In This Issuemedia.dsba.org/Publications/BarJournal/2010-2011/06.2011.pdf · 2020. 9. 15. · June 2011 • The Journal of The Delaware State Bar Association. 1. June 2011 • Volume

1June 2011 • The Journal of The Delaware State Bar Association

June 2011 • Volume 34, Number 11June 2011 • Volume 34, Number 11

In This Issue:• Race Judicata 2011• Delaware Legal Directory Correction Form• Nominations Sought for the Christopher W. White

Distinguished Access to Justice Awards

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3 The Journal of The Delaware State Bar Association • June 2011

June 2011 Volume 34 • Number 11

The Journal of the Delaware State Bar Associationis published monthly with a combined July/August issue

byDelaware State Bar Association

301 North Market StreetWilmington, DE 19801

302-658-5279(From Kent and Sussex Counties)

800-292-7869 FAX: 302-658-5212

www.dsba.org

PresidentMatthew M. Greenberg

Executive DirectorRina Marks

Editorial Board David W. deBruinMichael L. Sensor Seth L. Thompson

Executive Committee LiaisonTheresa V. Brown-Edwards

Vice President-at-Large

Publications EditorRebecca Baird

© Copyright 2011 by the Delaware State Bar Association. All Rights Reserved.

The Bar Journal is the independent journal of the Delaware State Bar Association. It is a forum for the free expression of ideas on the law, the legal profession and the administration of justice. It may publish articles representing unpopular and controversial points of view. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers, and all articles are subject to limitations of good taste. In every instance, the views expressed are those of the authors, and no endorsement of those views should be inferred, unless specifically identified as the policy of the Delaware State Bar Association.

All correspondence regarding circulation, subscriptions, or editorial matters

should be mailed to:Editor, DSBA Bar Journal

Delaware State Bar Association 301 North Market StreetWilmington, DE 19801

or e-mailed to: [email protected]

All inquiries regarding advertising should be directed to the address above,

Attention: Advertising, Bar Journal.

7 Race Judicata 2011 By Pat Quann and Charles B. Vincent, Esquire

15 Photographs from the 2011 Delaware Law Day Luncheon

17 Nominations Sought for the Christopher W. White Distinguished Access to Justice Awards

18 Law Week 2011 By Pat Quann

19 Nominations Sought for 2011 Awards

FEATURES

4 President’s Corner6 Editor’s Perspective10 Tips on Technology12 Ethically Speaking16 Pro Bono Spotlight20 DE-LAP Zone22 Book Review26 Judicial Palate

COLUMNS

DEPARTMENTS

8 Calendar of Events9 Section & Committee Meetings23 2012 Delaware Legal Directory Correction Form 24 Bulletin Board

Letters to the Editor should pertain to recent articles, columns, or other letters. Please limit to 250 words. Unsigned letters are not published. All letters are subject to editing. Send letters to 301 North Market Street, Wilmington, DE, 19801, Attention: Editor, Bar Journal.

Cover Photo Credit: © istockphoto.com/Denis Pogostin

Delaware State Fruit: Strawberry

“Adopted May 13, 2010, the strawberry is an important product of Delaware’s agricultural industry. Delaware strawberries are bred for taste, not to be big or last a long time on a store self.

Delaware Code Title 29 § 322”

Delaware State Plants. (2011) Retrieved May 20, 2011, from http://portal.delaware.gov/delfacts/plant.shtml


W hen my term as President of DSBA began almost a year ago, I heard from a

number of my predecessors about how rewarding the experience would be, and how quickly the year would pass. As with most of the advice I received from my predecessors, this advice was correct. Fortunately, the continuity of the DSBA allows projects to continue beyond any president’s term. I have sought to con-tinue the initiatives started by past presidents and am confident that incoming President Jim McGiffin will do an excellent job moving the organization forward.

At the start of my presi-dency, I wanted to focus on: Access to Justice issues; the DSBA’s facilities and financial health; and par-ticipation by members in Section and DSBA activities. Thanks in large part to the outstanding staff at the DSBA, the support of many members of the Bar and the Delaware Judiciary, and particularly members of the Executive Committee, we were able to make substantial progress and achieve many of these goals.

Access to Justice

At the beginning of my term, the DSBA hired Susan Simmons as the DSBA’s first pro bono coordinator. The addition of Susan has been invaluable to advance several projects and to coordi-nate efforts among Delaware’s legal ser-vice providers, Sections of the Bar, and other interested parties. By coordinating our efforts through a central source, we have been able to better manage our support of pro bono services to Delawar-eans. We have also expanded the scope of areas in which attorneys can provide

assistance which has, thereby, increased the number of attorneys participating in pro bono and volunteer opportunities.

Our new coordinated approach has made it possible to address systemic Access to Justice issues. We formed an Access to Justice Commission this year which includes representatives of the DSBA, the Delaware Bar Foundation, each of the legal service providers, the Combined Campaign for Justice, private

practice attorneys, and community lead-ers. The Commission’s current focus is to significantly increase the financial resources available to support civil legal services, reduce barriers that prevent equal access to justice by low-income Delaware residents, and improve plan-ning and coordination of legal services delivery. I am optimistic that the Com-mission’s inclusive approach to coordi-nate solutions in this area will result in significant benefits.

I also want to thank our membership for helping to implement and revive several programs this year. Our Veterans Committee coordinated a very successful program with Widener School of Law for attorneys to become qualified to do pro bono work on behalf of veterans. The Multicultural Judges & Lawyers Section created a Wills For Seniors event which was modeled on the Wills For Heroes

program. The Race Judicata 5k was also revived this year by the New Lawyers Section. Many lawyers participated and financially supported the race which benefitted the Delaware Law Related Education Center with $15,000 in dona-tions to support its programs.

We have also coordinated presenta-tions by legal service agencies that need volunteers to law firms and legal depart-ments at monthly luncheon seminars. By

bringing each of the legal service providers to the firms and legal departments on a regularly scheduled basis, we have increased volunteerism and improved the dialogue with our legal service providers.

Two new programs offer Delaware attorneys com-munity service opportuni-

ties beyond legal services. Partnering with the United Way, a website has been launched to match volunteer opportunities for United Way chari-ties with our members’ interests and skills. Any member that wants to help a charity, whether with legal support or general volunteerism, now has an easy way to find those opportunities. Please go to the DSBA website and look for the link to our United Way partner gateway link. SOLACE, which stands for Support of Lawyers/Legal Person-nel – All Concern Encouraged, was also launched this year. The program provides the legal community the op-portunity to reach out and help with meaningful and compassionate sup-port of judges, lawyers, paralegals, ad-ministrators, staff and their respective families who experience a catastrophic event in their life.

By Matthew M. Greenberg, Esquire

President's Corner

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DSBA Building, CLE, and Finances

Resources have also been focused this year to evaluate the physical condition of the DSBA’s historical building and assess the benefits and disadvantages of staying in our current location. This study includes a detailed calculation of the financial investment that would be required to remain in our current loca-tion for the next several years. Our Real Estate Committee continues to assess what path will provide our members with an appropriate facility that meets the DSBA’s needs and adheres to our budget.

This year, the DSBA offered even more CLE courses than in previous years. I want to thank our Sections and membership for hosting so many valu-able programs. Recognition also needs to go to the DSBA staff for handling the added programs while keeping the cost of the programs to our membership stable. Our staff has also made programs more accessible through web broadcasting and digitally recording all seminars and mak-ing them available in an electronic library.

We continue to take advantage of and search for additional non-dues revenue sources. Despite the rising costs of most services, the DSBA has managed to keep a positive bottom line without resorting to an increase in membership dues while also providing additional services.

Participation and Services

The DSBA’s success is based on the strength of its Sections and member participation. We are fortunate that these improve annually. This year, we added an Elder Law Section to address the various legal issues facing the growing elderly population. Additional Sections are being contemplated to address our changing legal landscape. Sections have also been very active in supporting pro bono initiatives, addressing legislative matters and hosting seminars, CLEs, and social events.

The DSBA seeks to keep abreast of technological advancements. In addition to our CLE program improvements, we are making the Delaware Legal Directory portable, always available to our members

and up to date by providing members with an “App” that will be given as a membership benefit to all dues paying members of the DSBA. The Blackberry version is to be launched at the Bench and Bar Conference, and work on an iPhone version is scheduled to be completed in the next few months with additional de-vices to be included later this year.

In addition, we are happy to provide our members with the History of the Delaware Bar from 1995 through 2010 and thank the History Committee and each of the contributors for their hard work on this important project.

It has been an honor to serve as President of the DSBA. I have tried to advance the DSBA’s agenda this year. I am fortunate to practice in Delaware and am pleased that I have been able to give back to a legal community that has provided me with so much opportunity and satisfaction.


D uring the CLE portion of the Inn of Court trip to Charlottesville, Virginia,

a presenting Judge discussed the rising problem of jurors using smartphones in deliberations to verify evidence presented at trial. An audience member commented on how younger generations may not believe information until it is verified via viewing on the Internet. Upon hearing that jurors may trust Wikipedia over personally witnessed sworn testimony presented through attor-neys, my mind went to the famous video of the student screaming, “Don’t tase me, bro!” at the town hall forum as the surrounding students barely reacted. I once heard a joke that the students may have been waiting to go home and watch the clip on YouTube, perhaps to confirm it had indeed occurred. After all, the information is available to anyone with a few keystrokes.

Two weeks later, a hometown friend visited over a weekend before the traffic and hectic schedule of summer set in. We shot the breeze about various high school acquaintances and college buddies, about life in Philadelphia versus life in Sussex County, and about any good discoveries in music, movies, and books. In the last category, the topic turned to Malcolm Gladwell’s Blink, which currently occu-pies my nightstand.

Blink discusses a person’s ability to make proper judgments from a very narrow period of experience by focus-ing on the simple, vital elements. For an initial example of the concept, termed “thin-slicing,” the book describes a sup-posedly centuries-old statue that caused

an immediate adverse reaction in art historians, but passed the scientific tests for authenticity and sold for a large sum, only to eventually be proven a fraud. Of-fering too many trees upon which to focus pushed the overall forest out of the frame. As the argument goes, too much informa-tion creates confusion and can lead to “analysis paralysis.” Among the studies are medical diagnoses and marriage suc-cess rates. While Gladwell’s other books have received similar glowing reviews,

this work grabbed my attention, frankly, for its usefulness at the office. Within a one-hour initial consultation are a lot of decisions based on very little interaction. Among the most important determina-tions to be made: Do I trust this person? Of course, trust is a two-way street, and the potential client is consciously or subconsciously undertaking the same analysis of me.

The conversation with my friend meandered off books and onto current events, specifically a purported, highly in-sensitive quote from a public figure. The advent of smartphones has fundamentally changed some minute, occasionally enjoy-able facets of life, such as the search for a resolution to friendly barstool debates. No longer do we have to go up to the attic to retrieve a dusty baseball card collection in order to determine whether Larry Bowa

ever averaged .275 for a season; we Google it on an iPhone. The time- and labor-intensive nature of the hunt required a high degree of certainty and made victory even sweeter. Now, even before a debate of the quote’s veracity ensued, the progress bar was advancing across the screen of my friend’s phone. The result was a two-line tweet attributing the quote to the person. This satisfied my friend; my inner skeptic felt the opposite. There was no context, no confirming sources, and no readily

apparent credentials for the reporter, who could have merely been a novice with a Twitter handle, an axe to grind, and a few spare mo-ments. I did not question my friend’s belief, but rather his sources.

Attorneys should be one of society’s most trustwor-thy sources. The Rules of

Professional Conduct require candor and honesty. Yet, there appears a cynicism among the general public that lawyers are not to be trusted. Perhaps this is a result of our role as advocates, includ-ing the need to question the veracity of information presented by the other side. Another possibility is the need to make distinctions in scenarios that may not appear significant to others, but lead to different results under the law. My hope is that individual interactions with indi-vidual attorneys will, over time, whittle any cynicism down to a proper degree of skepticism, whether the interaction is with a client, opposing party, witness, or co-worker. Although snap judgments will remain necessary for all parties in-volved, trust can solidify over time and under the pressures of our profession, diamond-like.

Editor’s Perspective

The Matter of Trust

By Seth L. Thompson, Esquire

The advent of smartphones has fundamenta l ly change d some minute, occasionally enjoyable facets of life, such as the search for a resolution to friendly barstool debates.


Race Judicata 2011By Pat Quann, Executive Director, Delaware Law Related Education Center, Inc.

and Charles B. Vincent, Esquire, Fish & Richardson P.C.

T he 6th Annua l Delaware State Bar Association’s Race Judicata 5K run/walk was

held on Saturday, April 9, 2011. The weather was cool and perfect for the race, and we had a wonderful turnout. The Honorable M. Jane Brady started the race, which was completed by well over 200 runners and walkers.

Race Judicata 2011 was organized by Charles B. Vincent, Esquire, of Fish & Richardson P.C., Chair of the New Lawyer’s Section of the Delaware State Bar Association. The committee in-cluded Emily Preslar Joseph, Esquire, of Richards Layton & Finger, P.A.,; Matthew Paul D’Emilio, Esquire, and Gregory F. Fischer, Esquire, of Cooch & Taylor, P.A; and Aleine Michelle Porterf ield, Esquire, of DLA Piper LLP (US).

Joe’s Crab Shack served as the host site and we thank them for a terrific af-ter-race buffet for all the participants. We also thank Parcels, Inc., Fit Gym, and Caffé Gelato for their contribution of services and prizes; Nicole M. Faries, Esquire and her firm of Prickett Jones & Elliott, P.A. for much needed water; and the many volunteers who helped keep the event running smoothly. Our volunteers included Delaware High School Mock Trial students from the Charter School of Wilmington and Howard School of Technology.

Funds and donations ra ised by the race will benefit the programs of the Delaware Law Related Education Center, Inc. Race Judicata raised over $15,000 for the Center. We deeply ap-preciate the generous support from the following firms and individuals:

Gold sponsors:Fox Rothschild LLPGregg M. Galardi, EsquireMorris James LLPMorris Nichols Arsht & Tunnell LLP

Pepper Hamilton LLPRobert B. Pincus, EsquirePotter Anderson & Corroon LLPRichards, Layton & Finger, P.A.Skadden Arps Slate Meagher & Flom LLPEdward P. Welch, Esquire

Silver sponsors:Bifferato LLCConnolly Bove Lodge & Hutz LLPFish & Richarsdson P.C.Gordon Fournaris & Mammarella, P.A.Young Conaway Stargatt & Taylor LLP

Bronze sponsors:Cooch & Taylor P.A.Cross & Simon LLCPolsinelli Shughart P.C.

Individual and other Sponsors:The Honorable M. Jane BradyDonald A. Bussard, EsquireDelaware Community FoundationMark L. Desgrosseilliers, EsquireDale R. Dube, EsquireMatthew M. Greenberg, EsquireMegan Semple Greenberg, EsquireKurt M. Heyman, EsquireKimmel Carter Roman & Peltz, P.A.Elizabeth M. McGeever, EsquireStacy L. Newman, EsquireCathy L. Reese, EsquireSchmittinger & Rodriguez, P.A.The Honorable Diane Clarke StreettHelen L. Winslow, Esquire & Jonathan Jaffe

Race Judicata on Saturday, April 9, 2011 at the Wilmington Riverfront.Photography by Charles B. Vincent


ExEcutivE committEEmEmbErs

Matthew M. GreenberG President

JaMes G. McGiffin, Jr.President-elect

theresa V. brown-edwards

Vice President-at-large

robert J. Krapf

Vice President, new castle county

eMily a. farley

Vice President, Kent county

MarGaret r. cooper

Vice President, sussex county

Miranda d. clifton

secretary

Karen Jacobs louden

assistant secretary

GreGory b. williaMs

treasurer

yVonne taKVorian saVille

assistant treasurer

benJaMin strauss Past President

the honorable Mary M. Johnston

Judicial MeMber

JereMy douGlas anderson

assistant to President

Michael houGhton

legislatiVe assistant

williaM patricK brady crystal l. carey

arthur G. connolly iii doneene KeeMer daMon Jill speVacK di sciullo

richard MontGoMery donaldson

daVid J. ferry, Jr.richard a. forsten

danielle Gibbs

brenda JaMes-roberts

albert h. ManwarinG iVMeMbers-at-large

rina MarKs

executiVe director

June 2011Wednesday, June 8, 2011 Ethics Rock Extreme! 3.0 hours CLE credit Prior to the Bench and Bar Conference Chase Center on the Riverfront, Wilmington, DE

Wednesday, June 8, 2011 2011 Bench and Bar Conference Chase Center on the Riverfront, Wilmington, DE

Calendar of Events


Professional Guidance committeeThis committee provides peer counseling and support to lawyers overburdened by personal or practice-related problems. It offers help to lawyers who, during difficult times, may need assistance in meeting law practice demands. The members of this committee, individually or as a team, will help with the time and energy needed to keep a law practice operating smoothly and to protect clients. Call a member if you or someone you know needs assistance.

Karen Jacobs Louden, Co-ChairI. Barry Guerke, Co-Chair

Dennis L. Schrader, Co-ChairSidney Balick

R. Franklin Balotti Victor F. Battaglia, Sr.

Dawn L. BeckerRobert K. Beste, Jr.

Vincent A. Bifferato, Sr.Amy K. Butler

Mary C. BoudartCrystal L. CareyMichael D. CarrBen T. Castle

Thomas P. Conaty IV Curtis J. Crowther

Edward CurleyMatthew DennGary R. Dodge

Shawn DoughertyMark F. Dunkle

David J. Ferry, Jr.David C. Gagne

Robert D. GoldbergJames D. Griffin

Thomas Herlihy IIIGlenn E. Hitchens

Clay T. JesterHon. Peter B. Jones

Richard I. G. Jones, Jr.Rebecca Batson Kidner

Bayard MarinJames J. MaronWayne A. Marvel

James G. McMillan IIIOmar Y. McNeill

Michael F. McTaggartFrancis E. Mieczkowski, Jr.

Paulette Sullivan MooreIrving Morris

Michele L. MuldoonFrank E. Noyes IIElizabeth Y. Olsen

Donald E. ReidDavid B. RipsomJames B. Ropp

Kenneth M. RosemanLeonara Ruffin

Thomas D. RunnelsH. Murray Sawyer, Jr.R. Judson Scaggs, Jr.

Mary E. SherlockGordon W. StewartEdward A. Tarlov

Hon. Charles ToliverKaren L. Valihura

Piet H. van OgtropKevin E. WalshDavid A. White

David N. WilliamsHelen L. Winslow

Hon. William L. Witham, Jr.Psychiatrist - Dr. Carol Tavani

June 2011Monday, June 6, 2011 • 12:30 p.m. Senior Lawyers Committee Monthly Luncheon Meeting Delaware State Bar Association, 301 North Market Street, WilmingtonTuesday, June 7, 2011 • 12:00 p.m. Estates & Trusts Section Meeting Young Conaway Stargatt & Taylor LLP, 1000 West Street, WilmingtonThursday, June 9, 2011 • 12:15 p.m. International Law Section Meeting Elliott Greenleaf, 1105 North Market Street, Suite 1700, WilmingtonWednesday, June 15, 2011 • 12:00 p.m. Corporate Counsel Section Meeting Delaware State Bar Association, 301 North Market Street, WilmingtonThursday, June 16, 2011 • 12:00 p.m. Executive Committee Meeting Delaware State Bar Association, 301 North Market Street, WilmingtonThursday, June 16, 2011 • 4:00 p.m. Law and the Elderly Committee Meeting Law Office of William W. Erhart, P.A.,1011 Centre Road, Suite 117, WilmingtonFriday, June 17, 2011 • 12:00 p.m. Alternative Dispute Resolution Section Meeting New Castle County Courthouse, 500 North King Street, 10th Floor, Wilmington Law Office of Laura A. Yiengst, LLC, 314 South State Street,Dover DE (Kent County) Office of The Hon. Alicia B. Howard, Sussex County Courthouse 1 The Circle, Suite 2, Georgetown DE (Sussex County)Friday, June 17, 2011 • 12:00 p.m. Health Law Section Meeting Delaware State Bar Association, 301 North Market Street, WilmingtonTuesday, June 21, 2011 • 12:15 p.m. Small Firms and Solo Practitioners Section Meeting Delaware State Bar Association, 301 North Market Street, WilmingtonWednesday, June 22, 2011 • 4:00 p.m. Family Law Section Meeting Kelleher & Laffey, 1509 Gilpin Avenue, WilmingtonWednesday, June 22, 2011 • 6:00 p.m. Women and the Law Section Picnic Tania Culley’s HomeFriday, June 24, 2011 • 12:30 p.m. Social Security Disability Section Meeting Linarducci & Butler, PA, 910 West Basin Road, Suite 100, Wilmington

Section & Committee Meetings


When is a Password not a Password?

A service of the E-Discovery and Technology Law Section of the Delaware State Bar Association

Tips on Technology

By Richard K. Herrmann, Esquire

W e are all guilty of it. It is our own little secret—like tak-ing that extra sliver of cake

in the middle of the night when no one can see. We all know there are no calories when we eat it in secret. Who are we kid-ding? Not only is that cake fattening, it is worse when consumed in the middle of the night. But I digress…

Our subject is password security and not cheating ourselves. But, the analogy is a good one. We all know our personal information is at risk whenever we are on the internet. And, we know our client information is at risk if we do not take rea-sonable precautions to safeguard it in our office or when accessing the information remotely. However, many consider pass-word security as a matter of convenience rather than as a matter of professional responsibility. We use short and obvious passwords that are simple to remember. We use the same password for all things, and we never change passwords. So, when is a password not a password?

1. …when it is so obvious it can be predicted by an interested observer. Some years ago, I wrote about the case of Lawyer Disciplinary Board v. Markins No. 33256 (W.VA. Sup., May 23, 2008). Markins is one of those fact patterns law professors spend months creating. The respondent thought his wife, an attorney in a different firm, was having an affair with a client. Markins knew the password to his wife’s e-mail account was her last name. What did he do? He started to read her office e-mails. Of course, once into the system, he could not stop and, as the opinion states, “Eventually, however, Respondent’s curiosity got the better of him, and he began accessing the e-mail accounts of seven other OFN attorneys.” While it may be arguable it is not the law

firm’s fault a spouse acquired access to a password, the protection in this case was virtually nonexistent. Once an outsider observes a password is the user’s last name, it requires no great mental leap to suppose others in the firm may be using the same approach.

2. …when former employees of your organization have access to it. Notwith-standing written policies to the contrary, it is a common practice for people working together to share passwords. It is a matter of convenience. An attorney may have her legal assistant review her e-mails or voice-mail messages when she is in trial; two legal assistants may cover for each other

when on vacation or sick. In other words, internally passwords are not protected as if they were the “Coca Cola” recipe. So, what happens when an employee is terminated in a law firm? The access card is deactivated immediately, as is the employee’s e-mail account. After all, once the individual is no longer employed, there is no expectation that he should be able to access client records, or any firm informa-tion for that matter. However, what about the shared passwords? Does the firm have remote access? Is the password convention the same remotely as it is within the net-work? A former employee with the remote URL and a co-employee’s password might

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as well have the keys to the front door. The best practice is to periodically require changes in passwords, including those oc-casions when an employee leaves the firm.

3. …when third parties outside your organization have access to it. While this occurs less frequently, it is an issue, particularly within smaller law firms us-ing outside vendors for IT support. We are lawyers. We review and draft agree-ments regularly for clients. It stands to reason we take the same steps to protect ourselves and our clients when reviewing firm vendor contracts. Circumstances may require occasions when we permit vendors to access the firm network remotely for a number of different purposes. We might have an IT maintenance contract; we may employ a third party for system backup; we may need support on a particular software application. Whatever the rea-son, it is important the contract with the vendor be reviewed with the same care as if we were reviewing it for our client. Ac-cess should be as limited as possible with limitations as to use, and confidentiality provisions should be in place. Of course,

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references should be reviewed carefully. There has also been a significant surge on the use of contract attorneys. By their very definition, these are not employees of the firm. To the extent they are given access to the network, care should be taken to protect the system from remote access, particularly if the culture of the firm permits any password sharing whatsoever.

4. …when your handheld device is not password-secured. This may be the weakest link in the confidentiality chain within the firm’s security. Handheld de-vices must be secured. They are lost, left in other offices, or stolen. In the event the firm has its own Blackberry or iPhone server, the password requirement ought to be at the network level and not left up to the individual user. It is less convenient to have a handheld password, but an absolute necessity.

In the event you have any thoughts about when a password is not a password, please send them on by e-mail. Or you can leave them in my personal internet folder. My password is…


Are You still too Smart To Be Scammed? New Threats from Internet Scams to Attorney Trust Accounts

Ethically Speaking

By Charles Slanina, Esquire

“E thically Speaking” last issued a warning in No-vember 2008 about the

internet solicitations from Nigerian widows and corrupt bank officials asking for assistance in the fraudulent transfer of funds and their successor scam of purported clients seeking representation. At that time, the standard scenario was an e-mail to a lawyer from an overseas company seeking counsel to handle a debt collection. The attorney taking the bait and agreeing to the engagement was soon pleased to find that the defendant was immediately willing to settle the mat-ter without litigation and on the terms of the demand.

A settlement check would quickly arrive and be deposited into the firm’s escrow account. On instructions of the client, a wire transfer is hurriedly sent to the “client” after the attorney’s deduction of the firm’s fee and costs. Almost inevi-tably, the deposited check is soon (but too late) found to be forged. The attorney’s first realization of this is a notice from the bank that the firm’s escrow account has been seized in its entirety and the attorney is on the hook for any balance.

At that time, the case of Atlanta at-torney Gregory Bartko was the leading example. Bartko was first contacted by e-mail purportedly from the Tah Tong Textile Company in Taiwan seeking representation to collect a large debt from a U.S. company. Mr. Bartko con-firmed that the prospective client was a real company trading on the Taiwanese stock exchange, and he had previously done foreign debt collection work, so the solicitation seemed plausible. Within one month of agreeing to the representation,

he received a SunTrust cashier’s check for $197,530 payable to his firm from the purported debtor. The “client” instructed Bartko to wire the money to the com-pany’s account in South Korea.

Bartko deposited the cashier’s check in his escrow account and was advised that the funds would be available in three days. After three days, Bartko sent a wire trans-fer to the client. Three days after that, he was advised by the bank that his escrow account was overdrawn by $197,530 and that the cashier’s check was counterfeit.

The bank claimed that it had only pro-vided Bartko “provisional credit” when it wired the funds to South Korea. The bank seized $7,000 of other client funds in the escrow account, closed the account, and billed him for $191,619.95 as a negative balance. Bartko then found himself a defendant in a federal suit brought by the bank seeking reimbursement of the funds.

Unfortunately, news of Mr. Bartko’s experience has not served to prevent subsequent occurrences. In February 2010, the FBI issued a warning that in the previous six weeks, six different law firms had been targeted by e-mail scams in which prospective clients purported to be seeking legal representation in civil matters such as a divorce. In those instances, the supposed client sent the law firm a cashier’s check for a retainer in an amount far exceeding the firm’s rate. When the law firm dutifully advised the “client” that it was overpaid, at the request of the client, a wire transfer of the refund was sent before the duped firms learned that the cashier’s checks were counterfeit. Two of the six firms were located in Ho-nolulu and were scammed out of a total of $500,000.

The schemes have become increas-ingly sophisticated. In 2009, Tennessee firm Bradley Arant Bolt Cummings was bilked out of more than $400,000 by a similar bad check scheme. The fraud was described as an elaborately planned complex international scheme where the criminals assumed the identity of a legiti-mate overseas company asking for help collecting a debt from a legitimate U.S. company whose identity they had also assumed, leading to the transfer of funds to a bank in Asia. It involved counterfeit cashier’s checks, phony introductions from U.S. counsel, assumed identities of real staff at actual companies, and fraudulent automated funds verification systems. Fortunately, the firm quickly detected and reported the scam to the FBI leading to the arrest of suspects and the freezing of the funds. Following the lead of the California Bar Association in 2008, the Tennessee Bar Association sent out a warning to its members.

The scams have been so widespread that an Arkansas law firm in 2010 issued a warning to colleagues and consumers to be skeptical of checks that appear to be drawn on its account. McCutchen & Sexton issued a fraud alert on its website that bogus checks were being issued that purported to be from the firm, but were not.

Attorneys across the country received checks from supposed debtor Eagle Power Equipment. This scheme had the added twist of having a phony 800 num-ber for a CitiBank listed on the check with an automated response informing the inquirers that their checks were le-gitimate. Only firms that contacted the actual Eagle Power Equipment Company


were able to determine that the checks were phony.

The threat has also gone interna-tional. The Law Society of British Co-lumbia issued a warning that a website of the “Wagner Elliott” law firm which included a photo of the founding partner and written materials about attorneys at the firm were actually plagiarized photos from a real law firm website. The bogus site was intended to lull attorneys into a sense of security so that they would deposit a certified check from the “law firm” and forward funds to foreign clients closing a local real estate trans-action before realizing that the checks were forged.

Adding injury to the insult, a law-yer in Guam is facing federal money-laundering charges after allegedly being victimized in a fraudulent cashier’s check scheme. In a press release issued by the U.S. Attorney for Guam in August 2010, attorney Danilo Aguilar is described as being one of a number of attorneys targeted by international scammers. However, Mr. Aguilar is accused of panicking after discovering that he had been defrauded and withdrawing some of the funds from the forged check, after he found out that it was a fake.

The advice offered in November 2008 still stands, beware of e-mails bearing gifts. Review the “good funds” rule. Remember, your bank may have a differ-ent definition of “good funds” than the Professional Conduct Rules. Finally, wait until you are absolutely certain the check has cleared beyond any recourse of your bank to “unclear” it before disbursing.

Enjoy the summer!*“Ethically Speaking” is intended to stimulate

awareness of ethical issues. It is not intended as legal advice nor does it necessarily represent the opinion of the Delaware State Bar Association. Additional information about the author is available at www.delawgroup.com.

**“Ethically Speaking” is available online. The columns of approximately the past two years are available on www.dsba.org.

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Parking for the ceremony is available behind the Tatnall Building next to The Delaware Federal Credit Union and within the Capitol Complex.

Governor Jack A. MarkellAnd

Chief Justice Myron T. SteeleCordially Invite You To

The Grand Opening CeremonyOf The

Kent County Courthouse38 The Green

Dover, DelawareTuesday, June 14, 201110:00 AM – 12:00 PM

Followed by the Kent County Courthouse LunchHosted by the Kent County Bar Association

The Outlook at the Duncan Center, 500 W. Loockerman St., DoverLuncheon RSVP to 302-736-1776

DELAWAREBench and Bar Conference2 0 1 1

Wednesday, June 8, 2011

www.dsba.org

NEW THIS YEAR!Invite your spouse or a guest to join you for this year’s festivities!

Register Today!

More Tech!Less Paper!

Be ginning th is fa l l , the D e l a w a r e S t a t e B a r Association CLE seminar mate r ia l wi l l be of fe re d exclusively as a download to seminar attendees. No more binders to carry! You’ll have to do your weight bearing exercises somewhere else.


2011 Delaware Law Day LuncheonThursday, April 28, 2011

Gold Ballroom • Hotel du Pont

The Honorable E. Norman Veasey, former Chief Justice of the Supreme Court of Delaware, introducing the Keynote Speaker.

The Honorable Ed Kee, Delaware Secretary of Agriculture, presenting the Liberty Bell Award to Michael H. McGrath, Chief of Planning, Delaware Department of Agriculture.

The Honorable Michael N. Castle, former United States Congressman and former Governor of the State of Delaware, giving the Keynote Address.

DSBA President Matthew M. Greenberg, Esquire, presenting the Community Service Award to Margaret Gamble, who accepted the award on behalf of her father, Geoffrey Gamble, Esquire.


Pro Bono Spotlight (continued on page 25)

Delaware’s Pro Bono Inn is the first of its kind in the nation, and its mission is to engage lawyers in corpo-rations and law firms whose practice does not get them into a courtroom on a regular basis. The Inn’s CLE programs and networking are de-signed to build their confidence so that they will take on pro bono cases as time and circumstances permit.”On Tuesday, December 9, 2008, during

a holiday social gathering with the Melson-Arsht Inn of Court, the Pro Bono Inn was named for two distinguished members of the Bar who have demonstrated outstand-ing dedication to the provision of legal services to the underserved: Edmund N. Carpenter II, known to all as “Ned”; and former Supreme Court Justice Joseph T. Walsh. As Inn member Geoff Gamble commented on the selection, “It is difficult to imagine two more worthy namesakes for the Carpenter-Walsh Pro Bono Inn of Court. Both have illuminated our profes-sion by being shining examples of generos-ity with their time and talent to those less fortunate than themselves.”

Ned Carpenter was honored for his early and unwavering support for pro bono service, something he took on as a personal experience. He saw this kind of service as an integral part of the professionalism and high ideals that he felt was expected of Delaware lawyers.

The other person for whom the Inn was named is former Supreme Court Justice Joseph T. Walsh, the first and current Presi-dent of the Pro Bono Inn. Justice Walsh is a native Delawarean who served on the Delaware Bench for more than 30 years, from 1972 until his retirement in 2003.

Justice Walsh was kind enough to share his early pro bono activities with me during a telephone conversation in March of this year.

Pro Bono SpotlightBy Susan Simmons

Director of Development & Pro Bono Coordination

The Carpenter-Walsh Pro Bono Inn of Court

A merican Inns of Court (AIC) are designed to improve the skills, professionalism, and eth-

ics of the Bench and Bar. An American Inn of Court is a blend of judges, lawyers, and, in some cases, law professors and law students. Each Inn meets approximately once a month to hold programs and dis-cussions on matters of ethics, skills, and professionalism, usually over or following a meal.

The Newsletter of the Delaware Judi-ciary, Delaware Docket Newsletter Winter 2006, describes the Inns of Courts in this way:

“The Inns… have adopted a modified version of the traditional English model of legal apprentice-ship, to help lawyers become more effective advocates and counselors. Inns meet approximately once a month to hold programs and discus-sions designed to augment members’ skills and ethical awareness.

The membership of each Inn con-sists of several categories based upon experience: Masters of the Bench —judges, experienced lawyers, and law professors; Barristers—lawyers with some experience who do not meet the minimum requirement for Master; Associates—lawyers who do not meet the minimum requirement for Barristers; and Pupils—third-year law students. Memberships are also divided into “pupilage” teams with each team consisting of members with different degrees of legal experi-ence. Each “pupilage” team conducts one program for the Inn each year. Less experienced members are as-signed to work with more experienced members who act as mentors, thus providing further opportunities for professional growth.

Justice Walsh recalled the first years of his career when he was “initially a legal aid lawyer becoming the chairman of the Community Legal Aid Society in the 1960’s.” He oversaw an “expansion into opening neighborhood offices in the city and downstate—today’s CLASI is the successor to that expansion. DVLS came out of the same activity.”

Justice Walsh continued, “The Pro Bono Inn of Court’s initial emphasis was to attract in-house counsel. Those admit-ted to the Bar could apply to do pro bono work and the Inn would be a vehicle. Membership is kept small, about 35 or so members, and lawyers are either invited or can apply every summer.”

This year, the Inn’s dinner meeting in-cludes a program that unfolds monthly as a mock hearing focused on Termination of Parental Rights (TPR) and Guardians Ad Litem (GAL). Following the hearing stages, all the way through the aspects of an appeal, in a Family Court setting, members of the Inn take on the roles of the Petitioner, Respondent, Family Court Judge, Guardian Ad Litem, as well as a representative of the department or licensed agency appointed for the child’s care.

The Inn’s “hearing” program devel-oped during several dinner meetings, reflecting the fact that TPR is a multi-step process. First, there is a determina-tion by the court that one of the grounds for TPR has been met. Second, there is a determination by the court that TPR would be in the manifest best interest of the child. Always there is the goal to protect the child’s interests and the determination that the TPR is the least restrictive means of protecting the child from harm. The State must show, by


Delaware State Bar Association Awards Nomination FormName of Candidate: ____________________________________________________________________________________

Title/Occupation of Candidate : ___________________________________________________________________________

Award: _______________________________________________________________________________________________

Date: ________________________________________________________________________________________________

Nominator: ___________________________________________________________________________________________

Phone: __________________________ Fax: ___________________________ E-Mail: _____________________________

Firm: ________________________________________________________________________________________________

Address: ______________________________________________________________________________________________

Brief statement of reasons that candidate is deserving of Award (see above Award criteria). Please attach sheet if necessary. _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________

Nominations should be submitted to Susan Simmons, Pro Bono Coordinator, e-mail [email protected] or fax to (302) 658-5212. The deadline for nominations is September 15, 2011.

Nominations Wanted for the Delaware State Bar Association’s 2011 Christopher W. White Distinguished Access to Justice Awards

The DSBA and the Awards Committee are seeking nominations for the 2011 Distinguished Access to Justice Awards formerly known as the Distinguished Pro Bono Service Awards. The change in name is based on a desire to be more inclusive in designating those deserving of recognition. The awardees will be announced during Celebrate Pro Bono Week.

The Christopher W. White Distinguished Access to Justice Awards Ceremony Tuesday, October 25, 2011, Hotel du Pont

There are four categories for which individuals, firms, or organizations can be nominated. The Leadership Award

This award is presented to a legal organization (legal department or law office) that has demonstrated outstanding leadership in the field of pro bono service to Delaware’s indigent population based on the following criterion:

• The number of pro bono hours the organization contributes to the direct representation of indigent clients.• The number of cases the organization accepts for pro bono representation.• Flexibility and accessibility in accepting cases.• The organization’s commitment and service on committees dedicated to promoting and supporting the provision of legal services to those in need.• Financial support to agencies providing legal services to Delaware’s indigent population.• The percentage of attorneys in the organization who accept pro bono cases.• Fostering a culture, which recognizes the value of pro bono service.

The Commitment Award

This award is presented to a member of the Bar who has demonstrated a sterling commitment to pro bono work throughout his or her career by dedicating time and energy to the support and provision of legal services. The criterion includes, but is not limited to:

• The number of pro bono hours devoted to legal representation of indigent clients over the lawyer’s career.• The number of cases accepted for pro bono representation over the lawyer’s career.• The lawyer’s commitment and service on committees dedicated to promoting and supporting the provision of legal services to those in need over the lawyer’s career.

The Achievement Award

This award is presented to a member of the Bar who has shown an exemplary recent contribution to pro bono services (generally in the past one to three years) and stands as a role model to other attorneys. The criterion includes, but is not limited to:

• The number of pro bono hours recently devoted to legal representation of indigent clients.• The number of cases accepted for pro bono representation.• Consistency, f lexibility, and accessibility in accepting cases.• The lawyer’s commitment and service on committees dedicated to promoting and supporting the provision of legal services to those in need.

Service to Children Award

Awarded to an individual lawyer, legal professional, or organization principally including lawyers, which demonstrates outstanding commitment to, and work for, children in the provision of legal or community services. It may be given to volunteers or those employed in the provision of legal services for children. This award is given as warranted, not necessarily annually.


Law Week 2011By Pat Quann, Executive Director

Delaware Law Related Education Center, Inc.

L aw Day was created by a Con-gressional Resolution in 1961 and is celebrated on May 1.

For the past several years, the Delaware Law Related Education Center has coor-dinated a program that places attorneys and judges in high school classrooms across the state. DELREC provides a les-son plan and appropriate materials to use in teaching a class. The 2011 Program covered the week of May 2-6, 2011.

This year’s lesson was based on the American Bar Association’s Theme for Law Day, The Legacy of John Adams: From Boston to Guantanamo. Stephen N. Zack, the President of the ABA, chose this year’s theme “to highlight our nation’s first lawyer president and to foster understanding of the historical and contemporary role of lawyers in de-fending the principle of due process and the rights of the accused.” Delaware’s lesson was titled The Boston Massacre, John Adams and Right to an Attorney and used material from the Constitutional Rights Foundation – USA, Bill of Rights In Action, Winter 1999 (16:1) Matters of Principle.

The following high schools partici-pated in the program:

Cab Calloway High SchoolCape Henlopen High SchoolThe Charter School of WilmingtonDickinson High School Indian River High SchoolLake Forest High SchoolMcKean High SchoolPolytech High SchoolSeaford High SchoolSussex Technical High School

A program was held again at St. Mary Magdalen School coordinated by F. Peter Conaty, Jr. Esq. Our thanks goes to Mr. Conaty and his volunteers for their con-tinued support for Law Day. Following are the names of all the volunteers who gave so generously of their time for Law Week:

Abby Lynn Adams, Esq.David P. Cline, Esq.F. Peter Conaty, Jr., Esq.Frederick L. Cottrell, III, Esq.Jennifer Courtney-Neill, Esq.Catherine Damavandi, Esq.Eugene A. DiPrinzio, Esq.Colin P. Dunlavey, Esq.Jill Spevack Di Sciullo, Esq.Eric C. Howard, Esq.Christopher M. Hutchison, Esq.Travis S. Hunter, Esq.Richard C. Kiger, Esq.Christine W. Kim, Esq.Maria Teresa Knoll, Esq.Samantha Jill Lukoff, Esq.Randy A. Mariano, Esq.Janice M. Matier, Esq.Deirdre O’Shea McCartney, Esq.John D. McLaughlin, Jr., Esq.James Michael Olsen, Esq.Matthew J. O’Toole, Esq.David L. Ormond, Jr. Esq.Shannon R. Owens, Esq.Darryl Anthony Parson, Esq.Ciro Carmine Poppiti, III., Esq.Donna Pugh, Esq.Hon. Sue L. RobinsonBruce A. Rogers, Esq.T. Andrew Rosen, Esq.Christopher M. Samis, Esq.Kevin R. Shannon, Esq.Gerald Majella Spadaccini, Esq.Adam Windett, Esq.Gerard Majella Spadaccini, Esq.

In addition to live sem-inars, the Delaware State Bar Association presents accredited Continuing Legal Edu-cation videos every weekday. Call the DSBA at (302) 658-5279 for an appointment to view one of the many re-corded DSBA seminars.

A complete list of all CLE videos is avail-able on our website at: www.dsba.org

Delaware State Bar Association301 N. Market Street

Wilmington, DE 19801

CLEVideos


Delaware State Bar Association Awards Nomination FormName of Candidate: ______________________________________________________________________________

Title/Occupation of Candidate :_____________________________________________________________________

Award: ___________________________________________________________________________________

Date: _________________________________________________________________________________________

Nominator: ____________________________________________________________________________________

Phone: _________________________________ Fax:_________________________ E-Mail: _____________________

Firm: _________________________________________________________________________________________

Address: _____________________________________________________________________________________________

Brief statement of reasons that candidate is deserving of Award (see above Award criteria). Please attach sheet if necessary. ___________________________________________________________________________________________________________________________________________________________________________________________________________________________Nominations should be submitted to Rina Marks, Executive Director, e-mail [email protected] or fax to (302) 658-5212.

Nominations Sought for 2011 AwardsThe Delaware State Bar Association and the Awards Committee are seeking nominations for the following four awards* **:

Daniel L. Herrmann Professional Conduct AwardOutstanding Service to the Courts and Bar Award

Distinguished Mentoring AwardGovernment Service Award

These and other awards will be presented in a special Awards Luncheon.

Awards DescriptionDaniel L. Herrmann Professional Conduct Award

Awarded to a member of the Delaware Bar who, over the course of time, has demonstrated those qualities of courtesy and civility which, together with high ability and distinguished service, exemplifies the Delaware lawyer.

Outstanding Service to the Courts and Bar Award Awarded to a Delaware lawyer or judge who, by exemplary service to the Delaware courts and the Delaware Bar, has substantially assisted the courts and the Bar and has strengthened public trust and confidence in the State’s court system and the administration of justice.

Distinguished Mentoring Award

Awarded to a Delaware lawyer or judge who, by distinguished mentoring of other Delaware lawyers (or future lawyers) over a period of many years, has served as an inspiration to and a model for those lawyers in striving for and maintaining the highest standards in their professional careers and in their community involvement.

Government Service Award

Awarded to a government employee in recognition of dedicated and distinguished contribution to the Administration of Justice.

* These are not necessarily annual awards. All or some of these awards will be presented only upon the recommendation of the Awards Committee and approval by the Executive Committee of the DSBA.

** Please note that previous nominations must be renewed to be considered.


A Message from the Delaware Lawyers Assistance ProgramDE-LAP Zone

It is Never too Soon, or too Late, for an Attitude Adjustment – Tips, Tricks and Resources to Make the Journey

L et’s face it: being a lawyer is extremely stressful. In fact, studies show that it is one of

the most stressful occupations. Evidence shows that this stress often contributes to the profession’s high rate of burnout, substance abuse/dependence, and de-pression. Contributing to the stress of practicing law are client, partnership, administrative, technology, and financial issues. And, to make matters even worse, life itself deals its blows to each one of us. Whether setbacks occur in our personal or professional lives (or both), they can ruin our dreams for success. But. only if we let them.

It is said that our happiness and suc-cess depend not so much on the problems we face, but on how we respond to them. Have you ever noticed how some people not only survive, but also emerge from soul-shattering personal crisis stronger and more capable? Data suggests that people are more alike than they care to ad-mit. However, one little difference usually makes a big difference in all individuals; that little difference is attitude.

Maintaining a positive “can-do” at-titude is the key to resilience when we are experiencing life’s bumps in the road. Our attitude is what gives us the stamina to go through the bumps and down life’s road. No matter what the bump, a posi-tive attitude enables individuals to move on when life has dealt them one or more cruel blows (i.e., the death of a loved one, a chronic illness, a grave financial loss, or all of the above at the same time).

In other words, individuals who know how to bounce back have the ability to transform personal tragedy into a positive experience. For some individuals, this is

natural, but for others it takes determina-tion (and moxie) to learn and implement such coping skills. Fortunately, however, it is never too soon, or too late, to learn and implement the skills needed to adjust our attitude.

Tips and Tricks to Make that Attitude Adjustment

(a) Attitude is Everything

The amazing thing about this energiz-ing quality is that it is within our control. We are responsible for how we react to stress, disappointments, and what we let influence our life. Realistically, we have a choice every day regarding the attitude we will embrace for that day. Plus, we have the ability to start our day over at any time. In other words, we cannot change the past, nor can we change the inevitable; we can, however, change our attitude and response at any time.

For example, one of the most impor-tant ways to handle stress is to ask or look for help when you need it. This can range from finding the most efficient way to handle your e-mail to seeking professional counseling. Help comes in all forms. If you feel overwhelmed, start by focusing on handling some small inefficiency or problem. Remember, take baby-steps towards that attitude adjustment.(b) Accentuate the Positive

A positive outlook allows you to stand up and take control of your life. Plus, it helps to quash those fears. Of course, when an individual experiences a trau-matic event, that person will at first grieve the loss and grieving is unique. However, the resilient individual is determined at some point to stop isolating themselves and/or seek additional support when

necessary. In addition, as time passes, the resilient individual manages to heal from the tragedy. This is done in three ways: (1) building faith in yourself; (2) finding refuge from personal troubles with posi-tive coping mechanisms; and (3) believing in your own resilience.

Clearly, resilience demands optimism, and optimism is the ability to accept negative events without allowing them to destroy our resolve.

“Resilience depends on creating a life in which you are surrounded by positive forces,” says Frederic F. Flach, M.D., author of Resilience: The Power to Bounce Back When the Going Gets Tough. He states further, “If you work on developing a sense of self-esteem, you’ll recover more quickly from difficult times.”(c) Adversity Can Teach

When you have faced disaster, you can eventually learn from it rather than worry about it. The skill is in replacing worry with hope. “Worry is the most subtle and destructive of all human diseases,” a famous physician once said. “Millions of people are ill because of dammed-up anxiety.”

Remind yourself mentally of all the difficult situations that you have handled in the past. Remember, you may have been terribly upset then, but you were still able to act with reason and intelligence. You can do so now, too.

Also, avoid “awfulizing.” Playing the “what if?” game is a sure way to intensify your fears. “What ifs?” let your fears run away with you. Some call it “stinky thinking.”

Actively stop such thoughts and sub-stitute other thoughts to fill the vacuum.

By Carol P. Waldhauser, Executive Director


Remember, internal doom dialogue only feeds panic. Whether you say, “I cannot cope with this,” or you say, ”I can cope with this,” you will be right.(d) Keeping Goals

Unwavering and passionate belief in dreams and goals is a necessary rule for “resiliency.” This enables an individual to be motivated or recharged. Without belief in dreams and goals, old or new, the opportunities to give up will look too tempting and you could easily take the path of least resistance and quit.(e) Winner or Loser: It Is Up to You

Every person going through a hard time should feel free to cry. The skill is to allow that time, and then, know when to quit. For all of us, the best-laid plans do not always work. Our lives are filled with potholes, roadblocks and de-tours. However, when times get tough, persisting with every fiber you can is paramount to resiliency. Moreover, sur-viving a major tragedy can also give you an indispensable sense of perspective.

Whether we succeed or fail or win

or lose is completely dependent upon the decisions we make every day. Most of the decisions are quite small and ordinary, but when added together determine your future. The same fate can befall two people, but winners will react one way—even making attitude adjustments along the way—and losers another. It is not the outside force that turns people into a winner or a loser. It is the inside force.

Winners look for ways to solve the problems, while losers look for some-one or something to blame. Instead of wasting energy looking for a scapegoat, look for an answer and support. When something goes wrong, it is easy (some-times too easy) to wallow in self-pity. Losers will always ask “Why did this happen to me?” Conversely, winners will ask “Now what should I do?” Plus, winners are self-confident people, who make attitude adjustments along the way, and who allow a positive attitude to turn tragedy into triumph.

To jump-start your attitude adjust-ment and cultivate your coping skills,

try the following as stated in Joe Torre’s “Ground Rules for Winners” (12 Keys to Managing Team Players, Tough Bosses, Setbacks and Success):

• Focus on the present•Maintain your perspective•Control what you can, let go of

the rest• Feel the fear, succeed anyway •Keep your cool

Remember, too, if you make a habit of seeing yourself as a powerful force in your own life and not a victim of circumstance, you will then be a power-ful force when you hit the bumps in the road. Your life is all up to you. Make it the best it can be. You owe it to yourself, your family and your clients. For more information on work/life issues and/or other matters that influence your quality of work and life, contact the Delaware Lawyers Assistance Program (DE-LAP) by calling (302) 777-0124 or e-mailing [email protected].


Conscience versus Equity: Conscience, Equity and the Court of Chancery in Early Modern EnglandBy Dennis R. Klinck (Ashgate, 2010)

T he Court of Chancery is famous as a court of “equity.” Indeed, it is something of a cliché to refer

to the Court that way. A Westlaw search of Delaware cases for the phrase “court of equity” yields approximately 1,500 cases. However, a search for the phrase “court of conscience” results in only 24 cases. This disparity seems unremark-able to us today. Almost no one refers to the Court as a “court of conscience.” The phrase seems anachronistic and a throwback—and indeed it is. Lawyers in sixteenth century England and earlier though, routinely referred to the Court as a court of “conscience,” and the disparity we see today between references to equity and conscience would be reversed (and perhaps even more lopsided) if we could do a Westlaw search of fifteenth and sixteenth century cases.

Something happened. In Conscience, Equity and the Court of Chancery in Early Modern England, Professor Dennis Klinck traces the intellectual development and perception of the Court of Chancery in an effort to determine why “conscience” declined, while “equity” ascended.

The broader history of the English High Court of Chancery is somewhat familiar to most Delaware lawyers. The Court of Chancery developed in response to the common law. Headed by the Lord Chancellor, who was often described as the “keeper of the king’s conscience,” the Court based its decisions on “conscience,” and provided more f lexible remedies than the traditional common law courts and, for much of its existence, could overrule the common law courts. Ulti-mately, though, the English High Court

of Chancery came to be as rule-bound and cumbersome as the law courts from which it had first provided relief, and Parliament ultimately merged the com-mon law and equity courts, bringing an end to the Court of Chancery in England in 1875. This broader history, though, is not Klinck’s concern. Rather, he seeks to identify why the court of “conscience” be-came more readily known and described as the court of “equity.” The answer to this question is neither simple nor readily apparent, though Klinck offers several explanations, which, coupled together, make for a compelling argument.

To begin, one might sum up at least a partial explanation by saying that soci-ety changed and the law changed with it. When English courts first began to function, in the late medieval period, the monarch possessed a great deal more power, and an application to the king’s conscience for relief would hardly seem out of place, inasmuch as the king was the sovereign. Moreover, words and legal concepts can change over time. Initially, “conscience” was seen as something coming from God and acting according to God’s will. Thus, an appeal to “con-science” was not perceived as an applica-tion to an inconsistent, willful, arbitrary decision maker, but rather an appeal to God’s law. Conscience dictated following God’s law, not some inner direction that might vary from person to person.

Over time, of course, the meaning of words can change, and that meaning can be affected by broader trends, as well. Religious disputes and difficulties were a hallmark of English history. Conscience came to be perceived as one’s inner voice.

Rather than dictating but one predeter-mined outcome, individuals’ consciences might lead them to worship in different ways or believe in different things. If conscience could vary from individual to individual, how could conscience also be a basis for settling legal disputes? Equity, or fairness, then, was seen as a much more neutral basis for decisions than mere conscience.

Moreover, as the commercial economy developed, and commercial law became important, the strict role of “conscience” could be seen as problematic. For ex-ample, how could a court of “conscience” necessarily enforce the general rule of caveat emptor (“let the buyer beware”)? If, however, caveat emptor was the rule known to the parties, then “equity” could enforce it (absent fraud, of course).

During this transition period in Eng-lish history, as England progressed from the medieval period to the late 1600s, something else was happening too—records were being kept. As records of decided cases accumulated, one naturally expected like cases to be treated alike. As more and more cases were decided, reference to “conscience” to decide a case became less necessary. Indeed, deciding cases in accordance with earlier cases is not so much an appeal to “conscience” as it is to fairness, consistency and “equity.” Thus, the Court of “Conscience” slowly became known as the Court of “Equity” in part because of its own body of work.

There were no doubt other factors as well, and Klinck touches on a variety of these. He also traces the evolution of legal theory through the period, quoting exten-sively from the scholars of the time (he

Book Review

Reviewed by Richard A. Forsten, Esquire


does this quoting them directly, including the old English spellings and grammar, which sometimes feels like reading an-other language entirely). It was a different culture and a very different legal system. Many concepts and ideas which seem obvious today were new or the source of debate five and six hundred years ago. Indeed, even the debate of “conscience” versus “equity” may seem strange today, but was a serious topic for legal scholars at the time. Klinck spends a great deal of time with those scholars describing their writings and showing how English legal theory developed over time. Today, we are where we are, but Klinck synthesizes the legal evolution over a number of centuries, and sometimes it’s important to go back and look at how we got here.

Keep your information up-to-date with DSBADELAWARE LEGAL DIRECTORY correction form

Please let us know if there have been any changes in your place of business, address, telephone number, fax number, or e-mail address. Please send changes for the 2012 Legal Directory to Janice Myrick at [email protected]. Please send photographs for the 2012 Legal Directory to Rebecca Baird at [email protected].

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OLD CAPITAL LAW FIRM

IS PLEASED TO ANNOUNCE THAT

JOSEPH BOSIK IV

HAS JOINED THE FIRM AS AN ASSOCIATE

* * * * *

OLD CAPITAL LAW FIRM 222 DELAWARE STREET, THE GREEN

P.O. BOX 470 NEW CASTLE, DELAWARE 19720

PHONE: (302) 221-3000 FAX: (302) 221-2980

http://www.oldcapitallaw.com

Providing Estate Planning, Asset Protection Trusts, Trust and Estate Administration, and Related Legal and Tax Services

in Delaware's First Capital


POSITIONS AVAILABLEASSOCIATE WITH INSURANCE DEFENSE FIR M: congenial mid-size f irm in Wilmington; associate with 3-5 years experience needed for workers’ comp practice group. Good benefits. Salary commensurate with experience. Cover letter and resume to: [email protected] – INSUR ANCE DE-FENSE: Regional Insurance Defense Firm in Dover is seeking an Associate with 2 to 5 years experience and/or a senior level attorney with a portable business. Qualified candidate must have experience in insurance defense litiga-tion; possess excellent analytical abilities and strong communication skills. Must be admitted to practice in Delaware. Weber Gallagher offers a friendly of-fice environment, competitive salary, excellent benefits package, including 401(k) and medical. Weber Gallagher is a regional law firm, with more than 100 lawyers and over 20 specialized civil practice areas. We provide legal coun-seling and representation in the Mid-Atlantic United States to local, national and international businesses, financial institutions and insurance companies. Please visit our website: www.wglaw.com. Please submit a resume and cover letter to: [email protected]: The Wilmington of-fice of White and Williams LLP is seeking an attorney with 2-4 years experience to join a fast paced and di-verse practice, including employment, insurance and commercial litigation. DE Bar admission required along with excellent writing skills and academic credentials. We offer a competitive salary, an excellent benefits package and the opportunity for professional growth. Please send resume and cover letter to: White and Williams LLP, Attn: Hiring Partner, 824 North Market Street, Suite 902, PO Box 709, Wilmington, DE 19899-0709. Fax: 302-654-0245. EOE.

ASSOCIATE: Leading plaintiffs’ class action law firm seeks a litigation associ-ate admitted to the Delaware Bar for its Wilmington office. Prefer 3-5 years complex litigation experience. Prior ex-posure to the firm’s field of practice and the Court of Chancery a plus. Strong writing skills and academic credentials essential. Submit resume and writing sample to Hiring Partner, Chimicles & Tikellis LLP, 222 Delaware Avenue, P.O. Box 1035, Wilmington, DE 19899. L I T I G A T I O N A T T O R N E Y: Rawle & Henderson LLP is actively seeking an experienced Litigation Attorney for our Wilmington Office with 3-5 years experience in areas of general casualty and/or workers compensation matters. Delaware bar admission required. Rawle & Henderson LLP is a Mid-Atlantic regional law firm of over 100 at-torneys engaged in civil defense litigation and trial practice with offices in Pennsylvania, New Jer-sey, New York, Delaware and West Virginia. www.rawle.com Please send cover letter with resume to [email protected].

OFFICE SPACEOFFICE BLDG FOR SALE: 223 S. Race Street Georgetown, De. 1850 sq.ft + on-site parking call 302-227-3808 Barbara O’Leary.F E N W I C K B E AC H H O U S E RENTAL: 5BR, 2.5BA home, Bay-front with 25’ dock, sleeps 12, hot tub, 3 decks, spiral staircase to roof-top 30’x30’ deck with 360 degree views. $3K/wkly rentals in June, July. View at www.fenwickisland.com, Rentals, p12, PANKOWSKI. [email protected], 345-6777.

FULLY FURNISHED PROFESSION-AL OFFICE: Enjoy complete package of office space, technology, service and sup-port. Call today for tour: (302) 884-6746. Mention ad—first month free!

Bulletin BoardV IRT UA L OFF ICE PLUS: Just $250/month includes mail forward-ing, telephone recept ion, and 40 hours conference room usage. One Commerce Center Bui ld ing—ac-cessible, professiona l, a f fordable. www.STATOfficeSolutions.com.DOW NTOW N W ILMINGTON: Appr. 2000 sq. ft. office space on 2nd floor in an elevator building. 2 blocks from court houses. Parking available on premises. Call (302) 656-5445.

LOST WILLSE A RCHING FOR L AST W ILL and Testament for Danny E. Shorter of New Castle DE, DOD 4/28/11. Con-tact Patricia Baldwin 302-293-3683.

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Is there a major milestone in your future, or the

future of your law firm?

An anniversary, a memorial or a celebration?

Consider a tax deductible gift to the Delaware Bar Foundation Endowment Fund, a gift that will continue to give to those most in need.

Jacqueline Paradee Mette Executive Director

Phone: (302) 658-0773

Getting help doesn’t sabotage your career...

...but not getting help can!

The Delaware Lawyers Assistance Program (DE-LAP) was created to confidentially help Judges and Lawyers with substance abuse/dependence and/or mental and physical health problems.

Call or e-mail: Carol P. Waldhauser Executive Director

Direct: (302) 777-0124Toll-Free: 1-877-24DE-LAP

or the Emergency Toll-Free Hotline

1-877-652-2267

e-mail: [email protected]: www.de-lap.org

Pro Bono Spotlight (continued from page 16)

clear and convincing evidence, the statu-tory basis for termination and that the best interest analysis favors termination. This can be followed by an appeal. The standard and scope of appellate review involves a consideration of the facts and law, as well as the inferences and deduc-tions made by the Family Court.

After the Court issues a TPR Order, parental rights are usually then transferred to another person through an Adoption Order. The prospective adoptive parent must file a Petition for Adoption. Once an Adoption Order is issued, the adoptive parent then becomes the permanent legal parent of the child and will have all of the rights, duties, privileges and obligations recognized by the law between parents and their children.

The Pro Bono Inn of Court dinner’s mock hearing program’s purpose is to give lawyers the opportunity to under-stand the process and is a “very satisfying program geared to training lawyers to the type of activity handled by DVLS and the Office of the Child Advocate,” concludes Justice Walsh.

The Delaware State Bar Association Community Volunteer Opportunities Website

The Delaware State Bar Association Community Volunteer Opportuni-ties Website, a strong, and interactive volunteer website that will compliment our ongoing efforts to drive greater com-munity engagement, is available to view now: http://volunteer.truist.com/d-5/volunteer/.

Opportunities in many areas of inter-est and location are posted on the site. Additional opportunities in the legal field will be added regularly by our partner le-gal services agencies as they become avail-able. We encourage you to register which will allow you to save your interests for fast future searches. You can also choose to receive email updates to automatically let you know of any new or matching opportunities.


The Judicial PalateBy Ciro C. Poppiti III, Esquire

Summertime Goodies

WINE PICKS: Deerfield Fine Wines and Spirits, located in Newark, has

earned a nice reputation for its wine tast-ings and charitable collaborations. I asked the owner, attorney Lee Ramunno, for his summertime selections. Three picks fol-low, with comments from the store staff:

*2010 Jelly Jar – Rose wine from Lake County, California, $20 retail. A dry, elegant wine, balanced with hints of cherry blossoms, peach, and watermelon. Only 220 cases produced.

*2010 Cade Sauvignon Blanc – Rose wine from Napa Valley, $21. Alive with fresh acidity and perfectly balanced rich fruits. Aromas of spearmint, guava, kiwi, gooseberry, and snow pears are followed on the palate by concentrated lemon, lime, and fig mix.

*2009 Y Rousseau Old Vines Co-lombard – White wine from the Russian River Valley, California, $15. Impress your friends by bringing this fantastic selection to your next barbecue. An early grapefruit concentration, fresh pear, green apple, and hints of jasmine. You get all the aromas plus citrus fruit, and this wine opens to very bright citrus blossom flavors.

BARBECUE: I received an e-mail from attorney Michael Rosendorf raving about the barbecue offerings of Big D’s Pizza, located at 3634 Old Capitol Trail, Marshallton (Wilmington). Michael writes:

“Thanks for your articles. Keep them coming. Big D’s looks like a hole in the wall, but I’m a rib fanatic so when I heard about it, I checked it out on a Friday/Saturday and thought they were as good as anywhere. Brisket is Texas-style [bar-becue] and is available everyday and very

good also. Still checking out the rest of the menu and am glad to have a new option near the office.”

Michael, based on your positive feed-back to this monthly column, I can tell you are a person of discerning taste. I do like the fact that a barbecue man would style himself as “Big D”; the words “big” and “barbecue” were truly meant for each other. I look forward to trying the menu myself.

BEACH NIGHTS: I asked Joe Mitchell, proprietor of Yo-Yo Joe’s Toys & Fun in North Wilmington, for some new card games which families could play around the kitchen table. I love to play card games with my kids, especially summer evenings at our beach hideaway. Here are two that Joe recommends, with his comments:

*Spot It – It’s an ingenious game for 2 to 8 players with 55 round cards. Each card has eight icons on it. Any two cards in the deck have one, and exactly one, matching icon between them. Each player is dealt one card and there is a draw pile in the middle. The first player to “spot” their matching icon wins that card and places it on their pile—then the race is on. There’s no turn-taking and the icons change size and position, so it is always challenging, sometimes maddening! It is a great travel game as it comes in its own round tin. It’s suitable for ages 7 and up and sells for $11.99.

*Anomia – This seemingly simple card game is great fun for the whole family. Each card features an icon and a topic. Play the cards face up on each player’s own pile. Once any two icons match, those two players face off. Sure, the topics sound simple, like “Pop Song” or “Fish,” but when you’re racing against

your opponent to name one, your brain works a little differently under pressure. I like this game because you never know when it will be your turn and there is no way to prepare for it! Recommended for 3 to 6 players ages 10 and up and sells for $15.99.

FATHER’S DAY: For an out-of-the-ordinary gift for Dad, let me suggest tickets to Ragtime, the Broadway musi-cal, appearing at the DuPont Theatre, downtown Wilmington. Performances are slated for Father’s Day weekend June 17-18 as well as June 24-25. Ragtime is produced by the Delaware All-State Theatre (DAST), under the direction of impresario Jeffrey Santoro. You may have heard of all-state football or all-state basketball, which is comprised of the top high schoolers in a certain sport. Well, DAST features the state’s top high school actors, singers, and dancers. Inside word is that this is a very special DAST group of students, and their rendition of Ragtime is Broadway caliber. For tickets, call (800) 338-0881 or visit duponttheatre.com

In my mind’s eye, I myself envision spending a lazy Father’s Day with the Sunday papers, Ella Fitzgerald on my hi-fi stereo, and a generous assortment of fruit pies, cakes, and chocolate chip cookies. Of course, in reality, I will be participating in the St. Anthony’s “Proces-sion of the Saints” as I push a statue of St. Patrick around Wilmington’s Little Italy. Now, how an Italian came to a push an Irishman around, well, that’s a story for another month. In the meantime, cling to those fruit pies.


Multicultural Judges & Lawyers Section

Leadership Award

IS PLEASED TO ANNOUNCE

Thomas E. Hanson, Jr.HAS RECEIVED THE DELAWARE STATE BAR ASSOCIATION

Morris James LLP

500 Delaware AvenueSuite 1500

Wilmington, DE 19801T 302.888.6800F 302.571.1750

www.morrisjames.comCommunity Pro Bono Service

Thomas E. Hanson, Jr., a partner in the �rm’s Corporate and Fiduciary Litigation Group, focuses his practice on

issues involving corporate and commercial litigation. Mr. Hanson is very active in the Delaware State Bar Asso-

ciation and has served the Bar and the Delaware legal community extensively. He has been recognized by the

DVLS 2009 Pro Bono Honor Roll, received a Community Service Award at the Eighth Annual Wilmington Awards

(2009), and was awarded a Certi�cate of Appreciation from The DuPont Minority Counsel Network for serving as

Chair of the MCN Mentoring and Retention Committee. Mr. Hanson served as the Chair of the Delaware Minority

Job Fair Committee (2002-2003, 2008-2009) and Co-Chaired the Delaware Minority Supplemental Bar Review

Course (2003-2006). He served as Vice Chair of Special Events (2002-2004) and Vice Chair of Legal Development

(2005-2006) of the Multicultural Judges and Lawyers Section. Mr. Hanson is also a previous member of the DSBA

Executive Committee (2004-2006). He is the current Secretary of the Delaware Bar Foundation and a member of

the DSBA Space Needs Committee. To reach Mr. Hanson, email [email protected] or call (302) 888-6892.

Documents

In This Issuemedia.dsba.org/Publications/BarJournal/2010-2011/06.2011.pdf · 2020. 9. 15. · June 2011 • The Journal of The Delaware State Bar Association. 1. June 2011 • Volume