to the data by others including the cloud service provider.4
The lawyer’s obligations regarding the security for such data are not independent
from but consistent with Rule 1.15, which
requires that property of clients and
third persons which the lawyer receives
should be “appropriately safeguarded.”
Client property in the context of Rule 1.15
generally includes files, information and
documents including those existing electronically. Appropriate safeguards will
vary depending on the nature and sensitivity of the property. Rule 1.15 provides
in relevant part:
(b) A lawyer shall hold property of clients and third persons that is in a lawyer’s possession in connection with a
representation separate from the law-
Connecticut Lawyer
December 2013/January 2014
9
yer’s own property. . . . Other property
shall be identified as such and appropriately safeguarded.
Further, the lawyer using cloud computing must ensure the service provider’s
conduct is compatible with the professional obligations of the lawyer. Rule 5.3
addresses the lawyer’s responsibilities regarding nonlawyer assistants and states:
With respect to a nonlawyer employed
or retained by or associated with a lawyer:
(1) A partner and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has
in effect measures giving reasonable
assurance that the person’s conduct is
compatible with the professional obligations of the lawyer.
(2) A lawyer having direct supervisory
authority over the nonlawyer shall
make reasonable efforts to ensure that
the person’s conduct is compatible with
the professional obligations of the lawyer; and
(3) A lawyer shall be responsible for
conduct of such a person that would be
a violation of the Rules of Professional
Conduct if engaged in by a lawyer if: (A)
the lawyer orders or, with the knowledge of the specific conduct, ratifies the
conduct involved; or (B) the lawyer is
a partner or has comparable managerial authority in the law firm in which
the person is employed, or has direct
supervisory authority over the person,
and in either case knows of the conduct
at a time when its consequences can be
avoided or mitigated but fails to take
reasonable remedial action.
10
Cloud computing online outsourcing is
subject to Rule 5.1 and Rule 5.3 governing
the supervision of those who are hired by
and associated with the lawyer. Therefore,
a lawyer must ensure that tasks are delegated to competent and reliable people
and organizations. This means that the
lawyer outsourcing cloud computing
tasks (of transmitting, storing, and processing data) must exercise reasonable
efforts to select a cloud service provider
whose conduct is compatible with the
professional obligations of the lawyer and
is able to limit authorized access to the
data, ensure that the data is preserved
(“backed up”), reasonably available to the
lawyer, and reasonably safe from unauthorized intrusion.
In summary, the use of cloud computing
is a growing trend in many industries
and professions, including law. Lawyers
may use cloud services in their practice to
promote mobility, flexibility, organization,
and efficiency. However, lawyers must be
conscientious to comply with the duties
imposed by the Rules to knowledgeably
and competently maintain confidentiality and supervisory standards. The Rules
require that lawyers make reasonable
efforts to meet their obligations to preserve the confidentiality of client information and to confirm that any third-party
service provider is likewise obligated.5
Notes
1. See National Institute of Standards and
Technology, U.S. Department of Commerce,
Special Publication #800-145 (September
2011).
2. Deployment models include private cloud,
community cloud, public cloud, and hybrid
cloud infrastructures. NIST #800-145.
3. National Institute of Standards and
Technology, U.S. Department of Commerce,
Special Publication #800-146 (May 2012)
and Special Publication #800-144 (December 2011).
4. Many service providers offer different levels of service. Free services provide fewer
security and other protections than do
paid services. As of the date of this Opinion, the “pro” versions of software and
web services generally provide greater
protections.
5. As of the date of this Opinion, other states
have uniformly concluded that cloud computing, as generally defined, is ethically
permissible as long as reasonable care is
used by the lawyer to ensure access to and
the security of the information stored. E.g.,
AL Ethics Op. 2010-2; AZ Bar Ethics Op.
09-04 (2009); CA Ethics Op. 2010-179;
FL Bar Ethics Op. 06-1 (2006); IA Ethics
O. 11-01 (2011); IL Bar Ethics Op. 10-01
(2009); MA Bar Ethics Op. 12-03 (2012);
ME Bar Ethics Op. 194 (2008); NH Bar Ethics Op. 2012-13/4 (2012); NC Bar Ethics
Op. 6 (2011); ND Bar Ethics Op. 99-03; NJ
Bar Ethics Op. 107 (2006); NV Bar Ethics
Op. 33 (2006); NY State Bar Ethics Op.
842 (2010); OR Bar Ethics Op. 2011188 (2011); PA Bar Ethics Op. 2011-200
(2011); VA Ethics Op. 1818 (2005); VT
Ethics Op. 2003-03 (2003).
Connecticut Lawyer December 2013/January 2014
Use of a Call
Recording Service
Informal Opinion
2013-08
We have been asked to determine whether an attorney may, consistent with the attorney’s confidentiality obligations under
Rules 1.6 and 1.18 of the Rules of Professional Conduct, use a pay-per-call advertising service that records incoming calls
from potential clients.
Based on information provided by the
requestor, as well as by the provider of
the service, Yellow Pages, it is the Committee’s understanding that the service
works in the following way: A customer
who wishes to advertise in Yellow Pages
may pay on a monthly basis or on a “payper-call” basis, where the customer pays
Yellow Pages based on the number of calls
generated by the advertisement. If the
customer elects the pay-per-call program,
Yellow Pages will assign a unique phone
number (distinct from the customer’s
existing business phone number) to be
used in conjunction with the customer’s
advertisement. Typically, customers who
use the pay-per-call program have the
calls forwarded to their existing business
number. Thus, their telephone rings just
the same as it would if the client were calling the existing business number directly.
However, because the call comes through
the unique phone number connected to
the advertisement, Yellow Pages is able to
track the number of calls coming in and to
determine the amount to charge the customer.
As an optional feature, the customer can
elect to have the incoming calls recorded.1 The recordings can be used by the
customer to assess how well employees
are handling the calls. The recordings are
electronically stored on a Yellow Pages
server. However, the customer can access and review the recordings by using
a unique code. According to Yellow Pages,
it does not access the recordings unless
asked to do so by a customer. However,
the requestor indicated that the Yellow
Pages representative that contacted him
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stated that “he had listened to these telephone calls with another attorney and
that they were surprised about how the
staff handled the telephone calls.”
We do not have a copy of the specific contract, privacy policy, data security policy,
or terms of use governing this specific service. Accordingly, this Opinion provides
general guidance on the permissibility of
this type of arrangement.
This service is similar to other so-called
“cloud” based systems, where information is stored on a third party’s server,
rather than your own. These systems are
more and more common. For example,
those who use Gmail are operating in
the “cloud” since their emails are stored
not on their own physical servers, but on
Google’s. It is also possible to store documents on third party servers.
Unfortunately, these systems typically are
tailored to the general public and not specifically to lawyers. Accordingly, lawyers
must carefully evaluate whether any such
system can be used consistent with their
ethical obligations to clients or, in this
case, potential clients.
Under Rule 1.6, a lawyer may not reveal
information relating to representation of
a client unless the client gives informed
consent, or the disclosure is impliedly
authorized in order to carry out the representation. Rule 1.6 facially applies only
when an attorney-client relationship exists. Given the nature of the fact-pattern
here, i.e., that the calls are being generated by an advertisement, it is likely that
most of the incoming calls will be from
potential clients, rather than actual clients. However, it is certainly possible that
a potential client who calls this number
will continue to call the number, even if
advised by the lawyer to do otherwise,
and thus may be subject to being recorded
while speaking to his lawyer after an attorney-client relationship has formed. Accordingly, Rule 1.6 remains relevant to the
analysis. Moreover, Rule 1.18 extends the
duty of confidentiality to potential clients,
providing: “Even when no client-lawyer
relationship ensues, a lawyer who has had
discussions with a prospective client shall
not use or reveal information learned in
the consultation. . . .”
While not explicitly addressed in the existing Rules, the Committee concludes that
the duty of confidentiality established by
Rules 1.6 and 1.18 requires a lawyer to
avoid using a means of communication
with clients or potential clients that poses
an unreasonable risk of inadvertent disclosure to third parties. The Rules Committee of the superior court recently approved a revision to Connecticut Rule of
Professional Conduct 1.6 to require that
“a lawyer shall make reasonable efforts to
prevent the inadvertent or unauthorized
disclosure of, or unauthorized access to,
information relating to the representation
of a client.” Rule 1.6(e) becomes effective
January 1, 2014.
The new commentary to Rule 1.6 provides
useful guidance on this requirement, explaining that “[f]actors to be considered
in determining the reasonableness of a
lawyer’s efforts include, but are not limited to, the sensitivity of the information,
the likelihood of disclosure if additional
safeguards are not employed, the cost of
employing additional safeguards, the difficulty of implementing the safeguards,
and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients.”
Here, the question presented is whether
an attorney’s use of the telephone recording service poses an unreasonable risk of
inadvertent disclosure, and therefore violates Rules 1.6 and 1.18.
As a general matter, the Committee concludes that the mere use of a third party’s
server to store information does not automatically result in a violation of either
Rule. Just as attorneys routinely store
hard copy documents in warehouses run
by third parties, attorneys may store information on third party servers. However, they must make “reasonable efforts” to
ensure that the conduct of the third party
vendor is consistent with the professional
obligations of the lawyer. Informal Opinion 2013-07 discusses the obligation of attorneys to comply with Rules 1.6 and 1.15
when using cloud computing services.2
It is unclear whether the Yellow Pages arrangement permits Yellow Pages to have
access to the call recordings. Yellow Pages
indicated to the Committee that they do
not access the recordings absent a cus-
tomer request, but the requestor stated
that the Yellow Pages representative that
contacted him specifically mentioned reviewing the recordings with another attorney. Pursuant to Rules 1.6 and 1.18,
the contract must provide that Yellow
Pages will not have access to the recordings and the attorney must ensure that
no third party (including a representative
of Yellow Pages) is allowed to review any
recording absent client informed consent.
In addition to the guidance provided in
the Commentary to Rule 1.6 and Informal
Opinion 2013-07, the attorney should
consider the importance of the service to
the attorney’s ability to perform his or her
work when determining whether placing client data on a third party server is
a “reasonable” risk. In this case, recording incoming calls from potential clients
is not critical to the attorney’s ability to
perform services for his or her clients. Accordingly, this factor should be considered
by the attorney in determining whether
the arrangement comports with the attorney’s ethical obligations. CL
Notes
1. While outside the scope of the Committee’s jurisdiction, we note that it is generally unlawful for a person to unilaterally
record a telephone call unless the criteria
set forth in Connecticut General Statutes §
52-570d are met. Here, the requestor indicated that Yellow Pages informed him that
there would be an automatic “recorded
warning advising all callers that telephone
calls could be recorded in order to improve customer service.” This opinion is
based on the understanding that all callers
will be notified prior to any recording.
2. While many states have not yet weighed
in on the permissibility of cloud storage,
those that have uniformly have concluded
that cloud storage is ethically permissible
so long as reasonable care is used by the
attorney to ensure the security of the
information stored. E.g., AL Bar Ethics Op.
2010-2; AZ Bar Ethics Op. 09-04 (2009);
CA Bar Ethics Op. 2010-179; FL Bar Ethics
Op. 06-1 (2006); IA Bar Ethics Op. 11-01
(2011); IL Bar Ethics Op. 10-01 (2009),
p. 3; MA Bar Ethics Op. 12-03 (2012); ME
Bar Ethics Op. 194 (2008); NH Bar Ethics
Op. 2012-13/4 (2012); NC Bar Ethics Op.
6 (2011); ND Bar Ethics Op. 99-03; NJ Bar
Ethics Op. 107 (2006); NV Bar Ethics Op.
33 (2006); NY Bar Ethics Op. 842 (2010);
OR Bar Ethics Op. 2011-188 (2011); PA
Bar Ethics Op. 2011-200, p. 1 (2011); VA
Connecticut Lawyer December 2013/January 2014
11
No Average
Creditor:
Nominee Liens
and Other IRS
Special Collection
Powers
Jeffrey M. Sklarz is a
partner with Green &
Sklarz LLC with offices
in New Haven and
Stamford, where he
represents businesses
and individuals with
complex financial issues, including
bankruptcy, tax, and commercial
litigation matters. He is a member
of the CBA Tax Section, Connecticut
Lawyer Advisory Committee, Commercial Law & Bankruptcy Section,
Federal Practice Section, Litigation
Section, and Labor and Employment
Section.
By Jeffrey M. Sklarz
As the revenue collection arm of the United States, the Internal
Revenue Service (IRS) is not limited to traditional debt-collection measures for recovering back taxes. One such power is the
ability to assert “nominee liens.” A “nominee” is the holder of
property that is rightly that of the taxpayer.1 “[A] nominee is
like a dummy, holding mere title to the property without any
beneficial interest; it is an arrangement of convenience.”2 Thus,
the IRS has the ability to assert a lien against property that it
believes is truly owned by the taxpayer. Unlike a private credi12
Connecticut Lawyer December 2013/January 2014
tor who must bring a lawsuit and fraudulent transfer action to
recover property it believes was improperly conveyed, the IRS
may file federal tax lien to protect its rights without any judicial
process. The burden then shifts to the title-owner of the property to demonstrate he or she is the bona fide owner. Assertion
of nominee liens is a powerful tool in the IRS’ vast civil tax collection arsenal. This article explains what nominee liens are and
under what circumstances they are filed as well as what to do if
your client must respond to a nominee lien.
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The IRS’ Power to Assess a
Nominee and Fix a Lien
Nowhere in the Internal Revenue Code
(IRC)3 does Congress specifically delegate
to the IRS the right to assert nominee
assessments or file liens to secure such
claims. The IRS interprets IRC § 63214
as providing the statutory authority for
nominee assessments and liens. In dicta,
the Supreme Court appears to have sanctioned the use of nominee liens: “It would
then follow that the service could properly regard petitioner’s assets as [taxpayer’s] property subject to the lien under §
6321, and the service would be empowered, under § 6331, to levy upon assets
held in petitioner›s name in satisfaction
of [taxpayer’s] income tax liability.”5 It
is now generally accepted that nominee
liens are a proper exercise of authority
under § 6321.6
The Internal Revenue Manual (IRM), the
operating procedures for the IRS, sets
forth how the IRS determines whether
to assert a nominee lien.7 Before filing a
nominee lien, a revenue office (an IRS
debt collection agent) must obtain approval from both their group manager
and IRS counsel.8
While the IRM may establish, under federal law, the procedure for asserting a
nominee lien, whether property is held
as a nominee is governed by state law:
“[t]he Internal Revenue Code’s prescriptions are most sensibly read to look to
state law for delineation of the taxpayer’s
rights or interests, but to leave to federal
law the determination whether those
rights or interests constitute ‘property’ or
‘rights to property’ within the meaning of
§ 6321.”9 Therefore, if a state’s law did not
recognize nominee ownership, the IRS
would not have the right to assert a nominee lien because the taxpayer would have
no interest in the allegedly constructively
owned property.10
In Connecticut, no definitive law exists
as to whether nominee ownership exists.11 However, assuming it does, courts
generally apply a six-factor test12 when
determining whether a holder is a mere
nominee:13
(1) whether inadequate or no consideration was paid by the nominee; (2)
whether the property was placed in
the nominee’s name in anticipation of
a lawsuit or other liability while the
transferor remains in control of the
property; (3) whether there is a close
relationship between the nominee and
transferor; (4) whether they failed to
record the conveyance; (5) whether
the transferor retains possession; and
(6) whether the transferor continues
to enjoy the benefits of the transferred
property
No one factor is determinative and courts
should look to a totality of the circumstances when evaluating whether someone is a nominee. However, the first factor—whether the title-owner of property
paid for it—is generally the most litigated
issue regarding nominee liens.
The IRS frequently takes the position
that if one does not pay for property out
of his or her own funds, the acquisition
of the property is suspect and, thus, may
be subject to a nominee lien. Not surprisingly, that scenario often arises between
spouses where a working spouse acquires
property in the name of a non-working
spouse.14 “Although placing legal title to
property in one’s spouse’s name where
the spouse exercises no independent
ownership rights may make the spouse a
nominee, it is frequently difficult to determine whether a wife has taken legal title
as the nominee of her husband or whether she received the title in her own right
as a gift.”15
Therefore, without more, the IRS should
not be able to assert nominee status
against a non-working spouse because he
or she is the owner of material assets acquired during the marriage. Of course, a
spouse cannot denude himself or herself
of assets and “simply call it a transfer in
return for consideration and shelter the
assets from creditors. There is no such
loophole.”16
Addressing Nominee Liens
An alleged nominee has two clear methods to challenge a federal tax lien. First
is the IRS’ Collection Appeal Program
(CAP).17 Under CAP, the alleged nominee
can access the IRS administrative appeals
process, but the decision of the appeals
officer is final. There is no right to judicial review of CAP appeals. Thus, a CAP
appeal, while quick and inexpensive, will
not generally resolve complex issues. CAP
is useful for addressing clear procedural
irregularities or other obvious errors.
Second, the alleged nominee can bring
a civil action to quiet title in the liened
property.18 A quiet title action is initiated
in United States District Court and the
burden of proof is on the plaintiff-alleged
nominee to show that the IRS’ action was
wrongful.19 The Tax Division of the Department of Justice will generally represent the Government’s interest, although
on occasion IRS Counsel will do so. Since
litigation is required, bringing a quiet title
action is more expensive, but often the
only real option for challenging a nominee lien.20
Conclusion
While certain procedural safeguards exist
to ensure appropriate use of the IRS’ powers (the requirement for IRS counsel to
approve a nominee lien), nominee assessments represent an extremely powerful
and coercive collection technique. Dealing
with nominee assessments become particularly vexing when coupled with criminal tax investigations or other financial
difficulties, such as a business failure or
bankruptcy. In such situations, typically
innocuous transactions can be viewed by
the IRS as suspect. Unlike other creditors
who cannot secure property in the hands
of a third-party without court intervention, the IRS may assess and fix nominee
liens without judicial process. Thus, advisors to financially distressed businesses
and individuals must be aware of the ability of the IRS to apply nominee lien when
back taxes are owed. CL
Connecticut Lawyer December 2013/January 2014 13
Notes
1. Holman v. U.S., 505 F.3d 1060, 1070 (10th
Cir. 2007).
2. In re First Connecticut Consulting Grp., Inc.,
2004 WL 1676211 (Bankr. D. Vt. July 27,
2004) aff’d, 340 B.R. 210 (D. Vt. 2006)
aff’d, 254 F. App’x 64 (2d Cir. 2007)
3. 26 U.S.C. § 1, et seq.
4. “If any person liable to pay any tax
neglects or refuses to pay the same after
demand, the amount (including any interest, additional amount, addition to tax,
or assessable penalty, together with any
costs that may accrue in addition thereto)
shall be a lien in favor of the United States
upon all property and rights to property,
whether real or personal, belonging to
such person.”
5. G. M. Leasing Corp. v. U. S., 429 U.S. 338,
351, 97 S. Ct. 619, 628, 50 L. Ed. 2d 530
(1977). In G.M. Leasing, the Supreme Court
was actually deciding a different issue:
“Our grant of certiorari was limited to the
Fourth Amendment issue, and we declined
to review petitioner’s and Norman’s son’s
claims that the assessments and levies
should have been voided and that petitioner was not Norman’s alter ego.” Id. at
351.
6. “Although the Supreme Court has clearly
indicated that the IRS may impose nominee tax liens… it has provided only limited
guidance concerning how such nominee
determinations are to be made.” Fourth
Inv. LP v. United States, 720 F.3d 1058,
1066-67 (9th Cir. 2013)
7.IRM §§ 5.17.14.6.1 and 5.11.1.2.5.
8. IRM § 5.17.2.5.7.2(2) (“A nominee
situation generally involves a fraudulent
conveyance or transfer of a taxpayer’s
property to avoid legal obligations. To
establish a nominee lien situation, it must
be shown that while a third party may
have legal title to the property, it is really
the taxpayer that owns the property and
who enjoys its full use and benefit. If state
law is undeveloped or underdeveloped as
to the issue of nominee ownership, contact
Area Counsel for assistance.”)
9. Drye v. United States, 528 U.S. 49, 52, 120 S.
Ct. 474, 478, 145 L. Ed. 2d 466 (1999) (citing, United States v. Bess, 357 U.S. 51, 5657, 78 S. Ct. 1054, 1058, 2 L. Ed. 2d 1135
(1958) (“[O]nce it has been determined
that state law creates sufficient interests in
the [taxpayer] to satisfy the requirements
of [the federal tax lien provision], state law
is inoperative to prevent the attachment of
liens created by federal statutes in favor of
the United States.”))
10.Whether California recognized nominee
ownership was the issue in the recent case
of Fourth Inv. LP, 720 F.3d at 1068.
11.“The government presents no case law
wherein a Connecticut court has applied
the nominee theory, nor is this court
aware of any, and this court declines to
make the nominee theory Connecticut
state law. However, because it will not
affect the results of the decision, this Court
will assume, arguendo, that federal law applies to the nominee analysis.” McMahon v.
United States, 2010 WL 4430512 (D. Conn.
Oct. 29, 2010).
12.The IRM incorporates the six-factor test.
IRM § 5.17.2.5.7.2(3).
13.LiButti v. United States, 968 F. Supp. 71, 76
(N.D.N.Y. 1997) aff’d in part, rev’d in part,
178 F.3d 114 (2d Cir. 1999).
14.See, Spotts v. United States, 429 F.3d 248,
252 (6th Cir. 2005).
15.United States v. Porath, 764 F. Supp. 2d
883, 903 (E.D. Mich. 2011) (internal quotations and citations omitted), aff’d, 490 F.
App’x 789 (6th Cir. 2012).
16.In re Manshul Const. Corp., 2000 WL
1228866 (S.D.N.Y. Aug. 30, 2000).
17.IRC § 7123; IRM § 5.19.8.4.16.1.
18.28 U.S.C. § 2410(a)(1).
19.Nonnenmacher v. United States, 1993 WL
216146 (D. Or. Jan. 19, 1993).
20.An alleged nominee can also bring an action to discharge a lien under IRC §§ 6325
and 7426 (but this process requires the
nominee to seek a certificate of discharge
first) or payoff the lien and file a refund
action. Practically, a quiet title action is
by far the best solution to redressing a
wrongful nominee lien.
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14 Connecticut Lawyer December 2013/January 2014
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Client - CT Lawyer 2010
Connecticut Lawyer
September 2013
15
Paul B. Ciarcia is
an attorney who
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By Paul B. Ciarcia
16
Connecticut Lawyer
December 2013/January 2014
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S
omeone sailing into Bridgeport would probably
be put off by the waterfront scene before his or her eyes:
overgrown, underdeveloped patches of empty land at Steel
Point framed by a horizon of bleak, empty lots and weeds.
Could such a scene, within a decade, be transformed into a
visual that is radically different?
Instead of a dark empty lot, consider a
transformed Steel Point in the not-toodistant future. One in which people could
sit along a promenade enjoying a summer
night cooled by the ocean breeze from the
Long Island Sound; yachts anchored at
the marina, gently rocking back and forth
on the lightly rippling water; and couples
walking by, hand in hand, while music and
laughter spill out from restaurants lining
the waterfront.
This article proposes that such a transformation—from idle to the idyllic—is
very much a reality. How, you may ask,
can this happen along a rough and tumble
industrial waterfront in an economically
distressed city trapped in a slow-growing
state?
Revitalization of places like Steel Point in
Bridgeport is not quite as far-fetched as
one might think. Thanks to an innovative
form of financial alchemy supporting environmental remediation known as tax increment financing (TIF), contaminated or
distressed properties in Connecticut and
across the country can be made highly
productive. Several examples of such revitalization throughout the country include:
• Cleveland, OH: TIF helped in the remediation of a former steelyard in the
heart of the city’s industrial district;
it has since become “Steelyard Commons,” a new retail center which contains store, including a Walmart Supercenter, The Home Depot, Target,
Staples, Best Buy, and Marshalls.1
• Atlanta, GA: A 138-acre (and formerly
contaminated) steel mill gave birth to
new residential units, retail and entertainment space, hotel rooms, and acres
of new public parks.2
• Wyandotte, MI: TIF financing was
the driving force that turned an abandoned, 84-acre chemical plant into a
nine-hole golf course, park, riverfront
boardwalk, and rowing facility.3 The
golf course cost $5.2 million in public
funds generated from a tax increment
finance district and bonds.4
• Salt Lake City, UT: A former rail yard
has been revitalized into a vibrant residential and commercial district now
known as “The Gateway,”5 featuring
shopping, entertainment, and dining.6
• Colorado Springs, CO: The contaminated site of the long-abandoned Golden Cycle Mill that once processed gold
ore has become a new, highly soughtafter, and growing residential community.7 It is now poised for commercial
development.8
• Milwaukee, WI: A TIF district was used
to cover remediation and development
costs for the former site of the Trostel
and Sons Tannery; the 100-year-old
tannery eventually became Trostel
Square luxury apartments, a “little oasis on the banks of the Milwaukee River.”9
• Minneapolis, MN: The blighted remains of the Johnson Street Quarry were
redeveloped into a 420,000 square foot
community shopping center—thanks,
in part, to TIF. The redevelopment was
credited with creating approximately
2,000 jobs in the area and significantly
increasing property tax revenues.10 The
new project had a positive effect on the
formerly depressed neighborhood and
led to a jump in demand for residential
units.11
Connecticut has seen the successful implementation of TIF projects as well:
• Waterbury: A site that was formerly
the location of multiple brass mills—including the Scovill Brass Works, which
began operation in the early 1800s12
and became the largest brass manufacturer in the country.13 Unfortunately,
200 years of industrial use left the former Brass Works site contaminated
with metal hydroxide, PCBs, sludge,
lead paint, and other pollutants. The
site was successfully remediated and
later developed into the Brass Mills
Mall thanks, in part, to Connecticut’s
TIF program.14 After completion in
1996, the site created 400 retail jobs,
in addition to 1,600 construction jobs.
Property tax revenues and economic
growth in the surrounding areas both
improved.
• Bristol and Southington: Straddling
both towns, Lake Compounce Theme
Park—the oldest amusement park
in the nation—was restored in 1997
through Connecticut’s TIF program.15
The deal provided $18 million in TIF, in
addition to private investment.16 From
1999 to 2004, the state received less
incremental tax revenue than the debt
Connecticut Lawyer December 2013/January 2014
17
service paid on the TIF bonds until the
project crossed the threshold of profitability in 2005 and the state began
receiving more in incremental tax revenue than the debt service on the TIF
bonds.17
TIF as Leverage for Development
TIF enables government to assist in jumpstarting the redevelopment of brownfields
and other distressed properties. Like Hercules redirecting the rivers to clean the
Augean Stables, municipalities redirect
the flow of future higher tax revenue from
the redevelopment of brownfield sites to
finance their remediation in the present.
Call it “back to the future” financing: the
future property tax revenues from the
much more valuable redeveloped property are used to reimburse the government
for a loan that it makes today to the developer to clean up the site and make it ready
for conventional development and private
financing. TIF helps turn brownfields into
virtual greenfields, providing a developer
with a clean site to build on.
In Connecticut, a state with many brownfields, the opportunity that TIF provides
has been utilized very little. Municipalities, developers, private equity firms, and
all of the stakeholders with an interest in
revitalizing properties should consider it
as an invaluable weapon in their arsenal.
The four-step process is straightforward.
First, property taxes on a site are “frozen”
at their current rate (the municipal assessor values it). Second, the municipality
pays a developer for the remediation costs
of cleaning up the property, often raising
the funds through the issuance of a bond.
Third, the developer remediates the site
and redevelops it. Finally, increased property taxes above the “frozen” base rate at
the beginning of the project are redirected to pay for the investment made by the
municipality (paying off a bond issuance).
The concept often has been described as a
self-funding circle of investment. As long
as the increased property taxes from the
new development meet the estimates of
the municipality, the projects should be
self-funding.
18
In many states, municipalities are using
this basic TIF model or some variation of
it to rescue environmentally contaminated lands or blighted areas and leverage
private financing for economic development.
TIF programs don’t work in a vacuum,
nor do they regularly serve as the sole
or even primary source of financing for
the redevelopment projects as a whole.
Municipalities often employ a varied array of financing mechanisms, such as tax
abatements, revolving loan funds, property transfers, or special taxing districts
to name a few. Additionally, such projects
require the future promise of significant
private sector investment. Nevertheless,
TIF is considered one of the most effective
public sector tools to close funding gaps
and help get projects off the ground that
may never otherwise happen. They are a
tool to supplement investment by developers and private equity, and work alongside a host of other government grants
and incentives programs.
In fact, TIF is the most widely used development program for local governments
across the United States.18 In some municipalities, the success of the TIF model
has led local leaders to declare that TIF
is their primary tool for development.19
After all, if implemented properly, TIF
can turn an environmental liability into a
financially productive source of revenue
for cities.
Challenges and Critiques to
the TIF Model
The TIF concept is not without its detractors. Critics of the program point out
significant downside risks associated
with the TIF model. TIFs are necessarily
complex deals, involving developers, private equity, municipalities, environmental liability, and the redirection of public
revenue. If the development projects do
not materialize, the municipality may be
left without recompense if it has already
issued the bond and funded the remediation in support of the redevelopment. If
its estimate of the future tax increment is
wrong or if property values drop, there
will be a shortfall. Based on results in
California, Governor Edmund G. Brown, Jr.
has signed legislation eliminating all 400
of the state’s development agencies that
supported TIF projects.20 California was
the state that pioneered TIF in 1952.
The success of TIF depends upon the economic success of the redeveloped proper-
Connecticut Lawyer December 2013/January 2014
ties and increases in property value. Some
studies have questioned this economic
benefit of TIF. A comprehensive study of
235 cities in Northeastern Illinois found
that the growth rate of property values in
municipalities with TIF was significantly
less than in those without TIF, even controlling for other variables.21 This study
concluded that where investment is simply shifted around within a municipality
through the inducement of a TIF, there is
no net economic benefit outside the TIF
district within a municipality.22 The study
appears to support the argument that
under some circumstances, development
from TIF would have happened anyway
and the TIF is simply a windfall to developers who are willing to situate their
development on a TIF site as opposed to
another site.
In economic terms, TIF may distort decision-making by developers; TIF incentives
may make some investment decisions
economically inefficient. For example, a
publicly subsidized retail development
may preclude retail developments that
might otherwise locate nearby, resulting
in a net loss in economic growth. Some
have described TIF as “robbing Peter to
pay Paul”; in essence, if TIF is used to lure
development from one town to another
or one county to another, it essentially results in no overall net gain. Studies have
concluded that, in cases such as these, the
record is at best mixed.23
The other economic criticism is that there
may be economic losses for the municipality. If development would have occurred anyway, simply in a different location, some would argue that TIF diverts
tax dollars from school districts, libraries,
fire departments, and other municipal
functions to serve the needs of a developer.24 TIF can last decades, and this means
that as the development takes shape—
and commercial or residential units are
completed, families and businesses will
move in. The public services provided by
schools, fire departments, and other social services will be required to support
these developments but the attendant increase in revenue will not be there until
the TIF is completed. The real fiscal benefit accrues in the long-term; however, a
short-term burden to the municipality
also exists.
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Similarly, the intersection of government
subsidies in the form of a diversion of tax
dollars and economic development makes
the entire TIF system prone to “crony capitalism” and the prospect of developers
who are TIF recipients making campaign
contributions to get favorable treatment.25
Properly executed TIF is, in reality, simply
a self-funding subsidy—a subsidy, nonetheless, to attract major businesses that
may otherwise locate elsewhere. Some
question whether such programs are creating an economic revitalization or simply
shifting jobs from one area to another.26
As noted, TIF usually works alongside
several other public development mechanisms and incentives programs at the
municipal, state, and federal level. To the
extent that TIF subsidizes development
in one area over another, it is a larger issue that goes to the heart of public economic development measures, as a whole,
and not just TIF. Importantly, it cannot
be assumed that every development in a
TIF district could have happened nearby
in the municipality or even in the same
state. TIF’s proponents would argue that,
in many cases, TIF projects are not simply
redistributive but additive; meaning offices, residences, and communities may be
developed where none existed before and
the prospect of development occurring
without subsidy is low or non-existent.
In addition, besides the economic calculations, there is an undeniable benefit in a
tool that allows municipalities to remove
polluted or blighted areas from the landscape.
A Solution for Connecticut’s
Development Challenges
Consider that Connecticut is the home to
the Brass City (Waterbury), the Bell City
(Bristol), the Rubber City (Naugatuck),
the Silk City (Manchester), and the Hardware City (New Britain). The Danbury
High School “Hatters” are an homage to
that town’s manufacturing lineage as the
“Hat Capital of the World.” One can easily
say that Connecticut was one of the great
“makers” of American industrial history.
This remains a proud and lasting legacy;
however, unfortunately, also a dirty one.
In the State of Connecticut, TIF for brownfields holds great potential for areas sorely in need of development, such as former
industrial sites or abandoned factories.
Often these are not economically desirable
in their current state due to the inherent
environmental liability and remediation
costs. Under normal circumstances, the
purchaser of such a property will assume
the environmental liability attached to the
property in terms of clean-up costs and
even chasing a contaminant plume onto
other properties. This prospect can make
investment a losing proposition and leave
properties lying dormant for years.
Often, private parties interested in acquiring properties and municipalities eager to
have a blighted area put to productive use
are forced to throw up their hands because
the numbers simply do not work without
some sort of state or federal funding to
close gaps and push projects over the tipping point.27 Greater attention should be
paid by municipalities and developers to
the potential upside of this financing facility as a solution to these impasses. At the
same time, the potential gains and pitfalls
must be carefully weighed.
The Mechanics of TIF in
Connecticut
TIF is a versatile tool for development.
Connecticut authorizes municipalities to
create TIF districts for specific development projects.28 At the state level, Connecticut supports TIF projects on behalf
of municipalities through a special state
agency known as Connecticut Innovations
(formerly the Connecticut Development
Authority), which also offers a TIF program targeted at brownfield remediation.
Connecticut Innovations’ TIF Program
Any person, firm, corporation, or municipality may seek TIF by applying directly
to Connecticut Innovations. The applicant
must submit information showing that
the project will be “self-sustaining from
the incremental taxes collected.”29 Additional materials may include an economic
impact assessment, financial analyses,
feasibility studies, analysis of required
infrastructure, and similar materials.30 In
addition to incremental property taxes,
the program allows for assessment of hotel taxes, incremental sales taxes, admission fees, cabaret taxes, and dues taxes
from the project.31
Connecticut Innovations makes its own
determination concerning the economic
viability of projects applying for TIF and
produces a revenue impact assessment.
This assessment is presented for final
approval to the Connecticut Innovations’
Board of Directors. Connecticut Innovations may only approve a project if it
concludes that certain economic conditions can be met. First, the projected incremental tax revenues must be sufficient
to pay interest and principal on the TIF
bonds as payments become due. Second,
the project must be economically viable.
Third, it must contribute to economic development and provide jobs. Finally, the
“direct and indirect economic benefits of
the project to the state and the municipality in which it shall be located” must be
greater than the costs.32
Connecticut Innovations’ TIF for
Remediation
Connecticut Innovations’ TIF for brownfield remediation is aimed at the state’s
redevelopment challenges discussed
above. The program works as a partnership between the agency and the municipality seeking the development.
The process begins when the municipality passes a resolution authorizing the financing for a project with a developer. The
developer usually submits a master plan
for approval by local land use authorities.
A developer or municipality may apply
as long as both parties are in discussions
before the financing process begins. Assuming these preliminary steps are complete, the parties may apply to Connecticut Innovations. If approved, Connecticut
Innovations funds the developer’s remediation with a grant and the municipality
pledges a portion of the tax increment to
Connecticut Innovations, which acts as an
intermediary in the process.33 Connecticut Innovations issues a bond to fund the
grant to the developer. The bond will be
paid off by the increased property tax revenue from the new development as allocated by agreement between the municipality and Connecticut Innovations.
The process for calculating the incremental tax revenue is straightforward:
1. Determine the amount of property
tax revenue the unimproved property
would have generated based on the
current property tax rate (the municipal assessor values it).
Connecticut Lawyer December 2013/January 2014
19
2. Subtract this amount from the amount
of taxes the improved property generates based on that same rate.
The municipality must put the incremental tax revenue into a special fund to
be used to pay interest and principal on
the bonds. The bonds must reach maturity within 30 years.34 So far, there has
not been a significant rate of default on
TIF bonds,35 which may be attributed to
the conservative decision-making of the
municipalities or careful selection of partnerships with developers. Defaults do occur, however. Economic downturns can
undercut commercial property values in a
district and leave the development agency
responsible for making payments on the
TIF bond. Such a scenario is currently unfolding in Troy, MI, a suburb of Detroit.
Troy’s Downtown Development Authority
may default on its TIF bond debts in the
amount of $14 million due to falling property values in the district.36
Connecticut Innovations bears the risk of
nonpayment and in effect guarantees the
loans37 if future property tax revenues are
less than what was estimated. The extent
of this risk may be reduced to some extent,
assuming the property has residual value,
by a tax lien on the subject property.38
TIF may be structured as a “pay-as-yougo.”39 In this structure, the city does not
fund the remediation up front; the developer pays for up-front project costs with
the promise of future repayment from
subsequent tax increments.40 The worst
case scenario is that the developer never
builds and never produces any incremental tax revenue. At that point, the city is
not out any money. In effect, the municipalities are insulating themselves from
liability if the project goes awry. “Pay-asyou-go” is also appropriate where a redevelopment plan has been approved by the
municipality but no developer is in place,
and there is no reliable way to calculate
future tax increments.
20
There is no minimum amount for Connecticut Innovations financing; however,
the sum total cannot exceed $10 million.41
There is also no sunset date for the program, nor is there no set formula for what
portion of the total cost the TIF will cover;
it could be for the total cost of the remediation, but it is limited to the remediation
of the land only and not buildings or vertical developments.42 It is the developer
who pays for the work with the financing
from the TIF; there is no direct payment
from Connecticut Innovations or the municipality.
TIFs are generally limited to larger projects because of the practical need to create a sufficient incremental rise in tax revenue to support the financing and pay off
the bonds. There are numerous brownfields sites in Connecticut but many would
not be eligible for a TIF under this program because they are not large enough
to warrant the investment. So far, only 12
projects have been completed under the
TIF for remediation.43 Recent examples in
Connecticut include retail facilities such
as a Stop & Shop in Berlin (formerly the
site of a solid waste facility) and an expansion to Goodwin College in East Hartford.
TIF was also used to help fund the University of Hartford’s Hartt School’s new
Performing Arts Center on the site of a
former car dealership.
In Connecticut, any brownfield site that
will generate future incremental property
tax revenues following remediation is eligible for TIF. The language of the statute
specifies that the TIF for remediation is
intended for properties where no private
investment funds are currently available.
Thus, if a developer who intends to remediate and build a development, and has or
can procure private funding for the project, the TIF is unavailable.
After receiving the grant from the Connecticut Innovations, the developer undertakes remediation of a brownfield site
as part of a plan meeting the standards
and requirements of the Connecticut Department of Energy and Environmental
Protection (DEEP). Generally, a remediation project is defined as any project
within Connecticut involving redevelopment or productive reuse of real property
that has been subject to pollution or some
type of contamination.44 The Connecticut
Brownfields Redevelopment Authority
maintains a list of 201 brownfield sites in
Connecticut, while the Connecticut DEEP
lists a total of 284 known brownfield
sites in the state.45 The DEEP, however,
acknowledges the “long industrial history” of Connecticut and estimates that
Connecticut Lawyer December 2013/January 2014
there are likely to be tens of thousands of
polluted sites in the state eligible for the
brownfield classification. The DEEP list is
thus not exhaustive and many other sites
will qualify as brownfields and be eligible
for a Connecticut Innovations-backed TIF
for brownfield remediation. This dramatic volume of “potential” brownfields only
serves to highlight the relevance of TIF as
a development tool.
TIF at the Municipal Level
At the more local level, municipalities
are empowered to create TIF bonds in
order to support a planned development
project.46 The TIF is carried out “by and
through” the municipality’s development
agency. A “development project” for the
purpose of this TIF is defined as a “project
conducted by a municipality for the assembly, improvement, and disposition of
land or buildings or both to be used principally for industrial or business purposes
and includes vacated commercial plants.”
Notably, such TIFs would include not only
land but also buildings. Such bonds must
be authorized by a resolution adopted by
the legislative body of the municipality after a public hearing on the issue. There is
a 40-year limit for maturity for housingrelated developments and a 30-year maturity for all other types of developments.
Like the Connecticut Innovation’s TIF,
these projects are payable and secured
from a “pledge of and lien upon any and
all of the income, proceeds, revenues and
property of such a project.”47 Municipalities are also given broad power to support
the development project through the contribution of services, facilities, property,
loans, grants, or they may “take any other
action of a character which it is authorized
to perform for other purposes.”48 Their
TIF-funded projects can also be administered through Connecticut Innovations.
TIF bonds are unlike other municipal
bonds in important respects. General municipal obligation bonds are borrowed
from the municipality and are repaid
from its tax base, thus there is a debt
ceiling on amounts of such bonds.49 The
debt ceiling does not apply to TIF bonds
unless an advance on the bond repayment is given up front by the municipality. Otherwise, TIF bonds are not a general
obligation of the municipality.50 Charter
restrictions on general obligation bond-
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ing—such as those requiring a public referendum—may not apply to TIF bonds if
the provisions in the charter “reflect the
understanding that they are designed to
implement general municipal obligation
bonds for which the taxpayers will be indebted.”51
Making the TIF Fit
Some of the most ambitious TIF projects
in Connecticut have gone outside Connecticut Innovation’s remediation TIF
process and created districts through adhoc legislation that will implement the
TIF mechanism.52
One of the most ambitious examples
of such a project is Steel Point Harbor
in Bridgeport. This project, still in the
early stages of development, envisions
a 2.8 million square foot mixed-use and
urban-oriented waterfront development. It will seek to create approximately
800,000 square feet of retail space; another 200,000 square feet of commercial
offices; three-million square feet of hotel
and meeting spaces; a 250-slip marina;
and between 1,000 and 1,500 residential
units.53 Bass Pro Shops has committed to
be the anchor retailer for the new development.54 The 50-acre waterfront peninsula is bounded by Interstate 95 and sits
a short distance from Bridgeport’s train
station served by Metro-North and Amtrak. The lawyers responsible for drawing
up the deal with the city and developers
were also instrumental in drafting the legislation that created a TIF district in Steel
Point.55
One of the most successful examples of
using TIF for remediation is Stamford’s
Harbor Point. The Harbor Point site on
Stamford’s South End waterfront—with
its decrepit infrastructure—had been
contaminated and had fallen into disuse.
Through TIF, the site was remediated and
then redeveloped to include 4,000 residential units, new retail space and offices,
two new hotels, and 11 acres of parks and
waterfront trails.56 It is anticipated the
completed project will give rise to 2,500
permanent jobs.57
Stamford’s TIF, similarly to the model
in Bridgeport’s Steel Point Harbor, was
created using a tax assessment district
through state legislation. This legislation created the Harbor Point Infrastruc-
ture Improvement District. Under the
terms of the deal, Stamford entered into
an agreement with the district whereby
the district, not the city, constructed the
improvements and issued the TIF bonds
itself. Stamford agreed to fund the lesser
of one half of either the tax increment created or the debt service on the bonds. The
tax assessment district has liability for the
bonds, not the City of Stamford or State of
Connecticut.58 The TIF does not affect the
municipality’s debt limit.59
The district has the power to assess taxes upon the land and buildings within
the district. These assessments can be
used for the costs of improvements to
real property and the cost of financing or
bonds for such improvements.60 In February 2010, the district launched $145 million in special assessment bonds backed
by TIF for infrastructure improvements,
parks, and remediation of the property.61
The bonds in the District helped build
roads, sidewalks, parks, and similar infrastructure.62 A portion of the bonds
were issued as Recovery Zone Economic
Development Bonds, as part of a federal
stimulus program for infrastructure improvements.63
The new development has already resulted in a thriving residential community,
new retailers and restaurants, and the
future headquarters of Bridgewater Associates—the world’s largest hedge fund.
The City of Stamford estimates the new
revenue to be substantial. It is expected to
generate $32 million per year in property
taxes and $352 million in personal property, automobile, and conveyance taxes.64
The development is one of the largest
public financings of its kind since the
2007 economic downturn, and augurs a
path forward for municipalities still mired
with stagnant growth.
Conclusion
The examples in this article are evidence
to the scale of change that TIF can help to
bring about and gives reason to believe
that renewed attention to this financing tool will prove fruitful. Connecticut
is a state that faces a unique set of challenges. It is currently in a period of stagnant economic growth, while at the same
time it is struggling to attract investment
and to redevelop blighted and depressed
areas leftover from its long history of industry and manufacturing. Rather than
let brownfields sit idle, TIF offers a flexible method of leveraging public financing
and private investment. The reality is that
many blighted and underdeveloped areas cannot be economically redeveloped
without financial incentives. TIF has the
ability to make that investment worthwhile in Connecticut. Not every TIF is a
success story, nor is it the solution to every development challenge. Nevertheless,
for many brownfields or depressed areas,
TIF may be the spark needed to reignite
economic growth and give life back to real
estate once neglected and forgotten. CL
Notes
1. Steelyard Commons, http://www.steelyardcommons.com/site_photos.asp (April
27, 2013).
2. Evans Paul and Charles Bartsch. Case Study
of State Incentives: Proposals to Make Strategic Investments in Brownfields Redevelopment. NORTHEAST-MIDWEST INSTITUTE.
http://tinyurl.com/bdbh5zc.
3 Charles Bartsch and Barbara Wells. Financing Strategies for Brownfield Cleanup
and Redevelopment. NORTHEAST-MIDWEST INSTITUTE. June, 2003. p. 30.
4. Charlie Bartsch. Brownfields Financing
Basics: Show Me the Money. NORTHEASTMIDWEST INSTITUTE. http://tinyurl.
com/byf9u4h. p. 12.
5. The Gateway, http://www.shopthegateway.com/ (April 27, 2013).
6. Matthew Frank. From Rubble to Riches:
Western Communities Capitalize on Cleanups. New West, February 14, 2008. http://
tinyurl.com/auhpa8j
7. Gold Hill Mesa, http://goldhillmesa.com/
(April 27, 2013).
8. Rich Haden. With Homebuilders Busy at
Gold Hill Mesa, Commercial Project Eyed.
Gazette. November 4, 2012. http://www.
gazette.com/articles/gold-146759-hillmesa.html
9. Wisconsin Department of Natural Resources Remediation and Redevelopment
Program: Trostel Tannery. http://dnr.
wi.gov/files/PDF/pubs/rr/RR855.pdf
(February 2010).
10.Environmental Protection Agency: Waterbury, CT is Adding Polish to the Brass City.
http://www.epa.gov/region4/brownfieldstoolkit/casestudies/csnatlclargecomm.
pdf. p. 6.
11.Ibid. p. 7.
12.Robert A. Simons, Michael Leccese. Brass
Mills Mall. URBAN LAND, June, 1998.
13.Environmental Protection Agency: Water-
(continued on page 36)
Connecticut Lawyer December 2013/January 2014 21
ImpairedLawyer
Symposium:
Identifying, Intervening, and
Looking into the Future of
Impairment in Lawyers and Judges
Many factors and conditions can impair lawyers and judges in ways that diminish their professional
performance. Drug and alcohol abuse, mental illness, financial problems, family and marital difficulties,
Alzheimer’s and other dementias, along with problems that can develop in the course of the normal aging
process (an important issue with an aging population) are some of the social, physical, and mental conditions that can impair lawyers and judges. A symposium, sponsored by the Connecticut Bar Associateion,
Connecticut Bar Foundation, and Lawyers Concerned for Lawyers-Connecticut, Inc.—was held on October
18 at the CBA Law Center to explore this topic and options available to legal professionals. Following are
the remarks from keynote speaker Dr. Orestes J. Arcuni, MD.
22 Connecticut Lawyer December 2013/January 2014
Dr. Orestes J.
Arcuni, MD is a
Diplomat of the
American Board
of Addiction
Medicine. He
is certified
by the American Board of
Psychiatry and Neurology
in Psychiatry and Geriatric
Psychiatry. Dr. Arcuni leads a
team of seasoned, licensed
therapists in providing cutting
edge addiction treatment
at High Watch. Prior to his
appointment at High Watch,
he served as chairman of Danbury Hospital’s Department of
Psychiatry for 26 years where
he developed comprehensive
treatment programs for persons with substance abuse disorders as well as co-occurring
disorders.
Visit www.ctbar.org
Welcome and a thank you to the Connecticut Bar Association and Lawyers Concerned for Lawyers for the opportunity to
participate in this important Symposium.
My remarks today will touch on:
1.The epidemiology and prevalence of
impairment among attorneys.
2.Stresses that are unique to the legal
profession and the role of these stresses in the evolution of frequently encountered impairments.
3.Some resistances to extending and accepting help from within the profession
itself.
I will mention the good news of advances
in medicine, particularly from the new
specialty of addiction medicine, as well as
psychiatry and the neurosciences. Today’s
improved programs and clinical practices
offer better outcomes with less stigma to
the attorney who becomes impaired. In
fact, the proliferation of lawyer assistance
programs parallels these very positive developments in the area of treatment.
Definitions
Impairment presents as a clear departure
from usual and customary professional
behaviors. It has a potential negative impact on the standards of legal practice,
and has the potential to cross thresholds
that imperil—the attorney, the clients,
and organizations that provide legal services—be it solo practice, a firm, or the
judiciary itself.
Impairments may be temporary, as in adjustment disorders, from stresses in the
attorney’s personal or professional life.
These usually resolve with advice from a
respected colleague or with brief counseling from a therapist. Many spontaneously
resolve. Other impairments less temporary are due to infirmity from degenerative conditions of the body or mind and
may be progressive.
But far and away: Addictions and mental
health problems are the cause of impairment.
Epidemiology
In order of frequency, the impairing
conditions most commonly afflicting
attorneys are:
• Addictions: alcohol and other drugs
predominate, but gambling and sexual
addictions are also seen in this category, albeit less frequently
• Depression is far and away the most
common psychiatric diagnosis among
attorneys
While these first two comprise the majority of impairing conditions, a significant
minority includes other mental illnesses,
chronic medical conditions, and those illnesses that specifically affect cognitive
ability, such as Alzheimer’s disease.
Please note that it is unusual to have only
one condition and more often the case
to have two or more. At High Watch Recovery Center we commonly see addiction and mental disorders co-occurring
in the same person. For example, addiction and bipolar disorder can co-occur, as
does alcoholism and depression as well as
anxiety disorders, where a wide variety of
substances may be abused.
Facts about Impairing Conditions
• It may surprise some that lawyers have
the highest rate of suicide of any profession, having surpassed dentists for that
distinction in 1996.
• Lawyers have twice the rate of alcohol
and drug addiction than the general
population with estimates ranging as
high as 20 percent. The American Bar
Association reports that approximately
two in ten attorneys will have an addiction (usually to alcohol) during their
practice lifetimes. (Addiction is a treatable illness).
• The rate of depression is also higher
than in any other profession and is
pegged at 25 percent. An alarming statistic is that 40 percent of female attorneys will have a clinical depression
during their careers. (Depression is a
treatable illness.)
• Add to this the demographic shifts in
population that inform us of an enlarging number of aging attorneys who
may suffer from sensory and cognitive
losses.
The notion of comfortable retirement has
become a nostalgic and somewhat historical idea in our society. Senior citizens are
increasingly advised to continue working
having seen their nest eggs depleted by
a recession that began seven years ago.
Attorneys haven’t been immune to these
pressures. While many will work successfully well into their 70s and 80s, others
will attempt to work despite impairments.
Stress
There are stresses that are particular to
the legal profession. Most attorneys cope
successfully with them on a daily basis.
These include deadlines, lack of control
over schedules, difficult and disturbed clients, an adversarial win/lose climate, and
minimal tolerance for error—to name just
a few.
Some attorneys are less successful in coping. For people working more than 70 or
80 hours/week there is a cumulative toll
that alters emotional balance and intellectual perspective.
The legal profession itself may select for
at-risk individuals. Many attorneys have
Type A personalities: they are highly ambitious, very competitive, and are classic
overachievers with tendencies toward
perfection. These traits can be enormous
assets except if rigidly applied when flexibility is required and when the work atmosphere is such where throughput and
quantity are the measures of one’s professional worth.
Many attorneys’ professional and personal lives move at a pace that was rare
20 years ago. Today’s high-tech systems
give you a work platform 24 hours/day.
They have fractured the traditional time
boundaries between work, personal, and
recreational activities. This interferes
with basic biologic and circadian rhythms
required to maintain good health. Rather
than decompressing workloads, high-tech
devices have increased the pace at which
attorneys are expected to produce.
To cope with unmanageable stress levels,
lawyers may resort to unhealthy solutions— unhealthy to themselves, their clients, and their careers; hence the frequent
misuse of alcohol, drugs, sex, gambling,
and other forms of escape—anything to
relieve pressure. Eventually, the temporary solution develops a life of its own. It
is my experience that before a substance
Connecticut Lawyer
December 2013/January 2014 23
abuse problem is recognized in the workplace it has generally wreaked havoc in
the attorney’s family and home life.
The good news is that if picked up early
enough, with a gentle nudge in the right
direction and toward good resources, the
progression of substance abuse can be
stopped and a career saved.
Sometimes depression sets in because of
ongoing stresses in attorneys who have
professional setbacks, and fear further
loss. Depression is very painful, creates
cognitive and perceptual distortions with
feelings of guilt and impending doom.
Fifteen percent of untreated major depressions result in suicide. A recent Johns
Hopkins study registered concern that
these numbers are likely to increase in the
legal profession.
Brain—Bio-Medical Science
Addiction and depression are treatable
illnesses as are many other impairments.
The past 20 years have seen a revolution
in understanding the neurobiology of
many impairments that affect cognitive
function and emotional regulation. The
legal profession is cognitively driven. Optimal performance requires a keen intellect that is well-balanced in its emotional
and cognitive functioning.
All major universities in the United States
have established departments of cognitive sciences to research the brain structures that underlie thinking and feeling,
and to so inform the applied sciences of
LAWYERS CONCERNED FOR
LAWYERS—CONNECTICUT, INC.
If you have ever thought what a
relief it would be to talk frankly with
a person who is sensitive to problems
like yours…
If you want support to stop using
alcohol or other drugs…
If you have ever been concerned about
someone else’s alcohol or drug use…
Use the LCL HOTLINE today…leave
your first name and telephone number.
Expect a call back…peer support will
be made available to you. It’s FREE
and CONFIDENTIAL.
HOTLINE: 1-800-497-1422
24
medicine and psychology. The field of molecular genetics is finding answers to the
questions of why some people are more or
less—or not at all—vulnerable to stress,
addiction, and depression. Recent Nobel
prizes in medicine recognized discoveries
about how nerve cells communicate with
each other and how genetic changes can
influence these processes.
New peptides (small proteins) are under
development that have the potential to
stop cognitive decline in dementia, accelerate relief for depression, and block the
cravings that drive addictions. Physicians
are eager to apply these new discoveries
on behalf of their patients. Specialists in
addiction medicine are now able to more
successfully treat substance abuse by integrating medicine and psychiatry with
the 12 step recovery program of Alcoholics Anonymous.
Heightened Awareness
Heightened awareness within the legal
profession itself is essential to halt current trends because the legal profession is
self-governing and self-regulating.
In 2006, the Oregon Bar Association ran
a symposium on working with impaired
clients—it was very well attended. A follow up workshop on impaired attorneys
was planned and subsequently cancelled
for lack of interest. Clearly we are on sensitive and challenging terrain.
Many positive changes have occurred
since. For example, the New York State
Bar Association, in its model policy on
impairment, states as one of its goals: “It
is far more cost effective to treat and rehabilitate affected attorneys, than it is to
deny that such problems exist, or to simply fire the affected attorney, destroying
careers, wasting years of experience and
potentially jeopardizing the best interests
of the firm’s clients.”
Some Obstacles to Getting Help
The primary obstacle that prevents lawyers from seeking help is the belief that
they can handle the problem on their
own. Studies also indicate that attorneys
tend to leave treatment prematurely for
the same reason.
A second obstacle in seeking help for
mental health issues is a worry about
Connecticut Lawyer December 2013/January 2014
negative consequences about their professional standing with peers, judges, and
potential clients.
Other obstacles are commonly at play:
• Denial is a powerful impediment to accepting addiction treatment and very
commonly seen. Chemically dependent attorneys in denial develop cognitive distortions. Poor performance is
blamed on a host of other factors thereby shielding the attorney from embarrassment, shame, and self-reproach.
Denial develops subtly and strengthens
as the illness progresses.
• Depression becomes its own guilt-ridden painful trap, and paralyzes the attorney from getting help.
• The result is that voluntary help is
sought by very few, and unless there is
intervention by others in a climate of
hope and support, the real possibility
of catastrophe exists. Intervention requires awareness, courage, and skill. It
must include both a plan to get help and
one to return to work when function is
restored.
For a climate of support to exist, enabling behaviors by colleagues and the
so-called Ostrich Phenomenon need to
be overcome. More insidious is a negative subculture in some very competitive
shops where the “absence” of a colleague
is viewed as an opportunity for advancement.
In closing my remarks, I believe we can
safely say it is in the best interest of any
organization, and best practice within
the legal profession, to restore health and
function to an impaired peer. The results
are invariably positive: improvement in
optimism, morale, moral tone, and in the
integrity of the profession itself.
Thank you for your kind attention and I
look forward to spirited discussion in the
workshops that follow. CL
For information on Connecticut’s
Lawyers Concerned for Lawyers
Program, visit lclct.org or call their
confidential hotline at 1-800-4971422.
Visit www.ctbar.org
Connecticut Lawyer November 2013
25
Best Practices Series
How to Avoid
Representing the
Client from Hell
Wesley W. Horton is
a partner at Horton
Shields & Knox PC in
Hartford where he
practices in state and
federal appellate litigation, consulting for
trial litigation, constitutional law,
insurance law, and representing
attorneys in professional disciplinary matters. He is a member of the
CBA Standing Committee on Professional Ethics, Fair and Impartial
Courts Committee, and Appellate
Advocacy Section.
By Wesley W. Horton
Learning when to say “no” to representing someone is not taught in law school,
but it should be. (Learning how to say
no—involving the necessity and contents
of a declination letter—can be another
article.) Nothing produces grey hairs or
even a regret at one’s career choice faster
than representing “the client from Hell.”
Those of us who actually have grey hairs
know the type: burying you with documents and constant communications;
having exaggerated expectations; making
ethically improper demands; complaining
about every bill and disbursement; talking behind your back with the opponent
or court clerks; misleading you about the
facts; and then, after you have done heroic
work, grieving you.
The grievance will likely claim you were
not competent (Rule 1.1), misled the client about the scope of representation
(Rule 1.2), were not diligent (Rule 1.3),
failed to communicate (Rule 1.4), overcharged (Rule 1.5), and/or generally committed misconduct (Rule 8.4).
26
With some experience, the client from
Hell is often easy to spot. If the potential
client has already fired or been fired by
two or three lawyers on the matter, that
is a red flag. If the potential client brings a
big, disorganized bundle of documents to
the interview, that is a red flag. Even if the
documents are meticulously organized
but they include letters or e-mails from
the person that are lengthy, single-spaced,
Connecticut Lawyer
and rambling, that is a red flag. If the potential client is better at talking than listening, that is a red flag. And, finally, if the
potential client starts squabbling with
you over whether you can represent the
opponent if you decline to represent the
potential client, that is a red flag.
The best way to avoid the client from Hell
is to avoid having such a potential client
even become a “prospective” client. While
Rule 1.18, the prospective client rule, is
itself unclear, the official commentary
states (properly, in my opinion): “A person who transmits information unilaterally to a lawyer, without any reasonable
expectation that the lawyer is willing to
discuss the possibility of forming a clientlawyer relationship, is not a ‘prospective
client.’” The best example today is the
e-mail to “Dear lawyer,” the successor to
the form letter. Such communications, if
clearly not sent specifically to you, should
be ignored. If you are the one lawyer in a
hundred who responds, the person probably becomes your prospective client and
may well be the client from Hell.
Let us suppose the person specifically
communicates with you, either in person
or by telephone, letter, or e-mail. Until you
respond in some way other than a simple
“no” or “not now,” that person has, in my
opinion, no reasonable expectation that
you are willing to discuss the possibility
of representing that person (unless the
two of you have some prior legal history).
December 2013/January 2014
If you are approached at a cocktail party,
simply say “not now” and if the person
persists, walk away. At your law firm, the
safest (but admittedly not always practical) protocol is to see a prospective client
only with an appointment and to have
someone (or your voicemail) take a message instead of taking a telephone call
from a prospective client. That way, as
with an e-mail, you can check your conflict records and superior court filings
(are you the third lawyer?) before communicating in any way with the person. If
a red flag appears (or the request is outside your field), you or your assistant can
simply respond “no” before Rule 1.18 has
arguably even kicked in.
But let us suppose that you (like me) often
cannot resist taking the phone call. Make
sure the first words from the caller are the
caller’s name; a refusal raises the biggest
of red flags. Your best course of action is
to say “not interested” and hang up. If the
first words are indeed the caller’s name
followed by the nature of the call, you
have to decide at once whether to allow
the call to proceed. If you do, the caller
becomes a prospective client—why else
would you allow the call to proceed?
Having allowed the telephone call to proceed (and this also applies to the person
who comes to the office and is seen without an appointment), you need to make
sure that the person only tells you what
you need to know to determine whether
Visit www.ctbar.org
you are willing to take on that person as
a client. The first order of business is to
do the conflicts check, so initially ask only
about that issue. If the person cannot resist immediately trying to tell you more,
that is a red flag.
If the conflicts check passes and you are
interested but still questioning whether
the person might be the client from Hell
(this also applies to unsolicited but potentially promising e-mails), you should
meet the person face-to-face. Such a
meeting often answers the question.
Ask the person, initially, to give you only
non-confidential information Every legal
matter has at least some important nonconfidential information, so if the person
appears to be temperamentally incapable
of doing so, that is a red flag. If the nonconfidential information still leaves you
undecided, this may be a good time to
turn to finances. Watch out for high expectations and limited means. Watch out for
excessive haggling over your fee. These
are red flags.
If you still have not made up your mind and
if you have to delve into some confidential
information in order to do so, be advised
that, if you say “no” thereafter, you will
probably be disqualified under Rule 1.18
from representing the opposition. The
discussion of confidential materials may
unmask the client from Hell. Watch out
for speeches, watch out for unfocused or
lengthy answers to your questions, watch
out for being interrupted, watch out for
rooting around in documents, watch out
for claims about evidence that are unlikely to be true, and watch out for the person
who brings someone else along who is
clearly pulling the strings.
This is not a foolproof way to detect the
client from Hell before saying “yes,” but I
have pointed out several of the red flags.
If you see these red flags in time, say “no”
before the person becomes your client
from Hell. CL
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Connecticut Common Interest Ownership Manual
Second Edition
Member Price:
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This updated manual covers essential topics that any attorney who
deals with common interest ownership issues may encounter. Produced
by the CBA Real Property Section, including lead authors Matthew N.
Perlstein and Edward S. Hill with contributions from the leading condominium lawyers in the state, it provides updated models with extensive
commentary of a public offering statement, declaration, association bylaws, and organization documents. These model documents
incorporate the latest amendments to the Common Interest Ownership
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involvement, insurance requirements and repair and restoration after
a casualty, secondary market requirements, and so much more! This
9x11 guide, which is spiral bound for ease-of-use and includes foldout
diagrams and tabbed sections, is an invaluable addition to any
legal library.
Includes CD with valuable forms in usable formats.
To order your copy call the CBA Member Service Center at (860)223-4400 or order online at www.ctbar.org.
Connecticut Lawyer December 2013/January 2014
27
TIME TO GO PRO BONO
Retired Lawyers—An
Untapped Pro Bono Resource
By Peter Arakas
Peter Arakas is the president of the Connecticut Bar Foundation.
He is a member of the CBA Corporate Counsel Section and Pro
Bono Committee.
The crises of unrepresented parties and underfunding of legal services for the poor are no longer news, but there is news
about a rule change that might help ameliorate both of these
problems. Effective January 1, 2014, lawyers who have registered as retired with the superior court under Rule 2-55 will be
able to engage in pro bono work.
Retired lawyers have long been recognized as a possible source
of legal services for the needy. The CBA established an Emeritus Project several years ago to encourage senior lawyers to
provide pro bono services through the Pro Bono Network.
More recently, retired attorneys were recognized at the Chief
Justice’s Pro Bono Summit as an untapped pro bono resource.
However, Rule 2-55 stood in the way of allowing lawyers who
registered as retired with the superior court to provide free legal assistance to the poor.1
Under Rule 2-55, a lawyer may notify the superior court that
he or she has retired. Upon doing so, the lawyer may no longer
practice law, and is exempt from payment of the Attorney Occupation Tax and the Client Security Fund fee. A retired attorney
may resume the practice of law at any time by providing notice
to the superior court, but by doing so again becomes subject
to payment of the Client Security Fund fee. This summer the
judges of the superior court amended this rule to allow retired
lawyers to perform uncompensated services under the auspices of a legal service organization, a bar association, or a court
affiliated pro bono program.1
Retired lawyers have a wealth of legal knowledge and practical
skills, the desire to use their talents to contribute to the general
good, and the wish to remain engaged with their colleagues.
But they have retired for a reason—they want flexibility to allocate their time so that they can also pursue other interests. The
challenge becomes designing pro bono programs that can tap
into this resource and provide the flexibility that retired lawyers demand. The Connecticut Bar Association, in conjunction
28
Connecticut Lawyer
December 2013/January 2014
with the Connecticut Judicial Branch, has done just that. The
Small Claims Court Project provides advice and counsel to unrepresented small claims court litigants around the state. Volunteers sign up for two-hour sessions several times throughout
the year. They form a limited relationship with their clients
only for the period of time they meet for consultation, and have
no ongoing obligation to represent or advise the client after the
end of the session. No prior litigation experience is necessary
to be a very effective counselor to these clients. Usually two
volunteers participate in each session.
The CBA provides training for Small Claims Court Project volunteers and also provides malpractice coverage. The project
has been operating on a pilot basis in the Hartford Small Claims
Court since June, and has been proven to be satisfactory for
both retired attorney volunteers and the clients who have used
the service. Anyone interested in volunteering for this program
should contact Melissa Wyckoff at the CBA at mwyckoff@ctbar
.org or (860)612-2036.
Aside from the Small Claims Court Project, retired lawyers can
get involved in the many other pro bono opportunities available
in Connecticut. These opportunities can be found online at the
“Pro Bono Portal” (http://probono.ctlawhelp.org/). With the
wealth of pro bono opportunities for lawyers in this state, we
hope that many of Connecticut’s retired attorneys take advantage of this new rule change to give back to their communities.
CL
Notes
1. The judges also created a new “permanent retirement” status
under rule 55A. A lawyer may choose to retire permanently, and
thereby be exempt from the annual attorney registration process.
However, anyone who retires under this rule will be required to
take the bar exam to resume practicing law.
Visit www.ctbar.org
BUILDING YOUR PRACTICE
Leverage the Power
of Video Meetings
By Douglas S. Brown
vice—they are there to help you. Have a
test meeting with a colleague in your office or a family member to learn to use the
service. Most services allow you to send
an e-mail invite, and a small application is
loaded onto their computer, making you
online.
Douglas S. Brown is currently the acting
executive director of the CBA. He is chair of
the CBA’s Small Firm Practice Management
Section and a past chair of the CBA-YLS. He
is also a frequent provider of CLE for the
CBA. Attorney Brown is a coach and consultant who helps attorneys improve earnings.
He teaches innovation and leadership in the
MBA program offered by The Malcolm Baldrige School of Business at Post University.
Easy and cost effective video conferencing is within reach of all attorneys. Learning how to use this powerful technology
improves productivity, reduces costs, and
can increase client satisfaction. Today’s
services provide all of the benefits of traditional conference calling, but also allow
you to collaborate on documents, share
your screen, and capture many essential
non-verbal cues that are imperative to effective communication.
You don’t need to be a technology expert
to run or participate in a video meeting.
All you need is a laptop or webcam and
about an hour to set up an account and
learn how to use the service. You can do
all this for free, because leading services
such as WebEx and GoToMeeting allow
either free trials or offer limited accounts.
Here’s how to get started:
Setup. Pick a service and establish a free
account. Most will guide you through the
setup in a step-by-step way. If you run
into trouble, contact their customer ser-
Learn to control the conference. You’ll
need to know how to mute and unmute
people (and how other participants can
do it themselves). You’ll also need to know
how to share your video camera and microphone. The service will help you configure your microphone and camera for
best performance.
Learn to share your screen. Video meetings are great for working on documents
because you can share your desktop and
see changes or suggestions in real time,
then switch to the camera when you are
ready. Practice with this feature before
your first live meeting. You’ll want to
make sure you close windows you don’t
want others to see, and that you share the
proper screen if you have multiple monitors.
Before the meeting. Log into your conference about ten minutes early, especially
when you are in the learning stage. This
allows time to check your audio settings.
If you don’t have a strong Internet connection, you may want to use your phone
to connect audio, conserving bandwidth
for video or screen sharing. Advise the
other attendees to log in early as well because sometimes it takes a few minutes
to configure the service on their computers. Check your lighting to make sure
your face can be seen and that you don’t
have excessive glare or distractions in the
background. Don’t forget to mute your cell
phone and computer alerts, and consider
establishing a back-channel communication with teammates if you need to communicate outside of the conference. Instant messaging programs such as Skype
or e-mail are better than texting, so you
won’t have to take your eyes off of the
screen.
Starting the meeting. Allow each participant to introduce him or herself and provide a briefing on how to use the features
of the system such as mute and turning on
video sharing. If there are more than two
or three people on the call who are not
speaking they should mute themselves.
Make the most of your meeting:
• Avoid distracting noises like typing,
shuffling papers, and side conversations.
• Stay focused when on the video—look
at the camera when speaking and position the window of the others’ video
near your webcam so that you can see
them on screen and still have your eyes
focused near the camera. Your camera
is how you provide eye contact.
• Use your normal speaking voice and
use a conversational cadence.
• Avoid excessive body movement and
loud clothing—don’t forget to dress
professionally.
• Don’t interrupt one another. Use the
system’s chat or “raise your hand” feature to gain the attention of the meeting
moderator.
• When running a meeting with people
attending both in-person and remotely,
assign another person to be your online
moderator to ensure that online attendees have the opportunity to participate
effectively.
• Consider using the record feature to
capture your conference, but be sure to
gain the permission of the attendees as
required by applicable laws.
• Remember that many of these services
also work on mobile devices, which can
allow you to improve your presence
whether or not you are in your office.
Leveraging today’s video conferencing
technology can help you run a more profitable practice, and provide flexibility that
allows you to enhance your life. CL
Connecticut Lawye
December 2013/January 2014
29
SUPREME DELIBERATIONS
In Re Elvin G., 310
Conn. 485 (2013):
The Search for
Meaning in
a Seemingly
Incomprehensible
Statute
By Charles D. Ray and Matthew A. Weiner
Charles D. Ray is a partner at McCarter & English LLP, in Hartford. He clerked for
Justice David M. Shea during the Supreme Court’s 1989-1990 term and appears before the Court on a regular basis. Matthew A. Weiner is a Deputy Assistant State’s
Attorney in the Appellate Bureau of the Office of the Chief State’s Attorney.
DASA Weiner clerked for Justice Richard N. Palmer during the Supreme Court’s
2006–2007 term and litigates appellate matters on behalf of the State.
Any views expressed herein are the personal views of DASA Weiner and do not
necessarily reflect the views of the Office of the Chief State’s Attorney and/or the
Division of Criminal Justice.
We hear, from time to time, that the job
of a judge is to apply the law “as written.”
Setting aside the political implications associated with pronouncements of this ilk,
what is a judge to do when the vagaries
of the English language or even something as mundane as punctuation render
the law “as written” nearly indecipherable
when applied to a thorny set of facts?
In re Elvin G., 310 Conn. 485 (2013) serves
as a good example of this. The Court confronted two main issues in Elvin G. The
first was the proper construction of General Statutes § 17a-112(j)(3)(B)(i). As
with any good statutory construction
case, we need to begin with the words of
the statute. And in order to understand
the conundrum faced by the Court, one
must read both subsections (i) and (ii) of
§ 17a-112(j)(3)(B). The statute deals with
parental rights and provides that those
rights may be terminated if:
the child (i) has been found by the Superior Court or the Probate Court to
have been neglected or uncared for in
a prior proceeding, or (ii) is found to be
neglected or uncared for and has been
in the custody of the commissioner for
at least fifteen months and the parent
of such child has been provided specific steps to take to facilitate the return
of the child to the parent pursuant to
30 Connecticut Lawyer
[General Statutes §] 46b-129 and has
failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable
time, considering the age and needs of
the child, such parent could assume a
responsible position in the life of the
child….
Here’s the quiz: given this language, does
the phrase “and the parent of such child
has been provided specific steps to take
to facilitate the return of the child to the
parent…” modify both subsection (i) and
subsection (ii) or does it modify only subsection (ii)? Put another way, can a court
terminate parental rights under subsection (i) if the parent in question has never
been given specific steps to take to facilitate the return of their child?
What if, instead of one big glob, the statute looked like this:
December 2013/January 2014
the child
(i) has been found by the Superior
Court or the Probate Court to have been
neglected or uncared for in a prior proceeding, or
(ii) is found to be neglected or uncared for and has been in the custody
of the commissioner for at least fifteen
months and the parent of such child has
been provided specific steps to take to
facilitate the return of the child to the
parent pursuant to [General Statutes §]
46b-129 and has failed to achieve such
degree of personal rehabilitation as
would encourage the belief that within
a reasonable time, considering the age
and needs of the child, such parent
could assume a responsible position in
the life of the child….
Does that make your job as a judge any
easier? Just that simple spacing change
makes it at least look like the “specific
steps” language applies to both (i) and
(ii), wouldn’t you agree?
But what if, prior to 1998, the statute provided that a trial court could terminate
parental rights when it found that:
the parent of a child who has been
found by the Superior Court to have
been neglected or uncared for in a prior
proceeding has failed to achieve such
degree of personal rehabilitation as
would encourage the belief that within
a reasonable time, considering the age
and needs of the child, such parent
could assume a responsible position in
the life of the child….
Uh oh, now it looks like we might be headed in the opposite direction. Indeed, how
could the “specific steps” language apply
to subsection (i) if that subsection previously existed, standing alone, without any
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such modifier?
Perhaps some facts would help. At the
time his parental rights were terminated,
the father in this case was 31 years old
and had spent most of his adult life and
virtually all of his two children’s lives in
prison. The children were nine and ten
years old at the time of the proceedings.
The father was incarcerated for drug offenses in 2000, released in 2001, and then
incarcerated again for drug offenses in
2002. Three weeks later, the oldest child
was born. The father was released to a
half-way house later in 2002, escaped,
and was recaptured several months later.
He was convicted for the escape in 2003,
incarcerated anew, and the second child
was born a month later. Except for a fiveweek period in 2004—during which he
was arrested for the federal crime of possession of a stolen firearm—the father
remained incarcerated. At the time of the
proceedings being appealed, he was in
federal custody.
Meanwhile, following their births, the
two children lived with their mother. The
Department of Children and Families became involved in 2006, when the mother
tested positive for PCP. In November
2006, the children were found to be neglected, but remained with their mother
under DCF supervision. At that time, the
trial court ordered “specific steps” toward
rehabilitation, but only as to the mother.
In 2008, the children were committed to
the custody of DCF and were placed with
their maternal grandmother. Once again,
“specific steps” were communicated only
to the mother. Later in 2008, the children
were placed in foster care, because their
grandmother could no longer care for
them.
DCF petitioned the court to terminate the
parental rights of both the mother and
the father in 2010, alleging that the children previously had been found to be neglected and that both parents had failed
to rehabilitate. In regard to the father, the
trial court held that DCF had made reasonable efforts to reunify the father and
the children, that the father had failed to
rehabilitate, and that termination of his
parental rights was in the best interest
of the children. In terms of specific steps,
the trial court concluded that requirement only applied to proceedings under
subsection (ii) and, moreover, that issuing
such rehabilitative steps to the father in
the context of this case would have been
futile because neither the court nor DCF
had the authority to dictate to the Federal
Bureau of Prisons any activities in which
the father was required to participate.
So what say you on the appeal? Did the trial
court get the statutory interpretation correct? The Supreme Court was unanimous
in answering that question “no,” because,
in its view, the specific steps requirement
applied to both subsections (i) and (ii). So
how did they get there? First, by mentioning that “a well placed comma” might have
been helpful. Second, the Court concluded
that some portion of the language following subsection (ii) was intended to modify
subsection (i), because otherwise, a prior
finding of neglect, by itself, could result in
a court terminating parental rights. That,
the Court decided, would be an absurd result. Next, the Court noted that if you were
to eliminate the “specific steps” language
from subsection (i), the Court would be
left with the rehabilitation language applying to the child and not to the parent.
That surely could not have been what the
legislature had in mind. “Incoherent” was
the actual word used by the Court to described that scenario.
On the other hand, by applying the specific
steps language to both subsections, grammatical coherence logic could be found in
the statute. In regard to the argument that
subsection (i) said nothing about specific steps prior to the 1998 revision, the
Court noted that there is a specific steps
requirement in General Statutes § 46b129, the statute that governs proceedings
in which a child is found to be neglected
and, thereby, committed to the custody of
DCF. According to the Court, then, it was
apparent that when it added subsection
(ii), “the legislature also chose to make
explicit what already had been implicit in
clause (i), namely, that a prior issuance of
specific steps was required for that clause
as well.” This would, by our admittedly
uninformed count, now leave subsection
(i) with two layers of specific steps—one
implicit and one explicit—but the Court
does not address this point.
What the Court did address, however,
and where Justice Zarella took issue with
the majority, is the harmless error analysis. On this question, the majority agreed
with the trial court—specific steps would
have been fruitless in this case, given the
father’s past history. More specifically, the
majority noted that had the father been
given specific steps to follow, they would
have been directed at: 1) helping him live
a legal and responsible lifestyle; 2) establishing a bond between himself and
his children; and 3) ensuring that he had
the skills and resources necessary to parent troubled children. In the view of the
majority, however, as long as the father
remained incarcerated, “specific steps directing him to make the foregoing efforts
would have been pointless.” In addition to
the “limited extent that the [father] could
begin to rehabilitate while incarcerated,
he was well aware of what he needed to
do despite the absence of specific steps.”
On the issue of harmless error, Justice Zarella dissented. In his view, harmless error analysis is inappropriate based on the
entire statutory scheme at issue. To him,
it is “clear” from § 17a-112(j)(3)(B) “that
the parent’s willingness and ability [to
rehabilitate] should not be considered.”
Following this theme, Justice Zarella also
concluded that a failure to rehabilitate
matter “should require consideration of
the parent’s behavior and efforts after he
or she has been provided notice of what
specific steps could lead to reunification.”
(Emphasis original.) Communication of
those steps to parents is, according to Justice Zarella, “an important safeguard to
ensure that parents do not lose their children without a meaningful opportunity
for rehabilitation and reunification.” In
Justice Zarella’s view, it would be fundamentally unfair to skip this step “and later
conclude that notice and guidance were
unnecessary because the parent should
have known that engaging in certain conduct would result in termination of his or
her parental rights.”
At its core, the harmless error issue boiled
down to how close the majority was willing to go to the line over which all the justices agreed the Court could not cross—
namely, terminating the father’s parental
rights solely due to his incarceration. In
the end, it was a close dance for the majority and a case of gone too far for Justice
Zarella. CL
Connecticut Lawyer
December 2013/January 2014
31
COURT DECISIONS
Highlights from Recent
Superior Court Decisions
Contracts
American Express Centurion Bank v. Eldridge, 54 CLR 488 (Wilson, Robin L., J.),
holds that while proof of the existence of
a credit card contract between the parties
is an essential element of a credit card collection action brought under the account
stated theory of recovery, that element
may be satisfied by proof that the defendant made payments on at least one statement.
Connecticut law no longer recognizes the
“completed and accepted” rule for contractor liability, i.e., the rule formerly followed in Connecticut and still followed in
other jurisdictions that an independent
contractor has no continuing liability to
third parties after work performed pursuant to a construction contract has been inspected and accepted by the project sponsor and the contractor no longer has any
control over the work area. Rather, under
Connecticut law a contractor continues
to be liable to third parties for negligence
in the performance of a contractual duty
owed to a contractor if the danger was
foreseeable. Brinnier v. Black & Boucher,
LLC, 54 CLR 493 (Dooley, Kari A., J.).
32
A subcontractor sued by its principal contractor for indemnification of a tort claim
may bring a third-party complaint against
an insurer for coverage of the underlying
tort claim, even though the language of
the Impleader Statute, Conn. Gen. Stat. §
52-102a, could be construed as limiting
the prosecution of third-party complaints
to parties that owe a direct obligation to
the original plaintiff, and even though
the insurer could be prejudiced by being
forced to litigate coverage issues in the
underlying action for which the coverage
is being sought. Turano v. Pellaton, 54 CLR
549 (Adams, Taggart D., J.T.R.).
Connecticut Lawyer
Corporations and Other Business
Organizations
Taneja v. Familymeds Group, Inc., 54 CLR
582 (Robaina, Antonio C., J.), holds that
the business judgment rule may not be
relied upon to justify a corporation’s rejection of a shareholder demand for the
prosecution of breach of fiduciary duty
claims against certain directors, where
the decision to reject the claim is based on
an investigation conducted by the same
firm that (a) had represented the corporation concerning the events upon which
the shareholder claims are based, (b) had
represented both the corporation and the
accused directors throughout during the
pre-suit proceedings, and (c) had held a
preliminary meeting with the accused directors to review the investigation report
prior to its submission to the full board.
A limited liability company is not an indispensable party to an action for dissolution
brought by a member, even if the action
also seeks the liquidation and distribution
of the LLC’s assets. Cuozzo v. Phillips, 54
CLR 332 (Gold, David P., J.).
Klein v. Norwalk Hospital, 54 CLR 384
(Brazzel-Massaro, Barbara, J.), holds that
in a personal injury action in which the
plaintiff is the sole member of a professional corporation, damages for lost earnings may include a reduction in the value
of the corporation allegedly resulting
from the plaintiff’s diminished ability to
provide services, even though the corporation is not a party to the action and even
though there will be some risk of overlap
between loss of personal wages and loss
of corporate value.
Insurance Law
Allied Sprinkler & Mechanical Systems, Inc.
v. Montpelier US Insurance Co., 54 CLR
December 2013/January 2014
The following highlights are
provided by the publishers of
The Connecticut Law Reporter.
For copies of these opinions or
information about the reporting service, call (203)458-8000.
All citations are to the weekly
edition of the Connecticut Law
Reporter.
392 (Roche, Vincent E., J.), holds that an
insurance agent may be sued for failing to
provide a regular customer with the same
coverage as provided in prior years, for
breach of an implied contract to achieve
a specific result as well as for professional
malpractice.
The Supreme Court 2001 holding in Collins v. Penn Insurance that an uninsured
motorist insurer sued for coverage for
injuries incurred in a multiple-vehicle accident may bring a third-party apportionment complaint against the operator of
one of the other vehicles (even though the
plaintiff’s claim is for breach of contract
whereas the Apportionment Statute applies only to “a civil action based on negligence,” § 52-572o), does not apply where
there is only a single defendant named in
the action. McCabe v. Zurich American Insurance Co., 54 CLR 373 (Martin, Robert
A., J.).
Under an insurance policy with a per
person limit defined as “the most we will
pay for all damages resulting from bodily
injury to any one insured,” damages for a
bystander emotional distress claim must
be added to the physically injured claimant’s damages for purposes of determining whether the “per person” limit has
been met. Rivera v. State Farm Fire & Casualty Co., 54 CLR 595 (Markle, Denise D., J.).
The opinion denies coverage of a mother’s
claim for bystander emotional distress incurred as a result of viewing injuries to
a child in a motor bike accident, because
payments to the child had already exhausted the per person coverage limit.
The statute authorizing the exclusion
from uninsured/underinsured motorist
insurance policies of coverage of claims
by “a named insured…when occupying…
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an uninsured or underinsured motor
vehicle…owned by the named insured,
applies only when the claimant is an occupant of the tortfeasor’s vehicle; the statute is inapplicable to situations in which
a named insured is occupying another
owned vehicle not covered by the same
policy, which collides with an at-fault underinsured vehicle, even if the occupied,
non-culpable vehicle also happens to be
underinsured. Sabatucci v. Metropolitan
Property & Casualty Insurance Co., 54 CLR
531 (Blue, Jon C., J.).
Davis v. ACE American Insurance Co., 54
CLR 561 (Dooley, Kari A., J.), holds that if
UIM coverage is claimed against multiple
policies, one of which is primary, any reduction of limits for paid workers’ compensation benefits should be allocated
first to the primary insurer, without any
allocation among the other insurers.
State and Local Government Law
Burgess v. State, 54 CLR 496 (Shortall, Joseph M., J.T.R.), holds that the state may
rely on the Recreational Land Use Immunity Statute in defense of claims brought
pursuant to a waiver of sovereign immunity by the general assembly or the
claims commissioner, even though there
is contrary dicta in the 1986 Supreme
Court opinion in Conway v. Wilton that established the rule that the Statute is not
available to municipalities.
Whether a municipal parking lot is sufficiently connected to an adjacent road to
be considered part of the traveled portion
of the road, and therefore whether an injury from a fall in the parking lot is subject
to the Defective Highway Act, presents an
issue of fact which cannot be resolved on
a motion for summary judgment. Giarratona v. Wolcott, 54 CLR 491 (Dooley, Kari
A., J.).
The rule that a municipality need not establish irreparable harm to be entitled
to an injunction is limited to permanent
injunctions; irreparable harm must be established for temporary injunctions. Masi
v. Phoenix Management Group One, LLC, 54
CLR 604 (Corradino, Thomas J., J.T.R.).
Torts
Roe v. Boy Scouts of America Corp., 54 CLR
563 (Schuman, Carl J., J.), holds that neither the Boy Scouts of America’s national
organization nor any of its local councils
has sufficient control over the day-to-day
operation of individual troops to impose
vicarious liability for the sexual assault of
a Boy Scout by an adult troop leader.
There is no independent cause of action
for a medical malpractice defendant’s intentional alteration of a plaintiff’s medical record. Pirreca v. Koltchine, 54 CLR
307 (Lager, Linda K., J.). Such conduct is
admissible to show consciousness of liability, but cannot be recovered under any
specialized tort theory.
A contractor under a turnkey contract for
the construction of an electrical power
generating plant is not a “product seller”
with respect to mechanical equipment
purchased and installed by the contractor
pursuant to the contract. Therefore the
project owner may not recover against
the contractor under the Products Liability Act for loss caused by a defective component. Lake Road Trust, Ltd. v. ABB, Inc.,
54 CLR 323 (Bright, William H., J.).
Girolametti v. Danbury, 54 CLR 467 (Agati,
Salvatore C., J.), holds that the resolution of
a claim pursuant to an arbitration agreement constitutes a “release, settlement or
similar agreement” within the meaning of
the provision of the Apportionment Statute that precludes apportionment against
nonparties with whom the plaintiff has
reached a settlement, Conn. Gen. Stat. §
52-572h(n) (“A release, settlement or similar agreement entered into by a claimant
and a person discharges that person from
all liability for contribution”).
Allegations that the plaintiff’s pet was
killed as a result of the defendant veterinarian’s negligent misuse of a prescriptive
medication are sufficient to state a claim
for a return of the treatment charges under a theory of unjust enrichment. Medura v. Town & Country Veterinary Associates,
Inc., 54 CLR 483 (Woods, Glenn A., J.).
Trade Regulation
The general rule that a CUTPA claim
against a medical provider or an attorney
may be based only on conduct arising out
of the entrepreneurial aspects of a professional’s business, and not on conduct that
would constitute ordinary professional
negligence, extends to accountants. Baker
v. Brodeur, 54 CLR 576 (Holzberg, Robert
L., J.).
Allegations that a construction contractor
engaged in a general business practice of
underpaying subcontractors to unfairly
boost its own profits are sufficient to state
a CUTPA violation. Erection & Welding
Contractors, LLC v. Rizzo Corp., 54 CLR 300
(Pickard, John W., J.).
Weiss v. Volvo Penta of the Americas, Inc.,
54 CLR 599 (Martin, Robert A., J.), holds
that allegations that a manufacturer of a
recreational water craft induced a buyer
into purchasing a third-party extended
protection plan by misleading the plaintiff into believing that the manufacturer
was a party to the contract, through offering the plan at the time the craft was purchased and allowing the use of its name
on plan documentation, and thereafter refusing to honor claims under the plan on
the grounds that the manufacturer was
not a party to the plan, are sufficient to
state claims against the manufacturer for
breach of contract and violation of CUTPA.
A landlord’s act of cashing a check for one
month’s rent accidentally written for the
amount of $81,095 instead of $81.95, and
then refusing to return the excess payment, entitles the tenant to treble damages pursuant to the Civil Theft Statute
and punitive damages and attorneys fees
pursuant to CUTPA. 3N International, Inc.
v. V.J.C. Warehouse & Distribution, Inc., 54
CLR 403 (Berdon, Robert I., J.T.R.).
Unemployment Compensation
In an appeal from a decision of the Employment Security Board of Review, the
court’s authority to grant a request for the
preparation of a transcript of the hearing at the Board’s expense, P.B. § 22-1(c),
is not limited to requests in connection
with the filing of a motion to correct findings pursuant to P.B. § 22-4. However, in
the absence of a pending motion to correct, a request for a transcript should be
granted only if the requestor can demonstrate a need for the information, as for
example, where an unsuccessful applicant
for benefits claims a denial of due process
by the manner in which the hearing was
conducted. Snyder v. Administrator, Unemployment Compensation Act, 54 CLR 315
(Wiese, Peter E., J.). CL
Connecticut Lawyer
December 2013/January 2014 33
YOUNG LAWYERS
The Case for
More Lawyers
“Oh God! To hear the insect on the leaf pronouncing on the too much life
among his hungry brothers in the dust!’’
– The Ghost of Christmas Present, Charles Dickens’, A Christmas Carol
Chris Nelson is the chair of the
Connecticut Bar Association Young
Lawyers Section for the 2013-2014 Bar
year. He is a sole practitioner in New
Haven at the Law Office of Chris Nelson
LLC, where he represents individuals and
small businesses in both litigation and
transactional matters.
Given the time of year, there are a few
themes that tend to dance around one’s
brain—abundance, need, and self-reflection being perhaps the most common (and also sugar plums—whatever
they are). The holidays often provide us
with pronounced cause to give thought
to abundance; especially as it contrasts
with need. Given these themes I thought it
appropriate to devote this column to the
concept of abundance as it applies to our
profession.
Too many lawyers. You hear it a lot. In fact,
given the popularity of the sentiment, the
odds are you probably even find yourself
repeating the phrase. Probably believing
it. The problem is, it is exactly wrong. We
don’t have too many lawyers. Rather, we
don’t have enough. Skeptical? Well, read
on.
34
It would seem to me there are two (nonexclusive) groups of people who seem to
Connecticut Lawyer
think that we have too many lawyers. The
first group is people who believe that we
have too many lawsuits in this country.
Of course, implicit in this conclusion is
the mindset that frivolity is the basis for
increased litigation. While there is no denying that frivolous lawsuits exist, I give
short shrift to the thinking that more lawyers will lead an increase in frivolous lawsuits as such a hypothesis relies on an incomplete analysis at best. That is, it pays
no credence to the proposition that there
will be more valid lawsuits. If eliminating the scourge of frivolous lawsuits has
somehow taken over as our top priority
then we might as well pack up our bags
now because we have really gotten away
from our principals. We should be (and
are) a group more bent on providing that
people have access to justice, even at the
expense of the occasional frivolous suit.
This is especially important because as
our ever-modern society becomes more
and more complex (needlessly or otherwise), the rules that govern us axiomatically become more complicated. I submit
to you that short of a 180 degree turnaround on the entirety of human history,
the need for competent understanding of
December 2013/January 2014
society’s laws will increase, not decrease;
society will need attorneys more than
ever—so I’m not too worried that we’ll be
scraping the bottom of the barrel for legal
work.
Interestingly, the second group of people
who tend to think that we have too many
lawyers are lawyers themselves. On one
hand it would seem only reasonable to
assume that lawyers know their profession and are fit to draw such conclusions;
however, this assumption neglects much.
First, it neglects bias—not a malicious
bias born of greed, but rather a subjective
bias based on seeing the world through a
certain lens that the average person is less
likely to have. Since one of the hallmarks
of our profession is the ability to objectively look at things for clients who are often too close to an issue to see it clearly, it
may be worth contemplating that we take
our own advice and accept that we may
be too close to be valid arbiters on the
strengths and weaknesses of the case that
we have too many lawyers; to wit:
The lawyers who advocate that there are
too many of us tend to rest their theory on
two pieces of “evidence.” The first thing
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they point to is the lack of jobs in the marketplace. On the surface this would invoke
principals of supply and demand for the
seemingly irrefutable proposition that
we have more attorneys than we need.
No one can argue that getting a job as an
attorney is very (very, very) difficult right
now. Having said that, I believe this analysis is flawed insofar as it is based on twodimensional thinking which ignores the
complexity of the market we are talking
about. For example, let’s look at what the
“demand” really is. The “too many attorneys” camp believes that demand is the
number of jobs in the marketplace, presuming that it is a function of the amount
of work in the marketplace. If that’s ultimately what we want to gauge, then
wouldn’t the more appropriate measure
of demand for legal work be the number of
people who want to hire attorneys? I don’t
know about you, but last time I looked
there were literally tens of thousands of
people in our state who are representing themselves every year—and probably
not because they want to. More on this in
a moment, but just to terminate the notion that the lack of jobs is a sign that we
have too many attorneys, I submit to you
that there are a myriad of other reasons
for the dearth of open attorney positions.
For example, (and as I’ve noted in other
columns which I’m sure you’ve read and
committed to memory) for profitability
reasons we are transitioning away from
our historical model of having firms hire
people out of law school and train them.
As more firms adopt the model of needing
quick (if not instant) profitability from associates, there will be less jobs out of law
school but that doesn’t mean there is less
work in the marketplace. Additionally,
there are a mass of lawyers in practice
right now who are part of a baby boomer
generation that is living longer and better
(well, healthier) than ever before. Many
of these attorneys are able to practice at
a high level much later in life than their
forebears, and as a consequence, we have
a large population of lawyers who are not
retiring1—again, causing firms to hire
less. As such I believe the lack of traditional jobs is more a function of how firms
operate rather than a true measure of the
market for legal services.
Getting back to the demand issue, I’m
going to go out on a limb and say that if
you support the concept that we have too
many lawyers, you are probably saying to
yourself: “Chris, even if we don’t measure
demand by the number of jobs, we should
measure it on the number of people who
are able to pay for our services.” First, let
me say that five articles in, I’m glad we’re
finally on a first name basis, and second, I
disagree. Obviously, there is a disconnect
between when people want something
and when they have an ability to pay for
it, but I submit to you that for purposes
of establishing “demand,” want is the key.
If we change the proposition and take
the ability to pay into account (e.g., the
demand for legal services at the sample
rate of $250/hour) then we are having
a different conversation—one that does
not support a conclusion that we have too
many lawyers based on the actual need
for lawyers in society but rather a proposition that presupposes we have too many
lawyers to support the fees that we feel
are appropriate. This is notable because it
brings us to the second reason why many
attorneys feel our population needs to be
thinned—because it drives down the cost
of our services. We rely on the evidence
that it’s more difficult to earn a living as a
sign that we have too much competition—
and that this increase in competition
comes from other lawyers. I will note that
this fee-based argument is an interesting
one insofar as it seems to be incongruent
with the previous argument about supply and demand. That is, if we presume,
in arguendo, that the lack of attorney jobs
is actually begotten by a lack of demand
for attorneys in the marketplace then why
should we have any reason to believe that
our fees should be more valuable? If we are
going to rely on the marketplace and the
rules of supply and demand to determine
the number of attorneys society needs,
we cannot turn a blind eye to the value
that same market prescribes for an attorney’s services. Of course, the elephant in
the room here is that to some degree it’s
not a matter of wanting to keep our fees
at a certain level, but rather it’s a need to
keep our fees at a price point where we
can maintain our practices. As a business
owner with bills to pay I can appreciate
that rationale. However, that is a wholly
separate problem—perhaps one that we
can work on if we relinquish the idea that
the problem is the number of attorneys in
practice. In short, we are practicing bubble economics, and if we need to continue
to drive down the number of attorneys
practicing in order to take advantage of a
shrinking portion of the population that
can afford our services, where does that
lead us? Probably nowhere good.
Finally, I’d be remiss if I didn’t mention
that it’s plain old crazy for us to want
there to be less lawyers in the world.
Has a trade organization ever voluntarily
culled its own numbers? Is this a healthy
long-term strategy? The strength of the
wolf is the pack.2 I suggest to you that the
fewer lawyers there are, the less likely it
becomes for people to obtain our services
and correspondingly, the more of a reason
we will be giving people to look for an alternative.
In A Christmas Carol, the story’s wellknown protagonist starts off as a man who
is overly disgruntled by the existence of a
surplus population, something he see as a
leach on the prosperity of his hard work.
While hardly a direct analogy, the time of
year makes it impossible to pass up the allegory. Given the way that things worked
out in the end for Scrooge, perhaps next
time you fall victim to someone’s refrain
that there are too many lawyers you will
remember the words of the Ghost of
Christmas Present: “[I]f man you be in
heart, not adamant, forbear that wicked
cant until you have discovered what the
surplus is, and where it is.”
Perhaps, keeping the holiday spirit in
mind, you’ll even come around to my way
of thinking that that there aren’t too many
lawyers, there are too few. The real surplus is the many people who need lawyers
but can’t afford them. That’s the surplus
we need to worry about, and if we can figure out a solution, the future will be prosperous for all of us. CL
Notes
1. Here’s to hoping this this trend continues—the amortization schedule of my
student loans pretty much demands it.
2. Admittedly, I saw that Kipling quote on a
commercial for a video game, so don’t get
the idea that I’m this big literary buff.
Connecticut Lawyer
December 2013/January 2014
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Idle to Idyllic
(Continued from page 21)
bury, CT is Adding Polish to the Brass City.
http://www.epa.gov/region4/brownfieldstoolkit/casestudies/csnatlclargecomm.
pdf, p. 6.
14.Robert A. Simons, Michael Leccese. Brass
Mills Mall. URBAN LAND, June, 1998.
15.John Springer and Carolyn Moreau . For
Lake Compounce, It’s All a Matter of Timing. The Hartford Courant. April 16, 1996.
http://articles.courant.com/1996-04-16/
news/9604170873_1_kennywood-amusement-town-council
16.FFICE OF FISCAL ANALYSIS, CONN. GEN.
ASSEMBLY: Meadows Music Theatre
and the Lake Compounce Theme Park:
Comparison of Annual Tax Revenue
and Debt Service Payments on Tax
Incremental Financing Bonds. 2010OFA0319 http://www.cga.ct.gov/2010/
ofarpt/2010OFA-0319.htm
17.Ibid.
18.Richard Briffault, The Most Popular Tool:
Tax Increment Financing and the Political
Economy of Local Government. 77 U. CHI. L.
REV. 65 (2010). p. 65.
19.Gregg Hennigan. New Downtown Iowa City
Project May Get $2.5 Million from City. The
Gazette. March 13, 2012. http://tinyurl.
com/acwyu6s
20.Terry Pristin. Uncertain Fate for Urban
Projects in California. The New York
Times. April 10, 2012. http://tinyurl.com/
au98xge
21.Univ. of Ill. Inst. of Gov. and Public Affairs.
Dye, Richard F. and Merriman, David F. TIF
Districts Hinder Growth, 13 POLICY FORUM 4 (2000). http://www.riversideinfo.
org/wp-content/uploads/tif-districtshinder-growth.pdf
22.Id.
23.Jay Reich. Tax Increment Financing.
Pacifica Law Group. (2010). http://www.
pacificalawgroup.com/wp-content/uploads/Tax-Increment-Financing-by-Jay-AReich-10-5-11.pdf , 7.
24.Randal O’Toole. Crony Capitalism: The Case
Against Tax Increment Financing. CATO
36 Connecticut Lawyer
INSTITUTE: POL’Y ANALYSIS: 676. (2011),
13.
25.O’Toole. Id, 7.
26.Goodison, Donna. Tug of War Over TJX.
McClatchy - Tribune Business News. Mar 12,
2012. http://tinyurl.com/a5ymzvx.
27.John Pirro. Turning Brown to Green. News
Times. July 17, 2012. http://tinyurl.com/
b4elwgl
28.CONN. GEN. STAT. ANN. § 8-192 (West
2012).
29.CONN. GEN. STAT. ANN. § 32-285.
30.CONN. GEN. STAT. ANN. § 32-285(c).
31.CONN. GEN. STAT. ANN. § 32-285(a)(2).
32.CONN. GEN. STAT. ANN. § 32-285(f)(2).
33.CONN. GEN. STAT. ANN. §§ 8-134, 8-134a
(West 2012).
34.CONN. GEN. STAT. ANN. §32-23zz (West
2012).
35.Penelope Lemov. Tough Times for TIFs?
Governing. Sep. 16, 2010. http://bit.ly/
d0pP6l.
36.Chad Halcom. Troy’s DDA May Default on
$14 Million in Bond Debt. Crain’s Detroit
Business. Sep. 7, 2012. http://www.
crainsdetroit.com/article/20120907/
FREE/120909934/troys-dda-may-defaulton-14-million-in-bond-debt#
37.Barry J. Trilling and Sharon R. Seigel,
Brownfield Development in Connecticut:
Overcoming the Legal and Financial Obstacles. 26 Q.L.R. 920 (2008). p. 965.
38.Id.
39.James Fuller. You People Agreed. Chicago
Daily Herald. Dec. 13, 2012. Page 3.
40.What is a Pay-as-You-Go Note? EHLERS
INC. (April 27, 2011). http://www.ehlersinc.com/blog/2011/04/
41.Connecticut Innovations, http://bit.
ly/129NyvA (April 27, 2013).
42.Phone Interview, Cynthia Petruzello,
Connecticut Brownfields Redevelopment
Authority. (March 14, 2013).
43.Ibid.
44.CONN. GEN. STAT. ANN. § 32-23d (gg)
(West 2012)
45.Connecticut Brownfields Inventory.
Department of Energy and Environmental
December 2013/January 2014
Protection. http://tinyurl.com/bjsmgad.
46.CONN. GEN. STAT. ANN. § 8–192(a).
47.CONN. GEN. STAT. ANN. § 8-192 (West).
48.CONN. GEN. STAT. ANN. § 8-192(b) (West).
49.CONN. GEN. STAT. ANN.§§ 7–369, 7–374.
50.Sadlowski v. Town of Manchester, 206
Conn. 579, 585, 538 A.2d 1052, 1055
(1988), 585.
51.Id.
52.2005 CONN. PUB. ACT NO. 05-289. http://
tinyurl.com/agqfuvn
53.Bridgeport Landing, http://bridgeportlanding.net/main.htm (April 17, 2013).
54.Stephanie O’Connell. Bass Pro Shop Coming
to Bridgeport. NBC Connecticut. July 9,
2012. http://tinyurl.com/a5bymeo
55.Greg Bordonaro. Rainmaker: Stafstrom
Plays Key Role in State Deals. Hartford
Business Journal. August 27, 2012. http://
tinyurl.com/ap73t67
56.Tom Condon. Future Arrives at Stamford’s
Harbor Point. Hartford Courant. December
15, 2011. http://tinyurl.com/a2a4zya
57.June 7, 2011. City Of Stamford, Connecticut. General Obligation Refunding Bonds,
Issue of 2011. City of Stamford. http://
tinyurl.com/bfrhele
58.Office of Fiscal Analysis. http://www.
cga.ct.gov/2007/FN/2007HB-07384R000715-FN.htm.
59.OLR. Research Report. Tax Increment
Financing. PA 92-236. Mar. 20, 2000.
http://1.usa.gov/11OZcP8.
60.2007 Conn. Spec. Acts. No. 07-6. http://1.
usa.gov/Y7sFTD.
61.June 7, 2011. City Of Stamford, Conn.
General Obligation Refunding Bonds. City
Of Stamford. http://tinyurl.com/bfrhele
62.Elizabeth Kim. Developer of Stamford’s
Harbor Point to Issue $145 Million in
Bonds. Stamford Advocate. Dec. 21, 2009.
http://www.stamfordadvocate.com/local/
article/Developer-of-Stamford-s-HarborPoint-to-issue-295742.php
63.Ibid.
64.General Obligation Refunding Bonds. City
Of Stamford.” June 7, 2011. City Of Stamford, Conn. http://tinyurl.com/bfrhele
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