Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 1 PRSRT STD U.S. Postage Paid Buffalo, NY Permit No. 416 Update Your Directory Listing Champions for Justice pg 12 pg 18 Thank You Arbitrators! pg 6 Bulletin BAR ASSOCIATION OF ERIE COUNTY www.eriebar.org VOL. 54 | NO.

5 | JANUARY 2016 New Member Benefit Can Reduce Student Loan Debt President’s Letter KEVIN W. SPITLER Happy New Year everyone. Hope the New Year brings all peace, joy, and prosperity. As I write this letter, it has been less than two weeks since the terrorist attacks in Paris and Mali, which came so quickly on the heels of the downing of the Russian jetliner.

All this loss of life is so hard to take in. It leaves me with two questions. First, why do people do this to other human beings? It can’t be justified under any possible religious tenet. It is such a distorted view that it has continued on page 4 Save the Date for the President’s Ball! According to the Federal Reserve Bank of New York, outstanding student loan debt in this country has risen to about $1 trillion, surpassing auto loans and credit card debt to become the second-highest category of debt, behind only mortgages.

Student loan debt also makes it difficult or impossible for newer lawyers to become homeowners. To help address this problem, the Bar Association of Erie County has entered into a partnership with Credible, a company that simplifies the student loan refinancing process. Members and their families can quickly and easily refinance their student debt and realize significant savings. For example, an attorney with student loan debt of $140,000 can save approximately $40,000 through this program. Credible is an independent, impartial online platform that aggregates lenders who refinance student loans. It works along the same lines as Kayak and Expedia in the travel market.

Because the option of refinancing student loans is not widely publicized, borrowers often don’t realize that they have this opportunity. The process of applying to each lender separately to find the best loan is tedious and time-consuming. Credible eliminates that process by enabling borrowers to complete a single, universal form and receive multiple offers to refinance from a panel of lenders. siderable time saver.

Once the form is complete, Credible securely transmits borrower data to participating lenders. The lenders then respond through the platform with their offers. It is up to the borrower to decide which offer - if any - best suits his or her circumstances. The process is further simplified because of Credible’s partnership with Intuit, the operator of Quicken and TurboTax. Intuit’s technology enables applicants to securely link all of their loan data directly from their accounts, a con- Credible is not a lender - rather, it’s a transparent, independent and impartial service, which puts the borrower in control of the process.

For further information, please visit www.credible.com/partners/ECBA or call 415-801-0482. [B] Saturday, April 16 at the Twentieth Century Club Further details to come. Take to the Slopes at Holimont Friday February 19 pg 9 Judicial Welcoming Ceremony 2016 Please join us to ring in the New Year and welcome new and existing members of the judiciary to the bench. The ceremony, sponsored by the Bar Association of Erie County, The Minority Bar Association of Western New York and the Women’s Bar Association of the State of New York, Western New York Chapter, will be held on Wednesday, January 13, 2016 at 1:00 p.m.

in the Ceremonial Courtroom, Part 1 of Supreme Court at 92 Franklin Street, Buffalo. continued on page 4 “We will open the book. Its pages are blank. We are going to put words on them ourselves.

The book is called Opportunity and its first chapter is New Year’s Day.” — EDITH LOVEJOY PIERCE The board and staff of your Bar Association extend our warmest wishes for a New Year filled with promise and possibility. . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 2 January 2016 | www.eriebar.org PAGE 2 Vol. 54 | No. 5 | January 2016 BAR ASSOCIATION OF ERIE COUNTY Organized 1887 438 Main Street, Sixth Floor | Buffalo, New York 14202 (716) 852-8687 | fax (716) 852-7641 | www.eriebar.org Bulletin correspondence: obrian57@comcast.net EDITORIAL BOARD Editor. .

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. Katherine Strong Bifaro BOARD OF DIRECTORS Jeffrey F. Baase, Laura C.

Doolittle, Anne E. Joynt, Douglas P. Stiller, Cheryl A.

Aloi, Jennifer A. Beckage, Sophie Feal, Michael J. Roach, Elizabeth M.

Midgley, James J. Nash, Melissa Hancock Nickson, Michael F. Perley. LIFE MEMBERS Mark A.

Adrian, Carol J. Alaimo, Brian D. Baird, Patrick J.

Bannister, Lynn A. Clarke, Eric P. Doherty, Sharon Stern Gerstman, Jean E. Gittler, Susan J.

Grelick, Donald J. Holzman, Melvyn L. Hurwitz, Michael Kuzma, Stanley Kwieciak III, Michael P.

McClain, J. Eldon Owens, Lauren D. Rachlin, Michael A.

Smith, Jeffrey A. Spencer, James M. Wadsworth. Would you like to see your name here? See page 4 to find out how to become a contributing member. Letter to the Editor CONTRIBUTING MEMBERS Joan Casilio Adams, Peter S.

Aiello, Grace Marie Ange, Richard J. Attea, Hon. Tracey A. Bannister, Stephen E.

Barnes, Thomas R. Beecher, Jr., Ronald P. Bennett, Leonard Berkowitz, Richard S. Binko, Richard N.

Blewett, Peter J. Brevorka, Charles Patrick Bridge, Timothy P. Bridge, Phillip Brothman, Patrick J.

Brown, T. Alan Brown, Joel Brownstein, David Buch, Donna L. Burden, James P.

Burgio, Michael C. Burwick. dear Editor: John F. Canale, John J.

Carney, Alan S. Carrel, Thomas R. Cassano, Stephen E.

Cavanaugh, Emilio Colaiacovo, John F. Collins, William B. Collins, Anthony J. Colucci, Jr., Robert N.

Convissar, Edward C. Cosgrove, Donyelle E. Crapsi, Paul V. Crapsi, Jr., Douglas S.

Cream, Steven P. Curvin, Roger T. Davison, Regina A.

Del Vecchio, John M. Dempsey, Richard F. DiGiacomo, Anne C. DiMatteo, Dean M.

Drew, Hon. Timothy J. Drury, Donald B.

Eppers, Leo J. Fallon, Victor N. Farley, Mark G. Farrell, Gabriel J.

Ferber, Michael E. Ferdman, Robert P. Fine, Peter J.

Fiorella, Jr., Brian P. Fitzgerald, Lawrence C. Franco, Bernard B.

Freedman, Brenda M. Freedman, Jeffrey M. Freedman, Maryann Saccomando Freedman, Robert Friedman, John J.

Fromen. When I came to Buffalo in 1999, he was among the first immigration attorneys I met and was especially supportive of the work I was setting out to do at the Volunteer lawyers Project. He mentored me, accepted several pro bono cases I referred to him, and received our first Immigration Pro Bono Award in 2000. It was with shock and extreme sadness that I and his colleagues in the field observed his health deteriorate. Reading the article written by Mark Kenmore’s wife, Sue Tannehill entitled “love, loss and the Bar Foundation” (december 2015) brought back many memories.

As a fellow immigration lawyer, I knew Mark well. He was an extraordinarily generous and intelligent man. Thomas J. Gaffney, William H.

Gardner, Lynn D. Gates, Eugene M. Gaughan, Stuart A. Gellman, Jerome C.

Gorski, Wayne R. Gradl, Hon. Samuel L. Green, John C.

Grennell, Richard F. Griffin, John J. Gruber, Mark W.

Hamberger, Thomas J. Hanifin, James P. Harrington, Mary Louise Hayden, Herbert J.

Heimerl, Jr., William R. Hites, Susan S. Hogan, Edwin P. Hunter, Norman E.

Joslin, James B. Kane, Jr., Judith D. Katzenelson, James J.

Kirisits, William J. Kita, Dan D. Kohane, Karl W.

Kristoff, Thomas E. Krug. Carl P. Paladino, Frank R.

Papa, Thomas C. Pares, Anthony D. Parone, James A. Partacz, Robert E.

Pearman, Hon. Erin M. Peradotto, Robert H. Perk, Jeffrey A.

Perla, Michael F. Perley, Arcangelo J. Petricca, Joel M.

Poch, Theodore J. Pyrak, James P. Renda, Mary (Molly) K. Roach, Jay N.

Rosenthal, Richard P. Rosso, Arthur J. Rumizen, Arthur A.

Russ, Jr., Thomas Santa Lucia, Scott M. Schwartz, Edward J. Schwendler, Jr., Richard B. Scott, Richard J. Sherwood, Louis H.

Siegel, Myron M. Siegel, Robert G. Sillars, Richard Charles Slisz, Robert B.

Sommerstein, Gregory Stamm, Robert S. Stephenson, Milton J. Strebel, David L.

Sweet, Kathleen M. Sweet. Gordon D. Tresch, Thomas V. Troy, Frederick D.

Turner, Dimitri J. Tzetzo, Peter A. Vinolus, Dale M. Volker, Matthew X.

Wagner, Jr., John B. Walsh, Neil Weinberg, Wayne D. Wisbaum, Richard D.

Yellen. — Sophie Feal Supervising Immigration Attorney Volunteer lawyers Project “Year’s end is neither an end nor a beginning but a going on, with all the wisdom that experience can instill in us.” Stephen R. Lamantia, John P. Lane, Richard J.

Lehner, John N. Lipsitz, Arthur A. Lorenzo, Frank LoTempio III, Leo M. Lynett, Jr. James L.

Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Giles P. Manias, Mary Dee Martoche, Salvatore R.

Martoche, Norman J. Mattar, Hon. Jeremiah J. McCarthy, Maureen A.

McCready, Thomas I. McElvein, Jr., Donald G. McGrath, Diane J.

McMahon, Brian M. Melber, Raymond T. Miles III, Joseph D. Mintz, Albert J.

Mogavero, Peter J. Murrett, Jr., Joseph M. Nasca, Paul T.

Nesper, Paula M. Eade Newcomb, Anthony M. Nosek, Hon.

Henry Jos. Nowak, James J. O’Brien, Robert L. O’Connell, Hon.

John F. O’Donnell, Timothy M. O’Mara. I am also quite proud to be a member of a Bar Association that funds the Bar Foundation. The article made clear how Sue and her wonderful children benefited from its generosity.

I hope that all members of our  bar will donate to the Foundation generously in remembrance of Mark and other attorneys who have suffered a tragic and unforeseeable event in their lives. And to those of you who volunteer your services to the Foundation, I extend my warmest appreciation for helping the family of a friend. – HAl BORlANd LETTERS TO THE EDITOR ...and short articles of general interest to our readers are always welcome. All materials submitted for publication in the Bulletin are subject to editing for reasons of style, space and content. Send all submissions as Word documents to obrian57@comcast.net (preferred) or by mail to: Bulletin Editor, 438 Main Street, Sixth Floor, Buffalo, NY 14202. Deadline March 2016 Bulletin The next deadline for ALL Bulletin contributors and advertisers is Wednesday, February 5, 2016 Call Elise Rahner at Bar Headquarters for more information, 852-8687. .

Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 3 January 2016 | www.eriebar.org PAGE 3 Roemer Named Magistrate Judge bench and bar in the news SUNY at Buffalo and the University of Miami School of Law, Berkman has represented estate fiduciaries in general probate/administration and has contested issues such as accountings and probate. How to place an announcement: If you are a BAEC member in good standing and you’ve moved, been promoted, hired an associate, taken on a partner, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE presentations and political announcements are not accepted. In addition, we will not print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers, etc.). Notices must be submitted in writing and limited to 100 words.

They are printed at no cost to members and are subject to editing. Email your notice and high resolution photo (300 dpi) to obrian57@comcast.net. Harry G. Meyer was recognized by the United States Coast Guard for his service chairing the WNY Region Area Maritime Security Committee for 11 years.

Meyer was honored in a ceremony conducted on a Sector Buffalo vessel stationed at the Coast Guard base, where he was cited for his involvement in several Meyer major maritime events. He became involved with the Coast Guard while chairing Erie County’s Local Emergency Planning Committee (LEPC) for 12 years. During that time, the LEPC received a national award for having the best program out of 3500 in the country, pursuant to the Federal Emergency Planning and Community Right to Know Act.

Meyer is the only person to have chaired a maritime security committee without being a current or former Coast Guard or Navy officer. Berkman Lucy M. Berkman and Jeffrey J. Tyrpak and have joined Lipsitz Green Scime Cambria as associates in the firm’s estates, wills and trusts department. Berkman is focusing her practice on wills and estate planning. She is experienced in guardianships, trusts, and Medicaid planning and applications.

A graduate of Tyrpak’s practice is focused on estate planning and he is experienced in probate, Medicaid planning, and guardianTyrpak ships. He has engaged in ERISA litigation and transactional work, representing benefit plans in federal litigation against employers and in audits by the U.S. Department of Labor. A graduate of Fordham University, Tyrpak received his J.D.

cum laude from SUNY at Buffalo Law School. Charles H. Cobb has been named to the board of directors of HOME (Housing Opportunities Made Equal). A graduate of Syracuse University, Cobb earned his J.D.

from SUNY Buffalo Law School. He formerly served as executive director of the Western New York Peace Center. Cobb is also a founding member Cobb of the Clean Air Coalition of Western New York and served as the organization’s first board chair.

He is also active with the Coalition for Economic Justice. Friedman Cross Roemer Michael J. Roemer, federal court clerk for the past six years, has begun serving as a magistrate judge for the Western district of New York, filling the seat previously held by Hon. Hugh B.

Scott. Roemer was unanimously selected by a panel of district judges in Buffalo and Rochester. Scott is now semi-retired and handling a reduced caseload. A graduate of the U.S. Military Academy at West Point, Roemer is a magna cum laude graduate of Cornell law School.

He began his legal career at Jones, day, Reavis and Pogue in Cleveland before spending 17 years as law clerk to U.S. district Judge Richard J. Arcara.

In his most recent position as clerk of the court and chief administrative officer for the U.S district Court, Roemer was responsible for managing two courthouses and a multi-million dollar budget. In announcing the appointment, Chief U.S. district Judge Frank P. Geraci Jr.

said that Roemer was selected for his “ability to analyze, as well as communicate, complex legal issues.” He is also credited with playing an instrumental role in getting Buffalo’s $137 million federal courthouse funded and built. Roemer’s term will expire in August of 2023. [B] Scott E. Friedman has been named chairman and CEO of Lippes Mathias Wexler Friedman and Kevin J. Cross has succeeded him as managing partner. Friedman is a partner and member of the firm’s executive committee.

He received his J.D. from Washington University School of Law and his LLM from the University of Pennsylvania Law School. He serves on several community boards, including the Roswell Park Alliance Foundation and The Law Enforcement Foundation of WNY. Cross is a partner, member of the executive committee and former chair of the firm’s litigation practice group. He concentrates his practice in state and federal business litigation, as well as environmental matters, and provides legal councontinued on page 20 The need may be based on medical problems, job loss, emotional difficulties, family crises or many other situations. No person or problem is categorically excluded. If you need assistance – or know a friend or colleague who does – please call Kathie Bifaro at 852-1777. All services are individualized and completely confidential. LAWYERS HELPING LAWYERS… A confidential channel of communication for members of the bench and bar struggling with substance abuse. The New Year is the perfect time for a fresh start. Call 852-1777 to learn more. It’s great to belong to something this good. .

Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 4 January 2016 | www.eriebar.org PAGE 4 Law Day and Annual Dinner Award Nominations Sought The Bar Association is now accepting nominations for this year’s law day and Annual dinner awards. LAW DAY AWARDS Our annual law day luncheon and awards ceremony marks the culmination of months of lawrelated educational activities, including the high school Mock Trial Tournament. In addition, members of our Speakers Bureau have been educating the public about the justice system in schools and community organizations. Our long-standing law day tradition involves honoring local attorneys and non-attorneys who have distinguished themselves in service to the law and the ideals of the Constitution. The Bar Association presents several awards on law day, including the: Liberty Bell Award Special Service Award Police Officer Award Justice Award 2016 Judicial Welcoming Ceremony The following members of the judiciary will be welcomed: United States District Court Western District of New York Hon. lawrence J.

Vilardo Hon. Michael J. Roemer New York State Court of Claims Hon.

J. david Sampson New York State Court of Claims/Acting Supreme Hon. Mark J.

Grisanti New York State Supreme Court Hon. Emilio l. Colaiacovo Hon.

Frank A. Sedita, III Erie County Court Hon. James F.

Bargnesi Hon. Sheila A. diTullio Erie County Family Court Hon.

Brenda M. Freedman Buffalo City Court Hon. JaHarr S.

Pridgen How to Nominate a Candidate for a Law Day Award Nomination forms for candidates for all the law day Awards are available at www.eriebar.org. Completed forms should be forwarded to daniel J. Marren, Awards Committee Chair, at the Bar Association office. The deadline for receipt of nominations is January 1, 2016. Each year at the Annual dinner, the BAEC recognizes lawyers and judges who have made outstanding contributions to the Association, the legal community and the profession. Outstanding Jurist Award Charles H. Dougherty Civility Award Special Service Award Award of Merit How to Nominate a Candidate for an Annual Dinner Award Nomination forms for candidates for all Annual dinner Awards are available at www.eriebar.org. Completed forms should be forwarded to daniel J. Marren, Awards Committee Chair, at the Bar Association office.

The deadline for receipt of nominations is February 5, 2016. For further details and award criteria visit www.eriebar.org. [B] blinded those who carry out these attacks. I can’t imagine what I could say to the people who commit these inhumane acts that would cause them to reflect, reconsider, and cease their senseless actions. My second question is just as troubling to me. How can some of my fellow citizens, blessed with the rights and freedoms we enjoy in this country, be so selfish as to deny those same rights and freedoms to those immigrants who are seeking the safety of our shores? Are we really so frightened of these fleeing fellow sisters and brothers of ours, as to advocate that we turn them away in their hour of need? If we are afraid of them, what have these men, women, and children done to have put us in such a state? Nothing.

They seek our help, our understanding, our compassion, and our love. Where would we be today if our forefathers were too afraid to rise up and seek their own freedom back in 1776? Where would be today if we had ignored those who needed our help during World War I and World War II? I can only imagine how frightened those soldiers were as those boats approached the beaches at Normandy. We are so very fortunate that they didn’t say “let’s turn around and go back home – let the Third Reich control Europe. We don’t have to worry.

They can’t get to us. We have a vast ocean to protect us.” We’re fortunate that they didn’t say “We don’t have to worry about the Pacific battlefields. The ocean will protect us from those aggressors as well.” They didn’t say “Too bad for those folks who are going to be subject to the tyranny of those despots.” We as a nation didn’t turn our backs on others at that time, and I pray we won’t at this time. I look at those images of the immigrants, and I see engineers, teachers, scientists, mechanics, builders, entrepreneurs, people who will only enhance our lives, our children’s lives, and the lives of our grandchildren.

As I look at that mass of humanity trudging forward, away from their homeland, driven out – I envision that person in the crowd who will find a cure for an incurable disease. I envision that Nobel Peace Prize winner. I envision that person who will be my next-door neighbor and friend. ANNUAL DINNER AWARDS Lawyer of the Year Award continued from page 1 continued from page 1 Media Award Winners are selected by nominations sent from the membership to the Awards Committee.

The board of directors reviews the recommendations of the Awards Committee and makes the final determinations. Please consider submitting your nomination(s) for the following awards: President’s Letter As a nation, we made a mistake when we interned American citizens of Japanese descent. Will we not make a similar mistake if we turn our backs to these people so in need? I don’t know what additional tragedies will befall us and them between the time I write this and when you read it. But I am confident that as lawyers, we will do all we can to help those less fortunate than ourselves. Become a Contributing Member! The BAEC bylaws confer “contributing member” status on any member who resides or maintains an office in Erie County and elects to pay an additional $50 in annual dues to help support Association programs. Contributing members have the same rights and privileges as regular members and “such additional rights and privileges as the board of directors shall bestow,” including special recognition in the Bulletin, annual dinner program and other publications. I know that in this holiday season just past, we lawyers spent many hours gathering gifts, food, and clothing for those in our community in need of those items.

I suggest that these displaced citizens need from us the same commitment that we just showed to our fellow western New Yorkers. I started my letter with a wish for all of you for peace, joy, and prosperity. I close with that very same wish for all of those people who find themselves waiting to be welcomed in by their fellow citizens of the world. [B] . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 5 January 2016 | www.eriebar.org PAGE 5 Connors to Receive Jaeckle Award Buffalo attorney Terrence M. Connors, a founding member of Connors and Vilardo, has been chosen to receive SUNY Buffalo law School’s highest honor, the Edwin F. Jaeckle Award. A 1971 graduate of the law School, Connors will receive the award on Jan. 29 in Manhattan during the week of the NYSBA meeting. The award is given annually to “an individual who has distinguished himself or herself and has made significant contributions to the law School and the legal profession.” As part of the school’s annual New York Alumni luncheon, the presentation will take place at the Union league Club, 38 E. 37th St. Connors Lawyers Helping Lawyers I Hated the World Just a few years ago, unless I was drinking, I hated myself and everything around me.

Today, I don’t drink and like who I am and what is around me. Here’s my story. Although I grew up with enough food, clothes, shelter, friends and family support, I always felt alone and different. That was until I discovered alcohol. After taking my first drink, I was like everyone else, able to do whatever I wanted. By the time I reached my 20s, alcohol had become my constant companion.

Before, during, and after most of my activities, I drank. It was not an option. It enabled me to escape from fear and worry. By my 30s, although constantly drinking, I was doing pretty well.

I made it through high school, college, law school and passed the bar. In a short time, I got a job, met my wife and had a couple of kids. It seemed all was going my way.

But through it all, I drank to feel comfortable. Increasing episodes of yelling, arguing, fighting, and ultimate self-loathing ensued. Abusive behavior became the norm for me. While blaming the world for all my problems, I could not stand me.

Anyone in my path suffered. In my early 40s, no one intentionally remained in my path too long. I was usually drunk. At work or at home, no one could predict when I’d either say or do something unacceptable.

I had lost all my friends and was close to losing my family and job. That was then. My life has changed dramatically. What happened? While eating dinner alone and having a few too many, I started talking to a guy sitting next to me.

What I said, or how I spoke, is a mystery to me. I remember what the guy said to me. He asked, “do you want to stop drinking?” He added, continued on page 6 Defense Trial Lawyers Elect Officers The defense Trial lawyers of Western New York elected the following officers and directors at its annual meeting in december: President – Elizabeth M.

Midgley Vice President – Nicole B. Palmerton Connors, founding member of the Buffalo firm Connors and Vilardo, (now Connors llP), has been active with the law School in many ways, including teaching aspects of trial technique. He is a major supporter of the school’s newly formed Advocacy Institute – which encompasses three key areas of legal training: trial advocacy, appellate advocacy and alternative dispute resolution – and the institute’s advisory board.

Additionally, Connors has served on the dean’s Advisory Council, which consults with the law School dean on curricular and other matters. Connors is a fellow of the American College of Trial lawyers, whose membership is limited to one percent of the lawyers in each state, and of the International Academy of Trial lawyers, whose membership comprises just 500 trial lawyers in the United States. His previous recognitions include the BAEC’s lawyer of the Year Award, the New York State Bar Association’s Attorney Professionalism Award, and most recently the Charles F. Crimi Memorial Award from the Criminal Justice Section of the state Bar Association.

The SUNY Buffalo law Alumni Association also has honored him with the distinguished Alumnus Award. [B] Loewenguth Named to Federal Court Post Treasurer – Thomas P. Kawalec Mary C. loewenguth, executive director of the 2,000-member Monroe County Bar Association, has been named clerk of the federal court for the Western district of New York.

She succeeds Michael C. Roemer, who has begun serving as a magistrate judge (see page 3). Secretary – Michelle Parker directors – Elise l. Cassar John P.

Gaughan Erin E. Molisani Immediate past president Vicky-Marie J. Brunette will remain on the board for a one-year emeritus term. Sheldon K.

Smith and emeritus/past president Kelly Phillips were honored at the meeting as their terms on the board came to a close. Board members serve three-year terms. Kevin M. O’Neill and Melissa l. Vincton will complete the last year of two vacant board seats.

For further information about the group, contact any officer or director. loewenguth assumes her new position on January 4. She will be responsible for the management and operations of the federal courthouses in Buffalo and Rochester. A graduate of St.

John Fisher College, loewenguth has served as executive director of the Monroe County Bar since 2001. In that capacity, she has overseen a $1 million annual budget and worked with two governing boards. loewenguth is also credited for her role in developing Rochester’s Telesca Center for Justice, which unites the city’s civil legal service providers for the disadvantaged under a single roof.

  [B] Loewenguth . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 6 January 2016 | www.eriebar.org PAGE 6 citations By Jeff Spencer An Arbor Arbitration The neighbors had a boundary Encumbered by beautiful trees Giving both much shade And shielding a winter breeze. Petitioners ordered tree removal Without their neighbor’s approval So the neighbor went to court To resolve this arbor tort. The parties went to arbitration To get a determination fast And perhaps resolve the suit With the payment of a little cash. When triple damages were awarded Petitioners were aghast Never expecting This large financial blast. The award was challenged In Court Supreme Claiming the determination Was entirely off beam. “Not so,” said the Judge “By law we cannot budge.” At your neighbor you may chose to glower But the award was well within the arbitrator’s powers. In the Mtr. Of the Arb. Between Svenson and Swegan et al., _Ad3rd_, 4th dept., 11/20/15 #935 (affirming deceision of Justice deborah Chimes) Lawyers Helping Lawyers I Hated the World continued from page 5 “I’ve seen you before. I’m a lawyer too.

I used to drink.” After that, I only know that when I came to the next day, two phone numbers were in my pocket. One was for lawyers Helping lawyers, the other for Alcoholics Anonymous. Many times people told me that I drank too much and that I’d better stop before losing everything. But I never listened. Yet rather than make a demand, when another lawyer asked me a question and told me about himself, giving me phone numbers to obtain information – well, that finally moved me. I was able to admit that I had a drinking problem.

It was the root of all my other problems. I called lawyers Helping lawyers. Anonymously, they helped me learn what steps to take so I could live comfortably without alcohol. Now, in my late 40s, I have a comfortable personal and professional life.

My life today is filled with fun, laughter, and success. When I have a problem, I no longer have to drink to deal with it. [B] Editor’s note: If you or a colleague are struggling with substance abuse, help is readily available. Call 852-1777 for completely confidential assistance. “You and the Law” Educates Public on Legal Issues We appreciate the time that the following members of our legal community have taken to educate the public about legal matters by volunteering their time to appear on You and the Law.

The program airs every Friday at 5:45 p.m. during NPR’s “All Things Considered.” Hon. Barbara Howe What’s New in Surrogate’s Court Laurie Menzies Why you need to talk with your parents about their plans for aging…(while you’re together for the holidays!) Howard B.

Cohen Personal Injury Claims: How and When to Hire a Lawyer You and the Law is underwritten by the Erie County Bar Foundation and the Lawyer Referral and Information Service of the BAEC. If you would like to appear as a guest on the program, please contact Celeste Walsh at call 852-8687 ext. 118 or by email at cwalsh@eriebar.org. Special Thanks to Our Attorney Arbitrators! On behalf of the board of directors and staff of the Bar Association, we extend our deepest appreciation to the attorneys who volunteered their expertise to arbitrate fee disputes during 2015.

The dispute resolution program is a valuable public service. And it simply could not be operated without the generous contributions of time and talent given by these dedicated volunteers. (Names are listed chronologically according to hearing dates.) Special thanks to all who participated! Bruce Kevin Koren Jeffrey C.

Mannillo F. Gerard Hogan Salvatore T. Sanfilippo Susan S.

Hogan Timothy M. O’Mara Sharon Nosenchuck david B. Smith Eileen Katz lynn Murphy Kristin langdon Arcuri Randolph C.

Oppenheimer Gary M. Kanaley James M. Shaw Paul d.

Pearson Scott A. Bylewski Thomas R. Cassano Bridget M.

O’Connell Christopher S. Mattingly Edward J. Snyder Ayoka A.

Tucker Joseph A. Matteliano E. Michael Semple Courtland R.

laVallee Scott M. Schwartz Paul A. Vance Anthony C.

Mancinelli John C. Spitzmiller Jeffrey P. Markello Krista Gottlieb Steven Sugarman Catherine T.

Wettlaufer James P. Shea . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 7 January 2016 | www.eriebar.org cyberlaw: the brave new e-world By Anne F. Downey E-Signatures From time to time, attorneys ask me about the validity of e-signatures and electronic records. The issue involves both federal and state law. There are several New York cases dealing with e-signatures, including Prudential Ins. Co.

of Am. v. Dukoff, 647 F. Supp.2d 401 (E.d.N.Y.2009).

Prudential brought suit to void a life insurance policy on the life of Shari dukoff, who On the federal side, the Electronic Signatures in Global died of cancer. Plaintiff alleged that the online application and National Commerce Act (ESIGN), 15 U.S.C. 7001 et misrepresented Mrs.

dukoff’s health history. Mr. dukoff, seq, was e-signed into law by President Bill Clinton on June the surviving spouse, argued that the insurance contract pro30, 2000.

Section 7001(a) states that a “signature, contract or vided that only signed statements of fact may be held against other record relating to any transaction in or affecting interthe insured, and there was no physical signature. He cited an state or foreign commerce may not be denied legal effect, Opinion of the Superintendent of Insurance in which elecvalidity, or enforceability solely because it is in electronic tronic signatures were deemed acceptable form.” As to contracts, Section 7001(a) for New York insurance contracts only if states that contracts “may not be denied the insurance company verified the idenlegal effect, validity or enforceability tity of the person applying for insurance. solely because an electronic signature or “ The use of an electronic Prudential argued that the detailed identielectronic record was used in its formafying information listed in the online tion.” Thus, for transactions in interstate application – including Social Security signature shall have or foreign commerce, electronic signanumber and physical description of Mrs. tures and records are as good as paper dukoff – served as the necessary verificathe same validity equivalents. tion. The court refused to grant dukoff’s There are exceptions set forth in the motion for summary judgment because and effect as the ESIGN Act, including wills, codicils, there was a triable issue of fact whether trusts, adoption or divorce papers, notices the detailed identifying information in the use of a signature terminating utility services or health or online application was sufficient under the life insurance benefits, default notices Insurance department’s Opinion to verify under mortgages on a primary residence, affixed by hand.” the identity of the applicant. and product recall notices.

The Act also A 2013 decision of the Appellate excludes electronic records if they are not division, Second department, examined in a form capable of being retained and what constitutes an e-signature under accurately reproduced for later reference. New York law. In Forcelli v. Gelco, 109 Consumer consent to electronic records is required in A.d.

3d 244 (2d dept. 2013), the communication in quessome circumstances, including certain banking notices. The tion was an email from an insurance claims adjuster, Brenda Federal Reserve Bank in Minneapolis reported in 2014 that Greene, who summarized the terms the parties had agreed its “examiners continue to identify violations involving elecupon to settle a car accident claim.

The email stated that Mr. tronic delivery of disclosures during consumer compliance Forcelli, whose car was struck by Gelco Corporation’s vehiexaminations...Banks’ reliance on the electronic version of a cle, would be paid $230,000 in exchange for a release. The disclosure related to a loan, deposit account or banking servemail concluded with “Thanks, Brenda Greene.” Gelco’s ice triggers the requirements of the ESIGN Act. Put simply, counsel thereafter tried to reject the settlement and argued banks must ensure that they meet requirements of the that there was no signed settlement agreement, but the court ESIGN Act as they eliminate paper disclosures.” ruled that the email “signature” was sufficient to create a binding agreement. Where consumer consent is required under the ESIGN Act, the consumer must – prior to consent – receive a clear and conspicuous notice of the right to have records made available by paper and the right to withdraw consent to electronic records.

But note that the consent requirement applies only to electronic records provided to consumers, not electronic records obtained from them. Also note that consumer consent is required only with respect to electronic records that are used to satisfy a legal requirement that information be provided or made available to a consumer in writing. No consent is required before providing consumers with electronic information that is not required. Other than the rules for consumer transactions, the Act does not affirmatively require that there be any agreement to use or accept electronic records or signatures in order for them to be valid and effective.

A party’s use of e-signatures or e-records, or behavior consistent with acceptance, should be sufficient to evidence that party’s willingness and to make applicable ESIGN’s provisions. The ESIGN Act does not mandate the use of any specific technology for e-signatures. Rather, the Act simply defines an e-signature as any “electronic sound, symbol or process attached to or logically associated with a contract or other record executed or adopted by a person with intent to sign the record and be legally bound.” Under the ESIGN Act, federal agencies may interpret how e-signatures will work in the industries that they regulate. For example, FdIC regulations require an e-signature to appear in “typed form.” The federal Act does not fully preempt state law.

If a state has enacted the Uniform Electronic Transactions Act (UETA), that law applies unless inconsistent with ESIGN. New York is one of the few states that has not enacted UETA. New York’s statutory provisions on electronic signatures and records are found in the Electronic Signatures and Records Act (ESRA), in Article Three of the State Technology law. ESRA, which became effective in August 1999, is largely consistent with the ESIGN Act. It provides that “the use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.” The validity of an e-signature can be challenged in litigation, just as the validity of a traditional signature can.

In some cases, the validity of an e-signature may be easier to prove if there is an electronic trail of emails and other online activity that confirms the transaction. The court stated “[E]mail messages cannot be signed in the traditional sense. Nevertheless, this lack of ‘subscription’ in the form of a handwritten signature has not prevented other courts from concluding that an email message, which is otherwise valid as a stipulation between parties, can be enforced pursuant to CPlR 2104. In the case of Williamson v.

Delsener (59 Ad3d 291, 291 [2009]), the Appellate PAGE 7 division, First department, stated that ‘e-mails exchanged between counsel, which contained their printed names at the end, constitute signed writings (CPlR 2104) within the meaning of the statute of frauds.’ In the case of Brighton Inv., Ltd. v. Har-Zvi (88 Ad3d 1220, 1222 [2011]), the Appellate division, Third department, stated that ‘an exchange of emails may constitute an enforceable contract, even if a party subsequently fails to sign implementing documents, when the communications are sufficiently clear and concrete to establish such an intent’ (internal quotation marks omitted).

Moreover, given the now widespread use of email as a form of written communication in both personal and business affairs, it would be unreasonable to conclude that email messages are incapable of conforming to the criteria of CPlR 2104 simply because they cannot be physically signed in a traditional fashion (see Newmark & Co. Real Estate Inc. v 2615 E.

17 St. Realty llC, 80 Ad3d 476, 477-478 [2011] [‘email agreement set forth all relevant terms of the agreement…and thus, constituted a meeting of the minds’]).” Thus, under U.S. federal law and New York law, e-signatures and electronic records are generally recognized and enforceable. [B] It’s a Brave New E-world… …and your favorite Bar Association is now available on your favorite social networking sites! In addition to our website, www.eriebar.org, news, information and updates can now be found on Facebook, Twitter and linkedIn. As part of our ongoing effort to communicate timely information to our members, you will also receive e-newsletters from us about upcoming ClE programs, career opportunities and news items that come to our attention between issues of the Bulletin.

If for any reason, you have not been receiving these materials or choose not to receive them, please contact the BAEC at 852-8687. As always, your comments, questions and suggestions are invited. . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 8 January 2016 | www.eriebar.org PAGE 8 News from Kent, Our Sister City By Jonathan Smithers Another column written on a plane. This time returning from an International Bar Association conference in Zambia. But more of that later! When I last wrote, I was just about to leave for Sydney, Australia for the law Asia conference. From london, it is about 23 hours flying time with a couple of hours layover in Hong Kong, plus they are 11 hours ahead. I have met many people who have done the journey and will now be more appreciative of what real jet lag feels like.

They say it takes a week to catch up but I was only there for five days so was just about getting there when it was time to come home.  The international work is extremely interesting and quite a different perspective to that at home. Sometimes our domestic problems need to be viewed in a different light so my challenge is explaining that to our members. No one said it was easy!  A happy New Year from me to all the staff and members of the Bar Association of Erie County!  The conference was a great success.

An opportunity to meet bar leaders from Sri lanka, Vietnam, laos, Cambodia, India, Singapore, Malaysia, Hong Kong, China…the list goes on. We have members working in some of those jurisdictions and have been collaborating with others to open up their legal markets. Inward trade and investment in emerging economies can be stifled if the investors cannot use the lawyers they trust so restrictive practices, whilst understandable, can be counterintuitive and may actually end up damaging the economy.  I led a panel talking about the UN guiding principles on business and human rights.

Some of the jurisdictions have very real rule of law issues so keeping this on the agenda is a hard sell but nonetheless necessary.  I managed a little sightseeing although the weather was a trifle inclement. We were treated to a boat trip around Sydney Harbor. Apparently, sharks are spotted in those waters but I reckoned we would be safe, as the old joke goes a shark won’t attack a lawyer out of professional courtesy!  Back to london for a couple of days, which included an invitation to a reception to mark the visit of the Indian Prime Minister Narendra Modi.

India is one of our largest trading partners but with a population of 1.25 billion, there is scope for so much more. Their markets (including legal) tend to be restricted but Prime Minister Modi has been pushing hard for liberalization with some success so a number of deals have been struck and of course we had to have an event to announce them, hence my invitation.  Then after a very quick trip home, which included an after dinner speech with the local law Society in my home town which happened to be that evening, I packed my bags again to find the real Africa! Zambia, a Commonwealth country with a common law jurisdiction, gained independence from the UK half a century ago. It has a relatively small and disbursed rural population of 12 million but a vibrant if small legal profession.

It is strategically placed, sharing borders with Zimbabwe, South Africa, Botswana and Angola. The IBA initiative is designed to provide a forum for these lawyers who have some different – but many similar – challenges, not unlike those I met in the Far East. For many, we are still viewed as the mother country so try to assist by providing advice and encouragement. My own session there was entitled “Excellence in Bar leadership” and it provoked some interesting discussion about the balance between advocating on members’ behalf and providing tools to assist in better business management.  Jonathan Smithers is pictured above with some native dancers in Zambia.

Below he is shown with Linda Kopena, vice president of the Law Association of Zambia. . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 9 January 2016 | www.eriebar.org PAGE 9 father. The wife filed a petition seeking letters of Administration, and seeking to invalidate a prenuptial agreement under which the wife waived her right to an intestate share of the decedent’s estate. The decedent’s father opposed the wife’s petition. death and taxes By Peter J. and Jillian E.

Brevorka Matter of Regina L.F., 2015 NY Slip Op 07359 (4th Dept., 2015) The standard form Health Care Proxy found in §2981 of the New York Public Health law does not contain any directions with regard to life-sustaining treatment. While the form encourages notifying the named agent about artificial nutrition and hydration, this case indicates that it would be preferable to set out those directions in the proxy. This is an appeal in a guardianship proceeding under Article 18 of the Mental Hygiene law. The order below included a provision directing that “comfort care shall always be provided [to the Alleged Incapacitated Person], and shall always include food and hydration, whether orally or artificially, including comatose conditions.” When she was age 66 and competent, the Alleged Incapacitated Person had executed a Health Care Proxy which provided that “[i]f I should have an incurable or irreversible condition that is likely to cause my death within a relatively short time,…no artificial administered nourishment or liquids shall be furnished to me unless necessary for my comfort or to alleviate pain.” The proxy further stated that, should she be in a state of permanent unconsciousness or profound dementia, all nourishment or liquids not necessary for her comfort or to alleviate pain “are to be withheld or withdrawn.” The Appellate division reversed the order below insofar as it contained the direction requiring the provision of food and hydration.

The Fourth department noted that a competent adult generally has the right to make health care decisions, including the right to refuse life-sustaining treatment, and that this right must be respected even when the person later becomes incompetent. The Appellate division noted that the Court of Appeals in Matter of Westchester County Med. Ctr. [OConnor] 72 NY2d 528 determined that “clear and convincing evidence” of a person’s pre-incompetency desire to refuse life-sustaining treatment is required, and further that a formal writing would satisfy that standard. In the case at hand, the Alleged Incapacitated Person had executed a health care proxy which contained the directions mentioned above.

This, held the Fourth department, constituted a clear and unambiguous expression of her wishes, and could not be overridden by the court below. Matter of Estate of Petti, 2015 NY Slip Op. 08286 (4th Dept., 2015) decedent died in 1996. He left a will directing that whatever was due him from his father’s estate be held in trust for his then six-year-old son until the son turned 21. The respondent was named executor of the decedent’s estate and a guardian of the person and property of the son. In 2000, the administrator of the estate of decedent’s father issued payments of approximately $17,000 to the executor of decedents estate. After attaining age 21, the decedent’s son brought a proceeding to compel the executor of the decedent’s estate to account.

The Surrogate dismissed the proceeding based upon a release which the son had previously executed. In 2009, when the son was 19, he signed a release providing that, in consideration of $5,000 received from respondent and his wife, in which the son released them “from all actions….whatsoever.” The release further provided that it was “more particularly in connection with a certain guardianship of the person and property of [the son] made in…Surrogate’s Court…and the discharge of said Releasee(s) by Releasor for any and all accounting of all funds received by said Releasee(s) during said guardianship which were previously given or spent on [the son]…for his care and custody through his years of minority while residing with Releasee(s).” The Appellate division unanimously reversed the Surrogate, and remanded for further proceedings. The Fourth department held that the release applied only to respondent and his wife in their roles as guardians, and did not foreclose the son from maintaining an action against respondent in his role as executor of decedent’s estate. Matter of Estate of Fizzinoglia, N.Y. Court of Appeals (2015) This case involves the validity of a prenuptial agreement which lacked financial disclosure.

While financial disclosure in a prenuptial agreement is not required in New York (see EPTl 5-1.1-A), the case indicates that such disclosure, or an affirmative waiver of such disclosure, might avoid unnecessary litigation. The decedent died intestate, survived by his wife and his 6921 Route 242 • Ellicottville, New York $65 per person includes Lift Ticket and Après Ski Party Slopes open at 9:30 a.m. • Après Ski Party from 4 – 6 p.m. Après Ski Party includes beer, wine and hors d'oeuvres Reservation Form Bar Association of Erie County’s Ski Day | Friday, February 19, 2016 | $65 Name: ______________________________________________________________________________ Please list additional skiers’ names on separate sheet of paper. Address: ____________________________________________________________________________ City/State/Zip: ________________________________________________________________________ Phone:_________________________________Email: ________________________________________ Number of skiers ______ @ $65 per person Total enclosed: $ ______________________________ Charge my reservation to: J Visa J MasterCard Card Number___________________________________________________Exp. Date ____________ Billing Address________________________________________________________________________ Name (as it appears on card) __________________________________________________________ Signature ____________________________________________________________________________ Please mail with payment by Friday, February 12, 2016 to: Bar Association of Erie County | 438 Main Street | Sixth Floor | Buffalo, New York 14202 Attn: Susan L.

Kohlbacher Upon her pre-trial deposition, the wife testified that she was aware when the agreement was signed that Exhibit A was blank, that she was not concerned by the omission, and that the decedent’s financial status made no difference to her before the marriage. The Surrogate granted summary judgment dismissing the wife’s petition at the close of her case. “Clear and convincing evidence of a person’s preincompetency desire to refuse life-sustaining treatment is required.” Friday, February 19, 2016 J Check enclosed The wife claimed that the prenuptial agreement was invalid and unenforceable because an essential term was omitted from the agreement, and that the agreement was procured by overreaching. Notably, an addendum attached to the agreement as Exhibit A, upon which the parties were supposed to list their assets and liabilities, had been left blank. On appeal, the Second department affirmed (118 A.d.3d 994), holding that the wife had failed to establish any factbased particularized inequality with the decedent so as to shift the burden to the decedent’s father to disprove fraud or overreaching. The Appellate division noted that while there is a heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties, an agreement between spouses may be invalidated if the party challenging the agreement demonstrates that it was the product of fraud, duress or other inequitable conduct. Since the wife continued to have the burden to prove fraud, duress or other inequitable conduct, and she had failed to do so, the Appellate division unanimously upheld the order of the Surrogate dismissing the wife’s petition. On appeal, the Court of Appeals noted the wife’s deposition testimony, and further noted that the record did not contain any indication that the decedent attempted to conceal or misrepresent the nature and extent of his finances. The Court agreed with the courts below that the wife had failed in her burden of proof, and that summary judgment dismissing her petition was appropriate. [B] .

Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 10 PAGE 10 January 2016 | www.eriebar.org DIRECTORY O F AT TO R N E YS A N D T H E C O U RT S Get your copy today by calling 852-8687. The 2016-17 directories will not be available until June. PUBLISHED BY THE BAR ASSOCIATION OF ERIE COUNTY E I G H T H J U D I C I A L D I S T R I C T New Member Discount on Flowers Our members can now enjoy discounts at 1800Flowers.com through our partnership with NPP (see ad below). Save 20% at both 1-800Flowers.com and 1800Baskets.com. discounts are also available on Fruit Bouquets, Cheryl’s, Fannie May, The Popcorn Factory, Wolferman’s, and Harry & david. If you haven’t already joined, call 800-8103909 or visit www.mynpp.com to learn more about this and other discounts available to our members. . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 11 January 2016 | www.eriebar.org PAGE 11 lost in (techno) space By Martha Buyer Wi-Fi Blocking: Don’t Tolerate It - and Certainly Don’t Do It or Condone It Can’t get your hotspot to work in a hotel or conference center? That’s a problem the FCC is interested in hearing about. Willful or malicious interference with Wi-Fi hot spots is illegal. Often known as “jamming,” such actions are illegal and perpetrators of these bad acts – regardless of purpose – will pay dearly. Period.

In early November, the FCC issued an enforcement advisory regarding two separate jamming problems where wi-fi interference in one instance not only occurred, but was achieved (a dubious distinction to be sure) beyond the property where the jam was intended. In the second case, the problem was – and continues to be – the perpetrator’s lack of response to FCC queries about jamming at its properties. The cases are different, but the take-away is the same.

don’t do it, and don’t let your company/ clients/friends do it. “Jamming,” in this context (as opposed to the musical one), is defined as the intentional creation of interference to disrupt a communications signal. (As an interesting side note, film actress Hedy lamarr, along with avant garde musician George Antheil, held the first patent granted in the United States for the most widely used type of anti-jamming processes currently in use – frequency hopping spread spectrum technology.) Perhaps recognizing the potential catastrophes interfering signals could cause, Section 333 of the Communications Act of 1934 (as amended) clearly prohibits “willful or malicious interference with any radio communications of any station licensed or authorized by or under the Act or operated by the United States Government.” Additionally, Section 302 of the Communications Act, along with Section 2.803(a) of the FCC’s rules clearly prohibits the “manufacture, importation, marketing, sale or operation of devices deliberately designed to jam or disrupt wireless communications.” (47 U.S.C. Section 302(a)(b)) and 47 C.F.R. Section 2.803(a).

So it’s illegal to sell jamming devices and illegal to use them. Period. In the first case, M.C. dean as the ostensibly exclusive provider of wi-fi services for the Baltimore Convention Center, was accused of blocking wi-fi within the Convention Center, effectively preventing others from establishing hot spots at conventions and trade shows held in the facility. M.C.

dean, a well-established electrical contractor, through its actions, tried to force guests and others at the Baltimore Convention Center to use its own wi-fi at a cost of $1,095 per event. Those who didn’t pay for access were denied access, plain and simple. Over several visits to the facility, FCC field agents were able to determine that, not only was the wi-fi within the facility blocked, but additionally, the blocking that was takcontinued on page 14 . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 12 PAGE 12 January 2016 | www.eriebar.org DIRECTORY O F AT TO R N E YS A N D T H E C O U RT S PUBLISHED BY THE BAR ASSOCIATION OF ERIE COUNTY E I G H T H J U D I C I A L D I S T R I C T We are now beginning work on the 2016-17 ATTORNEY DIRECTORY. IF YOU HAVE ANY CHANGES TO YOUR CURRENT LISTING, YOU MUST SUBMIT THEM NO LATER THAN MARCH 1. See page 5 of the current Directory for further details. BE GREEN — RECYCLE YOUR BULLETIN . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 13 January 2016 | www.eriebar.org PAGE 13 . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 14 PAGE 14 January 2016 | www.eriebar.org Lost in Space continued from page 11 ing place reached beyond the physical perimeter of the facility itself to include not only adjacent sidewalks but passing vehicles as well. As a result, the FCC charged M.C. dean with intentionally violating Section 333 of the Communications Act. The initial fine? $718,000. In the second recent case, the FCC has proposed a modest fine against Hilton Worldwide Holdings, Inc.

for what the FCC has called “apparent obstruction of an investigation into whether Hilton engaged in the blocking of consumers’ Wi-Fi devices.” What got Hilton in trouble (and the fun is just beginning) is its unwillingness to respond to an FCC letter of Inquiry regarding the hotel conglomerate’s practices with respect to alleged wi-fi blocking. Specifically, last November (2014), the FCC, following receipt of at least one consumer complaint, mailed a letter of inquiry to the company requesting copies of relevant corporate policies, as well as specific information regarding wi-fi management at Hilton properties throughout the United States. To date, Hilton has failed to provide “the requested information for the vast majority of its properties,” according to the FCC. The $25,000 fine is only the first shot across the hotel behemoth’s bow…absent a speedy response, the chain is in for much higher fines and penalties. Hilton’s lack of response may be a problem of untidy management – or ignorance or general disinterest – but it disregards the FCC’s rules at its peril.

last year, the FCC fined two Marriott entities (Marriott International, Inc. and Marriott Hotel Services, Inc.,) $600,000 for activities that took place at its Gaylord Opryland Hotel and Convention Center in Nashville. Earlier this year, the FCC fined Smart City Holdings – an entity that manages convention facilities – $750,000. Federal law provides for much steeper penalties.

These include up to $112,500 for any single act of jamming with an additional $16,000 per day for continuing violations. The government further has the right to seize the equipment, and the criminal penalties for using such equipment can include imprisonment. What drives these steep penalties is the incredible harm to the general public that can be caused when wi-fi signals cannot get through. This is really all about the ability of first responders (police, fire, ambulance, other) to communicate point to point if and when the need arises.

Whatever the reason for blocking inside convention centers and hotels, it’s most likely driven by the ability to generate revenue. But it’s simply not tolerable – practically or legally – when compared with the interests of public safety. [B] . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 15 January 2016 | www.eriebar.org PAGE 15 . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 16 PAGE 16 January 2016 | www.eriebar.org WORTH QUOTING “You must live in the present, launch yourself on every wave, find your eternity in each moment.” – Henry David Thoreau . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 17 January 2016 | www.eriebar.org PAGE 17 Annual Food Drive Effort to Focus on Monetary Donations Did you know that a donation of just $15 can feed a family of four for a week? Or that – contrary to popular belief – the hungry people in our community and across the nation are not just the homeless? They are often employed, or live in a household with someone who is. They are the working poor who struggle to provide the daily necessities that so many of us take for granted. For the past 26 years, the Bar Association of Erie County has expressed its commitment to helping the hungry in our community through its Have-AHeart food drive. Over the history of the drive, several tons of food and substantial financial support have been provided to the Food Bank of Western New York. This year’s drive has once again focused primarily on monetary contributions.

law firms that wish to collect nonperishable food items may also continue to do so and the Food Bank of Western New York will arrange to pick up the donated items. Please help the hungry in our community by sending in your donation today. Checks should be made payable to the Food Bank of Western New York and returned with the form at right by Valentine’s Day, February 14th. All donors will receive written confirmation of their contribution directly from the Food Bank. 2016 BAEC “Have A Heart” Food Drive Firm Name ______________________________________________________________ Contact Person __________________________________________________________ Address ________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ Phone Number __________________________________________________________ Fax Number______________________________________________________________ E-mail Address____________________________________________________________ Domestic Violence is NEVER Okay. Domestic abuse doesn’t discriminate.

It happens within all age ranges, ethnic backgrounds, and financial levels. If it happens once, it will happen again. The abuse may occur during a relationship, while a couple is breaking up, or after a relationship has ended. Despite what many people believe, domestic violence is not due to an abuser’s temporary loss of control over his or her behavior.

In fact, violence is a deliberate choice made by the abuser in order to take control of a spouse or partner. Look What You Made Me Do! In spite of the abuser’s efforts to “blame the victim,” domestic violence is NEVER your fault. If you or a loved one are suffering, help is just a phone call away. Don’t wait. Please call the 24-hour domestic violence hotline at 884–6002. Don’t Suffer in Silence. Let Us Help You Find Your Voice. Kindly complete and return this form to: Michael Billoni, Food Bank of Western New York 91 Holt Street • Buffalo, New York 14206 • Telephone No.

852-1305 . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 18 January 2016 | www.eriebar.org PAGE 18 in the public service By Gayle T. Murphy, Pro Bono Coordinator Volunteer Lawyers Project, Inc. (VLP) Champions for Justice Bash Benefits VLP, LSED The Eighth Annual Champions for Justice Bash was held just before Thanksgiving at the Hotel @ The lafayette. Over 300 access to justice supporters celebrated the important work of the staff and volunteers of legal Services for the Elderly, disabled and disadvantaged of WNY (lSEd) and the ECBA Volunteer lawyers Project, Inc.

(VlP). An awards reception, held immediately prior to the Bash, was hosted by BAEC President Kevin W. Spitler, who did an outstanding job as this year’s honorary chair. Spitler and Hon.

Paula l. Feroleto presented individual awards to law firm, attorney, law student and community member volunteers and supporters. While every volunteer and supporter of lSEd and VlP plays a critical role in assisting lSEd and VlP to achieve their missions, the honorees were recognized for their exemplary service and commitment.

Each award winner had a moving story highlighting their commitment to “speaking for those who are not heard.” Karen l. Nicolson, CEO of lSEd, affirms that “the attorneys of western New York have been so generous to legal Services for the Elderly, both in terms of their financial contributions and the hundreds of pro bono hours that they provide to our clients. We are thrilled to be able to honor them each year at the Champions for Justice Bash.” Everyone who attended the Bash would agree with Robert M.

Elardo, VlP’s Managing Attorney/CEO that “it was two terrific events on one night. First, at the awards reception there were so many inspiring stories about all of the dedicated award winners. Then at the Bash, it was just fun.

Great food, drink, and a chance to schmooze with no boring speeches.” Congratulations to all the award winners! To see the awards reception and Bash photo galleries, along with a list of our sponsors, visit the lSEd and VlP Facebook pages or websites at www.lsed.org and www.ecbavlp.com. [B] VLP Law Student Award Winner Rachel Baldassaro, BAEC President Kevin W. Spitler, Jason Fleischer and Hon. Paula L.

Feroleto Are You An Attorney Struggling With Depression? If so, you’re definitely not alone. A recent Johns Hopkins study of 108 occupations found that lawyers topped the list of those who suffered from depression. Attorneys were found to suffer from depression at a rate of four times that of the general population. Depression is a treatable illness and the right combination of medications and therapies can significantly improve the quality of life for those who suffer from it. Help and support are just a phone call away.

The Lawyers with Depression Support Group meets on a weekly basis to share stories and fellowship. The group meets every Friday (except holidays). See the calendar on page 28 for meeting dates, times and locations. If you or a colleague are struggling with depression, there is no need to suffer in silence.

For further information, visit www.lawyerswithdepression.com or contact Daniel T. Lukasik at 847-1010. All calls are strictly confidential.

We invite you to join us and share your story. St. Thomas More Guild Inc. An Organization for Lawyers in the Diocese of Buffalo, New York President Directors J. Michael Lennon II K.

John Bland Laurie Styka Bloom Craig R. Bucki Vice President James J. Contino Donna Hoelscher Cornelia Farley Suchan J.

Patrick Lennon Thomas E. Liptak John W. Looney Secretary Katherine M.

Liebner Daniel T. Lukasik Mara McCabe Michael L. McCabe Treasurer Hon.

Patricia A. Maxwell David C. Mineo Susan C.

Ministero John L. Sinatra, Jr. Mary L. Slisz Vincent J.

Sorrentino FOR FURTHER INFORMATION, contact J. Michael Lennon II at stmgwny@gmail.com or visit our website at www.stthomasmorewny.org. . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 19 January 2016 | www.eriebar.org PAGE 19 VLP award winners: From left, front row: Lydia H. Beebe, Hon. Paula L. Feroleto, Tracie L.

Lopardi, Joshua Feinstein, Marc Shatkin, Charles S. Carra, Thomas A. Steffan, Gregory Della Posta and Sarah E.

Fenster. From left, back row: Thomas J. Gaffney, President Spitler, Bradlee W.

Townsend, Daniel S. Johnston, Robert M. Elardo, Jason Fleischer and Robert B.

Heary. President Spitler, LSED Law Student Volunteer of the Year Justin Jones and Hon. Paula L. Feroleto From left, Hon. Sharon S.

Townsend, Bradlee W. Townsend and President Spitler Robert J. Lane, Kevin M.

Kearney, Robert B. Conklin, Adair Kearney, Susan Conklin and Joshua Feinstein . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 20 January 2016 | www.eriebar.org PAGE 20 Bench and Bar continued from page 3 Foundation Contributions to Benefit Profession sel to business and political organizations. Cross earned his J.D. from Villanova University Law School and is active with the Olmsted Center for Sight. He is also president of the board of directors of Link, Inc.

Service Coordination. Kristen Degnan has been promoted to partner at Brown & Kelly, LLP. Degnan is a trial attorney experienced in civil defense litigation in the areas of premises and automobile liability, lead paint, labor law, products liability, no fault and toxic torts. A magna cum laude graduate of Allegheny College, she earned her Degan J.D.

from Albany Law School. She is admitted to practice in the United States District Court, Western District of New York and the Western District of New York Bankruptcy Court. Paul Callahan has joined Brown & Kelly, LLP as a partner. His experience is in the analysis and litigation of complex insurance coverage issues and also the representation of insurance companies with respect to uninsured/underinsured motorists and no-fault claims, insureds with respect to various third-party matCallahan ters, and appellate practice.

A graduate of SUNY at Buffalo and its Law School, Callahan is admitted to practice in the courts of the State of New York and the United States District Court for the Western District of New York. He is a frequent lecturer and author on insurance and defense related matters. [B] Contributions to the Erie County Bar Foundation provide an excellent vehicle for recognizing and honoring members of our profession. Memorial gifts to the Foundation become a lasting tribute to the entire legal profession, as funds are used exclusively to assist attorneys and promote understanding of our legal system. The Foundation gratefully acknowledges the following contributions: In Honor of Mark Kenmore: Sharon Stern Gerstman In Memory of Carmen Tarantino: Brian J. Weidner In Honor of Emilio Colaiacovo on his new Supreme Court Judge Position: Paula & Terry Newcomb In Memory of Rosanne Gugino: Hon. John M.

Curran In Honor of David Sweet: Brian J. Weidner In Honor of Richard Blewett’s 90th Birthday: Bob Freedman & Maryann Saccomando Freedman In Honor of Hon. Kevin Dillon: Horace A.

Gioia In Honor of Edward C. Cosgrove: Robert J. Schreck In Memoriam In Honor of Brenda Freedman on her Election to Family Court: Paula & Terry Newcomb In Honor of Kathleen Sweet: Jennifer R.

Scharf In Honor of Cyrus Ardalan: James W. Smyton In Honor of Grace Marie Ange: Kathleen V. O’Brien In Honor of Hon.

Sheila A. DiTullio on her Re-Election as Erie County Court Judge: Paula & Terry Newcomb In Memory of the Proctors in Admiralty of the Old Admiralty Term in the USCD, WDNY: Fenton F. Harrison In Memory of Hon. Edgar C. NeMoyer: Kenneth A.

Manning In Memory of Jerrold Archer (Father of Amy Archer Flaherty): Jim & Mary Shea “If I am to wear this mourning cloak, let it be made of fabric of love, woven by the fine thread of memory” ~ Molly Fumia We wish to honor the memory of the following members of our Bar Association. Memorial gifts to the Erie County Bar Foundation are an excellent way to remember friends and colleagues, as gifts are used for the benefit of the entire profession. In Memory of Michael J. Rooth: Anna Marie Cellino In Memory of Gregory DeMarie: Anthony J.

DeMarie In Memory of Hon. Thomas P. Flaherty: Amy & Michael Flaherty In Memory of Richard Cox (Father of Jonathan D. Cox): Anthony M.

Nosek In Memory of Don I. Dally: Arnold H. Soeder Bar Association of Erie County In Memory of Kathy Moran Gilmour & Thomas Gilmour, Parents of John J.

Gilmour: Daniel M. Killelea In Memory of Prudence Philbin: David F. Davis Mark W.

Hamberger In Memory of Nathan S. Silverberg: David K. Silverberg In Memory of My Mother, Genevieve “Jane” Kullman: Paul W. Kullman In Memory of Mildred A.

Fiorella (Wife of Peter J. Fiorella, Jr., Mother of Peter J. Fiorella, III): Jim & Mary Shea John J.

Carney Kenneth A. Manning In Memory of John T. Frizzell: Hon.

Gerald & Nora Whalen In Memory of Hon. Frank A. Sedita, Jr.: Hon.

Joseph A. Fiorella In Memory of Hon. Matthew J. Jasen: Peter J.

Brevorka In Memory of George Rich: Michael G. Cooper Paula & Terry Newcomb In Memory of James N. Carlo: Raymond W.

Walter In Memory of Mike Ingham: Robert D. Lonski In Memory of George Navagh: Robert Farrington In Memory of Christine D. Uba: Patricia S.

Ciccarelli In Memory of My Father, Henry W. Jadd: Robert I. Jadd In Memory of Milton J. Strebel: Bar Association of Erie County Coleman Volgenau In Memory of Steven & Toni Gittler, Parents of Jean Gittler: Vincent Hauber & Jean Gittler In Memory of Francis B.

Pritchard: Deborah Kennedy-Rogoza In Memory of Michael J. Flaherty: Amy & Michael Flaherty In Memory of Frank R. Nicosia (Brother of Ralph A.

Nicosia): Dr. & Mrs. Dennis Ogiela James & Jan Ferrara Lou & Janice Siegel Melissa A.

Tocha In Memory of Bernard Freedman (Father of Jeffrey M. Freedman): Chris & Karen Kerr Kevin Wicka Norman J. Mattar In Memory of Salvatore F. Giallombardo: Hon.

Joseph A. Fiorella In Memory of Philip H. Magner, Jr.: Jay N.

Rosenthal In Memory of my son, Max Tillman Cohen: Michele A. Brown In Memory of Graham Wood Smith: Peter J. Brevorka In Memory of Catherine L. Haslinger: John E.

Haslinger In Memory of Betty Schmidt (Wife of Bruce Schmidt): Diane M. LaVallee In Memory of Hon. James H. Boomer: Amy & Michael Flaherty In Memory of Hon.

David J. Mahoney: Hon. Gerald & Nora Whalen In Memory of Phillip Thielman: William R. Crowe Milton J.

Strebel Michael T. Kelly In Honor of Charles Harrington: Christopher C. Willett In Memory of My Father, Edward J. Dee: Julie Ann Dee In Memory of Marvin Baum: Franklin W.

Heller . Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 21 January 2016 | www.eriebar.org PAGE 21 western district case notes By Sean McPhee and Kevin M. Hogan CIVIL PROCEDURE PREJUDGMENT INTEREST In Medgraph, Inc. v. Medtronic, Inc., No.

09-CV-6610l In CSX Transp., Inc. v. Niagara Lubricant Co., Inc., No. (October 26, 2015), plaintiff filed a motion for an “indicative 12-CV-00540 EAW (Nov.

10, 2015), plaintiff brought an ruling” pursuant to Rule 62.1 after summary judgment was action to recover for property damage caused by a fire at a granted to defendant dismissing plaintiff’s patent infringefacility operated by defendant. Prior to trial, the parties ment claims, from which plaintiff already had filed a notice entered into a stipulation regarding defendant’s liability and of appeal to the Court of Appeals for the Federal Circuit. agreed that the court would resolve any dispute concerning Following that summary judgment decision, an en banc prejudgment interest. After the jury awarded damages in panel of the Federal Circuit reversed a prior decision that the favor of plaintiff, the parties disagreed about the date from Medgraph court had relied on when granting summary judgwhich prejudgment interest should accrue and submitted ment.

In its motion for an indicative rulbriefing to the court outlining their respective ing, plaintiff sought a declaration positions. whether, in light of the change in case Noting first that state law applies to queslaw, the court would vacate its prior sum“...defendants had tions of prejudgment interest in diversity mary judgment decision and reopen the cases, the court then examined CPlR 5001, control over the case for further proceedings on the issue which directs that prejudgment interest shall evidence, were of the alleged infringement, if the case be computed from the earliest ascertainable was remanded on appeal. under an obligation date the cause of action existed, except that The court denied the motion on two interest upon damages incurred thereafter to preserve it, grounds, ruling first that a motion for an shall be computed from the date incurred. and were at least indicative ruling requires an underlying Ultimately, the court awarded plaintiff prenegligent in and timely motion for relief that the trial judgment interest from the specific dates on court lacks authority to grant because of which its damages were incurred and rejected failing to do so.” a pending appeal. In this case, no such defendant’s argument that plaintiff’s failure to timely motion (such as Rule 60(b) motion) had been made. The court also ruled that an indicative ruling was not warranted in any event, in the absence of newly discovered evidence or some inadvertence or mistake of law, because the issues here centered on the effect of a recent Federal Circuit decision and the appellate court did not need the court’s advice or opinion in that regard. EVIDENCE In Wilson v.

Hauck, et al., No. 00-CV-6458EAW (October 28, 2015), plaintiff sought relief under 42 U.S.C. § 1983, alleging violations of the Fourth and Eighth Amendments due to the alleged use of excessive force or failure to protect him from that excessive force by defendants. Earlier in the litigation, the court entered an order requiring defendants to make available at trial original videotape and photographs depicting the underlying incident.

After defendants advised at the final pretrial conference that the original videotape and photographs no longer existed, the court granted plaintiff’s motion to give the jury an adverse inference instruction based on defendants’ alleged spoliation of evidence. The court held that defendants had control over the evidence, were under an obligation to preserve it, and were at least negligent in failing to do so. The court also ruled that, because plaintiff had consistently argued that copies of the videotape and photographs were of inferior quality and failed to show the detail that was visible in the originals, those alleged differences between the originals and the copies were sufficient to permit a reasonable trier of fact to conclude that the originals would have supported plaintiff’s claims. introduce evidence at trial regarding those dates precluded such an award, holding instead that a post-trial affidavit, which listed when the costs were incurred, was sufficient. LAY WITNESS TESTIMONY In Byfield v.

Chapman, No. 12-CV-6131-FPG (Oct. 22, 2015), a pro se inmate brought suit against prison officials who allegedly beat him.

Following plaintiff’s deposition testimony that he saw blood in his urine after the beating, defendants filed a motion in limine to preclude such testimony at trial claiming that, without an expert, plaintiff could not properly link the blood in his urine to the alleged beating. The court denied the motion because, although a plaintiff who has been physically injured generally must offer expert medical testimony to show the cause of the injury, an exception to the general rule applies when ordinary lay persons are capable of understanding the evidence. Here, because the subject matter is not complex, plaintiff does not need expert testimony as to causation and will be allowed to testify that he observed what appeared to be blood in his urine, but cannot testify that the discoloration was actually blood because he is not an expert. [B] .

Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 22 January 2016 | www.eriebar.org PAGE 22 ERIE INSTITUTE OF LAW PROVIDING CONTINUING LEGAL EDUCATION FOR YOUR PROFESSIONAL ADVANTAGE PLEASE NOTE: The Erie Institute of Law is unable to issue partial credit for seminars, except for multiple session programs such as the Tax and Leadership Institutes. If you have questions about whether a program qualifies for partial credit, please call Mary Kohlbacher at 852-8687. Date/Time/Location Topic CLE Credits Price Thursday, January 21 or 28, 2016 1:00 p.m. – 4:00 p.m. Adelbert Moot CLE Center 438 Main Street Buffalo, NY Motivational Interviewing Techniques (Live Seminar presented by the P&P in Family Court Committee) TBA Registration: TBA Wednesday, January 27, 2016 1:00 p.m. – 2:00 p.m. Adelbert Moot CLE Center 438 Main Street Buffalo, NY The Art of Persuasion: Don’t Say That! The Ethical Rules of Persuasion (Midday Learning Lecture presented by the Solo and Small Firm Practice Committee) 1.0 credit Registration: $20 members $25 non-members Because of the early press time of this issue, details were not finalized for a number of the programs on our calendar.

Please watch our website (www.eriebar.org/ContinuingLegalEduation/CourseCalendar) for regular updates and additions. Thank you for your continued support of the Erie Institute of Law. Check our calendar for updates and added programming at www.eriebar.org Ê Erie Institute of Law Registration Form Please register me for the following Erie Institute of Law sponsored events: 1. ___________________________________________________ 2.

_________________________________________________ 3. _____________________________________________ Name:____________________________________________________________________________________________ Firm:_____________________________________________________________________________________________ Street Address:__________________________________________________________________________________ City: _______________________________________________State: ______________________Zip:_____________ Phone: _____________________________________________Email:______________________________________ Enclosed is my check in the amount $_______________ [ ] Check enclosed Charge my: [ ] Visa [ ] MasterCard Card Number:__________________________________________ Exp. Date:______________________ Cardholder Signature:___________________________________________ Cancellation Policy: If you are unable to attend a seminar for which you have already registered, The CLE department at 852-8687.

For a full refund, notice of your cancellation must be received before the date of the program. Registrants who are pre-registered and fail to attend will receive course materials in lieu of a refund. Mail or Fax to: Erie Institute of Law, 438 Main Street, Sixth Floor, Buffalo, New York 14202, (716) 852-8687, Fax (716) 852-7641. ON DEMAND We are now offering a selection of our live programs in an On-demand format. You can listen to or view these programs in the convenience of your home or office on your own time. These On-demand offerings are a recorded version of our live programs. You can find these programs listed on the Audio/Video products page at www.eriebar.org You will see the following image: for programs available in this format. Members receive a discount off of the published price by entering MEMBER in the promo code area when placing an order. .

Bulletin_January_Web_2016_layout 12/21/15 3:56 PM Page 23 January 2016 | www.eriebar.org PAGE 23 LISTEN, LEARN & EARN! In today’s competitive, fast-paced legal environment, effective time management is essential. Take advantage of the Erie Institute of Law tape library and start earning your CLE credits when the time is convenient for you. An Overview of Traffic Procedures Product Code 2245 1.0 CLE credit: Areas of Professional Practice Presented on October 15, 2015 Available on CD or ON DEMAND at www.eriebar.org CD: $25 BAEC Members, $35 Non-Members ON DEMAND: $35 Member (Use PROMO CODE: member), $45 Non-member The Erie Institute of Law is now offering our most recent CLE seminars on CD and DVD. All of our seminars are professionally edited and are accompanied by a full set of written course materials. ethics violation, discusses how we can avoid similar outcomes in our practice, and awards the Ethy to the “winner” of each category. Join Sean Carter as he presents the winners of The Outlaw(yer) Award, Most Creative Billing, The Houdini Award, The AT&T Award, Best Supporting Actor in a Criminal Enterprise, and many more. _____________________________________ The Ethy Awards: 2015 Edition Lawyers Behaving Badly Product Code 2244 Presented by Michael S.

Deal of DeMarie, Schoenborn & Betz, PC _____________________________________ TILA~RESPA Integrated Disclosure Rule Product Code 49 1.0 CLE credit: Areas of Professional Practice Presented on October 29, 2015 Available on CD or ON DEMAND at www.eriebar.org CD: $25 BAEC Members, $35 Non-Members ON DEMAND: $35 Member (Use PROMO CODE: member), $45 Non-member • • • • • • What is the TILA~RESPA Integrated Disclosure Rule? Loan estimate Closing disclosure Mortgage timelines and impacts Introducing yourLoanTracker What you can do _____________________________________ The Ethy Awards: 2015 Edition The Best of the Worst Ethics Violations Product Code 2243 2.0 CLE credits: Ethics Presented on September 30, 2015 Available on DVD or ON DEMAND at www.eriebar.org DVD: $50 BAEC Members, $100 Non-Members ON DEMAND: $60 Member (Use PROMO CODE: member), $110 Non-member Each year at our annual Ethy Awards, America’s foremost legal humorist recaps the best of the worst ethics violations from the year. In doing so, he explains the specific To order, please send check payable to: The Erie Institute of Law 438 Main Street, Sixth Floor Buffalo, New York 14202 Be sure to include your name and address for mailing purposes; add $5.00 shipping and handling for each tape purchased. Tapes are mailed via UPS, no P.O.

boxes please. To order by phone using your Visa or MasterCard, please call 852-8687. For a complete listing of taped CLE programs, visit www.eriebar.org and click on the Continuing Legal Education link or call 8528687. 2.0 CLE credits: Ethics Presented on September 30, 2015 Available on DVD or ON DEMAND at www.eriebar.org DVD: $50 BAEC Members, $100 Non-Members ON DEMAND: $60 Member (Use PROMO CODE: member), $110 Non-member In this offbeat “awards” program, America’s funniest lawyer examines attorney misbehavior in light of our obligations to behave professionally and civilly. Using the New York Rules of Professional Conduct and New York Standards of Civility as guides for appropriate behavior, he explains where these lawyers went wrong, provides tips to help you avoid being a nominee in the 2016 Ethy Awards, and announces the winners in categories such as: Most Over-Animated Courtroom Outburst, Worst Legal Strategy, Critic’s Choice Award, Miss (Mister) Uncongeniality, The PitBull Award and much, much more. _____________________________________ DWI: Practical Tips and Traps Product Code 2242 1.0 CLE credit: Skills Presented on September 24, 2015 Available on CD or ON DEMAND at www.eriebar.org CD: $25 BAEC Members, $35 Non-Members ON DEMAND: $35 Member (Use PROMO CODE: member), $45 Non-member Presented by Michael Anthony Rossi and Nicholas Michael Rossi of the Rossi Law Firm Deal of the Month 15% off if all three seminars are purchased Legal Writing and Oral Argument in Civil and Criminal Cases $75 BAEC Members, $125 Non-Members Product Code 2180 Presented on June 17, 2011 • 3.0 CLE credits: 1.0 Law Practice Management; 2.0 Skills • CD Effective brief writing and oral argument skills are essential to compelling advocacy.

These skills are well understood by NYS Court of Appeals Judge Eugene F. Pigott, Jr. and Appellate division, Fourth department Justice Erin M. Peradotto.

Always interesting and informative, Judge Pigott and Justice Peradotto are soughtafter ClE lecturers. They will discuss the writing and argument methods which they find persuasive, as well as common blunders to be avoided. In addition, a panel of experienced practitioners with diverse backgrounds will provide useful nuts and bolts tips on how they approach and carry out the tasks of writing briefs and arguing cases.

This seminar was copresented by the Appellate Practice and Negligence Committees. ______________________________________ Pros in Action: Court of Appeals Argument $75 BAEC Members, $125 Non-Members Product Code 2198 Presented on June 29, 2012 • 3.0 CLE credits: 1.0 Law Practice Management; 2.0 Skills • DVD The Appellate Practice Committee invites you to join NYS Court of Appeals Judge Eugene Pigott, Jr., Buffalo attorneys Paul Cambria, Shawn Hennessy, Edward Markarian and Alan Voos as they watch and discuss video replays of People v Spicola and Bissell v Town of Amherst. These cases were well-argued at the Court of Appeals, where Judge Pigott and the other Judges of the Court heard the arguments of Cambria, Hennessy, Voos and New York City attorney Hal Friedman. The participants discuss how the issues were framed in their briefs, how they prepared for oral argument, whether questions from the court surprised them, and whether, with hindsight, they wished they had handled issues differently. ______________________________________ This session will cover breath test instruments, chemical testing, and trial issues regarding chemical tests. Winning Opening Statements and Closing Arguments $90 BAEC Members, $150 Non-Members Product Code 2212 Presented on September 20, 2013 • 4.5 CLE credits: Skills • DVD This engaging and informative seminar covers the key principles, techniques and strategies for planning and delivering winning opening statements and closing arguments.

With the aid of movie clips and actual openings and summations in celebrated cases, the presentation includes the essentials of how to seize the jurors’ attention and hold it with a persuasive courtroom speech. 3 Tape Package - $170 Members, $297.50 Non-Members Three Seminar Package $204 Members, $340 Non-Members Contact Celeste Walsh 852-8687 ext. 118 or cwalsh@eriebar.org . Bulletin_January_Web_2016_layout 12/21/15 3:57 PM Page 24 January 2016 | www.eriebar.org PAGE 24 Grain Silos by Glenn Edward Murray JANUARY 2016 ALL MEETINGS HELD AT THE BAEC, 438 Main Street, Sixth Floor, unless otherwise noted. The Adelbert Moot CLE Center is also located at 438 Main Street, Sixth Floor. FRIDAY 1 OFFICE ClOSEd MONDAY 4 Professional Ethics Committee 12:15 p.m. – Terrence B. Newcomb, Chair Criminal law Committee 12:15 p.m. – Old Surrogate Court Courtroom 1st Floor of 92 Franklin Street. Joseph J.

Terranova, Chair Committee to Assist lawyers with depression 12:30 p.m. – daniel T. lukasik, Chair MONDAY 18 MONDAY 25 Alternative dispute Resolution Committee 12:15 p.m.

– Bridget M. O’Connell, Chair Real Property law Committee 12:15 p.m. – Keri d. Callochia, Chair OFFICE ClOSEd TUESDAY 26 TUESDAY 19 Human Rights Committee 12:15 – Sharon Nosenchuck, Chair labor law Committee 12:15 p.m.

– Josephine A. Greco, Chair Corporation law Committee 12:15 p.m. – Craig M.

Fischer, Chair Board of directors 8:00 a.m. – Gregory T. Miller, President THURSDAY 7 WEDNESDAY 13 Negligence Committee 12:15 p.m.

– Adelbert Moot ClE Center dennis J. Bischof, Chair Intellectual Property, Computer & Entertainment law Committee 12:15 p.m. – Jordan l Walbesser, Chair FRIDAY 8 Health Care law Committee 12:15 p.m.

– William Patrick Keefer, Chair WEDNESDAY 6 Committee for the disabled 12:15 p.m. – Jeffery Marion, Chair Committee to Assist lawyers with depression 12:30 p.m. – daniel T.

lukasik, Chair THURSDAY 14 Committee on Eminent domain & Tax Certiorari 12:15 p.m. – Mark R. McNamara, Chair TUESDAY 12 Board of directors 8:00 a.m.

– Gregory T. Miller, President Matrimonial & Family law Committee 12:15 p.m. – 25 delaware Ave, 5th Floor Michelle Schwach Miecznikowski, Co-Chair Elizabeth diPirro, Co-Chair Federal Practice Committee 12:15 p.m.

- Adelbert Moot ClE Center Timothy J. Graber, Chair WEDNESDAY 20 Erie County Bar Foundation 8:00 a.m. – Garry M.

Graber, President Appellate Practice Committee 12:15 p.m. – Timothy P. Murphy, Chair Environmental law Committee 12:15 p.m.

– Jeffery C. Stravino, Chair FRIDAY 15 THURSDAY 21 Young lawyers Committee 12:15 p.m. – Katie M.

Ireland & laura Berloth, Co-Chairs Committee on Veterans’ & ServiceMembers’ legal Issues 12:15 p.m. – david J. State & Jeffery Marion, Co-Chairs Workers’ Compensation Committee 12:15 p.m.

– Ellen Shanahan Becker, Chair FRIDAY 22 Committee to Assist lawyers with depression 12:30 p.m. – daniel T. lukasik, Chair Elder law Committee 12:15 p.m.

– Edward C. Robinson, Chair THURSDAY 28 P&P in Family Court Committee 12:15 p.m. – Family Court Building Tina M.

Hawthorne & Bernadette Hoppe, Co-Chairs P&P in Surrogate’s Court Committee 12:15 p.m. – 438 Main Street, 12th Floor Sharon l. Wick, Chair Solo & Small Firm Practice Committee 12:30 p.m.

– lana V. Tupchik, Chair FRIDAY 29 Committee to Assist lawyers with depression 12:30 p.m. – daniel T.

lukasik, Chair www.eriebar.org .