bar association of erie county vol. 45 | no. 5 |january ... i take no small measure of pride in the...

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B U L L E T I Nwww.eriebar.org

President’s LetterBy Jeremiah J. McCarthy

PRSRT STDU.S. Postage

PaidBuffalo, NY

Permit No. 416

Bar Association of Erie County Vol. 45 | No. 5 | January 2006

with them on both socialand professional levelsand almost became anattorney myself. Whatwas I thinking? Theattorney can bill for aphone call but I can’t,those long hours of calls,fighting to be appropri-ately reimbursed for myservices in keeping peoplealive, being worried everytime I see a patient whether they will sue — sorry forthe digression. But the aforementioned does speak tothe heart of the problem, which is that doctors areincreasingly frustrated by long hours, poor reimburse-ment and to top it off, the threat of malpractice.

Speaking to an attorney is likened to a case of Asianbird flu!! I was listed in a suit once and had to endure90 minutes of interrogation about a patient who I hadseen just once for jock itch! Jock itch! I treated itappropriately, recommended that the patient follow upwith a complete physical, as it had been awhile, andtold him to call if he developed any problems or if thecondition was unresolved. The next time I heard hisname was when I was called to testify in his malprac-

Court Exempts Lawyers from Federal Law ALBANY – As a result of a lawsuit filed by the New

York State Bar Association against the Federal TradeCommission, a federal appeals court has ruled that thenation’s one million lawyers are not bound by the privacy and information-sharing requirements of afederal law.

The U.S. Court of Appeals for the District ofColumbia Circuit ruled that the privacy provisions ofTitle V of the Gramm-Leach-Bliley Act (“GLBA”) donot apply to lawyers, stating “…we cannot hold thatCongress has directly and plainly granted the (FederalTrade) Commission the authority to regulate practicingattorneys as the Commission attempts… TheCommission’s interpretation is not a reasonable one.”

The GLBA requires financial institutions to send outnotices to customers alerting them to the possibility of

Making Sure That The Likes of Me Won’tBe Elected Again

As we round the far corner of my term, head-ing into the home stretch of my race towardoblivion, I take no small measure of pride in thefact that no indictments have yet beenannounced. But some of you apparently feel thatyou’re entitled to more than that from YourPresident.

For the benefit of those malcontents, I suggestthat we consider changing the way in which weconduct our elections. This is not a new idea.Last year, President Jim Shaw appointed a taskforce, chaired by Shari Jo Reich, to evaluate ourmethod of elections and recommend changes, ifappropriate. I know that some feel strongly thatwe shouldn’t tinker with our long-standing tra-dition of contested elections, which sets us apartfrom most other bar associations.

I agree that there’s much to be said for cam-paigning - it gave me the opportunity to meetmany of you for the first time, including severalof the fine attorneys at my own firm, PhillipsLytle LLP (I didn’t realize we had so manyfloors). On the other hand, the current systemoften discourages those of us who may not beparticularly well known (due, perhaps, to prac-tice area or location) from seeking election,believing that they have little chance of success.This is unfortunate, as many of these peoplemay have much to offer our Association.

For this reason, the task force recommendedlast year that our by-laws be amended to pro-vide that a single slate of directors be presentedto our membership by the nominating commit-tee, whereas the election of officers would con-tinue to be contested. There is considerable sen-timent that if this is to occur, then the composi-tion of the nominating committee (currently sixmembers plus the President ex officio) should beexpanded and diversified.

disclosure of their personal financial information andproviding methods for customers to “opt out” of theinstitution’s disclosure practices. When the FTC soughtto apply this provision to attorneys engaged in suchpractice areas as tax planning and transactions, estateplanning, real estate closings and personal bankruptcy,the New York State Bar Association challenged thatpolicy successfully in court.

Judge Reggie B. Walton of the U.S. District Court forthe District of Columbia granted summary judgment inMay 2004. Failure to comply with the GLBA provisionscan result in civil penalties of up to $10,000 per violation.

“We are gratified by this decision,” said NYSBAPresident A. Vincent Buzard, who practices from theRochester office of Harris Beach PLLC. “Our rules ofethics already provide more protection for our clientsthan the GLBA would by imposing additional regula-

Why Can’t We Be Friends?

continued on page 4

Open Forum to Address Bar Governance IssuesTuesday, January 31, 3:30 p.m. | Bar Center, 438 Main Street, Sixth Floor

See page 22 for further details.

New York State Bar Wins Lawsuit Over FTCEnforcement of Gramm-Leach-Bliley Privacy Act

By Richard P. Vienne Jr., D.O., PresidentMedical Society of the County of Erie

Editor’s Note: The President’s Letter from lastmonth’s Bulletin was recently published in theMedical Society’s membership journal. Likewise,President McCarthy invited the President of theMedical Society, Dr. Richard P. Vienne, Jr., to sharehis thoughts with our members. Anyone whothinks attorneys and physicians are humor-impaired has obviously never spent any time witheither one of these guys!

I must say that last summer when JeremiahMcCarthy invited me to have breakfast with him, Ihesitated for a second. He’s a LAWYER - THE DARKSIDE, THEY HAVE LARGE BILLBOARDS WITHTHEIR PICTURES ON THEM!! Of course, being arational individual, I quickly came to my senses, glad-ly accepted the invitation and had a most productiveconversation over how attorneys and physicians canbreak through barriers and misconceptions that eachhave about the other. Given these misconceptions, Iwas asked to present my opinion on why physicianscringe when they are approached by attorneys.

First off, I have attorneys as both friends andpatients and have had the great pleasure of interacting

Dr. Richard P. Vienne Jr.

continued on page 4

“For last year’s words belong to last year’s language. And next year’s words await another voice.

And to make an end is to make a beginning.”~ T.S. Eliot

On behalf of the Board of Directors and staff, our very best wishes for a year filled with fresh promise, new beginnings and a whole new world of possibilities.

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BOARD OF DIRECTORSVincent E. Doyle III, Michelle Parker, Katherine B. Roach, Steven M. Zweig,Daniel J. Furlong, Christopher S. Mattingly, Bonnie T. O’Connor, DeanneM. Tripi, Leonard Berkowitz, John V. Elmore, Patrick J. Maloney, CandaceK. Vogel.

LIFE MEMBERSMark A. Adrian, Carol J. Alaimo, Brian D. Baird, Lynn A. Clarke, William J.Cunningham, Victor J. Gagliardi, Sharon Stern Gerstman, Jean E. Gittler,Donald J. Holzman, Lauren D. Rachlin, Jeffrey A. Spencer, James M.Wadsworth.

CONTRIBUTING MEMBERSJoan Casilio Adams, Peter S. Aiello, Michael A. Amico, Grace Marie Ange,Richard J. Attea, Rosalie M. Stoll Bailey, Stephen E. Barnes, Edwin T. Bean,Jr., Thomas R. Beecher, Jr., Ronald P. Bennett, Leonard Berkowitz, Ann B.Bermingham, David W. Beyer, Richard S. Binko, Richard N. Blewett,Michael M. Blotnik, Frank J. Boccio, Harold J. Brand, Jr., Peter J. Brevorka,Phillip Brothman, James E. Brown, T. Alan Brown, Joel Brownstein, DavidBuch, Sarah Hill Buck, James P. Burgio, Michael C. Burwick.

John F. Canale, James N. Carlo, John J. Carney, Peter B. Carr, Alan S. Carrel,Francis X. Carroll, Thomas R. Cassano, Stephen E. Cavanaugh, FerdinandJ. Ciccarelli, David M. Coffey, John F. Collins, Joseph A. Collins, William B.Collins, Anthony J. Colucci, Jr., Robert B. Conklin, Robert N. Convissar,Edward C. Cosgrove, Peter L. Costa, John W. Creahan, Douglas S. Cream,Hon. John T. Curtin, Steven P. Curvin, Roger T. Davison, Dennis J. Dee, JohnM. Dempsey, Richard F. DiGiacomo, Anne C. DiMatteo, Robert G. DiVita,David A. Doll, Hon. Vincent E. Doyle, Dean M. Drew, Robert B. Druar, Hon.Timothy J. Drury, Marvin T. Dubin, Robert E. Dwyer, Donald B. Eppers, LeoJ. Fallon, Victor N. Farley, Mark G. Farrell, Gabriel J. Ferber, Michael E.Ferdman, Robert P. Fine, Peter J. Fiorella, Jr., Brian P. Fitzgerald, Michael J.Fitzgerald, Thomas P. Flaherty, Richard E. Forrestel, Sherwood E. Freed,Jeffrey M. Freedman, Maryann Saccomando Freedman, Robert Friedman,John T. Frizzell, John J. Fromen.

Thomas J. Gaffney, William H. Gardner, Eugene M. Gaughan, Stuart A.Gellman, Robert M. Goldstein, Richard H. Gordon, Wayne R. Gradl,Josephine A. Greco, Hon. Samuel L. Green, John C. Grennell, Richard F.Griffin, Lowell Grosse, John J. Gruber, Donald R. Guerra, Mark W.Hamberger, F. Bernard Hamsher, Barbara Ellen Handschu, Thomas J.Hanifin, Jr., Charles F. Harrington, James P. Harrington, John E. Haslinger,Mary Louise Hayden, Herbert J. Heimerl, Jr., William R. Hites, Susan S.Hogan, Edwin P. Hunter, Melvyn L. Hurwitz, Matthew J. Jasen, DavidGerald Jay, Norman E. Joslin, James B. Kane, Jr., Judith D. Katzenelson,Daniel L. Kaye, Christopher C. Kerr, James J. Kirisits, William J. Kita, WilliamR. Kneeland, Wells E. Knibloe, Christian G. Koelbl III, Dan D. Kohane,Jeffrey S. Krajewski, Ellen M. Krebs, Karl W. Kristoff, Thomas E. Krug.

Stephen R. Lamantia, Hon. John P. Lane, William E. Lawson, Richard J.Lehner, William E. Leising, Martin G. Linihan, Jr., John N. Lipsitz, RichardLipsitz, Arthur A. Lorenzo, Harry E. Lorenzo, William J. Love, Jr., Leo M.Lynett, Jr.

James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, W. BarryMallon, Arthur J. Maloney, Dale J. Manchester, Richard C. Marcus, JohnMarkarian, Mary Dee Martoche, Hon. Salvatore R. Martoche, Maureen A.McCready, Thomas I. McElvein, Jr., James T. McFarland, John M. McKee,Diane J. McMahon, Hon. John A. Michalek, Raymond T. Miles III, Hon.Joseph D. Mintz, Albert J. Mogavero, Richard E. Moot, Robert B. Moriarty,Peter J. Murrett, Jr., Arthur F. Musarra, Joseph M. Nasca, Edgar C.NeMoyer, James M. Nesper, Paul T. Nesper, Stephen M. Newman, John P.Noble, Anthony M. Nosek, James J. O’Brien, Thomas E. O’Brien, Robert L.O’Connell, Denise E. O’Donnell, Hon. John F. O’Donnell, Timothy M.O’Mara, Francis J. Offermann, Jr., William J. Ostrowski.

Carl P. Paladino, Thomas Allan Palmer, Frank R. Papa, Thomas C. Pares,James A. Partacz, Hon. Erin M. Peradotto, Robert H. Perk, Jeffrey A. Perla,Hon. Eugene F. Pigott, Jr., Joel M. Poch, Francis B. Pritchard, Samuel G.Puleo, Theodore J. Pyrak, William T. Quigley, Russell T. Quinlan, Anthony J.Renaldo, James P. Renda, William S. Reynolds, Daniel T. Roach, Mary K.Roach, Earl T. Robinson III, Jay N. Rosenthal, Marcella Rosinski, Hon.Mario J. Rossetti, Victor A. Rossetti, Richard P. Rosso, Arthur J. Rumizen,Ross L. Runfola, Louis J. Russo, Thomas Santa Lucia, Edward J.Schwendler, Jr., Richard B. Scott, Eugene M. Setel, David A. Shapiro,Donald P. Sheldon, Richard J. Sherwood, Irving M. Shuman, David AlanSiegel, Herbert M. Siegel, Louis H. Siegel, Myron M. Siegel, Robert G.Sillars, Richard Charles Slisz, Charlotte Smallwood-Cook, Oscar Smukler,Isadore Snitzer, Robert B. Sommerstein, Christopher A. Spence, GregoryStamm, Donald S. Stefanski, Robert S. Stephenson, E. W. Dann Stevens,David G. Stiller, Milton J. Strebel, David L. Sweet.

Dominic J. Terranova, Phillip A. Thielman, Gordon D. Tresch, Daniel G.Tronolone, Thomas V. Troy, Frederick D. Turner, Dimitri J. Tzetzo, Richard P.Valentine, Charles Van Volkenberg, Peter A. Vinolus, Joseph C. Vispi,Coleman Volgenau, Dale M. Volker, James R. Walsh, John B. Walsh,Matthew X. Wagner, Jr., Neil Weinberg, Richard J. Wierzbicki, Peter C.Wiltse, Douglas L. Winokur, Wayne D. Wisbaum, Raymond V. Wylegala,Richard D. Yellen, George M. Zimmermann, H.A. Terri Zionts.

EDITORIAL BOARDEditor ............................................Bonnie D. KamLaw Editor ....................................Jeffrey A. SpencerTax Notes Editor ..........................Gary D. BorekArt Editor ....................................Hon. David J. MahoneyEditorial Assistant ........................Susan L. Kohlbacher

OFFICERS AND DIRECTORS | 2005-2006President ......................................Jeremiah J. McCarthyVice President ..............................Stephen B. LamantiaTreasurer........................................Thomas J. Sciolino Deputy Treasurer ..........................Robert N. ConvissarExecutive Director........................Katherine Strong Bifaro

Vol. 45 | No. 5 | January 2006

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]

Letters to the editor and short articles of general interest to our readers are always welcome. All materials submitted for publication in the Bulletinare 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.

Reserve your advertising space for the February 2006 Bulletin TODAY!Call Susan Kohlbacher at Bar Headquarters for more information. 852-8687

D E A D L I N E • • • February 2006 Bulletin D E A D L I N E • • •

The next deadline for ALL Bulletin contributors and advertisers is Friday, January 6, 2006.

Dear Editor:

I am writing to commend Jennifer Stergion for herfrank discussion of attorney representation in “ADefense of the Non-Lawyer Enterprise.”

Whether attorneys want to admit it or not, the realestate arena has steadily moved toward a highly tech-nical and bureaucratic process, largely free of any realneed for advocacy. We are now shackled to the papergame (which requires more skilled legal and quasi-legal technicians) instead of debating the relative mer-its of the great Norman estates in land.

Then too, the marketplace itself, for good or ill, nolonger supports sufficient attorney compensation toremain the sole providers of representation in realestate matters. In years past, attorneys routinelycharged one percent of the purchase price for their ser-vices (think about that the next time you do a closingfor a $500,000 home, but I digress). And that was in anera where real property transactions rarely involvedmore paperwork than the deed, note and mortgage.

But now, with lender neuroses driving the loanprocess to new volumes of paperwork, competition

from both attorneys and non-attorneys flatteningattorney compensation generally, and an increase oftime-intensiveness in real estate transactions, it’ssenseless for attorneys to continue demanding exclusiverights to diminishing compensation.

Let’s take Stergion’s position one natural step fur-ther: Concede those parts of the real estate process tothe providers who are far more cost-efficient thanattorneys. Let the realtors take back the contract nego-tiation and repair issues. Let the title companies han-dle the mortgage payoffs and scheduling. Let themboth earn their commissions and premiums (whichtend to dwarf legal fees in real property transactions),and allow attorneys to return to resolution of title issuesand other aspects of client advocacy.

The trend toward non-attorney participation in realestate transactions frees attorneys to return to thepractice of law rather than the practice of paperwork.It allows us to devote our time, which is valuable, tomatters of sufficient legal importance, rather than sim-ply practical importance, that merit our full profes-sional attention and skill.

— Wesley M. Brown

Letter to the Editor:

Commending “A Defense of the Non-Lawyer Enterprise”

On page 17 of our December issue, an articleseeking nominations for Law Day awards omit-ted the name of Captain Christopher Glascott,who was one of the 2005 recipients of the LibertyBell Award.

On page 32 of the recently published History

of the Bar Association of Erie County, the name ofAlice Marion Montfort, Esq. is misspelled as“Mountford.” Additional information about Ms.Montfort and her distinguished career is availableby contacting Robert Schaus, Esq., at 517Serendipity Drive at Pelican Bay, Naples, FL 34108.

Corrections & Omissions

January 2006.pdf 12/27/05 10:22 AM

It’s great to belong to

something this good.

January 2006 | www.eriebar.orgPAGE 3

bench and bar in the news

This “members only” column is publishedeach month to share news and informationamong BAEC members.

All submissions should be limited to 100 words per attorney and will be edited for space and otherconsiderations. Please e-mail your announcementto [email protected]

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 Ginger Maiman at 481-3486. Allservices are individualized and completely confidential.

The Erie County Bar Foundation exists to provide a helping hand to lawyers in need.

REMEMBER… you can always count on the “company of friends.”

The Company of

Sujata Yalamanchili, a partnerin Hodgson Russ LLP’s Real Estate& Finance Practice Group, wasrecently named to Buffalo BusinessFirst’s 14th annual “40 Under Forty”list for 2005. The honorees are cho-sen for their outstanding achieve-ments and commitment to the west-

ern New York community. Yalamanchili’s practiceincludes multi-state leasing, purchase/sale, and financ-ing matters. She serves as vice chair of the AmherstYouth Board, is a member of the board of directors ofthe University at Buffalo School of ManagementAlumni Association, and serves as vice chair of theboard’s program committee.

Thomas P. Feron, an attorneywith Jeffrey Freedman Attorneys,spoke at a recent CLE seminar enti-tled “Practice Under the NewBankruptcy Law.” He discussedchanges to the bankruptcy codeaffecting Chapter 13 consumer prac-tice related to the Bankruptcy Abuse

Prevention and Consumer Protection Act of 2005. Theprogram was sponsored by the Erie Institute of Lawand was attended by over 100 attorneys. Feron hasbeen practicing law for 15 years in the areas of bank-ruptcy and Social Security Disability. He is a graduateof Canisius College and The University of DetroitSchool of Law. A resident of Getzville, Feron works inthe firm’s Cheektowaga and Hamburg offices.

Mark E. Brand of Phillips LytleLLP, recently spoke at a WalshInsurance Group seminar, addressingMedicare Part D and related healthand welfare issues. He also recentlyaddressed The Financial PlanningAssociation of Upstate New York onEmployer Sponsored Retirement

Plans. Brand’s practice focuses on employee benefitslaw and related retirement and estate planning. Healso handles regulatory and compliance proceedingsinvolving employee benefits and ERISA litigation mat-ters. A member of the American, New York State, Erieand Pennsylvania Bar Associations, Brand received his

JD from University at Buffalo School of Law, and hisMBA and BS from the University at Buffalo. A gradu-ate of Leadership Buffalo, he serves on the board ofdirectors for Summit Educational Resources, Inc., St.Joseph’s Collegiate Institute, the United Way of Buffaloand Erie County and the North Buffalo Bison HockeyAssociation.

Peter J. Martin, senior partner atBouvier Partnership, LLP, recentlyspoke at the Hyatt Regency Buffalo on“Commercial Lending Requirementsand Loan Documentation in New YorkState.” The presentation was attend-ed by individuals in the legal andbanking professions.

Stephen L. Yonaty, a seniorassociate in Hodgson Russ LLP’sBankruptcy, Restructuring &Commercial Litigation PracticeGroup and co-chair of the BarAssociation of Erie County’sAdmission to the Bar Committee,was recently elected to the board of

directors of the Foundation for Jewish Philanthropies, anonprofit, public charity established in 1911 to “pro-vide for the quality and continuity of Jewish life inwestern New York and around the world through pri-vate philanthropy.” Yonaty concentrates his legal prac-tice in the areas of creditors’ rights and commercial lit-igation and represents clients in a wide range of gener-al business and corporate matters.

Amanda Fantauzzo McCormickhas joined Harter, Secrest & EmeryLLP’s Buffalo office as an associatein the Litigation Group. McCormickwill focus her practice on civil litiga-tion, including contractual disputes,Article 78 proceedings, commercialreal estate zoning litigation and gen-

eral negligence defense. Prior to joining HS&E,McCormick served as a federal law clerk to theHonorable Jonathan R. Steinberg at the U.S. Court ofAppeals for Veterans Claims in Washington, D.C. Sheearned her undergraduate degree from Hobart &William Smith Colleges and her JD, cum laude, from theState University of New York at Buffalo School of Law.

Sharon M. Porcellio has beenelected to The Fellows of theAmerican Foundation in recognitionof her “legal and charitable leader-ship, dedication to the law and pas-sion for philanthropic endeavors.”Porcellio is a partner with LippesMathias Wexler Friedman LLP and is

a graduate of Northwestern University School of Lawand the University of Rochester.

A confidential channel

of communication for

members of the bench

and bar struggling

with substance abuse.

Yalamanchili

continued on page 20

Feron

Brand

Martin

Yonaty

McCormick

Porcellio

Corporate Counsel Group Names Leadership for 05-06

The Niagara Frontier Corporate CounselAssociation, Inc., an association of in-house attor-neys in western New York, recently elected Mark J.Stuhlmiller to the position of President for 2005-2006. Stuhlmiller is Assistant General Counsel forComputer Task Group, Inc. Other officers electedwere: Vice President, Russell J. Matuszak, LegalCounsel at HealthNow New York, Inc.; Secretary,Margaret P. Gryko, Assistant General Counsel atDelaware North Companies, Inc.; and Treasurer,James R. Peterson, General Counsel and AssistantSecretary at National Fuel Gas Company.

Newly elected board members include: Karen L.Mathews, Deputy General Counsel of Birdair, Inc.;Sarah J. Mugel, General Manager of HumanResources at National Fuel Gas DistributionCorporation; Ernest J. Norman, Director, Legal &Regulatory Compliance and Assistant Secretary ofWilson Greatbatch Technologies, Inc.; Carmen L.Snell, Senior Legal Counsel at HealthNow New York,Inc.; and Diane Zarlock, Legal Counsel at GEConsumer Finance. Continuing members of the boardof directors are: James L. Duke, Attorney & Managerof Quality Assurance at Account Solutions Group;Randy C. Fahs, Director of Contracts, AmherstSystems, Inc., a subsidiary of Northrop Grumman;William A. Lundquist, Senior Counsel at HodgsonRuss, LLP; Michael B. Risman, Corporate Counselfor the City of Buffalo; and Elizabeth Tommaney,Corporate Counsel for Osmose, Inc. [B]

Lawyers Helping

Lawyers

Call 852-1777 to learn more.

January 2006.pdf 12/27/05 10:22 AM

And Now a Word from the DocsAs mentioned in last month’s Bulletin, I wrote an arti-

cle which was published in the fall issue of the Bulletinof the Medical Society of the County of Erie, entitled“WE’RE NOT ALL B*STARDS.” Dr. Richard Vienne,President of the Medical Society, promised a response,which I feared would be entitled “OH, YES YOU ARE.”Instead, he asks “WHY CAN’T WE BE FRIENDS?” Histhought-provoking comments are well worth readingand appear on the front page. I invite your suggestionsfor continuing this dialogue in a productive direction.

Who is this Guy?Recently I made my annual pilgrimage to visit my

dear mother. I really enjoy our time together, and wishwe could visit more often. But unfortunately, it’s ahalf-hour drive. Besides, she tells me that once a yearin my presence is quite enough for her.

Anyway, as I was leaving, I noticed a pile of books inher garage. One of them piqued my interest: a collec-tion of short stories from The New Yorker magazine. AsI was paging through the book later that evening athome, several photographs of a young soldier (reprint-ed at page 9) fell out. I was sure I had seen that facebefore, but couldn’t recall where. Finally it hit me. Icalled my mother and asked her where she got thebook, and she told me that the soldier’s sister-in-lawhad given it to her. Guess who? (Answer at page 22 ).

Speaking of Photos…It’s been almost ten years since our last pictorial

directory appeared on the scene. Many of you havesuggested that it’s time for an update, and since I nolonger look like “Doogie Houser, Boy Lawyer,” I aminclined to agree. Photos will be taken during thespring, and the directory should be ready for distribu-tion by the end of May. Stay tuned for further details!

Happy Holidays!!! No, Wait…You’d think that after six months in office, I’d finally

get the hang of these Bar Bulletin deadlines. Only nowdoes it occur to me that if I wanted to extend holidaygreetings, I should have done it a month ago, in orderto make the December issue. For me to do so at thislate date would be pointless, as I’m sure that by nowyou’ve all moved on with your lives. I apologize, andassure you that this will not happen again.

So Happy Fourth of July! (Clip and save). [B]

PAGE 4www.eriebar.org | January 2006

Whether or not we move in this direction will ulti-mately be up to you, since any change to our by-lawsrequires approval by our membership. In order tosolicit your input before the board makes any formalrecommendations, we are scheduling a meeting forJanuary 31 at 3:30 pm in the Bar Center. If you can-not attend, feel free to contact me with your thoughts.

Hello and GoodbyeCongrats and best wishes to the three new faces on

our Supreme Court bench: Hon. Diane Devlin, Hon.Deborah Haendiges, and Hon. Gerald Whalen, whotells me that the two years he spent as my neighbor onKamper Street (before the McCarthys were evictedfrom South Buffalo) were the “best years of his life.”Judge, with all due respect, you need to get out more.

Congratulations as well to Hon. Sheila DiTullio,beginning her second term as Erie County CourtJudge, Hon. E. Jeanette Ogden, beginning her secondterm as Buffalo City Court Judge, and newly appoint-ed Court of Claims Judge Jeremiah J. Moriarty III,although one must certainly ask what kind of parentswould give their son a name like that.

Meanwhile, three of our veteran jurists are riding offinto the sunset: Hon. Peter Notaro, Hon. Mario Rossetti,and Hon. Ronald Tills. We wish them well, and thankthem for their many years of distinguished service.

Judicial EvaluationsAs you know, our by-laws require that the

Association’s membership be solicited periodically forwritten performance evaluations of sitting SupremeCourt Justices and matrimonial referees. If you haven’treceived it already, you will shortly be receiving aJudicial Evaluation Questionnaire, seeking your commentsas to their legal ability, court management ability, anddemeanor. Although the questionnaire is entirely confiden-tial, let me state for the record that I think any judge whomay happen to be reading this is doing a fine, fine job.

But seriously, folks - your constructive suggestionsare very important.

tice case. I was shocked! I reviewed the medical recordand kept asking, why me? I did nothing wrong butfound it mandatory to cancel patients on the day of thedeposition. It is very difficult to call patients and canceltheir appointments, especially when they need care orwant to talk to me about their various medical afflictions,all because I had seen this patient, once, for jock itch.

The issue: the patient was subsequently diagnosedwith thyroid cancer and he was upset because, accord-ing to him, “his previous physician had not followed upon his symptoms.” How did this become my issue, Iasked my attorney? He just came in for the evaluationof his symptoms of jock itch. He did not discuss anyother symptoms. My attorney advised me that I wouldprobably be dropped from the case but I had to meetwith his attorney to be sure that I was not at fault. Sooff I went, feeling violated and frustrated with an atti-tude that this was a waste of my time, taking me awayfrom those who needed me. His attorney kept grindingme. Where did you go to school? What were yourgrades? Why was your name penciled in the corner ofan ER sheet? On and on, the questions came.

I answered them, without attitude, but remainedfrustrated, as I could not understand who would evercall me into question. It was only after the fact that Iwas even more upset. The patient admitted to hisattorney that I was not at fault, that he had never dis-cussed any of the symptoms he was suffering from thatled to his diagnosis of thyroid cancer. AARGH! All thatprecious time wasted. Patients whose appointmentshad been cancelled had to be squeezed back in to makeup for the lost day.

The system is broken. We, both attorneys and physi-cians, need to come together and mend the medicaltort system. The first step, in my opinion, is to get backto basic definitions and define malpractice as negligentconduct that causes damage, not bad outcomes. In theMcDonald’s coffee case, negligence is having an indi-vidual hold a coffee cup as you pour the hot coffee intothe cup and onto the person causing burns and dam-age to the skin; negligence is not serving the coffee ina cup, with a lid, to an individual who drives off andspills the hot coffee onto himself causing burns andskin damage because he chose to drive while holdingthat hot cup of coffee in his lap. I don’t want to contin-ue on this as you all get the point. We know that mal-practice occurs and those physicians who have beennegligent in their duties need to pay for those dam-ages. What we are seeing, not only in Erie County butacross New York state, is that many physicians whohave never faced liability issues are either limiting theirpractice, retiring, or moving to those states which haveprovided liability reforms.

In Erie County, we face a looming crisis, as the aver-age age of our physicians is in the mid-50s, mostphysicians retire at 60, and the pipeline of new physi-cians is not enough to meet growing demand. Collegestudents are hearing more and more about malprac-tice, decreasing reimbursements and the long hours,and are looking at other careers. Medical students areavoiding specialties like OB/GYN, Neurosurgery, andGeneral Surgery due to high malpractice rates. Whowill take care of us if the trend continues?

It is for this reason we need to become friends andtogether build a legal system that can recognize the difference between malpractice and a bad outcome,discourage frivolous suits and build back trust. I feelthat there are enough intelligent people on both sideswho can accomplish this goal.

Jerry, thank you for taking the first step in getting us together. I am a friend and am willing to work with you. [B]

Why Can’t We Be Friends?continued from page 1

President’s Letter continued from page 1

tions on attorneys. Requiring lawyers to send notices toclients outlining their privacy or information policies wasunnecessary and illogical – and burdensome and confusing to clients. The FTC overstepped its author-ity in a way that has no rational purpose and the appellatecourt was correct in rejecting and overturning this policy.”

Buzard expressed his appreciation to Steven C. Krane of theNew York firm of Proskauer Rose LLP, a past president of thestate bar in whose term the suit was initiated. The Proskauerfirm represented the Association on a pro bono basis as thecase was argued in the district and appellate courts.

“The ruling brings clarity and finality to an issue ofsignificant importance to the legal community,” Kranesaid. “Lawyers and law firms unnecessarily spent mil-lions of dollars in staff time and administrative costs tosend out these notices.”

The 71,000-member New York State Bar Associationis the official statewide organization of lawyers in NewYork and the largest voluntary state bar association in the nation. [B]

NYSBA Wins Lawsuit continued from page 1

January 2006.pdf 12/27/05 10:22 AM


citations

By Jeff Spencer

A LAPSE GASPThe Court of Appeals has recently held that a

bequest to an adopted-out child will lapse if the adopt-ed-out child dies prior to the testator. (In the Mtr. OfMurphy, __NY3rd__, 10/27/05)

EXTRATERRITORIAL TRIUMPHNew York was held to have rightly exercised territo-

rial jurisdiction over drug possession offenses eventhough the defendant and the drugs were in California.(Peo. v. Carvajal, __NY3rd__, 11/22/05)

OPERA TUMBLE TOSSEDThe Court of Appeals has upheld the dismissal of a

claim against the defendant opera house by an operapatron who was accidentally knocked into a balconyrail by another patron. (Gilson et al., v. MetropolitanOpera et al., __NY3rd__, 11/22/05)

TRESPASS TRANSFORMATIONThe Court of Appeals has recently held that a viola-

tion of an Order of Protection can form a basis for theelevation of a misdemeanor trespass charge into afelony burglary charge. (Peo. v. Lewis,__NY3rd__,11/21/05)

NEW CLAIMS CAN’T “PIGGY BACK” ON OLDA notice of claim against a municipality will not

cover claims for damages which accrue after the startof the action. (Varsity Transit, Inc. et al., v. Bd. of Ed.,__NY3rd__, 11/17/05)

“CLAIM-OF-RIGHT” DEFENSE CANNEDFOR RIGHTEOUS ROBBER

In an opinion by Chief Judge Kaye, the Court ofAppeals has held that a defendant in a prosecution forrobbery of a specific chattel which he in good faithbelieved to be his is not entitled to the “claim-of-right”jury instruction. (Peo. v. Green, __NY3rd__, 11/21/05)

PONDERING CONDITION PRECEDENTSDefendants’ obligation to follow through on a busi-

ness loan was negated by failure to satisfy a conditionprecedent (satisfaction of tax liabilities). The case alsohas a good discussion of fraud, negligent misrepresen-tation and civil conspiracy. (Transit Management,LLC, v. Watson Industries, Inc. et al., __AD2nd__, 4th

Dept., 11/10/05, #940)

INTERPRETATION ELABORATIONConcise review of the guidelines for contract inter-

pretation can be found in a recent decision by ourFourth Department. (Abramo v. HealthNow New York,Inc., __AD2nd__, 11/10/05, #964) (See also Bessettev. Niles, __AD2nd__, 4th Dept., 11/10/05, #1065)

BLOOD NOT THICKER THAN CIRCUMSTANCES

Our Fourth Department has recently held that ahearing should be held to determine if extraordinarycircumstances require the granting of custody torespondent, who was not related to the child, but withwhom the child had been left for five years. (Mtr. ofRuggieri v. Bryn, __AD2nd__, 11/10/05, #1017) (Seealso Mtr. of Jenny-Beth L., __AD2nd__, 4th Dept.,11/10/05, #1258)

A SNOW TUBE TORTPlaintiff was allegedly injured while snow tubing at a

municipal park. Our Fourth Department held that themunicipality was not necessarily immune from suitunder sec. 9-103 of the G.O.L. (Rashford v. City ofUtica, __AD2nd__, 11/10/05, #1106). However, seeCramer v. County of Erie, __AD2nd__, 4th Dept.,11/10/05, #1402, affirming Justice Donna Siwek’sdetermination dismissing a suit after plaintiff fell into aravine on County property.

RELEASE REVIEWWhether plaintiff knew he could experience perma-

nent loss of sight when he signed a release raised a factual issue which precluded summary judgment.(O’Neal v. Life Science Laboratories, __AD2nd__, 4th

Dept., 11/10/05, #1190)

LOOKING AT “EXTREME EMOTIONAL DISTURBANCE”

Our Fourth Department has upheld a murder convic-tion rendered by Justice Mario Rossetti noting that thedefendant had failed to establish that his conduct was theresult of “extreme emotional disturbance,” and that areduction to manslaughter was therefore not warranted.(Peo. v. Butera, __AD2nd__, 11/10/05, #1255)

LOOKING AT “EXTREME HARDSHIP” Defendant’s cross-motion for reduction in his sub-

stantial maintenance obligation under an agreementwhich was “incorporated but not merged” in theJudgment of Divorce would have been denied but forthe Fourth Department’s finding of “extreme hard-ship.” (Marrano v. Marrano, __AD2nd__, 11/10/05,#1323, affirming an order of Justice Frank A. Sedita)

continued on page 6

January 2006.pdf 12/27/05 10:22 AM


WHEN “CIRCUMSTANTIAL” IS “SUBSTANTIAL”

A new trial was granted by our Fourth Departmentdue to the failure to include a circumstantial evidencecharge in this controlled substance case. There is aninteresting discussion of the “open view” presumptionof possession. (Peo. v. Edwards, __AD2nd__, 11/10/05,#1395) (See also Peo. v. Douglas, __AD2nd__, 4th

Dept., 11/10/05, #1419)

CONSTRUCTION QUANTUM MERUIT QUANDARY

In Paul F. Vitale, Inc. v. Parker’s Grille, Inc. AndMitchell, (__AD2nd__, 4th Dept., 11/10/05, #1409)the Court reviews the sufficiency of a quantum meruitclaim for construction costs and services where therehad been no contractual “meeting of the minds.” TheCourt upheld the Trial Court’s award.

FLOOD CLAIMS WASHED OUTOur Fourth Department has affirmed the dismissal

of flood damage claims against the defendant munici-pality. (Artessa et al. v. City of Utica, __AD2nd__,11/10/05, #1410)

UNDERWRITER EXPOSUREAn underwriter or issuer of securities can by state-

ments and acts interpreted in light of industry customand practice assume a duty which may be imposed ona secured party representative or indentured trustee.(AG Capital Funding Partners, L.P., v. State StreetBank and Trust Co., __NY3rd__, 11/17/05) [B]

Citations continued from page 5

western district case notes

By Paul K. Stecker and Robert E. Glanville

ABSTENTIONIn Charter One Auto Finance Corp. v. National

Vehicle Imports, LLC (04-CV-6099 CJS, 09/16/04), theplaintiff, a New York-based financing company, sued aNew Jersey car dealer for fraud in the sale of commer-cial paper allegedly representing car loans to defendant’s customers. Shortly after this action wascommenced, multiple suits were brought by defen-dant’s customers in New Jersey state court. Plaintiffwas named in some of those suits and asserted crossand third-party claims against defendant for the sameclaims as in this action. Applying the criteria inColorado River Water Conserv. Dist. v. U.S., 424 U.S.800, 817 (1976), and noting that abstention “is anextraordinary and narrow exception” to the “virtuallyunflagging” duty of federal courts to exercise theirjurisdiction, the Magistrate Judge recommended denialof defendant’s motion requesting that the Courtabstain from exercising jurisdiction based on the pro-ceedings in New Jersey state court.

ATTORNEYS’ FEESIn Panek v. Donald J. Braasch Construction, Inc.

(03-CV-644E(Sc), 11/25/05), an ERISA case in whichplaintiffs recovered accrued interest on delinquentpension contributions, the Court awarded attorneys’fees based on rates of $175 per hour for attorneys with15 and 20 years’ experience in ERISA matters and$110 per hour for a first-year associate. Althoughplaintiffs failed to submit evidence justifying theserates, the Court found the rates consistent with therates based on which fees had been awarded in othercases. But the Court reduced the hours for which feeswere awarded based on inconsistencies among the var-ious attorneys’ time entries and because the attorneyssought fees for “administrative tasks that do notrequire an attorney’s expertise,” including filing papersin the clerk’s office and calendaring.

BANKRUPTCYIn Marlin v. United States Trustee (05-CV-6137-CJS,

9/29/05) the Court, applying the same standard thatgoverns interlocutory appeals from district courts,denied the debtor’s motion to certify for permissiveappeal the Bankruptcy Court’s order holding that theone-year statute of limitations to challenge the debtor’sdischarge based on alleged fraud runs from the datethe debtor is granted a discharge, rather than from theexpiration of the bar date.

INSURANCEIn Frontier-Kemper Constructors, Inc. v. American

Rock Salt Company, LLC (01-CV-6217 CJS (MWP),10/18/05), the Court granted summary judgment onliability to the insured-owner, ARSCO, on its claimagainst its insurers for liquidated damages because ofdelay in the construction of a salt mine for ARSCO. Theinsurer had issued two binders referring to ARSCO asan insured on a $7 million liquidated damages policy,but the policy as issued only provided coverage in theamount of $3 million. The Court noted that, underNew York law, an insurance binder is a temporary pol-icy of insurance that terminates when a formal policyis either issued or refused. As a general rule, extrinsicevidence may not be received to modify the terms ofthe policy, but parol evidence may be received to showfraud, illegality, want of consideration, delivery uponan unperformed condition, and the like. The Courtfound that, although there was evidence showing thatthe first binder was a “mock binder” that both partiesunderstood was not enforceable, the second binder wasintended to reflect the coverage that was bound; andthat the insurers had, at best, identified a unilateralmistake on their part that was not a basis for rescissionor reformation.

LABOR LAWIn Mendez v. Radec Corp. (03-CV-6342L, 11/22/05),

the Court granted plaintiffs partial summary judgmenton claims under the Fair Labor Standards Act(“FLSA”), 29 U.S.C. §201 et seq., for unpaid compen-sation for travel time to job sites involving overnightstays, and denied summary judgment as to otherclaims. Following extended discussion of the class cer-tification requirements under FRCP 23, the Court cer-tified plaintiffs’ class action claims under the New YorkLabor Law and denied defendants’ motion to decerti-fy plaintiffs’ collective action under the FLSA.

MULTI-DISTRICT LITIGATIONIn North v. Merck & Co., Inc. (05-CV-6475L,

11/4/05), the Court granted defendant’s motion tostay, thereby deferring ruling on plaintiff ’s motion toremand this case to state court, where the JudicialPanel on Multi-District Litigation had previouslyentered a conditional transfer order transferring thecase to an MDL court. Noting that the issues raised bythe remand motion were also present in other casesbefore the MDL court, the Court concluded that itwould conserve judicial resources to permit the MDLcourt to decide the motions.

PRODUCT LIABILITYIn Sorrentino v. Barr Laboratories, Inc. (05-CV-

6144L, 11/7/05) the Court, commenting on the plain-tiff ’s “chutzpah,” granted summary judgment dismiss-ing plaintiff ’s complaint alleging that he murdered hiswife (a murder for which he was convicted) because ofside effects from a drug manufactured by defendant.The same facts having been asserted as a defense inplaintiff ’s criminal case, the Court held that collateralestoppel precluded plaintiff from using them to supporta product liability claim. The Court also held thatplaintiff ’s action was precluded by New York publicpolicy barring individuals from profiting from theirown wrongdoing. [B]

January 2006.pdf 12/27/05 10:22 AM


In New York state, one person is victimized by phys-ical violence in the home every three minutes. Thistranslates to 20 attacks every hour, 480 each day andapproximately 200,000 every year. An estimated40,000 acts of domestic violence occur every year inthe eight-county area comprising western New York’sEighth Judicial District…and those numbers are ris-ing.

To help cope with an escalating caseload, a new judi-cial venue - the Niagara County Integrated DomesticViolence Court - officially opened in Lockport onDecember 14.

Some of the state’s top jurists were on hand for cer-emonies marking the opening of the IntegratedDomestic Violence (IDV) Court in a newly-renovatedcourtroom located in the Niagara County Courthouseat 175 Hawley Street in Lockport.

Niagara County’s IDV Court is one of 11 new JDVcourts created in New York this year as part of ChiefJudge Judith Kaye’s comprehensive plan for expansionof these innovative courts across the state. The IDVCourt is designed to address the increasing number ofdomestic violence cases in a more focused and efficientmanner, according to State Supreme Court JusticeSharon S. Townsend, Administrative Judge for theEighth Judicial District.

“The new court will be the third Integrated DomesticViolence Court in the Eighth Judicial District whichemphasizes increased defendant accountability andsafety for adult victims and children,” JusticeTownsend explained.

Acting State Supreme Court Justice Sara S.Sperrazza is presiding over the new court. Sperrazzawas a Niagara County Court Judge who presided overfelony criminal cases and also a Surrogate Court Judge.Her prior experience includes serving as Wheatfieldtown justice, Niagara County Assistant DistrictAttorney, Family Court Attorney and private practi-tioner.

Hon. Judy Harris Kluger, Deputy ChiefAdministrative Judge for State Operations andPlanning, participated in the ceremonies, along withHon. Eugene F. Pigott, Presiding Justice of the

Domestic Violence Court Opens in Niagara CountyAppellate Division, Fourth Department, JusticeTownsend, Judge Sperrazza, and Supreme CourtJustice Ralph Boniello, who is the back-up Judge forthe Niagara County IDV Court.

IDV Courts are specialized parts of Supreme Courtdeveloped to better serve families in crisis. Under thecurrent system, domestic violence victims and familymembers often are required to appear in multiplecourts and before multiple judges to address criminal,family, matrimonial and other problems.

IDV Courts are based on a “one family-one judge”approach, allowing a single judge to hear related casesinvolving domestic violence victims and their families.The goal is to promote more informed judicial deci-sion-making by creating consistency in orders of pro-tection and reducing court appearances, as well as pro-viding enhanced services to victims and ensuringdefendant accountability.

Related criminal, matrimonial and Family Courtcases involving a single family may be eligible for IDVCourt. The threshold requirement for entry into IDVCourt is a charge of criminal domestic violence involv-ing related cases in at least two of the three areas of theabove mentioned laws.

Each case heard in IDV Court will retain its individ-ual integrity and will not be consolidated with others,court officials explained. [B]

Wireless access to the Internet is now available with-out charge in all courtrooms, public corridors, attor-ney-client conference rooms and the jury assemblyarea in Old County Hall (92 Franklin Street) and theErie County Courthouse (25 Delaware Avenue),according to Court officials.

Industry statistics indicate that wireless use is cur-rently skyrocketing. In 2002, there were 3,400 wirelessInternet hotspots throughout the United States. Thenumber of wireless hotspots was expected to increasenine-fold to 32,800 nationwide by the close of 2005.Wireless Fidelity – or Wi-Fi – allows users to connect tothe Internet without wires anywhere within the rangeof a base station and is several times faster than a basiccable modem connection.

“The possibilities are boundless,” according toAndrew B. Isenberg, Executive Assistant of the EighthJudicial District. “Imagine working on your laptopanywhere in the Courthouse. You can connect to yourlaw firm’s network and e-mail for instant calendaringand scheduling of pretrial conferences; retrieve briefsand electronic evidence presentations; and gain instantaccess to your Westlaw or Lexis accounts. Since mostlaptops are now Wi-Fi compatible, this is now feasiblewithout any significant investment in new equipmentor software.”

The Wi-Fi system at 92 Franklin Street and 25Delaware Avenue was designed and implementedthrough a cooperative effort by Nortel, The UnifiedCourt System’s Division of Technology, and the EighthJudicial District’s Information Technology Unit. A totalof 89 wireless access points have been installed in bothbuildings. The system provides unsecured access to allattorneys, jurors and the general public. It is compati-ble with any Wi-Fi device, such as a laptop computeror personal digital assistant (PDA) that is 802.11b or802.11g compliant. In addition to public access, theaccess points provide a secure wireless network dedi-cated for Court use.

“Our wireless network will provide attorneys and lit-igants with greater access to our courts,” according to

Free Wireless AccessAvailable in Courthouse


January 2006.pdf 12/27/05 10:22 AM


in the public service

By Robert M. Elardo Managing Attorney Volunteer Lawyers Project, Inc.

As the year came to an end, the Erie County BarAssociation Volunteer Lawyers Project (VLP) took timeto thank many of the attorneys and law firms that haveso generously given their time and money to help VLPfulfill its mission of bringing quality free legal servicesto low-income people and small not-for-profit groups.

At the Bar Association’s Holiday Reception for RetiringJudges held on December 7, 2005, VLP presentedCertificates of Appreciation to the four local law firms thatbecame 2005 VLP Partner Law Firms by each donating$5,000 to support VLP’s efforts. (Editor’s Note: Photosfrom the Reception for Retiring Judges will appear innext month’s edition of the Bulletin.) Jaeckle,Fleischmann & Mugel, LLP; Phillips Lytle, LLP;Hodgson Russ, LLP; and The Barnes Firm receivedspecial recognition for their generous financial support.

The week before, VLP held its 13th Annual VolunteerRecognition Reception and presented its 2005 ProBono Awards. Hon. Thomas P. Amodeo, Chief Judge ofBuffalo City Court, received the Judicial Pro BonoAward for all that he has done to help VLP over theyears with its Attorney of the Morning Program in CityCourt. Matthew Herdzik, a winner of five previous VLPPro Bono Awards, received the seldom givenMeritorious Service Pro Bono Award. Hon. Sharon S.Townsend and BAEC President Jeremiah J. McCarthywere the featured speakers.

At the VLP Reception, VLP’s 2005 Diamond FinancialSupporters were also honored. The Diamond Supporters

Recognizing Pro Bono Excellence

Receiving special recognition at the Volunteer Lawyers Project’s annual reception were, top photo, Judicial Pro Bono Awardrecipient Hon. Thomas P. Amodeo, pictured at center with BAEC President Jeremiah J. McCarthy, Administrative Judge SharonS. Townsend and VLP board Vice President Jean C. Powers; above, several individual attorneys who received awards in eachof the categories outlined at right; and below, the Diamond Financial Supporters group.

donated at least $1,000 and at least $100 per attorney.They were: Garry M. Graber; Harris Beach; WalshRoberts & Grace; Jeffrey Freedman Attorneys at Law;Webster, Szanyi, LLP; Nixon Peabody, LLP; Schop &Pleskow, LLP; and Paul William Beltz, P.C.

We also want to thank each of the more than 400lawyers who provided pro bono work in 2005 and eachof the 1,000+ lawyers and law firms who made finan-cial contributions in 2005, either through the BAECDues Check Off for VLP or the 2005 Law FirmFundraising Campaign. Each of you played an impor-tant role in helping VLP to represent more than 2,000clients and to provide information and referral servicesto over 2,000 more in 2005.

2005 VLP Law FirmFundraising Campaign

The ECBA Volunteer Lawyers Project (VLP) LawFirm Fund-raising Campaign allows law firms, lawyersand judges the opportunity to make tax-deductiblefinancial donations to VLP. These contributions helpVLP to operate its variety of programs, in which hun-dreds of local attorneys provide pro bono legal servicesto low-income people who would otherwise go withoutthe assistance of an attorney. Contact VLP today aboutgetting your name or the name of your firm on the listfor 2006.

VLP PARTNERS($5000 or more)

Hodgson Russ, LLPPhillips Lytle, LLP

Jaeckle, Fleischmann & Mugel, LLP The Barnes Firm

VLP DIAMOND SUPPORTERS($1000 or more; $100 or more per attorney)

Harris Beach*Paul William Beltz, PC Nixon Peabody LLP

Jeffrey Freedman Garry M. Graber

Walsh, Roberts & GraceSchop & Pleskow, LLPWebster Szanyi, LLP

Hon. Sharon S. TownsendHon. Norman JoslinHon. Mark GruberHon. Vincent E. DoyleHon. John J. AmanHon. John F. O’DonnellHon. John P. LaneLipsitz & Ponterio, LLC*Jean Powers*Philip Perna*Adolph Iannaccone*Catherine A. Brown*Matthew B. Herdzik, Jr.*Howard Rosenhoch*Kevin Kearney*Timothy O’Mara*George M. Zimmermann*Robert M. Elardo*H.A. Terri Zionts*Carl Paladino* Ann Demopoulos*Douglas Winokur*Eugene M. Setel*Robert S. Stephenson*Howard E. Berger*Offerman, Cassano, Greco,

Slisz & Adams, LLP

Creighton, Pearce, Johnsen & Giroux

Dubin & Sommerstein, LLPPersonius MelberReden & O’DonnellHartman & RidallSacks, Kolken & Schultz Wilder & LinneballStamm, Reynolds & StammHagerty & BradyZiller, Marsh & LangPfeiffer & Pfeiffer PCJohn LavinSophie FealEdward SchwendlerWilliam ReganDavid PfalzgrafWilliam HitesJames W. GresensOliver YoungPaul C. WeaverRaymond PfeifferAnthony J. ColucciTerry D. SmithAlan S. CarrelDavid NelsonStephen R. LamantiaBrian R. Welsh

VLP GOLDEN SUPPORTERS($100 or more per attorney)

Damon & Morey*Hamberger & Weiss*Roach, Brown, McCarthy

& Gruber, PC*Simpson & Simpson*Bond, Schoeneck & King, PLLC*Ballow Law Firm*Dinardo, Metschl & Dwyer, PC*Volgenau & Bosse, LLP*Pfalzgraf, Beinhauer

& Menzies, LLP*Paul Crapsi, Jr.* Joy Trotter*Cohen & LombardoBarth, Sullivan & Behr Flaherty & Shea

Aaron, Dautch, Sternberg and Lawson

Gradl, Polowitz & SchwachNorton, Radin, Hoover

and Freedman Schröder Joseph & Associates Donald Lischer, PC Robshaw & AssociatesJames PriviteraWayne WisbaumOscar SmucklerRaymond WylegalaRichard GordonGregory BrownCornelius F. CollinsWilliam H. DaetschEric L. Glazer

VLP SILVER SUPPORTERS($50 or more per attorney)

Hon. Michael J. Griffith Kavinoky Cook LLP*Magavern, Magavern

& Grimm LLP*Gibson, McAskill & Crosby*Hurwitz & Fine*Chiacchia & Fleming, LLP*Attea & Attea*Bagley, Lynett & Saia*Freid & Klawon*Brendan Hand*

Chelus, Herdzik, Speyer, Monte & Pajak, PC

Hall, Ricketts, Marky & GurbackiHarrington & MahoneyChristopher T.W. RossBouvier PartnershipMoriarty & DeeBlinkoff & AssociatesLeibert F. CoppolaEdward A. PaceJoseph C. Vispi

VLP SUPPORTERS($25 or more per attorney)

*Indicates that the donor contributed more than the minimumamount for the category in which they qualify.

January 2006.pdf 12/27/05 10:22 AM


What’s Wrong with this Picture?!

Actually, nothing. This time, that is.Unfortunately, a printing error in theDecember issue prevented anyone fromseeing the entire photo, which was takenat the Association’s Judicial Candidates’Roast. Our apologies to Hon. Sheila A.DiTullio, pictured at left, and Hon. E.Jeannette Ogden at right. And our con-gratulations to both on their recent suc-cesses at the polls!

2005 VLP Pro BonoAward Winners

Bankruptcy. . . . . . . . . . . . Barbara R. Ridall

Divorce . . . . . . . . . . . . . . . Siegel, Kelleher . . . . . . . . . . . . . . . . & Kahn

Family Court . . . . . . . . . . Alan Birnholz. . . . . . . . . . . . . . . . James C. DeMarco III

Corporate Counsel . . . . . . James E. Privitera

Haven House Project (Domestic Violence Victims) . . . . Antonio Cardarelli

VLP V.I.P. Awards . . . . . . . C. Kenneth Foit. . . . . . . . . . . . . . . . Nadine E. Patterson

Ruth Ritchell Award (In-House Volunteer Attorney) . . . Wendy M. Gonzalez

In-House Volunteer . . . . . Leah Bouquard

Immigration Award . . . . . Sophie I. Feal

Large Law Firm Award . . Damon & Morey

Small & Mid-Size Law Firm Award . . . . . . . Jeffrey Freedman

. . . . . . . . . . . . . . . . Attorneys At Law

Attorney of the Morning (Landlord-Tenant) . . . . . . . . . . Jennifer Latham

Meritorious Service . . . . . Matthew B. Herdzik, Jr.

Judicial . . . . . . . . . . . . . . . . Hon. Thomas P. Amodeo

These photos had been tucked away for years inside a book of short stories that

President Jeremiah J. McCarthyrecently had the opportunity

to peruse (see President’s Letter on page 1).

If you never forget a face andthink you know this young

soldier’s identity, turn to page 22 to see if you’re correct.

A Familiar Face?

January 2006.pdf 12/27/05 10:22 AM


Hon. Sharon S. Townsend, Administrative Judge forthe Eighth Judicial District. “We are hopeful that thispilot project will enable lawyers to employ new tech-nologies and achieve greater efficiency when providinglegal services to their clients.”

Townsend further noted that “if wireless access iswell received, we hope to expand wireless access pointsto other courts within the District.” [B]

Wireless continued from page 7

Each summer, students from the University atBuffalo Law School venture out into the field to gainvaluable experience working in both traditional andnon-traditional legal jobs. With the help of BuffaloPublic Interest Law Program Fellowships, studentshave been able to put their skills to use not only local-ly, but across the United States and the globe.

The Buffalo Public Interest Law Program (BPILP) isa not-for-profit student-run fundraising organizationat the University at Buffalo Law School, whose mem-bers raise the funds needed to award fellowships todeserving students. Each year, large numbers of stu-dents from the University pursue summer positionswhich, although gratifying and wonderful learningexperiences, are nonetheless unpaid. As such, BPILP,whose commitment is to the principle that the legalsystem should be accessible to all, seeks to encouragestudents to pursue public interest work through theavailability of a limited number of fellowships.

In 2005, with the help of Dean Nils Olsen, the orga-nization was able to provide 18 summer fellowships tosuch diverse and far-reaching places as the KenyaHuman Rights Commission in Nairobi, Kenya, to theCapital Post Conviction Unit in Frankfort, Kentucky,

Auction Helps Students Work for the Public Interestand the Volunteer Lawyers Project here in Buffalo. Areas oflaw include domestic violence; child advocacy; humanrights; and poverty, elder and environmental law.

The group’s leadership and members are always inpursuit of new and different ways to raise the neededfunds to allow students to accept unpaid work. Ideally,each year would see a greater number of students ableto pursue their desire to accept public interest workthrough a BPILP fellowship.

Alongside the energy which goes into such fundrais-ing events as the Jazz Night held this past November atthe Pearl Street Bar and Grill, or the upcoming bakesale to be hosted at the school, BPILP members alsogive of their time to the community through eventssuch as Habitat for Humanity days, and a recent holi-day gift-wrapping event. Most significant to the orga-nization’s ability to go on providing fellowships, how-ever, is the BPILP’s Annual Auction.

For ten years, the auction has been the focal point ofBPILP’s fundraising efforts, as well as one of the mostanticipated events by students and faculty. It is thelocal community, however, that year after year makesthe BPILP Auction so very successful. [B]

Law Alumni to HearCourt of Appeals Judge in New York City

New York State Court ofAppeals Judge Albert M. Rosenblatt will be thefeatured speaker whenalumni and friends ofUniversity at Buffalo LawSchool hold their annualNew York City AlumniLuncheon, on Friday,January 27, at 12 noon, in the Union League Club,37 East 38th St, corner of Park Ave., in New York City.

The event is held each year in conjunction with theNew York State Bar Association Annual Meeting. “It’s agreat opportunity to visit with UB Law School friendsfrom across the state,” according to Law AlumniPresident John C. Curran.

Rosenblatt, associate judge of the NY Court ofAppeals, was born in New York City in 1936. Hereceived his B.A. from the University of Pennsylvania in1957 and graduated from Harvard Law School in1960. Rosenblatt served as district attorney inDutchess County from 1969-1975; Dutchess CountyJudge from 1976-1981; Supreme Court Justice from1982-1987; New York State’s Chief AdministrativeJudge from 1987-1989; and as Associate Justice of theSupreme Court, Appellate Division, SecondDepartment from 1989-1998. After Governor Patakinominated him to serve on the Court of Appeals, hewas confirmed by the Senate on December 17, 1998.

Rosenblatt served as a visiting lecturer in theVictorian Studies Department of Vassar College from1992-1994, along with his wife, Julia. He is also certi-fied as a professional ski instructor, and a member ofthe Baker Street Irregulars, as well as a former editorof the Baker Street Journal. The judge is a nationallyranked squash player, and a member of the UnitedStates (Master’s) Maccabiah Team (1997). Married toDr. Julia (Carlson) Rosenblatt, a writer and formerVassar College professor, Rosenblatt lives in LaGrange,New York and has one daughter.

Alumni also will hear an update on the UB LawSchool from Dean Nils Olsen. To make a reservation, callthe Law Alumni office at 645-2107 with your creditcard information. The cost is $50 for alumni and guestsand $35 for those who graduated in 2001 or later. [B]

Hon. Albert M. Rosenblatt

Don’t throw outyour old Bulletins!Recycle them.

The Buffalo Public Interest Law Program’s 11th Annual Fundraising Auction

will feature both a live and silent auction with items including

fine art, theatre and concert tickets, restaurant gift certificates,

jewelry, and much more.

It will be held on Thursday, February 23, 2006, from 5:30 to 8:30 pm at Statler Towers,

107 Delaware Avenue. Valet service will be provided.

The group’s leaders and members hope to see the community

turn out once again in support of this worthwhile event.

Our new attorney directories will be in production this spring. Don’t forget to get any updates in

before the March 1st deadline.

Call Susan Kohlbacher for further information 852-8687

January 2006.pdf 12/27/05 10:22 AM


In Honor of Martin P. Violante:

John DeFazio

In Honor of Jennifer M. Demert andPatricia S. Ciccarelli:

Christine Dombrowski Uba

In Honor of the Runfola and LatonaFamilies:

Ross L. Runfola

In Honor of Frederick G. Attea:

Robert Michael Greene

In Memory of Richard Manz:

Hon. John P. Lane

In Memory of Seymour Mandel:

Aaron Sukert

In Memory of Judge Irving Fudeman:

Anthony J. Renaldo

In Memory of Veneard D. Neri:

Arnold E. Galbo

In Memory of Gerard Fornes:

The Members of the Bar Association of Erie County’s Workers’ Compensation Committee

In Memory of Peter Curtis:

Bar Association of Erie County

In Memory of Thelma C. Campbell:

Robert E. Dwyer

Contributions to the Erie County Bar Foundation provide an excellent vehicle for recognizing

and honoring members of our profession. Memorial gifts to the Foundation become a lasting

tribute to the entire legal profession, as funds are used exclusively to assist attorneys and

promote understanding of our legal system.

In Memory of Joseph H. Morey, Jr.:

Robert J. Plache

In Memory of Hon. John H. Doerr:

Susan von Arx

In Memory of William J. Lalli (Brother ofLinda Lalli Stark):

Thomas Santa Lucia

In Memory of John G. Putnam, Jr.:

Bar Association of Erie County

Peter J. Brevorka

Philip Celniker

Philip H. Magner, Jr.

In Memory of Merrill G. Windelberg:

Hon. John P. Lane

In Memory of Robert Lipp:

Molly Roach & Scott Miller

In Memory of Edward L. Robinson, Jr.:

Coleman Volgenau

Hon. John P. Lane

In Memory of my Mentor, Robert“Murph” Murphy and my Grandfather,Joseph P. Runfola, Sr.:

Jennifer Ann Runfola

In Memory of Patricia A. Kane,secretary to late Erie County Court Judge John A. Dillon:

Joel L. Daniels

In Memory of Robert J. Lane, Sr.:

David G. Cohen

Hon. John P. Lane

Jay N. Rosenthal

In Memory of Richard M. Holland:

Edward C. Robinson

In Memory of Donald T. Cook:

Frederick J. Gawronski

In Memory of Thomas Elmer:

George W. Narby

In Memory of David Garbus:

Ginger & David Maiman

In Memory of Edward A. Mattioli:

Hon. John P. Lane

In Memory of Harold Boreanaz:

John P. Pieri

In Memory of Vincent M. Gaughan:

Karen Gaughan Scott

In Memory of Kevin Maloney:

Molly Roach & Scott Miller

In Memory of James J. McLoughlin:

Hon. John P. Lane

In Memory of Lois K. Nwabugwu:

Ilo Nwabugwu Noble

The Foundation gratefully acknowledges the following contributions:

In Memory of my two old friends andtennis partners, Leonard Walentynowiczand Hon. John H. Doerr:

Irwin E. Ginsberg

In Memory of Robert Murphy:

James W. Grable, Jr.

In Memory of Sandy Cordes:

Kate Roach & Kevin Hogan

In Memory of Earl T. Horohoe:

Kathleen E. Horohoe

In Memory of Carmen P. Tarantino:

Kathleen M. Sweet

In Memory of William Casilio:

Marc Shatkin

In Memory of Hon. James H. Boomer:

Michael J. Flaherty, Jr.

In Memory of Alvin Glick:

Molly Roach & Scott MillerDaniel Roach

In Memory of my Brother, AttorneyJoseph Ciccarelli:

Ferdinand J. Ciccarelli

In Memory of Lois Duggan (Wife of JamesT. Duggan):

Philip H. Magner, Jr.

January 2006.pdf 12/27/05 10:22 AM


Plans Underway forStatewide Mock TrialTournament By David W. Polak, Chair

Young Lawyers Committee

I am pleased to announce thatthe Bar Association of ErieCounty is once again participat-ing in the Statewide High SchoolMock Trial Competition. Themandatory teacher/coach meet-ing was held at the Bar Association offices on December8, 2005. Presenting at the meeting were: Oliver Youngon behalf of the NYS Bar Association, BAEC VicePresident Steve Lamantia, BAEC Executive AssistantSharlene Hall and myself.

We thank all those involved in donating their time to this valuable and rewarding program. At this time,some of our local high schools are still in need of attor-ney coaches. If you would be interested in participatingas an attorney coach, please contact Sharlene Hall atthe Bar Association at 852-8687 or me at 854-0700.

Annually, we have had the participation of 34+different teams. The first rounds of the competition areinitial preliminary elimination rounds, followed byrounds which eliminate half of the participating teamsuntil our region has only four teams remaining. Ofthose four teams, one will progress to the New Yorkstate finals.

Having participated as an attorney coach and ajudge in the past, I have found that this program isboth personally and professionally rewarding. I wouldencourage your involvement in this most worthwhileprogram.

This year’s hypothetical scenario is a criminal casedealing with prosecution of a defendant for the deathof a passenger, allegedly caused by reckless or negligentoperation of a motor vehicle.

We look forward to another year of generous supportand involvement from our colleagues in bringing thisexceptional program to local youth. Many thanks foryour participation and support! [B]

January 2006.pdf 12/27/05 10:22 AM


matrimonial musingsBy Michael S. Simon

My legal mentor always reminded me that it is bet-ter to do things “slow and right than fast and wrong.”This adage holds true within the context of the decisionto place an oral stipulation on the record or take thetime to prepare a written Property SettlementAgreement (“PSA”), at the risk of losing the “momen-tum” which can exist at the moment a settlement isreached at the courthouse. I have become a firmbeliever that a written agreement is preferred, althoughI understand the need to “strike while the iron is hot”under some circumstances (you can tell it is still footballseason because the cliches are flowing ad nauseam).

What is typically missing in most oral stipulations isboilerplate language, which on its face may seeminnocuous but in reality can have a major impact onpost-agreement proceedings. For example, I wasrecently involved in a situation where the absence of“boilerplate language” regarding the failure to exercisea right under an agreement not constituting a waiver,typically found in a PSA, but not in most oral stipula-tions, has opened a virtual Pandora’s box.

The parties were divorced approximately ten yearsago; there is one child, the wife is the residential par-ent, and the husband is paying child support underCSSA. The stipulation provided for “the mutual annu-al exchange of income tax returns on a yearly basis todetermine whether child support should be adjusted.”No mechanism for the adjustment in the event of a dis-agreement or failure to disclose was stated. Neitherparty requested the information from each other untilrecently, when the wife brought a proceeding attempt-ing to seek a retroactive modification of child supportby invoking the disclosure provisions of the stipulation.This followed a ten-year period of inaction and contin-ued acceptance of child support as originally set forthin the parties’ stipulation. The obvious defenses of

waiver, estoppell and laches come to mind. What doour courts think? It would not matter if the stipulationwas clear and specific. But it was not!

A matrimonial stipulation of settlement is a contractwhich, although entitled to receive a higher level ofscrutiny than a commercial one, remains subject to theestablished interpretive rules and defenses applicableto all contracts. Surlak v Surlak, 95 A.D.2d 371,375,466 N.Y.2d 461. Equitable defenses are available in mostcircumstances arising from a stipulation of settlement.

The defenses of waiver, laches and estoppell are still applicable to cases such as this one, even in theaftermath of Dox v Tynon, 90 N.Y.2d 166, 1997,Whiteman v Whiteman, 686 N.Y.S. 2d 291 1999 N.Y.Slip Op 99097. In Dox, where the respondent had notpaid child support for eleven years, the Court ofAppeals narrowed the applicability of the defense oflaches in child support enforcement to cases where theeffect of the applicability of the defense would be topermit retroactive modification of child support with-out seeking affirmative judicial relief as directed bystatute. By noting that an implied waiver “under thesecircumstances” was inappropriate, the Court of Appealsintentionally left open the possibility that, under cer-tain other circumstances, the defense of waiver wouldbe appropriate and allowed. Whiteman v Whiteman,686 N.Y.S. 2d 291 1999 N.Y. Slip Op 99097.

In my opinion, when a payor has complied with theexisting terms of a stipulation, and child support hasbeen accepted at an agreed-upon level for many years,the failure to seek enforcement or otherwise demandcompliance with the financial disclosure terms of anagreement constitutes a waiver of the disclosure provi-sions for the prior years. To permit retroactive disclo-sure demands after many years that lead to a prospec-tive arrears judgment results in extreme prejudice to

Don’t Risk it - Avoid Oral Stipulations!

the payor and the proponent of such should be equi-tably estopped from asserting such an untimely andburdensome claim. Dessauer v Dessauer, 199 A.D. 2d1090, 607 N.Y.S. 2d 205, Fourth Dept., Laurence vRosen, 228 A.D.2d 373, 645 N.Y.S.2d 773, Zembenskiv DeMatteo, 261 A.D.2d 471, 690 N.Y.S.2d 123, 1999N.Y. Slip Op. 04491. (Remember that other legaldefenses, such as statute of limitations, may also beavailable).

As a result of the foregoing, it is clear that it is betterto be “slow and right than fast and wrong.” For yourclient’s sake, avoid altogether having a court reinter-pret your client’s contract or putting your clientthrough a legal challenge of the contracual language.Without the tender loving care and specificity necessaryto make support or other agreement terms clear andunambiguous for future interpretation, you exposeyour client to litigation and possibly unintended conse-quences (and you expose yourself to a potential legalmalpractice claim)! Due to the manner in which oralstipulations are placed on the record (often read frommessy, confusing notes after hours of haggling andshuttle diplomacy by the court), they can be incom-plete or even inaccurate. My ongoing experiences withpost-divorce litigation constantly demonstrate the needto take the extra time (when practicable) to draftProperty Settlement Agreements rather than to placeoral stipulations on the record. [B]

January 2006.pdf 12/27/05 10:22 AM


January 2006.pdf 12/27/05 10:22 AM


Last year, The St. Thomas MoreGuild updated its membership listand sent membership applicationsand dues notices to all those on thelist. As a result, we now have over240 official members. This January,the Guild will repeat that process.

For those judges and attorneys who want to join ourorganization but have not received an application,please use the one that appears on this page.

Two additional notices will be included with themembership application. One is for a joint CommunionBreakfast with the Catholic Medical Association onJanuary 29. Last year was the first time we officiallyjoined with Catholic physicians in their Communionbreakfast and about a dozen lawyers attended. Wehope this will become a traditional activity for Guildmembers. Mass will be celebrated by Bishop Kmiec atSt. Louis Church at 8:30 a.m., followed by breakfast at theCatholic Center. Rev. John Sturm SJ will be the speaker.

The other notice concerns participation of our mem-bers in Lawyers for Learning activities. CatholicCentral School has been opened on Genesee Street inthe City of Buffalo. The school is limited to the middlegrades. It is supported by the Diocese of Buffalo and isrun under the auspices of the Jesuits and Oblate Sistersof Providence. It educates young men and women in anapproach that aims to enrich them academically andathletically as well as draw them away from the influ-ences of today’s street culture. Jim Eagan fromLawyers for Learning has approached the St. ThomasMore Guild to supply tutors from our membership forthis school. For those who are not already participating

Membership Drive Underway for St. Thomas More GuildBy Daniel F. Novak

in Lawyers for Learning, this is a great opportunity tocontribute to the lives of young men and women.

The scholarship program that was announced at theluncheon has received nearly 150 applications. A schol-arship of $500 will be awarded to a student attendinga parochial grammar school next year and $1000 willbe given to a student attending a Catholic high schoolnext year. Students were asked to write an essay on thetopic “What Can We Learn from the Life of St. ThomasMore?” The scholarship committee has received theessays and we expect winners to be announced by theend of February.

At its November meeting, the board of directorsinvited J. Patrick Lennon to serve as a Director. He hasagreed to do so and is a welcome addition. I haveknown Pat for some time and know him to be not onlyan able attorney but the type of person who will do everything he can to assist the Guild in serving its members.

Finally, I would be remiss if I did not express myappreciation and thanks, and those of the other officersand directors of the St. Thomas More Guild, to JusticeSharon Townsend for speaking at the end of the RedMass. Her words about tolerance are something weshould keep with us as we practice law and in our per-sonal lives.

The St. Thomas More Guild is an association ofCatholic lawyers in the Diocese of Buffalo. Those who have any questions about it or its activities shouldcontact Daniel F. Novak at 852-6224 or one of theother officers or directors, whose names are printed at right. [B]

January 2006.pdf 12/27/05 10:22 AM


T h a n k s t o a l l W h o D o n a t e d t o

The Erie County Bar Foundation assists attorneys and their families who are facing physical and mental illness,financial hardship, addiction and other difficulties. During times of personal and professional crisis, the Foundation’sassistance may take the form of paying medical expenses, providing counseling services, covering interim livingexpenses and/or assisting with financial planning, peer support and mentoring.

Regardless of the nature of the difficulty, the “company of friends” is always available to assist local attorneys in acompletely confidential manner.

Without the generosity of those who support the Foundation financially and also give wholeheartedly of their timeand talents, this important work would simply not be possible.

On behalf of all whose lives have been changed for the better as a direct result of the Foundation’s intervention,please accept our deepest gratitude and best wishes for a happy and healthy New Year.

CAMPAIGN 2005 LEADERSHIP

CHAIRJames W. Smyton

CO-CHAIRMichael J. Flaherty

STEERING COMMITTEEHarold J. Brand, Jr.Francis X. CarrollLenora B. Foote

Jeffrey M. FreedmanSharon Stern Gerstman

Paul Michael HassettDan D. Kohane

Rodney O. PersoniusDavid R. Pfalzgraf

LARGE GIFTSHarold J. Brand, Jr.Francis X. Carroll

Jeffrey M. Freedman

GENERAL SOLICITATIONPeter J. BattagliaGabriel J. FerberSusan S. HoganPaul V. HurleyWilliam Ilecki

Thomas S. LaneKaren L. Nicolson

Michelle ParkerMark G. PearceBrian R. Welsh

CALLING FOR A GOOD CAUSE Attorneys who volunteer their time to help with the Foundation’s annual fundraising effortsmake it possible for donations to be used directly for lawyer assistance efforts. Taking to the phones for the Campaign ’05Phone-A-Thon are, above left, Campaign ’05 Chair James W. Smyton and at right, Buffalo attorney Kedra L. Small.

Photos by Susan Kohlbacher

Leigh Anderson

Beata Banas

Peter J. Battaglia

Charles Beinhauer

Paul Allen Bender

Thomas W. Bender

Steven Bengart

Joseph Bergen

Ann Bermingham

Harold J. Brand, Jr.

Mark E. Brand

Marc W. Brown

T. Alan Brown

Wesley M. Brown

Jessica J. Burgasser

Kara A. Buscaglia

Howard Cadmus

Kyle W. Calabrese

James N. Carlo

Francis X. Carroll

Thomas R. Cassano

David P. Chadwick

William Chen

Diane K. Church

Kevin C. Condon

Richard F. Daly

Mark P. Della Posta

James DeMarco

Robert M. Elardo

Anthony J. Emmi

Gabriel J. Ferber

Helen Ferraro-Zaffram

Cheryl Smith Fisher

Michael J. Flaherty

Ryon D. Fleming

Lenora B. Foote

Melissa Ann Foti

Howard B. Frank

Jeffrey M. Freedman

Thomas J. Gaffney

Sharon Stern Gerstman

Richard H. Gordon

James W. Grable, Jr.

F. William Gray, III

Alvin M. Greene

David E. Hall

Mark W. Hamberger

Scott R. Hapeman

Paul Michael Hassett

Sharon M. Heim

Daniel J. Henry

Susan S. Hogan

Kevin W. Hourihan

Paul V. Hurley

William Ilecki

John J. Jablonski

Mark Jasen

Rochelle Jones

Thomas Keefe

Mary Kay LaForce

Thomas S. Lane

Patrick Long

Terri L. LoTempio

Frances Mance

Giles P. Manias

Jeremiah J. McCarthy

Joseph V. McCarthy

Kathleen McDonald

Brian Melber

Laurie L. Menzies

Ryan Mills

William Patrick Moore

Timothy J. Mordaunt

Paula M. Eade Newcomb

Karen Nicolson

Randolph C. Oppenheimer

Edward A. Pace

Michelle Parker

Mark G. Pearce

Michael F. Perley

Rodney O. Personius

Karen Peterson

David R. Pfalzgraf

John J. Phelan

Michael Pilarz

Ellen Kathleen Poch

Jay A. Pohlman

Jean C. Powers

Shari Jo Reich

Edward C. Robinson

Barbara Sauer

Denis A. Scinta

Kathleen Sellers

Kedra Small

James W. Smyton

Robert B. Sommerstein

Christopher A. Spence

Richard L. Stark

Mark Starosielec

Michele L. Sterlace-Accorsi

Gregory J. Stewart

Paul Suozzi

Megan B. Szeliga

Edward Taublieb

Paul C. Weaver

Stephanie Williams Torres

William J. Trask

William F. Trezevant

Robert R. Vario

Amy Vigneron

Joseph C. Vispi

Brian R. Welsh

Justin S. White

Michael J. Willett

Stephen L. Yonaty

2 0 0 5 p h o n e - a - t h o n

“At times, our own light goes out and is rekindled

by a spark from another person.

Each of us has cause to think with deep gratitude of those

who have lighted the flame within us.”

~ ALBERT SCHWEITZER

“As we express our gratitude,we must never forget

that the highest appreciation is not to utter words,

but to live by them.”

~ John F. Kennedy

January 2006.pdf 12/27/05 10:22 AM


Although the gambling industry continues to denyany link between legalized gambling and bankruptcyfilings, independent studies show that there is a con-nection.

Researchers at Creighton University in Omaha,Nebraska took a snapshot of two counties in 1990 andin 1999, with and without legalized gambling. Theyfound that while business bankruptcies were lower inthe counties with gambling, personal bankruptcieswere double the rate in comparable counties that didnot have legalized gambling.

Experts in compulsive gambling, including Dr. Renee Wert, director of the gambling counseling

program at Jewish Family Services, saysthat the number of individuals with gambling problems in the Niagara region is rising.

“I’ve been in this program since 1994 andwhen Casino Niagara opened in 1996, ourcaseload doubled within a year,” she said.“When the Seneca Casino opened, we had a55 percent increase in the following year.”

These increases cannot be attributedcompletely to the casinos, according to Dr.Wert. Other forms of gambling have grownas well, including sports, off-track betting,increased lottery drawings and Internetgambling.

“There has been an explosion of legalizedgambling in this country in the past 25 years,” accord-ing to Buffalo bankruptcy attorney Jeffrey Freedman.“Twenty-five years ago, you could only gamble inNevada and Atlantic City. Today there are 648 casinosin 31 states that allow gambling, and the majority ofstates have lotteries.

“Over the past ten years, total consumer bankrupt-cies went from 770,000 to 1.6 million – part of whichis attributable to gambling.”

Members of the gambling industry say that higherlevels of debt, easy access to credit and the reducedstigma of bankruptcy are to blame. Yet researchers likeGeorge Yacik, who works with credit-card companies,

and Edward Morse, a law professor at CreightonUniversity, say that more convenient access to casinosentices people with problem gambling behaviors tooverspend.

“You don’t develop a gambling program by justgoing to a casino once,” Dr. Wert said. “Gamblers usedto be able to control their gambling because they hadlimited opportunities to gamble. They may have goneto Las Vegas once a year but when there’s easy accessthey go more.”

Jewish Family Services has increased its offices tomeet the need. It now serves clients from offices inBuffalo, Niagara Falls, Amherst and Hamburg, and isexpanding to North Tonawanda, Lockport and poten-tially Springville.

Gambling is insidious in the way that it affects allaspects of people’s lives. Instead of paying taxes,maintaining their homes and cars, and attending tohealth care needs, problem gamblers spend those fundsat casinos.

“People want to believe that casinos create jobs andhelp the economy,” Freedman said. “They do createjobs, but they also create increases in bankruptcy fil-ings and other social problems. Casinos are not thecure-all for areas with sick economies.” [B]

Studies Show Link Between Casino Gambling and Bankruptcy Filings

January 2006.pdf 12/27/05 10:22 AM


In 1981, I began mycareer as an Army JAGparatrooper lawyer in the82d Airborne Division,after indenturing myselffor four years of activeduty in return for a ROTCscholarship. I’m glad I didbecause I gained tremen-dous experience as a triallawyer but the bureaucra-cy of working for the gov-ernment was frustrating,

so I decided to leave the Army for a big law firm inBuffalo as an associate attorney. I worked with manyexcellent lawyers there, yet I came to abhor the com-mittee-dominated approach to decision-making andthe perceived idol of “billable hours” as a measure ofworth. This was not the “land of milk and honey” Ihad imagined.

I soon realized that law firms value “minders,grinders and finders” - the brilliant minds; the 12-hours-a-day, seven-days-a-week associates; and thepartners who had a large “book” of profitable clientsthey brought to the firm (“rainmakers”). As an associ-ate, I worked long, grueling hours and dreamed ofbecoming a partner - but my wife, as usual, was rightwhen she said to me: “You just don’t have the person-ality to be a large firm lawyer.” So in 1988, I left thefirm and “hung out a shingle.”

Greener Grass?Being a sole practitioner has it own frustrations. I

often recall a wise silver-haired partner at the big firmsaying: “On a slow day, you can hear the overheadaround this place!” I had never imagined the hiddensmall-business costs of having an employee, insuranceand self-employment taxes; and it became more diffi-cult and stressful to take vacations and deal with ill-nesses and emergencies without a coworker to helpcover my responsibilities.

Yet for me, in many ways, the grass was greener as asmall firm lawyer. I loved the freedom to pick my casesand clients, no matter how controversial, and to bemyself – for better and worse. I developed a reputationas a renegade lawyer who took “interesting andunprofitable cases for good causes.” But I learned “thehard way” that success as a sole practitioner requiresmuch more than just practicing law and I teetered onfinancial ruin - because I had no “jingle in my shingle.”To survive financially, I became more disciplined inrejecting deadbeats before they became clients and insetting fees. I also invested in technology to enhancemy efficiency, effectiveness and quality control in pro-viding legal services and to monitor my marketing plan(or “sell my shingle”).

The Role of Technology In 1994, I started teaching myself to type and I now

use technology to conduct research, track my finances,market my services - and most of all to communicate.I sync my computer with my office, home and laptop,and use a smart phone, palm pilot pager and laptopwhen running from court to court. Now, wherever Iam, I can read a client’s driver abstract using my cellphone connection to cyberspace through my onlineaccount with DMV.

My time spent developing a Web site was effectivebecause it attracted several profitable cases (along withmany price-shoppers and people wanting free legaladvice). Although law firm marketing via the Internethas recently become more competitive, the number ofconsumers who use the Web to find and choose alawyer is also increasing exponentially, so I will contin-ue my Web site as a quintessential work in progress.

The Juggling ActOn a single day, I often run from federal court to

county courts and small town courts like Caledoniaand Persia. One day, I recall running from handling afederal court RICO murder case, to an adoption inCounty Hall and then to night court for a client’s traf-fic ticket in Gowanda.

Reflections of a Solo PractitionerBy Glenn Edward Murray

I learned that it was neither good for me nor myclients to handle every case that came to me; so whencases came to me of a kind I was not experienced in, Ireferred them to lawyers I respected in that field andvice versa.

The Need for MarketingI knew I needed to develop a niche, not only to mar-

ket my small business as a “boutique” law firm, butbecause the more fields I practiced in, the more timeintensive it became to keep up with changes in the law.I was miffed when I read a bankruptcy judge’s decisioncutting my court-awarded fees in a case I won, statingI could not charge for research because lawyers wereexpected to know the law without charging for time toresearch the legal issues commonly encountered in thatcourt.

To build a reputation and market my services, Iwrote articles and books about criminal law, main-tained a steady schedule of community speakingengagements and taught lawyers and judges at CLEprograms. I have no law firm technical “geek,” so my15-year-old son taught me how to create a PowerPointpresentation for a CLE seminar.

Practice AreasI believe solo practitioners can responsibly handle

any type of case, but they have limits when it comes toresources. Just like the Army, different kinds of unitsmust be deployed depending on the mission and tacti-cal environment.

A sole practitioner taking on a long trial against alarge law firm is akin to the folly of throwing ferociousbut lightly equipped paratroopers against divisions ofheavily armored troops on the battlefield. I have suc-cessfully battled alone against ten lawyers in a court-room for weeks, but I don’t recommend it.

I don’t think the true measure of a law firm is its sizecontinued on page 23

What’s Your Line?Share It with Listeners onWNED Radio Program

Educating consumers about their legal rights hasalways been a Bar Association priority. Each week,4,000 listeners tune in to The Law Line on WNED-AM970 to hear host Mike Desmond talk to local lawyers onsubjects of interest to the general public. From talkabout Lemon Laws to marital matters and real property law, the program has been educating WesternNew Yorkers since 1997.

So what’s your line? Want to talk about it on theradio? The live call-in show airs every Saturday at 10:00 am from the WNED studios at Horizon Plaza (Lower Terrace at Charles Street). CallKatherine Bifaro at 852-8687 or email her at [email protected] if you’d like to appear as a gueston the show.

The Law Line is underwritten by the Erie CountyBar Foundation and the BAEC’s Lawyer Referral andInformation Service. [B]

January 2006.pdf 12/27/05 10:22 AM


PAGE 20

Laurence Oppenheimer, a part-ner with Hiscock & Barclay’s Buffalooffice, has been elected the chair ofthe Labor Lawyers AdvisoryCommittee for CUE, Inc. His firmhas also appointed him state-wideBusiness Services Practice GroupLeader. In that capacity, he willoversee all legal work in the corpo-rate, healthcare and human services,international business, labor andemployment, and tax practice areas.Oppenheimer handles employmentlitigation in state and federal courtsand agencies throughout the UnitedStates, as well as representing state

and local public employers and private employers in avariety of business sectors. Catherine T. Wettlaufer,also with Hiscock & Barclay has been appointed by thefirm as state-wide Private Clients Practice GroupLeader, in which capacity she will oversee all legalwork in the immigration and trusts and estates practiceareas.

Rebecca Jo Talmud has estab-lished an office at 5662 Main Streetin Williamsville, NY, in associationwith Shelby Bakshi & White. Talmudpreviously worked in the corporatel ega l depar tment o f Ade lph iaCommunica t i ons in Hanover,Massachusetts. A graduate of Boston

College Law School, Talmud will focus her practice inthe areas of family law, adoptions and estates.

Jeffrey C. Stravino, a seniorassociate in Hodgson Russ LLP’sBusiness Litigation Practice Group,was recently elected president of theHarvard-Radcliffe Club of WesternNew York. Stravino practices in thearea of commercial and business liti-gation, including intellectual property

litigation and environmental litigation. The Harvard-Radcliffe Club of Western New York provides network-ing and educational opportunities for Harvard gradu-ates in this area.

Daniel J. Ward has been reelect-ed to the Amherst town board. Ward,a former Erie County Legislator andAmherst town supervisor, was firstelected to the Amherst town board in1987. He was the unsuccessfulDemocratic candidate for CountyExecutive in 2003. He maintains a

general law practice at 5500 Main Street inWilliamsville, New York.

Harter, Secrest & Emery LLP, is included in anetwork of 12 mid-size North American law firms thathave agreed to affiliate with a network of 16 mid-sizeEuropean law firms, significantly increasing opportu-nities for clients of the member firms. The affiliation isa “cost-effective and efficient solution to address theinternational needs of clients without the high cost ofmerging with a large international law firm,” accord-ing to a firm spokesperson. Great Lakes Law Networkand Lexwork International agreed at a meeting inLondon, England, in October, to become affiliatesunder the Lexwork name. Clients will have access tomore than 1,600 attorneys from 28 firms acrossEurope, North America and Asia. Through LexworkInternational, clients with legal needs in foreign coun-tries can be referred to firms that are knowledgeableabout local laws and customs.

J. Patrick Lennon, a litigationassociate at Bouvier Partnership,LLP, has been elected to the board ofdirectors of the St. Thomas MoreGuild, Inc. for a three-year term.The Guild’s membership is com-prised of Catholic lawyers in theDiocese of Buffalo and the group has

a long history of providing volunteers and financialsupport for worthy causes.

Lisa McDougall and ChristopherR. Viney, members of the HealthCare Practice Group with PhillipsLytle LLP, recently presented an in-house training seminar on “AdvanceDirectives.” They also recently pre-sented a seminar for the CatholicHealth System entitled “Institutional

Review Board Training.” McDougall has also beenelected President of the board of directors forNeighborhood Legal Services, where she has served onthe board of directors for the past six years. She focus-es her practice on health care law and received her JDfrom University at Buffalo Law School and her BA,cum laude, from State University of New York atBuffalo. A member of the American and New York StateBar Associations, the Women’s Bar Association of theState of New York and the American Health LawyersAssociation, McDougall serves as co-chair of theBAEC’s Health Care Law Committee and serves on theBio-Ethics Committee at Sisters Hospital.

Viney focuses his practice in the areas of broad-basedlitigation and transactional practice with a concentra-tion on health law issues, including federal and statestatutes affecting health care providers, i.e. Medicareand Medicaid laws and regulations, anti-kickback andStark statutes, provider-based rules, EMTALA, HIPAAand the False Claims Act. Viney received his JD, magnacum laude, from Albany Law School of UnionUniversity and his BA from The George WashingtonUniversity. He is a member of the American HealthLawyers Association, American and New York StateBar Associations and the Health Care Law Committeeof the BAEC. He is an officer in the United StatesNaval Reserves and serves on the governing board forMusical Fare Theatre.

Michael I. Serotte of SerotteImmigration Group has merged hispractice into the firm of LippesMathias Wexler Friedman LLP.Serotte has become a partner in thefirm and will be joined by NatalieAbraham, Fatimat Balogun, BethKlarin, Jamie Fiegel Maddalena and

Ann-Marie McCarty. The Serotte Immigration Groupwill continue to focus on providing immigration lawassistance to businesses, investors, athletes and enter-tainers and will also collaborate with the growingcross-border business practice of Lippes MathiasWexler Friedman LLP.

Anne E. Doebler has opened alaw practice focusing on immigrationlaw at 107 Delaware Ave., Suite1480, in downtown Buffalo. Doeblerhas been in practice for 15 years, thelast nine as managing attorney of theInternational Institute of Buffalo’simmigration legal department. She is

a graduate of St. Lawrence University and theUniversity at Buffalo Law School. Doebler is a memberof the American Immigration Lawyers Association. Hercontact information at the new location is as follows:phone: 898-8568; fax 898-8929; and e-mail [email protected].

Jeffrey Freedman Attorneys at Law received theSmall & Midsize Law Firm Award at the recentVolunteer Lawyers Project Recognition Awards. JeffreyFreedman has been associated with VLP for over 20years and was the recipient of the first bankruptcy

Bench and Bar continued from page 3

Oppenheimer

Wettlaufer

Talmud

Stravino

Ward

Lennon

McDougall

Serotte

Doebler


January 2006.pdf 12/27/05 10:22 AM


award in 1993. Freedman was instrumental in bringingJohn Rao of the National Consumer Law Center to doa recent VLP training session on the Bankruptcy AbusePrevention and Consumer Protection Act of 2005. Healso served as a presenter at that session. Other attor-neys in the firm who regularly accept VLP casesinclude Regina Walker (VLP Bankruptcy Award win-ner for 1999), Paul Pochepan, Jane Mogavero, Lee

Terry and Michael Cole.

Hodgson Russ attorneys PatrickJ. Long (Torts, Insurance &Products Liability) and MarlaWaiss (Federal/International Tax)recently coordinated a firm initiativeto support Kids Voting, an annualprogram that fosters a commitmentto voting for children in grades Kthrough 12. They helped lead agroup of approximately 25 volun-teers as they set up and oversaw KidsVoting tables at more than 15 pollingplaces in the North District ofBuffalo, worked with children andtheir families during the votingprocess, and collected ballots.

Barbara Ellen Handschurecently completed a one-year term as President of the AmericanAcademy of Matrimonial Lawyers. Shepresided over the Academy’s recentannual meeting and three seminarsin Chicago. Handschu focused her

term as President on protecting children whose parentsdo not live together. During her term, the AAML enact-ed a comprehensive Model Parenting Plan designed tohelp lawyers better advise their clients about post-divorce parenting issues. Handschu is scheduled to lec-ture at the Association of the Bar of the City of NewYork about parenting plans on January 11, 2006.

Edward G. Piwowarczyk,Managing Partner of JaeckleFleischmann & Mugel, LLP, hasbeen elected President of theWanakah Country Club for the 2006term year. Piwowarczyk has been amember of the club for nearly 20years and served on the board as

Vice-President from 1995 through 1997. Piwowarczykis a member of the firm’s Labor and EmploymentPractice Group. He concentrates his practice in man-agement labor relations law, public employment rela-tions law, public sector collective bargaining, municipallaw and education law. He appears in Best Lawyers inAmerica, Who’s Who in American Law and the BuffaloBusiness First “Lawyers Who Mean Business.” Prior tojoining the firm, Piwowarczyk served as the Directorof Labor Relations for the County of Erie.

Paul R. Comeau, chair ofHodgson Russ LLP, was recentlyelected to the board of directors ofthe Business Council of New YorkState, a statewide organization thatadvocates public policies to improvethe business climate. Comeau hasbeen at Hodgson Russ for his entire

32-year career as a lawyer. He concentrates his prac-tice in taxation, business planning, and estate plan-ning, and is listed in The Best Lawyers in America.Comeau serves as co-editor of New York Tax Serviceand New York Tax Cases, and co-chairs the MultistateTax Committee of the New York State Bar Association’sTax Section.

Michael W. Cole, an associateattorney in the office of JeffreyFreedman Attorneys at Law, hasbeen elected supervisor for the townof Alden. Cole had served as a towncouncilman in Alden since 1998,winning two prior elections for thatoffice. Prior to joining the Freedman

firm, Cole served as General Counsel in the Buffalo dis-trict office of former U.S. Congressman Jack Quinn.

Joseph (Jed) E. Dietrich, III hasestablished The Dietrich Law Firm,of which he is the principal. Dietrichhas spent the last six years prosecut-ing cases on behalf of injured plain-tiffs and will continue to focus hispractice on the representation ofthese clients. A recent invitee for

membership in the Million Dollar Advocates Forum,Dietrich is included in Marquis’ Who’s Who inAmerican Law and is a member of the Association ofTrial Lawyers of America. Dietrich was formerly theFirst Assistant District Attorney of Cattaraugus Countyand an Assistant District Attorney for the County of Erie.

Robert C. Atkinson, a law clerk with Simpson &Simpson, PLLC, was recently admitted to practicebefore the United States Patent and Trademark Officeas a registered patent agent. He received bachelor’sdegrees in chemistry and chemical engineering fromSUNY Geneseo and the University at Buffalo, respec-tively, and is pursuing his Juris Doctor degree from theUniversity at Buffalo with an expected graduation dateof May 2006. Upon graduation, he will focus his prac-tice in the areas of intellectual property prosecutionand litigation. Atkinson is the acting secretary for theNiagara Frontier Intellectual Property Law Association.

Doris A. Carbonell-Medina has been elected tothe board of Consultors of the Saint Augustine Scholarsand Saint Monica Scholars programs at CatholicCentral School in Buffalo. An attorney in private prac-tice focusing on employment discrimination and civilrights issues, Carbonell-Medina has been recognizedby a number of organizations including BusinessFirst’s 40 Under Forty award. Her community serviceactivities include the Latino Education Taskforce, theHispanic Conference of Upstate New York, theLangston Hughes Cultural Arts Institute, the City ofBuffalo Commission on Citizens’ Rights & CommunityRelations, and Computers for Children. She is a grad-uate of the University at Buffalo Law School and theUniversity of Syracuse. In addition, Vastye W.Gillespie, a staff attorney with the United AutoWorkers Legal Services Plan, has been re-appointed

Bench and Bar continued from page 20

Long

Waiss

Handschu

Piwowarczyk

Comeau

Cole

chair of the board’s Development Committee. Theschool’s programs are patterned on the Nativity Modelfor inner city education started on Manhattan’s LowerEast Side in 1971. Boys and girls in sixth, seventh andeighth grades are provided an extended day, week andyear in small, single-gender class settings in order toprepare them for success in high school and college.

David W. Polak, of the LawOffice of John Feroleto, was recentlyelected Councilman for the Town ofElma. He is currently serving aschair of the BAEC’s Young LawyersCommittee. In that capacity, Polak isresponsible for coordinating the BarAssociation’s mock trial tournament

for area high school students.

Buffalo attorney James P. Rendahas been listed in the 2005-06 edi-tion of The Best Lawyers in America.The selection process is based on apeer-review survey in which 16,000attorneys are polled about otherlawyers in their practice areas. Lessthan one percent of all U.S. attorneys

appear on the list. A graduate of Canisius College andthe University at Buffalo School of Law, Renda focus-es his practice in matrimonial and family law and is acertified Fellow of the American Academy ofMatrimonial Lawyers. He is past chair of the SupremeCourt Appellate Division Fourth Department’sAttorney Grievance Committee and a former directorof the Bar Association of Erie County. Renda is also amember of the Western New York Matrimonial TrialLawyers’ Association, the Western New York TrialLawyers’ Association and the New York State BarAssociation. He maintains an office at 69 DelawareAvenue, Suite 1006, Buffalo, New York. [B]

Dietrich

Polak

Renda

January 2006.pdf 12/27/05 10:23 AM


PAGE 22

UNKNOWN SOLDIER

Did you correctly identify the

young man in uniform

who appears on page 9?

If you guessed

the Hon. John T. Curtin,

you may now pass

“GO” and collect $200.

Open Forum to AddressGovernance Issues

A meeting has been scheduled for Tuesday, January31 at 3:30 p.m. at the Bar Center to solicit memberinput on proposed changes to the Association’s electionprocess. As discussed in this month’s President’s Letter,the board of directors will soon consider a task forcerecommendation to amend the Association’s by-laws,allowing a single slate of directors to be presented tothe membership by the Nominating Committee. Theamendment would not change the way officers arechosen via contested election.

All changes to the Association’s by-laws requiremembership approval. The meeting will allow memberperspectives to be heard prior to any formal recom-mendations being considered by the board of directors.

If you are unable to attend, please share your thoughtswith President McCarthy by telephone at 847-7040 orby e-mail at [email protected]. [B]

WelcomeNew Members

The Bar Association of Erie County is pleased

to welcome the following new members:

It’s great to belong to something this good.

Clifton M. Bergfeld

Christopher J. Brechtel

Melissa Brewster

Joseph S. Brown

Patrick A. Craig

David C. Crowther

Kara DeAngelo

Ann N. Dintino

James Salvatore Giardina

Ashley W. Johnson

Robert N. Lerner

Jeff Magliato

Patrick J. McDonnell

James R. Newton

Matthew R. Niemiec

Karen Riedesel

Robert W. Schnizler

Sheldon K. Smith

Rebecca J. Talmud

Scott C. Vadnais

January 2006.pdf 12/27/05 10:23 AM


Arbor Capital RecognizedArbor Capital Management was recently named one

of Nelson Information World’s Best Money Managersfor the five-year period ending September 30, 2005,and as one of Bloomberg’s Top Wealth Managers intheir annual ranking for 2005.

The Amherst firm has managed the Erie County BarFoundation’s investments at a greatly reduced rate formore than 15 years. If you or someone in your firmcould benefit from their services, please contact LarryMcGowan or Gerald Cole at 446-9111 or visitwww.arborcapital.com. [B]

Need to Refer Clients?How do you handle those occasional

inquiries from prospective clients about areas oflaw in which you or your firm don’t practice?Everyone wins when you suggest that they callthe Bar Association of Erie County’sLawyer Referral & Information Service at852-3100.

Because the Service has been part of the Bar Association for more than 30 years, public con-fidence in the program remains very high. TheLRIS currently handles more than 19,000inquiries per year. More than 100 local attor-neys serve on the panel, with experience in vir-tually every area of practice.

For more information about referring clientsor joining the LRIS panel, contact MarciaMcKowan at 852-8687, Ext. 13. Please sharethis information with other appropriate staff inyour firm.

LRISL A W Y E R R E F E R R A L A N DI N F O R M AT I O N S E R V I C E

but rather the quality of the service it provides. Inmany cases, large and small law firms should collabor-rate to provide the best qualities of both firms for the client. I often collaborate with large firms to provide specific support services that benefit clients.

The Isolation IssueRegardless of law firm size, lawyers must deal with

the frustration of exasperating clients, nonpayingclients and hostile opposing counsel. For many solepractitioners, however, “one is the loneliest number”and practicing alone represents another major obsta-cle. Lawyers suffer a statistically higher than averagerate of depression and isolation contributes to depres-sion, so what does that portend for the sole practition-er? I find it helps my mood to network with my men-tors, mentorees and to engage in fellowship activitieswith other lawyers. I would surely go insane workingalone out of my home.

Swapping stories is not just a time-honored lawyertradition, it promotes mental health. As a sole practi-tioner, it helps me to be surrounded by other sole prac-titioners at The Cornell Mansion, where lawyers swap-ping stories and assistance is legendary. Also, in aneffort to maintain my sanity, I learned to play the har-monica and wrote a John Grisham-style novel,Symphony of Lies, that will probably never be pub-lished.

The Buffalo community has a fine tradition for gen-erous lawyer mentoring, which I benefited from as a

young lawyer and that I hope to continue as a silver-haired mentor myself. Any of my success was madepossible by the infinite patience of my wife and chil-dren, and their understanding that sometimes (but notalways), clients came first.

After practicing law for 25 years, my advice to younglawyers is to be true to your personality, your familyand your priorities, and when anyone asks if there aretoo many lawyers out there (which there are), I quotewhat Richard “Rit” Moot, that wise, silver-haired bigfirm lawyer said to me many years ago: “There’salways room for the best!” [B]

Resources: Excellent resources about solopractice are available at http://myshingle.com

Glenn Murray has practiced law as a criminaldefense and civil rights attorney in western NewYork for over 20 years.

Solo Practitioner continued from page 19

January 2006.pdf 12/27/05 10:23 AM


PAGE 24

“If truth were self-evident,

eloquence would not be necessary.”

~ Cicero ~

A Brief Guide to American News• The Wall Street Journal is read by the people who

run the country.

• The Washington Post is read by people who thinkthey run the country.

• The New York Times is read by people who thinkthey should run the country and who are verygood at crossword puzzles.

• USA Today is read by people who think theyought to run the country but don’t really under-stand The New York Times. They do, however, liketheir statistics shown in pie charts.

• The Los Angeles Times is read by people whowouldn’t mind running the country – if they couldfind the time – and if they didn’t have to leaveSouthern California to do it.

• The Boston Globe is read by people whose par-ents used to run the country and did a far supe-rior job of it, thank you very much.

• The New York Daily News is read by people whoaren’t too sure who’s running the country anddon’t really care as long as they get a seat on thetrain.

• The New York Post is read by people who don’tcare who is running the country as long as they dosomething really scandalous, preferably whileintoxicated.

• The Miami Herald is read by people who are run-ning another country but need the baseballscores.

• The San Francisco Chronicle is read by peoplewho aren’t sure there is a country or that anyoneis running it; but if so, they oppose all that theystand for.

• The National Inquirer is read by people trappedin line at the grocery store.

W O R T H Q U O T I N G

January 2006.pdf 12/27/05 10:23 AM


Each year at the Annual Dinner,

the BAEC recognizes lawyers and

judges who have made outstanding

contributions to the Association, the

legal community and the profession.

Winners are selected by nominations

sent from the membership to the

Awards Committee. The board of

directors reviews the recommendations

of the Awards Committee and makes

the final determinations.

It remains our goal to honor the

most deserving recipients each year

and to make certain that all members

have the opportunity to participate

in the process. Please consider

submitting your nomination(s)

for the awards at right.

A n n u a l D i n n e r A w a r d sR e c o g n i z e O u t s t a n d i n g C o n t r i b u t i o n s t o t h e P r o f e s s i o n

The Lawyer of the Year AwardThere are no specific criteria for this award. In

the past, the award has been bestowed on attor-neys who have made considerable contributionsto the legal profession and community, or devot-ed considerable time and efforts to BarAssociation activities. Recent Lawyers of the Yearinclude Joel L. Daniels (2004) and John H.Napier (2005).

All Bar members are eligible for this award.Contributions made by those nominated should:

• Promote the good will of the profession both within and outside the legal community.

• Foster respect for the legal profession.

• Elevate the standard of integrity, honor and courtesy in the profession.

• Encourage the spirit of brotherhood and sisterhood among members of the Bar.

• Protect and promote the interests of the public and the profession and advance the administration of justice.

• Promote the protection of American institutions and principles.

The Outstanding Jurist Award This Award is only presented when a jurist’s

devotion to the profession and the judicial systemwarrants singular recognition. The award recipi-ent must receive a two-thirds vote of the board ofdirectors in order for the award to be conferred.Recent recipients include Hon. John P. Lane(2004) and Hon. John T. Elfvin (2005).

The Special Service Award This award is also not presented annually,

but whenever a person has contributed tothe good and welfare of the Bar Associationof Erie County and its members in an excep-tional manner. Karen L. Nicolson receivedthis award in 2004 and Glenn E. Murrayand Richard Kwieciak were recognized in2005.

Award of Merit There are no criteria established for the

Award of Merit. Its presentation oftenreflects extraordinary circumstances thatdeserve special recognition. Albert Mugelwas honored posthumously in 2004 andPaul J. Smaldone received the award in2005.

How to Nominate a Candidate Nomination forms for each of the awards

are available by calling Sharlene Hall at852-8687, Ext. 20. Completed forms shouldbe forwarded to Deanne Tripi, AwardsCommittee Chair, at the Bar Associationoffice. The deadline for receipt of nomina-tions is March 10, 2006.

January 2006.pdf 12/27/05 10:23 AM


providing continuing legal education for your professional advantage

Date/Time/Location Topic CLE Credit Price

Tuesday, January 10, 2006 Wilhelm Willink and Holland Land Co 4.5 credits $70 members11:00 a.m. – 3:00 p.m. Meets the 21st Century $100 non-membersBar Center, 438 Main Street (Encore)

Thursday, January 12, 2006 Ethics for the Matrimonial and Family Law 4.5 credits $70 members11:00 a.m. – 3:00 p.m. Practitioner $100 non-membersBar Center, 438 Main Street (Encore)

Tuesday, January 17, 2006 Improper Investment Recommendations: 1.0 credit $45 per person5:00 p.m. Trusts, Structures and Tax Planning: (Dinner)Daffodil’s Restaurant (Discovering and Resolving Abuse) For tickets contact:930 Maple Road NYSSCPAS in Cooperation with Bar Association Anthony Eugeni atWilliamsville, NY of Erie County (Live) 858-3862

Tuesday, January 24, 2006 REVISED: The Canadian Cottage – Canadian 1.0 credit $20 registration fee1:00 p.m. – 2:00 p.m. Issues for Americans with Richard Halinda, Esq. $25 walk-insBar Center, 438 Main Street (Noonday)

Wednesday, January 25, 2006 Court Certified Article 81 Training 7.5 credits $160 members9:00 a.m. – 3:00 p.m. (Encore) $180 non-membersBar Center, 438 Main Street

Friday, January 27, 2006 Lord of the Rights: Planning,Waging, and Winning 4.5 credits $70 members9:00 a.m. – 1:00 p.m. a Copyright Case in Federal Court $100 non-membersBar Center, 438 Main Street (Live)

Saturday, January 28, 2006 New Contract, New Title Standards, New Ideas 4.5 credits $70 members9:00 a.m. – 1:00 p.m. (Live) $100 non-membersHyatt Regency Buffalo

Tuesday, January 31, 2006 Protecting Your Client and Your Practice 4.5 credits $70 members9:00 a.m. – 1:00 p.m. Before Verdict or Settlement $100 non-membersHyatt Regency Buffalo (Live)

erie institute of law

Name _____________________________________________________________________________________________________

Firm ______________________________________________________________________________________________________

Address ____________________________________________________________________________________________________

City ________________________________________________________ State ____________ Zip ______________________

Phone ___________________________ Fax __________________________ E-mail __________________________________

Enclosed is my check in the amount of $ _______________ ❐ Visa ❐ MC

Card Number ______________________________________________________________ Exp. Date _____________________

Cardholder Signature _______________________________________________________________________________________

ERIE INSTITUTE OF LAWREGISTRATION FORM

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

1. ________________________________________

2. ________________________________________

3. ________________________________________

Cancellation Policy: If you are unable to attend aseminar, for which you have already registered, callSheilah Coleman at 852-8687 ext. 22. For a fullrefund, notice of your cancellation must be receivedbefore the date of the program. Registrants who arepre-registered and fail to attend will receive coursematerials 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

Reserve your advertising space for the February 2006 Bulletin TODAY!The next deadline for ALL Bulletin contributors and advertisers is Friday, January 6, 2006.

Cal l Susan Kohlbacher at Bar Headquarters for more information.

January 2006.pdf 12/27/05 10:23 AM


Listen, Learn & Earn!In today’s competitive, fast-paced legal environment, effective time management is essential. Take advantage of the Erie Institute of Law tape library

and start earning your CLE credits when the time is convenient for you.

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

Among our most recent selections:

United States Trustees’ Office in Buffalo; JeffreyFreedman, founding attorney of Jeffrey FreedmanAttorneys at Law; and Paul Atkinson, President andCEO of Consumer Credit Counseling Service of Buffalo.

Topics covered in this CLE program are: AttorneyDuties, Additional Filing Requirements and NoticeProvisions, Chapter 13 changes, Chapter 7 changes,Repeat Filings and Automatic Stay changes,Family Lawchanges, Exemption changes and Discharge changes.

Two-Part Program: • Marketing Professionally and Ethically• Satisfying Clients Professionally

and Ethically Product code 2076

7.5 CLE Credits: EthicsPresented on April 16, 2005BAEC Members: $120Non-Members: $140Available on cassette and CD only

Marketing Professionally and Ethically:Whether you are a solo practitioner or work in alarge firm, lawyers in private practice have one thingin common: in order to be successful, we all mustattract clients. The competition is tougher than ever,yet lawyers must follow the Code of ProfessionalResponsibility. We know that we are not supposed to“chase ambulances.” But do you know what that reallymeans? Develop and enhance your client relation-ship skills within the ethical boundaries establishedfor our profession. In this seminar, you will learn:

• Hands-on techniques to find new clients;• How to relieve anxiety over client development

activities;• How to reduce your risks of ethics complaints by

understanding the ethical issues surrounding legalmarketing;

• What constitutes “false and misleading”advertising;

NEW Practice Under the NewBankruptcy Law Product code 2089

4.5 CLE Credits: 3.5 Practice Management, 1.0 SkillsPresented on November 12, 2005Available on cassette, CD and video

The provisions of The Bankruptcy Abuse Preventionand Consumer Protection Act of 2005 became effective on October 17, 2005. The provisions of thisAct will affect virtually every aspect of bankruptcypractice, from consumer bankruptcy to businessbankruptcy.This program addresses much of the newlaw and provides detailed information about how thenew provisions will impact your practice, including:

• the new means test, its application and importancein Chapter 7,and the new concept of “presumptionof abuse;”

• the means test and its importance in Chapter 13;• the requirements for debtor education;• the treatment of secured claims in consumer cases

and the treatment of liens secured by automobiles;• the provisions regarding tax issues and the impact

on consumer debtors; and• business issues such as reclamation and preferences.

NEW Understanding the BankruptcyAbuse Prevention and ConsumerProtection Act of 2005Product code 2086

CLE Credits: 7.5 PracticeManagement/Professional PracticePresented on Friday, September 30, 2005BAEC Members and Non-Members $160Available on cassette and CD only

This program is presented by John Rao, staff attorneyat the National Consumer Law Center, Inc. Additionalspeakers include Mary Powers, Trial Attorney in the

Each seminar is priced as follows(unless otherwise stated): Compact Disc/Audiotape: $70.00 BAEC Members, $100.00 Non-MembersVIDEO: $85.00 BAEC Members, $115 Non-Members

To order, send check payable to:The Erie Institute of Law438 Main Street, Sixth Floor Buffalo, New York 14202

Be sure to include your name and address for mailing purposes.Add $5.00 shipping and handling for each tape purchased. Tapes are mailed via UPS, no P.O. boxes please.To order by phone using your Visa or MasterCard, call Mary Kohlbacher at 716-852-8687.

• The ethical parameters of in-person solicitation;• The limits that pertain to entertaining clients;• How referral fees work; and• Ethical restrictions on conducting seminars, writ-

ing articles, and establishing an Internet presence.

Satisfying Clients Professionally and Ethically:The vast majority of ethics complaints filed againstattorneys are service-related. This practical ethics session focuses on the interconnection between suc-cessful client service and the Code of ProfessionalResponsibility. Explore common pitfalls and bestpractices relating to scope of representation, dili-gence, communication and fees. Watch entertainingand informative movie clips of lawyers interactingwith clients. Get recommendations on how to handleangry clients and reduce the risk of ethics complaints.You will:

• Expand your level of business with existing clients;• Prevent the loss of business to competitors;• Increase the number of your referrals;• Learn the ethics rules surrounding “service;”• Understand the ethical considerations surrounding

“quality,” “kindness,” “price” and “interpersonalskills;”

• Learn how to turn satisfied clients into loyalclients; and

• Discover how best to handle angry clients.

Pattern Jury InstructionsProduct code 2082

1.0 CLE Credit: Practice Management/Professional PracticePresented on June 7, 2005BAEC Members and Non-Members: $20Available on cassette and CD only

In this information session,Hon. Jerome C. Gorski ofthe Appellate Division, 4th Department, and SupremeCourt Justice Patrick H. NeMoyer discuss PatternJury Instructions.

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 $20 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 $70and up.

The Buddy System[For 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:___________________________________________________________________________________________

Buddy System Registration Form

January 2006.pdf 12/27/05 10:23 AM


www.eriebar.org

MONDAY 2OFFICE CLOSED

TUESDAY 3Matrimonial & Family Law Committee12:15 p.m. - 25 Delaware Ave, 5th FloorSteven R. Sugarman, Chair

WEDNESDAY 4Committee on Eminent Domain

and Tax Certiorari Committee12:15 p.m. - Peter Allen Weinmann, Chair

Intellectual Property, Computer &Entertainment Law Committee

12:15 p.m. - Adelbert Moot CLE CenterStephanie A. Cole, Chair

THURSDAY 5Negligence Committee12:15 p.m. - Bar Center, 12th FloorThomas P. Cunningham, Chair

FRIDAY 6February Bulletin Deadline

Commercial & Bankruptcy Law Committee

12:15 p.m. - Joseph W. Allen, Chair

MONDAY 9Professional Ethics Committee 12:15 p.m. - Douglas G. Kirkpatrick,

Chair

TUESDAY 10Board of Directors8:00 a.m. - Jeremiah J. McCarthy,

President

Labor Law Committee 12:15 p.m. - Kevin P. Wicka, Chair

Real Property Law Committee12:15 p.m. - Adelbert Moot CLE Center Gerald J. Greenan, Chair

WEDNESDAY 11Health Care Law Committee12:15 p.m. - Lawrence M. Ross andLisa McDougall, Co-Chairs

Unlawful Practice Committee12:15 p.m. - Bar Center, Brennan Room Nancy M. Langer, Chair

THURSDAY 12Criminal Law Committee12:15 p.m. - Adelbert Moot CLE Center Robert M. Goldstein, Chair

FRIDAY 13Practice & Procedure

in Family Court Committee12:15 p.m. - Part 14 of

Erie County Family CourtHon. Deborah A. Haendiges, Chair

MONDAY 16OFFICE CLOSED

TUESDAY 17Corporation Law Committee12:15 p.m. - Adelbert Moot CLE CenterJohn J. Koeppel, Chair

Environmental Law Committee12:15 p.m. - Charles D. Grieco, Chair

WEDNESDAY 18Erie County Bar Foundation 8:00 a.m. - Hon. James A.W. McLeod,

President

THURSDAY 19Practice & Procedure in Justice

Courts Committee12:15 p.m. - Bar Center, Brennan Room Frank Caruso, Chair

Admission to the Bar Committee12:15 p.m. - Bar Center, Arbitration Room Daniel G. Tronolone and

Stephen L. Yonaty, Co-Chairs

FRIDAY 20Legal Nurse Consultants Committee 10:00 a.m. - Christine A. Trojan, Chair

Young Lawyers Committee12:15 p.m. - David W. Polak andNatalie A. Grigg, Co-Chairs

January 2006 calendar

ALL MEETINGS HELD IN THE BAR CENTER, 438 Main Street, Sixth Floor, unless otherwise noted. The AdelbertMoot CLE Center is also located at 438 Main Street, Sixth Floor.

“Get your motor runnin’Head out on the highway…

Lookin’ for adventureAnd whatever comes our way…”

What, you may ask, are the lyrics from a 1968 Steppenwolf song doing in a Barpublication, for crying out loud? To make matters worse, we’re not going to tell you.Not yet anyway. All we can really say – with apologies to Oldsmobile’s ad agency – isthat this is not your father’s Bar Association. And that something completely differentand a whole lot of fun is coming your way very soon. For now, though, just get outthat brand spanking new date book of yours and circle Saturday, March 25.

Although we’ve been sworn to secrecy, here’s a clue: Would a Roastmaster-turned-President who uses a slogan like “Hurt on a Ferry? Call Uncle Jerry” have anythingboring in store for you? Watch this space to find out.

“I like smoke and lightningHeavy metal thunder Racin’ with the wind

And the feelin’ that I’m under…”

MONDAY 23ADR Committee and Federal

Practice Committee Joint Meeting12:15 p.m. - Adelbert Moot CLE CenterLinda W. Chodos and

Patricia H. Potts, Co-Chairs

Banking Law Committee12:15 p.m. - Location to be announced Sharon Prise Azurin, Chair

TUESDAY 24Board of Directors8:00 a.m. - Jeremiah J. McCarthy, President

Elder Law Committee12:15 p.m. - Adelbert Moot CLE CenterBruce D. Reinoso, Chair

THURSDAY 26Human Rights Committee12:15 p.m. - Marilyn A. Hochfield, Chair

Municipal & School Law Committee12:15 p.m. - Bar Center, Arbitration RoomJeffrey W. Stone, Chair

Practice & Procedure in Surrogate’s Court Committee

12:15 p.m. - Bar Center, 12th Floor John C. Spitzmiller, Chair

MONDAY 30Taxation Committee 12:15 p.m. - Raymond P. Reichert, Chair

Workers’ Compensation Committee12:15 p.m. - Workers’ Comp Board,

Conference Room, Statler TowersMary Kay LaForce, Chair

January 2006.pdf 12/27/05 10:23 AM

bar association of erie county vol. 45 | no. 5 |january ... i take no small measure of pride in the...

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