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BULLETINwww.eriebar.org

President’s Letter

PRSRT STDU.S. Postage

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Permit No. 416

B A R A S S O C I A T I O N O F E R I E C O U N T Y Vol. 52 | No. 6 | February 2013

Pictured above at the Judicial Welcoming Ceremonyheld on Friday, January 11 in Erie County Hall stand-ing, left to right, are Minority Bar Association of WNYPresident Stephanie Calhoun, BAEC Vice PresidentMichael J. Ryan, Hon. Michael V. Coccoma, DeputyChief Administrative Judge for the Courts Outside ofNew York City, Hon. Kevin M. Carter, Hon. Paula L.Feroleto, Hon. Amy C. Martoche, Hon. Eugene F.Pigott, Jr., BAEC President Kathleen M. Sweet andWomen’s Bar Association of Western New YorkPresident Bridget M. O’Connell.

Administrative Judge of the Eighth Judicial District,Hon. Paula L. Feroleto, and New York State Court ofAppeals Judge Eguene F. Pigott, Jr. presided over theceremony, which is held annually at the beginning ofthe New Year to congratulate and welcome JudgesKevin M. Carter and Amy C. Martoche. This year’s cer-emony was also co-sponsored by the Minority andWomen’s Bar Associations. The candidates were welcomed by the Association’s past presidents, alongwith presidents of the MBA and WBASNY.

Judicial Welcoming Ceremony Rings in the New Year

From Columbine toSandy Hook: HaveWe Had Enough?By Kathleen M. Sweet

Where were you when you heard about theshooting at Columbine High School (13 dead,21 injured)?

Or Virginia Tech (32 dead, 23 injured)?

Or when Congresswoman Gabrielle Giffordswas targeted at the shopping mall in Arizona(six dead, 14 injured)?

Or when the most violent Batman movie todate premiered at the movie theater in Aurora,Colorado (12 dead, 58 injured)?

I have no idea where I was and I amashamed to admit that the dates, names of thevictims and the killers, with rare exception,have blurred and receded from my consciousmind.

On December 7th, however, I was at BarAssociation headquarters receiving a tutorialon how to use the BAEC Twitter account. Itwas disorienting at first, like so many of myother experiences with technology.

But far more disorienting were Tweets wereceived in real time about the worst schoolshooting ever at an elementary school that hadjust happened. The early reports popping ontothe computer screen described the casualtiesas mostly children between the ages of fiveand 15 years old. That was sickening enough.Of course, it turned out that the innocentswere very little kids and their brave teachersand principal.

If you’re confused about the implications of thePatient Protection and Affordable Care Act (PPACA),you are certainly not alone. In response to questionsraised by the Act, President Kathleen M. Sweet sug-gested that the Erie Institute of Law create a specialprogram to help educate the practicing bar about howit affects attorneys and their clients.

Sweet called on Lisa McDougall, of counsel toPhillips Lytle LLP and a former chair of the BAEC’sHealth Care Law Committee, to develop the seminar,which has been scheduled for Friday, March 8 from9:00 a.m. to 1:00 p.m. at the Hyatt Regency, Buffalo.The program provides 4.0 CLE credits and the cost is$80 for BAEC members and $110 for non-members.

“The Act is so far reaching,” McDougall says. “Thislaw impacts just about every segment of the populationin some way.”

McDougall will moderate a panel of experts whose“diverse knowledge base will enable them to addressthe wide-ranging implications of the Act.”

The seminar will cover everything from an overviewand analysis of the law and the Supreme Court deci-sion to what the Act means for individuals and employ-ers.

“Everyone’s clients will be affected,” McDougallnotes, explaining that the program will answer suchessential questions as what needs to be done to ensure

compliance and the time frames involved.

“For example, what does this mean for those whooffer employee benefits? Do they need to offer some-thing different?” McDougall continues. “What does itmean for individuals in need of health insurance? Howare these exchanges going to work? What about peoplewithout computer access? And how will it affect BabyBoomers and their parents? What effect will it have onlong-term care?”

Entitled “The Patient Protection and Affordable CareAct: What You Need to Know about the Law and theSupreme Court’s Decision,” the program will featurethe following faculty and topics:

• U.S. Supreme Court Upholds the Law: AReview and Analysis of National Federation ofIndependent Business v. Sebelius, Secretary of Healthand Human Services

William P. Keefer, Team Leader, Health CarePractice Group, Phillips Lytle LLP

• What PPACA Means For Employers

Sarah K. Ranni, Employee Benefits PracticeGroup, Phillips Lytle LLP

• What PPACA Means for Individuals withHealth Insurance Needs

Leah S. Ranke, The Law Office of Leah S. Ranke

Affordable Care Act, Real Estate Law Among Erie Institute of Law’s Newest Offerings

continued on page 4

continued on page 2

“Surely as cometh the Winter, I know

There are Spring violets under the snow.”

~ R. H. Newell

DON’T MISS THE 2012

PRESIDENT’S BALL!

See full details on page 19.

Photo by Amy Bayerl

www.eriebar.org | February 2013

EDITORIAL BOARDEditor ............................................Bonnie D. O’BrianLaw Editor ....................................Jeffrey A. SpencerTax Notes Editor ..........................Gary D. BorekArt Editor ......................................Giles P. Manias

Hon. David J. Mahoney(1960-2008)

Photography ................................Susan L. KohlbacherGlenn Edward Murray

Editorial Assistant ........................Brittany O. Luongo

OFFICERS AND DIRECTORS | 2012-2013President ......................................Kathleen M. SweetVice President ..............................Michael J. RyanTreasurer........................................Donna L. BurdenDeputy Treasurer ..........................Bruce W. HooverExecutive Director........................Katherine Strong Bifaro

Vol. 52 | No. 6 | February 2013

BAR ASSOCIATION OF ERIE COUNTY

Organized 1887

438 Main Street, Sixth Floor | Buffalo, New York 14202

(716)852-8687 | fax (716)852-7641 | www.eriebar.org

Bulletin correspondence: [email protected]

BOARD OF DIRECTORSHoward B. Frank, Brenda M. Freedman, Hope R. Jay, Laura A. Monte,Regina A. Del Vecchio, Frank LoTempio III, Daniel T. Lukasik, Brian M.Melber, Edward J. Markarian, Marianne Mariano, Daniel J. Marren andWilliam F. Savino.

LIFE MEMBERS

Mark A. Adrian, Carol J. Alaimo, Brian D. Baird, Patrick J. Bannister, LynnA. Clarke, William J. Cunningham, Eric P. Doherty, Victor J. Gagliardi,Sharon Stern Gerstman, Jean E. Gittler, Donald J. Holzman, StanleyKwieciak III, Michael P. McClain, J. Eldon Owens, Lauren D. Rachlin, JeffreyA. Spencer, James M. Wadsworth.

Would you like to see your name here? See page 4 to find out how to become a contributing member.

CONTRIBUTING MEMBERS

Joan Casilio Adams, Peter S. Aiello, Donald A. Alessi, Grace Marie Ange,Richard J. Attea, Hon. Rosalie M. Stoll Bailey, Hon. Tracey A. Bannister,Stephen E. Barnes, Edwin T. Bean, Jr., Thomas R. Beecher, Jr., Ronald P.Bennett, Leonard Berkowitz, David W. Beyer, Richard S. Binko, Richard N.Blewett, Harold J. Brand, Jr., Peter J. Brevorka, Phillip Brothman, Patrick J.Brown, T. Alan Brown, Joel Brownstein, David Buch, Donna L. Burden,James P. Burgio, Michael C. Burwick.

John F. Canale, John J. Carney, Alan S. Carrel, Thomas R. Cassano, StephenE. Cavanaugh, Ferdinand J. Ciccarelli, Emilio Colaiacovo, John F. Collins,William B. Collins, Anthony J. Colucci, Jr., Robert B. Conklin, Robert N.Convissar, Edward C. Cosgrove, Peter L. Costa, Donyelle E. Crapsi, Paul V.Crapsi, Jr., Douglas S. Cream, Hon. John T. Curtin, Steven P. Curvin, RogerT. Davison, Regina A. Del Vecchio, John M. Dempsey, Richard F.DiGiacomo, Anne C. DiMatteo, Dean M. Drew, Hon. Timothy J. Drury,Marvin T. Dubin, Robert E. Dwyer, Donald B. Eppers, Leo J. Fallon, Victor N.Farley, Mark G. Farrell, Gabriel J. Ferber, Michael E. Ferdman, Robert P.Fine, Peter J. Fiorella, Jr., Brian P. Fitzgerald, Richard E. Forrestel, LawrenceC. Franco, Brenda M. Freedman, Jeffrey M. Freedman, MaryannSaccomando Freedman, Robert Friedman, John J. Fromen.

Thomas J. Gaffney, William H. Gardner, Lynn D. Gates, Eugene M.Gaughan, Stuart A. Gellman, Robert M. Goldstein, Wayne R. Gradl, Hon.Samuel L. Green, John C. Grennell, Richard F. Griffin, John J. Gruber, MarkW. Hamberger, Thomas J. Hanifin, James P. Harrington, Mary LouiseHayden, Herbert J. Heimerl, Jr., William R. Hites, Susan S. Hogan, Edwin P.Hunter, Melvyn L. Hurwitz, Norman E. Joslin, James B. Kane, Jr., Judith D.Katzenelson, Christopher C. Kerr, James J. Kirisits, William J. Kita, ChristianG. Koelbl III, Dan D. Kohane, Karl W. Kristoff, Thomas E. Krug.

Stephen R. Lamantia, John P. Lane, Richard J. Lehner, John N. Lipsitz,Richard Lipsitz, Arthur A. Lorenzo, Frank LoTempio, III, Leo M. Lynett, Jr.

James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Giles P.Manias, John Markarian, Mary Dee Martoche, Hon. Salvatore R.Martoche, Norman J. Mattar, Hon. Jeremiah J. McCarthy, Maureen A.McCready, Thomas I. McElvein, Jr., Donald G. McGrath, Diane J.McMahon, Brian M. Melber, Hon. John A. Michalek, Raymond T. Miles III,Joseph D. Mintz, Albert J. Mogavero, Peter J. Murrett, Jr., Joseph M. Nasca,Paul T. Nesper, Paula M. Eade Newcomb, Anthony M. Nosek, Hon. HenryJos. Nowak, James J. O’Brien, Robert L. O’Connell, Hon. John F. O’Donnell,Timothy M. O’Mara, Francis J. Offermann, Jr.

Carl P. Paladino, Frank R. Papa, Thomas C. Pares, James A. Partacz, RobertE. Pearman, Hon. Erin M. Peradotto, Robert H. Perk, Jeffrey A. Perla,Michael F. Perley, Nicholas A. Pierino, Joel M. Poch, Theodore J. Pyrak,James P. Renda, Mary (Molly) K. Roach, Jay N. Rosenthal, Hon. Mario J.Rossetti, Victor A. Rossetti, Richard P. Rosso, Arthur J. Rumizen, Arthur A.Russ, Jr., Thomas Santa Lucia, Scott M. Schwartz, Edward J. Schwendler,Jr., Richard B. Scott, Donald P. Sheldon, Richard J. Sherwood, Louis H.Siegel, Myron M. Siegel, Robert G. Sillars, Richard Charles Slisz, Robert B.Sommerstein, Gregory Stamm, Robert S. Stephenson, Milton J. Strebel,David L. Sweet, Kathleen M. Sweet.

Dominic J. Terranova, Phillip A. Thielman, Gordon D. Tresch, Thomas V. Troy,Frederick D. Turner, Dimitri J. Tzetzo, Peter A. Vinolus, Dale M. Volker,Matthew X. Wagner, Jr., John B. Walsh, Neil Weinberg, Peter C. Wiltse,Wayne D. Wisbaum, Richard D. Yellen.

Letters to the editor and short articles of general interest to our readers are alwayswelcome. All materials submitted for publication in the Bulletin are subject to editing for reasons of style, space and content.

Send all submissions as Word documents to [email protected] (preferred) or by mail to: Bulletin Editor, 438 Main Street, Sixth Floor, Buffalo, NY 14202.

Call Brittany Luongo at Bar Headquarters for more information, 852-8687.

D E A D L I N E

“Before Facebook, I used to want to read people’s minds…not anymore!”

• • • April 2013 Bulletin D E A D L I N E • • •

The next deadline for ALL Bull etin contributors and advertisers is

Friday, March 1, 2013.

We now know more, but not nearly enough, aboutanother sick young man, apparently marginalized fromhis peers and others by mental illness. He had access toguns and enough ammunition to mow people down atsuch a rate that it is truly hard to get my mind aroundit. I keep thinking about the children who were not thefirst ones shot. What were they thinking as it unfolded?It is just too much.

Or is it? Will anything change this time?

In thinking about this letter, I considered, as you maybe wondering right now, what could a bar associationpossibly do to make a difference on this type of thing?Is it even remotely our place or our mission? And whoam I to join the political chorus railing against the NRA,whose response was essentially that we need more gunsfor the good guys since stopping the bad guys is toohard. There’s evil among us so we should all just bearmed. Especially teachers or at least somebody else atschool. Every single school.

Really?

I am (perhaps obviously) no authority on the SecondAmendment or on the thorny issues both fiscal andpolitical that undermine funding for mental healthscreening and services for teens and young adults.

But shouldn’t we all stop for a second and thinkabout these things, even if it’s hard and we may notwant to? Do we still so stigmatize mental illness that itis subordinated to other things as the root of theseevents? Isn’t that where the conversation should start?Are we as a society so reluctant to shine a light on ourfailures when it comes to screening and treating youngpeople for mental illness that we just shake our heads,chalk these massacres up to evil doers and go backabout our day?

Kids are universally screened at school for so manythings. Why not for their mental/psychological well-being? Are we afraid of what we might learn or just

grossly unprepared to respond if a flag is raised? Can’twe protect individual privacy and try to identify thosewho need help?

And of course there’s another aspect to the issue: lotsof kids, and especially boys, play video games andwatch movies where human beings are graphicallyexploded in nearly every frame, and where that’s theobject. I know only enough about violent video gamesand movies to suspect that they are profoundlyunhealthy and desensitizing to even healthy and “nor-mal” young hearts and minds. As the mother of abright 12-year-old boy, I am very aware of the drive toplay these games and the peer pressure to excel atthem. And what busy parent hasn’t been tempted togive in?

What the games and movies have in common withthe killers in the most horrible mass murders areassault rifles and/or high capacity ammunition clips ordrums.

Are these the kind of weapons that a conscientiousobjector to government overreach genuinely needs onhand? Spare me.

Too many politicians are stifling their instinctive out-rage over this latest carnage in deference to the per-ceived political clout of the National Rifle Association.Does anyone sincerely believe that the gun show loop-hole preserves the integrity of the Second Amendment?

I honestly just don’t get it.

In the month since Newtown, there were over 400other gun deaths in our country. Not first graders attheir school, and most not due to similarly derangedyoung minds. Nope, they were just your standard, gar-den variety, everyday murders by gun. Somehow wehave let ourselves accommodate such routine casualtiesas the mostly unpreventable derivative result of streetviolence and gangs that are part of American life in this

President’s Letter continued from page 1

continued on page 4

February 2013 | www.eriebar.org

bench and bar in the news

How to place an announcement:

If you are a BAEC member in good standingand you’ve moved, been promoted, hired anassociate, taken on a partner, or received anaward, we’d like to hear from you. Talks,speeches (unless they are of national stature),CLE presentations and political announce-ments are not accepted. In addition, we willnot print notices of honors determined byother publications (e.g., Super Lawyers, BestLawyers, etc.). Notices must be submitted inwriting and limited to 100 words. They areprinted at no cost to members and are subjectto editing. E-mail your notice and high resolu-tion photo (300 dpi) to [email protected]

Katherine J. Bestine, a partnerin Cohen & Lombardo P.C. hasreceived the Divorce Pro Bono Awardpresented by the Volunteer LawyersProject (VLP) at the organization’srecent annual awards reception (seearticle on page 9). The award is pre-sented to an attorney who “consis-tently takes multiple VLP client cases

involving matrimonial law and always provides qualityrepresentation.” Bestine received her J.D. from theUniversity of Dayton School of Law. She focuses herpractice on matrimonial and family law.

Kristen B. Degnan has joinedBrown & Kelly LLP as an associate inthe firm’s litigation department.Degnan has experience in manyareas of defense litigation and also inhandling family law matters, crimi-nal matters and workers’ compensa-tion cases. She is a member of theBAEC’s Negligence Committee,

Western New York Trial Lawyers Association, and theCharles S. Desmond Inns of Court. Degnan is a gradu-ate of Allegany College and SUNY Albany Law School.

Bestine

Patricia Stroman Walker hasjoined HoganWillig as an associateattorney. A graduate of VillanovaUniversity School of Law, Walker isadmitted to practice in the State ofNew York and Commonwealth ofPennsylvania. She earned a B.A. inPolitical Science and PublicAdministration from the State

University of New York at Cortland. Walker has exten-sive litigation experience and will work inHoganWillig’s personal injury and malpractice depart-ments.

Joseph S. Brown has been elect-ed to partnership at Hodgson Russ. Amember of the firm’s business litiga-tion practice group, he focuses hispractice on employment-related liti-gation, defending employers in awide variety of lawsuits. Brown hassuccessfully argued several cases inthe New York appellate courts and

the U.S. Court of Appeals for the Second Circuit. Herecently completed a term as president of the MinorityBar Association of Western New York.

Charles D. J. Case has beenelected a partner at Rupp, Baase,Pfalzgraf, Cunningham & CoppolaLLC. Case was formerly an associateat the firm. A graduate of St.Bonaventure University and SUNYBuffalo Law School, Case focuses hispractice on commercial litigation.

Leah Costanzo has joinedChelus, Herdzik, Speyer & Monte,P.C. as an associate, where she willfocus on litigation and general prac-tice matters. In addition to workingat the firm’s downtown office,Costanzo will also practice from abranch office in Cheektowaga. Agraduate of SUNY Buffalo, she

received her J.D. from its School of Law.

It’s great to belong to something this good.

Degnan

Lawyer Referral &Information ServiceMore than 5,000 new clients

are referred to members of the

LRIS each year.

If you’re not already a member,

call 852-3100 today to join.

The Lawyer Referral & Information

Service…one more way

that the Bar Association

is good for your practice.

Walker

Brown

Case

Costanzo

continued on page 20

Now is the time to get ready for the Month BeforeApril Madness. The holidays are over so this is the timeto bear down, crank up ESPN, ESPN2, ESPNV, MSG,NBC, CBS, ABC, the BIG TEN NETWORK and otherchannels that carry college basketball, and start look-ing for those mid-major teams (i.e. Butler VCU, GeorgeMason, Canisius) that are good enough to do somedamage in the tournament.

Be the member of your firm who blows away yourbrethren by going 32 for 32 in the round of 64! Theodds of doing that are better than winning thePowerball.

The pizza, wings, snacks and drinks party at Bar Headquarters will take place on Thursday,March 21, starting at noon and ending at 5:00 p.m.Please join us for all or any part of this time. Enjoy theupsets, buzzer beaters, and all the other HOOPLA thatgoes on during this fun-filled afternoon with your col-leagues.

Purchasing a bracket costs only $10 and all proceedsgo to one of the following worthy groups:

• Erie County Bar Foundation

• Lawyers for Learning

• Volunteer Lawyer Project, Inc.

• Legal Services for the Elderly

Save the date and watch next month’s Bulletin forfurther details.

Month Before April Madness is Near!by Kevin W. Spitler

The need may be based on

medical problems, job loss,

emotional difficulties, family crises

or many other situations.

No person or problem is

categorically excluded.

If you need assistance – or know

a friend or colleague

who does – please call Kelly Bainbridge

at 628-4892.

All services are individualized

and completely confidential.


Digest: A lawyer may discount lawyer’s legal feeunder such provisions under Rule 1.5 and specifically1.5(d).

Rules: 1.5 inclusive, specifically 1.5(b) and1.5(d)(2)

Question: May a retainer statement contain a pro-vision granting a discounted hourly rate for retainermoney paid in advance?

Opinion: This inquiry seeks an opinion as to thepropriety of a written retainer which contains a provi-sion discounting the hourly rate of an attorney from hisor her regular hourly rate as against any retainermoney paid in advance. Rule 1.5 of the New York Rulesof Professional Conduct states that a lawyer shall com-municate, among other things, the basis or rate of thefee and expenses for which the client will be responsi-ble. Since the retainer agreement specifically indicateswhen and how the discount will be applied as to theclient’s legal fee, such provision does not violate Rule1.5(d)(2).

We also concur with New York State Bar AssociationOpinion #563, which states:

“. .. that it is not per se improper to offer a discountfrom customary fees so long as customary fees are rea-sonably ascertainable. At the very least, for a fee to becustomary, it must be the fee charged by the lawyer formost…engagements involving similar work. The com-mittee hesitates to establish a specific percentage ofcases that the lawyer must handle at the full fee for itto be deemed customary and rather leaves it to themembers of the bar to apply a good faith interpretationto the term ‘customary.’ It is something substantiallymore than a majority of similar cases handled.”

However, this opinion does not pass or make com-ment as to such a financial arrangement as relates to allrules of the court (which is beyond the scope of thiscommittee) and specifically, fees prohibited under Rule1.5(d)(5) involving fees in a domestic relations matter.

• What Effect Will PPACA Have on Long-TermCare?

Anthony Szczygiel, Professor, SUNY Buffalo LawSchool

Annual Real Estate Conference Slated forMarch 23

The BAEC’s 23rd Annual Real Estate Conference willbe held on Saturday, March 23 at theBuffalo/Niagara Marriott on Millersport Highway.Registration for this popular annual event begins at 8:00 a.m., with the program starting promptly at 8:30. Participants will receive CLE credits forattending. Check our Web site for further details(www.eriebar.org).

Michael J. Lombardo of Duke, Holzman,Photiadis & Gresens LLP, who chairs the BAEC’s RealProperty Committee, will open the program with a dis-cussion of the Committtee’s current activities. A discus-sion of residential real estate contract changes will fol-low, featuring Nancy Saia of the Law Office of NancySaia, W. Clark Trow of Damon Morey, and MichaelJ. Lombardo.

Patricia L. Fulwiler, Legal Deputy to ChristopherL. Jacobs, Erie County Clerk, will update attendees onelectronic recording and other changes. Hon. PatrickM. Carney of Buffalo City Court will then provide ajudicial perspective on building codes and enforcement.

Next on the agenda is a discussion of ethics withMargaret C. Callanan, Principal Counsel for theEighth District’s Attorney Grievance Committee, fol-lowed by “Title Traps, Issues and Cures” presented byWesley M. Brown of the Law Office of Wesley M.Brown.

Lastly, there will be a demonstration of electronicsignatures conducted by Gregg Driscoll of InstanetSolutions. The program will conclude with a question-and-answer session and adjourn at 2:30 p.m.

To register for these programs, visit www.eriebar.organd click on the Continuing Legal Education tab orcall the Erie Institute of Law at 852-8687. [B]

century. But even these violent gun deaths are gettingmore visibility after Newtown.

Will we go blithely about our lives again and let thedetails, horrors and causes of the tragedy on December7, 2012, go unexamined?

Let’s not. Let’s keep talking about it rather thanavoid it.

Argue with me or with each other if you must. Peoplemostly still respect lawyers to pursue and persist whentopics are complex, multifactorial and difficult, andwhere others may shy away or resort to sound bites.

If nothing else, think about where you were whenyou heard about Sandy Hook’s first graders. Andremember how you felt. [B]

Affordable Care Act, Real Estate Law Among Erie Institute Offeringscontinued from page 1

President’s Letter continued from page 2

Become a Contributing

Member!The BAEC bylaws confer “contributing member”

status on any member who resides or maintains anoffice in Erie County and elects to pay an additional$50 in annual dues to help support Association pro-grams. Contributing members have the same rightsand privileges as regular members and “such addi-tional rights and privileges as the board of directorsshall bestow,” including special recognition in the Bulletin, annual dinner program and other pub-lications.

The BAEC’s Professional Ethics Committeeis available to respond to your ethics ques-tions and issues facing the legal community.This Committee, chaired by Howard B.Cohen, cannot, however, consider complaintsabout unethical practices, or any grievancematters. They are available to entertaininquiries about whether or not prospectiveactivities of counsel fall within acceptedguidelines. Following is an opinion of theCommittee issued in response to an inquiryfrom the BAEC’s Real Property Committee.For further information, please contactSusan Kohlbacher at 852-8687 [email protected].

Opinion No. 12-04

Topic: Discounted attorney hourly rate.

Bar Association of Erie County Professional Ethics Opinion

February 2013 | www.eriebar.orgPAGE 5

the back-up copies in a safe, off-site location. Manyfaithfully practice back-up procedures, but have nevertested them to see if data can be successfully restored.Make back-up testing part of your regularly scheduledsafety precaution drills.

The need for off-site backup has led many lawyers toadopt “cloud-based” practice management systems.Such systems provide a Web-based interface for func-tions such as calendaring; contacts and conflict ofinterest checking; time keeping, billing, trust account-ing and financial reporting; and also provide storagefor documents, allowing the user to practice almostpaperlessly and from anywhere an Internet connectionis available. These systems have been determined to beethical in many jurisdictions and lawyers should con-sider them as an easy and affordable way to back uptheir critical data in a safe, off-site way. If you do usesuch a system, however, you should not let it lull youinto the sense that you’re adequately prepared for adisaster. You must have, and continue to work on, aplan for all of the physical items in your office and anyother information that is not entered into the systemand backed up to the cloud.

After you’ve reviewed your back-up procedures, takea moment to consider how you handle your mostimportant client papers. If you are trying a case involv-ing physical evidence or “smoking gun” memos, makesure that you have taken the steps necessary to safe-

By Laura A. Calloway, Director, ServicePrograms and Practice ManagementAssistance Program, Alabama State Bar

Editor’s Note: President KathleenM. Sweet recently appointed a taskforce to develop a model disaster pre-paredness plan for our legal commu-

nity. William F. Savino has been named chair of thegroup. The following is Part II of an article that thetask force requested from the Alabama State Bar. Part Iappeared in the January issue. It is reprinted here withpermission.

IV. Safeguard your Records and EquipmentOnce you’re sure all personnel and clients are safe,

your thoughts will immediately turn to your files andother client and practice data. If you take these stepsnow, you’ll be in much better shape if disaster strikes.

First, make a complete office inventory including:

• All computer hardware and peripherals, includingserial number, purchase date, purchase price, andvendor. Update your inventory immediately asequipment is replaced.

• All software, including version number, serialnumber, purchase date, purchase price, and ven-dor. It’s also helpful to keep a list of what isinstalled on each computer, along with a notationof all upgrades and patches.

• All usernames and passwords.

• All library contents, including both books andactive subscriptions.

• All office furnishings, including purchase date andprice.

• All office equipment, including serial number,purchase date, price, and vendor.

• All other equipment, such as coffee makers, TVs,DVD players, tape recorders, still cameras, videocameras, Dictaphones or other dictation andtranscription equipment.

• All office supplies you regularly stock.

Consider making a set of photos or a video of youroffice once a year and storing it off-site with your writ-ten inventory. Pictures will help establish the age andcondition of the things you have lost, facilitating thesettlement of your insurance claims. They will alsoserve to jog your memory about things you may not usevery often and, therefore, may not remember thatyou’ve lost.

Every lawyer and firm should establish a regular,automatic back-up procedure with off-site storage forall digital data, and follow it religiously. You should bebacking up computer files and/or making off-site stor-age copies of:

• Calendar or docket

• Contact list

• Client/matter list, including conflict of interestsystem

• Word processing and spreadsheet files

• E-mail files

• Billable time and other accounting information

• Trust account records and records of all physicalproperty held for clients or third parties

• Telephone programming (speed dial numbers,etc.)

• Firm organizational or operating agreements andall firm minutes

• Leases (building and equipment) and other con-tracts

• Insurance records

• Personnel records

• Firm inventory; and

• File inventory, including off-site storage inventory

Review your current back-up procedures carefully.Many firms don’t follow a regular back-up schedule,don’t back up everything they should, or don’t store

Preparing For the Unexpected: Part IIAnticipate and Plan for Law Office Disasters

continued on page 6


V. Get Back to Work!Assuming the worst has happened and the office you

left yesterday afternoon is nothing but a smolderinghole in the ground this morning, what do you do next?If you have previously developed a carefully thought-out disaster contingency plan, you need only executethe business resumption portion of that plan to be backin business. Here are some basic steps for a businessresumption plan:

• Notify office staff of the nature of the disaster and,if their homes are not also involved, let themknow where and when to call for further instruc-tions. This can be done by direct calls to them, bya phone tree, or by having them call a specifiednumber at specified times to receive live orrecorded information and updates.

• Contact your insurance agent, and begin assess-ment of damage as soon as authorities allow it. Ifyour complete office inventory is available, thisshould greatly facilitate settling your insuranceclaim.

• Contact your stand-by attorney to make sure heor she is aware of your situation and is in a posi-

tion to help you. It is a good idea to have morethan one standby, or a standby who doesn’t live inthe same town you do. Often, when a natural dis-aster destroys one law office, it destroys many inthe same location.

• Execute your plan for temporary office space.

• Execute your plan for temporary or new equip-ment. This could be a short term lease arrange-ment, purchase of new computers “off the shelf,”or an agreement to share excess equipment withanother firm in your area. Use your supply inven-tory list to purchase enough supplies to get backin business at your new location.

• Notify staff of where and when to return to work.

• Load all backed-up software and data. This iswhere complete daily backups of both programsand data prove that they are worth the extra timeand trouble they take. Cloud-based practicemanagement systems are also great for businesscontinuity purposes.

• Immediately review your calendar and docket toobtain any necessary continuances and make surestatutes of limitations are not running.

• Contact your clients and let them know what hashappened. When informing them of the crisis, youshould be truthful about the condition of youroffice but convey that the firm has a disaster planin place and is taking all necessary steps to pro-tect their interests.

• Review your client/matter list and obtain copiesof all pleadings from opposing counsel or thecourt to re-establish your files if you have notalready implemented a “paperless” office or yourback-up system has failed.

• Contact your banker and ask him or her to beready to disburse on your previously arrangeddisaster line of credit. You will need to be able tomeet your payroll and other accounts payableeven if your cash flow is interrupted because ofthe disaster. Also, you may need to lease or pur-chase equipment before your insurance claimshave been settled.

Statistics indicate that the majority of small busi-nesses which experience a major disaster are no longerin operation five years later. If you hope for the best butplan for the worst, you’ll be able to take a disaster instride and continue to provide the highest level of serv-ice for your clients.

©2012 Laura A. Calloway and Alabama State Bar

guard them against ALL contingencies. Consider a fire-proof file cabinet, an office safe, or establishing proce-dures for storing in a bank vault or safe deposit box all“irreplaceable” client papers and physical evidence.Work from copies in your office until shortly beforetrial.

You should also periodically review your existinginsurance coverage to make sure it is tailored to thetype or types of disasters you are most likely to face.You should consider whether you have, or need, the fol-lowing types of coverage:

• Damage to or loss of real and personal property

• Flood insurance (usually excluded from standardpolicies)

• Loss of revenue (business interruption)

• Disability

• Long-term care

• General liability

• Valuable papers coverage; and/or

• Accounts receivable coverage.

Preparing For the Unexpected: Part IIAnticipate and Plan for Law Office Disasters continued from page 5

It’s a Brave New E-world…

…and your favorite Bar Association is nowavailable on your favorite social networkingsites!

In addition to our Web site, www.eriebar.org,news, information and updates can now befound on Facebook, Twitter and LinkedIn.

As part of our ongoing effort to communicatetimely information to our members, you willalso receive e-newsletters from us about upcoming CLE programs, career opportunitiesand news items that come to our attentionbetween issues of the Bulletin. If for any reason,you have not been receiving these materials or choose not to receive them, please contact Brittany Luongo at 852-8687 ext. 121or [email protected].

As always, your comments, questions andsuggestions are invited.


actions with at least 100 potential members where theamount in controversy exceeds $5 million and there iscomplete diversity of citizenship between all defen-dants and at least one class member. In Haag v.Hyundai Motor America (12-CV-6521L, 12/21/12),plaintiff sought to prevent removal under CAFA bystating in her complaint that any claim for damages orfees in excess of $5 million was waived. The courtdenied plaintiff’s motion to remand following removal,explaining that such a waiver is binding - and effectiveto prevent removal - only if it is included in a stipula-tion or affidavit filed with the complaint.

SCHEDULING ORDERS

In Shemendera v. First Niagara Bank N.A. (12-CV-178(S)(M), 12/27/12), plaintiff moved on the deadlinefor completing fact discovery for a 60-day extension of

time to take three depositions she had noticed sixmonths earlier. The magistrate judge denied themotion, finding that answering papers were unneces-sary and holding that the court’s discretion to grantsuch relief is limited by Rule 16(b)(4), Fed. R. Civ. P.,which requires “good cause” for an extension of ascheduling order deadline. Because plaintiff had donelittle or nothing to schedule the depositions until thedeadline arrived, and waited until that deadline tomake her application, there was no good cause for therequested extension.

SETTLEMENT

In Cornelius v. Independent Health Association, Inc.(11-CV-697(A)(M), 11/26/12), defendant moved toenforce a settlement agreement. During mediation, theparties made an oral agreement to settle the lawsuitand agreed that defendant’s attorney would draft awritten agreement to memorialize the settlement.Pursuant to defendant’s draft settlement agreement,inter alia, (1) plaintiff had to execute the agreementprior to a certain date, (2) the agreement would notbecome effective and enforceable until eight days afterthe agreement’s execution, and (3) plaintiff couldrevoke the written settlement agreement within sevendays of its execution.

ATTORNEYS’ FEES

In Taylor v. Harbour Pointe Homeowners Ass’n (09-CV-257-JTC, 12/6/12), the court awarded defendantsfees under the Fair Housing Act’s fee-shifting provisionfollowing a Second Circuit decision finding that theplaintiff’s claims had been frivolous. The court award-ed attorneys’ fees based on a negotiated rate of $180per hour, finding the rate in line with awards in otherfee-shifting cases in this district, but rejected defen-dants’ request for paralegal fees of $125 per hour, find-ing $75 per hour a reasonable rate for paralegal time inthe absence of extraordinary circumstances.

CLASS ACTIONS/REMOVAL

The Class Action Fairness Act (“CAFA”), 28 U.S.C.§1332(d), grants federal courts jurisdiction over class

western district case notes

By Paul K. Stecker and Kevin M. Hogan

“You and the Law”Educates Public onLegal Issues

We appreciate the time that the followingmembers of our legal community have taken toeducate the public about legal matters by vol-unteering their time to appear on You and theLaw. The program airs every Friday at 5:45p.m. during NPR’s “All Things Considered.”

Kevin S. MahoneyCollaborative Law andMediation

Harvey F. SiegelDWI

Lindy KornSexual Harassment of YoungFirst Time Workers

Diane R. TiveronAvoiding Identity Theft

You and the Law is underwritten by the ErieCounty Bar Foundation and the LawyerReferral and Information Service of the BAEC. If you would like to appear as a guest on the program, please contact AmyBayerl at 852-8687 or by e-mail at [email protected].

continued on page 8


BENEFACTOR

(Up to $7500)

Cellino & Barnes

Hodgson Russ LLP

Damon Morey LLP

Phillips Lytle LLP

PARTNER

(Up to $3500)

Lipsitz Green Scime Cambria LLP

Brown Chiari LLP

Jaeckle, Fleischmann & Mugel, LLP

DIAMOND

(Up to $1250 or $125 per attorney)

Gross, Shuman, Brizdle & Gilfillan,

P.C.

Marylou K. Roshia and James M.

Mucklewee

Walsh, Roberts & Grace

Nixon Peabody LLP

Webster Szanyi, LLP

The Judges of the USDC for the

Western District of New York

GOLDEN

(Up to $125 per attorney)

Hon. John J. Aman*

Hon. Carl L. Bucki*

Hon. Paula Feroleto*

Hon. Joseph A. Fiorella*

Hon. J. Mark Gruber

Hon. Thomas S. Kolbert

Hon. John P. Lane

Hon. Frederic J. Marrano

Hon. Henry J. Nowak*

Hon. Sharon S. Townsend

Hon. Norman Walawender

Steven M. Ald*

Timothy J. Andruschat*

Jill K. Bond*

Lauren E. Breen*

William J. Brennan*

Burden, Gulisano & Hickey, LLC*

Kathleen Carmody*

Alan S. Carrel*

Joe R. Cavan*

Anna Marie Cellino*

Michael G. Cooper

Law Offices of Douglas Coppola

George L. Cownie*

Ann Demopoulos*

Melinda and Thomas Disare

Robert M. Elardo*

John P. Feroleto*

Gary R. Gaffney*

William H. Gardner*

Howard F. Gondree

Garry M. Graber

James W. Gresens

Richard F. Griffin*

Joseph M. Guerra III*

Robert B. Hallborg, Jr.

Robert P. Heary*

Matthew B. Herdzik, Jr.*

William R. Hites

Adolph C. Iannaccone*

The magistrate judge denied the motion to enforcethe agreement in a report and recommendation adopt-ed by the district judge, finding that the terms of theunsigned written agreement reflected that the oralagreement would not be binding absent execution ofthe written agreement. In addition, the parties hadagreed at the conclusion of the mediation that plaintiffwould consult with an attorney before executing thewritten agreement. Finally, because the written agree-ment allowed plaintiff to revoke the agreement withinseven days of its execution, the magistrate judge foundthat no purpose would be served by requiring plaintiffto execute the agreement.

2012 VLP LAW FIRM FUNDRAISING CAMPAIGN

The ECBA Volunteer Lawyers Project (VLP) Law Firm Fundraising Campaign provides law firms,lawyers and judges with the opportunity to make tax-deductible financial contributions. These dona-tions help VLP to operate its numerous programs, through which hundreds of local attorneys provide probono legal services to low-income people who would otherwise go without legal assistance. Contact VLPtoday to have your name or the name of your firm added to this list.

Peter M. Jasen*

Kevin M. Kearney*

Kolken & Kolken

Ellen Yost Lafili

The Long Firm

Anthony D. Mancinelli*

James M. Morrissey

Philip H. McIntyre*

David Nelson

James O’Brien

Francis J. Offermann, Jr.*

Timothy O’Mara*

Philip A. Perna*

Personius Melber LLP

Arc J. Petricca

Jean C. Powers*

Reden & O’Donnell, LLP

Howard S. Rosenhoch*

Arthur A. Russ, Jr.

Melinda R. Saran*

Edward Schwendler, Jr.

Michael Anton Sciortino*

Harvey F. Siegel*

Robert B. Sommerstein*

Thomas Steffan

Robert S. Stephenson*

David L. Sweet*

Elizabeth M. Tommaney*

Brian R. Welsh*

Oliver Young

Zdarsky, Sawicki and Agostinelli

John Ziegler*

SILVER

($75 - $124 per attorney)

Hon. Amy C. Martoche and

Timothy W. Hoover

Hon. Joseph D. Mintz

Hon. Lisa Bloch Rodwin

Abbott, Tills & Knapp, LLC

The Ballow Law Firm

Howard E. Berger

Dennis J. Bischof

Charles Patrick Bridge

Burgio Kita & Curvin

Connors & Vilardo

Leibert Coppola

Ellen A. Dussourd

Noemi Fernandez

Peter J. Fiorella, Jr.

Bernard B. Freedman

Eric L. Glazer

Hagerty & Brady

Hamberger & Weiss

Harris Beach PLLC

Harter Secrest & Emery LLP

Hiscock & Barclay, LLP

Michael Husdon

Frank Ieraci

Doris B. Kelly

Frederick M. Lang

John J. Lavin, P.C.

Lipsitz & Ponterio LLC

William Mattar, P.C.

Joseph B. Mistrett

Polowitz & Schwach LLP

Roach, Brown, McCarthy & Gruber, P.C.

Law Office of Oscar Smukler

Arnold H. Soeder

Rev. Richard Stone

Diane R. Tiveron

Wilder and Linneball, LLP

Therese Rahill Wincott

Wayne D. Wisbaum

SUPPORTERS

($50 - $74 per attorney)

Hon. John Curran

Hon. Andrew P. Fleming

Hon. Michael F. Griffith

Hon. Donna M. Siwek

Aaron, Dautch, Sternberg &

Lawson LLP

Brown & Tarantino

Creighton, Pearce, Johnsen &

Giroux

William H. Daetsch

Andrew Hilton

Kavinoky Cook LLP

LoTempio & Brown, P.C.

McKenna, Brady & Levi

Mura & Storm PLLC

Edward Pace

Pfalzgraf, Beinhauer & Menzies

LLP

Law Offices of Nancy W. Saia

Paula Shareno

Snyder Law Office

Dennis J. Speller, PC

Stephen C. Turner

Gretchen L. Wylegala

CONTRIBUTORS

(Up to $50 per attorney)

Abbarno, McLaughlin &

Kedzielawa

Blinkoff & Blinkoff

Brown & Kelly LLP

Chiacchia & Fleming, LLP

Cohen & Lombardo, P.C.

Cole, Sorrentino, Hurley, Hewner

& Gambino, PC

Cornelius Collins

Dadd and Nelson, PC

Duke, Holzman, Photiadis &

Gresens

Freid & Klawon

Gibson, McAskill & Crosby

Richard H. Gordon

HoganWillig, PLLC

Hurwitz & Fine, P.C.

Lewis & Lewis PC

Lippes, Mathias, Wexler &

Friedman, LLP

Magavern, Magavern &

Grimm, LLP

Michelle Parker

Robshaw & Voelkl, P.C.

Eugene M. Setel

Susan Sharcot

Shaw & Shaw, PC

Cindy C. Szalda

Case Notes continued from page 7

DirectorsJohn J. AmanK. John BlandLaurie Styka BloomJames J. ContinoJ. Patrick LennonHon. Sharon M. LoValloDaniel T. LukasikMichael L. McCabeHon. Patricia A. MaxwellNelson E. Schule, Jr.Mary L. SliszVincent J. SorrentinoKevin W. SpitlerDonna Hoelscher Suchan

PresidentCornelia Farley

Vice PresidentJ. Michael Lennon II

SecretaryCraig R. Bucki

TreasurerDavid C. Mineo

FOR FURTHER INFORMATION,

contact Cornelia Farley at [email protected]

or write to: PO Box 35, Buffalo, New York 14201-0035

St. Thomas More Guild Inc.An Organization for Lawyers

in the Diocese of Buffalo, New York

*Indicates a donation above the minimum in that category.


2. A maintenance man arriving for work was lockedout of the building by co-workers who were bul-lying him and he was fired for being late to work.VLP represented him at an unemployment insur-ance benefits hearing and obtained benefits forhim. The employer appealed and VLP successful-ly represented him in the appeal.

3. VLP’s Immigration Project won a granting of asy-lum for a gay man from a country in EasternAfrica. He had been tortured by his own familyand authorities in his country with violent beat-ings, electrical shocks, mock asphyxiation, andburning - all in an attempt to make him give uphis “aberrant” behavior. He is now working,studying English, and receiving treatment forPTSD.

4. A pro bono attorney handled a divorce for a vic-tim of domestic violence who had fled her abuserwith literally just the clothes that she was wear-ing. She was working part time at a motel andwas surviving by eating leftover food at the motel.The volunteer attorney was able to obtain thedivorce, an order of protection, maintenance, and

a QDRO for the client.

5. A man with a traumatic braininjury received a settlement of$8,000 and gave the money to hispower of attorney for “safe keep-ing.” When he later asked thepower of attorney for some of themoney, he was told to “never men-tion that money again.” He cameto VLP and we found him a probono attorney who was able tohelp recover at least some of themoney.

We recently thanked some of ourbest volunteers and the law firms thathave provided the most financialsupport during the past year. TheVLP Pro Bono Awards and commem-orative plaques were presented at arecent awards reception. The recep-tion immediately preceded the FifthAnnual Champions for Justice Bashwhich VLP co-sponsors with LegalServices for the Elderly (LSED). TheChampions for Justice Bash hasbecome a much anticipated annualevent for the Buffalo legal commu-nity. It is an excellent example ofongoing collaboration between twoprograms and also serves as a major

fundraiser for both VLP and LSED. Approximately 330people attended the fun-filled event.

Pro Bono Award WinnersAttorney of the Morning (Eviction Defense)

Christopher R. LaFever In-House Volunteer

Meghan A. Corcoran (law student)Family Law

James C. DeMarco III Divorce

Katherine J. BestineGovernment Attorney

Joseph M. Guerra IIIBankruptcy

Matthew B. Herdzik, Jr.Unemployment BenefitsBrett D. Tokarczyk

Attorney EmeritusModesto A. Argenio

VLP “VIP” AwardJoshua E. Dubs

ImmigrationKenneth A. Cohen

Law Firm CommitmentJeffrey Freedman Attorneys

This service to the community was made possible bygenerous funding that we received from many sources,including Neighborhood Legal Services (subcontractsfrom two federal grants), the New York IOLA Fund, theNew York State Department of Health AIDS Institute,the Vera Institute of Justice (two federal funding sub-contracts), the Office of Court Administration TaskForce, the International Institute of Buffalo (two sub-contracts from two federal and one NYS grant), theIRS, the United Way of Buffalo and Erie County, andthe Evans-Devereux Memorial Fund.

Last year was also a record-setting year for dona-tions received from local law firms, attorneys andjudges. Over $97,000 was provided by 165 donorsthrough our 2012 Law Firm Fundraising Campaign,which was chaired by William Brennan of PhillipsLytle. In addition, approximately 1000 lawyers andjudges contributed over $35,000 through the BarAssociation of Erie County dues check-off. This localsupport provides a critical part of VLP’s budget andhelps to support the infrastructure of the program.More and more, legal services grants and contractsprovide partial support of staff members. They do notalways cover the whole person or the rent, clerical sup-port and other expenses related to running a qualityprogram. The local unrestricted funding helps us coverthe holes in the budget. The cash also helps us to meetpayroll and other expenses while we wait months to bereimbursed by government funders for work that wehave already completed.

The 2012 Law Firm Fundraising Campaign dona-tions were led by four VLP Benefactor Law Firms, eachof which contributed at least $7,500. They werePhillips Lytle; Hodgson Russ; Damon & Morey;and Cellino & Barnes. We also had three VLPPartner Law Firms, each of which donated at least$3,500. They were Lipsitz Green Scime Cambria;Jaeckle, Fleischmann & Mugel; and BrownChiari.

Thanks to everyone who helped make 2012 anothersuccessful year for VLP!

Remembering…During the latter half of 2012, we lost two beloved

members of the VLP community.

George Zimmermann was a long-time VLP boardmember and a long-time volunteer who won two VLPpro bono awards (10 years apart).

Chester Dann was an in-house volunteer attorneywho won three different pro bono awards over a three-year stretch.

Both men were humble about what they did for VLP,but each provided not only tremendous help for ourclients, but also served as mentors for our younger staffand volunteers.

Both have been and will continue to be missed. [B]

The Erie County Bar Association Volunteer LawyersProject (VLP) completed another great year. During2012, VLP represented 3,326 clients and providedinformation and referral service to about 2,500 more.

Over 350 local attorneys provided pro bono repre-sentation on 1,362 cases. The pro bono lawyers pro-vided over 5,280 hours on the 1,075 cases that the probono attorneys closed during 2012. A conservative esti-mate would show over $1,300,000 in donated timeprovided to assist the less fortunate members of ourcommunity.

The blending of the work by VLP’s dedicated staffand volunteers is what makes it possible for us to serveso many clients. These efforts made a real difference inpeople’s lives. Here are a few examples:

1. The City of Buffalo brought an in rem tax foreclo-sure action against a single mother of two whoowed only $465 on her user fee (garbage bill).VLP represented her and negotiated a repaymentagreement that kept the woman and her childrenin their home and prevented them from becominghomeless.

in the public serviceBy Robert M. Elardo, Managing Attorney/CEOVolunteer Lawyers Project, Inc.

VLP Had a Successful 2012

VLP’s Benefactor Law Firms: Pictured from left to right are William Brennan ofPhillips Lytle, LLP; Jack Murrett of Cellino & Barnes; BAEC President Kathleen M.Sweet; Daniel Oliverio of Hodgson Russ LLP; Marylou Roshia of Damon MoreyLLP; and Robert Elardo of VLP.

VLP’s Partner Law Firms: From left to right are Michael Scinta of Brown Chiari, LLP;BAEC President Kathleen M. Sweet; Howard Rosenhoch of Jaeckle Fleischmann &Mugel, LLP; and Robert Elardo from VLP. A representative from Lipsitz, Green,Scime & Cambria LLP is not pictured.


MATRIMONIAL MERRY-GO-ROUNDOur Fourth Department upheld Justice Donna

Siwek’s denial of the relocation motion of the primarycustodial parent, but required a “best interests” deter-mination if the primary custodial parent did in factrelocate. (Grant v. Grant, __AD3rd__, 12/28/12,#1168)

Continuing communication problems between jointcustodial parents were held to be an insufficient basisto change to sole custody. (In the Mtr. of Avola v.Horning, __AD3rd__, 4th Dept., 12/28/12, #1350)

After an analysis of the law and the relevant facts,the Fourth Department doubled the maintenanceaward and extended its duration. (Perry v. Perry,__AD3rd__, 12/28/12, #1411)

SUPPRESSION LESSONSIncident to a traffic stop, police may ask occupants of

a vehicle if they are in possession of a weapon so longas the police have a “founded suspicion” that there iscriminal activity afoot. (Peo. v. Garcia, __NY3rd__,12/18/12)

Trial court properly refused to suppress a discardedhandgun and controlled substance found on the defen-dant after a “911” call and flight by the defendant.(Peo. v. McKinley, __AD3rd__, 4th Dept., 12/28/12,#1371) See also Peo. v. Smith, (__AD3rd__, 4th Dept.,12/28/12, #1474).

AGENCY LIABILITYDefendant insurance agency’s motion for summary

judgment was denied by the Fourth Department, not-ing a factual issue as to whether or not the agency haddeveloped a “special relationship” with its client whichimplied additional obligations. (QP, Inc. v. the FlandersGroup, Inc., __AD3rd__, 12/28/12, #1166)

NON-PAYER GETS NAILEDThe Fourth Department has upheld the imposition of

a four-month jail sentence for failure to pay a childsupport obligation. The non-paying parent failed topresent satisfactory evidence that he had made reason-able efforts to obtain gainful employment. (In the Mtr.of Cattaraugus County Dept. of Social Services v. Gore,__AD3rd__,12/28/12, #1348) See also In the Mtr. ofBushnell v. Bushnell,(4th Dept., 12/28/12, #1351); Inthe Mtr. of Storelli v. Storelli,( __AD3rd__, 4th dept.,12/28/12, #1457); and In the Mtr. of Kasprowicz v.Osgood, (__AD3rd__, 4th Dept., 12/28/12, #1408).

LANDLORD ELATION AT DOG BITE DISMISSAL

A dog bite suit was dismissed against the landlord ofthe premises where the incident occurred. The dog was

owned by the tenant. The court noted that there wasan insufficient showing that the landlord was aware ofor should have been aware of the dog’s alleged viciouspropensities. (Faraci v. Urban, __AD3rd__, 4th Dept.,12/28/12, #1384)

SECTION 240 ROUND-UPFactual issues precluded partial summary judgment

when plaintiff was allegedly struck by a roof trusswhich he was attempting to secure while standing on aladder. (Bruce v. Actus Lend Lease, __AD3rd__, 4thDept., 12/28/12, #930)

The Fourth Department has upheld Justice TraceyBannister’s grant of partial summary judgment to acarpenter who fell while working at an elevated work-site. (Luna v. Zoological Society of Buffalo, Inc.,__AD3rd__, 12/28/12, #1357)

SLIP TIPSThe Fourth Department has upheld the denial of

defendant’s summary judgment motion when plaintiffallegedly tripped and fell on a floor grate in defendant’shotel. (McFadden v. New Castle Hotel, LLC,__AD3rd__, 12/28/12, #1416) [B]

citationsBy Jeff Spencer

BAR BOUNCERS’ BURDEN

The bar bouncers claimedThey were not even thereTo inflict plaintiff’s pain

Or emotions of fear.

The court thoughtfully reviewedTheir dismissal plea

But found factual issuesThat were plain to see

To trial you must goTo plead your case

And try to win over your juryFace to face.

Mantione v. Crazy Jakes, Inc., et al.,__AD3rd__, 4thDept., 12/28/12, #1234 (affirming Justice RalphBoniello).

CONTRACT CHOICE VOICEAn international contract’s election to apply New

York law was held to obviate any choice of law analy-sis. (IRB-Brazil Ressequoros, SA v. Incpar Investments,SA, __NY3rd__, 12/18/12)

MIND OVER MATTER ORIT’S WHAT’S IN THE MIND THAT MATTERSA second degree murder conviction was reduced to

second degree manslaughter when the FourthDepartment found that there had been an insufficientshowing that the defendant acted with “depravedindifference.” (Peo. v. Santiago, __AD3rd__, 12/28/12,#1219) See also Peo. v. Martinez,(__NY3rd__,12/18/12) and Judge Eugene Pigott’s thoughtful dis-sent.

AIRLINE PASSENGERS’ SUIT WON’T FLYA suit by passengers stranded on a commercial air-

line for 11 hours has been dismissed on the basis of fed-eral preemption. (Biscone, etc. v. Jet Blue AirwaysCorp. et al., __AD3rd__2nd Dept., 12/26/12)

ANALYZING AMBIGUITYA good review of will construction principles in rela-

tion to the issue of admission of extrinsic evidence dueto ambiguity can be found in Mtr of the Estate ofPhillips, (__AD3rd__, 4th Dept., 12/28/12, #1166).

NO BOOT FOR FLOOD SUITSummary judgment was denied to the defendant

municipality when plaintiff’s property was damagedwhen a retention pond overflowed. (Mattioli v. Town ofGreece, __AD3rd__, 4th Dept., 12/28/12, #1383)

Become a fan of yourfavorite Bar Association on Facebook, follow us on Twitter and join our

group on LinkedIn.


Divorce ≠ DeportationBy Catharine M. Venzon and William Z. Reich

Matrimonial lawyers must knowfundamental immigration law whenrepresenting Foreign Nationals (FN)in divorce proceedings. Non-immi-grant visas allow FNs to enter theUnited States for a variety of rea-sons, such as business, education, orpleasure. A Foreign National’s familymay accompany the principal appli-cant depending on the purpose andduration of the trip. The FN andaccompanying dependents are issueda record of entry (Form I-94) at theUnited States port of entry.

The derivative status of a FN fam-ily member, particularly a spouse of the principalapplicant relies on the continued marital relationship.Simply speaking, in order to maintain derivative sta-tus, a FN spouse must remain married to the principalapplicant.

A strategy must be in place during the divorce pro-ceedings to protect the FN’s United States immigrationstatus. An approach that blends both immigration andmatrimonial law is needed to provide the client with anopportunity to obtain alternative derivative status.

This article is intended to advise matrimoniallawyers of issues that may arise in protecting a FN’simmigration status in an Action for Divorce. It is rec-ommended that matrimonial practitioners work inconjunction with an immigration lawyer because thisarticle does not outline all the statutory requirementsfor non-immigrant and immigrant options. However,it does illustrate a few solutions.

Record of Admission (Form I-94)The matrimonial lawyer must begin by asking the

FN for his or her Form I-94. The Form I-94 containsthe client’s specific non-immigrant status and author-ized period of stay in the United States.

The FN seeking entry into the United States musthave a valid visa issued by a consulate or embassyabroad (unless visa exempt). However, the visa is sim-ply permission to apply for admission at a UnitedStates port of entry. United States Custom and BorderProtection Officials (US CBP) determine whether toadmit the FN and if so, for what duration and status.This admission is documented by the issuance of FormI-94. Form I-94s can also be attached to ApprovalNotices issued to extend or change FN status.

New York State ‘No-Fault’ DivorceProvision

On August 13, 2010, New York State Senate billS3890A was signed into law amending the DomesticRelations Law by adding a ‘no-fault’ provision. Thisallows judgments of divorce to be granted without afinding of fault after the following ancillary issues areresolved: “the equitable distribution of marital prop-erty, the payment or waiver of spousal support, thepayment of child support, the payment of counsel andexpert fees and expenses, and custody and visitationwith the infant children of the marriage.” McKinney’sDRL Section 170.

This ‘No Fault’ provision is a useful tool to protect aForeign National client’s derivative status. The lan-guage provides five ancillary issues that must beresolved before the divorce can be granted. It is sug-gested that derivative status is another major ancillaryissue that must be addressed. It should be argued thatdeportation (i.e., in some cases, the involuntary sepa-ration of a parent from a child) is an important ancil-lary issue that cannot be ignored.

Custody and visitation are affected if the FN losesderivative status after a divorce. DRL § 170 wasamended in part, requiring “custody and visitationwith the infant children of the marriage [to] have beenresolved by the parties” before a divorce is granted. Itshould be argued that the court must consider thederivative parent’s access to their child and the child’saccess to the parent. This ensures that the derivativestatus child and/or United States citizen child has acontinuing parent-child relationship. In some cases, aderivative child could be in the United States for sev-

Venzon

Reich

eral years, depending on the duration of the primaryapplicant’s visa.

Strategies to Preserve or Change StatusThe following examples illustrate how a Foreign

National could lose his or her derivative status indivorce. There is no one strategy that can be used forany particular situation; rather the matrimonial lawyerin conjunction with an immigration attorney mustdecide what works best. Following are some strategiesto consider:

Scenario 1: Plans to Become a LawfulPermanent Resident (LPR)

One approach is to apply for a “green card” tobecome a Lawful Permanent Resident (“LPR”). Oncethe client is a LPR, they are no longer dependent onthe status of their spouse.

There are two options for attaining LPR status: fam-ily-based and employment-based. Family-basedoptions include applying through relatives of UnitedStates citizens or legal permanent residents.Employment-based options include applicants who areindividuals at the top of their field, international man-agers or executives, and those who have obtainedapproved labor certifications. Thus, one option - if theparties are agreeable - would be to defer the divorceuntil after the FN client becomes a Lawful PermanentResidence.

Scenario 2: Violence Against Woman Act(VAWA)

VAWA provides protection for women who obtainedtheir lawful status through engagement or marriage.Many FN battered spouses remained in abusive rela-tionships because they feared losing their immigrationstatus. Today, the Violence Against Women Act (VAWA)allows a battered spouse to leave a relationship andindependently pursue immigration options.

VAWA Scenario 1: A fiancée enters the United Stateson a K visa (a fiancée’s visa) to marry a US citizen.However, after the marriage, the husband abuses hiswife and refuses to file the appropriate paperwork forher to maintain legal status. In this case, the batteredspouse may self-petition for adjustment of status by fil-ing a Form I-360 demonstrating that she: (1) resided

with the US citizen spouse, and (2) was battered orsubject to extreme cruelty during the marriage. In thisscenario, the abused spouse is a female but a batteredmale spouse is also eligible for the same relief.

VAWA Scenario 2: Again, a fiancée enters the UnitedStates on a K visa (a fiancée’s visa) to marry a US cit-izen. However, after the marriage, the husband abuseshis wife and refuses to file the appropriate paperworkfor her to maintain legal status. This battered spousefalls “out of status” by exceeding the period of timeallotted under her non-immigrant visa. Immigrationbecomes aware of the situation and places her inremoval proceedings.

The battered spouse has two options to adjust herstatus once in removal proceedings. In the first option,the battered spouse may self petition for adjustment ofstatus under VAWA. She may self-petition for cancella-tion under VAWA by filing Form I-360 with the U.S.Citizenship and Immigration Service and then, uponapproval of Form I-360, apply for adjustment of statusbefore an immigration judge. In the event that therequirements of VAWA cannot be met, a batteredspouse may seek cancellation under the followingoption.

In this second option, the abused wife may seek can-cellation of removal for battered spouses under a spe-cial rule. This option requires: (i) a person to have beenbattered or subjected to extreme cruelty by a spousewho is or was a citizen or landed permanent resident,(ii) that the person has been physically residing in theUnited States for a continuous period of not less thanthree years immediately preceding the date of theapplication; (iii) the person is of good moral characterduring those three years; (iv) the person is not inad-missible, deportable, or has been convicted of anaggravated felony, and (v) the removal would result inextreme hardship. Special rule cancellation of removalis also available to battered children. In this scenario,we stated the abused spouse was female but a batteredmale spouse is also eligible for the same relief.

VAWA Scenario 3: A Foreign National marries a U.S.citizen abroad and then completes the immigrant visaprocess through a United States consulate within oneyear of marriage. The immigrating spouse is grantedconditional residency upon entering the United States.Conditional residency is a two-year probationary



These advancements include: OCR (Optical CharacterRecognition); the advent of electronic discovery (E-Discovery); cloud storage, which allows documents tobe stored on the Internet through an off-site database;and, the use of online document filing (E-filing). Withthese recent innovations, ethical obligations are impli-cated and evolving.

The concept of online storage has been addressed bythe New York State Bar Association (“NYSBA”) in

Opinion 842 (2010). Opinion 842 permits a lawyer touse an online data storage system to store and back upconfidential client information, “provided that thelawyer takes reasonable care to ensure that confiden-tiality is maintained in a manner consistent with thelawyer’s obligations under [New York Rules ofProfessional Conduct at] Rule 1.6. (Confidentiality ofInformation).”

Rule 1.6(c) requires that a “lawyer exercise reason-able care to prevent others, whose services are utilizedby the lawyer, from disclosing or using confidentialinformation of a client.” In other words, a lawyer orlaw firm is obligated to understand and to use reason-able care in its supervision of the storage of confiden-tial information to prevent improper disclosure.

Opinion 842 likewise suggests that “lawyers shouldstay abreast of technological advances to ensure thatthe storage system remains sufficiently advanced toprotect the client’s information, and the lawyer shouldmonitor the changing law of privilege to ensure thatstoring information in the “cloud” will not waive orjeopardize any privilege protecting the information.”

Clearly, the use of “reasonable care” varies based onthe particular circumstances, including the size andidentity of the client’s file contents. However, the ABAin its May 2011 article, “New York State BarAssociation Tackles Ethics of Cloud Computing,” listedfour considerations that govern the exercise of reason-able care. First, attorneys should ensure the storageprovider has “an enforceable obligation to preserveconfidentiality and security, and that the provider willnotify the lawyer if served with process requiring theproduction of client information.”

Second, attorneys should investigate the storageprovider’s “security measures, policies, recoverabilitymethods, and other procedures to determine if they areadequate under the circumstances.” Third, lawyersshould utilize “available technology to guard againstreasonably foreseeable attempts to infiltrate the datathat is stored.” Fourth, attorneys should investigate theprovider’s ability to “purge,” “wipe,” and “transfer”the data if the attorney decides to use another provider.

Storage obligations for client information and clientfiles raised additional concerns when an office goespaperless. For instance, Rule 1.15(d) of the New YorkRules of Professional Conduct mandates the storage ofcertain documents for seven years, including:

• records of deposits and withdrawals;

• copies of retainer and compensation agreements;

• copies of all statements to clients, or others, show-ing the disbursement of funds;

• copies of all bills rendered to clients;

• copies of payment records;

• closing documents filed with the court; and

• all checkbooks, check stubs, bank statements,prenumbered canceled checks, and duplicatedeposit slips.

Consequently, retention of some of these items, suchas a checkbook, may not necessarily be accomplishedwithout actual physical storage whether electroniccopies suffice remains to be definitively determined.

Another concern with respect to a paperless file-stor-age system involves its impact on evidentiary issues. Inthe course of litigation, original documents are obvi-ously preferred, and certain requirements must be metto permit use of an electronic document copy in lieu ofan original. CPLR 4539 (“Best Evidence Rule”) is seenas focused on the record-keeping procedures of ourclients and/or institutions, not law firms. Under CPLR4539(a) and (b), the criteria for using an electronicreproduction typically requires that the document bereproduced or copied in “the regular course of busi-ness” and that the document was stored in a tamper-evident form (which records any alterations); and thenauthenticated by appropriate and competent testimonyor affidavit of the client or institution, rather than oftheir lawyer.

As such, prudent attorneys should preserve all poten-tially relevant original documents.

In conclusion, paperless file retention appears to pro-vide clear benefits to attorneys and law firms that wishto move away from paper dependence. However, inchoosing to implement paperless policies, be aware ofthe ethical and evidentiary obligations that apply. [B]

By Howard Cohen andNicholas Ingrassia

As noted by ourcolleague, Anne F.Downey, substan-tial advancementsin technology haveallowed many lawfirms to move

toward “paperless” filing, maintenance, and storage.

Ethical Considerations for Paperless Law Firms

Cohen Ingrassia


Right Software Key to Going Paper-Free Gary Skalyo stressed that software is paramount for

a firm’s switch to paperless. The right software isneeded in order to capture, manage, retrieve and safe-guard data. He recommended that firms consider twotypes of software: capture software and data manage-ment software. Regarding capture software, mostscanners come with a basic program, but some firmswill need more robust software. As to data manage-ment software (often referred to as document manage-ment software, enterprise content management, orrecords management software), this helps ensure secu-rity, compliance, proper routing of information, andeasy retrieval of data.

Before attending law school, I watched “The PaperChase,” the classic law school movie starring JohnHouseman as an imperious and intimidating HarvardLaw professor. The name of the movie was aptbecause, during law school and ever since, I have beenchasing papers. For most of us, our daily work involvespreparing papers, reviewing papers, printing papers,copying papers, getting clients to sign papers, mailingand couriering papers, faxing papers, stacking and fil-ing papers, serving papers, and piling up rooms full ofboxes and Redwelds filled with papers. But perhapsthis will all change in the next few years.

The world is going paperless. Some law firms arejumping on board. When will your firm make theswitch?

As the storm surge from Hurricane Sandy rolled overthe coastal towns in New Jersey and downstate NewYork, I thought, “How many legal files are washingaway at this very moment?” Paper-based systems arevulnerable to physical destruction. They also cost a lotin terms of ink, paper, file folders, filing containers(boxes, cabinets and rooms) and personnel hours. Andhow many hours do we spend each year looking formissing files?

In western New York, the IP boutique firm ofSimpson & Simpson, PLLC made the switch to paper-less a few years ago.

“We went paperless in stages,” Bob Simpsonexplains. “We hired an outside company to cart away,store and scan thousands of files. Fortunately, the com-pany we hired agreed to store our files and scan themgradually over time, making it easier on our budget.Meanwhile, we began digitizing all our current incom-ing and outgoing correspondence ourselves. As scannerand OCR technology improved, we were able to effi-ciently digitize everything.”

The multiple stage approach is fairly common forfirms going paperless. Gary Skalyo at QLS SolutionsGroup Inc., a Buffalo company that provides scanningservices and also rents high-speed scanners, noted thatlaw firms need to consider their strategy for “back fil-ing” (getting existing records scanned) versus “day-forward” scanning (all new records are scanned). Afirm may want to handle its own day-forward scan-ning, but Gary cautions against buying any old scannerat a big box store. A better option would be a businessquality Fujitsu document scanner, priced from $900 to$1600. Concerning back filing, Gary cautions that afirm must carefully weigh the many staff hoursrequired to tackle a back-filing project in-house asopposed to sending the scanning project out to a scan-ning company that has very high-speed scanners andsignificant experience with quality control over thescanning process.

HoganWillig, with almost 50 attorneys, is making theswitch to paperless one step at a time. Managing part-ner Diane Tiveron explained that as of about four orfive years ago, the firm stopped sending closed files tostorage. When files are closed today, the documents arestored digitally to the fullest extent possible. Regardingolder closed files sitting in storage, the files aredestroyed as the relevant statute of limitations passes.

At HoganWillig, all new files and correspondence arescanned and saved digitally. E-mails are saved in theappropriate digital files. Even phone messages aresaved digitally, in the form of sound files. All of thefirm’s copier machines have scanning and faxing capa-bility. The in-house IT department has created its owndocument management system that is working well,and the firm also uses WinClose for real estate andNeedles for litigation.

cyberlaw: the brave new e-world

By Anne F. Downey

The Paperless Chase



Divorce ≠ Deportationcontinued from page 11

The Paperless Chasecontinued from page 13

period to ensure that the marriage is bona fide. Thenext step in the process is unconditional lawful perma-nent residency (LPR), but this status cannot begranted until conditional residency is lifted. To lift theconditional residency, the citizen or landed permanentresident spouse must file a Form I-751. The marriageis abusive and the husband refuses to file Form I-75 forhis wife to maintain status. Under VAWA, the condi-tional/resident/battered spouse can file Form I-751 onher own requesting a waiver of the joint filing require-ment based upon spousal abuse. Again in this scenario,we stated that the abused spouse was female but a bat-tered male spouse is eligible for the same relief.

In conclusion, New York State’s Domestic RelationsLaw no-fault provision provides some protection forFNs because, arguably, derivative status must be dealtwith prior to the issuance of divorce. Derivative statusis a major ancillary issue and cannot be ignored. Thedisruption of the family unit affects the future of thedependent spouse and children’s derivative status.

The matrimonial lawyer, working in tandem with animmigration professional, must assist the ForeignNational in identifying another status to lawfullyremain in the United States.

Once documents are scanned, where does the datareside? Firms need to ensure that there are backupcopies of digital data, whether that means storing thedata on multiple hard drives at multiple locations, orstoring data in the “cloud” (i.e., online). If the data canbe accessed via the Internet, then the firm’s attorneyscan log into the system and work from remote loca-tions.

It is unlikely that law firms will ever go completelypaperless. Some original signed documents must bepreserved, such as promissory notes and wills. Butmost communications that cross an attorney’s deskduring a typical day can be saved digitally.

Diane Tiveron noted that the younger attorneys inher firm have had an easier time adapting to thepaperless system. And there are times when an attorneyof any age simply wants to spread papers out to reviewcomplex issues, when flipping through computer screenafter computer screen just won’t work as well.

As Bob Simpson noted, “We haven’t given up onpaper altogether. We keep a paper file on-site for everypending patent and trademark application. It’s notthat we need to – but sometimes we just enjoy spread-ing the paper out on the conference room table andexplaining to the law clerks that this is how we used topractice law!”

Good luck to all of us as we gain the courage toexplore this new way of practicing law. For those whohave made the switch to paperless, please feel free tosend me any tips you have, and I will try to share theideas in future columns.

Finally, I extend sincere thanks to Howard Cohen ofGross Shuman Brizdle & Gilfillan P.C., who has writ-ten a companion column in this edition of the Bulletinaddressing the ethical issues implicated by goingpaperless. [B]

By Elizabeth M. Midgley, ChairYoung Lawyers Committee

The Bar Association of Erie CountyYoung Lawyers Committee, Women’sBar Association of the State of NewYork and WNY Chapter Minority BarAssociation of WNY joined forces thisholiday season to collect toys for dis-

tribution by the Attorneys for Children Unit at LegalAid, which represents children involved in abuse andneglect proceedings.

The 2012 Yuletide Toy Challenge resulted in the col-lection of over 560 toys for the children!

Doran & Murphy were the winners in the smallfirm category (1-10 attorneys); Colucci & Gallaher,

YULETIDE TOY CHALLENGE 2012

The Third Annual Yuletide Challenge Toy Drive brightened the holidays for the children pictured above, thanks to the gen-erosity of the BAEC’s Young Lawyers, together with the Minority and Women’s Bar Associations. Santa Claus (who, curiously,is never seen in the company of Frank J. Longo) presented toys to more than 50 children in person. Legal Aid staff membersalso distributed toys to more than 250 children throughout the holiday season. Special thanks to Elizabeth Midgley andElizabeth Kraengel for organizing the most successful drive to date.

P.C. won the medium firm category (11-24 attorneys)with an astounding 175 toys collected, and PhillipsLytle LLP took the title in the large firm category(25+ attorneys).

The grand prize going to the winning firms is thephotograph accompanying this article - and braggingrights for a year!

Legal Aid hosted a breakfast with Santa Claus to dis-tribute the toys. Over the last three years, the YuletideToy Challenge has provided over 1,160 toys to childrenaffected by abusive and neglectful relationships in theWestern New York area. A special thanks goes out to allfirms that made it possible to bring some cheer this hol-iday season to some of our area’s neediest kids. [B]


and regulations will evolve as increasing numbers ofsellers of goods and services rely more heavily onmobile payments than ever before.

Among the existing laws, rules and regulations gov-erning issues related to payments are, on the federallevel, the Electronic Fund TransferAct (EFTA), the Truth in LendingAct (TILA)/Regulation Z), Truth inBilling rules (47 CFR 64.2401), theUnfair, Deceptive, or Abusive Actsor Practices UDAP under theConsumer Financial protection Actof 2010 (15 USC § 45(a); 12 USC§ 5536(a)(1)(B); the Gramm-Leach-Bliley Act (GLBA) Privacyand Data Security Provisions, andthe Telephone Consumer ProtectionAct or TCPA .

Briefly, the EFTA (15 USC §1693 et seq, 12 CFR 1005) estab-lishes rules for electronic fundtransfers involving consumers.These rules apply when a paymentis made FROM a consumer’saccount using an electronic fundstransfer to a seller. Under this rule,consumer rights regarding disclo-sures and error resolution proce-dures are defined. TILA (15 USC §1601 et seq, 12CFR 1026) applies to creditors that offer or extendcredit to consumers. Specifically creditors must provideinformation to consumers on costs, including interestrates, billing rights and dispute procedures.

Truth in Billing rules derived from telecommunica-tions apply to wireless telecommunications carriers andrequire that the carriers provide clear, correct anddetailed billing information on services provided andcharges that appear on consumer bills.

The Unfair, Deceptive or Abuse Acts or Practices,which fall under the Federal Trade Commission

It’s a little like opening Pandora’s box. I decided touse the space this month to talk about the evolution ofmobile devices and payments, and I realize that thereare - and probably have been - books to be written onthe topic, let alone a thousand words. So, with this inmind, and before you have time to glaze over, I’m goingto do a quick overview of some of the issues that areappearing with more frequency as large numbers ofentities migrate from traditional payment methods tothose that use wireless devices at some point or anotherin the transaction.

The number of issues that are presented by this bur-geoning process are just shy of infinite although, in fair-ness, the specific issues often fall under one of threemuch more generic areas of law: security, privacy andbanking. The next layer of specificity overlaid on thesethree generic topics derives from the origin and pur-pose of existing regulations.

Federal regulation comes at the issue from a varietyof regulatory directions, including the Federal DepositInsurance Corporation, Federal Reserve, Federal TradeCommission, Federal Communications Commission,Office of Comptroller of the Currency (OCC), NationalCredit Union Association, and Consumer FinancialProtection Bureau (CFPB). It’s not hard to imaginethat getting this many federal agencies together to rec-oncile their respective rules and regulations is as likelyas a Buffalo Super Bowl trip in the next season. Notimpossible, just very unlikely. And that’s just at the fed-eral level. Then there’s state law, which adds its ownset of variables to the regulatory obligation.

Part of the challenge is that each of the governmen-tal units that has control or authority to regulate someportion of a mobile financial transaction comes from adifferent “interest area” of government, each of whichhas its own constituents and culture. That is, what theFCC sees as a critical issue may have little or no rela-tion to the primary concerns of the FDIC and nothingwhatsoever to do with those issues that keep the OCCup at night. Nonetheless, given that the ultimate goalmay be to protect consumers (this is speculation on mypart, and again, each agency/entity may have its ownultimate goal(s)), it’s difficult to know how these rules

lost in (techno) spaceBy Martha Buyer

Mobile Payment Regulation: Who’s Calling the Shots?

Act/Unfair, Deceptive or Abuse Acts or Practices(UDAAP) as part of the Consumer Financial ProtectionAct of 2010 (15 USC § 45(a); 12 USC §5536(a)(1)(B)) apply to any person or entity “engagedin commerce.” These rules apply to all mobile pay-ments, regardless of source. Additional terms and con-ditions have been made to this original act by both theFederal Deposit Insurance Act (12 USC § 1818) andthe Dodd-Frank Act (Pub.L. 111-203, H.R. 4173).Under these rules, “unfair” and “abusive” practicesaffecting commerce are explicitly forbidden.

The Gramm-Leach-Bliley Act Privacy and DataSecurity Provisions (15 USC § 6801 et seq.; 12 CFR332; 12 CFR 364 App. B) defines privacy rules anddata security guidelines for “financial institutions.”This phrase includes not only banks, but other non-banks engaged in financial activities. While this mayseem like splitting hairs, the distinction between banks

and non-banks for purposes of securityand privacy is critical. This Act appliesany time that a financial institution han-dles any kind of information from a cus-tomer or consumer.

The TCPA (47 U.S.C. §227(b)(1)(A)(iii)) governs how - and towhat extent - creditors and others maycontact consumers on wireless devices.I’ve written about these rules recently(Bulletin, November 2012), and courtshave spoken about what constitutesacceptable contact by a financial insti-tution to a consumer’s wireless device.TCPA rules reflect concern about man-agement and retention of confidentialdata, along with the expense to thedevice owner of text or other messagessent by an unconsenting third party.

If financial transactions were everconsidered hallowed ground, technologyin the workplace has created opportuni-

ties, not only for unanticipated data processing horse-power, but for unscrupulous or greedy andmanipulative third parties who have been able to har-ness technology to serve their own ends at a price totheir customers. However, as the migration to mobiledevices for financial transactions becomes more com-mon, it remains in the consumer’s best interest to knowhis or her rights and responsibilities to minimize expo-sure to fraud and security breaches. Things may havebeen easier when bills were paid by check and moneyorder only, but transactions were much slower.

As my grandmother used to say, “For things that arenice, we pay the price.” [B]

“Technology in the

workplace has created

opportunities…for

unscrupulous or greedy

and manipulative third

parties…to serve their

own ends at a price to

their customers.”


traditionally, the mahr is all that a wife will receive atthe time of a divorce. But to be accurate, there are cer-tain circumstances in which she may forfeit the mahr ifdivorce is initiated by her.

The Marriage ContractThe Islamic marriage is purely a contractual agree-

ment between two parties, devoid of the sacramental sig-nificance found in the Christian tradition, for example.

The significance of the civil contract of marriage inIslam is an authorization and legitimization of inter-course between couples. There is no such concept asnuptial agreements in Islamic tradition and culture.Moslem couples contracting a mahr in their country oforigin do not consider defending it in a Western courtor, for that matter, in any court at all. Unless the cou-ple foresees a divorce in a Western court at the time ofmarriage in their country of origin, no mahr agreementwould pass the test of contract or prenup.

In the 1985 case of Aziz v. Aziz, a New York courtenforced a deferred mahr of $5,000 because the termsof the contract complied with New York’s GeneralObligations Law. The court rejected the husband’sclaim that it was a matrimonial action. However, theclarity of the decision was obscured by the judge’sremark that the provision was enforceable, even thoughthe agreement was part of a religious ceremony. Themain distinguishing characteristic of a Moslem mar-riage is that it is a civil agreement without sacramentalassociations.

In Dajani v. Dajani, a California court failed to prop-erly examine Islamic marriage customs when consider-ing the enforceability of the mahr. A Jordanian wife wasdenied deferred mahr because the court heard experttestimony that a wife forfeited mahr if she initiated theseparation. The court did not hear an alternative inter-pretation of Islamic law, i.e. that the wife should onlybe denied the dowry if she had no reason for divorce.Even then, the wife does not necessarily lose all of themahr.

On appeal, the wife again failed to recover the mahr,but the Court of Appeals rationale was different. Inapplying the conventional rules of ante-nuptial agree-ments, the contract was seen to contravene public pol-icy because it only provided for a settlement in theevent of divorce or separation. In re Marriage of Dajani,251 Cal.Rptr. 871, 872-73 (1988), the court decidedthat the term was not negotiable, required no disclo-sure of assets, and the wife received no legal adviceprior to agreement. These safeguards were expectedeven though the agreement was made in Pakistan, andit was unlikely that a party living in Pakistan wouldobtain legal advice from an American lawyer. Also,there was no discussion of matrimonial culture inMuslim countries, where disclosure of assets is notexpected.

Chaudhary v. Ali is an unusual example of a husbandseeking to enforce a provision of the marriage contract,as a single lump sum payment which would free himfrom future alimony obligations. The Virginia Court ofAppeals refused to enforce the mahr contract coveringspousal support, as it failed to comply with Virginia’slaws on contracts.

A deferred mahr of $50,000 was also awarded in the1996 case of Akileh v. Elchahal. This Muslim couplemarried in Florida in 1991 and, upon separation, thewife made a claim for mahr. The court denied thewife’s initial claim for mahr, citing lack of considera-

By Nadia Shahram

Last month at the New York StateCouncil of Divorce Mediators meet-ing, an interesting discussion tookplace when I was introduced as com-ing from a Muslim background.Several judges and attorneys in the

room had experienced the confusion that is generatedin the courtroom when part of an Islamic marriagecontract “dowry” is claimed.

Courts need to be alert to multiple layers of culturalnuance and the need for experts who can guide themthrough the confusion that can arise. This involves thetypes of questions they’ll increasingly face in mattersthat include such religious elements as mahr. Mahr is agift given by the groom directly to the bride, either attime of marriage or later. The deferred mahr often ismoney and the immediate mahr is something of value,such as jewelry.

In its historical context, the mahr was designed togive the wife some financial stability at the time of apossible divorce, serving much as a nest egg. It was alsoused as a deterrent for the husband’s unilateral right todivorce if the mahr is a large sum of money. Theamount of the mahr is set by the families based on age,education, physical attractiveness of the woman andthe overall social class of her family. There is no ambi-

guity that mahr for a virgin female is much higher thanfor a non-virgin. Mahr is an essential part of a Moslemmarriage contract; however it does not nullify the mar-riage if it is missing. In such a case, a divorce court willdecide a value based on customs and factors thatinclude the above-mentioned characteristics.

A Moslem woman married anywhere in the worldwill have a “mahr” in her marriage contract. SomeMoslem feminists believe that this monetary value isnot a bride price (which some judges have been led tobelieve in American courts), but rather, that it is a sim-ple religious right obligating husbands to gift the bride.This concept stems from a verse from the Koran, i.e.“When you divorce women and they fulfill the term oftheir “iddah,” the Qur’an said, “either take them backon equitable terms or set them free on equitable terms;but do not take them back to injure them or to takeundue advantage; if anyone does that, he wrongs hisown soul” (2:231).

I would agree that perhaps the immediate mahrcould fit into the interpretation of being a gift from thebridegroom to the bride consummating the marriage.But the deferred mahr is more in line with the inter-pretation of being a religious duty payable at the timeof a divorce. In Moslem countries, a mahr at the timeof a divorce does not go through any scrutiny, espe-cially the Western definition of a contract. Legally and

Mahr or Dowry in American Courts: Prenuptial or Religious Obligation?



enforcement officers at key locations, such as airports.Personally, I think it is hard to argue that they are actu-ally a deterrent in that environment. It certainly doesnot make me feel safer and I have yet to see any evi-dence that it actually improves security.

The British media portrays most Americans as gun-loving. Indeed, I think that many perceive (from theobservations of Hollywood) that it is a rite of passage

for all teenage boys to be taken tothe woods by their fathers to shoota bear (regardless of the truth).

I am sure that this culturalstereotyping is generally unhelpfuland certainly does nothing to fosterinternational understanding or helpus to understand that the pictureportrayed by the media may notalways be as clear-cut as it mightseem.

As to how the right to bear armsshould be tempered by the necessityto stop future random shootings, Irecently read a suggestion whichmay be worthy of further thought.The right should bear a relationshipto the technology available at thetime when the right was created; soessentially if you want to own a gunwithout restriction, it has to be amusket capable of firing approxi-mately two or three rounds a

minute and requiring reloading on each occasion.

I should credit the idea not (unsurprisingly) to PiersMorgan but rather to a columnist in the London Times.You may think it ill behoves an Englishman even toexpress an opinion on the subject. Perhaps it does butsometimes events are just too shocking to stand stilland say nothing.

By Jonathan Smithers

When writing for your Bulletin overthe years, I have sometimes taken theopportunity to point to differences inour culture and language. I hopemost, if not all, have been uncontro-versial, perhaps amusing or a littleinformative. There are, of course,

some larger cultural differences. By thetime you read this, a couple of monthswill have passed but I am sure the issueof gun control, given the terrible eventsof recent times, will stay relevant forsome time yet.

You may have read that former news-paper editor Piers Morgan (one of ourlesser celebrated exports to your faircountry) has sparked an online petitionto have him deported. This follows hiscomments on the necessity to controlthe use of arms, specifically assaultweapons, the argument being that hiswords challenge your Constitutionalrights. His response (at least as reportedhere) was to ask how those that signedthe petition felt about the equallyimportant (if not more so)Constitutional right of free speech.

Another petition has now been startedhere demanding that he be kept on yourside of the pond, as we don’t want himback! Although this might be seen as flippant it doesindicate that some here don’t understand the depth offeeling which this debate engenders in your country.

Cultural attitudes toward firearms and their use aredramatically different. Ownership of guns in this coun-try is very tightly controlled. The police do not nor-mally carry them and some of us still feeluncomfortable seeing them being carried by law

News from Kent, Our Sister City in Great Britain

“Ownership of guns

in this country is very

tightly controlled. The

police do not normally

carry them and some

of us still feel uncom-

fortable seeing them…

at key locations, such

as airports.”

Law Day and AnnualDinner AwardNominations Sought

The Bar Association is now accepting nominationsfor this year’s Law Day and Annual Dinner awards.

LAW DAY AWARDSOur annual Law Day luncheon and awards cere-

mony marks the culmination of months of law-relatededucational activities, including the high school MockTrial Tournament and poster contest. In addition,members of our Speakers Bureau have been educatingthe public about the justice system in schools and com-munity organizations.

Our long-standing Law Day tradition involves hon-oring local attorneys and non-attorneys who have dis-tinguished themselves in service to the law and theideals of the Constitution. The Bar Association presentsseveral awards on Law Day, including the:

• Liberty Bell Award

• Special Service Award

• Police Officer Award

• Justice Award

• Media Award

How to Nominate a Candidate for a Law Day Award

Nomination forms for candidates for all the Law DayAwards are available at www.eriebar.org. Completedforms should be forwarded to Jennifer M. Dillon,Awards Committee Chair, at the Bar Association office.The deadline for receipt of nominations isFebruary 1, 2013.

ANNUAL DINNER AWARDSEach year at the Annual Dinner, the BAEC recog-

nizes lawyers and judges who have made outstandingcontributions to the Association, the legal communityand the profession.

Winners are selected by nominations sent from themembership to the Awards Committee. The board ofdirectors reviews the recommendations of the AwardsCommittee and makes the final determinations. Pleaseconsider submitting your nomination(s) for the follow-ing awards:

• Lawyer of the Year Award

• Outstanding Jurist Award

• Charles H. Dougherty Civility Award

• Special Service Award

• Award of Merit

How to Nominate a Candidate for anAnnual Dinner Award

Nomination forms for candidates for all AnnualDinner Awards are available at www.eriebar.org.Completed forms should be forwarded to Jennifer M.Dillon, Awards Committee Chair, at the Bar Associationoffice. The deadline for receipt of nominations isMarch 1, 2013.

For further details and award criteria visitwww.eriebar.org. [B]

2013 BAEC “Have A Heart” Food DriveFirm Name ______________________________________________________________

Contact Person __________________________________________________________

Address ________________________________________________________________

______________________________________________________________________

______________________________________________________________________

Phone Number __________________________________________________________

Fax Number______________________________________________________________

E-mail Address____________________________________________________________

Kindly complete and return this form to:Michael Billoni, Food Bank of Western New York91 Holt Street • Buffalo, New York 14206 • Telephone No. 852-1305

Did you know that a donation of just $15 canfeed a family of four for a week? Or that – contraryto popular belief – the hungry people in our communityand across the nation are not just the homeless? They areoften employed, or live in a household with someone whois. They are the working poor who struggle to provide thedaily necessities that so many of us take for granted. Forthe past 22 years, the Bar Association of Erie County hasexpressed its commitmentto helping the hungry in ourcommunity through itsHave-A-Heart food drive.Over the history of thedrive, several tons of foodand substantial financialsupport have been providedto the Food Bank of WesternNew York.

This year’s drive has onceagain focused primarily on monetary contributions. Lawfirms that wish to collect non-perishable food items mayalso continue to do so and the Food Bank of Western NewYork will arrange to pick up the donated items. Please helpthe hungry in our community by sending in your donationtoday.

Checks should be made payable to the Food Bank ofWestern New York and returned with the form at rightby Valentine’s Day, February 14th. All donors will receivewritten confirmation of their contribution directly from theFood Bank.

Annual Food Drive Effort to Focus on Monetary Donations

PAGE 18www.eriebar.org | February 2013

mahr that should be enforced. The goal of protectingthe interests of the woman can be reached by eitherapplying the mahr or by applying the applicabledivorce laws, but not both. However, this has resultedin judges making case-by-case decisions instead of uni-formity of law in court rooms for divorcing Moslemcouples. [B]

tion. The court reasoned that there was no ‘meeting ofminds’ due to different opinions between the parties ofwhat mahr meant. For example, the husband believedthat his wife forfeited mahr by demanding a divorce.However, this was overturned on appeal because theuncertainty that existed was not sufficient to invalidatethe entire contract. What is notable about this case isthat the marriage contract and ceremony were bothcompleted in the United States. Similarly, Aziz v. Aziz,which was also a successful application to enforcemahr, was also performed in the United States.

In the two cases when mahr was not awarded,Dajani v. Dajani and Chaudhary v. Ali, the marriagecontracts were completed abroad. None of the judges

Mahr or Dowry in American Courts: Prenuptial or Religious Obligation?continued from page 16

actually discussed this issue but it does appear thatcourts are less likely to enforce mahr if the terms werenegotiated in a foreign country.

The conflict common to all cases is whether toenforce the mahr as part of the marriage contract inaddition to or in lieu of enforcing the applicableAmerican divorce laws. In a traditional Moslem mar-riage, women had the mahr as security in the event ofa divorce. There were no other protections available.However, in the United States, women are protected byextensive divorce laws. It seems patently unfair toenforce the mahr against the husband, and further tothen divide the marital property in equal shares.

Ultimately, it is the furtherance of the policy behind


with coal. The building subsequently became one ofthe most luxurious hotels in the country duringBuffalo’s turn-of-the century heyday leading up to the1901 Pan-American Exhibition.

Featured in The New York Times and ArchitecturalDigest, the awe-inspiring structure has been home to anumber of unique ventures over the years, includingthe renowned Victor Hugo Wine Cellar. Its currentincarnation as a four-star hotel routinely draws visitingcelebrities to its skillful blending of old-world elegancewith contemporary design and state-of-the-art guestservices.

Plan now to make your March memorable byspending the night in one of the Mansion’s luxuriousguest rooms or suites!! If you wish to reserve a room,please call 886-3300 and ask for the Bar Association’sspecial rate no later than February 16. Watch yourmail for further information about making reserva-tions for the Ball.

All rooms are being offered at a special mem-ber rate of $125 (for March 16 only). Roomchoices include a classic queen, grand queen,grand double, premium grand, and fireplacepremium suite. All include a gourmetContinental breakfast or a la carte menu options.ADA-accessible rooms are also available.

Spend an elegant evening in turn-of-the-centurysplendor at the 2013 President’s Ball scheduled forSaturday, March 16 from 7:00 until 10:00 p.m. atThe Mansion on Delaware Avenue. The black-tieoptional gala will be held in honor of PresidentKathleen M. Sweet and the Association’s past presi-dents. The reception will include cocktails, horsd’ouevres and food stations, followed by live music anddancing.

Attendees have the option of staying overnight in oneof The Mansion’s elegant guest rooms or suites. A specialdiscounted rate is available to our members for the occa-sion but reservations for overnight accommodationsmust be made by February 16 as space is limited.

The Mansion on Delaware Avenue is a shimmeringjewel among Buffalo’s numerous architectural gems. Ajoyous renovation of architect George Allison’s SecondEmpire Structure, The Mansion was originally com-missioned as a private residence in the 1860s. Called“The House of Light,” The Mansion has over 175 win-dows, 14 of which are large bay windows. The win-dows and 18-foot high ceilings were an indication ofgreat wealth due to the enormous expense of heating

President’s Ball to be Held at The Mansion

In Memoriam

We wish to honor the memory of the follow-ing members of our Bar Association. Memorialgifts to the Erie County Bar Foundation arean excellent way to remember friends andcolleagues, as gifts are used for the benefitof the entire profession.

“Remembering is an act of resurrection,

each repetition a vital layer of mourning,

in memory of those we are sure to meet again.”

~ Nancy Cobb, from “In Lieu of Flowers”

Anna L. Scott

Carl Tronolone


organization that has contributed its time, energy, andresources to the enhancement of the sport of tennis.”Sargent & Collins, LLP has sponsored numerous USTAtennis tournaments locally and was the 2012 sponsorof the MUNY 90th Anniversary Tennis Tournament.

The Albany-based firm of TullyRinckey PLLC recently expandedinto Buffalo. The firm’s local attor-neys will initially practice criminaldefense, bankruptcy law, and SocialSecurity law. Joining Tully Rinckeyare Paul M. Pochepan, Of Counsel,and Lori A. Hoffman as an associ-ate. Pochepan has more than 20years of experience in Social Securitydisability and bankruptcy law.Hoffman, a criminal defense attor-ney, has more than 11 years of expe-rience in a Buffalo firm, as a solepractitioner, and as an assistant pub-lic defender. The firm currentlyemploys 45 attorneys, 18 percent of

whom are veterans of the Army, Marine Corps, CoastGuard, and Navy or are currently serving in thereserves.

Meghan M. Brown, Gary M. Phillips, and RyanG. Pitman have joined Goldberg Segalla as associatesin its Buffalo office. Brown focuses her practice on gen-eral liability, including personal injury, medical mal-practice, and nursing home defense. She was formerlyin private practice in civil litigation and also served asa law clerk at the Supreme Court Appellate Division inRochester. She received B.S. and B.A. degrees, cumlaude, from the University of Rochester; an M.A. fromColumbia University; and a J.D., magna cum laude,from SUNY at Buffalo Law School.

Phillips works in the firm’s business and commercialpractice group. He was formerly an associate at aninternational law firm in New York City, where hefocused on white-collar crime. He received a B.A., cumlaude, from Binghamton University; an M.S. fromMercy College; and a J.D., magna cum laude, fromSUNY Buffalo Law School.

Pitman, also a member of the business and commer-cial practice group, focuses on commercial litigationand business counseling. He has also representedclients targeted by regulatory compliance actions andgovernment investigations. Pitman received a B.S.,cum laude, from the University of Pittsburgh and aJ.D., cum laude, from the University of PittsburghSchool of Law.

Anne E. Joynt of Lipsitz &Ponterio, LLC has been selected toserve on the steering committee ofthe Women’s TAP Fund, a politicalaction committee that helps electqualified pro-choice women to publicoffice in WNY. Joynt concentrates herpractice in childhood lead paint liti-gation and personal injury matters.

She holds a B.A., magna cum laude, from SUNYGeneseo, and a J.D. from SUNY Buffalo Law School.Joynt is a state director of the Women’s Bar Associationof the State of New York, WNY Chapter, and immedi-ate past president of the SUNY Law School GOLDGroup. She also serves on the boards of SUNY Geneseoand the Law Intern Program of Buffalo.

Jamie M. Smith and Frank R.Vavonese have been named partnersat Pfalzgraf, Beinhauer & Menzies,which focuses solely on elder law andestate planning. Smith’s practiceincludes elder law, estate and long-term care planning and estateadministration. She serves on theboard Legal Services for the Elderly,Disabled or Disadvantaged of WNY,Inc. and is also a member of theBAEC’s Elder Law and Surrogate’sCourt Committees, along withNYSBA’s Elder Law and Trusts &Estates sections. A magna cum laudegraduate of SUNY Brockport, Smithreceived her J.D. from SUNY Buffalo

Law School.

Vavonese concentrates his practice in skilled nursinghome Medicaid asset preservation planning, estateplanning, and Article 81 Guardianship matters. He wasformerly an attorney for Legal Services for the Elderly,Disabled and Disadvantaged of WNY, Inc., handlingMedicare Part D and related prescription drug lawcases. A cum laude graduate of Canisius College,Vavonese received his J.D. from SUNY Buffalo LawSchool, where he served as an editor of the BuffaloCriminal Law Journal.

Thomas J. Lang has joinedMagavern Magavern Grimm LLP asan associate, where he focuses on lit-igation, elder law, estates and trusts,and appellate practice. His experi-ence also includes personal injurydefense. Lang received his J.D., cumlaude, from SUNY at Buffalo LawSchool, where he was awarded Best

Oral Advocate at the 2008 Charles S. Desmond MootCourt Competition. He also holds an M.B.A. fromSUNY Buffalo and an undergraduate degree fromSUNY Fredonia.

Sargent & Collins, LLP hasbeen selected as the 2012 recipient ofthe Corporate Service Award pre-sented by the United States TennisAssociation, Eastern section. Theaward was presented to managingpartner Nicholas J. Sargent at thegroup’s annual meeting in WhitePlains. It is given to “recognize an

Bench and Bar continued from page 3

Lang

Sargent

Pochepan

Hoffman

Brown Phillips Pitman

Joynt

Smith

Vavonese



William K. Kennedy has joinedRupp, Baase, Pfalzgraf, Cunningham& Coppola LLC as a partner. He hasmore than 19 years of litigation andtrial experience and will work in thefirm’s insurance defense litigationgroup. Kennedy is experienced in lit-igating construction-site accidents,products liability, premises liability,

motor vehicle actions, and property damage claims. Amagna cum laude graduate of Niagara University,Kennedy received his J.D. from SUNY Buffalo LawSchool.

Kennedy

Contributions to the Erie County Bar Foundation provide an excellentvehicle for recognizing and honoring members of our profession.Memorial gifts to the Foundation become a lasting tribute to the entirelegal profession, as funds are used exclusively to assist attorneys andpromote understanding of our legal system.

In Memory of Nathan S.Silverberg:

David K. Silverberg

In Memory of Christopher T.W.Ross:

Denis A. Kitchen, Jr.

In Memory of Robert J. Plache:Gregory C. Yungbluth

In Memory of Neil E. Garvey:Gretchen P. AylwardLauren D. RachlinRichard S. Juda, Jr.Ronald J. Winter

In Memory of Hon. David J.Mahoney:

Hon. & Mrs. Gerald J. Whalen

In Memory of Michael B. Jones:Bar Association of Erie CountyHon. Catherine Nugent Panepinto

In Memory of Jean L. Schroeder:Hon. H. Kenneth Schroeder, Jr.

In Memory of Patrick Maxwell:Lisa A. Coppola

In Memory of Jane Sweet (Wife ofDavid L. Sweet, Mother ofKathleen M. Sweet):

Raymond L. Fink

In Memory of My Father, HowardM. Curran:

Hon. John M. Curran

In Memory of David Jay:Marilyn Hochfield

In Memory of James S. Keysa:Robert E. Keller

In Memory of My Parents, Mannie& Marian Frank and My Sister,Harriett Rosenberg:

Howard B. Frank

In Memory of Hon. Norman J. Wolf,Jr.:

J. Michael Wolf

In Memory of Oscar Smukler:Bar Association of Erie CountyColeman VolgenauGabriel J. FerberJerome D. AdnerJoel & Pattie DanielsMonica & Phil MagnerPhilip CelnikerRichard & Loretta Smukler

In Memory of Anna L. Scott:John Ballow

In Memory of My Brother, Paul T.Lynch:

Kathleen A. Lynch

In Celebration of Richard D.Grisanti’s Special Birthday:

Marjorie & Arnold Zelman

In Memory of Peter Klaasez:The Class of ‘61

In Memory of William J. Casilio:Joan Casilio Adams

In Memory of Julia E. Roberts(Daughter of Thomas E. Roberts):

Anne E. JoyntGayle L. EaganRoger J. EdelThomas I. McElvein, Jr.

In Memory of Carl Tronolone:Bar Association of Erie CountyDavid R. PfalzgrafJim & Mary Shea

In Memory of Charlotte C.Bender:

Thomas W. Bender

In Memory of Robert B. Druar:William W. Berry

In Memory of George M.Zimmermann:

Bruce W. HooverGeorge Michael Zimmermann

In Memory of Joseph Vispi:Howard B. FrankLouis M. CacciatoStephen R. Lamantia

In Memory of E.W. Dann Stevens:Peter J. Battaglia

In Memory of Manny Tabachnik:Marilyn A. Hochfield

In Memory of Robbie Billingsley:Kathleen M. Carmody

In Memory of Irving M. Shuman:Leslie Mark GreenbaumMyron M. SiegelRaymond L. Fink

In Memory of John J. Cotter, Jr.:Gabriel J. Ferber

In Memory of William R. Brennan:Charles C. MartoranaGeralyn A. Schiffler

In Memory of John Krull:Bar Association of Erie CountyChristopher C. WillettColeman VolgenauJoel & Pattie DanielsPhilip Celniker

In Memory of Robert M. Murphy:David C. Quinn

In Memory of Terry D. Loretto:Karen Richardson

The Foundation gratefully acknowledges the following contributions:

In Memory of James J. McLoughlin:Leslie Mark Greenbaum

In Memory of Kenneth L. Cooper:Michael J. Cooper

In Memory of Bryant Kurtzman:Myron M. Siegel

In Memory of Daniel F.Lewandowski, Sr.:

Patricia Gillen

In Memory of James N. Carlo:Raymond W. WalterRobert W. Grimm, Jr.

In Memory of Gregory Hoelscher:Robert M. Lippman

In Memory of John T. “Jack”Frizzell:

Hon. & Mrs. Gerald J. WhalenPeter J. BattagliaThomas E. Webb

In Memory of W. Barry Mallon:Geralyn A. Schiffler

In Memory of James & Ellen Walker:Hon. Timothy J. Walker

In Memory of Salvatore F.Giallombardo:

Hon. Joseph A. Fiorella

In Memory of Norman Szymoniak:Howard B. Frank

In Memory of Hon. M. DoloresDenman:

Karen RichardsonLeslie Mark Greenbaum

In Memory of David Rutecki(Husband of Helen Osgood):

Raymond L. Fink

In Memory of Joseph Scime:Louis M. Cacciato

In Memory of Judge Anthony Certo(Ret.), Niagara Falls City Court:

Ronald J. Winter

In Memory of My Mother, ConcettaLamantia:

Stephen R. Lamantia

In Memory of Mark G. Hirschorn:Thomas Allan Palmer

In Memory of Arnold Gardner:Marilyn A. Hochfield

In Memory of Edward A. Bruch:Craig R. Bucki

In Memory of Robert O. Swados:Lauren D. Rachlin

Foundation Contributions to Benefit ProfessionBench and Bar continued from page 20

Are You An AttorneyStruggling With

Depression?If so, you’re definitely not alone. A recent

Johns Hopkins study of 108 occupationsfound that lawyers topped the list of thosewho suffered from depression. Attorneyswere found to suffer from depression at arate of four times that of the general popu-lation.

Depression is a treatable illness and theright combination of medications and ther-apies can significantly improve the qualityof life for those who suffer from it.

Help and support are just a phone callaway. The Lawyers with DepressionSupport Group meets on a weekly basis toshare stories and fellowship. The groupmeets every Friday (except holidays). Seethe calendar on page 24 for meeting dates,times and locations.

If you or a colleague are struggling withdepression, there is no need to suffer insilence. For further information, visitwww.lawyerswithdepression.com or contactDaniel T. Lukasik at 847-1010. All calls arestrictly confidential. We invite you to join usand share your story.


ERIE INSTITUTE OF LAWPROVIDING CONTINUING LEGAL EDUCATION FOR YOUR PROFESSIONAL ADVANTAGE

PLEASE NOTE: The Erie Institute of Law is unable to issue partial credit for seminars, except for multiple session programs such as the Tax andLeadership Institutes. If you have questions about whether a program qualifies for partial credit, please call Mary Kohlbacher at 852-8687.

Date/Time/Location Topic CLE Credits Price

Wednesday, February 6, 2013 Education Law Series Part 1: Compliance with Section 504 1.0 credit $20 members1:00 p.m. – 2:00 p.m. of the Rehabilitation Act in School Districts $25 non-members Adelbert Moot CLE Center (Noonday Lecture presented by Andrew J. Freedman, Esq. & Melanie J. Beardsley, Esq.)438 Main St. Buffalo, NY

Thursday, February 7, 2013 Overview of the 2012 Taxpayer Relief Act 1.0 credit $20 members 1:00 p.m. –2:00 p.m. and Related 2013 Tax Planning $25 non-membersAdelbert Moot CLE Center (Noonday Lecture Presented by Cooperation w/Accounting Profession and Taxation Committee)438 Main St. Buffalo, NY

Thursday, February 14, 2013 A New Year’s Resolution: Getting Paid 3.5 credits $65 members 1:00 p.m. –4:00 p.m. (Noonday Lecture Presented by Matrimonial and Family Law Committee) $100 non-membersAdelbert Moot CLE Center438 Main St. Buffalo, NY

Friday, February 15, 2013 Effective Arbitration & Mediation Advocacy: The Dos and Don’ts 6.0 credits *$100 BAEC/NYSBA members9:00 a.m. – 5:00 p.m. (Seminar Co-sponsored by NYSBA, Erie Institute of Law and Monroe County Bar Association) *$135 non-membersHotel @ The Lafayette *NYSBA is handling registration for this seminar. Please send registration fee, 391 Washington St. payable to NYSBA, to the attention of Beth Gould, One Elk St, Albany, NY 12202Buffalo, NY

Wednesday, February 20, 2013 Education Law Series Part 2: Learn the IDEA, FAPE, CSE, 1.0 credit $20 members 1:00 p.m. – 2:00 p.m. IEP, LRE and Other Important Acronyms in Special Education $25 non-membersAdelbert Moot CLE Center (Noonday Lecture presented by Andrew J. Freedman, Esq. & Melanie J. Beardsley, Esq.)438 Main St.Buffalo, NY

Wednesday, February 27, 2013 Education Law Series Part 3: Due Process Requirements Afforded 1.0 credit $20 members1:00 p.m. – 2:00 p.m. to Students in School Disciplinary Matters $25 non-membersAdelbert Moot CLE Center (Noonday Lecture presented by Andrew J. Freedman, Esq. & Melanie J. Beardsley, Esq.)438 Main St. Buffalo, NY

✃

Erie Institute of Law Registration FormPlease register me for the following Erie Institute of Law sponsored events:

1._______________________________________________________________________________________________

2._______________________________________________________________________________________________

3._______________________________________________________________________________________________

Name:__________________________________________________________________________________________

Firm:____________________________________________________________________________________________

Street Address:__________________________________________________________________________________

City: _______________________________________________State: ______________________Zip:_____________

Phone: _____________________________________________E-mail:______________________________________

Enclosed is my check in the amount $_______________ [ ] Check enclosed

Charge my: [ ] Visa [ ] MasterCard

Card Number:__________________________________________ Exp. Date:______________________________

Cardholder Signature:____________________________________________________________________________

Cancellation Policy: If you are unable to attend a seminar for which you have already registered, call MaryKohlbacher at 852-8687 ext.115. For a full refund, notice of your cancellation must be received before the date of the program. Registrants who are pre-registered and fail to attend will receive course materials in lieu of a refund. Mail or Fax to: Erie Institute of Law, 438 Main Street, Sixth Floor, Buffalo, New York 14202,(716) 852-8687, Fax (716) 852-7641.

Check our calendar for updates and added programming at www.eriebar.org

James W. Grable is joined by his wife, Chrisse, and son,James W. Grable, Jr., who were present for the surpriseaward ceremony, which took place during a CLE program he was presenting.

BAEC President Kathleen M. Sweet presents a plaque toJames W. Grable in recognition of hisdistinguished legal career.

Grable Recognized inSurprise Ceremony

James W. Grable was recently presented with aplaque in recognition of his distinguished legal career,which included 41 years of federal service to theDepartment of Justice, the Immigration andNaturalization Service, and the Department ofHomeland Security. Grable also frequently providedguidance and assistance to members of the immigrationand criminal bars in western New York.

February 2013 | www.eriebar.org

In today’s competitive, fast-paced legal environment, effective time management is essential. Take advantage of the Erie Institute of Law tape library and start earning your CLE credits when the time is convenient for you.

The Erie Institute of Law is now offering our most recent CLE seminars on CD, cassette tape and DVD. All of our seminars are professionally edited and are accompanied by a full set of written course materials.

Among our most recent selections:

LISTEN, LEARN & EARN!

focus attention on long-term strategic goals and

objectives. Drawing on survey data collected among

700 managing partners over the past 10 years, John

Remsen of the Remsen Group presents what managing

partners do and how they do it. A panel of seasoned

managing partners – Krista Gottlieb of Mattar,

D’Agostino & Gottlieb, Peter S. Marlette of Damon

Morey, and Hugh M. Russ, III of Hodgson Russ – also

lend their thoughts and perspectives.

The program was developed to provide practical guid-

ance on how to build a more profitable, cohesive and

sustainable law firm.

Asylee and Refugee Border DevelopmentsProduct Code 2205

Presented on November 21, 2012

1.0 CLE Credit: 1.0 Areas of Professional Practice

Available on DVD Only

$25 BAEC Members, $35 Non-Members

Presenters Michael E. Marszalkowski and Jennifer

L. Rizzo explain how to represent refugees in

immigration court. Participants will learn how to

handle an asylum case, along with special issues

affecting Northern border lawyers and developments

in Canada that affect refugees.

Everything You Always Wanted to Know About QDROs (But Were Afraid to Ask)Product Code 2203

Presented on October 18, 2012

4.0 CLE Credits: 2.0 Areas of Professional

Practice, 2.0 Skills

Available on CD Only


The Matrimonial and Family Law Committee,

chaired by Catherine Nagel, welcomes you to this

informative program that provides an overview of

Qualified Domestic Relations Orders, or QDROs.

You’ll learn the specifics of how retirement plans

work from Raymond Barr of Phillips Lytle and

Kelly Zarcone of Zarcone Associates. Other topics

covered in detail include:

• dividing IRA benefits;

• pension options and benefits for government

plans;

• retirement plan discovery;

• separation agreements; and

• post-divorce follow-up and estate planning

considerations.

Holly Baum joins Kelly Zarcone for a roundtable

discussion to conclude the program.

How to be a More Effective Law Firm LeaderProduct Code 2204

Presented on October 23, 2012

2.0 CLE credits: 2.0 Law Practice Management



This fast-paced, interactive session will examine the

important role of the managing partner and other

firm leaders to initiate change, build consensus and

Significant Bankruptcy Decisions in the Western District of New YorkProduct Code 2206

Presented on December 1, 2012

3.0 CLE credits: 3.0 Areas of Professional

Practice



This seminar features some of western New York’s

preeminent bankruptcy experts, including the

judges who decide the cases. The program covers

many important issues that have been ruled upon

by the court.

A variety of cases are presented by the panel,

followed by commentary from the judges who

decided them. This seminar is invaluable to any

attorney who practices in the areas of bankruptcy

law, secured transactions, real estate and business

planning.

To order, please send check payable to: The Erie Institute of Law • 438 Main Street, Sixth Floor • Buffalo, NY 14202

Be sure to include your name and address for mailing purposes;add $5 shipping and handling for each tape purchased. Tapesare mailed via UPS, no P.O. boxes please. To order by phoneusing your Visa or MasterCard, call Amy Bayerl at 852-8687.

For a complete listing of taped CLE programs, visit our Website at www.eriebar.org and click on the Continuing LegalEducation link or call Amy Bayerl at 852-8687.

Accreditation for viewing a CLE tape is handled on anindividual basis. Each lawyer must pay the requisite fee,fulfill the requirements for accreditation, and acquireand retain his or her own certificates of completed continuing legal education activity.

However, as a service to our members who wishto participate in group or sequential viewing ofCLE tapes, the Erie Institute of Law offers the following alternative: One member in the groupmay purchase the audio tape of their choice, paying the listed price; all other members in theviewing group who wish to receive accreditationfor viewing the tape will receive a $30 discount.One set of audiotapes will be mailed along withcourse materials for each participant.

In order to administer CLE credit, the names of all participating attorneys must be given at the time ofpurchase. No more than five people per tape allowed.

The Buddy System applies to programs costing$110 and up.

The Buddy SystemFor CLE Audio Tapes

Name: _____________________________________________________________________________________________

Each additional participant:

2. __________________________________________________ 3. _____________________________________________

4. __________________________________________________ 5. _____________________________________________

Shipping Address (No P.O. boxes please, due to UPS shipping):

Firm:_______________________________________________________________________________________________

Street Address: _____________________________________________________________________________________

City: _______________________________________________State: ______________________Zip:________________

Phone: _____________________________________________E-mail: _________________________________________

All tapes will include course materials. Please indicate the audio tape/CD/Video(s) product code of your choice: ______________________________________________

Total amount enclosed (Please add $5 per tape for shipping): $ ___________________________________________

[ ] Check enclosed Charge my: [ ] Visa [ ] MasterCard

Credit Card #:____________________________________________________________________Exp. Date:__________

Name (as it appears on card): ___________________________________________________________________________

Signature:___________________________________________________________________________________________

Mail form to: The Erie Institute of Law • 438 Main Street, Sixth Floor • Buffalo, NY 14202

Buddy System Registration Form

The best educated bar

N E W C ATA L O G AVA I L A B L E N O W !

ALL MEETINGS HELD IN THE BAR CENTER, 438 Main Street, Sixth Floor, unless otherwise noted. The Adelbert Moot CLE Center is also located at 438 Main Street,Sixth Floor. MEETINGS SUBJECT TO CHANGE, PLEASE SEE WEB SITE FOR UPDATES.

FRIDAY 1Commercial & Bankruptcy LawCommittee 12:15 p.m. – Daniel E. Sarzynski, Chair

Committee to Assist Lawyers with Depression12:30 p.m. – Daniel T. Lukasik, Chair

March Bulletin Deadline

MONDAY 4Professional Ethics Committee 12:15 p.m. – Howard B. Cohen, Chair

THURSDAY 7Negligence Committee 12:15 p.m. – Board RoomKathleen M. Reilly, Chair

FRIDAY 8Committee for the Disabled 12:15 p.m. – Adelbert Moot CLE CenterLynn M. Kwon-Dzikiy, Chair


TUESDAY 12Board of Directors8:00 a.m. – Kathleen M. Sweet,President

Real Property Law Committee12:15 p.m. – Adelbert Moot CLE CenterMichael J. Lombardo, Chair

Labor Law Committee12:15 p.m. – Heather A. Giambra, Chair

WEDNESDAY 13Intellectual Property, Computer & Entertainment Law Committee8:00 a.m. – Towne RestaurantAnne F. Downey, Chair

FRIDAY 15Young Lawyers Committee12:15 p.m. – Elizabeth M. Midgley,Chair


MONDAY 18PRESIDENTS DAYOFFICE CLOSED

TUESDAY 19Federal Practice Committee12:15 p.m. – Adelbert Moot CLE CenterTimothy W. Hoover, Chair

Matrimonial & Family Law Committee12:15 p.m. – 25 Delaware Ave., 5th FloorCatherine E. Nagel, Chair

Criminal Law Committee 12:15 p.m. – Old Surrogate CourtCourtroom1st Floor of 92 Franklin Street John R. Nuchereno, Chair

WEDNESDAY 20Erie County Bar Foundation8:00 a.m. – Roger L. Ross, President

Appellate Practice Committee12:15 p.m. – Bar Center, Brennan RoomTimothy P. Murphy, Chair

Unlawful Practice of Law Committee12:15 p.m. – Marc Shatkin, Chair

THURSDAY 21Committee on Veterans’ & Servicemembers’ Legal Issues12:15 p.m. – Bar Center, Brennan RoomJoseph D. Morath, Co-ChairDavid J. State, Co-Chair

Environmental Law Committee12:15 p.m. – Adelbert Moot CLE CenterJohn T. Kolaga, Chair

FRIDAY 22Committee to Assist Lawyers with Depression12:30 p.m. – Bar Center, Board RoomDaniel T. Lukasik, Chair

MONDAY 25Alternative Dispute ResolutionCommittee12:15 p.m. – Steven R. Sugarman, Chair

Workers’ Compensation Committee12:15 p.m. – Russell D. Hall, Chair

TUESDAY 26Board of Directors8:00 a.m. – Kathleen M. Sweet,President

Elder Law Committee12:15 p.m. – Adelbert Moot CLE CenterJillian E. Brevorka, Chair

WEDNESDAY 27Human Rights Committee12:15 p.m. – Sophie Feal, Chair

P&P in Family Court Committee 12:15 p.m. – Family Court Building

P&P in Surrogate’s Court Committee12:15 p.m. – 438 Main Street, 12th FloorDavid H. Alexander, Chair

THURSDAY 28Solo & Small Firm Practice Committee12:30 p.m. – Bar Center, Brennan RoomJennifer P. Stergion, Chair

FEBRUARY 2013

www.eriebar.org


"Frozen Gargoyle" by Glenn Edward Murray

Don’t Miss the MonthBefore April Madness!

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PRSRT STD U.S. Postage Paid Permit No. 416 … · Michael J. Ryan, Hon. Michael V. Coccoma, ......

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