Volume 62, No. 5
Bar Association of Erie County Bulletin March/April 2023 | Volume 62 | No. 5
Law Day 2023: Cornerstones of Democracy Civics, Civility and Collaboration Read on page 8 (See the Award Recipients on page 10)
Capturing the Fun: BAEC’s Recent Events Read on page 30 DE&I Committee News: A Call for Volunteers Read on page 14 Inside BAEC’s Strategic Plan: A Roadmap to Success Read on page 4
KEVIN W. SPITLER, ESQ. Law Day Keynote Speaker
2 | March/April 2023 | BAEC Bulletin
4 8 Bar Association of Erie County Bulletin Table of Contents Features Letter from the President Law Day 2023: Cornerstones of Democracy - Civics, Civility and Collaboration
14 14 16 17 20 21 23 25 27 32
Neil Pawlowski Presented with OUTLaw Award DE&I Committee News: A Call for Volunteers From the Erie County Bar Foundation Spring Into Our BAEC Events BAEC Begins Judicial Candidate Rating Process In The Public Service: The Legal Aid Bureau Embraces a Holisitic Criminal Defense Death & Taxes Lawyers for Learning Bowling Tournament BAEC Recent Events Recap Persistence Pays Off for Claimants in Six-Year Battle to GET SSDI
In Every Issue 3 7
BAEC Sponsors Member Assistance Program Upcoming CLE Programs Bench and Bar in The News BAEC New Members Contributions to the Foundation In Memoriam Western District Case Notes BAEC Life Members and Contributing Members Classifieds
15 18 19 30 31 31 33 40 41 41
Bulletin Advertisement Index Bulletin Submission Deadline
Bar Association of Erie County President Vice President Treasurer Jill K. Bond Timothy J. Graber Gayle T. Murphy Sarah M. Washington Anne M. Noble
Deputy Treasurer Executive Director Editor of the Bulletin
Chase A. Kalandia Board of Directors
Kara M. Addelman, Samuel A. Alba, Anne K. Bowling, Peter J. Crotty, Stephen C. Earnhart, Jennifer Kimura, Jamila A. Lee, Katie L. Kestel Martin, Sharon Nosenchuck, Maura O’Donnell, Kelly Barrett Sarama, Hon. Stephanie A. Saunders, Carmen L. Snell
BAEC Bulletin | March/April 2023 | 3
Bar Association of Erie County SPONSORS Proudly Announcing Our 2023 Sponsors! These organizations have partnered with the BAEC for 2023. We are tremendously grateful for their support and generosity!
Annual Law Firm Sponsors
– ATTORNEYS –
THE LAW OFFICES OF TIMOTHY M. O’MARA
Annual Corporate Sponsors
4 | March/April 2023 | BAEC Bulletin
Letter from the President
5. Supports performance measurement and accountability: A strategic plan establishes clear performance indicators and metrics, enabling the bar association to measure its progress and evaluate its effectiveness. This ensures accountability and transparency, enabling the organization to demonstrate its impact and effectiveness to its members and stakeholders. In summary, a strategic plan is essential for a bar association to ensure that it operates effectively and efficiently, achieving its goals and objectives in a coherent and purposeful manner.” Wow. It usually takes me hours or days to write my letters for the Bulletin. But here I am with a shortcut and a darn good answer. Hopefully, the strategic plan of the association answers this question for its members: Why should I be a member of the BAEC? Our process actually started a while back with a survey of our members to see what is important to members and what their expectations are as members. We got a lot of valuable data from that survey. This year, we convened a strategic planning team representing the various demographics in our association. We hired as a consultant an expert in creating strategic plans for organizations such as ours. We again updated the data we had gathered from the survey with a series of stakeholder interviews. We wanted to hear from current members and those who had once been members but had not renewed their membership in recent years. Our group got together for a couple all day sessions in addition to small group sessions done virtually. We started with the BAEC’s mission that was formulated when our Association was formed in 1887. Don’t be shocked, but a few things have changed since then. We followed with the vision, values and priorities, and how those would be reflected in the Association’s activities going forward. We are in the final stages of this process and the plan will be shared at our Annual Meeting. I hope the plan will confirm for you all what the BAEC offers its members and answers that important question of why you should be a member. Stay tuned! As with my other letters, I dedicate this letter to people who have been instrumental in my career. As you probably know, I have spent nearly all of my career at Rich Products Corporation. I thank Bob and Mindy Rich for creating a culture that inspires me and has brought me not only rewarding work, but so many lifelong friends—people I love like family. I want to thank Bill Grieshober who was very supportive of my choice to run for Vice President and everything else that is important to me personally and professionally. Erika Marabella, Geanne Zanatta and Tom Tierney picked up the slack for me while I took on the extra work of this office. I have worked with Erika and Geanne for many years now and they both inspire me with their authenticity and ability to balance all that comes with being a mother and wife with a challenging career. They are much better at it than I ever was, and yet, I see that it still is a daily struggle. I hope they realize what a great job they are doing both at work and at home and quiet any of those internal voices that whisper that they are not enough. They are so much more than that and should allow themselves the grace they so willingly give to others.
JILL K. BOND President Bar Association of Erie County
Dear Friends,
When I became President of this Association, I had, among my priorities, creating a Strategic Plan for the BAEC. I did get some feedback that some people thought this was “corporate speak” and that organizations do this just to be able to say they did it. Being in-house and a Board member for many not for profit organizations, I have gone through the strategic planning process countless times. But, I wondered, how can I explain to our members why this is so important? I confess I am a Boomer and I have been slow to fully embrace technology. My computer, my phone and my car have such capabilities to make my life and work easier—if only I knew how to use what’s available. Last week, I learned for the first time about AI’s new development—chatbots. It came up at our Board meeting on Tuesday, and then I noticed it everywhere-the news, talk shows, questions at work…. Instead of being slow on this front, I decided to look up “Why do bar associations need a strategic plan?” Who would think this obscure question would have a thorough answer on the bot, but here is what I got in about one minute’s time: “A bar association, like any other organization, should have a strategic plan to guide its operations and decision-making in a cohesive and purposeful manner. Here are some reasons why having a strategic plan is essential for a Bar Association: 1. Clarifies the vision and mission: A strategic plan defines the vision and mission of the bar association, which serves as a foundation for all the organization’s activities. It outlines the core values and goals of the association, providing a clear direction for its members and stakeholders. 2. Focuses on priorities: A strategic plan identifies the key priorities of the bar association, outlining the most critical areas to focus on to achieve its goals. This helps the organization to allocate its resources and efforts effectively, ensuring that it achieves its objectives. 3. Enables effective decision-making: With a strategic plan, the bar association can make informed decisions that align with its overall vision and mission. The plan provides a framework for evaluating options and selecting the best course of action based on the organization’s strategic priorities. 4. Facilitates communication and engagement: A strategic plan serves as a valuable tool for communication and engagement with members, stakeholders, and the wider community. It enables the organization to articulate its goals and objectives, ensuring that all stakeholders understand its direction and purpose.
With gratitude, Jill •
A HUGE THANK YOU TO OUR STRATEGIC PLANNING TASK FORCE!
Jill Bond Tim Graber Gayle Murphy Bridget O’Connell Jamila Lee Anne Bowling Carolyn DeVaughn Andrew Freedman Sharon Nosenchuck
Stephen Earnhart Jennifer Kimura
Rob Brucato Cat McCulle Hon. David L. Edmunds, Jr. Stephanie Calhoun Carmen Snell Oliver C. Young
BAEC Bulletin | March/April 2023 | 5
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6 | March/April 2023 | BAEC Bulletin
Bar Association of Erie County Committees
Our Committee meetings are in full swing! Click the link below to view the calendar and request to join a new Committee!
www.eriebar.org/committees
CLE ONDEMAND VIEW ANYWHERE, ANY TIME!
The Erie Institute of Law offers a robust library of pre-recorded CLE programs that are easy to access and watch on your time! Get the CLE credits you need wherever, whenever!
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Questions? Contact Alicia Quebral at aquebral@eriebar.org or by telephone at 716.852.8687 x122 Watch for The Brief every Wednesday!
BAEC Bulletin | March/April 2023 | 7
8 | March/April 2023 | BAEC Bulletin Law Day 2023 Cornerstones of Democracy: Civics, Civility, and Collaboration
What Is Law Day? Law Day is observed nationwide on May 1st to celebrate the role of law in our society and to cultivate a deeper understanding of the legal profession. The Bar Association’s annual luncheon presents an opportunity to recognize citizens within the Western New York legal community who have made significant contributions to our system of justice. The 2023 Erie County Mock Trial Tournament winners will also be honored. What Is This Year’s Law Day Theme? “In recent years, tensions in our democratic system have revealed deep divisions in American society. These divisions are aggravated by incivility in public discourse and insufficient understanding among many people about the Constitution and the way American government works. Together, however, we can collaborate to overcome our differences, resolve our disputes, and preserve our democracy and republic. To that end, we call on members of the legal profession to lead the way in promoting of civics, civility, and collaboration—the cornerstones of our democracy.” - American Bar Association Where & When Is the BAEC’s Law Day Luncheon? Tuesday, May 2, 2023 | 12:00pm Templeton Landing Two Templeton Terrace, Buffalo, NY 14202 To buy your tickets, click here!
Our Keynote Speaker:
Kevin W. Spitler, Esq. Kevin W. Spitler, Esq. has practiced in Buffalo as a trial lawyer for the last 42 years, focusing on Criminal Defense. He has tried to verdict multiple violent felony matters in both state and federal court. He is a solo practitioner who also handles matters in the areas of real estate, estate and civil litigation. A graduate of St. Joseph’s Collegiate Institute, Canisius College and the International School of Law in Washington (now George Mason School of Law), Spitler has served a term on the BAEC Board of Directors and was the 109th President of the Association from 2015 – 2016. He is also currently serving as Vice President for the Erie County Bar Foundation Board of Directors and will serve as its President this upcoming year. He has been a speaker at continuing legal education seminars, lecturing on jury selection, evidentiary issues, cross examination and general trial technique. He is currently a member of the Bar Association’s Criminal Law Committee. He also served on the Board of Directors of the St. Thomas More Guild and was recognized as the St. Thomas More Guild Lawyer in 2009. He was the 2014 recipient of the Criminal Law Practitioner Award for the Assigned Counsel Program. He has also served as an attorney mentor for new attorneys through the Assigned Counsel Program. Spitler has served on the Catholic Diocese Bishop’s Counsel for the Laity, he served a six-year term on the board of trustees of St. Joseph’s Collegiate Institute, served on the alumni board of directors as well. In 2011 he was recognized as a distinguished alumnus of St. Joe’s with his induction to the Signum Fidei Society. He has also served on the parish council at St. Mark’s Church in Buffalo and as the boys’ basketball coach for 24 years at St. Mark’s Elementary School. The BAEC is honored to have him speak at this year’s Law Day Luncheon!
BAEC Bulletin | March/April 2023 | 9
Law Day Luncheon Awards Overview
Liberty Bell Award The purpose of the Liberty Bell Award is to recognize the community service that has strengthened the American System of freedom under law, and to accord public recognition for outstanding service in one of these areas: 1. Promoting a better understanding of our Constitution and the Bill of Rights; 2. Encourage a greater respect for law and the courts; 3. Stimulate a deeper sense of individual responsibility so that citizens recognize their duties as well as their rights; 4. Contribute to the effective functioning of our institutions of government; and 5. Foster a better understanding and appreciation of the rule of law. Special Service Award The purpose of the Special Service award is to recognize outstanding service to the legal profession. Such service would include: 1. Courteous treatment of members of the legal profession; 2. Efficient handling of duties 3. Cooperation with members of the legal profession; and 4. Willingness to extend themselves for the good of the legal profession and the public. Eligibility: Any person who is not a lawyer and who is connected with the courts or other governmental department or agency including administrative bodies. Police Officer Award The purpose of the Police Officer award is to recognize law enforcement service which strengthens the effectiveness of the American system of justice and freedom under law. The award will recognize outstanding law enforcement service in keeping with the spirit of the Constitution which imposes upon police officers the unique duty to balance the rights of society against the rights of the accused.
Justice Award The Justice Award, to be presented from time- to-time, to an individual, lawyer or non-lawyer, whose efforts have substantially contributed to the improvement of the justice system. Media Award This award is presented annually as part of the Law Day celebration to recognize achievements in print and electronic media and products in media and the arts which strengthen our system of justice and the freedoms guaranteed in the Constitution. Rev. A. Joseph Bissonette Pro Bono Award This award honors the memory of Father Bissonette, who received the Liberty Bell Award posthumously in 1987. Created through the generosity of Raymond Bissonette, Father Bissonette’s brother, the award recognizes and memorializes Father Bissonette’s life’s work with the inner city poor and his commitment to social justice. Therefore, this award recognizes a lawyer’s dedication to pro bono over the course of their career. LAW DAY AWARDEES ON THE NEXT PAGE!
OUR 2023 LAW DAY AWARD WINNERS 10 | March/April 2023 | BAEC Bulletin
Liberty Bell Award Winner : Marianne Mariano, Esq. Federal Public Defender, Western District of New York
Marianne Mariano, Esq. has been selected in recognition of her dedicated service to the legal community in her capacity as the first female to head a Federal Public Defender’s office in the Second Circuit. Not only does Marianne run two offices but she also maintains her own roster of cases and argues in the Second Circuit Court of Appeals. Professionally, she is dedicated to defending all clients, even those who have committed horrific acts. Marianne performs extraordinary work quietly and “under the radar.” Her work has been described as under-recognized and well- deserving. Nomination materials state she is “not only an excellent practitioner and a tough defender of indigent clients, but an extraordinary supervisor.” For these reasons, we are priviledged to give our highest Law Day award to Marianne. Special Service Award Winner : Kelly Bainbridge, LMSW Erie County Bar Foundation Resource Counselor Kelly Bainbridge has been selected for this award in recognition of her unwavering commitment and invaluable service as Resource Counselor for the Erie County Bar Foundation. Kelly personifies the concept of service to our profession. When our less fortunate colleagues fall on hard times and reach out to the Foundation for assistance, Kelly’s compassion and “unique energetic sensitivity” help ease them through a difficult process. She handles each situation with the utmost discretion, care and integrity and her outstanding efforts contribute greatly to the important and effective functioning of this organization.
Special Service Award Winner : Ilene R. Fleischmann
Vice Dean, UB Law School and Executive Director, UB Law Alumni Association Ilene Fleischmann has been selected for this award in recognition of her dedicated service to the legal community in the four decades she has meaningfully connected with, uplifted and engaged thousands of UB Law alums. A letter nominating Ilene for the award stated that she “assists UB Law grads in private practice, public interest, business, government and other venues—at all stages of their professional careers—with networking opportunities, social and professional events, CLEs, career connections, mentoring, reunions, and student professional development.” Ilene has exceeded the standard of ordinary helpfulness to our profession. We are grateful to have her in our community.
BAEC Bulletin | March/April 2023 | 11
Police Officer Award Winner : Clint Winters FBI Supervisory Special Agent, Safe Streets Task Force
Clint Winters has been selected in recognition of his role with the FBI Safe Streets Task Force, supervising other special agents and task force officers and ensuring that cases are thoroughly investigated in a manner that demonstrates and respects the Constitution and the rights of all people; encouraging respect for the rule of law; and demonstrating concern for society and appreciation for all people. Nomination materials state “Erie County is a safer place because of FBI SSA Winters.” Clint brings dignity to his profession and is a credit to not only law enforcement, but to the legal system as a whole. Justice Award Winner : Assemblywoman Crystal D. Peoples-Stokes Majority Leader of the New York State Assembly Assemblywoman Crystal D. Peoples-Stokes has been selected for this award in recognition of all her efforts in working toward rebuilding trust in institutions, respect for one another and collaborating to address challenges faced by our community. She recognizes and highlights needs in the community and takes action and for that we are grateful. Assemblywoman Crystal D. Peoples-Stokes has a reputation for being a strong advocate who sets people and principle before politics. A fearless fighter for diversity, equity and inclusion and an important partner with our civil legal services organizations to provide access to justice for those who need it most. Her efforts have substantially contributed to the improvement of the justice system and the Buffalo community, making her the ideal candidate for this award.
Media Award Winner : Buffalo, What’s Next? Podcast WBFO NPR
“Buffalo, What’s Next?” has been chosen for this award in recognition of taking the tragedy of May 14th and turning it into a long-term opportunity for listening, healing, understanding and change. “Buffalo, What’s Next?” work fits squarely within the theme of this year’s Law Day program: Cornerstones of Democracy: Civics, Civility and Collaboration, where we are invited to join in rebuilding trust in our institutions, respect for one another, and our willingness to collaborate to address the challenges that face our nation.
Rev. A. Joseph Bissonette Pro Bono Award Winner : Ramond N. McCabe, Esq. Partner, Barclay Damon Raymond McCabe, Esq. was selected for this special recognition because of his extraordinary commitment to providing pro bono legal services to those in need in our community. As nomination materials state “Ray is a committed, compassionate volunteer who believes pro bono is a natural part of practicing law. We are so fortunate to be associated with him and are thrilled that he plans to continue pro bono work for the remainder of his impactful career.
2023 LAW DAY AWARD WINNERS CONGRATULATIONS 12 | March/April 2023 | BAEC Bulletin Congratulations MARIANNE AND ALL THE LAW DAY AWARD WINNERS!
MELINDA & TOM DISARE
to our partner Ray McCabe on being selected as the Bar Association of Erie County’s Rev. A. Joseph Bissonette Pro Bono Award winner! We thank Ray for his 20-plus years of dedication to providing pro bono legal services to those in need through his work with the Volunteer Lawyers Project. BARCLAYDAMON.COM ALBANY BOSTON BUFFALO NEW HAVEN NEW YORK ROCHESTER SYRACUSE WASHINGTON DC TORONTO 200 Delaware Avenue, Buffalo, NY 14202 | 716.856.5500 Congratulations
The UB Law Alumni Association is proud of the accomplishments of our alumni and staff Congratulations to
Federal Public Defender Marianne Mariano ’94 Liberty Bell Award Recipient
Special Service Award Recipient
Vice Dean of Alumni, UB School of Law; Executive Director, UB Law Alumni Association Ilene R. Fleischmann
law.buffalo.edu/alumni
BAEC Bulletin | March/April 2023 | 13 2023 LAW DAY AWARD WINNERS CONGRATULATIONS
MARIANNE AND KELLY - CONGRATULATIONS ON YOUR RECOGNITION! KEVIN SPITLER
IN RECOGNITION OF OUTSTANDING SERVICE THAT STRENGTHENS THE AMERICAN SYSTEM OF FREEDOM UNDER LAW BY: • Promoting a better understanding and appreciation of our Constitution, the Bill of Rights, and the rule of law • Encouraging a greater respect for law and the courts • Contributing to the effective functioning of our institutions of government
WE 1 Salute WDNY Federal Defender Marianne Mariano
1 The Joels, Herbs, Cheryls, Jims, Johns, Joes, Brians, Barrys, Pats, Judiths, Toms, Angelos, James, Kirks, Justins, Roberts, Gerrys, Franks, Marks, Tonys, Bills, Pauls, Spencers, Terrys, Erics, Kevins, Nelsons, Jeremys, Norms, Ferns, Peters, Dons, Dans, Larrys, Ians, Matts, Garys, Reenas, Walters, Mikes, Davids, Heathers, Parkers, Alans, Andrews, E. Careys, Tims, Rods, et al. of the District’s Criminal Defense Bar .
14 | March/April 2023 | BAEC Bulletin Neil Pawlowski Presented with OUTLaw Award
Neil A. Pawlowski has been named as one of the 2023 Honorees of the UB OUTLaw Awards. OUTLaw’s primary objective is to educate about the legal issues surrounding sexual orientation and gender identity, as well as the ways discrimination may be compounded by other intersecting identities. OUTlaw also sponsors activities, panels, social events, and service projects that build a network for both members and supporters of the LGBTQ+ legal community. Congratulations Neil!
NEIL A. PAWLOWSKI PARTNER, DUGGAN & PAWLOWSKI LLP
DE&I Committee News A Call for Volunteers
The BAEC’s Diversity, Equity and Inclusion Committee is pleased to announce the formation of an LGBTQIA+ Working Group. This Group will be chaired by Andrew Freedman, a long time DEI Committee member and the Diversity Partner at Hodgson & Russ, LLP. “The purpose of the Working Group is to assess how the BAEC can best serve the LGBTQIA+ legal community and to make recommendations to the DEI Committee and Board of Directors. This is also an opportunity for our LGBTQIA+ attorneys and their allies to be heard and supported in a safe place” says Freedman. The number of openly LGBTQ attorneys at law firms continues to grow slowly, according to a survey from the National Association for Law Placement (NALP Survey). In 2021, the NALP Survey of 849 law offices across the country found that 3,653 lawyers (3.7%) identified as LGBTQ. In 2011, the survey found that just 2,087 (1.9%) of lawyers at U.S. firms identified as LGBTQ. The percentage of law firm Summer associates who report they are LGBTQ is substantially higher. Accordign to the NALP Survey, in 2021, 8.47% of all Summer associates said they were LGBTQ. (Source: https://www.2civility.org/aba-profile-of-the-legal-profes - sion-heres-what-the-legal-profession-looks-like-in-2022/#:~:tex- t=The%20number%20of%20openly%20LGBTQ,3.7%25) The BAEC invites its members to volunteer to serve on this Working Group. The first meeting is being planned for May with details to follow. If interested in serving, you may contact Celeste Walsh at cwalsh@eriebar.org. All are welcome, including student members.
Source: NALP 2021 Report of Diversity in U.S. Law Firms
BAEC Bulletin | March/April 2023 | 15
Erie Institute of Law CLE programs are either being held via Zoom web conferencing or in person. For virtual programs, registrants will receive course material and Zoom link via email 1-2 days in advance of a program. 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. LIVE CLE PROGRAM CALENDAR
UPCOMING LIVE PROGRAMS April 14 | Representing an SSA Claimant After an ALJ Denial April 25 | 50 Tech Tips & Tricks April 27 | 2023 Annual Medicaid & Elder Law Update April 28 | Life After Law School Day 1 May 4 | Ontario Legal Conference: Cross-Border Ties May 8 | Substance Use Disorder & Addiction: Understanding & Addressing the Problem May 12 | Life After Law School Day 2 May 24 | There’s a Fiduciary: Now What? Put Your Best Face Forward: Media Training in a Post-Pandemic World of Law 2.0 CLE credits: (1.0 Areas of Professional Practice, 0.5 Ethics, 0.5 DEI) OnDemand: $60 members (Promo Code: member2017) How you present yourself and your organization to the world can have enormous repercussions for anyone, but is especially important to consider for legal providers! This program brings together attorneys and media professionals with a wide range of expertise to help you navigate best practices and potential pitfalls. Presented in collaboration with the Women’s Bar Association of the State of New York- WNY Chapter Agenda: • Keynote Address and Q&A (Hon. Lawrence Vilardo, District Court Judge) • Panel 1: Working with the Media, Attorney Advertising, and Social Media • Panel 2: Ethics: Confidentiality and Retractions • Panel 3: Diversity, Inclusion and Elimination of Bia s ONDEMAND PROGRAMS
An Overview of Veterans Treatment Court 2.0 CLE credits: (1.5 Skills, 0.5 Ethics) OnDemand: $60 members (Promo Code: member2017) Join the Criminal Law Committee for An Overview of Veterans Court. Attendees will benefit from presentations from the Court and treatment staff, the Erie County District Attorney’s Office, and local criminal practitioners. The CLE will cover an introduction to this specialty treatment court, screening and transfer procedures, plea and sentencing, sanctions and more. Wrongful Death Damages: Where Do We Stand in New York Now? 1.0 CLE credit: (1.0 Areas of Professional Practice) OnDemand: $40 members (Promo Code: member2017) Join us for a review of the statute, New York’s state legislative process, and the impact of the demise of the Grieving Families Act in New York. Presented by Kristen Elmore-Garcia, Esq., whose firm The Law Office of John V. Elmore, P.C., is representing victims of the May 14th massacre, this program is a discussion on the current lay of the land in wrongful death cases, and how the failure to pass this bill will impact victims’ loved ones. Case Law Update from Erie County Surrogate’s Court 2023 1.0 CLE credit: (1.0 Areas of Professional Practice) OnDemand: $40 members (Promo Code: member2017) Joseph A. Shifflett, Esq., Chief Court Attorney in Erie County Surrogate’s Court, discusses important case decisions over the past year from Erie County Surrogate’s Court, as well as touching upon significant decisions in surrogate’s court practice from other New York courts. Cybersecurity, Privacy & Data Protection for Lawyers 1.5 CLE credits: 1.0 Cybersecurity, Privacy & Data Protection (CPDP) - Ethics, 0.5 CPDP - General Effective July 1, 2023, New York Attorneys must complete 1.0 CLE credit hour in the new Cybersecurity, Privacy and Data Protection category of credit as part of their CLE requirement. This CLE will address: cybersecurity, privacy and data protections issues, including impact on the legal industry, ethical obligations, legal and threat landscape, controls, regulatory landscape, and other practical matters related to data security and privacy. Attendees will walk away with a better understanding of their legal and ethical obligations and the current threats facing the industry.
CLICK TO VIEW CLE DETAILS AND TO REGISTER CLICK HERE TO PURCHASE AN ONDEMAND PROGRAM TODAY!
16 | March/April 2023 | BAEC Bulletin
FROM THE Erie County Bar Foundation
Welcome to spring in Buffalo, signs of life emerging from the barren land left by winter, hope for a new beginning. The Erie County Bar Foundation is much like spring. We provide help, hope and support to our fellow attorneys when they need it most. This has been a particularly harsh winter and the Foundation has seen record numbers of attorneys in need. During the last month in particular, we have seen the largest influx of cases with no sign of slowing. These are our friends and colleagues who find themselves in situations that they can no longer handle on their own. The struggle of emerging from the pandemic to see their finances in disarray, a serious illness of their own or a family member, the aging process and the struggles that go along with it are apparent. But for the grace of god any of us could find ourselves in similar situations. The Foundation is here to help confidentially and without judgement. The large number of cases only proves that attorneys are not immune to human frailties. I am encouraged that the my efforts and those of my predecessors, most recently Mike Perley, to raise awareness of the Foundation are working. Our liaisons and social worker toil tirelessly to support our grantees, often with amazing outcomes. As you may or may not know, funding for the Foundation comes directly from donations. Please consider a donation in any amount that will allow us to continue our work and help our fellow colleagues. Thank you and best wishes for a beautiful spring and time with friends and family to enjoy all Buffalo offers to us.
JEFFREY PRIORE President Erie County Bar Foundation
SCAN TO DONATE TO THE FOUNDATION
Jeffrey M. Priore President, ECBF
BAEC Bulletin | March/April 2023 | 17
COCKTAILS & CONVERSATION April 27 | 6:00pm | Giancarlos LAW DAY LUNCHEON May 2 | 12:00pm | Templeton Landing NORTHTOWNS SUBURBAN LAWYERS LUNCHEON May 18 | 12:00pm | 800 Maple HAVE GAVEL WILL TRAVEL RECEPTION May 24 | 5:00pm | The Saturn Club SOUTHTOWNS SUBURBAN LAWYERS LUNCHEON May 25 | 12:00pm Hamburg Brewing Company ANNUAL MEETING & MEMBERS RECEPTION June 2 | 9:00am | BAEC Headquarters PLEASE WATCH OUR WEEKLY PUBLICATIONS FOR ADDITIONAL DETAILS ON OUR PROGRAMS
18 | March/April 2023 | BAEC Bulletin Bench and Bar In the News
Dina Allen was hired as a partner at Webster Szanyi LLP. Dina concentrates her practice on representing management in all facets of labor and employment matters, with a focus on representing school districts throughout New York State. She earned her J.D. magna cum laude from the University at Buffalo Law School and her B.A. from Princeton University. Shannon Brae O’Neill Vandermeer is promoted to partner at Webster Szanyi LLP. Shannon concentrates her practice on insurance defense of civil rights, municipal and government liability. She has been named a Super Lawyers Rising Star since 2019. She earned her J.D. cum laude from Suffolk University Law School and her B.A. from the College of Wooster.
Tabita J Saraj was hired as an associate at Webster Szanyi LLP in the litigation group. She earned her J.D. from the University of New Hampshire Franklin Pierce School of Law and her B.S from Niagara University. She specializes in Civil Litigation and Intellectual Property Law.
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 Chase Kalandia at ckalandia@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 Akers-DiCenzo Law PLLC opened its doors in February 2023 to welcome new clients as an employee-side employment law firm providing legal counseling, negotiation, and litigation services. Founder, Christina Akers-DiCenzo, Esq., provides compassionate and responsive legal counsel on behalf of employees facing illegal workplace discrimination and retaliation that is results-driven and client-centered. Prior to launching her own practice, Christina worked for over eight years at the Law Office of Lindy Korn representing plaintiffs in federal and state courts and administrative agencies. She received both her Juris Doctor and Master of Urban Planning from SUNY Buffalo and her Bachelor’s degree from Brandeis University.
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BAEC Bulletin | March/April 2023 | 19
Bar Association of Erie County NEW MEMBERS
The Bar Association of Erie County is pleased to welcome the following new members:
Alize Allen Dina Allen Adriana R. Argento Jessica Stickl Asbach Kari M. Ashworth Hannah Atkinson Mahbod Bahramian Russell Barber Elizabeth E. Bourne David M. Burgio Chloe M. Bowerman Kristen Cascio Caroline M. Cercone Kevin Bradley Coad Winter E. Eaton Tyler J. Eckert Peter John Fiorella Scott Tyler Fogel Cheyenne Nicole Freely Evan D. Gestwick Rebecca C. Gioia Jared Matthew Good Shane Austin Greene Austin R. Hendricks Blaine B. Jensen Victoria Jolicoeur Richelle R. Kloch
Rebecca Kroll Andrew J. Latona Kathryn E. Lawrence Carolina Lew Ashley Love Chelsea MacDonald Canio J. Marasco James McIver J. Mitch Mertel Dillon J. Mesi Eoin O. Muimhneachain Shamira Nawz Lindsey M. Pastuszynski Rachel R. Pawlak Isabelle Perfetto Daniel J. Piersa Zabrina V. Reich Daniel F. Russell Ryan Schelwat Adam Schop Madison Schwarzer Peter J. Sebekos Alexander M. Segelhurst Dorothy E. Shuldman Molly E. Smarr Kelsey Till Thompson Elizabeth Vinal
BAEC Begins Judicial Candidate Rating Process 20 | March/April 2023 | BAEC Bulletin
The Bar Association of Erie County will rate the following candidates for Judicial office:
Erie County Family Court Hon. Mary Giallanza Carney Hon. Shannon E. Filbert Hon. Deanne M. Tripi
Buffalo City Court Tiffany R. Perry
In accordance with the Association’s bylaws and mission, the BAEC’s Judiciary Committee studies and rates candidates for judicial office. Any other candidates running for these offices will also be rated as they are identified. If you know of other candidates for New York State Supreme Court, Erie County Court, Erie County Surrogate, Erie County Family Court, or Buffalo City Court, please contact the Chair of the Judiciary Committee, listed below. Anonymous comments will not be considered. Confidentiality will be strictly observed.
You may call or write to any of these committee members:
Daniel M. Killelea, Chair: (585) 937-8987; dkillelea@gilmourkillelea.com Paul A. Bender: (716) 856-3200; pbender@benderlawbuffalo.com Gregory V. Pajak: (716) 566-2208; gregory.pajak@cellinolaw.com Scott M. Philbin (716) 854-4300; sphilbin@gross-shuman.com Thank you for your input and participation in the judicial rating process. Candidates considering judicial office this year are encouraged to contact the Bar Association at (716) 852-8687 ext. 120 immediately and request a Judicial Evaluation Questionnaire or via email at skohlbacher@ eriebar.org so as to ensure eligibility for a Bar Association rating. The deadline for submission of Judicial Evaluation Questionnaires for all judicial offices other than New York State Supreme Court is April 13, 2023; for State Supreme Court candidates, the deadline is June 15, 2023.
BAEC Bulletin | March/April 2023 | 21
In the Public Service The Legal Aid Bureau Embraces a Holistic Criminal Defense Last year, the Legal Aid Bureau of Buffalo created a Holistic THE LEGAL AID BUREAU
making appropriate referrals to treatment services, as well as trouble shooting instances where a client may not be compliant with court- ordered treatment. The entire HRP staff also plans monthly in-house CLE’s and presentations by our own well-rounded Legal Aid staff, as well as by outside experts, to educate on relevant holistic issues such as the Adverse Childhood Experience Study and the effect of ACEs on trauma; recognizing Fetal Alcohol Spectrum Disorder; as well as legal issues including, juveniles and young adults in the criminal justice system, access to housing and public benefits, and the eviction process. The need to address a client’s whole self is essential, as is developing a legal system that ensures best practices for those in need of behavioral health treatment. The New York State Bar Association has prioritized this endeavor by creating a Mental Health Task Force to determine how lawyers may best represent clients with mental health diagnoses .i A report by the NYSBA Task Force is forthcoming. Studies show that more than 70% of people in U.S. jails and prisons have at least one diagnosed mental illness, substance abuse disorder, or a coexisting disorder diagnosis, and up to one-third have a serious mental illness. ii In New York State, 83% of the prison population suffers from a substance abuse disorder and 24% have a diagnosed mental illness .iii Unfortunately, our state over-relies on jails and prisons as the primary treatment provider for people with mental health needs. In 2021, the average county spent twice as much on its jails as on public health. iv Indeed, there is a campaign to pass legislation which would amend Article 216 of Criminal Procedure Law regarding judicial diversion to expand eligibility for treatment for court-involved individuals, and shift the presumption from incarceration to community support. v The State saves $2.21 for every $1 invested in treatment courts, and these problem-solving courts have been shown to reduce recidivism. vi • i Sherry Levin Wallach, “Lawyers Must Address Impact of Mental Health on Criminal Justice System,” New York State Bar Association Journal, January/February 2023 ii Patricia Warth, “Unjust Punishment,” New York State Bar Association Journal, January/ February 2023 iii https://doccs.ny.gov/system/files/documents/2022/04/under-custody-report-for-2021. pdf and https://doccs.ny.gov/system/files/documents/2019/09/Identified_Substance_ Abusers_2007.pdf. (The substance abuse statistic is old and predates the repeal of the Rockefeller Drug Laws, so the number may be lower now. We don’t know for certain because DOCCS doesn’t keep records and no one else has conducted a study in the last 15 years.) iv “Treatment not Jails Campaign Fact Sheet” at https://nycds.org/wp-content/ uploads/2021/12/Treatment-Not-Jail-Campaign-One-Pager-Dec-2021.pdf and https://www. vera.org/inline-downloads/new-york-state-counties-summary_2021-01-15-204135.pdf. v Id. vi Id. “...more than 70% of people in U.S. jails and prisons have at least one diagnosed mental illness, substance abuse disorder, or a coexisting disorder diagnosis...”
Representation Program (HRP) within its Criminal Defense Unit. As we near the first-year anniversary of the HRP, we recognize several achievements, while learning from the hurdles that we have overcome, and are planning for growth and the future expansion of our services in the agency. Our HRP is comprised of lawyers, social workers and client advocates who strive to provide clients with collaborative advocacy by actively assisting them with mental health and substance abuse treatment, addressing their civil legal matters and other societal issues that bring them into the criminal justice system, as well as engaging with community organizations. We identify, analyze, and attempt to address the root causes that have led to a client’s interaction with the criminal justice system. The goal of the HRP is to decrease the time of a client’s incarceration, promote diversion and alternatives to sentencing, and diminish recidivism. The Criminal Defense Unit (CDU) at Legal Aid serves as a public defender for the City of Buffalo. We arraign the vast majority of those arrested in Buffalo, represent them before the City and Superior Courts through to sentencing, and advocate for many in the various treatment parts of Buffalo City Court: Mental Health, Drug, Opioid Treatment, DWI, Human Trafficking and Veterans’ Courts. Two experienced CDU attorneys appear exclusively in three treatment parts and are members of the HRP team, as is an attorney who represents a few clients with a behavioral health or substance abuse disorder diagnosis who have cases pending in several parts of City Court at one time. In 2022, CDU represented over 5,000 people, most of whom were charged with misdemeanor offenses and lower level felonies. In our practice, we encounter many clients with diagnosed and undiagnosed behavioral treatment needs. That is when the HRP’s team of social workers and client advocates will step in to work in tandem with the CDU attorneys to meet a client’s exigencies, be they a civil legal case, homelessness or housing insecurity, the need for employment training, or substance abuse and mental health treatment. Our social workers have assisted a client to obtain housing, then advocated on their behalf, along with attorneys, to ensure a landlord was providing a working refrigerator, heat and hot water. They have written numerous mitigation reports to obtain youthful offender findings instead of a conviction, and probation or a conditional discharge versus incarceration. They have assisted clients to determine their immigration status and even to pick up a high school diploma. Our Civil Unit at Legal Aid offers much needed re-entry services to our clients, as well representation in divorces, housing and child support arrears. The pillars of a holistic defense, as set forth by the State leader in this type of practice, The Bronx Defenders, are 1) seamless access to services that advance a client’s legal and holistic needs; 2) dynamic interdisciplinary communication; 3) advocates with an interdisciplinary skill set; and 4) a robust understanding of, and connection to, the community served. In order to specifically meet the expectation of the last pillar, the Legal Aid Bureau encourages its entire staff to take part in community work and provides three work hours per month to do so.
AUTHOR: SOPHIE FEAL Managing Attorney, Holistic Representation Program
Our HRP social workers and client advocates are closely involved in
22 | March/April 2023 | BAEC Bulletin
JOIN THE ASSIGNED COUNSEL PROGRAM Save Lives, Save Families.
In 1962, the Bar Association of Erie County created the Assigned Counsel Program to help those who cannot help themselves, who face steep odds against the power of the State, and who struggle with poverty, mental issues, helplessness, and dread. The attorneys in the Program save lives and save families. Panel attorneys are the first line of defense for the freedoms granted to us by the U.S. Constitution and the Bill of Rights. The Program provides training and support to the panel attorneys, including mentoring, case conferences, CLE, and social worker assistance for your client.
To join the panel, visit https://assigned.org/join-our-panel/
Questions? Please call 716.856.8804 or email:
Michelle Parker Executive Director Chief Defender mparker@assigned.org
Kevin M. Stadelmaier First Deputy Defender Family Court Division kstadelmaier@legalaidbuffalo.org
Yvonne Vertlieb Second Deputy Defender Family Court Division yvertlieb@assigned.org
Erie County Bar Association Aid to Indigent Prisoners Society, Inc Assigned Counsel Program The Brisbane Building 403 Main Street, Suite 215 Buffalo, NY 14203 Phone: 716.856.8804 Fax: 716.856.0424 Website: www.assigned.org
BAEC Bulletin March/April 2023 | 23
Death & Taxes
Corporate Transparency Act The Corporate Transparency Act (CTA) was enacted as part of the National Defense Authorization Act for Fiscal Year 2021. Beginning January 1, 2024, the CTA will require a “Reporting Company” to provide certain identifying information about its Beneficial Owners and about certain individuals who helped form or register the Company. The purpose of CTA is to help prevent and combat money laundering, terrorist financing, corruption, tax fraud and other illicit activity. Failure to provide the necessary information within the required timeframe may result in criminal fines and imprisonment. A Reporting Company is any entity formed by a filing with a secretary of state, or, any foreign entity registered to do business in the U.S. by filing with a secretary of state. Reporting Companies include corporations, LLCs, limited partnerships, and limited liability partnerships. Entities which do not file with a secretary of state, such as general partnerships, sole proprietorships or trusts, will not be required to report under CTA. There are exemptions from the definition of Reporting Companies, including banks, broker-dealers, insurance companies and public accounting firms. Tax-exempt entities, such as foundations or public charities are also exempt from CTA reporting. The majority of privately-owned businesses will be Reporting Companies, and that will include many law firms. The Reports are to be filed with the Financial Crimes Enforcement Network (FinCEN), of the U.S. Treasury Department. The information will be searchable by federal agencies involved in national security, intelligence or law enforcement. The registry will not be available to the public. Death and Taxes is a column about trusts and estates. What does CTA have to do with that? Well, trustees and executors, some beneficiaries, and some trust grantors may be required to report. A Reporting Company must disclose information about itself in two categories: Company Applicants and Beneficial Owners. Company Applicants may include the paralegal who filed the organizing documents with the secretary of state, and the lawyer who oversaw that paralegal. There are two types of Beneficial Owners: (1) Those who exercise substantial control over the Reporting Company, that can include fiduciaries, and (2) those who are 25% owners of the Reporting Company, which may include trust beneficiaries, or trust Grantors who have the power to acquire ownership of 25% or more of the Reporting Company. A Trustee who has a power to dispose of trust assets is deemed to own an interest in the Reporting Company. A trust beneficiary is deemed to own an interest in the Reporting Company if he is the sole income and principal beneficiary, or, has the right to withdraw substantially all of the trust assets. A grantor will be considered to own the trust assets if the trust is revocable, or, the grantor may withdraw the trust assets, such as the power to reacquire trust assets and substitute assets of equivalent
PETER J. BREVORKA Partner, Hodgson Russ LLP
JILLIAN E. BREVORKA Partner, Hodgson Russ LLP
24 | March/April 2023 | BAEC Bulletin
value. An individual with indirect substantial control or indirect ownership must also report. For instance, a Trust Protector, with ability to amend the Trust Agreement would appear to have indirect substantial control. The final regulations were released September 29, 2022, and may be found at 31 C.F.R. Section 1010.380. Reporting Companies formed after January 1, 2024 will have 30 days from date of creation to file the required reporting. Reporting Companies created before January 1, 2024, will have until January 1, 2025 to file their initial report. If a Reporting Company finds any inaccuracies in its report, it must file a correction within 30 days after it becomes aware of, or has reason to know of, the inaccuracy. A Reporting Company has only 30 days to report any change in information previously reported, including such things as changes to the residential address of a Beneficial Owner. The 30 days start to run when the change occurs, not when the Reporting Company becomes aware of the change. If a Beneficial Owner dies, new information must be reported “when the estate of the deceased beneficial owner is settled. . . .” [ 31 C.F.R. Section 1010.380(a)(2)(iii). But, if a 25% interest in a Reporting Corporation is distributed to a new beneficiary, it would appear that the 30-day clock would start. The required report must include (A) the full legal name of the individual; (B) the date of birth of the individual; (C) a complete current address, which for a beneficial owner is his or her residential street address; (D) a unique identifying number from a government issued documents such as a valid passport or driver’s license, and (E) an image of that document. New Notary Public Recordkeeping and Reporting You perhaps have read about it elsewhere, but it bears repeating, that effective January 25, 2023, new Rules for Recordkeeping for Notaries Public have been issued by the New York State Department of State, 19 NYCRR 182.9. It is important to note that this Rule applies to New York notaries, but does not apply to foreign notaries notarizing New York documents in foreign jurisdictions. The new rule, 19 NYCRR 182.9, provides that all notaries must keep detailed records of all the notarial services they perform, including certain specific information. Such record keeping must include: (1) The date, approximate time, and type of notarial acts performed; (2) The name and address of any individuals for whom a notarial act was performed;
(4) The type of credential used to identify the principal [see 19 NYCRR 182.5]; (5) The verification procedures used for any personal appearance before the notary public; and (6) For electronic notarial acts, identification of the communication technology and, if not included as part of the communication technology used by the electronic notary, the certification authority and verification providers used. As to satisfactory evidence of identity of an individual for whom a notarial act was preformed, 19 NYCRR 182.5 provides in part: (b) For any individual signing a document who physically appears before a notary public, satisfactory evidence of identity requires identity verification through: (1) Presentation of the back and front of an identification card issued by a governmental agency provided the card: (i) is valid and current; (ii) contains the photographic image of the bearer; (iii) has an accurate physical description of the bearer, if applicable; and (iv) includes the signature of the bearer; (2) at least two current documents issued by an institution, business entity, or federal or state government with at least the individual’s signature;
(3) attestation by the notary that the individual is personally known to them;
(4) the oath or affirmation of a witness who is personally known to both the individual and notary; or (5) the oath or affirmation of two witnesses who know the individual personally and provide identification that meets the requirements of paragraph (1) of subdivision (b) of this section. All records required by 19 NYCRR 182.9 must be kept by the notary for a minimum of ten (10) years, and must be able to be produced as may be necessary. Notaries who knowingly refrain from performing a duty which is imposed upon them by law, with certain intent, may be guilty of violating Section 195.00 of the Penal Law, which is a Class A misdemeanor.
(3) The number and type of notarial services provided;
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