Volume 61, No. 4
The Bulletin is proudly sponsored by
Bar Association of Erie County Bulletin NEW YEAR 2022 | Volume 61 | No. 4
Garry Graber On practicing law, retirement, and how the profession has changed (page 6) ATTORNEY SPOTLIGHT
2 | New Year 2022 | BAEC Bulletin
Bar Association of Erie County Bulletin Table of Contents The Features
5 6 8
Letter from the President Attorney Spotlight: Garry Graber A Message from Foundation President Michael Perley Newly Elected and Re-Elected Judiciary 2022 High School Mock Trial Tournament In The Public Service: Center for Elder Law & Justice Arbitrator Recognition Alcohol & Drug Use Self Assessment Resources
15 15 16 19 19 22 25 30 32 32 34 12 14 20 29 35 39 40 43 45 47 3 4
Addressing Diversity Through Civil Practice Nominations Sought for BAEC Award Programs Driving While Impaired By Drugs Now In Line with Driving While Intoxicated Proposed Federal Court Local Rules Amendments Lawyers for the Arts Program on March 12 Press Release: BAEC’s Member Assistance Program In Every Issue
Upcoming CLE Programs BAEC Sponsors Bench and Bar in The News BAEC New Members Death & Taxes In Memoriam Contributions to the Foundation BAEC Life Members and Contributing Members Western District Case Notes CLE OnDemand Featured Programs Classifieds Bulletin Advertisement Index
Bar Association of Erie County President Vice President Treasurer Hugh M. Russ, III Jill K. Bond Kelley A. Omel
Gayle T. Murphy Anne M. Noble Greg Hirtzel Board of Directors
Deputy Treasurer Executive Director Director of Marketing & Communications, Editor of the Bulletin
Robert C. Brucato, Jr., Colleen Curtin Gable, Krista Gottlieb, Karen Richardson, Kara M. Addelman, Samuel A. Alba, Peter J. Crotty, Jennifer Metzger Kimura, Kelly Barrett Sarama, Anne K. Bowling, Jamila A. Lee, Sharon Nosenchuck, Stephanie A. Saunders
BAEC Bulletin | New Year 2022 | 3
LIVE CLE PROGRAM CALENDAR
To accommodate public health concerns, Erie Institute of Law CLE programs are virtual unless otherwise noted. Access details will be sent to CLE registrants after registering. Please note that some program details are not final as of publication time. For additional program details and to register, visit our website at www.eriebar.org/CLE.
Child Victims Act Update – What’s Happening in NYS Courts Thursday, February 17, 12-1:30pm 1.5 CLE credits: Areas of Professional Practice Watch our website for more information!
Vocal Dynamics: How Lawyers Can Use Their Voice to Impact, Influence and Win More Cases Friday, February 18, 12-1:30pm Watch our website for more information!
CLICK TO VIEW CLE DETAILS AND TO REGISTER
CLE ONDEMAND VIEW ANYWHERE, ANY TIME!
The Erie Institute of Law offers a robust library of pre-recorded CLE program that are easy to access and watch on your time! Get the CLE credits you need wherever, whenever!
CLICK TO BROWSE PRE-RECORDED CLE LIBRARY
See our featured programs on Page 32. Questions? Contact Mary Kohlbacher at mkohlbacher@eriebar.org or by telephone at 716.852.8687.
4 | New Year 2022 | BAEC Bulletin
Bar Association of Erie County SPONSORS Proudly Announcing Our 2022 Sponsors! These organizations have partnered with the BAEC for 2022. We are tremendously grateful for their support and generosity!
Law Firm Sponsors
L LP
A T T O R N E Y S
THE LAW OFFICES OF TIMOTHY M. O’MARA
Corporate Sponsors
BAEC Bulletin | New Year 2022 | 5
Letter from the President
Those of you who have read my recent messages to the Bar Association know that I have been struggling to find the light which does shine through the darkness of the pandemic. Some have tried to reassure me that we will soon conquer COVID-19, or at least wrestle it into submission. Others, like Andrew Isenberg, have sent me inspirational quotations. Andrew reminded me of Johann Wolfgang von Goethe, arguably the greatest German literary figure of the modern era. Although he was better known for his poetry, Goethe studied to become, apprenticed, and practiced as a lawyer. After a debilitating illness, on his deathbed in a darkened room, Goethe cried, “Mehr Licht!” (More Light!) And, there you have my new year’s wish for you: More Light. But I also thought I’d share some of the sources of light on which I have focused in the last few weeks. I recently answered one of those Facebook prompts to name the most famous person I had ever met: Archbishop Desmond Tutu. I met Bishop Tutu in Boston while I was in college. He was engaged in his titanic struggle against Apartheid in South Africa. I believe he had traveled to America to raise awareness (and money). It was a few years before he won the 1984 Nobel Peace Prize. Bishop Tutu was a small man, but you could feel the aura, the power, and yes, the light radiating from him. At the time, I was amazed at his courageous fight against oppression, what he termed darkness or evil. I rejoiced when his movement triumphed in the early 1990s. I was amazed when, after this incredible victory, Bishop Tutu led the mission toward reconciliation with the oppressors. Bishop Tutu called the light “justice.” I am very proud of our new Member Assistance Program. We recognize how difficult the pandemic has been on all of us- no one is immune from the trauma of this pandemic nor the toll that this demanding profession places on all of us. We are at our best when we take care of our clients, ourselves, and our families. Administered by Child and Family Services Employee Assistance Program, our MAP provides wellbeing services — light — for all of our members and their families. The first time you have the opportunity to take a seminar from Megan Andrews, Assistant Director at Child & Family Services EAP, go for it. Megan is all about light, and she will inspire you as she has me. I feel as if I could and should speak more often about our LGBTQ+ community, and the light they shine in this city and beyond. I sometimes think of my retired partner, Bill Gardner, who turned 89 this fall. In the 1980s, Buffalo Police routinely arrested gay men and lesbians. A commercial litigator by day serving some of the region’s most prominent businesses, by night Bill represented
HUGH M. RUSS, III President Bar Association of Erie County
6 | New Year 2022 | BAEC Bulletin those wrongfully prosecuted (and persecuted). Bill may be best remembered for having argued People vs. Uplinger , the groundbreaking Court of Appeals case that struck down New York statutes outlawing consensual sodomy. A plaque in Allentown commemorates Bill’s work, and UB School of Law recently held a symposium on People vs. Uplinger , which still shines light through the darkness. The Minority Bar Association of WNY has been a source of light for me this year. At our Bar Association, we applaud the MBA’s Criminal Justice Task Force, which assumed a lead role in pushing for police reform in Buffalo, exposing outdated and prejudicial practices to the light of day. I am also grateful to know the lawyers of color, younger now than me, that I have had the opportunity to collaborate with as your President, as they work for justice not only in the larger community, but also in our own legal community. These attorneys often work quietly, behind the scenes, passing the baton of justice from one person to the next, as if in a relay race. I view them as people of light, especially in these times of darkness and I glad to know them and appreciate the time they spend with me. At the risk of leaving someone out, Sarah Washington, Sam White, Jenna Metzger Kimura, Larry Waters, Jamila Lee, and Stephanie Calhoun are but a few of the candles shining in the darkness that are I on my mind as I write this letter. There are many more. 2021 has brought me considerable light personally and professionally. I settled two significant wrongful death cases, one for a widow with three elementary school-aged girls, and one for a man who lost his wife, business partner, and soulmate. I hope that I have brought them some light in their darkness. Our house looks peaceful from the outside. White with black shutters and a red door, the house seems as if it belongs in a Norman Rockwell painting. But inside, you will find rows of medication bottles, special foods for dietary problems, and those ubiquitous pads for urinary issues – and that’s just for the dogs. In recent years, the human occupants have all struggled, too. After some detours, both of our children are doing well, and they are theoretically off the payroll. My wife, Linda, retired from D’Youville this semester, and she is actively planning the rest of our life together. Still, don’t float me out on the iceberg just yet. The last source of light for me — dare I say it? Do I risk the jinx? I again find light in the Buffalo Bills. As I stood in the stadium formerly known as the Ralph (I
can’t say Highmark) after the Monday night football loss to the Patriots, another failure in a seeming lifetime of frustration, I vowed to swear off the Bills. My dad took me to my first game at age six. I wrote about the Bills in my college expository writing class. I have had my own season tickets (pre-Jim Kelly) since 1986. I named my son after O.J. Simpson. But I was done. The win in the second game against the Patriots last week restored my faith. It was the team’s most significant victory in over twenty-five years. If Josh Allen doesn’t exude light, I don’t know who does. Even the darkness of the loss to the Chiefs cannot extinguish Allen’s light. Allen’s light will shine through our community for years to come.
Happy New Year and More Light! •
BAEC Bulletin | New Year 2022 | 7
A Conversation with Garry Graber
There are many famous quotes, wise (and unwise) words, and theories about “retirement”. People we know and love will disagree about the pros and cons of retirement and how to live in retirement. Often the question is whether to retire at all. What perhaps we can all agree on is that retirement is indeed a significant transition for many professionals, especially lawyers. The editors of The Bulletin thought it would be nice to hear from one of our bar leaders about his decision to retire and share a look back on his career. Our recent interview with Garry Graber is below. Garry Graber is a past BAEC President as well as a past President of the Erie County Bar Foundation. We wish him all the best in his retirement! If you or a colleague have retirement plans that you want to share with us, please let us know. As we say, we are better together facing life’s challenges and transitions. The BAEC is here to keep you connected. Why did you become a lawyer? My father, who was in law enforcement, always encouraged me to go to law school. He observed that I would frequently argue with him and thus thought that I would make a great lawyer. What lawyer has influenced you most? That’s an easy one. It was Bill Gardner, my colleague and mentor at Hodgson Russ. In fact, he hired me. I met Bill at the end of 1979, shortly after enactment of the new Bankruptcy Code in 1978. Bill is the smartest, most compassionate, and well-spoken lawyer I have ever met. Working with him was always an experience. He also did incredible work fighting for the gay community and achieved a major victory on its behalf at the U.S. Supreme Court. At Hodgson Russ, Bill served as the “firm’s lawyer,” handling errors and omissions, malpractice, and related issues. At Hodgson Russ, that role is reserved for the smartest of attorneys. How long have you been practicing? I graduated from UB Law School in 1978. I started with a smaller firm as a real estate lawyer. It was also in 1978 that the new Bankruptcy Code was substantially modernized and made more accessible to troubled businesses and individuals. By 1980, the new Bankruptcy Code was being put to substantial use and law firms were realizing that a virtually new practice area was developing and that additional attorneys would be needed in that arena. Hodgson Russ offered me a position. I accepted and spent
GARRY GRABER Past President, BAEC, 2000-2001
the rest of my practice primarily representing troubled businesses, their creditors, owners and other parties in interest. What involvement did you have in the legal community outside of the courtroom and what was the most meaningful to you? I have been very fortunate to have had several opportunities to be involved in not-for-profit organizations related to the practice of law. Perhaps most significantly, I had the great honor of being elected as Treasurer and then President of the Bar Association of Erie County following my tenures as Treasurer and President of the ECBA Volunteer Lawyers Project. In addition, I served as a director and then as the President of the Erie County Bar Foundation, sat for several years on the Board of the Center for Elder Law & Justice, had the opportunity to stay involved with UB Law School, and served as President of the UB Law Alumni Association. I have also served as an adjunct faculty member at the Law School, teaching bankruptcy law and related commercial courses. I am presently a member of the on the Dean’s Advisory Committee. Additionally, I was able for several years to endow a UB Law scholarship that funded clerkships for law students with the Volunteer Lawyers Project and the Center for Elder Law and Justice. I have also been a longstanding board member, and have served as Chair, of the Upstate New York Turnaround Management Association and a member of the Insolvency Committee of the Ontario Bar Association.
6 | New Year 2022 | BAEC Bulletin How would you describe your time as President of the BAEC? It was a very rewarding experience. Erie County has a very collegial bar and provided me an opportunity to meet and interact with many lawyers that I probably would never have met much less worked with. One interesting issue that the legal community faced nationwide during my term involved the major accounting firms which were attempting to become “one stop shops” for major businesses by suppling legal representation in addition to their traditional accounting and other advisory services. To that end, the big accounting firms were hiring thousands of lawyers and students right out of law school to provide legal work for their clients that would otherwise have been done by law firms. The legal community viewed that practice as a major conflict given the central nature of the accounting profession (“disclosure”) as opposed to the central nature of the practice of law (“confidentiality”). Thankfully, that concept was discredited, at least in the U.S., following the Enron Bankruptcy. It was rather interesting to be leading a major bar association while this issue was being debated and resolved. Are you fully retired or do you plan on keeping on some clients or working part time? While I am fully retired at the moment (for less than a month), I am sure that I will retain my “love for the law” as well as my license to practice. While I am going to relax a bit into the immediate future, I may make myself available for pro bono work and I will always remain willing to serve the needs or requests of Hodgson Russ. What are some of your plans during retirement? I’m looking forward to spending time with my family and would like to do some traveling. I may also do some volunteer work with non-profit organizations and may get into some political work. In college I majored in English and Philosophy and would love to dive into some of the reading I never had time for. During retirement, do you plan on staying connected to the legal community? In what ways? How will you stay connected to the BAEC? Yes, I have many close friends in the legal community and look forward to interacting with them in various contexts (other than negotiations). I will continue my membership with the Bar Association of Erie County and the Law School, attending events and meetings as I can. What advice would you give young lawyers just getting started? I’d tell a young lawyer to be aware that the practice of law is a very demanding occupation. Lawyers must be prepared and willing to invest whatever time is needed to meet the needs of clients as they arise, be they individuals, business entities, estates, or government entities. It’s demanding work that requires a lot of time, energy, and often a lot of patience. Judges and opponent attorneys are mostly civil and gracious, but not always, and young lawyers should be prepared for anything. That said, I would also tell aspiring
lawyers that the hard work pays off and can be extremely rewarding. As a lawyer, one can truly make a positive difference in the lives of others, as well as a decent living. What advice would you give attorneys who could retire but don’t want to? I would say, “Then don’t!” One nice thing about practicing law is that there is no maximum age limit. To the extent that a senior attorney is financially healthy but not yet ready to take down the shingle, there is plenty of pro bono work out there. This is wonderful and fulfilling work for those that otherwise would not have anyone to turn to and can be done without the aggravations of billable hours, billings, and collections. What ways could you see the BAEC being a resource to retired attorneys or attorneys winding down their practice? The BAEC is a great vehicle to stay connected to others in the legal community and stay up to date on everything related to the practice of law. Through social events, CLE programs, and Committees, there are many opportunities for retired lawyers to stay connected and engaged. How has the legal community and/or practice changed since you started? The boom of digital technology is by far the biggest change to the practice since I first started my career. Computers, the internet, video conferencing, email, texting, and electronic filing are huge advancements to the legal world that have dramatically transformed the way attorneys do business. Interestingly, lawyers don’t necessarily need the human support they used to require. Because of technology, lawyers can do many of tasks for which they used to rely on others. On the other hand, technical support is now needed more than ever. Another change I am pleased to have witnessed over the years is that the legal community has become much more diverse. • Did You Know? The BAEC has a Retired Member level for attorneys who have retired from practice. It offers all the benefits, but at a significant discount! We welcome all retired attorneys to stay connected to the WNY legal community as a member of the BAEC. Click the link below to apply for membership. Select “Other - Retired” for membership level. If you are fully retired and can certify as such, but still paying the full membership dues, please contact our office to switch your membership level to Retired - 716.852.8687. https://eriebar.org/becomeamember/
10 | New Year 2022 | BAEC Bulletin FROM THE ERIE COUNTY BAR FOUNDATION
“MAPping” A Path Through the “Discontent” of Winter Antonio Vivaldi’s 1 signature composition The Four Seasons opens, appropriately with “spring.” “Spring,” after all, symbolizes rebirth and regeneration. Consisting of longer days that lead to summer, it is full of optimism. “Winter” concludes the composition with music that emphasizes survival. Every year we enter winter through a holiday season that, for some, includes family and celebration; while for others, it reenforces feelings of loneliness. However, we arrive at winter, we are all in the same situation. The short days grow longer in imperceptible increments. Some go to work in the dark, while others go home in it. Some do both. This lack of daylight has been recognized as a cause of the medical condition known as Seasonal Affective Disorder. Shakespeare likely hit the nail on the head not only for Richard III, but for us as well. It is a “winter of our discontent.” While I know of no statistics regarding the incidence of SAD among members of the legal profession, statistics that do exist in the areas of mental health are alarming. For that reason, I will continue to wear the green bracelet co-sponsored by the Bar Association and the Foundation to remind myself that, not only is my mental health important, the mental health of my colleagues is as important as my own. That bracelet, however, is only a symbol. It is equally important that the Erie County Bar Foundation take a more active role in the health of our profession. In these complicated times, it is vital that attorneys are at their best, not only for themselves and their client, but for our society as a whole. Being a partner with the Bar Association of Erie County to provide the Member Assistance Program (MAP) as a benefit for our fellow Bar Association members is the Foundation’s first step to proactively assist attorneys in need. I wish that the MAP had been my idea. I really do. However, the credit for this idea belongs to our tireless Executive Director, Anne Noble, who saw the opportunity, and the need, to provide assistance, long before I did. Significant credit also belongs to Hugh Russ and the Board of Directors of the Bar Association with whom we happily partner in this worthwhile program. The Foundation is pleased to underwrite the MAP to offer immediate confidential help to attorneys in need as well as their families.
MICHAEL F. PERLEY President Erie County Bar Foundation
The MAP is important to the Foundation as it allows attorneys and
BAEC Bulletin | New Year 2022 | 11
their families to get the confidential help and support they need to work through their problems before they reach a point where the Foundation is brought into the picture. Make no mistake, we remain always ready to assist each and every attorney that needs our help. The MAP is our investment in attorneys seeking their own path through the problems that they may face. In addition, our MAP provider, Child & Family Services, offers assistance outside of the areas where the Foundation operates, thus expanding the scope of services available to those who reach out to us.
Bar Foundation to say to our colleagues, WE’RE HERE!” •
1 Vivaldi, nicknamed the “Red Priest,” on account of the original color of his hair, served as a music director at a girl’s orphanage for about 40 years. While there, he composed over 100 concertos for the residents to perform. His prolific output, along with the similarity of these compositions, led at least one puckish orchestra program note author [name withheld to protect the current president of ECBF] to pose the question: Did Antonio Vivaldi compose over 100 concertos or the same concerto over 100 times?
In short, MAP is just one more way for the Erie County
Erie County Bar Foundation 2021-2022 FOUNDATION CAMPAIGN
The Foundation needs your help. We are funded almost exclusively by private donations from the legal community. Let’s come together to help our colleagues in their time of need. The Foundation’s mission is to assist lawyers and their families in times of crisis. The Foundation steps in when attorneys face illness, disability, job loss, mental health issues, substance use disorder, or financial hardship. Donate today.
eriebar.org/campaign
12 | New Year 2022 | BAEC Bulletin Bench and Bar In the News
Phillips Lytle LLP announced it has promoted attorney Jeremy M. Amar-Dolan to senior associate. Mr. Amar-Dolan, a member of the firm’s Commercial Litigation Practice Group, has broad experience in all phases of litigation, and has a strong focus on representing financial institutions involving complex products. He is based in the firm’s Buffalo office.
Torrey Grenda has joined the firm of Colucci & Gallaher as an associate attorney. She focuses a majority of her practice on defending clients in products liability matters nationwide. Specifically, she represents manufacturers, designers, distributors and sellers of products in both state and federal courts across the country. In addition to products liability matters, Torrey also defends property owners and management companies in personal injury and premises liability actions. In 2019, Torrey was part of a team that obtained a defense verdict on behalf of a property owner in the Supreme Court of the State of New York, Kings County. Torrey also represents businesses and individual clients in contract and other commercial disputes. Torrey is admitted to practice in the State of New York, as well as federal courts in New York and Illinois. In 2021, Torrey was named as a Rising Star by the New York Metro SuperLawyers. Torrey was born and raised in Buffalo, and currently resides in Manhattan. Attorney William J. Gerken has joined The Coppola Firm. A Williamsville resident, Mr. Gerken is a litigator focusing his practice on matters involving civil litigation, including motor vehicle accident cases, dog bite cases, premises liability cases, labor law, and insurance matters. Mr. Gerken also has resolved numerous cases through alternative dispute resolution, including negotiation, mediation and arbitration. Mr. Gerken graduated from the University at Buffalo School of Law and Rochester Institute of Technology, where he received a degree in political science and journalism. Mr. Gerken is a member of the Inns of Court, Western New York Trial Lawyers Association, Bar Association of Erie County, New York State Bar Association and the American Bar Association. He has been appointed as a court evaluator for adult guardianship cases in Erie County. Hamberger & Weiss LLP has announced that Matthew Hoffman has been named Partner effective January 1, 2022. Mr. Hoffman joined the firm in 2014. He is resident in the Buffalo office. Hamberger & Weiss LLP limits its practice to the representation of insurance carriers and self-insured employers in workers’ compensation claims, W.C.L. Section 120 discrimination claims, Loss Transfer arbitrations and administrative compliance matters and related matters.
Hamberger & Weiss LLP has announced that John Land has been named Partner effective January 1, 2022. Mr. Land joined the firm in 2014. He is resident in the Buffalo office. Hamberger & Weiss LLP limits its practice to the representation of insurance carriers and self-insured employers in workers’ compensation claims, W.C.L. Section 120 discrimination claims, Loss Transfer arbitrations and administrative compliance matters and related matters.
Hamberger & Weiss LLP has announced that David Marello has been named effective January 1, 2022. Mr. Marello joined the firm in 2016. He is resident in the Buffalo office. Hamberger & Weiss LLP limits its practice to the representation of insurance carriers and self-insured employers in workers’ compensation claims, W.C.L. Section 120 discrimination claims, Loss Transfer arbitrations and administrative compliance matters and related matters.
BAEC Bulletin | New Year 2022 | 13
Bond, Schoeneck & King is pleased to announce that Lindsay M. McKenna has been elected member (partner) of the firm. Lindsay M. McKenna represents clients in estate planning, estate and trust administration and estate controversies. She provides solutions tailored to each client’s goals and objectives, including tax planning, elder law and long-term care issues, Medicaid planning, supplemental needs trusts and guardianship proceedings. McKenna strives to guide each client through the planning process by coupling her legal knowledge with her experience handling complex family issues faced by many clients. Phillips Lytle LLP announced it has promoted attorney James R. O’Connor to senior associate. Mr. O’Connor focuses his practice on complex commercial litigation, including contract disputes, business torts, securities litigation, and fraudulent conveyance. In addition, he is a member of the Labor & Employment Practice Group, with experience in discrimination, retaliation, and ERISA litigation. His practice also includes conducting workplace investigations and counseling businesses on employee benefits, risk management, and compliance. Mr. O’Connor has additional expertise in land use, and civil rights litigation. He is based in the firm’s Buffalo office. Claudia Rafi has joined the firm of Colucci & Gallaher as an associate attorney. Claudia concentrates her practice on civil litigation with a focus on products liability. Claudia graduated Cum Laude from the University of South Carolina School of Law. At USC, Claudia volunteered for the Pro Bono Department and tutored the first-year law students’ Property class. Prior to law school, she attended Denison University in Granville, Ohio where she was a four-year starter on the Women’s Lacrosse team. Claudia is admitted to practice in the state of Maryland and is a member of the Maryland Bar Association. Bond, Schoeneck & King is pleased to announce that Amanda Rosenfield Lippes has been elected member (partner) of the firm. Amanda Rosenfield Lippes is an intellectual property attorney registered to practice before the United States Patent and Trademark Office. Lippes advises clients in developing cost-efficient and goal-oriented strategies to provide broad and comprehensive legal protection. Her practice is focused on the areas of patent, trademark, copyright and licensing. Lippes represents clients, from startups to multinational corporations, in all phases of patent prosecution, assists clients with all stages of trademark prosecution and advises them with patentability assessment, validity/freedom-to-operate analysis and portfolio management. Phillips Lytle LLP announced it has promoted attorney William V. Rossi to senior associate. Mr. Rossi concentrates his practice in commercial litigation, including breach of contract, antitrust and trade practices, business disputes, commercial real estate litigation, and trusts and estates litigation. He also advises clients on compliance with data security and privacy regulations. He is based in the firm’s Buffalo office.
If you are a BAEC member in good standing and you’ve moved, been promoted, hired an associate, taken on a partner, or received an award, we’d like to hear from you. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice and high resolution photo (300 dpi) to Greg Hirtzel at ghirtzel@eriebar.org. Talks, speeches (unless they are of international stature), CLE presentations, and political announcements are not accepted. HOW TO PLACE A BENCH & BAR ANNOUNCEMENT
14 | New Year 2022 | BAEC Bulletin Bar Association of Erie County NEW MEMBERS
The Bar Association of Erie County is pleased to welcome the following new members:
Alexis M. Banaszak Heather Bashaw Ryan M. Flaherty Aaron W. Knights Jennifer I. Lopez Veronica Luyster Nicholas D. Mansour Nicole Mastrocinque Joseph Paladino Thraptthi Perumal Lynne M.J. Vicars
BAEC Bulletin | New Year 2022 | 15
Congratulations, Judges! The Bar Association of Erie County extends its heartfelt congratulations to the members of the judiciary who were elected, or re-elected, to the bench. We wish the entire judiciary well during their terms on the bench. •
Erie County Family Court Honorable Sharon M. LoVallo Buffalo City Court Honorable Phillip L. Dabney, Jr. Honorable Rebecca L. Town Honorable Carrie A. Phillips Honorable Diane Y. Wray New York State Supreme Court Honorable Grace M. Hanlon Honorable John B. Licata Honorable Frank Caruso Honorable Raymond W. Walter
2022 BAEC High School Mock Trial Tournament
The Bar Association of Erie County is looking for members to offer their time and assistance to serve as a judge for the 2022 edition of the Association’s High School Mock Trial Tournament. This year, Matthew Fitzgerald, chairs the Tournament for the first time. Craig Bucki, Matt’s colleague at Phillips Lytle LLP, is working alongside Matt to identify prospective judges and mentor him in administering another successful Tournament. Craig served as the Tournament’s Chair from 2012 through 2018. The Tournament is celebrating its 40 th anniversary in Erie County in 2022. Click the button below to see the Bar Association’s official invitation seeking judges for this year’s Tournament, which again will take place entirely
on Zoom, as it did in 2021. As specified in the letter, rounds are slated to take place on Saturday, February 5, 2022, at 9:00 a.m.; Saturday, February 12, 2022, at 9:00 a.m.; Saturday, March 5, 2022, at 9:00 a.m.; and Saturday, March 19, 2022, at 9:00 a.m. and 1:30 p.m. If you would be interested in serving as a judge this year, please email Craig Bucki at your earliest opportunity at cbucki@phillipslytle.com. Remember that, in each biennial reporting period, you can receive three (3) CLE credits for judging one mock trial round. The Bar Association of Erie County would appreciate your service to help high school students learn more about our adversarial system of justice through mock trial. •
CLICK TO READ OFFICIAL INVITATION
16 | New Year 2022 | BAEC Bulletin In the Public Service
CENTER FOR ELDER LAW & JUSTICE
Family Guardian Support Project Launches at the Center for Elder Law & Justice Recently, the topic of Guardianship has been a hot-button issue. From the termination of pop sensation Britney Spears’ thirteen- year-long conservatorship, to the fraud and abuse portrayed in the Netflix thriller “I Care A Lot,” the media can paint Guardianship as being overly restrictive and exploitative. While this may be the case in exceptional circumstances, the reality is that the institution of a Guardianship is vital to help incapacitated individuals manage their affairs and maintain their essentials of daily life. Once appointed, a Guardian has countless responsibilities and obligations related to caring for a person under Guardianship. This can be particularly daunting for individuals who do not have professional experience in managing someone else’s affairs, seen especially in cases where family members or friends are appointed as a Guardian for their loved ones (a so-called “Family Guardian”), under Article 81 of the Mental Hygiene Law (“Article 81” Guardianship). In addition to managing the day-to-day affairs of their loved ones, Family Guardians must also complete annual reports regarding their loved one’s finances and personal affairs, navigate complicated governmental programs such as Medicare, Medicaid, and Social Security benefits, make complex medical decisions, and maintain their familial or social relationships. Despite these numerous and often time-consuming duties, most Guardians are required only to take one web-based training through the New York State Unified Court System’s Guardianship Assistance Network, which has offices in Brooklyn, NY. Further, once the final Order has been granted by the Court, there are typically no further proceedings, and the Family Guardian is often left to manage the affairs of their loved one on their own. To address this unmet need for support for Family Guardians, the Center for Elder Law & Justice (CELJ), through support from the Ralph Wilson Foundation and Foundation 214, is excited to announce the launch of the Family Guardian Support Project. This program draws from the professional experiences of CELJ’s Guardianship Unit, which serves as the court-appointed Guardian of the Person and/or Property of approximately 100 individuals at any given time.
BRADLEY LOLIGER Family Guardian Support Project Director, CELJ
CHRISTOPHER PHILLIPS Staff Attorney, CELJ
BAEC Bulletin | New Year 2022 | 17
serves Erie, Niagara, Orleans, Allegany, Chautauqua, Cattaraugus, Wyoming, and Genesee Counties, at no cost to these communities. To learn more about the Family Guardian Support Project, or to make a direct referral, please contact Staff Attorney Bradley Loliger, who serves as the Family Guardian Support Project Director, at 716-853-
Leveraging this work conducted by CELJ’s Guardianship Unit, the Family Guardian Support Project provides one-on-one technical support to Family Guardians who encounter questions or concerns in their new roles. Once a problem for Family Guardians is identified, CELJ has several attorneys who are available to answer questions via telephone, or meet in person with Family Guardians to provide support and guidance to Family Guardians. From medical and placement decisions, to finances and health insurance options, the Family Guardian Support Project can go in-depth to explain language in the Court Order, and translate the powers from “legalese” to language that is easier for a lay-person to understand. As mentioned above, one of the most challenging tasks for a Family Guardian is the completion of their annual reports, in which every dollar of an incapacitated person’s monies must be accounted for, and reported to the Court each year. Thereafter, Family Guardians must submit these reports to the “Court Examiner,” who reviews them and then reports any discrepancies or issues. The Family Guardian Support Project can help guide Family Guardians through this process, and explain how to properly report all income and expenses. In addition to these individual consultations, we also deliver presentations to Family Guardians, attorneys, and other interested parties regarding the Article 81 Guardianship process and ways in which the Family Guardian Support Project can assist. The Family Guardianship Support Project seeks the support of both the bench and the bar to spread the word widely to make all court-appointed guardians aware of the Family Guardianship Support Project as a resource available to help Family Guardians thrive in their important roles. “From medical and placement decisions, to finances and health insurance options, the Family Guardian Support Project can explain and translate “legalese” to language that is easier to understand.”
3087 Ext. 220, or via email at bloliger@elderjusticeny.org. •
The Family Guardian Support Project proudly
18 | New Year 2022 | BAEC Bulletin
Bar Association of Erie County Committees
www.eriebar.org/Committees Not yet a part of a Committee? As a BAEC member, they’re free to join! Join a committee today! See the full Committee meeting calendar online:
BAEC Bulletin | New Year 2022 | 19
Thank You Arbitrators!
Susan Hogan Kristin Arcuri Jeffrey Markello Paul Vance Krista Gottlieb
Timothy M. O’Mara Steve Sugarman Elizabeth Bakos Deborah Di Matteo Dave Carr Warren E. Clark Nicholas G. Baich Kathleen Winter
Our arbitrators are an integral part of the Bar Association of Erie County. As volunteer mediators between clients and their attorneys during disputes, they put in a lot of time and effort to bring about amicable resolution. We’re very proud of our arbitrator program and incredibly thankful to our arbitrators! Here is our roster of both attorney and lay arbitrators for 2021. Thank you all! •
Salvatore Sanfilippo Randy Oppenheimer Gerald Grace
Ayoka A. Tucker William Gersten
Kenneth Scigaj Tom Waring, Jr.
Alcohol & Drug Use Self Assessment Resources BY MARY MOORMAN PENN
The Lawyers Helping Lawyers Committee is often approached by people in the legal community who say they are concerned about someone's drinking habits. The approach we typically take is to share a bit of our personal stories as people in recovery. Other resources include a quick self assessment. There is one on the NYC bar website at https://www.nycbar.org/serving-the-community/ lawyer-assistance-program/alcohol-and-drug-use- questionnaire.
a wealth of information for people who may have a problem with drinking and the people who care about them. If you or someone close to you needs assistance, please don’t wait to contact us. The Lawyers Helping Lawyers Committee can be reached 24/7 through our confidential hotline at 716.852.1777. •
A similar survey is available at AA.org, a website with
Let Us Assist You With Your SSD & SSI Cases
• We have a winning track record & helped over 20,000 clients with their claims. • We pay referral fees as allowed by New York Rules of Professional Conduct . • Your client relationship is protected.
Please call us at 716-856-7091 , email Jeffrey Freedman Attorneys at info@jeffreyfreedman.com .
Administrative Office: 424 Main St., Suite 622 Buffalo, NY 14202 | Prior results do not guarantee or predict a similar outcome with respect to any future matter.
20 | New Year 2022 | BAEC Bulletin Death & Taxes
Web Surrogate is Back Online Public access to Surrogate’s Court files is now available using the link: https://websurrogtes.nycourts.gov/. Access is limited to documents filed after February 19, 2014. Documents filed before that date are only accessible on the public computers at the courthouse. When Web Surrogate was first tried, we complained that it permitted public access to financial documents such as accountings. It now appears that financial information, such as accountings, is no longer accessible on-line. We tried accessing some accountings we have filed, and could not pull them up on-line. Accountings do show as being in the file. So, someone interested in an estate’s finances could learn that there is an accounting in the file, and could then access that information by means of the public computers at the Courthouse. Uniform Rule 207.64 requires parties to omit or redact Confidential Personal Information such as taxpayer ID numbers or Social Security numbers, credit card numbers, bank account numbers or credit card numbers, in filings other than an application for Voluntary Administration. The Court may sua sponte remove CPI or return the papers to the filer to redact. Some Felons May Now be Fiduciaries SCPA 707 has been amended to remove the blanket prohibition against felons serving as fiduciaries. Now, persons who may be ineligible to receive Letters in the Court’s discretion include “an individual convicted of a felony whose crime may be adverse to the welfare of the estate, including but not limited to, crimes such as embezzlement or any crime where there was a misappropriation of money or a breach of fiduciary duty.” Thus, for instance, a drug conviction will not disqualify the felon from being an executor. That amendment to SCPA 707 became effective October 22, 2021. Estate Taxes As we write this column, it appears that the President’s Build Back Better bill is dead due to Senator Manchin’s announcement that he cannot support the bill. Therefore, many of the estate tax changes which were originally floated earlier in the year will not happen. Here is a quick summary of some of the more important non- changes: Income Tax Rates: No change to the 37% top tax rate on ordinary income or 20% top tax rate on long-term capital gains and qualified dividends.
PETER J. BREVORKA Partner, Brevorka Law Firm, P.C.
JILLIAN E. BREVORKA Partner, Brevorka Law Firm, P.C.
BAEC Bulletin | New Year 2022 | 21
Gift, Estate and Generation-Skipping Transfer (GST) Tax: No change to gift, estate, or GST tax exemption amounts or rates. The current exemption amount of $11.7 million per person ($23.4 million per married couple), will increase in 2022 by virtue of inflation adjustments to $12.06 million per individual ($24.12 million per married couple). The exemption amount is still scheduled to be cut roughly in half on January 1, 2026. The annual gift tax exclusion amount of $15,000 per person will increase in 2022 due to inflation adjustment to $16,000 per person. “SCPA 707 has been amended to remove the blanket prohibition against felons serving as fiduciaries.”
There will be no change to grantor trust rules—such as irrevocable life insurance trusts (ILITs), spousal lifetime access trusts (SLATs), intentionally defective grantor trusts (IDGTs), grantor retained annuity trusts (GRATs), qualified personal residence trusts (QPRTs), and charitable lead annuity trusts (CLATs) There will be no change to valuation discounts— such as discounts for lack of marketability and lack of control for family limited partnerships (FLPs) and family LLCs. Passive assets held by closely- held business entities will be subject to valuation discounts, along with operating assets. •
BAR ASSOCIATION OF ERIE COUNTY DISABILITY INSURANCE PROTECTION Because your family depends on you
For more information on protecting your income, your family, and your practice, contact
4300 Camp Road Athol Springs, NY Phone: 716-627-5400 Fax: 716-627-5420 E-mail: insurance@ sellersinsurance.com
Underwritten by: Life Insurance Company of Boston & New York, Athol Springs, NY. This policy provides disability income insurance only. It does not provide basic hospital, basic medical or major medical insurance as defined by the New York State Insurance Department. The expected benefit ratio for this policy is 60%. This ratio is the portion of future premiums which the company expects to return as benefits, when averaged over all people with this policy. See the Product Brochure and/or Policy Form DIC-N (0900) NY for details concerning policy benefits, limitations and exclusions. CJS671 8/21 Exp. 8/23
22 | New Year 2022 | BAEC Bulletin Addressing Diversity Through Civil Service BY HON. KEVIN M. CARTER AND JENNIFER I. LOPEZ
The Eighth Judicial District recognizes that diversity and inclusion in the judiciary and non-judicial employment are vital for the court system to deliver equal justice under the law, and to fairly resolve all matters that come before its administrative offices. Accordingly, we want to highlight opportunity under our current administration and hope this article will illuminate ways you can become government employed. Below are pertinent Eighth Judicial District composition and employment statistics as of October 13, 2021: • 8 Counties • 11 Cities
Within a few months after the Pendleton Civil Service Reform Act was passed, New York State Assemblyman Theodore Roosevelt directed a similar bill through the New York State legislature and Governor Grover Cleveland signed the bill into law on May 4, 1883. x Consequently, a New York State Civil Service Commission was created; and new legislation was enacted that extended the concept of the merit system administration to municipal levels of government. xi Despite efforts at reform, from 1883 to 1889 the civil service system remained controversial as it ostensibly persisted based on patronage. xii The civil service system was more concretely transformed in 1894 at a New York State constitutional convention where Elihu Root and Joseph Choate – both lawyers and political figures – influenced the critical modification of the state Constitution. They added the following clause: “Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive…” xiii The Civil Service Commission used this clause as a basis to create a competitive civil service testing program; and created a Municipal Services Division and Local Examinations Section to implement the process at a local level. xiv Despite civil service examinations’ aim to determine a candidate’s merit and fitness for a given position, the Eighth Judicial District acknowledges that there are proven inequalities in civil service tests. xv We also acknowledge that because of systemic inequalities, sometimes there is only an illusion of meritocracy: Tests that transform differences that are as likely to be a product of measurement error or flawed test design as they are a reflection of superior qualifications create nothing but the illusion of meritocracy. That illusion creates not only a false sense of individual entitlement to jobs and promotions, but also a real public danger in the context of positions such as fire and police officers. When the safety and lives of citizens are at stake, it is particularly critical for public employers to have the leeway to ensure that the tests they deploy accurately identify those candidates who are most qualified for these important jobs. xvi Nevertheless, today these exams are necessary to achieve certain government employment opportunities. We implore the public to transmute any perceivable barrier into a tool for success, to get informed, and act toward your future success as a government employee.
• 83 full-time state paid Judges • 833 filled employee positions • 154 vacant employee positions • 24 facilities • 192 Town and Village Justice Courts • 262 Town and Village Justices
Often, the methodology for obtaining state and local government appointments and promotions is through competitive civil service examinations. i Many entry-level government job opportunities in Erie County, for example, require little to no experience to qualify; and some do not require a civil service examination at all. ii Examples of currently available positions (qualifications vary) include Assistant Juvenile Justice Counselor, Youth Program Leader, Administrative Control Clerk, Environmental Services Office Clerk, Cashier, Corporate Coding Manager, Stenographer, Legal Secretary, Law Enforcement Communications Assistant and many more. iii Abridged History of the Civil Service Examination in New York State Although the history of civil service examinations spans millennia and civilizations across the world, iv in New York State, civil service examinations were concretely implemented after 1894. v Prior to introduction of the “merit system” by way of civil service examinations, the dominant method for selecting civil servants was through the spoils system, which granted individuals government posts based on political patronage. vi The spoils system reigned until 1881, when President James A. Garfield was assassinated by a “disgruntled office seeker.” vii This event created needed momentum to reform civil service appointments. viii In 1883, the Pendleton Civil Service Reform Act, which mandated that most federal government posts be awarded based on merit rather than patronage, was signed into law at the federal level. ix
BAEC Bulletin | New Year 2022 | 23
Overview of Civil Service Examinations in New York State In New York State, civil service examinations are intended to ensure that appointments and promotions are made consistent with principles of “merit and fitness,” as mandated by the New York State Constitution. xvii These examinations measure, in part, a candidate’s baseline knowledge and skillset to determine fitness for a given civil service job; xviii they may be written, oral, or practical. xix Each civil service test may differ to meet the needs of the coinciding open civil service post. xx The examinations for positions in state government are separate from those for positions in local government; and are administered by different civil service commissions. xxi At the state level, the New York State Department of Civil Service administers open-competitive tests to all individuals who meet the minimum qualifications for the job; and promotion/transition tests for qualified individuals already employed by New York State. xxii You can apply for most state examinations online at the New York State Department of Civil Service website: https://www.cs.ny.gov/jobseeker/onlineapp/ocappinfo. cfm. xxiii At the local level, both open-competitive and promotion/ transition examinations are available, but are generally given by respective local civil service agencies for specific job titles under its jurisdiction. xxiv They usually include a written test. xxv You can learn where examination announcements are posted and what examinations are being offered by contacting the local civil service agency for the locality in which you are interested in employment. xxvi You may also visit your local library or Town, Village and School District administrative offices to learn more. For example, in Erie County you can obtain available civil service examination announcements and study resources at Erie County Department of Personnel located at 95 Franklin Street, 6th Floor, Room 604, Buffalo, NY 14202. You can also find all of Erie County’s available civil service opportunities and study guides at Erie County’s official government website (https://erie.gov/employment). xxvii You can also call the Erie County Civil Service Exam Line at (716) 858-8729. xxviii Whether you are interested in a civil service opportunity at the state or local level, the guiding light for the preliminary stages of the application is the job’s coinciding examination announcement. Examination announcements provide information on the job title, minimum qualifications, typical job duties, and the type and subjects of the examination. xxix The New York State Department of Civil Service website is a great resource for more information. This website also has test guides published by the Department of Civil Service for state and local government examinations. xxx
Workers with Disabilities (Sections 55-a – 55-c of the Civil Service Law) At the local level, in accordance with Civil Service Law Section 55-a, individuals with disabilities may be eligible for employment in certain positions in local governments, i.e., counties, cities, towns, and villages, without having to take a written examination. To be employed under Section 55-a in local government positions, please apply directly to the employer for any entry-level position for which you meet requisite minimum qualifications. xxxi At the state level, there are specialized programs under Civil Service Law Sections 55-b and 55-c, known as the Governor’s Programs to Hire Individuals and Veterans with Disabilities. Below is an excerpt from the New York State Department of Civil Service website about the same: [T]he Governor’s Programs to Hire Individuals and Veterans with Disabilities [ ] are coordinated efforts to place individuals with disabilities in entry-level state jobs. xxxii Section 55-b of the New York State Civil Service Law authorizes the New York State Civil Service Commission to designate up to 1,200 positions normally filled through competitive examination to be filled through the appointment of qualified persons with disabilities. Section 55-c authorizes the designation of up to 500 positions in the non- competitive class to be filled by qualified wartime veterans with disabilities. In general, an entry-level position that is filled only through an open-competitive examination (one open to the public) may be used for a 55-b or 55-c appointment. No initial written examination is required for appointment. To qualify for either program, you must first submit a formal application. A medical evaluation may be necessary for program certification. xxxiii We encourage you to visit the New York State Department of Civil Service official government website for more information: https://www.cs.ny.gov/rp55/. Overview of Steps to Take a State or Local Civil Service Examination To reiterate, if you are interested in a specific position that requires a civil service examination, you must follow the related examination announcement. Generally, below are the steps you should take, which have been reconfigured from the New York State Department of Civil Service website: 1. Learn about state examination announcements at the New York State Department of Civil Service official website. xxxiv There, you can also learn more about how to get a State job. xxxv 2. In the alternative, learn about your local examination announcements at your local civil service commission website or office, or Personnel Officer who is responsible for administering civil service examinations for local posts. xxxvi 3. If you are qualified to take a civil service examination (reference the qualifications on the examination announcement to see whether you qualify) then you will need to submit a non-refundable application processing fee with your application. In some cases, an individual may qualify for a fee waiver. xxxvii
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