New Matter Summer 2015

New MatterTHE AWARD WINNING PUBLIC ATION OF THE CHESTER COUNT Y BAR ASSOCIATION • CHESTER COUNT Y, PA w w w.chescobar.org

SUMMER 2015

Let’s Talk Taxes!

EMPLOYEES OR INDEPENDENT

CONTRACTORS?

FLYING SOLO:

LEGAL AID’S 5K

TRIAL RUNJune 20th

SAVE THE DATE!

BE A FELLOW OF YOUR BAR FOUNDATION

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SUMMER 2015

The Chester County Bar Association’s monthly publication, New Matter, has been provided to Bar Association members for four decades.

A valuable aspect of CCBA’s membership, New Matter aims to provide our members

with information pertaining to current issues facing the practice of law, historic legal issues,

continuing legal education opportunities, Chester County Bar Association activities, programs, meetings and functions, practice

tips and procedures for attorneys, and items of personal interest to our membership.

CCBA OfficersCraig Styer, President

Bill Wilson, President-ElectChristine Zaccarelli, Vice President

Mary-Ellen Allen, TreasurerPatrick McKenna, Secretary

New Matter CommitteeCharles DeTulleo, Editor

Rami BishayMark Blank, Jr.Keith BoggessBrian Doyle

J. Stoddard HayesMary LaSotaAndrew Lehr

Deborah LewisShannon McDonald

John McKennaKim Denise MortonMary Wade Myers

Kevin RyanKaryn SeaceAlan VaskasBill Wilson

CCBA StaffWendy Leeper

Executive Director Emily Boulanger

Communications & Event Manager

New MatterContent

FEATURES

IN EVERY ISSUE

Eleven Years Running .............................. 6

Employees or Independent Contractors? .............................................. 8

Flying Solo: Let’s Talk Taxes ....................... 10

Things NOT to Say at My Memorial Service .............................. 13

Be a Fellow of YOUR Bar Foundation ..... 14

Take Pride & Take OwnershipThe Chester County Bar Foundation is YOUR Foundation .................................... 15

Take Note of the Case:The Confrontation Clause, Teachers, & Child Abuse ............................................. 19

DNB First, N.A. Has Reappointed All of the Members of Their Wealth Management Advisory Board ........................................ 20

Pennsylvania Bar Association Formal Opinion 2014-500: Prosecutors, Public Defenders & Criminal Defense Attorneys Beware........................................ 24

WANTED...

If you have an idea for an article, or would like to submit content, please contact Emily Boulanger at [email protected] or (610) 692-1889.

President’s Message .................................. 4

Featured Member ProfileLarry Goldberg & Joel Goldberg ................... 18

Save Our Environment ............................ 21

From the ArchivesNew Matter—November 1983 .................... 23

The Blank Page ..................................... 26

Tech Tips .............................................. 28

Your Ideas!

PUBLISHER: Hoffmann Publishing Group2921 Windmill Road, Suite 4, Sinking Spring, PA610.685.0914 x201 • hoffmannpublishing.com

FOR ADVERTISING INFORMATION: Tracy Hoffmann, [email protected]

The opinions expressed in this material are for general information only and are not intended to provide specific legal or other advice or recom-mendations for any individuals. The placement of paid advertisements does not imply endorse-ment by the Chester County Bar Association.

All rights reserved. No portion of this publication

may be reproduced electronically or in print without the expressed written permission of the

publisher or editor.

6 Eleven YearsRunning

4 | N e w M a t t e r

President’s Message

Craig A. Styer, President

Like most parents, I want my kids to stay close to home when they’re older and have families of their own. As part of my “strate-

gy” to encourage my kids to stay close to home, I repeatedly tell them how wonderful Chester County is and what a great place it is to raise a family. I am an unabashed cheerleader for our county. For example, did you know that real estate company Movoto recently ranked Chester County as the 4th best county in the country? They also ranked the Borough of West Chester as #2 in their top 10 most exciting places in Pennsylvania. We are fortunate to live, raise our families and practice law in this beautiful, economically strong region.

Chester County has not become one of the best counties in the nation by accident. The county is taking steps to maintain its economic prosperity and to remain a highly desirable location for individuals and businesses. A key recommendation of the county’s award winning comprehensive plan, Landscapes 2, is the preparation of an economic development strategy. To implement this recommendation, a public-private partnership has been established and designated as VISTA 2025. The intent of the initiative is to identify goals and specific strate-gies that will enable Chester County to continue to thrive economically while maintaining its preservation of its natural resources.

The Chester County Economic Development Council managed the planning process with input from key county business leaders, educators and non-profit executives. The overarching principle guiding the county in this initiative is to ensure economic health in the region. For Chester County, the definition of economic health is encompassed by the concepts of sustain-ability, inclusiveness, and diversification. According to the strategy, sustainability speaks to a balance between progress and preservation; inclusiveness means that every person is an asset, someone who can contribute both to economic growth and to the community as a whole; and diversification addresses the county’s desire to keep its employment base spread across multiple sectors, and not be too dependent on a single industry or a single cluster.

The goals of the ten-year plan are supported by an extensive list of strategies and actions. Some of these goals, set forth below, represent short-term opportunities and others a long-range vision for positioning the county.

GOAL 1: Maintain and enhance quality of “place” as a key component of economic health.

GOAL 2: Position Chester County as a magnet for attracting talent and as a model for building an employer ready workforce.

GOAL 3: Expand business attraction and retention efforts with a focus on targeted industry clusters.

GOAL 4: Establish an innovative culture that supports entrepreneurship and business growth.

GOAL 5: Support critical infrastructure in targeted corridors of opportunity.

County Commissioner Michelle Kichline serves as co-chair of VISTA 2025. Commissioners Kichline, Terence Farrell and Kathi Cozzone are scheduled to attend our Fall Bench Bar Conference, September 24-26, 2015, at Gaylord National Resort & Convention Center in National Harbor, Maryland. The Commissioners will have more to say about VISTA 2025 at the Conference so please plan to attend and engage them on this important initiative. In the meantime, to learn more about VISTA 2025 or to get involved in this exciting initiative, I encourage you to check out the website VISTA.TODAY.

THE TOP 10 BEST COUNTIES TO LIVE IN PENNSYLVANIA:1. Cumberland County

2. CHESTER COUNTY

3. Centre County

4. Montgomery County

5. Bucks County

6. Montour County

7. Butler County

8. Delaware County

9. Adams County

10. Lancaster County

OTHER SPEAKERS INCLUDE: Chester County Commissioners, Judges of the Chester County Court of Common Pleas

Fall Bench BarThursday, September 24th–26th

Gaylord National Hotel in National Harbor, Maryland

Water Taxi to Beautiful Alexandria

The Capital Wheel

Relâche Spa & Salon

While you’re in town, don’t forget to check out the NEW Tanger Outlets!

Check Out Some of the Activities Offered at the Conference!

Featuring Keynote SpeakerJoe Postone, the REAL Donnie Brasco

Golf Outing at National Golf Club


CCBA Feature

Continued on page 7

June 20, 2015 will mark the eleventh edition of the Trial Run 5K to raise funds for Legal Aid of Southeastern

Pennsylvania. The Trial Run has raised in excess of $150,000 since our first run and it has been a great journey that started on a cold February day in 2005. Chris Zaccarelli called me and posed a question, “You’re a runner right?” I put down my corned beef special and thought about that for a moment. Only a few short years earlier I had run my first 5K in which my sister,

eleven years my junior, beat me by about ten minutes and won her age group after a warm up that included a large coffee, a bagel, and a cigarette during her pre-run stretch. I washed that memory from my mind and reminded myself that I did, technically speaking, “run,” so I said “Yes, I am a runner.”

Then came the follow up question, “Would you be interested in putting to-gether a 5K to raise funds for Legal Aid

Running

By Tony Verwey, Esquire

of Southeastern Pennsylvania?” I thought, how hard could it be to set up a 5K with a hundred runners, thirty odd volunteers and menacing traffic? Neither of us really knew, but so began an adventure that we thought might have a good run of a few years. A decade later, and despite a few bumps, we are still going strong. The Trial Run has benefitted since its inception from unparalleled generosity and commitment.

ELEVEN YEARS

LEGAL AID’S 5K

TRIAL RUNJune 20th

SAVE THE DATE!

N e w M a t t e r | 7

www.chescobar.org

Continued from page 6

In our first year, we were fortunate to have sponsors like Gavin Law and MacElree Harvey, who have stayed with the Trial Run 5K to the present. In fact, this year, Gavin Law and MacElree Harvey will once again serve as the event sponsors for the Trial Run, for which we are extremely grateful. We are honored by the year-in-year-out support of these firms, but they are not alone. Many Chester County businesses, law firms and individual lawyers have also generously supported the Trial Run over the years, both financially and as volunteers.

Many of our volunteers have been with the Trial Run since 2005, including our families. Our volunteers are really a special group of people, because they come out, not just when the weather is perfect, but when it’s searing hot or rainy and cold.

They encourage our runners, ensure they are well hydrated, and control traffic to protect them during the run. The most challenging of these activities is traffic control. Having put friends like John McKenna, Bruce Laverty, John Zaccarelli and Pat McKenna at traffic control points, where they’ve been sworn at and nearly hit by cars, I cringe at their stories and appreciate their dedication in coming back year after year. We also have younger lawyers, like Kristen Ladd, who are taking on additional duties in organizing the run. Our volunteers exemplify the true nature of the Chester County legal community and its commitment to this event in support of Legal Aid.

Eleven years running, but not without all of you, our sponsors, our volunteers and our runners who have made the Trial Run the success that it has been. Now our few year run is entering its second decade. Thank you for your support and please continue to sponsor, volunteer, run the 5K and support Legal Aid of Southeastern Pennsylvania.

LEAD SPONSORS:

Judy Craig (far left) Tim Steeves (far right)

Harvey Strauss, Ted Fritsch, Liz Fritsch, Tony Verwey, Susan Strauss, Chris Zacarelli; KIDS: Jessica Zacarelli, Matthew Verwey, Jacob Zacarelli

The deputies are from left to right: Cpl. Charles Glover, Cpl. Tom Janders, Deputy Doug Ahles, Deputy Phil Hostetter


CCBA Feature

Do your clients know the difference between an Employee and an Independent Contractor? Do you?

To help determine whether a worker is an employee or an independent contractor for wage withholding purposes, the IRS has developed a 20-factor control test based on common law principles. The 20 factors indicate what degree of control by the business over the worker is sufficient to establish an employer- employee relationship.

The importance of each factor varies depending on the occupa-tion and the factual context in which the services are performed. The 20 factors are designed only as guides for determining whether an individual is an employee. Special scrutiny is required in applying the 20 factors to assure that form isn’t elevated over substance. This test isn’t conclusive as to corporate officers and doesn’t apply to statutory independent contractors.

The 20 factors are enumerated in IRS Revenue Ruling 87-41 (1987) -1 CB296. They are:

or Independent Contractors?

By Kevin J. Ryan, Esquire1. instructions to workers

2. training

3. integration into business operations

4. requirement that services be rendered personally

5. hiring, supervising and paying assistants

6. continuity of the relationship (permanency)

7. setting the hours of work

8. requirement of full-time work

9. working on the employer’s premises

10. setting the order or sequence of work

11. requiring oral or written reports

EMPLOYEES

Continued on page 9


www.chescobar.org

12. paying worker by the hour, week or month

13. payment of worker’s business and/or traveling expense

14. furnishing worker’s tools and materials

15. significant investment by worker

16. realization of profit or loss by worker

17. working for more than one business at a time

18. availability of worker’s services to the general public

19. firms’ right to discharge worker

20. worker’s right to terminate relationship

The IRS notes that the above factors describe three broad categories; (1) behavioral control, (2) financial control, and (3) the relationship of the parties. Each category contains types of information (facts) that illustrate the right to direct and control, or its absence. There’s no magic number of relevant evidentiary facts that’s dispositive. Instead, all the facts must be weighed in evaluating the extent of the right to direct and control. The IRS tends to pick and choose to its own benefit.

The Tax Courts view the degree of control exercised by the person for whom the work is performed over the individual who renders the services as the fundamental factor in these determinations. This means the “right to control” how the work is performed, whether or not any control actually is exercised. So, the courts must examine the degree to which the principal “may intervene to impose control.”

Remember the IRS has a myriad of reasons for attempting to treat everyone as someone’s employer!

With regard to employee-type benefits, the Tax Court has found that taxpayer’s receipt of employee benefits (participation in deferred compensation plans) was another factor indicating that a worker is an employee, not an independent contractor, and that the non-receipt of these benefits was a factor indicating independent contractor status. And the IRS has stated that the fact that a worker is excluded from a benefits plan because the worker isn’t considered an employee by the employer is a relevant factor, although not conclusive, in determining the status of a worker as an employee or independent contractor.

Access to employee benefits is, as such, an important factor in determining whether an employer-employee relationship exists;

and it’s the availability of employee benefits, not the receipt, that’s determinative.

In a case that strikes close to home, a law firm’s office manager and secretary were improperly classified as independent contractors instead of common law employees. The court found that the law firm (1) exercised complete control over the details of the work performed by these individuals; (2) provided these individuals with office space, a desk from which to work; (3) compensated them in a way that precluded them from realizing a profit or loss from their work; (4) had a continuous and uninterrupted relationship with these individuals; (5) reserved the right to discharge these individuals at will; (6) considered their services an essential part of its business; and (7) provided them with certain employee benefits, such as vacation pay, sick pay, health insurance, holiday bonuses, and payment of employment taxes.

This is serious business and characterization of workers also impacts your clients’ workers’ compensation.

The penalties involved in mischaracterizing an employee as an independent contractor are severe. Know the rules and make sure your clients know them as well.

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CCBA Feature

You know this one: there are only two things certain in life: death and taxes. Well, as attorneys we’re pretty sure, up to a point, death can be ignored (unless you are an estate

and trust attorney). But taxes, those are pressing. It’s June, you are rolling along and your practice is really soaring when “smack” you realize you have not paid quarterly taxes in a long, long time. Then there’s the headache that begins pressing at the base of your skull in mid-January that you just can’t seem to shake. There are some good reasons to pay attention to your quarterly and yearly taxes, and they’re not all because of the fines and penalties. First and foremost, get organized. In your first years of practice you may be able to handle your own bookkeeping and tax filing, but as your practice grows you will need expert help.

A Shoebox of ReceiptsOk, someone may have done this her first year in practice, but

after that I invested in a scanner, and I scan in every receipt, and file it in a designated file on my computer. My receipts are for-ever preserved and organized so that if the taxman ever comes knocking on my door I have copies for each tax year. I also keep a backup copy on the cloud. I don’t scan receipts every day, but when I see a pile of them sitting on my desk, it’s a nice way to ease out of my day as an officer of the court.

An Excel Spread SheetFor your first couple of years of practice you may be able to get

away with using an excel spreadsheet to track expenses and income. The drawback is that it takes work, but if you’re comfortable in the fact that you were a business major in undergraduate school, and you have a brother who is a corporate accountant and will draw up a linked spreadsheet for you, this method works! Once you have all of the information entered, then you can use Turbo Tax to file your yearly taxes. Turbo Tax comes at various levels of free to not free, and the software will take you through the forms step by step. If information is entered correctly, the spreadsheet will have tracked your accounts over the course of the year and formulated things into deductible or not deductible based on your notations. Even if you use this method, keep copies of your receipts, just in case.

BookkeeperAs your practice picks up, your time becomes more valuable.

Consider hiring a bookkeeper for several hours a week. The cost can range from $15 to $60 per hour. Some of the tasks your book-keeper can handle include billing clients, paying bills, tracking

By Shannon K. McDonald & Mary R. LaSota, Esquires

Let’s Talk Taxes!

Continued on page 11


www.chescobar.org

expenses and assuring that every cost has been entered—and recorded correctly. If you have someone tracking and putting the correct numbers in the correct boxes, then at the end of each tax quarter and tax year, you are ready for tax time. No more digging through the shoebox of receipts. You will also have a better idea of how your expenses stack up against your gross revenue. If you decide to prepare your own tax returns, then your job is to de-termine which of those expenses is deductible, and your taxable income for each year. If you lack the knowledge to make those kinds of determinations, then you either need to learn it or hire an accountant.

Software SolutionsQuickBooks/Quicken are software solutions designed to

manage your sales, inventory, income and expense reports and other needs of a small business. The software allows you to create customized invoices, track sales and expenses from month to month and year to year. You need a firm grasp on basic accounting principals. Remember garbage in, garbage out. I do know attor-neys who swear it’s all they need, but I also know from personal experience that if you can’t get the program to link with your bank account, all the upgrades in the world won’t save you from an accounting headache. So try it for free before you determine this is the software for you. You can also combine QuickBooks with some time tracking software, including Minute7, but that’s a discussion for another day.

An AccountantGosh, wouldn’t it be great if someone out there actually knew

how to file the right forms every time, and actually knew what you could take a deduction for and what really counts as your income? Folks, we’re experts in the law, and we’d never counsel a client to go pro se; we know the importance of the expertise. Let’s use that knowledge to our advantage, and just hire an accountant. Yes, it costs money, and I sure didn’t do it my first year in practice, but when you’re confronted with the February tax panic, and your shoebox of receipts is marred with coffee stains, that money is going to feel so well spent. Also an accountant can analyze the big picture and produce key financial documents, such as profit-and-loss statements, of your business.

Now that you are organized, let’s take a look at those taxes, but first a shout out to one of the first attorneys I met in Chester County, Bruce Laverty, who gave me some very important advice, when I was a novice to the solo world, and when I had just signed the lease for my first (sublet) office. Start a tax savings account, he said, and deposit one third of your revenue in it. Brilliant!! So I did exactly as he suggested. The funds are safely tucked away so that I am not scrambling for a few quick clients and quick bucks as April 15th rolls closer and closer.

Quarterly Estimated TaxesI cannot stress this enough, Pay Your Quarterly Taxes! In your

first year you may not know this, but as a self-employed individual your federal taxes should also include self-employment taxes if your net earnings from self-employment are $400 or more. Self-employment taxes consist of Social Security and Medicare taxes. You can calculate the amount you owe for self-employment taxes using Schedule SE (Form 1040). Every quarter I take a snapshot of my income and deductions and re-calculate my estimated quar-terly taxes based on my income and deductions for that quarter. Yes, it’s a process, but as April 15th looms closer, I already know that most, if not all, of my taxes have been already paid. If you are using a bookkeeper, all of the information should be readily available to you. If you have an accountant, the accountant will take care of this calculation for you.

Don’t forget to include in your quarterly calculations your state and local income taxes. Pennsylvania and your local government expect a cut too, and they want it quarterly. Pennsylvania’s quar-terly prepayments are based on your personal estimate of what you are going to make. If you haven’t been in practice more than a year, then do yourself a favor, and make a realistic estimate. If you’ve been in practice more than a year, then Pennsylvania



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CCBA Feature

will automatically want to use last year’s income as the estimate. Personally however, I would expect to grow my income every year. So do yourself a favor; pay your quarterly taxes and pay a realistic estimate. You do not want to start the new tax year in arrears from last tax season because you did not bother to take the time to either make quarterly tax payments or to accurately estimate your quarterly taxes.

Year-End TaxesIt’s now mid-January and you can now breathe easy because

your yearly receipts are saved, your expenses and income are accurately tracked and your quarterly taxes are paid. The only item remaining for last tax season is to file your year-end taxes.

Being a solo practitioner is rewarding, challenging, and exhil-arating, but it can also be lonely and overwhelming. Flying Solo is a column written by solo practitioners offering insight on best business practices, marketing tips, networking options, and tech advice for those individuals who have chosen to fly solo. Have an idea or question for our next column? Email us.


Shannon K. McDonald is an appeals and defense attorney. She has been flying solo since December 2011.

She can be reached at [email protected].

Mary R. LaSota is a solo practitioner focusing on estate planning and administration, tax, and business planning. Mary took her practice solo in October 2013.

She can be reached at [email protected].

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When it comes to the tricky subject of death, I tend to agree with comedian-writer-director Woody Allen, who was once quoted as saying, “It’s not that I’m

afraid of death. I just don’t want to be there when it happens.”

I thought of this quote while attending the very meaningful annual memorial service held at this past December’s CCBA Annual Meeting.

As I listened to the various tributes to our esteemed departed colleagues at the bar, two thoughts occurred to me.

First, I’d love to be remembered by my fellow bar members someday in that manner (though hopefully not anytime soon).

And second, I just hope that nobody goes overboard in recalling my legal skills or career.

With this in mind, I have come up with my short list of some of the things I’m hoping my colleagues won’t say at my CCBA memorial service:

“He loved the Law.” Okay, I will admit to liking the Law (at least on some days).

But love is a pretty strong word here. Let’s put it this way: If I were dating the Law, I might give it an occasional hug, maybe a kiss on the cheek if the Law had taken me out for a nice dinner and a movie, but I certainly wouldn’t let the Law slip me the tongue. And I definitely wouldn’t sleep with it.

“He was a master in the courtroom.” Another obvious overstatement. While I’ve hopefully per-

formed competently in the courtroom, nobody’s going to put me on their “dream team” of hot shot litigators. Besides, these days I find myself getting into the courtroom less and less often, to the point where even uncontested matters seem to be more challenging.

“He was a lawyer’s lawyer.” Flattering, but factually inaccurate. Over the course of my legal

career, I have at one time or another represented doctors, dentists,

teachers, rocket scientists (real ones), college professors, steelworkers, barbers, bakers, and at least one perverted flasher (no jokes about the evidence not standing up in court, people!), but never to my recollection a lawyer. The closest I ever came to representing a lawyer was the time I represented myself in a small civil matter in front of a District Justice. For the record, I lost, thus proving true Abe Lincoln’s statement that he who represents himself has a fool for a client.

“His clients revered him.” Not quite sure about this one, but I’ll have to object to it as

being speculation. Many clients have thanked me, and most of them have seemed pleased with the services I’ve rendered to them. But I have no idea whether or not there’s been any revering going on. Besides, as my overhead continues to go up, I tend to worry less about being revered, and more about being paid. I’m not sure a statement like, “His clients actually paid him!” has quite the same ring to it.

“He had an encyclopedic knowledge of the Law.”

Only if you’re talking about a really thin encyclopedia. While there are certain things I can probably rattle off from memory, I tend to have to look up almost everything else these days. I might, for instance, recall that there’s a three-pronged test that the courts use to decide a particular legal issue, but you wouldn’t want to try to eat dinner with the fork I’d make from memory, since it would probably only have one prong.

“He was born to be a lawyer.” Was I? Then why did I spend so many years trying to get out

of it? As a friend of mine likes to say, “Who do I have to sleep with to get out of this business?!”

“He loved the Chester County Bar Association and the people in it.”

Guilty as charged.

The writer currently practices law in Chester County, and is not holding his breath to have a professional writing career at this point.

CCBA Feature

Things NOT to Sayat My Memorial Service

By Barry Rabin, Esquire


As the President of the Chester County Bar Foundation (CCBF), I am often asked by members of the

Bar Association to explain to them what the CCBF is and what it does. To pro-vide you with a brief history, the Chester County Bar Foundation is the charitable arm of the Chester County Bar Association. In the early 1980s, four distinguished Chester County attorneys—Robert F. Adams, Esq., Carol E. Haltrecht, Esq., Hon. Ronald C. Nagle and John A. Featherman III, Esq.—recognized a growing gap between the legal system and the citizens it serves. In an effort to re-connect the community with our legal system, those four attorneys worked together to form the

Chester County Bar Foundation in 1985. The goal, then and now, is to fund initia-tives which strengthen the ties between the residents of Chester County and the justice system.

By adhering to our Bar Foundation’s mission to help Chester County citizens understand, gain access to and benefit from our legal system, we have been able to expand the ways in which we help the citizens of Chester County. Today the CCBF supports programs and services such as the Law Related Education for Youth Program, Law Day, the Chester County Historical Society, the Charles E. Swope Scholarship and Matching Grant Program, Legal Aid of Southeastern Pennsylvania, Domestic Violence Center of Chester County, and the Crime Victims’ Center of Chester County.

As in anything, all of this could not be accomplished without tremendous fund-raising efforts year in and year out. Through programs like the Foundation Golf Classic and Casino Night, we are able to continue to carry forth the CCBF’s goals within our

By Lisa Comber Hall, EsquirePresident, Chester County Bar Foundation

community. I encourage you to support and attend our events which, in turn, benefit the Foundation. The success of these events depends on you.

So you may ask, what can I do, in addition to attending events, to person-ally support the Chester County Bar Foundation? Become a Foundation Fellow! I am proud to report that we have 158 individuals who have committed $1,500 to become a Fellow of the Foundation. It is through the continued support and the hard work of our dedicated Fellows that the Foundation has been able to grow and expand over the last three decades.

Fellows receive special recognition in the Bar Directory and we plan to have the names of all the Fellows on a permanent glass wall display in our bar association of-fices. The CCBF is YOUR Foundation and we need your help to continue our goals and carry on our legacy. We offer payment plans over one, three or five years. Please contact Wendy at [email protected] for more information and to make your tax deductible Fellow commitment today. If you are already a Foundation Fellow, thank you so much!!

As we celebrate our 30th anniversary this year, stay tuned for exciting news on how we plan to celebrate this important milestone!

CCBA Feature

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As you are likely aware, the Bar Foundation has a long history of providing financial support to law

related education, the Peoples Law School, the Access to Justice Program, Legal Aid of SE Pennsylvania, Crime Victims’ Center

By Steve McGann, TreasurerChester County Bar Foundation

Take Pride & Take OwnershipThe Chester County Bar Foundation is YOUR Foundation

CCBA Feature

of Chester County, and Domestic Violence Center of Chester County. Additionally, each year the Foundation awards the Swope Scholarship and Matching Grant. You may not be aware of a unique grant recently made by the Foundation to the Chester County Historical Society for the preservation of one of the Top 10 Endangered Artifacts in Pennsylvania, Passmore Williamson’s 1855 prisoner’s book. The book has legal and historical significance, as it is the record of visitors to Chester County abolitionist, Passmore Williamson, held in the Moyamensing Prison for 100 days for his refusal to pres-ent a slave, who desired her freedom, and her sons as ordered by the court.

The Foundation supports the First Year Diverse Law Student Summer Internship Program. This is a major initiative of Bar Association President Craig Styer.

Just like public television, you don’t have to contribute, but doesn’t it make sense to support YOUR Foundation?

If you haven’t paid your voluntary annual dues, please do. Also, please consider sup-porting the Foundation as a Fellow. Your $1,500 Fellowship support can be paid over a period of up to 5 years. For more information, please contact Wendy Leeper at the Bar Association.

As a vital member of our community, we want to support your favorite charity. Through our Customers Bank Community Support Program we can partner with you to make that a reality. For 2015, the eligibility parameters include the following:

• Eligible accounts are business checking (including escrow accounts) and consumer checking accounts earning interest rates of 15 basis points or lower.

• Donations are based on average annual balances kept during the calendar year.

• The donation amount is calculated at 25 basis points based on the average annual calendar year balance in qualifying accounts.

• Yearly donation checks will not be earned or disbursed for amounts less than $100.

• You may donate to more than one organization with the minimum donation of $1,000.

Thank you for helping to generate much needed funds for worthy programs in our communities.

Customers Bank Community Support ProgramA relationship that benefits all of us.

Management reserves the right to change the program at any time.

For more information, contact: Lawrence Snow, Senior Vice President, Deposit Services Group Head – Pennsylvania and New Jersey Email: [email protected]. Phone: 484-334-4293.

customersbank.com


Contact: Wendy C. Leeper, Executive Director of the Chester County Bar Association 610-692-1889 / [email protected]

Collage reflects only those Fellows whose photos appear in the 2015 CCBA Directory. There are 48 additional Fellows not pictured.



CCBA Featured Member Profile

Where are you living now?Willowdale.

What was your first job?Cleaning members’ golf clubs at a local country club.

What word best describes you?

Attentive.

Where would we find you on a Saturday afternoon?

In the office or taking my one-year-old daughter somewhere with my wife.

What is your favorite way to spend free time?

Catching waves in the ocean.

I would not leave home without…

Keys.

What is your greatest extravagance?

Traveling.

What is the honor of which you are most proud?

As Community Outreach Director in law school, I organized programs sending law students into inner-city schools to tutor children, and now continuing to help our community by serving as a board member of the Coatesville Youth Initiative.

Joel Goldberg, Esquire

What is the most important lesson you’ve learned?

You must have a thick skin to work for a parent.

Who is the person you are most interested in meeting?

My next client.

What is the last book you read?

Made to Stick,by Dan/Chip Heath.

What is your favorite TV show?Breaking Bad.

What has been your best, worst and toughest decision?

Best: Leaving San Diego after eight great years and returning to West Chester to help with my father’s law practice has been my toughest

decision. It can also be my best or worst decision, depending upon the day.

What do you like best about your job?

Helping clients.

Do you have any goals that have yet to be achieved?

Dunking a basketball (I’ve given up trying).

What is a little known fact about you?

I played D1 golf in college.

What was your first job?When I was 8 years old, taking people’s groceries home from the local Acme in my wagon for 10 cents a trip.

What word best describes you?

Obsessive.

Where would we find you on a Saturday afternoon?

Stonewall Golf Club.

What is your favorite way to spend free time?

Reading and practicing acoustic guitar.

I would not leave home without…

Phone 1st and guitar 2nd.

What is your greatest extravagance?

Trips to Darcie’s destinations.

What is the honor of which you are most proud?

Father to Joel and Ali, grandfather to Evie and Ilana.

What is the most important lesson you’ve learned?

If you want to be a man, act like a man.

Who is the person you are most interested in meeting?

I could give some good advice to Tiger Woods (not on golf).

Larry Goldberg, Esquire

What is the last book you read?

Believer, by David Axelrod on the Obama campaigns.

What is your favorite TV show?

House of Cards.

What has been your best, worst and toughest decision?

Best: Marrying Darcie.Worst: Spending too much time trying to get good at golf.Toughest: I don’t agonize over making decisions; that doesn’t mean they

have all been good.

What do you like best about your job?

Being able to help people.

Do you have any goals that have yet to be achieved?

I am waiting for the day when my granddaughters will sit with Pop Pop and let him read to them.

What is a little known fact about you?

I sat for the LSAT in a church in Chinon, France while in US Army AND I shook JFK’s hand in Altoona, Pa. in 1960.

By Stephanie Deviney, Esquire


www.chescobar.org

On March 2, 2015, the Supreme Court of the United States (SCOTUS) heard argument in

Ohio v. Clark. Darius Clark was convicted of child abuse, after his girlfriend’s three-year-old son appeared at daycare with multiple bruises and a black eye. The day care teacher called the police and reported that the child stated Clark committed the acts. The child never testified, but the teach-er did, and Clark was convicted based on her testimony. SCOTUS faced two issues here, one of which is legally interesting but now possibly irrelevant in Pennsylvania, and the other which is alive and well and which may signal a coming change in the law surrounding the Confrontation Clause.

Clark argued that an individual’s obliga-tion to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and second that a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualifies as “testimonial” statements subject to the Confrontation Clause.

Now, in Pennsylvania, teachers are man-datory reporters, that is, if there is a chance there is child abuse, they must report it to police. Does this make the teacher an agent of the government and therefore prohibit that teacher from testifying as to out-of-court statements? The prosecution argued no, the mere requirement of reporting, which exists in Ohio, does not make the teacher an agent of the government, and therefore her statements were not gathered in the same way as statements made by, say, a co-defendant who is being interrogated by police. The defense argued instead that even if the child was incompetent

Take Note of the Case:The Confrontation Clause,Teachers, & Child Abuse

CCBA Feature

By Shannon K. McDonald, Esquire

to testify in court, it was a violation of the Confrontation Clause to fail to give defense lawyers the same opportunity that police and the teacher had: to interview the child in the most compassionate way possible, but which would still afford them an opportunity to test the reliability of the child’s story.

The justices focused their questions, in determining what role the teacher played, on her intent, and her primary concern. If her primary concern was getting the child away from his assailant, then would she be asking the questions in the same way a police officer would, as an investigator? If her concern was to immediately report the incident to police instead of to child abuse authorities, does that change the way in which the Court should classify the teacher?

But throughout, the justices also ex-pressed where the Confrontation Clause line should be drawn, and they seemed to find an apt subject in this three-year-old boy. Justice Kagan even pointed out that the current Confrontation Clause test, as to “testimonial” evidence being prohibited, can apply to the statements of a three-year-old. At one point the justices questioned the various sides as to whether the hearsay test might fit better in a case such as this.

Either way, at least when the accuser is a very young child and the individual re-ceiving the otherwise testimonial evidence is not truly a law enforcement agent, it looks like change may be coming to the Confrontation Clause, although what new analysis could be seen, is up in the air.

© B

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hoto


CCBA Feature

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Jay G. Fischer, Esq., Partner, Valocchi & Fischer

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Suzanne R. Jackson, CPA, Owner, SR Jackson, LLC

Jerry L. Johnson, Esq., Attorney at Law

Donald B. Lynn, Jr., Esq., Partner, Larmore Scarlett, LLP

Stacey Willits McConnell, Esq., LLM (Taxation), Partner, Lamb McErlane, PC

DNB FIRST, N.A. HAS REAPPOINTED ALL OF THE MEMBERS OF THEIR WEALTH MANAGEMENT ADVISORY BOARD.

John McKenna, Esq., Shareholder/Director, MacElree Harvey, Ltd.

Anthony Morris Esq., Partner, Buckley, Brion, McGuire & Morris, LLP

Stephen J. Olsen, Esq., LLM (Taxation), Partner, Gawthrop Greenwood, PC

Robert Supplee, Esq., LLM (Taxation), Robert S. Supplee, PC

Richard C. Weber, Board Chair, Managing Director, DNB First Wealth Management

The DNB First Wealth Management Advisory Board has been in existence since April of 2012.

DNB First, N.A. is a community bank headquartered in Downingtown, PA with over $723.0 million in assets with 13 locations serving Chester and Delaware counties. Founded in 1860, DNB First, in addition to providing a broad array of consumer and business banking products, offers bro-kerage and insurance services through DNB Investments & Insurance, and investment and trust services through DNB First Investment Management & Trust. DNB’s Investor Relations site can be found at http://investor.dnbfirst.com/.

THE MEMBERS ARE:

2016 President’s DinnerJANUARY 22, 2016

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www.chescobar.org

On October 22, 2014, former Governor Corbett signed into law amendments to Section 402

(Potential Pollution) of the Clean Streams Law, 35 P.S. §§ 691.1 et seq. Act 162 of 2014 adds a new subsection (c) to § 402, 35 P.S. § 691.402(c). The new amendments became effective 60 days thereafter, on December 21, 2014.

New section 402(c)(1) specifies that in instances where a riparian buffer or forested riparian buffer is required by the relevant administrative rules and regula-tions set forth in 25 Pa. Code Chapter 102 (Control of Erosion and Sedimentation), an applicant for an NPDES construc-tion stormwater permit may seek to demonstrate that other best management practices (“BMPs”), design standards, or other alternatives may be used in lieu of a riparian buffer, so long as the BMP or other alternatives has “substantially equiv-alent” effect.

25 Pa. Code § 102.14 (a) (1) indicates that where an earth disturbance activity is proposed in a high quality or special protection watershed, the buffer distance shall be 150 feet.

By John R. Embick, EsquireChair, Environmental Law Section,

3/31/2015

Stream Buffers May be Breached—Amendments to Section 402 of the Pa. Clean Streams Law Signed into Law

Save Our Environment


25 Pa. Code § 102.14(a)(2) states that where the earth disturbance is proposed, and the project contains or is along or within 150 feet of protected waters in a high quality or special protection watershed, and where the waters fail to attain certain uses contained in Category 4 (waters impaired for one or more designated uses but not needing a total maximum daily load (TMDL)) or Category 5 (waters impaired for one or more designated uses and needing a total maximum daily load (TMDL)) on Pennsylvania’s Integrated Water Quality Monitoring and Assessment report, then a forested riparian buffer must be protected or created.

The riparian buffer standards contained in 25 Pa. Code Chapter 102 were adopted in 2010 after an extensive period of public comment and response. There are some exceptions, and the rules regarding the location and composition of the riparian forested buffer are detailed.

In addition, section 402(c)(2) of the new amendments basically provides that if a project is within 100 feet of a protected water, then an applicant must provide offsetting buffers in a one-to-one ratio somewhere else nearby.

On March 21, 2015, PaDEP published proposed guidance documents relating to the manner in which the regulated com-munity could demonstrate “substantially equivalent” performance.

In a proposed guidance document enti-tled: “Riparian Buffer or Riparian Forest Buffer Equivalency Demonstration,” DEP ID: 310-2135-002, the Department pro-vides interim final technical guidance and outlines the equivalency demonstration criteria and process related to the riparian buffer or riparian forest buffer equivalency demonstration required by Act 162 of 2014.

In a companion proposed guidance document entitled: “Riparian Buffer or Riparian Buffer Offsetting,” DEP ID: 310-2135-003, the Department provides interim final technical guidance relating to the offsetting criteria and process related to


CCBA Feature

the riparian buffer or riparian forest buffer offsetting required by Act 162 of 2014.

The amendments to the Clean Streams Law reportedly were supported by the Pennsylvania Builders Association, and were opposed by virtually every environmental advocacy group in the Commonwealth, including PennFuture, the Pennsylvania Environmental Council and the Fish & Boat Commission.

The instances in which the amendment to sec. 402(c) (1) applies seem fairly narrow: the project must be near special protection waters, and require a NPDES stormwater construction discharge permit. However, these waters are arguably the most sensitive and deserving of a high level of protection.

A forested riparian buffer is considered to be the gold standard of stream and wetland protection in connection with preventing pollution associated with earth


The guidance document published by PaDEP regarding the “substantial equiv-alency” demonstration suggests that the PaDEP thinks that the demonstration theoretically can be achieved, at least with utilization of the “capture and reuse” BMP. What this means is that runoff from the development site must be captured and reused somehow on site.

A lot of people were upset by the cost and effort associated with complying with the riparian buffer zone requirement, and felt that the 150 foot buffer requirement was arbitrary and did not adequately accommodate site-specific conditions. It is clear that many people also viewed the forested riparian buffer requirements to be an unreasonable restriction on their rights to use their property as they saw fit. The new amendments may provide some relief, but how much is not clear as yet.

disturbance or development. The buffers act as a highly efficient filter and treatment system for sediment and other pollution that runs off development sites and also help prevent flooding downstream and protect water quality.

It remains to be seen whether there actually are pollution control alternatives or BMPs which are “substantially equiv-alent” to the 150 foot riparian forested buffers. Many conservation groups felt that strong protection represented by riparian buffers was required for Pennsylvania’s most valuable, sensitive and high quality waters, and that the new amendments are a step backwards.

The new amendments to the Clean Streams Law do not mandate or specify what control alternatives are “substantially equivalent,” and none may currently exist. The amendments nevertheless will afford an ap-plicant the ability to make the demonstration.

By Kevin J. RyanBy Kevin J. Ryan

Thinning the Herd

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Detective Spagnola has moved to a suburban police force to get away from the brutal crimes seen by him as a Philadelphia homicide detective. Shortly after his arrival there are a series of seemingly unrelated murders in his quiet upper middleclass township.

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As Spagnola believes he is closing in on his perpetrator he is injured when an SUV, laying in wait for him, crashes into his car on his way home from work, side lining him from the pursuit. Is the predator done, or has it just begun?

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www.chescobar.orgFrom The Archives ( New Matter—November 1983)

60 YearsC. Richard Morton

50 YearsStanley LiebermanHon. Charles SmithJohn GoodLarry JonesHon. Ronald Nagle

25 YearsCraig StyerJoanne PeskoffMark Cronin

Lori FeidtThomas BeachHarry DiDonatoWendy McLeanLeonard RiveraDuke SchneiderDavid ScottJames RuggieroScott YawCeil Blumenthal

10 YearsJudy WeintraubDaniel McCabeKevin Granahan

Nathaniel MetzCarolyn ZackJohn GagliardiMichael PetockArthur GoldmanWilliam BrogleyTiffany AlexanderAlyson ZarroJacqueline SegalVictoria JohnsonBen MoseleyNikolaos TsourosChristopher RoeGregory Wirt

5 YearsStanley LuongoPaula BorradaileMatthew ConleyJoseph McIntoshMark HostermanPaul DruckerWilliam NollRochelle RabinAshley BeachThomas DelaneyMichael MerlieSandra KnappElizabeth GavinJohn DelCollo

Michael PaulMichael FortunatoDavid ScaggsKimberly GibneyCarla GoewertKali Wellington-JamesJoseph FalconAndrew NeyTerrence KerwinJennifer AbrachtMark LevengoodBrian ShireKristen LaddArlan KardonAndrew Salvatore

W. Marshall PearsonNancy RyanChris AmentasKeith BoggessJames PalmerAnthony BrichtaMichael PernaMatthew MorleyMatthew Redding

Happy Anniversary!


CCBA Feature

On November 20, 2014, a for-mal opinion was issued by the Pennsylvania Bar Association

with what may qualify as a shocking result. The inquiry was whether a prosecutor may propose, at an early stage of proceedings, that a defendant accept an early favorable or deferred disposition conditioned upon forgoing one or more of the following: a preliminary hearing, formal arraignment, receipt of discovery, bill of particulars, filing of an omnibus pretrial motion, or file notice of affirmative defenses. Furthermore, the committee asked whether a criminal de-fense attorney could ethically recommend acceptance of the prosecutor’s offer. The conclusion: it is unethical for a defense attorney to recommend any waiver of rights without actually ensuring its knowing and voluntary (which the committee posits the defense attorney cannot do without having discovery and adequate time for investigation). And, it is unethical for a prosecutor to recommend that a defendant or the defense counsel actually waive, and it is unethical for any program to require the individual to waive those rights.

The committee went through both early alternative disposition (EAP) (a program

non-existent in Chester County, but the court has similar programs) and ARD (which in this county requires you to give up all rights listed by the committee and then some). The committee then discussed that the failure of the defendant to accede to waiver will result in rejection from the program. This particular problem is some-thing I have counseled many defendants about, when we discuss potential defenses which may arise and the impossibility of cross-examining the officer or witness before deciding to waive. Additionally, although the Public Defenders are known for having preliminary hearings in this county, many private defense attorneys make it standard practice to waive, because the prosecutors represent that they will give the defendant good will. Further, as PCRA counsel, I have run into a number of counties where the various defense attorneys have told me it was standard practice in their county to not file pretrial motions, or face the consequences.

The opinion provides specific rules where they feel the defense counsel and the prosecutors are violating the Rules of Professional Conduct (“Rules”). The committee asserts that a defense counsel

PENNSYLVANIA BAR ASSOCIATION FORMAL OPINION 2014-500:

By Shannon K. McDonald, Esquire

cannot know if he or she is competent to take on the case, or is being competent in the resolution, without reasonable investigation (violation of Rule 1.1). The committee states an independent investiga-tion by defense counsel cannot be adequate for reasonable investigation, instead, the defense counsel must know what the pros-ecutor is actually relying on in prosecuting the charges (violation of Rule 1.1; 1.7). A defense counsel, according to the commit-tee, cannot either obtain informed consent from his client nor represent to the court that the defendant is acting knowingly and voluntarily if counsel does not have full and complete information (violation of Rule 1.1; 1.7; 8.4).

The committee offers a reasoned opinion (well-reasoned or not is your call) and emphasizes the coercive nature of the failure to step in line. The committee re-views some unnamed counties’ prosecution practices of deeming attorneys who don’t waive as being “not team players,” subject defendants who refuse programs to less favorable treatment, and even employment interests of defense counsel. All of these were reviewed as conflicts of interest for


Prosecutors, Public Defenders & Criminal Defense Attorneys Beware


www.chescobar.org

the defense counsel, and violations of the special rules for prosecutors.

The 11-page opinion boils down to this: “A defense lawyer who advises a client to accept or reject a plea or deferred adjudication under these circumstances is subjecting himself to potential allegations of ineffective assistance of counsel, a finding of which may constitute grounds for disci-plinary charges based on violation of Rule 1.1.” “Moreover, because of the personal pressure being applied to defense counsel, the attorney’s personal interests in retaining employment and the favor of the court conflict with the attorney’s duty of fidelity to the client, and there is a significant risk that the representation of the client will be materially limited by a personal interest of the lawyer, in violation of Rule 1.7.” “Where a defense lawyer recommends such a waiver to a client and conducts no investigation under these circumstances, the defense lawyer provides no actual assistance and only nominally represents the defendant.”

It ’s even worse for the prosecutor: “Prosecutors are not only advocates for the Commonwealth but also ministers of justice, which role carries with it the duty to insure that a defendant is afforded procedural and constitutional safeguards. RPC 3.8.” “If a prosecutor requires the waiver of discovery as a condition of a plea or deferred adjudication; he is intention-ally evading his legal and ethical duty to disclose evidence favorable to an accused that is material to either guilt or punish-ment. Such conduct violates Rule 3.8(d) [and 8.4].” “Moreover, by engaging in the coercive practice which requires defense counsel to violate his/her own duties under the Rules, a prosecutor knowingly assists or induces defense counsel to violate the Rules, in violation of RPC 8.4(a).” “In particular, where a prosecutor is communicating with a pro se defendant who has to make the choice between accepting the offer and securing counsel, the prosecutor must make certain to avoid giving advice other than the advice to secure counsel, as the


prosecutor would know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the Commonwealth.”

I hate to use so many quotes, but this opinion mean serious business. It seems to be the PBA’s idealistic attitude which has influenced this matter, but their opinion is in line with the Pennsylvania Criminal Defense League, and the National League. The opinion implies that waiver, followed by a guilty plea, when any possible defense exists, is not only ineffective assistance of counsel, but also prosecutorial misconduct and grounds for disciplinary action against any attorney involved.

Of course, this is advisory, but PCRA counsel will want to use this. All counsel out there, private and public, state and defense, may need to change attitudes to-ward the preliminary hearing and pretrial motions and investigation.

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The Blank Page

Yes, you read it correctly. It is not an error or a typo. That is right, two commas and six zeros; not one-hun-

dred, one-thousand or even ten-thousand. One-Million Dollars! Philadelphia Common Pleas Judge Paul P. Panepinto levied a sanction for almost One-Million Dollars against attorney Nancy K. Raynor (a resident of Berwyn with a defense prac-tice located in Malvern).

certain other risk factors for cancer would be allowed. Upon examination, one of the expert doctors did, indeed, testify that, among the risk factors for cancer, Plaintiff smoked. Judge Panepinto subsequently delivered a cautionary instruction to the jury. The trial proceeded to verdict and the jury awarded $190,000 in favor of Plaintiff.

Nevertheless and notwithstanding, Judge Panepinto, besides the

million-dollar prize that he awarded to Plaintiff ’s coun-sel, granted a new trial which, in fact, resulted in favor of Plaintiff in the amount of 1.9

Million Dollars. All issues, including the sanction and the new trial (with

respect to the latter, both the granting of and the verdict

in) are on appeal.

Now (to add insult to injury), the sanc-tion order was reduced to a judgment in Philadelphia County. The judgment was transferred to Delaware County (which now is a lien on Ms. Raynor’s residence) and Chester County, resulting in a freeze on Ms. Raynor’s office accounts, payroll accounts, personal bank accounts, and receivables. (Plaintiff ’s counsel apparently worked quite swiftly to execute, not-withstanding that an extension had been requested and an application for a super-cedeas had been filed ). The Pennsylvania

LAWYER SANCTIONED.

Amount:

By Mark Blank, Jr., Esquire

Superior Court (courtesy of local attorneys Jim Sargent and Maureen McBride of Lamb McErlane) issued a stay on the enforcement of the liens pending the appeals. So Ms. Raynor’s professional and personal life can now function while the appeals are being considered. (The Superior Court stated, in so many words, that it is watching Judge Panepinto).

Did Ms. Raynor instruct the witness not to so testify and the witness by accident blurted it out? That appears to be an issue which, at the time of this writing, is being litigated. (As an aside, multiple witnesses have corroborated that the expert witness was in fact told not to so testify. And in the second trial, the smoking testimony was allowed: That trial concluded with a verdict that was ten times larger than in the first trial).

Regardless of the outcome of all of this, the writer has this to say: last month (April 25th, to be exact) marked 39 years as a member of the Bar. I (and to my knowledge, nobody else) have never seen anything like it. By the way, there is much more, but space will not permit me to elaborate. (In fact, I could probably write a law review article or even a treatise. But I will save that for another day).

As in The MTA (The Kingston Trio, 1959): “Citizens hear me out. This could happen to you!” Or, could it really?

It all started with a medical malpractice suit

against Roxborough Memorial Hospital and some of the doctors (Sutch vs. Roxborough Memorial Hospital). Ms. Raynor was counsel for one of the Defendants. Plaintiff was in the hospital for treatment related to lung cancer. She subsequently died. Pretrial, Judge Panepinto ruled that there could be no testimony to the effect that Plaintiff had been a smoker. However,

$1,000,000.00!


www.chescobar.org

In Memoriam

John L. DiGiacomo, Esquire1949–2015

ReCh2,0+ Chester County Residents

& Nearly 1,000 Chester County Attorneys

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WINTER 2014

GIVING BACKCCBA Helps to Raise Funds for

Legal Aid of Southeastern PA

I HAVE THE POWER–OR DO I?

IS A TOKEN A TICKET?A Look at Pennsylvania’s

New Power of Attorney Law

THE STUDENT DEBT CRISIS

“DIV

ERSI

TY: T

HE ART OF THINKING INDEPENDENTLY TOGETHER.” – M

ALCOM FORBES


SPRING 2015

CRAIG A. STYER2015 PRESIDENT

PURVEYORS OF KNOWLEDGE:How Bar Associations Will Become Key Players

in the New Era of Legal Education HOT TOPICS IN CRIMINAL APPEALS:Persuasive New Case Law for Pennsylvania Practitioners

FLYING SOLO:Eight A� ributes Needed to Run a Solo Practice

MatterTHE AWARD WINNING PUBLIC ATION OF THE CHESTER COUNT Y BAR ASSOCIATION • CHESTER COUNT Y, PA w w w.chescobar.org

WINTER 2014

GIVING BACKCCBA Helps to Raise Funds for

Legal Aid of Southeastern PA

I HAVE THE POWER–OR DO I?

IS A TOKEN A TICKET?A Look at Pennsylvania’s A Look at Pennsylvania’s

New Power of Attorney LawNew Power of Attorney LawNew Power of Attorney Law

THE STUDENT DEBT CRISIS

“DIV

ERSI

TY: T

HE ART OF THINKING

New MatterTHE AWARD WINNING PUBLIC ATION OF THE CHESTER COUNT Y BAR ASSOCIATION • CHESTER COUNT Y, PA

How Bar Associations Will Become Key Players HOT TOPICS IN CRIMINAL APPEALS:

Persuasive New Case Law for Pennsylvania Practitioners

FLYING SOLO:Eight A� ributes Needed to Run a Solo Practice


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BE A FELLOW OF YOUR BAR FOUNDATION


Tech Tips

Technology has always been a part of a law practice—from typewriters to robust computers. Today’s technol-

ogy, however, changes at a dizzying pace. It seems that once something new is learned, something else has taken its place. With the ethical responsibility to keep abreast of changes, lawyers will not be bored evolving with their office technology.

Another technology domain, which this article will explore, is technology as evidence in a trial, specifically digital pho-tography. In earlier articles, this author has explored using social media as evidence in court. An inseparable part of social media is photographs. Today, most photographs are digital, and the difference between digital photography and print photography should be understood because digital pictures can be manipulated even more than film.

A LONG HISTORY OF PICTURE POWER IN THE COURTS

The power of a photograph and other visual media in the courtroom is indisput-

able, and photography has been used by the courts for a long time. Usable photogra-phy was invented around 1839 by Louis Daguerre. While some inventors laid the foundation of photographic process, such as Thomas Wood in 1800 and Mr. Daguerre’s partner Nicéphore Niépce, Mr. Daguerre’s method was the one embraced originally by the world. The method was called the daguerreotype. Such early pictures were not used in the courtroom due to the fact that the picture was produced on silver coated copper plates, a process that was time-consuming and expensive. Also, photographs had to be carefully staged. By the 1850s, inventors developed a new process that involved using glass plates to create a negative of an image. From that negative, multiple positive prints could be made. This led to the ability of making multiple copies and, more importantly, lowering the cost of photography. At that point, photographs began to appear as visual evidence. Their use was still not common because the photographic process was still labor intensive. The pictures had to be developed immediately after they were taken on the spot.

By the 1880s, the new technology of using dry plates to take pictures and then sending them off for development vastly increased the popularity of photography and made it accessible to almost everyone. Events could now be captured with less cost and in a less staged fashion. Then roll film arrived, and, in the mid-20th century, color film. As the technology advanced, so did its use in courts. First, pictures were used for only illustrative purposes. Eventually, pictures became to be viewed as direct evidence.

In the late 1950s, scientists discovered a way to scan images into computer memory, and by the late 20th century, Kodak had developed a way to capture images on a megapixel sensor (ironically, Kodak decided to focus on film photography and is still paying dearly for that decision). Now, in the digital age, photographs can capture amazing detail and, important for this arti-cle, images can be manipulated completely or in the smallest detail.

By Keith E. Boggess, Esquire

Thoughts on UsingDigital Photographs


A S E V I D E N C E


www.chescobar.org

PHOTOGRAPHS AS EVIDENCEPhotographs have been and are used

as evidence, and there lies the problem. Within the picture taking a moment lays distortion, shadows, and the camera’s inability to focus on an object like the human eye. The reader may recall the various photographic hoaxes promulgated throughout the decades. Some of the more popular ones have been fairies and, more recently, ghosts.

Those familiar with photography know that when the device captures the light, it is not capturing it in the way a human eye

sees the scene. For one, the human eye can focus on what the mind tells it to focus on. A photograph, on the other hand, has the visual weight of the composition that will attract the eye and, consequently, the atten-tion of the mind. In some ways, a painting or a drawing can more accurately capture a scene as how the eye sees it. The artist is rendering what he sees; the camera only captures what it is designed to capture.

Related to that, the human eye can see

many more details of shadows than

what a camera sensor can pick up. Thus, light and shadow play a criti-cal part in a photograph’s composition.

An example is the vacation

picture on the beach during the

middle of the day. A person may take a pic-ture of a friend, seeing all the facial details. When he or she later looks at the captured

image, that friend looks like a raccoon—the eyes are

nothing but impenetrable shadows (a technique to handle that, by the way, is to move the person into a shady spot that still shows the background and use a flash).

For photographs as evidence, the op-portunity to manipulate images through composition exists. The rules of evidence have been the safeguards against that possibility. They have traditionally re-quired that photographs be relevant and authenticated before the images can be admitted as evidence by the trial court. The long-standing key question for authentica-tion is whether the photograph represents the subject fairly and accurately. The focus is on the picture and not necessarily the photographic process. The witness who authenticates the photograph may not be

the photographer. He or she only needs to have been at the scene during the time in question and testify that the picture represents the scene. In that context, a picture is entered into evidence under a theory of illustrative testimony. The picture, to put it another way, is there to illustrate the testimony of the witness.

A second theory for admission has gained ground through the years as tech-nology advances. Photographs also can be admitted as direct evidence under what is called the silent witness theory. The picture is considered self-authenticating, needing no witness to testify to it. To be admitted under that theory, witnesses testify to the reliability of the photography system and the chain of custody employed. Examples of evidence admitted under this theory are video surveillance cameras and other more technologically advanced image capturing systems like cash register cameras.

No matter what theory, any photograph has the potential to mislead and deceive. Digital photography has changed the way pictures are captured and presented. Images can be manipulated easily both at the time of taking the picture and during post-processing with computer software. In the film days, photographers adjusted expo-sure through burning and dodging in the dark room. Now computer software gives so much more power to not only manage the exposure but to retouch and even add or delete things in the picture. Colors can be changed; people can be removed; trees can be added. Not much imagination is needed to see how photographs provide an opportunity to influence. Below are some thoughts for a lawyer facing photographs being offered as evidence.

REALITY CHECK FOR PHOTOSThe first area to consider is distortion.

Each lens has a different focal length, which can be defined as the distance be-tween where the light in the lens converges and the camera sensor. The reader does not have to understand the technicalities




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the light is placed will have an effect on the subject. Light placement can narrow features of a person or can widen them. Lighting techniques can hide flaws or can make beauty stand out. Lighting can also make a person look sinister (think about the result of a person videoing a deposition casually placing a strong light to the side of the witness). Also, taking photographs of accidents should be done in similar light conditions, for how the light was hitting the scene will support what the witness saw.

In considering the above, this author suggests that today authen-ticating photographs being offered as evidence is more important that it was ten years ago. A wise attorney should go beyond the traditional question of whether the picture is a fair and accurate representation of the scene or subject as remembered by the witness. A lawyer should take the “digital photography factors” into account and be prepared to challenge the authenticity of what is being presented through expert analysis, subpoenaing the original images, and verifying the chain of custody.

The attorney should also investigate be-yond the surface of the picture: What was the lens used? What camera was used? Did the picture go through post-processing? If so, what software program was used?


Tech Tips

If applicable, can the meta-data of the image be provided? What is the theory of admissibility? If the theory is the silent witness one, a lawyer should focus on the reliability of the technology and the chain of custody.

Remember, the above factors matter because the camera does not see what the human eye sees; it sees what it was designed to see. In the end, a lawyer should be prepared when photographs are offered for admission to investigate them for de-ception or prejudice (such as in the case of photographs of grisly and morbid scenes). The well-known photography author Bryan Peterson stated that every photograph is a lie, but within that lie is a mountain of truth. Knowing the lies illuminates the way up that mountain.

of this process, but the reader should un-derstand that different focal lengths will lead to lens distortion. A wide angle lens often causes what is called a barrel distor-tion. A telephoto lens produces at times a pincushion distortion. Those lenses can distort the appearance of distance between objects. A telephoto lens may make objects appear closer to each other than they really are (an occurrence called compression). A wide-angle lens can make objects appear farther apart. The reader can easily imagine the applicability of such occurrences in accident cases involving car crashes.

Another area to consider is that of camera position. Changing the camera position also changes the perspective. If the pictures are being offered to illustrate what the witness saw, they should be taken from the witness’s perspective and not from another one. But changing camera position can influence the viewer in many more subtle ways. It can make objects seem taller or farther away. An image captured from a low perspective can make people seem a little more authoritative. In contrast, a picture taken from a higher perspective makes the subject seem more vulnerable.

A third area to consider is lighting. Light illuminates. It reveals. But light can also be used to guide the viewer’s focus onto something. For example, there are five basic patterns of portraiture light. Where

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New Matter Summer 2015