Bar Association of Erie County Vol. 47 | No. 3 |November ... · PDF fileBar Association of Erie County Vol. 47 ... Bar Association of Erie County in 1974. ... Edgar C. NeMoyer, James

continued on page 4

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

President’s LetterBy Cheryl Smith Fisher

PRSRT STDU.S. Postage

PaidBuffalo, NY

Permit No. 416

Bar Association of Erie County Vol. 47 | No. 3 | November 2007

“The trial of a case is a three-legged stool - a judge and two advocates.”

~ WARREN E. BURGER

R-E-S-P-E-C-T: Judge,That’s What You Mean to Me

This time of year, with the Bar Association rat-ings of judicial candidates, the hystericallyhumorous1 roast and the elections, is a good timeto consider the relationship between judges andlawyers in our community. First, I noticed thatthere are a lot of them.2 (Since I’m not a judge,“them” obviously refers to judges.) There arealmost 70, by my count, in courts of record, fromthe federal courts to the Appellate Division tocounty court. I noticed this when I was signingletters inviting the judges to the unfailingly funny3

roast and my hand cramped. (You have no ideahow hard I work for you…) I now holdAdministrative Judge Sharon Townsend in evenhigher regard than previously. Exactly how she“herds those cats,” I don’t know, but it must be adaunting job.

It also makes me proud of the relationship thebar association has with the courts. While we’dalways like more judges to become members, theenthusiastic participation of so many judges withour practice committees and CLE programs isonly one indication of the mutual respect in whichthe bar and the judges of this area hold eachother. This mutual respect enhances the quality of

Kathie Bifaro first walked through the doors of theBar Association of Erie County in 1974. You could buya decent house back then for $34,900. A gallon of gascost 55 cents. Paul McCartney had just released “Bandon the Run” and Richard Nixon became the first U.S.president forced to resign in the wake of Watergate.“The Exorcist” and “Blazing Saddles” were playing inall the movie theatres.

She had answered an ad in the News (or maybe eventhe Courier-Express!) for a part-time bookkeeper.Bifaro had previously held other bookkeeping positionsin the area, including one at a local radio station thatshall remain nameless for “letting her go” when herpregnancy became obvious and she no longer “fit in”

with the station’s image. While this seems unimagin-able today (not to mention illegal!), Bifaro downplaysthe incident with her trademark modesty.

The bookkeeping job quickly expanded to full-timestatus. Bifaro had three young children at home then,yet she also began taking college classes in the eveningsat this time. She first earned a business degree from

The Office of Court Administration and Erie CountyClerk Kathleen C. Hochul recently launched an initia-tive whereby all Erie County Supreme Court tort,commercial, and tax certiorari cases may be filed elec-tronically through the Unified Court System’s elec-tronic filing (e-filing) program. Transactions will beprocessed through the Erie County Clerk’s Actions andProceedings Department. Administrative Judge SharonS. Townsend, Eighth Judicial district judges and staff,and the County Clerk’s office have joined forces in thehope that the new system will save time and money forlocal attorneys and their clients.

“We have worked in close collaboration with mem-bers of the bar, Erie County Clerk Kathy Hochul, and

Erie Supreme and County Courts Chief Clerk ChristineNestor on this project and are especially appreciative oftheir outstanding cooperation,” Judge Townsend said.“We are confident that there will be a high level of sat-isfaction and convenience generated through use of thee-filing system.”

Erie County Clerk Hochul, who is also an attorney,observed that the new e-filing system will “move theCounty Clerk’s office into the future of a paperless legalprocess, while increasing efficiency for attorneys andtheir clients.”

Unlike the Federal Court e-filing system, this processis voluntary. It allows attorneys to electronically file and

continued on page 5

Executive Director Celebrates 25th Year at BAEC

Katherine Strong BifaroPlus ça change, plus c‘est la même choseJames L. Magavern, left, was president of the BarAssociation of Erie County when Katherine Strong Bifaro,center, was named executive director in 1982. In an inter-esting twist of fate, another attorney from the Magavernfirm – Cheryl Smith Fisher – holds the presidential reins as Bifaro observes her silver anniversary.

1 As suggested by Stuart Shapiro.

2 Noticing the number of judges may not seem like aprofound insight. But you can’t possibly expect me todo research for these things.

3 As suggested by Diane LaVallee.

4 As suggested by the comedy team of LaVallee &Shapiro. (This is not lawyer advertising)

continued on page 8

E-Filing of Tort, Commercial & Tax Certiorari CasesNow Available in Erie County; Training Set for Nov. 8

“Thanksgiving Day is a jewel…but

be careful that you do not take the

day and leave out the gratitude.”

~ E.P. Powell

PAGE 2www.eriebar.org | November 2007

BOARD OF DIRECTORSLeonard Berkowitz, John V. Elmore, Patrick J. Maloney, Candace K. Vogel,Jill K. Bond, Robert J. Feldman, Glenn Edward Murray, Shari Jo Reich, Peter F. Brady, Brian C. Mahoney, Nancy W. Saia, Kathleen M. Sweet.

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

CONTRIBUTING MEMBERS

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

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

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

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

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

Carl P. Paladino, Frank R. Papa, Thomas C. Pares, James A. Partacz, Hon.Erin M. Peradotto, Robert H. Perk, Jeffrey A. Perla, Jr., Joel M. Poch, FrancisB. Pritchard, Samuel G. Puleo, Theodore J. Pyrak, William T. Quigley, JamesP. Renda, Mary K. Roach, Earl T. Robinson III, Jay N. Rosenthal, MarcellaRosinski, Hon. Mario J. Rossetti, Victor A. Rossetti, Richard P. Rosso, ArthurJ. Rumizen, Ross L. Runfola, Louis J. Russo, Thomas Santa Lucia, EdwardJ. Schwendler, Jr., Richard B. Scott, Eugene M. Setel, Donald P. Sheldon,Richard J. Sherwood, Irving M. Shuman, David Siegel, Louis H. Siegel,Myron M. Siegel, Robert G. Sillars, Richard Charles Slisz, CharlotteSmallwood-Cook, Oscar Smukler, Isadore Snitzer, Robert B. Sommerstein,Christopher A. Spence, Gregory Stamm, Donald S. Stefanski, Robert S.Stephenson, E. W. Dann Stevens, David G. Stiller, Milton J. Strebel, DavidL. Sweet.

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

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

OFFICERS AND DIRECTORS | 2007-2008President ......................................Cheryl Smith FisherVice President ..............................Giles P. ManiasTreasurer........................................Peter J. Battaglia Deputy Treasurer ..........................Dennis J. BischofExecutive Director........................Katherine Strong Bifaro

Vol. 47 | No. 3 | November 2007

BAR ASSOCIATION OF ERIE COUNTY

Organized 1887

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

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

Bulletin correspondence: [email protected]

Letters to the editor and short articles of general interest to our readers

are always welcome. All materials submitted for publication in the Bulletin

are subject to editing for reasons of style, space and content.

Send all submissions as Word documents to [email protected]

(preferred) or by mail to: Bulletin Editor, 438 Main Street,

Sixth Floor, Buffalo, NY 14202.

Call Susan Kohlbacher at Bar Headquarters for more information, 852-8687.

D E A D L I N E S • • • January 2008 Bulletin D E A D L I N E • • •

The next deadline for ALL Bulletin contributors and advertisers is Friday, November 30, 2007.

The United States Postal Service recently unveiledthe Jury Duty Social Awareness stamp, a commemora-tive postage stamp designed to call attention to theimportance of jury duty. A ceremony held in the ErieCounty Jury Assembly Room Eighth Judicial Districtwas attended by Administrative Judge Sharon S.Townsend, Erie County Commissioner of Jurors MehrlF. King, and Victor Laudisio, Customer RelationsCoordinator for the UnitedStates Postal Service.Kevin O’Connell ofWGRZ-TV served as mas-ter of ceremonies for theevent.

“Serving on a jury is animportant part of publicservice to our communi-ties,” Judge Townsend said

at the unveiling. “It is a role that should be taken mostseriously. This stamp is an excellent way to highlight itssignificance.”

The stamp calls attention to an essential obligation,shared by all eligible citizens, that is a cornerstone ofdemocracy in the U.S. By showing a diverse group of12 representative jurors in silhouette, art director CarlT. Herrman and stamp designer Lance Hidy empha-

size that, under the U.S.Constitution, the Americanjury system guarantees cit-izens the right to a trial bya jury of their peers.

The jury duty stamp canbe purchased online atwww.usps.com/shop, bycalling 1-800STAMP24,and at local post offices.

New York State Courts Unveil Jury Duty Stamp

T E L E V I S E D S P E C I A L T E R M

“The marquee motion today, with an R rating, will feature ‘Moose’ Rushmore seeking exotic injunctive relief from the client of ‘Stonewall’ Dombrowski. Our judge, returning

for an unprecedented third term, will be Gladys ‘Toots’ Murphy.”

November 2007 | www.eriebar.orgPAGE 3

Megan A. Gomez has beennamed associate counsel at UniveraHealthcare. Gomez was formerly anattorney with the Buffalo firm ofBrown & Kelly LLP.

John N. Philipps, Jr., a partnerin Chelus, Herdzik, Speyer & Monte,P.C., has been selected by theLockport Bar Association to serve aspresident for the 2007-2008 term.Philipps had previously served asvice president of the organization.

Diane F. Bosse has been appoint-ed to a two-year term on the LawSchool Accreditation Committee ofthe ABA Section of Legal Educationand Admissions to the Bar. She is thechair of the New York Board of LawExaminers and the immediate pastchair of the National Conference of

Bar Examiners. Bosse is of counsel to the firm ofBender, Crawford & Bender, LLP.

Marc A. Romanowski has joinedthe Buffalo office of Harter Secrest &Emery LLP. He will work in thefirm’s environmental group, focusingon environmental litigation, land use,zoning. Prior to joining HSE, he wasan associate with Phillips Lytle LLP.

Michael Schiavone, a managingpartner at Lipsitz Green ScimeCambria LLP, was the inauguralguest speaker at SUNY Fredonia’sSchool of Business Speaker Series. AFredonia alumnus, Schiavone con-centrates his practice in business law,estate planning, and commercial real

estate. He is corporate counsel for the Buffalo Bills,

Kenneth M. Alweis, John J. Jablonski andJoseph M. Hanna of Goldberg Segalla LLP havedrafted the New York Guide to Commercial Evictions.All three practice in the firm’s retail and developmentlitigation practice group, which Alweis chairs. Theyrepresent clients in the commercial development, shop-ping center and retail industries.

Raymond P. Reichert of JaeckleFleischmann and Mugel LLP, hasbeen re-elected president of TheLegal Aid Bureau of Buffalo, Inc.Reichert, who chairs the BAEC’sTaxation Committee, is serving hissecond year as president. Reichert isa partner in Jaeckle’s tax and eco-

nomic & land development practice groups.

Allison P. Gioia, an attorney withPhillips Lytle LLP, has been appoint-ed to the Buffalo Zoological GardensProZoo board of directors and theRoswell Park Alliance CommunityAdvisory board of directors. Gioiapractices in government investiga-tions, white collar criminal defense

and complex litigation. She is a former assistant U.S.attorney in the Western District of New York andreceived an award for outstanding contributions by anew employee last year. She is also vice president of theboard of directors of the Buffalo Therapeutic RidingCenter.

Christopher J. Belter andJoseph M. Hanna (see photo atbottom left) of Goldberg Segalla LLPco-authored a chapter entitled,“Causes of Action in ConstructionDefect Litigation” in the DefenseResearch Institute’s (DRI)Construction Defect: Claims and

Coverage Compendium. Belter is the national vice chairand marketing chair for DRI’s construction law com-mittee and Hanna serves as young lawyers’ liaison tothe fidelity and surety committee.

Erie County Family Court JudgePaul G. Buchanan recently servedon the Oversight Committee for anABA initiative on “Addressing theNeeds of Juvenile Status Offendersand Their Families.” This committeepublished a report entitled “Familiesin Need of Critical Assistance” and,

in conjunction with the U.S. Department of Justice,conducted the first national video conference ever heldon juvenile status offenses. Over 6,000 viewers from 46states participated. The conference served as the basisof policy recommendations presented to the ABA’sHouse of Delegates.

Patrick J. Brown of LoTempio &Brown, P.C., was recently appointedto a three-year term on the attorneyadvisory group to the Second CircuitCriminal Justice Act Committee bythe United States Court of Appealsfor the Second Circuit. Chaired byCircuit Judge Peter W. Hall, the com-

mittee was created in response to the Second Circuit’sparticipation in a three-year national pilot project oncase-budgeting and select CJA cases. The group willoversee the implementation of case- budgeting inmega-cases and federal death penalty cases in theSecond Circuit.

John T. Kolaga, partner in theenvironmental practice group atJaeckle Fleischmann & Mugel, LLP,has been elected vice president of theElmwood Village Association’s execu-tive committee. The Elmwood groupworks closely with businesses and res-idents to “enhance the unique urban

character of the Buffalo’s Elmwood Village district.”

bench and bar in the news

This “members only” column is publishedeach month to share news and informationamong BAEC members. Submissions should belimited to 100 words and will be edited for spaceand other considerations.

Bench & Bar in the News is reserved toannounce items such as: new members of a lawfirm; name change or relocation; formation,merger, or new affiliation of law practice(s);change in job status; and professional appoint-ments, honors, or awards. Announcementswhich do not fall into these categories may bepublished in the Bulletin as paid advertise-ments.

Gomez

continued on page 20

50 Years of Caring for Colleagues in Need

For five decades, the silent heroes have been here for anyone who needs them.

Without fanfare.

In total confidence.

No questions asked.

Please give generously to Campaign 2007.

Bosse

Philipps

Romanowski

Schiavone

Alweis Jablonski Hanna

Reichert

Gioia

Belter

Buchanan

Brown

Kolaga

G O L D E N

A N N I V E R S A R Y

1957-2007

Founded and funded for lawyers by lawyers.


that you can take a case outside of your comfort area,learn something, and provide a needy client with valu-able legal services. Give Bob Elardo a call.

One Last Tug on the Heart Strings…Don’t forget the fine work done by the Bar

Foundation, especially the help offered to attorneysand their families. We’ve got a great job, but very oftenan attorney in private practice doesn’t have the safetynet enjoyed by employees. A break in active practice forany reason can be devastating to the lawyer and herfamily. Through the Foundation, a drowning attorneycan be saved, and, when necessary, rehabilitated.Please help again this year with the annual campaign,and be as generous as you’d like others to be.

Speaking of which, let’s take a moment out from ourdaily stresses and strains to relax, breathe, and reflectgratefully on all that we have been given. A very happyThanksgiving to all! [B]

President’s Letter continued from page 1

Rules that is numbered like the Model Rules, and fol-lows them as closely as possible without losing cher-ished New York ethical concepts.

The House of Delegates of the NYS Bar Associationhas passed on almost all of the changes, and it may befinished by the time this is published. The next step isfor these recommendations to go to the courts forapproval. If they are adopted, numerous CLE opportu-nities will follow, and those of us who have spent 30years learning to distinguish DR 5-105 from DR 5-108will have to attend. If you are interested, go to theNYSBA Web site under Publications, SubstantiveReports.

Banners, Blimps and BillboardsThe new advertising rules are still up in the air, and

by that I don’ t mean that there is a discussion under-way concerning whether signs on blimps touting lawfirms have to bear the legend “Attorney Advertising.” Afederal district court has found that certain of the rulesare unconstitutional, and the state has filed a notice ofappeal. I don’ t know when that will be determined, orwhether a trip to Washington to see the United StatesSupreme Court will follow, but in the interim the NYSBar Association (COSAC again) has produced proposedEthical Considerations that are helpful for thoseattempting to apply the new rules. The EthicalConsiderations will be considered by the House ofDelegates in early November and if passed should beavailable shortly thereafter.

Pro Bono? Sure, Doesn’t Everybody Like U2?

I couldn’t close without a gentle reminder that,“Of those to whom much has been given, much will berequired.” Thanks to the good planning of thoseresponsible for the Volunteers Lawyers Project (VLP),you do not have to go alone into a thicket of unfamil-iar laws and courts in order to discharge your pro bonoresponsibilities. VLP offers training and assistance so

justice in this community. The fact that we can have anuproarious4 roast of judicial candidates also speakshighly of our relationship and our sense of humor,apparent on both sides of the bench.

That’s why I didn’t identify with the “joking” quota-tion in a recent local news article: “Lawyers are likePavlov’s dogs. When they hear ‘judge,’ they bow andscrape.” That hasn’t been my experience in the trialcourts. The vast majority of lawyers do not give undodeference to judges, nor do most judges expect it.Mutual respect, yes. Bowing and scraping, no.

The quote above deftly describes the careful connec-tion among lawyers and judges. Our system of justicedepends on the full participation of advocates andjudges, each equally important to the strength of thewhole. Here we recognize and applaud the metaphor,even if a three legged stool isn’t the grandest object tobe compared with. Couldn’t we be the three-columnedTemple of Castor and Pollex in the Roman Forum, orthe three-columned arch on the Georgia state seal?

Finally, for those concerned about the number ofjudges, take heart. With over 3,700 non-judge mem-bers of this association, we aren’t outnumbered!

What’s a COSAC?For those of you who missed it, there is an effort

underway by the NYSBA to completely revamp theCode of Professional Responsibility and adopt a versioncloser to the American Bar Association’s Model Rules.New York state is the last “Code” state, and the argu-ment is that New York jurisprudence in the area of pro-fessional ethics is less and less relevant. Also, lawschools are teaching the Model Rules, not the Code ofProfessional Responsibility, making the transition fromlaw school to practice even more difficult. This age ofmulti-state practice is no time to “go it alone.” To thisend, a committee of the New York State BarAssociation, the Committee on Standards of AttorneyConduct, popularly referred to as COSAC, has beenlaboring for many years to produce a set of Disciplinary


Hilbert College, then went on to Canisius to studyaccounting. Fortunately for the BAEC, she quickly dis-covered that she hated accounting and earned herdegree in history instead. When the executive directorposition became available in 1982, she applied, alongwith scores of others, including applicants generated byan intensive search process. Then-president JimMagavern happily takes credit for the hiring decisionthat even he could not have imagined would be so suc-cessful and far reaching.

Elegance and poise. Grace under pressure. Integrityand humor. These are the words that are repeatedagain and again when staff and others are asked to

describe the long-time exec. One of the most powerfultests of good management involves staff turnover.There is next to none at Bar headquarters. And whenemployees do leave, it is generally only to return toschool or accept a better opportunity, which Bifaroactively supports and encourages.

She has also distinguished herself and our Associationthrough her leadership and involvement at the stateand national levels. Bifaro received the NationalAssociation of Bar Executives’ (NABE) prestigiousBolton Award for professional excellence in 1989 andwas elected president of the group in 1998. She chairedthe Bar Executives Committee of the New York State

Executive Director Celebrates 25th Year continued from page 1

The Association’s past presidents turned out in spades to pay tribute to Bifaro at a special dinner held recently at The Mansion on Delaware.

Conference of Bar Leaders from 1984 through 1989and also served as the NABE’s long-time membershipchair, welcoming scores of new members into theorganization with her customary graciousness and élan.Upon completion of a recent term on the board of gov-ernors of the New York State Attorney-Client FeeDispute Resolution Program, Bifaro was asked to con-tinue her involvement through committee work.

As President Fisher wrote in a recent column, “All barpresidents praise Kathie because she makes us lookgood, but her value as a leader of our Association goesbeyond that limited, but crucial, activity. The excep-tional loyalty of her staff and the high esteem in whichthey hold her is the clearest indication of her talent.”

SNAPSHOT:Katherine Strong Bifaro

Here’s a rare glimpse into the very private and totallyself-deprecating leader who has successfully managedthe Bar’s daily operations and staff for the past 25 years.

What do you wish the public understood about lawyers?

People frequently complain that there are too manylawyers. I disagree. During a program we presented afew years back on alternative legal careers, our speakerwas a New York City attorney named Doug O’Brien. Hisanswer to that question was: “How is it possible to havetoo many people who know how the world works? Howcan we have too many people who can deal with thecivics of the day? Are there too many people who thinkclearly and rationally? Is it possible to have too manycircumspect people? And how can there be too manypeople to look to for guidance and leadership?” I could-n’t agree more.

What has been your biggest challenge sinceyou were named to the top job?

I suspect that my day-to-day job is much like anyother. My biggest challenge was preparing for it by get-ting my education as an adult with three children and a

continued on page 6


full-time job. (Editor’s note: Bifaro neglects to mentionthat she was also caring for her terminally ill mother atthe same time.)

What is the most gratifying part of the job?Working with lawyers who I consider to be the most

intelligent, ethical and generous people in the commu-nity. I’ve learned from them and benefited from theirwise counsel. I have also developed lifelong friendshipswith the most respected, beloved lawyers in thecity…what a great job!

What is your favorite book?“A Thousand Splendid Suns” by Khaled Hosseini

comes most readily to mind. But I have so manyfavorites. I also loved “Winter Solstice” by RosamundePilcher, and Anita Shreve’s trilogy, “Fortune Rocks,”“Sea Glass” and “The Pilot’s Wife.” And I can’t leaveout “Lonesome Dove.”

Did you ever think about becoming alawyer yourself?

Absolutely not! I’d be a terrible lawyer. I much preferbeing the one who is surrounded by geniuses andexperts.

What makes a good lawyer?I think it’s those who love the rule of law, who are

committed to their clients, and who aspire to a higherpurpose other than success and its rewards.

What would really surprise people about you?

That I’m shy, an introvert.

If you hadn’t had this job, what would you have done?

When I went back to school, I had planned to be anaccountant. But I quickly learned that it wasn’t for me. Ireally wanted this job and I would not have wanted toteach history. But I love learning about it and enjoyedschool a great deal. So I might have gone for anadvanced degree in Russian history, which fascinates me.I really don’t know where that would have taken me.

A DINNER PARTY DISASTERThe dinner party was really fine

Until upon a piece of glass she did dineWithin fine food it was hidden

Not showing even a merciful glimmer.

She asked for a judgment on liabilityTo set right a culinary travesty

The Court agreed, with a judicious and somber moodTo hold responsible the preparer of this food.

Earl v. Adducci, __AD3rd__, 4th Dept., 9/28/07,#914, affirming Justice Rose Sconiers.

PROCREATION PROHIBITION PROSCRIBEDOur Fourth Department has set aside that portion of

a Family Court Order which prohibited the respondentfrom becoming pregnant. (In the Mtr. of Bobbijean P.,__AD3rd__, 9/28/07, #1013)

ROOF GOOF PROOFJustice Eugene Fahey was held to have properly

denied defendant’s summary judgment motion onplaintiff ’s action seeking to enforce an express warran-ty on metal roof panels. The Fourth Department notedfactual issues as to the cause of the leaking roof. (BaillieLumber Co., L.P., v. A.L. Burke, Inc. et al., __AD3rd__,9/28/07, #919)

ALTERCATION ELABORATIONEvidence of a prior altercation between the victim

and the defendant was held to have been properlyadmitted at the trial. Autopsy photos were also held tohave been properly admitted. (Peo. v. Jones,__AD3rd__, 4th Dept., 9/28/07, #926, affirmingJudge Shirley Troutman)

GLAD DADSA child’s aunt failed to demonstrate the extraordi-

nary circumstances necessary to prevail over the child’sfather in a custody battle. (In the Mtr. of Jody H. v.Lynn M., __AD3rd__, 4th Dept., 9/28/07, #952) Seealso In the Mtr. of Albert T. v. Wanda H., 4th Dept.,9/28/07, #954; In the Mtr.of Olivia L. __AD3rd__,4th Dept., 9/28/07, #975; and In the Mtr. ofChristopher J.S., v. Colleen A.B., __AD3rd__, 4thDept., 9/28/07, #992

$5K CREDIT CANNEDThe Fourth Department has set aside an award of a

$5,000 credit to a spouse in a matrimonial distribution(as a parental gift), finding that the monies had beenvoluntarily contributed to the economic partnership.(Bozman v. Bozman, __AD3rd__, 9/28/07, #984)

FORUM FIGHT FOCUS IN HANDLEBAR MISHAP

Everything you ever wanted to know about theenforceability of forum selection clauses in contractscan be found in Chiarizia v. Xtreme Rydz CustomCycles, et al., (__AD3rd__, 4th Dept., 9/28/07,#999), where the handlebars on plaintiff ’s Florida-purchased motorcycle broke off while he was riding it.

NO BOOT FOR SUM SUITNotification to his insurer of a possible supplemen-

tary uninsured motorist coverage 14 months after theaccident raised a factual issue as to the reasonablenessof the notice. (In the Mtr. of the Arb. between ProgressiveIns. Co. and DeWitt, __AD3rd__, 4th Dept., 9/28/07,#1001)

PONDERING POWER OF ATTORNEYPetitioner failed to meet her burden to show that the

alleged incompetent person lacked sufficient capacitywhen she signed the Power of Attorney and HealthCare Proxy. (In the Mtr. of the Appl. for theAppointment of a guardian for Mildred M.J.,__AD3rd__, 4th Dept., 9/28/07, #1042)

PUNTING PURCHASE OPTIONAn unlimited option to purchase property under

indefinitely renewable lease has been held to be unen-forceable as it is in violation of the prohibition againstremote vesting (EPTL 9-1.1[b]). (Harrington v. Gage,__AD3rd__, 4th Dept., 9/28/07, #1043)

“CORNELL DOCTRINE” CURBEDIn a case of first impression, Justice Joseph Makowski

has held that municipalities may exclude a church froman industrial park after an appropriate balancing ofinterests. (The WNY Dist., Inc. of the Wesleyan Churchv. Village of Lancaster et al., __M.3rd__)

SUBPOENA POWER PARAMETERSLimits to a request for a subpoena duces tecum seek-

ing a victim’s school and social records are conciselyreviewed by our Fourth Department in Peo. v. Reddick,(__AD3rd__, 9/28/07, #969).

VARIANCE VICTORY VINDICATEDA zoning variance should have been granted where

the building had the external “look” of a permittedtwo-story building, but was only one story on theinside with vaulted ceilings In the Mtr. of Lodge Hotel,Inc. v. Town of Erwin, __AD3rd__, 4th Dept., 9/28/07,#1142.

citations

By Jeff Spencer

What was your proudest moment? Receiving the Bolton Award from the National

Association of Bar Executives. That was such a specialmoment. There is nothing else quite like receiving thattype of recognition from your peers.

Describe an ideal Sunday. I’m such a gypsy, I don’t like the same thing all the

time. It changes constantly. One week, I may opt for adrive to Niagara-on-the-Lake with my husband; thenext week, I may want to watch movies and not leavethe house. And speaking of gypsies, I recently did agenealogy search which explains why I may have thispredisposition. It turns out that my maternal grand-mother truly was a Hungarian gypsy!

Where do you live and why? I live in Hamburg. It’s a comfortable community and

I have a lot of friends there. It’s where I raised my threechildren (Danielle, Tim and Erin).

What’s your favorite food? Oysters on the half shell.

What really gets on your nerves? Talking to offshore tech support. And people who

don’t play nice.

Who has influenced you the most in your life?

My old friend Bill Dietzel and my closest friendChristine Neville.

Who’s your idol? My father, who died when I was 17.

Complete this sentence: Every attorneyshould…

belong to the Bar Association!!

SNAPSHOT: Katherine Strong Bifaro continued from page 5


The Bar Association of Erie County is seeking active,involved leaders to run for officer and director positionsfor the 2008-09 year.

The Nominating Committee chaired by presidentCheryl Smith Fisher is now accepting applications frominterested members of the Bar Association of ErieCounty for the positions of vice president, deputytreasurer and director. You may nominate yourself orother members you feel would be qualified and willing.Candidates should be able to demonstrate a history ofactivity within the organized bar.

Vice PresidentThe vice president performs the duties of the presi-

dent if he or she is absent or unable to perform theduties of the office. The vice president serves a one-year term followed by a one-year term as president.The president is the chief executive officer of theAssociation and presides at all meetings of theAssociation and all meetings of the board of directors.The president is the Association’s spokesperson.

Deputy TreasurerThe deputy treasurer is a member of the Finance

Committee and performs as treasurer in his or herabsence or inability to perform the duties of the office.The deputy treasurer serves a one-year term followedby a one-year term as treasurer. The treasurer is theAssociation’s chief financial officer.

DirectorThe affairs of the Association are managed by a 16-

member board of directors. Four directors rotate off theboard annually and four new directors are elected.Directors are elected to a three-year term and are noteligible for re-election as a director until the expirationof one year after he or she has left that position.

Interested persons should send a resume along withthe position title to: Nominating Committee, BarAssociation of Erie County, 438 Main Street, SixthFloor, Buffalo, New York 14202. The NominatingCommittee is actively soliciting nominations from themembership.

Nominating CommitteeCheryl Smith Fisher, Chair

Jeffrey M. Freedman

Hon. John F. O’Donnell

Joseph A. Matteliano

Hon. Erin M. Peradotto

Diane M. LaVallee

Katherine B. Roach

Nominations Sought for Bar Association LeadersMooney to ReceiveAnnual DTLA Award

The Defense Trial LawyersAssociation of WNY will presentthe 2007 Robert KielbalaMemorial Award to Harry F.Mooney, a partner at Hurwitz &Fine PC, according to DTLApresident Jerry O’Connor. Eachyear, the DTLA presents theaward to a defense attorney who“has made significant contribu-

tions to the profession.” The 2006 recipient wasBuffalo attorney Diane Bosse.

The award will be presented at the group’s annualmeeting and holiday party, scheduled for Wednesday,December 12 at The Chophouse. The annual electionwill also take place at that time. The slate of officercandidates includes:

President - Michelle Parker (Anspach Meeks Ellenberger LLP)

Vice-president/president-elect - David Adams (Hurwitz & Fine PC)

Treasurer - William Nitterauer (General counsel, Travelers Ins.)

Secretary - Walter Pacer (Law Office of Walter R. Pacer, Jr.)

Director candidates are Sharon Angelino (GoldbergSegalla LLP), Nicole Palmerton (Brown & Kelly LLP),and Joel Java (Roach, Brown, McCarthy & Gruber,PC).

DTLA-WNY members defend individuals, businessesand municipalities that are sued in western NewYork. The group also works on issues related to juryselection, tort reform and other legal areas that affectresidents and businesses in the region. For a member-ship application, please send an e-mail to DTLA-WNY vice president Michelle Parker [email protected]. [B]


serve pleadings and motions with the County Clerk,court and parties to any tort, commercial and tax cer-tiorari case filed in Erie County. Statutory court feescan be paid to the County Clerk by means of the e-fil-ing system, which operates through an internet Website. To access the Unified Court System’s e-filing Website, go to www.NYCourts.gov/efile. The site containsnecessary forms and answers to frequently asked ques-tions.

New Process Expected to Simplify CivilLitigation in NY

E-filing is fast and secure. The system is convenientand simple to use. It can save the time of attorneys andtheir staff members, thereby reducing litigationexpenses. Those who use the e-filing system can filedocuments with the County Clerk and in court at anyhour of the day from anywhere in the world whereInternet access is available without paying any addi-tional fees for use of the system. Service of papers sub-sequent to initiation of the case can be madeelectronically from any location as well. Court fees canbe paid online by credit card (Visa or MasterCard). Anelectronic case docket is also created and the case file issimultaneously accessible at any time by all participat-ing attorneys on the case with the ability to print doc-uments at no additional charge.

“With e-filing, the County Clerk and the court aremaking the process of commencing and pursuing civillitigation in New York simpler, more convenient, more

expeditious and more cost-effective for attorneys andclients,” according to Jeffrey Carucci, StatewideCoordinator for Electronic Filing of the Unified CourtSystem.

Informational packets concerning the e-filing systemare available at both the Erie County Clerk’s Officeand the Erie County Supreme and County CourtsChief Clerk’s Office.

E-Filing of Tort, Commercial & Tax Certiorari Casescontinued from page 1

Everything You Ever Wanted to Know About E-Filing inthe Commercial Division

An educational program to explain e-filing

procedures will be held on

Thursday, November 8th

at the Holiday Inn, 911 Brooks Avenue,

Rochester, NY. Contact Beth Bivona at

858-3849 or Sharon Porcellio at

853-5100 for further details.

R. William Larson

C. Donald O’Connor

Bette D. Patterson

“Memory is a way of holding on to the things you love,

the things you are, the things younever want to lose.”

~ Kevin Arnold

We wish to honor the memory of the follow-

ing members of our Bar Association. Memorial

gifts to the Erie County Bar Foundation are

an excellent way to remember friends and

colleagues, as gifts are used for the benefit

of the entire profession.


By Diane M. LaVallee

Editor’s Note: The brainchild ofLynn Clarke and Diane LaVallee,this feature highlights the careers of20 local attorneys who have prac-ticed law for 50 years or more. If youknow of a local attorney who haspracticed for half a century and/or

would like to write an upcoming profile, please contactDiane LaVallee at [email protected] or BonnieO’Brian at [email protected].

Buffalo just said good-bye to one of its leadinglawyers and genuine gentlemen. Philip H. Magner, Jr.,erstwhile roastmaster and litigator extraordinaire,moved to Florida at the end of September, sadly withno plans to return to Buffalo. The loss is palpable.

“I don’t know how many people it would take to takehis place,” said long-time friend Harold J. Brand, Jr., aformer court official and president of the BAEC.Indeed. It’s difficult to imagine the legal community,especially here in Erie County, without Magner’s inim-itable eloquence, humor, and dedication to profession-alism and collegiality.

Witness the myriad programs Magner either initiatedhimself or was otherwise intricately involved in the for-mation and support of: the annual Bar Foundationfundraising campaign (which previously had been theproverbial passing of a hat); the Outreach Committeeof the Bar Association, whose function is to contact,keep in touch with, and visit aged, infirm, or disabledlawyers to let them know they have not been aban-doned and forgotten by their profession; the annual bardirectors vs. judges softball game; and the FirstCitizens’ Conference on Criminal Justice, held in 1973,not long after the Attica riots, at a time when the non-legal community’s respect for and trust in the criminaljustice system was particularly low. The BarAssociation won the first place Award of Merit from theAmerican Bar Association for that conference.

“Poor guy had to go to Hawaii to pick up his award,”Brand recalled.

All of these activities were born of the same motiva-tion—a desire to contribute to the fair administrationof justice and increase the enjoyment of the practice oflaw in our community. Perhaps the activity Magner ismost widely known for is as the roastmaster for theJudicial Candidates Luncheon. How he became roast-master, however, is not so widely known.

From Stodgy to Irreverent In One Fell Swoop

In 1967, Magner ran for vice president of the BarAssociation. He lost a close race to William Mahoney.(He later won and served as bar president.) Then-president Willard M. Pottle called Magner and offeredhim any job within the bar that he wanted. Magnerpicked the stodgiest, most boring activity the bar hadto offer, and the rest is history.

Courtland R. LaVallee remembers Magner’s firstroast. “I was a brand new associate [at what was thenMoot & Sprague] and a senior partner came in with aticket to the luncheon. I was told in no uncertain termsthat as the junior associate I had to go, but I’d be boredto tears. I got there and Phil Magner had everyonelaughing ‘til they cried!”

One particular roast Magner counts as one of his bestwas a poem he wrote to introduce Family Court Judgeand candidate Douglas Trost. He admits he was halfafraid to deliver it at the time:

On innocent babes do I dote

Their fathers I seize by the throat

I’m the infants’ protector

From the casual injector

If only those bastards could vote.

His ribald humor hardly began as roastmaster.During his brief tenure at the University of Rochester,he worked on the college newspaper. Magner was giventhe choice of being expelled or enlisting in the Navyafter changing the sports editor’s first name in a weekly

column to Peter. The editor’s real name?Gerald Rising. Magner chose the latteroption and was sent to boot camp.

Paging Dr. Magner?Magner almost didn’t become a lawyer.

An influential uncle was a physician whowanted Magner to follow in his footsteps.Magner “flunked out of pre-med” andfollowed his first dream, to be a lawyer.That wasn’t the only distraction from hislegal career path. Magner always enjoyedperforming in plays and musicals inschool, summer stock, and had evenappeared onstage at Studio Arena. Hismother had calling cards made for him.One day, he was approached by a “broad-way producer” named ChamberlainBrown. At the ripe old age of sixteen, Magner wasasked to send Brown a biographical sketch and someglossy photos.

Magner thought nothing more of it until much later,when during a brief furlough in New York City, he paid

a visit to Brown’s office. The waitingroom was full of people, and Magnerhad no desire to sit around, so hehanded Brown’s secretary one of hiscalling cards (the only one he had usedto that point). To his surprise, Brownsaw him immediately and encouragedhim to pursue a career on the stage.

Brown was persistent, but Magnerdemurred. He had his heart set on lawschool and a legal career in Buffalo.Brown suggested a stage career at nightand law school during the day, andfinally offered Magner an audition in anew play being produced. Again,Magner declined. The part? EnsignPulver in “Mister Roberts.”

“Think what all those millions havemissed,” Magner mused with a smile.

That he made the correct careerchoice is evident. Magner received col-

lege credit from his military experience and graduatedfrom the University of Buffalo Law School just shy ofhis twenty-second birthday. He recalled his first joboffer, received as a senior in law school. The offer dis-appeared, however, when the lawyer, Roger Cook, a

One Thousand Years of Legal History in Western New York A Profile of Philip H. Magner, Jr.


Philip H. Magner, Jr.

Editor’s Note: Beginning with this issue,Kevin Hogan takes the co-author reins fromRobert Glanville, who collaborated with PaulStecker on this column since January 1991.Special thanks to Bob for dedicating his timeand talent to our members for the past 16 years.

APPEALIn Byrne v. Telesector Resources Group, Inc. (04-CV-

76S, 8/19/07), plaintiff ’s discrimination claim waspartially dismissed, surviving to the extent it was basedon an allegation that her promotion was discriminato-rily delayed. Plaintiff moved for entry of final judgmenton the dismissed claims pursuant to Rule 54(b), Fed. R.Civ. P., under which the court may direct a final judg-ment as to less than all claims or parties, if (1) one ofmultiple claims was finally decided, (2) there exists nojust reason for delay, and (3) some degree of hardshipor injustice would be alleviated by an immediateappeal. The court denied the motion, holding thatwhere a claim rests alternatively on different sets ofallegations, the entire claim, rather than merely one setof allegations, must be finally disposed of on the meritsbefore a Rule 54(b) motion may be granted.

CONSUMER CREDITIn Mahon v. GC Services Limited Partnership (07-

CV-44S, 6/27/07), the court limited attorneys’ feesawarded pursuant to the Fair Debt Collection PracticesAct to hourly rates of $200 for an experienced attorney,$125 for a recently admitted attorney and $50 for aparalegal.

DEFAULTIn New Era Cap Co., Inc. v. Prinz Enterprises LLC

(06-CV-391S, 5/25/07), the court vacated the entry ofa default judgment pursuant to Rule 55(c), Fed. R. Civ.P., where plaintiff knew that defendant was seeking toretain counsel and defendant had requested additionaltime to answer. The court also noted that the require-ment to show a meritorious defense is at odds with the


statutory presumption of validity that applies in patentcases like this one. (In a later decision in this case, thecourt stayed mediation pending decision on defen-dant’s motion to transfer venue).

DISCOVERYIn Walter v. Hamburg Central School District (04-

CV-996S(F), 7/3/07), the court denied plaintiffs’motion to reopen discovery to allow her additional timeto disclose an expert witness, rejecting plaintiff ’s excusethat it would have been an unfair financial burden forher to retain an expert until she knew whether her casewould survive summary judgment.

IMMIGRATIONThe pro se petitioner in Bondarenko v. Chertoff (07-

MC-2, 9/8/07) alleged that respondents failed to time-ly decide his Form I-485 application, which had beenpending for more than three years and four months, toadjust his immigration status to permanent residentstatus. Respondents moved to dismiss for lack of sub-ject matter jurisdiction on the ground that the adjust-ment-of-status process in the Immigration andNationality Act (“INA”) is unreviewable because theprocess is entirely committed to agency discretion. Thecourt denied the motion, concluding that, whereas adecision to grant or deny an application to adjust thestatus of a lawfully admitted alien to that of permanentresident is discretionary and removed from judicialreview, the INA does not give the attorney generalauthority to decide whether or not to adjudicate theapplication.

INSURANCEIn Penna v. Peerless Insurance Co. (06-CV-6201P,

9/24/07), the defendant insurer relied on a two-year“time-for-suit” clause in a homeowner’s policy indenying coverage to the plaintiff insureds. Although acarrier can waive the limitations defense by intention-ally relinquishing it, or be estopped from raising thedefense if it misleads the insured into not filing a time-ly claim, the court concluded that the insurer’s actionshere (e.g., making partial payments, requesting infor-mation and conducting an examination of the insured) asa matter of law did not amount to estoppel or waiver.

SUCCESSOR LIABILITYThe Second Circuit has held that, at least with

respect to the federal superfund law, the “substantialcontinuity” doctrine of corporate successor liability isnot so well-established as to be part of the general fed-eral common law. In Equal Employment OpportunityCommission v. Nichols Gas & Oil, Inc. (05-CV-6482CJS, 9/28/07), the Court concluded that the sub-stantial continuity test was nevertheless sufficientlywell established in the area of labor and employmentlaw to survive that holding. The court accordinglygranted plaintiff ’s motion to amend the complaint to add as a new defendant the buyer of assets from the existing defendant, rejecting defendant’s argumentthat the successor liability claim against the asset buyerwas futile. [B]

Law Line EducatesPublic on Legal Issues

Since 1997, The Law Line has engaged theminds of thoughtful western New Yorkers whotune in to WNED-AM (970) at 10:00 onSaturday mornings. Host Mike Desmond talksto lawyers and judges from our legal communi-ty on wide-ranging topics related to the law.The program provides a valuable public servicethat reaches about 4,000 listeners each week.

We appreciate the time that the followingmembers of our Association have taken to edu-cate the public about legal matters by volun-teering their time to appear on The Law Line.Members are listed in order of appearance.

Jeffrey F. VoelklReal Property Condition Disclosure Act

Leslie Mark GreenbaumRights of Artists

Peter Allen WeinmannAssessment Challenges

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

western district case notes

By Paul K. Stecker and Kevin M. Hogan


WelcomeNew Members

The Bar Association of Erie County is pleased

to welcome the following new members:

Gevork Arutyunov

Dale Bauman

Sarah Bell

Linda Benedict

Michael T. Birkby

Amanda Carden

Kenneth F. Case

Vincent P. Cignarale

Daniel D. Day

Monique E. Emdin

Kristin Farrell

Jeffrey T. Fiut

Louise M. Flynn

Keith W. Gaylord

Brendan James Gilbert

Michael Giuliano

Janis M. Golubock

Gordon Hepworth

Adam W. Koch

Ethan Kraybill

Jeffrey J. Leibeck

Gary H. Lisowski

Tracy Lundquist

Sean J. MacKenzie

Elise Malinowski

Michael J. Mettille

Colleen Murphy

Heather E. Nikiel

Michael L. Nisengard

Maureen N. Polen

Lissette Ruotolo

Nathan Short

Joseph M. Tripi

Kendra Schamel Verguson

Pieter G. Weinrieb

James M. Wujcik

It’s great to belong to something this good.

Calling All Overworked Members & Solos: New Service Fills Legal Research & Writing Needs

Do you need an experienced lawyer to helpwith legal research and writing? If so, you’llwant to take advantage of the BAEC’s newestmember service. The Association recentlybegan accepting resumes from lawyers whoprovide research and writing services on acontract basis.

If you could use a few more hours in yourday, let an experienced colleague take some ofthe workload off your shoulders. ContactSherry Palermo at 852-8687 [email protected] to receive copies ofthe resumes currently on file.

Experienced Legal Research & Writing Attorney1990 University of Pittsburgh J.D.,

Law Review member,

New York and California Bars.

Experienced litigator seeks part-time

research and writing contract work.

Call 852-8687 for full resume.

LEGAL RESEARCH AND WRITING


The co-chairs of the BAEC’s Young LawyersCommittee, Melissa A. Foti and Natalie A. Grigg, arepleased to report that their October meeting, whichfeatured a mock employment mediation, was a greatsuccess. The meeting was held jointly with the ADRand Labor Law Committees. Everyone’s attendancewas very much appreciated!

The next committee meeting is scheduled for Friday,November 16. The speaker for that meeting will beattorney Leonard D. Zaccagnino, who will discuss“The Nuts and Bolts of Trying a D.W.I. Case.”

A happy hour to kick off the holiday season is cur-rently in the planning stages. Further details will beannounced shortly.

Lastly, the Young Lawyers Committee will soonbegin gearing up for this year’s high school mock trialtournament. Volunteers are needed to judge the pre-liminary and final rounds. Look for an announcementwith further details in next month’s Bulletin. As always,thank you for your support! [B]

News from the YoungLawyers Committee

Golden AnniversaryPhone-A-Thon

Ninety minutes is all we need. The ErieCounty Bar Foundation is planning itsannual Phone-A-Thon for Campaign ’07.The Phone-A-Thon plays a vital role in thesuccess of our annual fundraising cam-paign. This Campaign depends entirely onvolunteers. The following is a schedule ofthis year’s Phone-A-Thon. If you are avail-able to help, please contact Heidi Mahon at852-8687 or [email protected]. Yourhelp is much needed and deeply appreci-ated!

Tuesday, November 6, 2007

Election Day

9:00 am to 10:30 am

10:30 am to 12:00 noon

12:00 noon to 1:30 pm

1:30 pm to 3:00 pm

3:00 pm to 4:30 pm

Monday, November 12, 2007

Veteran’s Day

9:00 am to 10:30 am

10:30 am to 12:00 noon

Wednesday, November 14, 2007

9:00 am to 10:30 am

Monday, November 19, 2007

9:00 am to 10:30 am

Are You An AttorneyStruggling With

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

Johns Hopkins study of 108 occupationsfound that lawyers topped the list of thosewho suffered from depression. Attorneys werefound to suffer from depression at a rate offour times that of the national population.

While the holiday season can be especiallychallenging, help and support are just a phonecall away. The Buffalo Support Group forLawyers with Depression meets monthly to sharestories and fellowship. The next two meetings willbe held at Bar Headquarters on Friday,November 2nd and Friday, November 16that 12:30 p.m. For confidential inquiries, pleasecontact Ginger B. Maiman at 481-3486 or [email protected]. [B]

Octoberfest in Ellicottville Photo by Glenn Edward Murray


If Jim’s request is denied, modified, voided or inacti-vated, he has the right to a fair hearing. A fair hearingis a legal proceeding that has unfamiliar rules that canchallenge the pro se client and confuse even the mostseasoned attorney. The evidentiary threshold, substan-tial evidence, has been defined by the courts as, “morethan a mere scintilla. It means such relevant evidenceas a reasonable mind might accept as adequate to sup-port a conclusion.” Consolidated Edison Co. v NLRB,305 U.S. 197, 229 (1938) And, although the law hasimplemented safeguards to protect the pro se appel-lant, how objective can Jim really be when his life is putunder a microscope by people who only know him as aMedicaid number?

At a fair hearing, Jim has the right to confront thoseindividuals who are responsible for denying, modifyingor inactivating his request. Currently, Medicaid admin-istrators are not required to be present at the hearing,but may participate through remote phone connec-tions. Whether actually present or connected by phone,the Medicaid agency must be represented by an officialwho has reviewed the case, can explain Medicaid’sposition, and who is authorized to change Medicaid’sdecision if warranted.

Although a decision isn’t issued for several weeksafter a fair hearing, Jim will receive a copy of the deci-sion at the same time it is sent to Medicaid. If his fairhearing is successful, the department will have only alimited time to comply with all directives in that deci-sion, and he’ll have the right to complain if the depart-ment doesn’t comply within that time. If Jim loses, hecan file for an Article 78 proceeding within four monthsof the decision date. [B]

in the public serviceBy Marge Gustas, Paralegal and Carl Snitzer, Volunteer Attorney

Gustas and Snitzer are with the New YorkState Assistive Technology Advocacy Project,a Project of Neighborhood Legal Services, Inc.

I often shudder when I think of how many of myclients will face repeated medical problems because oftheir disabilities and will be at the mercy of eitherMedicaid, Medicare or both. Many of these individualswill need medical equipment like wheelchairs or stand-ing devices, TENS units for pain, or maybe an adaptedtricycle for their developmentally disabled child.Frankly, why would anyone assume that any of theseindividuals would look forward to dealing with abureaucracy when it can take them two hours or morejust to get dressed and get their breakfast in the morn-ing? So for those of us who try to make the relation-ship between our clients and these bureaucraciessomewhat painless, I thought that there would be noharm in giving all interested parties the low-down onMedicaid, Prior Approval, Durable Medical Equipmentand the Fair Hearing Process.

What is Medicaid?Medicaid is not Medicare! Medicaid is for individu-

als who meet certain income and asset guidelines. Ithas its own laws relating to eligibility and the provisionof services. Medicaid recipients have the right to applyfor prior approval for any device that meets the defini-tion of Durable Medical Equipment (DME), is med-ically necessary and is cost effective.

What is Durable Medical Equipment?A device meets Medicaid’s definition of DME if it is:

• able to withstand repeated use;

• primarily and customarily used for medical pur-poses;

• generally not useful to a person in the absence ofan illness or an injury; and

• usually not fitted, designed or fashioned for a par-ticular individual’s use, like a prosthetic leg.

Meet Jim. Jim needs a chair with a seat lift mecha-nism to help him stand up. His DME store tells himthat Medicaid will not pay for this chair becauseMedicaid considers it a recliner. Does this chair meetthe DME definition? Yes. Jim will use it repeatedly.These chairs were designed to assist the aged and dis-abled when rising. A person who can stand unassistedwon’t buy one of these chairs, and they certainly arenot designed for individual use like a prosthetic leg.

What is the Prior Approval Process?Since Jim believes that this device meets the

Medicaid DME definition, how does he go about get-ting Medicaid to pay for it? Medicaid requires thatmany pieces of DME go through the prior approvalprocess to determine if the requested device is med-ically necessary and cost effective. Medicaid’s accept-ance of a prior approval application lets the DME storeknow that Medicaid will pay for the device or pick upthe co-pay from Jim’s other medical insurance carriers.A strong prior approval application consists of theapplication, a letter of medical justification from thedoctor who is prescribing the device, any supportingletters from other doctors or health professionals, astatement from the prescribing doctor or therapistabout what other devices may be comparable and whythey were not selected, and information from the DMEstore about the cost of the device requested.

Medicaid has 21 days to decide whether or not toaccept or deny Jim’s request. If Medicaid sets asideJim’s request because it needs more information, it willsend a “missing information” letter to the DME storeand his doctor. In order to assure a quick determina-tion, Jim needs to make sure that this letter gets a quickresponse and doesn’t sit on his doctor’s desk.

The Company of

The need may be based on medical problems,job loss, emotional difficulties, family crises or many other situations. No person or problem is categorically excluded.

If you need assistance – or know a friend or colleague who does – please call GingerMaiman at 481-3486. All services are individualized and completely confidential.

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


former Supreme Court Justice, went into partnershipwith Edward Kavinoky, whose daughter was engagedto one of Magner’s classmates. Guess who got the job?

Compassion Leads to Med-Mal Career Eventually Magner became one of the first serious

practitioners in the area of medical malpractice. Heremembered his first such case in the early 1950s. Aclient came to him about an accident. During the inter-view, the client told of his young daughter who hadgone to the hospital with a throat infection and twodays later had had a leg amputated.

“I couldn’t bring myself to send the case to anotherattorney,” Magner recalled.

A review of the hospital records revealed that an IVhad been improperly placed in her leg, filling it up withfluids which quickly caused the leg to become gan-grenous. On the day of trial, the case settled for anunprecedented $50,000.

It didn’t make him a lot of friends with members ofthe negligence bar, who were profiting from accidentcases and unwilling to sue the doctors who were theirprime witnesses.

“My name was mud,” Magner remembered.

Needless to say, the doctors he excoriated on thestand weren’t too happy, either. Over 20 years later, hisdoctor took the extra precaution of admitting Magnerto the hospital under an assumed name. Some woundsnever heal.

Magner’s name has since become synonymous withexcellence in the trial advocacy. Another extraordinarytrial attorney, Daniel T. Roach, described Magner inoft-repeated terms as “the most brilliant trial attorneyof his time.” Magner has been listed in the publication“Best Lawyers in America” since its inception 20 yearsago.

Presiding Justice Eugene F. Pigott, Jr. of the FourthDepartment couldn’t agree more. “I was always con-vinced that anyone choosing to try a case against Philwould write a long letter to his or her family explainingthe coming absence from home and anticipated moodswings. It was not something to be entered into lightly.”

Magner made it look easy, but his colleagues knew heworked tremendously hard.

Roach knew this from personal experience. Theirlifelong friendship began while trying cases againsteach other, another testament to Magner’s character.

“He beat me in cases I shouldn’t have lost,” Roachremembered. “When it was all over, though, because ofthe manner and grace with which he tried the case, hedidn’t make an enemy.”

Magner had “a great understanding of people,” hecontinued. “He was a master of jury selection.”

His Own Worst Critic What did Magner himself think was his greatest

weakness as a trial attorney? Jury selection. “I wasn’twise. I was too trusting and believing.” Needless to say,his success belies this notion.

Magner’s eloquence and integrity provided the per-fect combination for his legal malpractice work. Hespoke with pride about the work he’s done (often freeof charge) in defense of attorneys and judges.

“I had two rules. First, I wouldn’t take anyone Ithought should be disbarred. Second, if the client liedto me, he was out the door.”

The experience has left him “bitterly opposed” to thepublication of charges before a decision is made.

This is not his only concern with the state of thepractice of law today. Over 50 years in the professionhas earned him the right to air his concerns.

Pride in the Profession, Judicial SelectionAmong Top Concerns

“Encouraging pride, dedication, and fellowshipamong lawyers, controlling advertising while respect-ing free speech, overcoming apathy with regard tooffices and elections” are challenges Magner sees facingthe bar today.

Another area of deep concern to Magner is the man-ner in which judges are selected. This anxiety shouldcome as no surprise from a man who served for a timeon the Governor’s Judicial Screening Committee forthe Court of Claims, and for about 20 years on theGovernor’s Committee for the Fourth JudicialDepartment.

“After all those years, it was and is my firm opinionthat neither the present elective system nor the presentappointive system from screening committees workswell,” Magner stated.

“I believe that the best system, which the politicalparties would not like, is a non-partisan judicial ballot,where the candidates would run without party labels,and would accept and advertise endorsements and rat-ings only from the general bar association - in our case,the Bar Association of Erie County, and not from any ofthe special constituency bar associations.”

Embracing DiversityThe most positive change that has occurred in the

profession in the past 50 years is the diversity of thepractitioners.

“Large firms were pretty much composed of white,Anglo-Saxon, Protestant males. All of that has changedcompletely,” Magner reflected.

A Wordsmith ExtraordinaireMagner’s most significant yet elusive characteristic to

convey on paper is his eloquence and mastery of theEnglish language. One can only let his own wordsspeak for themselves. In response to the questionnairewhich began the process for this article, he wrote a let-ter which ended thus, “Many trees had to die to createthis letter so please forgive my verbosity. As you cansee, an excellent memory combined with lots of sparetime can turn a strong wind into a hurricane.”

His gift for expression has made him a frequentinvited speaker at many state and national events, anda eulogist or principal speaker at funerals of a veritable

A Profile of Philip H. Magner, Jr. continued from page 9

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valuable time away from the practice of law.The Bar Association of Erie County partnershipwith ADP can save your firm time and money. Aleader in the payroll industry, ADP offers a widerange of flexible, advanced solutions that arecustom-tailored to your firm, regardless of sizeor stage of development.

All BAEC members will receive a perma-nent 25% discount on payroll and/or taxfiling services.

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To take advantage of this valuable member-ship benefit or learn more about ADP’s services,contact Stacey Lea Klimtzak at 626-6036 [email protected].

It’s great to belong to something this good.

“Who’s Who” of the legal profession.

“If you ever heard him give a eulogy, you would has-ten to die before him, so he could speak at yourfuneral,” Brand quipped.

Despite Magner’s retirement about seven years ago,he had maintained an active role in the Buffalo legalcommunity.

“He never forgot about taking care of people. Henever refused a request. He used his talents to improvethe image of the bar,” recalled Brand.

Magner’s departure from Buffalo leaves a hole thatthose who knew him and those who merely knew of hismany efforts must attempt to fill. He gave his last roastin August, this time aiming his sharp wit at JusticePigott. He ended the roast with his own good-bye.

“Not having siblings of my own, I have always con-sidered my colleagues in the legal profession my fam-ily,” he said.

Thanks to his many contributions, he leaves his“family” a much better place to practice law.


By Anna Marie Richmond

The Bar Association of Erie County, together with theMonroe County Bar Association, recently hosted anoverflow crowd at the annual bench and bar dinner ofthe United States District Court for the Western Districtof New York at the Terry Hill Country Club in Batavia.The popular event, which provides an opportunity forinformal networking among the judiciary, court staffand federal court litigators, was an unqualified success,thanks to the diligent efforts of dinner chair, Dean M.Drew and BAEC executive assistant Sharlene Hall.

Chief Judge Richard J. Arcara presided over the

after-dinner program, which included a report on thecourt’s ADR program from Hon. William M. Skretnyand an update on the status of the Bankruptcy Courtfrom Chief Bankruptcy Judge Carl L. Bucki. JudgeSkretny reported that the ADR program has resulted insettlement of 77 percent of the cases that have com-pleted the ADR process, exceeding all expectations ofthe program’s organizers. Judge Bucki reported on yetanother year of record filings in the Bankruptcy Court,and further reported that innovative new programs ini-tiated by Bankruptcy Judge Ninfo and the court’s ITdepartment have been replicated nationwide.

Chief Judge Arcara presented the court’s annualPro Bono award to Buffalo attorney Robbie LeeBillingsley for her dedication and willingness to takeon numerous pro bono cases, even in the face ofincreasing disability resulting from amyotrophic lat-eral sclerosis, commonly known as Lou Gehrig’sdisease. Billingsley, who was diagnosed with ALS in2005, continued to provide pro bono service to thecourt through 2006. In her honor, and in lovingmemory of Hon. Edmund F. Maxwell, who was alsoa victim of ALS, a contribution of $500 was madeto the ALS Association of Western New York.

Hon. Jeremiah J. McCarthy, former president ofthe Bar Association of Erie County and the court’snewest magistrate judge, also addressed the gather-ing. Judge McCarthy’s comments combined theprofound and the humorous in the inimitable stylethat characterized his president’s letters during histerm as bar president. [B]

Standing Room Only at Federal Bench and Bar Dinner

BAEC Federal Practice Committee chair Anna Marie Richmondaccepted the court’s annual pro bono award on behalf of RobbieLee Billingsley, who is terminally ill and could not be present toreceive it.

Hon. Leslie G. Foschio is flanked by Roxanne MendezJohnson, Monroe County’s assistant federal public defender at left and Marianne Mariano, assistant federal public defender for Erie County at right.

Photos by Glenn Edward Murray

Hon. Jeremiah J. McCarthy addresses the crowd.

“The ability to laugh at life

is right at the top, with love

and communication,

in the hierarchy of our needs.

Humor has much to do

with pain; it exaggerates

the anxieties and absurdities

we feel, so that we gain

distance and through

laughter, relief.”

~ S A R A D A V I D S O N

Worth Quoting


By Anthony P. Forgione

Recently, the First Department held in Rodriguez v.Saal, 2007 N.Y. Slip Op. 06336 that an actionagainst an organ procurementcenter by a recipient sounds innegligence rather than med-ical malpractice. This note-worthy decision significantlyimpacts the statute of limita-tions for actions by recipients ofdiseased organs.

In February of 2002, Juan Rodriquezunderwent a kidney transplant proce-dure, with a replacement cadaveric kid-ney supplied by defendant New York OrganDonor Network. However, the transplantedkidney had extensive cancerous tumors. JuanRodriquez died eight months later.

The estate filed suit against the New YorkOrgan Donor network in September 2004,approximately two years and eight months afterthe kidney was transplanted. The complaintalleged that the New York Organ Donor Networkfailed to screen the transplanted kidney for disease.Counsel for the New York Organ Donor Networkmoved to dismiss the case as time barred, since theaction was commenced more than two and a half yearsafter the alleged malpractice. The lower Court foundthat the claim was one of medical malpractice, and dis-missed the action.

On appeal, the First Department reversed the lowerCourt, and found that the cause of action against theNew York Organ Donor Network sounded in simplenegligence, rather than medical malpractice. TheCourt found that a claim for medical malpracticerequires the existence of an express or implied physi-cian-patient relationship. Citing McKinne v. BellevueHosp., 183 A.D.2d 563, 564. Such a relationship is cre-ated when a physician renders medical treatment toanother person, who accepts same. Citing Lee v. City ofNew York, 162 A.D.2d 34, 36.

In Rodriguez, the alleged negligent actions of theNew York Organ Donor Network did not involve ques-tions of medical competence. Rather, the issue waswhether they breached their duty of care to screen fordisease during their organ collection activities. TheCourt held that such activities would not create aphysician-patient relationship between the organrecipient and the organ procurement center. This isbecause the organ screening could not be construed as

medical treatment to the organ recipient. Moreover, asthe kidney was donated from a cadaver, it is unlikelythat the donee was even identified at the time of thescreening. Accordingly, the First Department foundthe claim to sound in simple negligence, and rein-stated the action as being timely commenced withinthe three-year statute of limitations. In effect,extending the time recipients of diseased organs canpursue claims by six months.

The decision in Rodriguez v. Saal represents alandmark case in the area of tort law, as the

Appellate Division for the First Department hasrecognized a cause of

action for simple neg-ligence against organprocurement centers

for failing to screen fordisease. More impor-tantly, the existence ofa negligence claimraises the question,whether the claimcould be viewed asaccruing at the timeof discovery pursuant

to CPLR §214-(2)c.

A former member of theBAEC, Anthony P. Forgione

is an associate at Dinkes &Schwitzer, P.C. and represented Elena Alicea Rodriguezin Rodriguez v. Saal.

“Negligent” Organ Transplants

Top Ten Things YouMay Not Know aboutthe Lawyer Referral &

Information Service

1. An attorney on our service recently col-lected a fee of $296,607.45 for an individualcase. Other documented fees ranging from$10,000 to $183,000 have been collected bymember attorneys for individual cases referredby the LRIS staff.

2. More than 18,000 potential clients calledthe referral service last year in search of specifictypes of legal assistance.

3. There are currently 69 pages of attorneynames and advertisements listed in the yellowpages of the telephone directory, which frustrates many potential clients seeking an attorney.

4. The Lawyer Referral & InformationService receives potential clients from all overthe United States, as well as from foreign coun-tries.

5. The Lawyer Referral & InformationService is marketed throughout western NewYork. The Service pays to advertise in severaltargeted media, including radio, Internet, tele-phone directory and print.

6. Because the Lawyer Referral Service ispart of the Bar Association of Erie County,public confidence in the program is high.

7. The Lawyer Referral Service is recom-mended to potential clients by various courtsand community agencies, as well as byemployee assistance programs and other attor-neys on the service who may not practice in aspecific area of law. Potential clients are alsoreferred to us by other Lawyer ReferralServices across the United States.

8. The Lawyer Referral service is a co-spon-sor of the popular Law Line radio series airedon WNED-AM.

9. The Lawyer Referral Service is not a probono service and referrals are made only whena client has a legitimate need for an attorneyand has indicated the ability to pay for legalservices.

10. The Lawyer Referral service can saveyou and your staff valuable time by pre-screening potential clients and generating newbusiness for your firm.

The staff of the LRIS also has some humor-ous anecdotes to share about the types of callsthey receive. Like the elderly woman who asksnot to be placed on hold “because I am already90 years old!” Or the fact that consumers call-ing for information rarely seem to have a penand paper handy as the staff members juggleseveral lines ringing all at once.

But seriously folks…if you aren’t already amember of the LRIS, what are you waiting for?The service can be a valuable practice-builderfor attorneys in all areas of concentration andat all levels of experience.

For further information, please contact LRISAdministrator Marcia McKowan at 852-3100.

Top Ten


By Aven Rennie and Susan M. Lankenau

When issuing the order to showcause that initiates an Article 81proceeding, the judge mustappoint a qualified court evalua-tor.1 By turns detective, socialworker, mediator, and protector ofthe rights and property of analleged incapacitated person(AIP), the court evaluator plays acentral role in the proceeding.Stated broadly, it is the responsi-bility of the court evaluator to rec-ommend to the court whether theAIP is in need of a guardian.

A previous article on this subject(Bulletin, Dec. 2006, pgs. 17, 20)

gave an overview of guardianship proceedings underArticle 81 of the Mental Hygiene Law. This articlefocuses on the role of the court evaluator and alsodescribes an important case of first impression havingto do with the powers and duties of a court evaluatordecided in July 2007 (In re Heckl, __ AD2d __, 838NYS2d 797 (4th Dept 2007)).

The Office of Court Administration maintains a list ofqualified court evaluators who have undergone therequired training under Part 36 of the Rules of theChief Judge. By statute, a wide variety of individualsmay undergo such training, including lawyers, physi-cians, psychologists, accountants, and social workers.In rare cases, an appointee will decline to serve for per-sonal reasons and the court will appoint another per-son. The court evaluator must file a Designation in theClerk’s Office before assuming his duties.2

The court evaluator has a variety of duties. Theseinclude explaining the proceeding and the powers of aguardian to the AIP, advising the AIP of his right tocounsel, ascertaining whether the AIP desires counsel,determining whether the AIP is able to participatemeaningfully in the proceeding, interviewing the peti-tioner, or in the case of a petitioning facility, an employ-ee of the petitioner with knowledge of the AIP’s condi-tion, affairs and situation,3 interviewing family mem-

bers and friends, locating relevant financial and legaldocuments, determining whether access to the AIP’smedical records is necessary to assess the AIP’s condi-tion and obtaining a court order to review such records,preparing a written report for the Court, and attendingall proceedings and presenting an oral summary of hisreport. Although the written report is confidential, mostcourt evaluators share their reports with petitioner’scounsel the day before or the day of the hearing.However, some await a ruling from the court beforeproviding a copy to petitioner’s counsel and the AIP’scounsel.

Court Evaluators Perform Critical RoleThe court evaluator promotes efficiency in the pro-

ceeding by addressing threshold issues promptly. Forexample, if an AIP is bedridden or poses a flight risk,the court evaluator should bring thisto the court’s attention before thescheduled hearing date so that thecourt may arrange for a bedsidehearing. In some cases, the petition-er will ask the court to appoint atemporary guardian at a hearingscheduled on short notice in theorder to show cause. The court insuch cases looks to the court evalu-ator for a recommendation on theneed for a temporary guardian andthe best person to do the job.

The court evaluator plays a criti-cal role in evaluating the AIP’s men-tal and physical condition. Medicalevidence is not necessary to a deter-mination of incapacity, when laytestimony clearly and convincingly establishes that theAIP is incapacitated and in need of a guardian.4

Nevertheless, most judges find medical evidence high-ly relevant to the determination of an AIP’s capacity.The law recognizes the relevance of medical evidence,5

but does not resolve the issue of the admissibility of suchevidence when an AIP contests the appointment of aguardian. Most court evaluators include thorough infor-mation in their reports about relevant aspects of theAIP’s physical and mental health, whether from laysources or medical professionals.

The court evaluator should submit an order to thecourt granting access to medical records only after theAIP has been served. This gives the AIP an opportunityto contact the Clerk of the Court to object to the releaseof records.6 The court evaluator assesses the need to

review medical records as part of his investigation ofthe AIP’s condition. Some AIPs present patent cases ofthe need for a guardian without resort to medicalrecords. Other cases are not so clear. If the AIP is will-ing to share his medical information and does notrequest counsel, the court evaluator should submit adraft order to the court permitting the court evaluatorto see and make copies of the medical records. Thecourt evaluator needs to bring the signed order withhim or her when asking to inspect them.7 If the AIPobjects to releasing medical information or requestscounsel, the court evaluator is advised to send a copyof his letter to the court seeking an order grantingaccess to medical records to the AIP (or his counsel, ifhe is represented), and to disclose the AIP’s objection.The court will then decide if a hearing is necessary inorder to consider the request for access to such records.

Equally important in the court evalu-ator’s investigation is information aboutthe AIP’s assets. This information issometimes available from records in theAIP’s home, which the court evaluator isauthorized to enter as part of his inves-tigation. Most court evaluators sendrequests for information, along withcopies of their order of appointment, toall major area banks. The AIP’s fullname and address, prior names andaddresses, and, if available, the AIP’ssocial security number, will assist inlocating the AIP’s accounts. If the AIP ishospitalized, the institution will oftenhave information about the AIP’s assetsor benefits. Pension plans are sticklersabout disclosing information and gener-

ally refuse to do so. The court evaluator is advised tosend a certified copy of his order of appointment to theplan administrator along with his request for informa-tion. In some cases, an order directed at a particularplan or financial institution is needed.

Not for the Faint of Heart!The court evaluator’s written report must provide

comprehensive information about the AIP and alsomake recommendations about the need for a guardian,powers that should be granted, the duration of theguardianship, and the identity of the guardian. In somecases, two or more people, often family members, viefor appointment and the court evaluator is placed inthe awkward position of recommending one over theother – or neither one.

Article 81 of the Mental Hygiene Law: The Role of the Court Evaluator


The court evaluator

role demands

honesty, persistence

and diplomacy.

Rennie

Lankenau

“”


Acting as a court evaluator is not for the faint ofheart. The following scenarios, while not common,illustrate actual local cases:

(1) a hospitalized AIP with obvious means of supporthad no financial records at all; an exhaustivesearch of the AIP’s home and local bank recordsyielded no information whatsoever; the courtevaluator eventually opened a can of coffee in thefreezer and found thousands of dollars;

(2) a hospitalized AIP with a suspected history ofdrug abuse wanted to return home; the courtevaluator found no drugs in the medicine cabinetor anywhere else until she discovered, under abed, a locked suitcase containing a variety of illic-it drugs;

(3) a hospitalized AIP reported leaving many petsunfed and unattended in her home; the courtevaluator went to the home and found no pets,alive or dead, but was attacked by a neighbor’sdog outside the AIP’s home and required suturesin her leg;

(4) a hospitalized AIP was a home-owner who livedalone; the court evaluator saw nothing alarmingoutside the house, but found conditions inside thehouse so squalid that she discarded her boots andouterwear after conducting her investigation; and

(5) an AIP in a nursing home owned a large home;the court evaluator and counsel to the AIP discov-ered that it was occupied by squatters claiming tobe the AIP’s friends; the squatters refused to openthe door or accept mail and eventually had to beevicted.

Each of these cases presented unusual circumstancesand demanded honesty, persistence and diplomacy onthe part of the court evaluator. This persistence isadmirable, particularly given that, except in limitedcircumstances, the AIP’s assets are the only source ofpayment for the court evaluator’s fees.8 Judges try toappoint court evaluators to a mix of cases and to avoid

burdening any one practitioner with excessive “no-asset” cases. The legislature’s decision not to fund thecost of the court evaluator’s services in cases involvingdestitute AIPs is a long-standing flaw in the statutoryscheme.

The Heckl DecisionThe recent decision in In re Heckl, __ AD2d __, 838

NYS2d 797 (4th Dept 2007) holds, in matters of firstimpression, that the presiding justice in an Article 81proceeding must appoint a court evaluator, even if theAIP has retained counsel of his or her choice, but thatthe AIP cannot be compelled to meet with the courtevaluator.

In Heckl, the AIP was a wealthy, 80-year-old widowwho controlled a successful company founded by herlate husband. Her four children alleged that sherequired a guardian of the person and propertybecause she was suffering from dementia, was undulyinfluenced by her personal assistant, and lacked insightinto her own limitations, needs and financial affairs. Asa matter of course, the court appointed a court evalu-ator. In an unusual turn of events, the AIP refused tomeet with the court evaluator and the court held theAIP in contempt after the court ordered her to do so.The AIP appealed the court’s orders appointing a courtevaluator, directing her to meet with the court evalua-tor, and holding her in contempt for refusing to do so.

Examining the statutory scheme, the court notedthat it has elements of a flexible, best-interestsapproach that relies on hearsay gathered by, and opin-ions of, the court evaluator, as well as an adversarialapproach that ensures that an AIP has a full opportu-nity to contest the need for a guardian. The court foundthat the legislature intended to make the involvementof a court evaluator mandatory in all cases except whenthe court appoints counsel and finds that the addition-al appointment of a court evaluator will overburdenthe AIP’s estate. In Heckl, the presiding justice had notappointed counsel to the AIP and the AIP was far fromdestitute. As a result, the exception did not apply.

The court held, however, that the trial court erred in

directing the AIP to meet with the court evaluator andin holding her in contempt. The AIP argued that acompelled meeting violated her constitutional right notto be a witness against herself, since the outcome of theproceeding – the appointment of a guardian with thepower to choose her “place of abode” – affected herliberty interests. The court rejected this argument. Itheld that the object of an Article 81 proceeding is thepromotion of an AIP’s well-being. As such the courtanalogized the proceeding to civil confinement pro-ceedings promoting compelled care and treatment ofdangerous individuals who have served their full prisonterms. These proceedings are not viewed as punitive.Allen v Illinois, 478 US 364, 106 S Ct 2988 (1986).

The court also noted that the AIP has no statutoryduty to meet with the court evaluator. While refusing todo so will prevent the court evaluator from conveyingthe AIP’s wishes and preferences to the court, that isthe AIP’s choice. In addition, the court held that thecontempt power is not properly brought to bear in thecase of a reticent AIP because the AIP is neither arespondent nor a true “party” to the proceeding. Sincethe contempt power may be used only in vindication ofprivate parties to a litigation, an AIP, who is not a party,cannot be held in contempt for declining to meet witha court evaluator.

Aven Rennie is a partner in MagavernMagavern Grimm LLP. She focuses her prac-tice in health law and litigation, commerciallitigation, and intellectual property. SusanLankenau is of counsel to MagavernMagavern Grimm LLP. She focuses her prac-tice in intellectual property, corporate lawand commercial transactions, contracts, andhealth law.

Their next article will focus on post-appoint-ment guardianship matters and other Article81 topics of interest to guardianship practi-tioners.

1 MHL §81.09(a); the sole exception is when the court appoints counselfor the AIP when issuing the order to show cause. In the case of indigentAIPs not requiring a temporary guardian, the Court in its discretion mayavoid “overburdening” the estate of the AIP with the costs of both a courtevaluator and counsel. Law Revision Commission Comments, MHL §81.10,at 130. In such cases, counsel must be compensated in accordance withCounty Law Article 18-B. Matter of Heckl, supra, citing Matter of St.Luke’s-Roosevelt Hospital Ctr., 89 NY2d 889, 653 NYS2d 257 (1996), dis-cussed in depth at the end of this article. When exigent circumstancesrequire the appointment of a temporary guardian, counsel must beappointed. MHL §81.10(c).

2 MHL §81.26.

3 MHL §81.09(c)(4).

4 MHL §§81.02(c), 81.07(b)(3).

5 MHL 81.02(b)(4)(ii), (iii).

6 The statutory notice contained in the order to show cause alerts the AIPto the possibility that the court evaluator may ask for permission to seemedical records and warns the AIP to call the clerk of the court if heobjects. MHL § 81.07(d). Until the AIP is served and has a reasonable timeto object to the release of his records or retain counsel on his own, anorder granting the court evaluator access to medical records will generallybe premature.

7 Some court evaluators obtain an order without notice to an AIP beforemeeting with the AIP, but do not use the order to view the AIP’s medicalrecords if the AIP objects when the court evaluator meets with the AIP. Thiscan save a repeat visit in the case of an AIP who agrees to share recordsand does not request counsel.

8 MHL §81.10(f).

Article 81 continued from page 17


Foundation ReceivesBequest from

Oughterson EstateThe Erie County Foundation recently

received a generous bequest from the estateof long-time Buffalo attorney Elloeen D.Oughterson. The funds will be used to pro-vide direct aid and relief to attorneys in ErieCounty who are experiencing hardship.

Many years ago, the Foundation created aCodicil Club for lawyers who might wish toremember the Foundation in their wills.Other members who might be willing to con-sider this option are encouraged to contactKathie Bifaro at 852-1777 for further infor-mation.

Contributions to the Erie County Bar Foundation provide an excellent

vehicle for recognizing and honoring members of our profession.

Memorial gifts to the Foundation become a lasting tribute to the entire

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

promote understanding of our legal system.

In Memory of John T. “Jack”Frizzell:

Lauren D. Rachlin

Robert P. & Maryann Saccomando Freedman

In Memory of Nathan Ostroff:

Bar Association of Erie County

In Memory of Robert Grimm, Sr.(Father of Robert W. Grimm, Jr.,Brother of Richard A. Grimm, Jr.and Uncle of Richard A. Grimm, III):

Lauren D. Rachlin

In Honor of John L. Kirschner,Recipient of the Bar Association ofErie County’s 2007 Charles H.Dougherty Civility Award:


In Honor of Joseph C. Vispi,Recipient of the Bar Association ofErie County’s 2007 Charles H.Dougherty Civility Award:


In Celebration of Joseph Vispi’sRecent Birthday:

Michael Blinkoff

Andrew Blinkoff

In Memory of CommissionerEdward J. Mahoney:

Allan & Dana Lewis

Judge Joseph S. Mattina (Ret.)

In Memory of Joseph V. O’Mara, Jr.:

Ben Hoey

In Memory of Kevin McCarter(Brother of Hon. E. JeannetteOgden):

Maryann Saccomando Freedman

In Memory of Charles D. Wallace:

Bar Association of Erie County

The Foundation gratefully acknowledges the following contributions:

In Memory of Richard S. Gorecki:

David R. Pfalzgraf

Joel L. Daniels

Robert J. Tronolone

Personius Melber, LLP

In Memory of R. William Larson:

Hugh M. Russ, III

Philip H. Magner, Jr.

Wayne D. Wisbaum

In Memory of Bertil L. Peterson:

Lauren D. Rachlin


T H E E R I E C O U N T Y

Bar Foundation

�

“ I’ve heard it said that people come into our lives for a reasonBringing something we must learn and we are ledTo those who help us most to grow if we let themAnd we help them in return.

Now I don’t know if I’ve been changed for the betterBut because I knew you, I have been changedFor good.”

~ FROM THE MUSICAL “WICKED” BY STEPHEN SCHWARTZ


Tony Mancinelli, a corporatepartner in the Buffalo office of HarterSecrest & Emery LLP, was appoint-ed by the BAEC to serve a three-yearterm on the board of directors of theVolunteer Lawyers Project(VLP).VLP provides free legal servic-es to individuals and not-for-profit

groups. Mancinelli heads the private companies, com-mercial real estate and finance and municipal financepractice areas for the firm.

Sean J. MacKenzie has joinedMagavern Magavern Grimm LLP asan associate in the firm’s NiagaraFalls office. He practices in corporatelaw, litigation and appeals. He is aformer director and vice president ofAtomic Wash Enterprises and alsoworked with the international law

firm Piper Rudnick Gray Cary, LLP in San Diego,where he focused on patent and copyright enforcementfor an international computer company.

Bruce A. Goldstein, senior part-ner at Goldstein, Ackerhalt &Pletcher, LLP, recently spoke at aNYSBA conference on the practice ofspecial education law. He discussedthe legal and procedural aspects ofspecial education. Goldstein focuseshis practice on representing people

with disabilities and their families, educators, and serv-ice providers.

David P. Flynn, a partner withPhillips Lytle LLP, recently discussedBrownfield redevelopment in majorcities at “The Big Deal: NBABrownfields 2007” held recently inChicago. Flynn’s practice focuses onenvironmental law. He serves on theexecutive committee of the New York

State Chapter of the National Brownfield Associationand as vice chair of the Amherst Chamber ofCommerce.

Frank V. Balon and Monique E.Emdin recently joined the Buffalooffice of Hiscock & Barclay, LLP asassociates. Balon focuses on torts,products liability, insurance cover-age, and professional malpractice.Prior to joining Hiscock & Barclay,LLP, Balon was an associate withDamon Morey, LLP in Buffalo.Emdin focuses on real property taxand condemnation, along with tortsand products liability issues. Sheserves on the board of directors for theBethesda Community DevelopmentCorp and was previously employed byHiscock & Barclay, LLP as a summerassociate.

John P. DePaolo, a trial attorneywith the Bouvier Partnership, hasbeen elected to a one-year term aspresident of the Buffalo SunriseRotary Club. Rotary is an interna-tional organization of business andprofessional leaders that provideshumanitarian services. The club

supports the Western New York Food Bank Project, theHabitat for Humanity Project and other local charities.

Making the WorkdayWork for You

As technology continues to “simplify” our lives bygiving us more to do each day just to keep up withcommunication channels that didn’t exist a decade ago– think PDAs, iPhones, e-mail, laptops, cell phones,voicemail, text messaging for starters – it is moreimportant than ever to minimize distractions and focuson the things that we truly need to accomplish.

Haven’t we all spent a considerable amount of timewriting and responding to e-mail messages, feeling asthough we’re “working,” only to discover that the con-stant cyber-chatter has done nothing whatsoever toreduce any of the priority items on our “to-do” list?

A recent article in the Des Moines Register offers thesetips to help accomplish more of what really matters to you:

• Try scheduling two specific times each day toreturn e-mail and voicemail messages, ratherthan letting them interrupt your work on a con-stant basis.

• Decide at the end of each day which thingsabsolutely must be done the following day andstart in on them first thing the next morning.

• Turn off e-mail alerts and check e-mail ONLYafter substantial progress is made on the priorityitems.

• Keep a microcassette recorder in your car to cap-ture those random “great ideas” that tend tocome to you at off times.

• Don’t hold “routine” meetings – schedule themonly when absolutely necessary and provide aspecific stated purpose to participants in advance.

• Encourage meeting participants to contribute butcorral any comments that stray from your statedobjective.

• At the end of a meeting, specify the next steps andwho is responsible for taking agreed-uponactions.

Bench & Bar continued from page 3

Mancinelli

MacKenzie

Goldstein

Flynn

Balon

Emdin

DePaolo

“ The days come and go like muffled,veiled figures sent from a distant friendly party, but they say nothing, and if we do not use the gifts theybring, they carry them as silently away.”

~ RALPH WALDO EMERSON


In that glimpse, I saw that the solu-tion–alcohol and drugs–was the prob-lem, and if I was ever going to touchothers, help others and feel the love thatI had always pushed away, I had to stopdrinking and drugging. But I couldn’t doit no matter how hard I tried, I wouldalways return to alcohol and drugs. Theynever made things better, even though Ikept telling myself this time they would.

I found help. The volunteers of my barassociation’s Lawyers Helping LawyersCommittee reached out their hand to me and, withtheir help and direction, I was introduced to AlcoholicsAnonymous. A hopeless, useless person has becomehopeful and useful. Without LHL and AA, I am certainthat I would not have been able to turn my life around.

For today, I know what I didn’t know. I know that itis okay if I don’t know, if I do make mistakes and ifthere are times when I am unhappy.

Today I know that there is a place where I can go tofind the life skills I didn’t know about and I go there.Now, one day at a time, I do not use alcohol or drugsto run away from life. The miracle has happened.Some days I win.

This article was written anonymously by a memberof the Lawyers Helping Lawyers committee. For confi-dential assistance, call 852-1777.

I didn’t know that I didn’t know that I didn’t know,and so it was easy for me to blame my wife, my fam-ily, my co-workers and my clients for my ineffective-ness, my mistakes and my unhappiness. If they wouldonly listen to me and let me take care of everything,then the pain would go away. I was the most loving,caring, conscientious person that I knew. I might addthat I was the most knowledgeable person on everytopic that was being discussed, regardless of whether ornot I knew anything about it. I was constantly perse-cuted by the very people that I was going to rescue. Isummed up my existence by saying that I was Guilty ofRight Thinking. If that phrase strikes a chord in yourinner being, there is help for you as there was for me.

For most of my life, I snatched defeat from the jawsof victory. I was an expert at the famous coin flip game:heads, I lose, tails you win. It seemed that every selflessgesture and good deed ended with my feeling isolatedand alone. Fortunately, I did have a friend that Ithought understood me, supported me and enabled meto face the very people I was trying to help when theymercilessly pointed out my shortcomings, failures andmistakes. The friend was alcohol and after many years,when I needed more help, its companion, drugs.

The everyday problems of life overwhelmed me. Icouldn’t face them, because I didn’t know how to facethem. But I didn’t know that I didn’t know how to facethem. I devised a system that guaranteed I would lose.At least that way I wouldn’t be harming anyone. Mytwo best friends, alcohol and drugs, absorbed the painthat this created in me. They commiserated with meand encouraged me to live this way. And so I lived, pas-sively resisting the advice of the people who loved andcared for me, secure in the knowledge that they wouldall be safe, because in the end I would lose. It didn’tmatter to me because in the end I would lose. It didn’tmatter to me because I always had my friend in thebottle or the ounce or gram, until I didn’t.

I had to take two trips to the dry well of despair, thefirst when I ran away from a career that had promiseand the second when I gave up on my marriage. I wasphysically, materially, morally and spiritually bank-rupt. There was nothing left to fail at. My friends, alco-hol and drugs, couldn’t find anything or anyone toblame for my terror, frustration, loneliness and despair.

At that time, I was given one glimpse of reality. I sawthat nobody benefited from my losing, that I was hurt-ing everyone that I thought I was helping, that I hadbeen trying to manipulate and control the people Iwanted most to be free, that I was hopelessly and des-perately alone and that it was my choice. I was 40years old and I had no idea how to feel and how tosolve problems so that everyone could benefit. Perhaps,most embarrassingly, I was trained as a lawyer andteacher, allegedly solving problems and teaching lifeskills to associates and students who placed a great dealof reliance on me ... and I couldn’t do it for myself.

I Didn’t Know That I Didn’t Know

PAGE 22

Name______________________________________________________________________________________________________

Firm ______________________________________________________________________________________________________

Address __________________________________________________________________________________________________

City ________________________________________________________ State ____________ Zip ________________________

Phone ___________________________ Fax __________________________ E-mail __________________________________

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

Card Number ______________________________________________________________ Exp. Date ______________________

Cardholder Signature ________________________________________________________________________________________

ERIE INSTITUTE OF LAWREGISTRATION FORM

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

1. ________________________________________

2. ________________________________________

3. ________________________________________

Cancellation Policy: If you are unable to attend aseminar, for which you have already registered, callMary Kohlbacher at 852-8687 ext. 15. For a fullrefund, notice of your cancellation must be receivedbefore the date of the program. Registrants who arepre-registered and fail to attend will receive coursematerials in lieu of a refund.

Mail or fax to: Erie Institute of Law • 438 Main Street, Sixth Floor, Buffalo, New York 14202 (716) 852-8687 • Fax (716) 852-7641

PLEASE NOTE: As an accredited provider of Continuing Legal Education programs in New York state, we are unable to provide partial credit for any of our CLE course offerings. Participants who do not attend programs in their entirety are unable to receive ANY credit for them.

Date/Time/Location Topic CLE Credits Price

Thursday, November 1, 2007 54th Annual Tax Institute (FULL DAY) 12 credits $300

8:30 a.m. - 4:45 p.m. (Live Seminar) (total)

Adam’s Mark Hotel

Friday, November 2, 2007 54th Annual Tax Institute (HALF DAY) 12 credits $300

8:30 a.m. - 12:45 p.m. (Live Seminar) (total)

Adam’s Mark Hotel

Wednesday, November 7, 2007 Understanding Megan’s Law: The Sex Offender Registration Act 1.5 credits $35 members and

12:15 p.m. - 1:45 p.m. (Noonday) non-members

Adelbert Moot CLE Center PLEASE NOTE SPECIAL TIME AND COST

Thursday, November 15, 2007 Workplace Mediation - Conflict Resolution: 1 credit $20 members and

1:00 p.m. - 2:00 p.m. Mediation as an Alternative to Litigation non-members

Adelbert Moot CLE Center (Noonday)

Wednesday, November 28, 2007 Hot New York Tax Issues: 1 credit $20 members and

1:00 p.m. - 2:00 p.m. An Update on Recent Developments non-members

Adelbert Moot CLE Center (Noonday)

ERIE INSTITUTE OF LAWPROVIDING CONTINUING LEGAL EDUCATION FOR YOUR PROFESSIONAL ADVANTAGE

The following CLE materials are now available at discounted prices:

1. The Estate of Mary Golden Silverspoon: 1404 Examination of Witnesses, Discovery Proceedings and More, Product code 2066, 4.5 credits, CD or cassette, $50.

2. Understanding the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Product code 2086, 7.5 credits, cassette, $100.

BOOKSALE

www.eriebar.org | November 2007

PAGE 23

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

The Erie Institute of Law offers many of our most popular CLE seminars on compact disc, as well as on cassette tape and videotape. All of our seminars are professionally edited and are accompanied by a full set of written course materials.

Among our most recent selections:

LISTEN, LEARN & EARN!

2007 Update on Civil Practice andProcedureProduct code 2115

4.5 CLE credits: Practice Management/ProfessionalPracticePresented on September 8, 2007Available on CD and cassette only

Burton N. Lipshie presents the 2007 Update. Topicsdiscussed include:

• Jurisdiction: Long-arm jurisdiction in theInternet and eBay age;

• Commencement by Filing: Life in the post-Harris world;

• Statute of Limitations, with respect to profes-sional malpractice, estoppel, and defamationissues;

• Disclosure, including “informal” disclosure, attor-ney-client privilege, electronic discovery, andthe new rules regarding depositions;

• Summary Judgment, including the timing ofsummary judgment motions, and dealing withcredibility issues; and

• Forum Non Conveniens: How to tell the differ-ence between permissive and exclusive forumselection clauses and provisional remedies;recent cases on notice of pendency.

Getting it Right: Wrongful Death inSurrogate’s CourtProduct code 2112

4.0 CLE credits: 1.0 Ethics, 3.0 Practice

Management/Professional PracticePresented on May 24, 2007Available on CD and cassette only

Getting it Right: Wrongful Death in Surrogate’sCourt deals with the interplay of Supreme andSurrogate’s Court in wrongful death proceedings.You will learn both procedural and substantiveaspects of pursuing a wrongful death claim in

Surrogate’s Court and Supreme Court.

You Want to Bui ld What, Wher e?Public Input in Private Development Product code 2113

5.0 CLE credits: 4.0 Practice

Management/Professional Practice, 1.0 SkillsPresented on June 15, 2007

Available on CD and cassette only

This seminar is organized around the various pointsof view which presentthemselves in private devel-opment, especially in the Buffalo-Niagara region: (1)the citizen groups, pursuing environmental goalseither by opposing development or seeking to pre-vent harm to the environment; (2) the government,pursuing the protection of human health and theenvironment, and encouraging positive develop-ment in the region; and (3) the regulated communi-ty of developers and other businesses, pursuingprojects in the face of these obstacles.

This seminar focuses on issues confronted in thedevelopment process, including wetlands, zoning,the Brownfield Cleanup Program, and organizedopposition by citizen groups.

Save money every time you use a seminar pass.Simply stated, the Bar Association of Erie County CLEPassbooks give you the opportunity to attend high-quality, convenient, half-day educational programs at abargain rate. One pass buys any half-day seminar foronly $58 ($12 off the regular seminar price). If youwant to minimize your CLE expenses and maximizeeducational experiences for yourself or your firm, thenthe CLE Passbook program is for you. The passbookguarantees the reduced price of $58 for any half-dayseminar for the next two years, despite any fee increas-es during that time period.

We’ve Got Your Ticket to Savings!CLE Passbook Order Form

Please send me _____ seminar passbooks(one book of six passes: $350)

Total: $ _________________

Name: _________________________________________

Firm Name: ____________________________________

Address: _______________________________________

City: ___________________________________________

State: __________________ Zip: ___________________

Phone:_________________________________________

E-mail: _________________________________________

[ ] Check enclosed; Payable to the Erie Institute ofLaw 438 Main Street, Sixth Floor, Buffalo, NY 14202

[ ] Visa [ ] MasterCard

Credit Card #: __________________________________

Exp. Date: ______________

Signature:______________________________________

How it WorksPasses are available in books of six for $350 ~ six semi-nars for the price of five. Attach a pass when you mailyour advance registration form, or bring the pass withyou when you register at the door. If you intend to use the pass for a walk-in registration, please be sure to callahead and confirm the date, location and available seating. The seminar pass will cover your registration infull. Guaranteed.

The passes are completely transferable and can beshared with other members of your firm, including staffmembers and paralegals. If you are a sole practitioner,you can share the passes with other practitioners.

GuidelinesPassbooks are valid for two years from the date of pur-chase and are not replaceable if lost. No cash refundsare available for unused or expired passes. Each pass isvalid for admission to any half-day BAEC CLE seminar.There is no limit to the number of passbooks an individ-ual or firm can purchase, but all passes must be usedwithin two years from the date of purchase, or theybecome void. If a scheduling conflict arises after youhave registered for a seminar, just inform our office 48hours in advance of the program, and we will returnyour pass for future use.

The Cutting Edge of Ethics: EmergingQuestionsProduct code 2116

4.5 CLE credits: EthicsPresented on September 13, 2007Available on CD and cassette only

Steven C. Krane and David A. Lewis of ProskauerRose, LLP present The Cutting Edge of Ethics:Emerging Questions. Topics discussed include:

• The Ethics of Negotiation: Where is the line between puffing and lying?

• Interpretation of the New Advertising Rules: Isless really more?

• Waivers of Conflicts of Interest: For consenting adults only?

• Communicating with Represented Parties:Who are they anyway?

• Confidentiality: Is ratting on clients in our future?

Each seminar is priced as follows(unless otherwise stated):

CD/Audiotape: $70 BAEC Members, $100 Non-Members

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

Be sure to include your name and address for mailing purposes;add $5 shipping and handling for each tape purchased. Tapes aremailed via UPS, no P.O. boxes please. To order by phone usingyour Visa or MasterCard, call Mary Kohlbacher at 852-8687.

If you haven’t received your copy of our most recent CLE catalog, please call Mary Kohlbacher at 852-8687.

November 2007 | www.eriebar.org

PAGE 24

THURSDAY 1Negligence Committee 12:15 p.m. - Adelbert Moot CLE Center William A. Gersten, Chair

Practice & Procedure in Surrogate’sCourt Committee

12:15 p.m. - Bar Headquarters, 12thFloor

Catherine T. Wettlaufer, Chair

FRIDAY 2Commercial & Bankruptcy Law

Committee12:15 p.m. - Adelbert Moot CLE Center Beth Ann Bivona, Chair

MONDAY 5Professional Ethics Committee12:15-p.m. - Thomas S. Wiswall, Chair

TUESDAY 6Bar Foundation Phone-A-Thon9:00 a.m. - 4:30 p.m.Adelbert Moot CLE Center

FRIDAY 9Committee for the Disabled 12:00 p.m. - Janet L. Bensman, Chair

Practice & Procedure in Family CourtCommittee

12:15 p.m. - Part 14, Erie CountyFamily Court

Kristin L. Arcuri, Chair

MONDAY 12Bar Foundation Phone-A-Thon9:00 a.m. - 12:00 p.m.Adelbert Moot CLE Center

Federal Practice Committee 12:15 p.m. - Adelbert Moot CLE

Center Anna Marie Richmond, Chair

TUESDAY 13Board of Directors8:00 a.m. - Cheryl Smith Fisher,

President

Labor Law Committee12:15 p.m. - Kevin P. Wicka, Chair

Matrimonial & Family LawCommittee

12:15 p.m. - 25 Delaware, 5th FloorBridget M. O’Connell, Chair

WEDNESDAY 14Bar Foundation Phone-A-Thon9:00 a.m. - 10:30 a.m.Adelbert Moot CLE Center

Health Care and Elder Law JointCommittee Meeting

12:15 p.m. - Adelbert Moot CLECenter

Lisa McDougall and CharlesBeinhauer, Chairs

Unlawful Practice Committee12:15 p.m. - Bar Center, Brennan

RoomNancy M. Langer, Chair

THURSDAY 15Continuing Legal Education Committee8:00 a.m. - Brian R. Welsh, Chair

Criminal Law Committee12:15 p.m. - Robert M. Goldstein, Chair

Practice & Procedure in Justice CourtsCommittee

12:15 p.m. - Jeffrey F. Voelkl, Chair

FRIDAY 16Legal Nurse Consultants Committee 10:00 a.m. - Cynthia L.

Wojciechowski, Chair

Young Lawyers Committee12:15 p.m. - Natalie A. Grigg and

Melissa Ann Foti, Co-Chairs

MONDAY 19Bar Foundation Phone-A-Thon9:00 a.m. - 10:30 a.m.Adelbert Moot CLE Center

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

Taxation & Cooperation with theAccounting Profession Committee

12:15 p.m. - Raymond P. Reichertand Gary Kanaley, Co-Chairs

Workers’ Compensation Committee 12:15 p.m. - Workers’ Compensation

Board, Statler TowersMary Kay LaForce, Chair

TUESDAY 20Corporation Law Committee12:15 p.m. - Bar Center, Brennan RoomRonald J. Battaglia, Jr., Chair

Environmental Law Committee12:15 p.m. - R. Hugh Stephens, Chair

Real Property Law Committee 12:15 p.m. - Adelbert Moot CLE Center W. Clark Trow, Chair

WEDNESDAY 21Appellate Practice Committee12:15 p.m. - Bar Center, Brennan

RoomMarilyn Hochfield, Chair

Intellectual Property, Computer &Entertainment Law Committee

12:15 p.m. - Stephanie A. Cole, Chair

THURSDAY 22 & FRIDAY 23Office Closed for the Thanksgiving

Holiday

MONDAY 26 Alternative Dispute Resolution & Elder Law Joint Committee Meeting12:15 p.m. - 438 Main Street, 12th

FloorPatricia H. Potts and Charles

Beinhauer, Chairs

TUESDAY 27Board of Directors8:00 a.m. - Cheryl Smith Fisher,

President

WEDNESDAY 28Erie County Bar Foundation 8:00 a.m. - Hon. E. Jeannette Ogden,

President

THURSDAY 29Human Rights Committee12:15 p.m. - Bar Center, Brennan RoomAlan J. Bozer, Chair

Municipal & School Law Committee12:15 p.m. - Herbert J. Glose, Chair

FRIDAY 30January Bulletin Deadline

ALL MEETINGS HELD IN THE BAR CENTER, 438 Main Street, Sixth Floor, unless otherwise

noted. The Adelbert Moot CLE Center is also located at 438 Main Street, Sixth Floor.

NOVE M B E R2007

www.eriebar.org | November 2007

to Benefit Children in Need at Four Area Schools

For the third consecutive year, Buffalo Christmas Wishes will be providing holiday gifts to localstudents in need. Thanks to the generosity and enthusiastic support of the legal community,Buffalo Christmas Wishes was able to provide more than 1,000 gifts to 330 students attendingthe Niagara and Enterprise Charter Schools last Christmas season.

This year, the St. Augustine Scholars and the St. Monica Scholars have been added, raising thetotal number of deserving students to more than 380. As in the previous two years, almost all ofthe children qualify for the federal lunch assistance program.

If you are not familiar with Christmas Wishes, the concept is simple: make the holiday seasona little brighter by providing gifts for students who might otherwise go without.

Please visit www.buffalochristmaswishes.com for more details. The Web site lists each of thestudents along with their holiday wishes. If you decide to participate, simply select a child andsign up on the Web site. After the child is chosen, a confirmation page will appear. Please printthis page and attach it to your gifts. Most participants spend approximately $20 on each child.

This year, given the increased number of students, Buffalo Christmas Wishes is also acceptingcash donations for additional gifts and wrapping supplies. We ask that you provide your namewith your donation, so we can let you know what your donation provided.

Please drop off unwrapped gifts to the attention of Brian Biggie at the Goldberg Segalla lawfirm, 665 Main Street, 4th Floor, no later than December 17. If you have any questions aboutthe program, please contact Brian at 566-5400 or [email protected]. The contin-ued support of our legal community in making this program a success is very much appreciated!

www.eriebar.org

Documents

Bar Association of Erie County Vol. 47 | No. 3 |November ... · PDF fileBar Association of Erie County Vol. 47 ... Bar Association of Erie County in 1974. ... Edgar C. NeMoyer, James