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Noted Civil Rights Lawyer Godfrey Dillard to Deliver Keynote

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					Bar Association of Erie County                                                                                                                 Vol. 44 | No.8 | April 2004




                                BULLETIN                                                                    w w w. e r i e b a r. o r g




   President’s Letter
                                                          Noted Civil Rights Lawyer Godfrey Dillard
   By Michael J. Flaherty                                 to Deliver Keynote Address at Law Day Luncheon
                                                                                               Godfrey Joseph                   The Liberty Bell Award, presented annually in
                                                                                             Dillard of Detroit,             recognition of service to the community which fosters a
                                                                                             Michigan will speak at          better understanding and appreciation of the law, will be
                                                                                             the Bar Association of          conferred on Rev. Vincent M. Cooke, S.J., President of
                                                                                             Erie County’s annual            Canisius College. Rev. Cooke has been credited with
                                                                                             Law Day Luncheon                “moving Canisius into the top ranks of comprehensive
                                                                                             to be held at 12:00             colleges and universities in the nation by raising the bar
                                                                                             noon on Thursday,               for academic standards, capital improvements and
                                                                                             May 6th in the Grand            fundraising.” Named as one of Buffalo’s Outstanding
                                                                                             Ballroom of the Hyatt           Citizens by the Buffalo News in 2001, Rev. Cooke’s
                                                                                             Regency hotel in                “dedication and perseverance has not only had a posi-
                                                                                             downtown Buffalo.               tive impact on Canisius…but has made an indelible
                                                                                             Mr. Dillard, who is             impression on the community at large,” according to
                                                                                             perhaps best known              nomination materials submitted to the Bar Association’s
                                                                                             for prevailing before           Awards Committee.
                                                                                             the U.S. Supreme                  The Special Service Award is given each year to a
                                                          Court in defending affirmative action policies at the              non-lawyer who is connected with a governmental
                                                          University of Michigan, is lead counsel for the Defendant          agency or the court system and has provided outstand-
                                                          Intervenors in the recently-decided case.                          ing service to the legal community. The 2004 award will
     Welcome, newly admitted attorneys; Special             Mr. Dillard’s remarks will coincide with this year’s             be presented to Jeffrey D. Smith, Principal Program
  appreciation for Justice Sam Green; Job fair plans      national Law Day theme, which celebrates the 50th                  Analyst for the Eighth Judicial District. Mr. Smith will be
  on hold; Law Day program a sure winner;                 anniversary of the historic Brown decision that ended              recognized for his lead role in establishing and adminis-
  Inspiration comes from a variety of sources;            segregation in United States school systems.                       tering the drug courts and domestic violence parts of
  Kavinoky, Cook firm excels; Lynn Clarke resigns                                                                            town and village courts throughout the Eighth Judicial
                                                            Mr. Dillard is in private practice in Detroit and
  from BAEC Board of Directors; Attorney pass                                                                                District. Mr. Smith is credited with being “one of the
                                                          Alexandria, Virginia. His practice is primarily litigation,
  secured. Details follow.                                                                                                   main reasons that these specialized courts have been
                                                          and includes education matters, civil rights, employment
     At the recent Bar Admission ceremony, I offered      and health care law. From 1978 to 1981, Mr. Dillard was            such a success in this area.”
  a simple but sincere message to our newest attor-       a Foreign Service Officer for the U.S. State Department               The Media Award is intended to recognize
  neys, 110 in number: “We welcome and congrat-           where he served as Deputy Counsel General for the U.S.             outstanding achievements in the print and electronic
  ulate you upon your admission to membership in          Consulate General for the Republic of the Congo.                   media which help to strengthen our system of
  the greatest profession, anywhere. The Bar                                                                                 freedom and justice under the law. This year’s recipient
                                                             He received his Bachelor of Arts from Eastern
  Association is here to enhance your professional                                                                           of the award is Rich Kellman of WGRZ-TV. In his
                                                          Michigan University and his Juris Doctor from the
  life and serve your professional needs. Become                                                                             extensive experience as a reporter, anchor and senior
                                                          University of Michigan Law School. He also holds a
  involved and take advantage of all we have to                                                                              correspondent, Mr. Kellman has often explored issues
                                                          Master of Arts in International Affairs from George
  offer. You won’t regret it.”                                                                                               related to the law. His special report on the Patriot Act
                                                          Washington University and a Certificate in Foreign Law
    In delivering the ceremony’s keynote address,         from Columbia University.                                          and the balance between national security and personal
  U. S. Attorney Michael Battle encouraged those                                                                             liberty was one of the factors in his selection. Mr.
                                                            Mr. Dillard has served on the Board of Directors for             Kellman also hosts Buffalo’s first interactive news
  about to take their oath as attorneys to seek out a
                                                          various organizations, including the Greater Detroit               program, along with a local public affairs segment called
  mentor. He then recalled how fortunate he was to
                                                          Foreign Trade Zone; Michigan District Export Council;              Common Ground.
  have Senior Associate Appellate Division Justice
                                                          National Advisory Council, U.S. African Development
  Sam Green as his mentor and revealed that Judge                                                                              The Police Officer Award is presented each year to
                                                          Foundation; and Wayne County Neighborhood Legal
  Green has been a mentor to many in the African-                                                                            a member of the local law enforcement community in
                                                          Services. He is a former Chairperson of the International
  American legal community. It was a moving and                                                                              recognition of service that strengthens the
                                                          Law Section of the State Bar of Michigan.
  well-deserved tribute to one of our finest Judges,                                                                         justice system. The award honors outstanding achieve-
  who was present on the stage to hear Michael’s             Mr. Dillard is a founding member of Citizens for                ments that encourage respect for the rule of law and fur-
  glowing remarks. It was also an invaluable mes-         Affirmative Action’s Preservation (CAAP), a grassroots             ther the spirit of the Constitution and the Bill of Rights.
  sage to those about to enter our ranks.                 organization dedicated to preserving race-conscious                The 2004 recipient of this award is Lt. James Koch of
                                                          policies. He is also the recipient of the 2001 Champion            the Hamburg Police Department. Lt. Koch is being rec-
     Speaking of mentoring, this year we will be
                                                          of Justice Award conferred by the State Bar of Michigan.           ognized for consistently exceeding expectations in the
  unable to sponsor a job fair for area law students
                                                          In 1999, the Michigan Lawyers Weekly named him                     performance of his job, including placing himself in
  as part of our Law Day celebration, as had been
                                                          Lawyer of the Year and he has also received the keys to            physical danger to apprehend a suspect involved in an
  envisioned. Regrettably, the timing of Law Day
                                                          the cities of Detroit, Michigan and Windsor, Ontario.              armed robbery and rescue an innocent bystander from
  does not fit with the schedule of the law school.
  Although not designed as a mentoring program                                                                               the scene.
  per se, it could result in one. Hopefully we will be
                                                          Annual Awards to be
                                                                                                                                The Justice Award is bestowed only when circum-
  able to offer this service next year.
                                                          Presented at Law Day Luncheon
                                                                                                                             stances warrant and not necessarily on an annual basis.
                                                            Each year, as legal communities across the country               It is given to either a lawyer or non-lawyer whose
     This year’s Law Day celebration is sure to fol-
                                                          pay tribute to the justice system, the Bar Association of          efforts have contributed substantially to improvements
  low in the past tradition of being an event that
                                                          Erie County honors local attorneys and non-attorneys
  will make you proud to be a lawyer. Our awards
                                                          who have distinguished themselves in service to the law.                                                    continued on page 6
  committee has done an exceptional job in review-
  ing the nominees and recommending highly
  deserving individuals for recognition. And our
  guest speaker, Michigan attorney Godfrey Dillard        Bar Institutes New Voting Procedures
  is highly acclaimed for both his speaking ability
  and first-hand knowledge of this year’s theme:          for Annual Election of Officers and Directors
  Brown Turns 50. See the accompanying article
  on this page and be sure to make your reserva-            Last June, the Association’s membership adopted a                will automatically be mailed to every eligible member
  tions early for this surefire sell-out event.           bylaw amendment to make the annual voting process                  thirty days prior to this year’s Annual Election, which
    Where do you find inspiration as you go about         more convenient and accessible. Over the past decade,              is scheduled for Friday, June 11, 2004.
  the daily routine of practicing law? A source for       there has been a gradual decline in the number of votes              Members will still have the option of voting “in per-
  me over the past 25 years has been our incompa-         cast at the Annual Election, despite the fact that mem-            son” on June 11th at Bar Association Headquarters at
  rable secretary, Thelma Campbell. I hope you            bership has continued to increase.                                 438 Main Street, 6th floor. It is hoped that this change
  will take time to read the feature article about          The growing demands on lawyers’ time is considered               will encourage more members to become involved in
  this remarkable woman. She grudgingly gave her          to be one of the primary reasons for the decline in vot-           the election process and the governance of the
                                    continued on page 4   ing activity. To remedy this situation, a proxy ballot             Association.                                         [ B]
PAGE 2
                                                                                                                                       www.eriebar.org | April 2004



 Vol. 44 | No.8 | April 2004


           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: bonniekam@comcast.net



 EDITORIAL BOARD
 Editor ............................................Bonnie D. Kam
 Law Editor ....................................Jeffrey A. Spencer
 Tax Notes Editor ..........................Gary D. Borek
 Art Editor ....................................Hon. David J. Mahoney
 Editorial Assistant ........................Susan L. Kohlbacher


 OFFICERS AND DIRECTORS | 2003-2004
 President ......................................Michael J. Flaherty
 Vice President ..............................James M. Shaw
 Treasurer........................................Ann B. Bermingham
 Deputy Treasurer ..........................Mark P. Della Posta
 Executive Director........................Katherine Strong Bifaro

                                                                                            Your discharge will be condtioned on a favorable comparison of conviction rates
                                                                                                 with Syracuse and Rochester and that the Buffalo News goes along.



                                                                        The following letter was recently sent to Mark Webster, Director of Research at Business
                                                                        First on behalf of the Association:


                                                                        Dear Mr. Webster:                                                         results over the offer versus verdicts yielding results less
                                                                           Let me state at the outset that I have great respect for               than the last offer during trial?
                                                                        your publications. Our firm subscribes to both the Law                      The next category, the size of the result, is not of much
                                                                        Journal and Buffalo Business First as I suspect many law                  help and an extraordinarily large verdict or settlement
                                                                        firms in Western New York likewise do. However, as a Bar                  within the last twelve months may or may not say some-
                                                                        Association representing approximately 3,600 members,                     thing about a particular firm’s abilities. It may be that the
                                                                        we are concerned about an upcoming ranking of person-                     case referred to is a simple yet catastrophic case which
                                                                        al injury law firms in your publication. We have reviewed                 required nothing more than competent shepherding of the
                                                                        the survey form that you are circulating to various                       matter to its conclusion or it may be the result of extraor-
                                                                        Western New York law firms.                                               dinary work. In addition, the twelve-month window
                                                                          Any ranking of personal injury law firms would be, of                   excludes not only work-in-progress but also the recent
                                                                        necessity, subjective. In point of fact, there is no reliable or          and not-so-recent past results which, of course, would
                                                                        objective basis upon which to make such a ranking.                        have a bearing on someone’s track record. There may be
                                                                        Unlike school ranking criteria, which at least relies on test             attorneys who had in their lifetime one big case and were
                                                                        scores, none of the criteria are particularly reliable or use-            able to bring it to a successful conclusion. Has that made
                                                                        ful to the consumer or anyone else who might actually                     them one of the top personal injury lawyers or firms in
                                                                        read the list.                                                            Western New York? What if that one case is this year?

                                                                           Take, for example, size. The size of a law firm, in and of               In addition to the survey filled out by the law firms
                                                                        itself, may or may not mean much. There has been a                        themselves, will there be any research or investigation as
                                                                        recent increase in the number of people employed by cer-                  to the accuracy of the claims made? Will Business First
                                                                        tain law firms that spend large sums of money on adver-                   consult with other publications such as Martindale &
                                                                        tising - and in fact use size itself as a selling point.                  Hubbell which, flawed as it is, is at least a rating based
                                                                        Undoubtedly, that increase is due in large part to the fact               upon consultation with peers? Will judges, law clerks,
                                                                        that they have spent vast sums of money advertising for                   their court personnel, and defense attorneys be consulted?
                                                                        work which has, indeed, produced work which then pro-                     Even if they are, one must realize that the information is
                                                                        duces the need to hire more attorneys. While that may                     anecdotal.
                                                                        make one of those firms the largest personal injury firm,                    The bottom line is since there really is no objective cri-
                                                                        would that entitle them or anyone else to any ranking                     teria, the information given and the benefit of such a list
                                                                        based upon a criteria other than size? We have within the                 is far outweighed by the harm that is done to those that
                                                                        personal injury Bar in Western New York very fine attor-                  either (a) don’t place high on the list or (b) don’t make the
                                                                        neys with many years of experience who do not work with                   list at all. Imagine a great lawyer who, because of the
                                                                        large groups or other attorneys, but whose reputations                    criteria, does not make the list or even a competent lawyer
                                                                        have been earned by years of excellent work on behalf of                  who because of the criteria doesn’t make the list. Further
                                                                        their clients.                                                            imagine that this lawyer is working on a particular signif-
                                                                           The other criterion on the survey is almost as dubious.                icant case of importance to his client and to the lawyer
                                                                        For example, percentage of cases which go to trial versus                 and his or her firm. Worst of all, imagine that during the
                                                                        percentage of cases settled before verdict. You then have a               pendency of the case, the client reads the list and decides
                                                                        separate category for cases resolved at ADR, mediation or                 that he or she needs to get the “top” personal injury firm
                                                                        arbitration (cases which should be included within the                    in Western New York as opposed to the lawyer who has
                                                                        previous category). What does this tell you about a firm’s                been toiling well and effectively on behalf of the client.
                                                                        competence? If they settle more than other firms, does                       As a Bar Association, we urge Buffalo Business First to
                                                                        that mean they are more effective at concluding cases in a                reconsider its decision to issue a list ranking personal
                                                                        manner satisfactory to their clients or does it mean that                 injury law firms. It is our intention to inform our entire
                                                                        they will settle anything rather than have to go to trial? If             membership of our strong objection to this listing.
                                                                        they try more, does that mean that they are bullheaded
                                                                        and willing to risk sound offers under ill-advised circum-                                                   Very truly yours,
                                                                        stances? Or does this indicate some greater level of court-                                                  MICHAEL J. FLAHERTY
                                                                        room experience or competence? What about a category                                                         President
                                                                        for successful verdicts versus no causes or verdicts yielding


                                                                                                  Letters to the editor on topics of general interest to our readers are always welcome.
                                                                                                   Send to: Bulletin Editor, 438 Main Street, Sixth Floor, Buffalo NY 14202
                                                                                                                          or e-mail: bonniekam@comcast.net

                                                                                                                                                    •   •   •   DEADLINE                •   •   •
                                                                             D E A D L I N E                                  The next deadline for ALL Bulletin contributors and advertisers is Friday, April 2, 2004.
                                                                                                                                                                                            PAGE 3
                                      April 2004 | www.eriebar.org




                                                                                                                                          along with city and county government officials,
                                                                                                                                          to help maintain a working knowledge of local govern-
                                                                                                                                          ment law and administration as well as municipal
   bench and bar in the news                                                                                                              litigation issues.
                                                                                                                                            Magavern, Magavern & Grimm, LLP is pleased to
                                                                                                                                          announce that Aven Rennie and Jennie Muscarella
                                                                                                                                          have become partners and Rosa S. Svisco has joined
                                                                                                                                          the firm to head the immigration department.
This “members only” column is published each month to share news and information among BAEC members.
All submissions are edited for space and other considerations.
                                                                                                                                                              Aven Rennie concentrates her
                                                                                                                                                           practice in commercial litigation,
                                                                                                                                                           health law, appeals in state and fed-
                     The New York State Dispute                              He has been practicing with the firm since 1995, rep-                         eral courts, and also prosecutes
                   Resolution Association (NYSDRA)                           resenting clients in claims involving toxic torts and                         trademark applications. Ms. Rennie
                   recently elected Julie M. Loesch                          asbestos exposure, health care litigation, personal                           was an Assistant Attorney General in
                   President of its Board of Directors.                      injury, construction accidents, premises liability, prod-                     the Manhattan Office of the New
                                                                                                                                          Rennie           York State Department of Law and
                   She will serve a two-year term.                           ucts liability, appellate practice and other state and
                   Ms. Loesch is currently Director of                       federal court litigation.                                                     also practiced in New Jersey before
                   the Dispute Settlement Center, part                                                                                    relocating to Western New York. She received a BA,
Loesch                                                                                            A 1996 graduate of the State            magna cum laude, from the State University of New
                   of the Better Business Bureau                                                University of New York at Geneseo
                   Foundation. The Dispute Settlement                                                                                     York at Stony Brook and received a JD, cum laude,
                                                                                                and a 2003 graduate of the State          from the State University of New York Buffalo Law
Center provides mediation and arbitration services and                                          University of New York at Buffalo
conflict management training programs throughout                                                                                          School, where she taught legal research and writing.
                                                                                                School of Law, Margaret Murphy            She is also a member of the New York State
Western New York. Ms. Loesch received a Bachelor of                                             served as the Executive Managing
Arts degree in political science from Canisius College                                                                                    Bar Association.
                                                                                                Editor of The Buffalo Intellectual
and a juris doctorate from the Cleveland-Marshall                            Murphy             Property Law Journal and a senior                             Jennie Muscarella concentrates
College of Law in Cleveland, Ohio. NYSDRA is a mem-                                             associate editor of The Buffalo                            her practice in personal injury and
bership organization of dispute resolution centers and                       Women’s Law Journal. Ms. Murphy will concentrate                              insurance litigation. She has litigated
private practitioners committed to the use and promo-                        her practice in the areas of construction accident litiga-                    numerous cases in the areas of con-
tion of alternative dispute resolution.                                      tion, personal injury, and business litigation.                               struction work site injuries, defective
                     Garry M. Graber, practice group                                                                                                       products and motor vehicle
                                                                                                 A 2000 graduate of the State                              accidents. She received a BBA, cum
                   leader of Hodgson Russ LLP’s                                                University of New York at Buffalo,
                   Bankruptcy & Commercial Liti-                                                                                          Muscarella       laude, from Niagara University and a
                                                                                               summa cum laude, and a 2003                                 MBA and JD from the State
                   gation Group, has been elected pres-                                        graduate of the State University of
                   ident of the Turnaround Manage-                                                                                        University of New York at Buffalo Schools of
                                                                                               New York at Buffalo School of Law,         Management and Law. Ms. Muscarella is a member of
                   ment Association’s Upstate New York                                         Marybeth Priore served as a Note
                   Chapter, which represents turn-                                                                                        the New York State Bar Association, Western New York
Graber
                                                                                               and Comment Editor on The Buffalo          Trial Lawyers Association and the Claims Associations
                   around management professionals in                        Priore            Law Review and earned The
                  Buffalo, Albany, Rochester, and                                                                                         of Buffalo and Syracuse.
                                                                                               American Bar Association and the
Syracuse. The Turnaround Management Association is                           Bureau of National Affairs Award for Excellence in the                           Rosa S. Svisco’s practice includes
the only international non-profit association dedicated                      Study of Intellectual Property. Ms. Priore will concen-                        employment-based immigration and
to corporate renewal and turnaround management.                              trate her practice in general civil litigation, including                      involves intra-company transfers,
Mr. Graber, who has over 25 years of practice experi-                        municipal liability, personal injury, construction                             investors, professionals and other
ence, serves as an adjunct professor at the University at                    accidents and general negligence.                                              types of white-collar business immi-
Buffalo Law School, where he teaches the upper-level                                                                                                        gration. Her practice also includes
course on Chapter 11 bankruptcy. He received his JD                            The Mid-Day Club recently elected officers and                               family-based immigration and
from the University at Buffalo Law School and has                            directors for the year. Thomas I. McElvein, Jr. has          Svisco            matters requiring special permission
been listed in The Best Lawyers in America since 1990.                       been elected President; Arthur J. Ziller, Vice                                 to enter the Unites States. Ms. Svisco
                                                                             President; Renata Kowalczuk, Secretary; Stephen                                                     continued on page 8
  The Minority Bar Association of Western New York,                          T. Lovullo, Treasurer; and James Beardsley, House
Inc. is pleased to announce the election of Hon. E.                          Chairman. New members of the Board of Governors of
Jeannette Ogden as President for 2004. They have                             the Mid-Day Club include Ms. Kowalczuk, Douglas S.
also elected their Executive Board and Officers for the                      Coppola and William F. Matthews, Jr. The Mid-
year: Brandon A. Portis, Vice President; J. Richard                          Day Club is a 65-year-old luncheon club located in the
Benitez, Treasurer; Alice S.M. Patterson, Recording
Secretary; Cindy Chandler, Corresponding Secretary;
and Directors Kevin D. Robinson and Christopher
H. Gresham. The Association extends it thanks to out-
                                                                             West Tower of the Liberty Building.
                                                                                                Lawrence J. Vilardo has been
                                                                                             inducted as a member of the
                                                                                                                                                   Mail Call
going President Craig D. Hannah and the 2003                                                 American Academy of Appellate
Executive Board for their dedicated service. The                                             Lawyers. The Academy “recognizes
Minority Bar meets monthly and can be contacted at                                           outstanding appellate lawyers and
PO Box 211, Niagara Square Station, Buffalo, NY                                              promotes improvements of appellate
14201.                                                                                       advocacy and the administration of
                                                                             Vilardo         the appellate courts.” Mr. Vilardo is a
                                        .C.
  The law firm of Colucci & Gallaher, P has named                                            founding partner in the law firm of
Ryan L. Gellman shareholder and Margaret A. Murphy                           Connors & Vilardo, LLP, and focuses his practice in liti-
and Marybeth Priore as associates with the firm.                             gation. He is a graduate of Canisius College and
                        Ryan Gellman received a BS                           Harvard Law School, where he served as an editor of
                     from the Wharton School of Business                     the Harvard Law Review.
                     at the University of Pennsylvania, a                      Chris G. Trapp, a senior partner with the law firm
                     J.D. from the State University of New                   of Bouvier, O’Connor, LLP recently spoke at the Local
                     York at Buffalo School of Law, and                      Government and Municipal Litigation Update
                     an M.B.A. from the State University                     in New York held at the Hyatt Regency Buffalo. This
                     of New York School of Management.                       seminar was designed for attorneys and legal staff,                     As a service to members, the Bar
Gellman
                                                                                                                                                   Association staff will coordinate your
                                                                                                                                                     firm’s bulk or first-class mailings.
                             Concern…Care…Confidentiality                                                                                               If you are planning to send out
                                                                                                                                                          announcements of any kind,
                                                         PLEASE CALL US
                                                                                                                                                   call Heidi Mahon at Bar Headquarters

   The Erie County Bar Foundation is dedicated to helping lawyers and their families in need.                                                                (852-8687)
   We provide a wide range of referral and support services on a confidential basis:                                                                    for information and prices.
   medical problems | personal difficulties | career-related issues | financial needs | crisis situations
   Our Resource Counselor handles each situation individually and privately. She can meet with you to
   assess ways that the Erie County Bar Foundation can help you, or she can talk with you on the telephone
   and refer you to appropriate private or community services. Please call Ginger Maiman at 882-9044 and
   open the door to much-needed assistance for yourself or for someone you care about.
PAGE 4
                                                                                                                        www.eriebar.org | April 2004




                                                                                                                               Pres. Letter                continued from page 1

                                                                                                                               permission for the article, provided her actual age not be
   citations                                                                                                                   disclosed (“I hate the number Michael, but there’s noth-
                                                                                                                               ing I can do about it.”) and that she be given an oppor-
                                                                                                                               tunity to read the piece prior to its printing, presumably
                                                                                    BY Jeff Spencer                            with veto power. Most of us would brag about the num-
                                                                                                                               ber. When I showed her the draft, she seemed pleased
       OMISSION MAY BE A COMMISSION                                                                                            with the way it turned out. And why shouldn’t she? It’s
         AS HUNTER GETS HAMMERED                                         PETITION PUMMELED
                                                                                                                               a wonderful story. Thelma has enhanced my life immea-
  The Fourth Department has reversed the dismissal of                   BY NO NEEDS ANALYSIS
                                                                                                                               surably and I am ever grateful for her dedication, friend-
a manslaughter charge against a hunter who acciden-          Petitioner’s application for an upward modification
                                                                                                                               ship and yes, longevity.
tally shot another hunter, then left the scene of the      in child support demonstrated a change in circum-
accident. (Peo v. Woodruff, __AD2d__, 2/11/04, #27)        stances, but failed to show that the needs of the                      Sometimes inspiration can be a matter of timing. As I
(See also Peo. v. Mayo, __AD2d__, 2/11/04, #129)           children were not being met. (Mtr. of Kingsley v.                   completed the fourth mile of this year’s Shamrock Run,
                                                           Kingsley, __AD2d__, 2/11/04, #57)                                   I felt exhausted, both mentally and physically, and pret-
              ESTOPPEL TOPPLED                                                                                                 ty much decided to finish the last mile at more of a fast
  Our Fourth Department has recently upheld Justice                          A WORD WITNESS                                    walk than a run. After all, what difference would it
Janice Rosa’s denial of objections to a Hearing              Our Fourth Department has upheld use of a lay                     make, I rationalized. At that very moment, I was passed
Examiner determination on child support arrears            witness to testify regarding the meaning of a word used             by a runner in a wheel chair. It was the exact wake-up
which had refused to permit respondent to submit           in an alleged criminal incident. (Peo. v. Hendricks,                call I needed. I felt ashamed for my weakness and found
proof as claims of laches and estoppel. (Cook v. Miller,   __AD2d__, 2/11/04, #79)                                             a reserve strength that only moments before had eluded
__AD2d__, 2/11/04, #1551)                                                                                                      me. After I crossed the finish line, I discovered that the
                                                                    EXPANDING THE PENSION POT
                                                                                                                               runner in the wheel chair was Assistant D.A. Mark
         INTOXICATION ELABORATION                            The health insurance component of a spouse’s
                                                                                                                               Dunford. Thanks to his display of courage and fortitude,
  Whether or not defendant was visibly intoxicated         pension benefits were upheld to be a marital asset by Justice
                                                                                                                               I kept on pace and I am so thankful I did. Thank you,
when served alcoholic beverages does not have to be        Barbara Howe in Walek v. Walek, (749 NYS2d 383).
                                                                                                                               Mark. You are an inspiration to us all.
determined by eyewitness testimony. (McGilveary v.
Baron and Niagara Falls Country Club, __AD2d__,                   EVERYTHING YOU EVER WANTED                                      Special congratulations to Wayne Wisbaum, Marilyn
4th Dept., 2/11/04, #166, affirming decision of Justice          TO KNOW ABOUT THE “ANTI-LAPSE                                 Hochfield et al. from Kavonoky, Cook. Wayne was recent-
Amy Fricano)                                                    STATUTE” BUT WERE AFRAID TO ASK                                ly named one of the Buffalo News’ Outstanding Citizens
                                                             If you are a practitioner of estate law, you may want             and Marilyn, as team captain, along with teammates
            LOOK BEFORE YOU LEAP                           to review Mtr. of Sawyer (__AD2d__, 2/11/04, #82)                   Tracey Palmer and Michelle Gorlowski, won the
   The Fourth Department has upheld Justice Joseph         which analyzes the application of EPTL 3-3.3 to a                   Community Music School’s 10th Annual Corporate
Makowski’s dismissal of a contractor’s claim for unan-     complex estate proceeding. (See also Mtr. of the Last               Spelling Bee. Your Bar Association and indeed all attor-
ticipated costs incurred in subsurface drilling for the    Will and Testament of Standish, __AD2d__, 4th Dept.,                neys are proud of your accomplishments and your well-
foundation of a construction project. (Kenaidan Const.     2/11/04, #194)                                                      deserved recognition. As an aside, Marilyn Hochfield also
Corp. v. County of Erie, __AD2d__, 2/11/04, #2)                                                                                ably chairs our very active Human Rights Committee.
                                                                         BENEFITS BOUNCED AS
     TIME WON’T BIND “QUODRO” QUEST                                 LATE NOTICE CANS COVERAGE                                     In closing, I wish Lynn Clarke well as she pursues a
   A sixteen-year delay did not preclude an ex-spouse        Plaintiff’s notice to his carrier of a supplemental               nomination for Supreme Court. Under the Association’s
from seeking pension rights via a qualified domestic       underinsured motorist claim sixteen months after the                rules, she was required to resign her seat on our Board
relations order (QUADRO) (Duhamel v. Duhamel,              accident was found to be insufficient to invoke said                of Directors once she announced her judicial candidacy.
__AD2d__, 4th Dept., 2/11/04, #1496)                       “SUM” coverage. (Brown v. Travelers Ins. Co.,                       Lynn has made significant contributions during her
                                                           __AD2d__, 4th Dept., 2/11/04, #142)                                 almost three-year tenure as a Board member. As many
        HALL NOT HOUSE, SAYS FOURTH                                                                                            of you know, Lynn chaired our Awards Committee and
  Permission for police to enter a hallway cannot be                 DEFENSIVE DELIBERATIONS                                   Have-a-Heart Food Drive. This year’s food drive set a
construed (absent special circumstances) as permission       An insurer’s obligation to defend/indemnify an                    new record with an estimated 5,000 pounds of food and
to enter any part of the house. (Peo. v. Haupt,            insured in a case involving an accident by an adult                 $5,500.00 in cash contributed by our ever-generous
__AD2d__, 2/11/04, #169) (However, see Peo. v.             child on her parents’ property is analyzed by Justice               members. Thank you, Lynn, for your leadership and
Ellis, __AD2d__, 4th Dept., 2/11/04, #228, where an        Patrick Monserrate in N.Y.C. Mut. Fire Ins. Co. v.                  hard work and good luck in all your future endeavors.
exception is applied)                                      Jockin, 11/24/03, __NYS2d__.
                                                                                                                                  Lastly, you’ll be pleased to learn that I obtained my
      PONDERING SPECIAL USE PERMITS                                         NO SIGNS NOT FINE                                  attorney pass on Friday, February 13th, in time for
  Our Fourth Department has upheld Justice John               Despite a municipality’s qualified immunity from                 Valentine’s Day. The final wrinkle was the notification that
O’Donnell’s reversal of the Town Boards denial of the      liability, it may be held liable when it is made aware of           my card would be delivered to me alone and when I picked
permit. The Court noted that the denial was reversed       a dangerous highway condition and does not take                     it up I must, once again, bring photo ID along. Can anyone
solely based on community opposition. (Mtr. of             action to remedy it. In this case, there was a failure to           explain why I needed photo ID to obtain photo ID? The
Constantino and LaFalce v. Town Board, __AD2d__,           post appropriate signs at a shopping center drive out.              explanation is of course OCA…what else need be said? [B]
2/11/04, #111)                                                                                        continued on page 12



                                                                                                                                 Administrative Order of
                                                                                                                                 the Chief Administrative
                                                                                                                                 Judge of the Courts
                                                                                                                                    Pursuant to the authority vested in me, and
                                                                                                                                  with the advice and consent of the Administrative
                                                                                                                                  Board of the Courts, I hereby amend, effective
                                                                                                                                  immediately, section 202.5 of the Uniform Civil
                                                                                                                                  Rules for the Supreme and County Courts, to add
                                                                                                                                  a new subdivision (c) relating to papers filed in
                                                                                                                                  court to read as follows:
                                                                                                                                     (c) Papers filed to commence an action or spe-
                                                                                                                                  cial proceeding. For purposes of CPLR 304, gov-
                                                                                                                                  erning the method of commencing actions and
                                                                                                                                  special proceedings, the term “clerk of the court”
                                                                                                                                  shall mean the county clerk. Each county clerk,
                                                                                                                                  and each chief clerk of the Supreme Court, shall
                                                                                                                                  post prominently in the public areas of his or her
                                                                                                                                  office notice that filing of papers in order to com-
                                                                                                                                  mence an action or special proceeding must be
                                                                                                                                  with the county clerk. Should the county clerk, as
                                                                                                                                  provided by CPLR 304, designate a person or
                                                                                                                                  persons other than himself or herself to accept
                                                                                                                                  delivery of the papers required to be filed in order
                                                                                                                                  to commence an action or special proceeding, the
                                                                                                                                  posted notice shall so specify.
                                                                                                                                    Jonathan Lippman
                                                                                                                                    Chief Administrative Judge of the Courts
                               PAGE 5
April 2004 | www.eriebar.org
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                                                                                                                         www.eriebar.org | April 2004




                                                                                                                                   The courts in the majority, like the Second Circuit,
                                                                                                                                have essentially held that this is a problem for Congress
                                                                                                                                and the President to resolve with legislation. The courts
   tax notes                                                                                                                    in the minority appear to be stretching the underlying
                                                                                                                                principles to achieve some justice despite the inaction
                                                                                                                                of Congress and the President. In the meantime, suc-
                                                                                        BY GARY BOREK                           cessful plaintiffs are at risk of incurring an income tax
                                                                                                                                liability greater than their recovery, as was the case in
                                                                                                                                Spina v. Forest Preserve District Of Cook County, Dkt
Attorney Fees and Taxation                                      1995). The minority position holds that contingency fees
                                                                                                                                No. 98-C-1, (D.C., N.D. Ill. 2002), in which the jury
                                                                are not includable in the gross income of the client. See
   I blame my dad for my compulsive insistence about                                                                            awarded plaintiff $3,000,000 on her claim of sexual
                                                                Davis v. CIR, 210 F.3d 1346 (11th Cir. 2000); Estate of
mailing in every warranty registration card for every                                                                           discrimination, harassment, and retaliation claims pur-
                                                                Clarks v. United States, 202 F.3d 854 (6th Cir. 2000);
product I have ever purchased or received as a gift.                                                                            suant to Title VII and 42 U.S.C. §1983. The court
                                                                and Cotnam v. CIR, 263 F.2d 119 (5th Cir. 1959). The
Every birthday he would tell me “if you don’t register                                                                          reduced the award to $300,000. Spina, id.,
                                                                Ninth Circuit held that the issue depends on state law.
your warranty, then you won’t get notified of any                                                                               Memorandum, Opinion, and Order (May 31, 2002)
                                                                Compare Coady v. CIR, 213 F.3d 1187 (9th Cir. 2000)
recalls or product defects, and you could end up losing                                                                         (hereinafter “Spina I”). The court subsequently
                                                                (includable under Alaska law), and Benci-Woodward v.
a leg or arm from using that birthday gift” - even if the                                                                       awarded statutory attorney fees and expenses of
                                                                CIR, 219 F.3d 941 (9th Cir. 2000) (includable under
gift was a gold Cross pen. In fact, the only warranty I                                                                         $949,761, Spina, id., Memorandum, Opinion, and
                                                                California law), with Banaitis v. CIR, 340 F.3d 1074
ever did make use of was for that gold Cross pen, but                                                                           Order (July 30, 2002) (hereinafter “Spina II”).
                                                                (9th Cir. 2003) (not includable under Oregon law).
it turned out that possession of the pen itself was suffi-                                                                      Unfortunately for Ms. Spina, she resided in the Seventh
cient to get warranty service.                                     The Supreme Court has declined several opportuni-            Circuit, and under Kenseth v. CIR, 259 F.3d 881 (7th
                                                                ties to resolve the split in the circuits. See Benci-           Cir. 2001) her gross income included both the
   I did, however, enjoy receiving postcards and comput-
                                                                Woodward v. CIR, supra, cert. denied 531 U.S. 1112              $300,000 awarded to her and the $949,761 awarded
er-generated letters informing me that I was a member
                                                                (2001); Coady v. CIR, supra, cert. denied 532 U.S. 972          to her attorney, resulting in a projected federal income
of numerous class action lawsuits arising from many of
                                                                (2001); Hukkanen-Campbell v. CIR, supra, cert.                  tax liability of $455,000, i.e., $155,000 more than her
the products and services that I purchased. The awards
                                                                denied 535 U.S. 1056 (2002); Sinyard v. Rossotti,               recovery.
usually amounted to nothing more than a dollar-off
                                                                supra, cert. denied 536 U.S. 904 (2002). There are
coupon. But they also informed that the attorney for the
                                                                three additional petitions for certiorari pending before        The Class Action Quagmire
plaintiffs would be receiving a billion dollars in legal fees
                                                                the Supreme Court. See CIR v. Banaitis, Dkt No. 03-
for their efforts in securing the settlement. I always enjoy                                                                       Fortunately, for both the readers of this column and
                                                                907 (appeal of Banaitis v. CIR, supra), Freeman v. CIR,
hearing of my fellow attorneys’ good fortunes. After                                                                            me, time and space restrictions do not permit an exten-
                                                                Dkt. No. 03-660 (appeal of unpublished memoran-
reading a recent decision of the Second Circuit, how-                                                                           sive discussion of the taxation of class action attorneys’
                                                                dum of the Ninth Circuit affirming Freeman v.
ever, I now worry that I may someday receive a notice                                                                           fees. Suffice it to say that many of the cases cited above
                                                                Commissioner, T.C. Memo. 2001-254), and CIR v.
from the IRS informing me that, as a member of those                                                                            were in fact class actions. In those cases following the
                                                                Banks, Dkt. No. 03-892 (appeal of Banks v. C.I.R.,
class action suits, I must include the awarded attorney                                                                         majority rule, the awarded attorney fees were included
                                                                345 F.3d 373 (6th Cir. 2003)). All three of those cases
fees in my gross income on my tax return.                                                                                       in the income of the members of the class that had
                                                                were on the Court’s conference list for February 23,
                                                                                                                                engaged the attorneys to represent the class and had
                                                                2004, but the Court had not addressed those petitions
The Second Circuit Weighs In                                                                                                    received substantial benefits from the action.
                                                                as of press time (March 5, 2004).
   In Raymond v. United States, 247 F. supp.2d 548                                                                              Hopefully, either the Supreme Court or Congress will
                                                                   To be sure, the issue does not apply to the great            resolve the issue soon. Otherwise I’ll have to start opt-
(D.C. VT. 2002), the district court held that a contin-
                                                                majority of contingency fee cases arising from personal         ing out of those class action notices to avoid a tax I
gency fee paid by a plaintiff to his attorney was not
                                                                injury actions because the full amount of awards for            can’t afford on awards I don’t receive.                [ B]
included in the gross income of the plaintiff. The gov-
                                                                “personal physical injuries or physical sickness,” are
ernment had argued that the full amount of the award
                                                                excluded from the definition of gross income by
to the plaintiff, including the portion paid to his attorney,
                                                                Internal Revenue Code §104(a)(2). However, actions
was properly included in the plaintiff’s gross income.
                                                                based on employment discrimination, breach of con-
Had the government prevailed, the plaintiff would have
incurred an income tax liability attributable to the por-
                                                                tract, and other non-traditional personal injury claims
                                                                are outside the scope of IRC §104(a)(2). Awards that
                                                                                                                                Law Day               continued from page 1

tion of the award paid to his attorney because the
                                                                are fully includable in the gross income of the plaintiff       in the justice system. This year’s award will be pre-
Alternative Minimum Tax (“AMT”) effectively precludes
                                                                would not give rise to the tax issue if the plaintiff could     sented to Frank B. Mesiah, President of the Buffalo
a deduction for legal fees even though they would other-
                                                                fully deduct the fees and expenses paid to obtain the           Branch of the NAACP and First Vice-President of the
wise be deductible.
                                                                award. Unfortunately, most plaintiffs are limited to            NYS Conference of NAACP Branches. Mr. Mesiah will
   On appeal, the Second Circuit reversed the district          deducting such fees and expenses as “miscellaneous              be recognized for his more than 40 years of communi-
court, and thereby joined the majority of circuits on the       itemized deductions” and then only to the extent that           ty leadership and activism, including dedicated efforts
issue. Raymond v. United States, 355 F.3rd 107 (2nd Cir.        such fees and expenses exceed 2% of their adjusted              to advance civil rights and racial equality in the greater
2004), agreeing with Campbell v. CIR, 274 F.3d 1312             gross income. More importantly, what little tax benefit         Buffalo area.
(10th Cir. 2001); Kenseth v. CIR, 259 F.3d 881 Page 110         might otherwise be available as a miscellaneous item-              Student Awards are presented each year for a vari-
(7th Cir. 2001); Young v. CIR, 240 F.3d 369 (4th Cir.           ized deduction is completely eliminated by the                  ety of law-related educational programs sponsored by
2001); Baylin v. United States, 43 F.3d 1451 (Fed. Cir.         Alternative Minimum Tax.                                        the Bar Association. Elementary and high school
                                                                                                                                students who submitted the top designs in the
                                                                                                                                Association’s annual Poster Contest based on the Law
                                                                                                                                Day theme of “Brown Turns 50” will receive their
                                                                                                                                awards at the Luncheon. The winning team from this
                                                                                                                                year’s High School Mock Trial Tournament will be rec-
                                                                                                                                ognized as well. Students participating in the Mock
                                                                                                                                Trial Tournament were encouraged to write essays
                                                                                                                                discussing what they’ve learned about the legal system
                                                                                                                                from their participation in the program. This year’s
                                                                                                                                case was based on the Americans with Disabilities Act.
                                                                                                                                The student who submitted the winning essay will
                                                                                                                                read his or her work at the Luncheon.
                                                                                                                                  Candidates running for officer and director positions in
                                                                                                                                the Association’s upcoming annual elections will be
                                                                                                                                announced to the membership at the Luncheon.
                                                                                                                                Watch your mail for an invitation or call Sharlene Von at
                                                                                                                                852-8687 for tickets.                                [ B]
                                                                                                                                                                                   PAGE 7
                                      April 2004 | www.eriebar.org




“Have-A-Heart” Food Drive Has a Fantastic 15th Year!
By Lynn A. Clarke, Food Drive Chair

                                 The 15th annual “Have-A-                                                                                        This year, I must also note the fantastic
                              Heart” Food Drive was a                                                                                        effort put forth by Arnold H. Soeder, Esq.,
                              resounding success, collecting                                                                                 Ms. Gretl Karlnoski and Ms. Sandra Paglia
                              $ 5,504.00 and 4,626 pounds                                                                                    of Lewis & Lewis, P.C. These individuals
                              of food for the Food Bank of                                                                                   instituted a tremendously creative and pro-
                              Western New York. As always,                                                                                   ductive intra-office competition among
                              many thanks are in order to                                                                                    three teams named the Tazmanian Devils,
                              all those without whom this                                                                                    the Wascally Wabbits and the Road Runners.
                              labor of love would not be                                                                                     The three teams collected so much food it
                              possible.                                                                                                      filled nearly an entire spare room at the
Clarke
                                                                                                                                             firm. Though all of the teams brought in an
                           Special mention goes to                                                                                           incredible amount of food items, the
attorney Glenn Edward Murray for facilitating the                                                                                            Tazmanian Devils won the day with a phe-
participation of the National Guard who, along with                                                                                          nomenal 700 cans of food! Congratulations
attorneys Michelle Parker and Richard L. Woll, and Mr.                                                                                       to everyone at Lewis & Lewis!
Vincent Pugliese of Siegel, Kelleher & Kahn, helped
retrieve the food items from the 25 collection sites                                                                                            As always, a huge debt of gratitude is
across Erie County. Speaking of the 152nd Engineer                                                                                            owed to Ms. Susan L. Kohlbacher,
                                                                 Food Drive Marks 15th Year of Showing
Battalion of the National Guard, we thank the follow-                                                                           Communications Assistant for the Bar Association of Erie
                                                                 Community that Lawyers Have Heart
ing officers who organized and manned the trucks this                                                                           County, for her diligent work on behalf of the Food Drive.
                                                                 Assisting Food Drive Chair Lynn Clarke in transporting
year: Master-Sergeant Peter Pilc, Staff Sergeant Mark                                                                           The efficiency with which the Drive was coordinated and
                                                                 nearly 5,000 pounds of donated food are several members
Brinson, Staff Sergeant Paul Bialobok, Specialist Larry          of the 152nd Engineer Battalion of the U.S. Army National      its successful outcome are the result of Susan’s uncom-
Kenny, Specialist Edward Walther, Specialist Brian               Guard including, left to right: Staff Sergeant Mark Brinson,   mon attention to detail, her impeccable judgment and
Gehring and Specialist Michael Grisewood.                        Specialist Larry Kenny, Staff Sergeant Paul Bialobok,          her unbridled enthusiasm with respect to this endeavor.
                                                                 Specialist Michael Grisewood, and Vince Pugliese from
  Kudos are likewise in order to the following individ-          Siegel, Kelleher & Kahn.
uals who gave so generously of their time, energy and
resources in support of the 2004 Drive:                            Special thanks go to the following people who rallied
                                                                 the troops in their offices or buildings: Bar Director
  Paul William Beltz, P.C.
                                                                 Melinda R. Saran of UB Law School, Ms. Ginny Pratt,
  Cellino & Barnes
                                                                 who oversaw the collection of 16 meticulously packed
  Ilo Noble, Esq.
                                                                 boxes of food at Hodgson Russ, Ms. Donna Bilowus,
  Roach, Brown, McCarthy & Gruber
                                                                 paralegal at the Law Offices of Kevin D. Walsh, who sin-
  Patricia Pancoe, Esq.
                                                                 gle-handedly organized an effort throughout Cathedral
  Miserendino, Celniker, Seegert & Estoff, P.C.
                                                                 Park Tower, Ms. Patricia Smith at Hogan & Willig, David
  Hogan & Willig, PLLC
                                                                 G. Brock, Esq. of Jaeckle, Fleischmann & Mugel, LLP,
  James Beardsley, Esq.
                                                                 Dennis C. Gaughan, Esq., Amy J. Goldstein, Esq. of the         Bar President Mike Flaherty, left, and Food Drive Chair
  Rosemary Gavigan Bis, Esq.
                                                                 Erie County District Attorney’s Office, Anthony D.             Lynn Clarke present Clem Eckert, Executive Director of
  Jacquelyn and Louis Ebert
                                                                 Mancinelli, Esq. of Harter, Secrest & Emery, and Hon.          the Food Bank of Western New York, with 4,626 pounds
  Alice Joseffer, Esq.                                                                                                          of food and cash donations totaling $5,504.00 at a recent
                                                                 Edward A. Pace of Berkowitz & Pace.
  Dennis Alan Kahn, Esq.                                                                                                        ceremony in Erie County Hall.
  Christine M. and Donald W. Petschke                              Much appreciation goes to the Hon. Joseph S. Mattina
  Anne Simet, Esq. and Donald P. Simet, Esq.                     who, once again, graciously offered the Surrogate’s Court        Finally, we thank everyone who contributed in any
  Hon. Janice M. Rosa and Raymond Stapell, Esq.                  foyer as a collection site at the Erie County Courthouse,      way to the 2004 Food Drive and thereby demonstrated
  Karen Spencer, Esq. and Paul Suozzi, Esq.                      and to the Hon. Barbara Howe who continued this tra-           that the legal community truly does “Have-A-Heart”.
  Linda and Francis Weimer                                       dition upon her historic election as Erie County Surrogate     We couldn’t have done it without you!           [ B]
  Brian R. Welsh, Esq.                                           Court Judge. Additionally, we thank the Surrogate’s
  Helen Zimmerman, Esq. and                                      Court staff led by Chief Clerk, Paul J. Smaldone, Esq.,
     George Zimmerman, Esq.                                      for their never-ending support of the Food Drive.
PAGE 8
                                                                                                                          www.eriebar.org | April 2004




                                                                                                                                 Bench & Bar                  continued from page 3



   western district case notes                                                                                                   is a graduate of the State University of New York at
                                                                                                                                 Buffalo, where she received a BA. She received her JD
                                                                                                                                 with honors from Ohio Northern University and is a
                                                                                                                                 member of the New York State and American
                                                                                       BY PAUL K. STECKER                        Immigration Lawyers Associations.
CONSTRUCTIVE TRUST                                                                     AND ROBERT E. GLANVILLE
                                                                                                                                                      Mark Giangreco is pleased to
   In Halvorsen v. Sheive (02-CV-6187P, 02/10/04), the                                                                                             announce the formation of the
Court denied in part and granted in part defendant’s          former visiting professor, to a faculty position. In finding a                       Giangreco Law Firm located at 443
motion for summary judgment dismissing plaintiff’s            triable issue of fact, the Court explained that, although the                        Delaware Avenue in Buffalo. The
claim seeking to impose a constructive trust on her late      ultimate hiring decision was made by the University                                  telephone number is (716) 852-1500
father’s IRA, of which defendant was the beneficiary.         President upon the recommendation of the Dean, the                                   and the firm’s Web site address is
While finding that there was no evidence that the defen-      Department Chair had input into the decision and that                                giangrecolawfirm.com. Mr. Giangreco’s
dant (plaintiff’s sister) had exercised any undue influ-      input may have been the motivating force in rejecting              Giangreco         firm will concentrate on personal
ence in procuring a change in beneficiary, the Court con-     plaintiff. While the Court observed that the Dean (i) had                           injury law, which he has practiced for
cluded that there was a triable issue of fact concerning      testified that he was unaware of the Chair’s views until           more than 15 years. Mr. Giangreco, an active trial
whether defendant had impliedly agreed to use the pro-        after he had made his own judgment; (ii) had provided              attorney, frequently lectures on no-fault issues and has
ceeds of the IRA for plaintiff’s benefit. The decision        the search committee’s views to the President;                     been a guest speaker on several radio shows discussing
includes a discussion of the elements of constructive trust   and (iii) had secured an independent evaluation of the             various legal issues. He is a graduate of Canisius
and undue influence claims.                                   candidates by an ad hoc committee, a question of fact was          College and the University of Akron School of Law,
                                                              presented as to the timing and significance of the Chair’s         where he was a member of the school’s Law Review.
EMPLOYMENT DISCRIMINATION                                     input into the decision-making process and whether the
                                                                                                                                    Recognizing a need for legal assistance in securing
  In Sadki v. SUNY College at Brockport (99-CV-6607L,         Dean was motivated by ethnic/religious bias.
                                                                                                                                 medical coverage and payment as provided by con-
02/18/04), the Court denied defendant’s motion for               In Habgood v. Eastman Kodak Co. (00-CV-6347 CJS,                sumers’ health insurance contracts, the law firm of
summary judgment dismissing plaintiff’s race/national         02/23/04), the Court granted in part and denied in part            Siegel, Kelleher & Kahn is launching a new legal
origin/religion discrimination claim under Title VII of the   defendant’s motion for summary judgment dismissing                 service for Western New York health care consumers.
Civil Rights Act of 1964, 42 USC §2000e et seq. arising       plaintiff’s sex discrimination claim under Title VII and the       According to Jennifer A. Coleman, an attorney with
out of defendant’s decision not to appoint plaintiff, a       New York Human Rights Law. The decision includes a                 the firm, Siegel Kelleher and Kahn now provides legal
                                                              discussion of the “continuing violation” doctrine and the          services for medical insurance enforcement and recov-
                                                              elements necessary to establish hostile work environment,          ery. Private health insurers and Medicare often deny
                                                              failure to promote and unequal pay claims.                         claims for covered services. When an insurance compa-
                                                                                                                                 ny refuses to authorize a procedure that the patient’s
                                                              INSURANCE                                                          physician feels is medically necessary, the patient may
                                                                 In Terry v. Unum Life Ins. Co. (03-CV-312S, 1/22/04)            need legal assistance to resolve the dispute quickly. The
                                                              the Court granted the defendant disability insurer’s               firm will also advise consumers with long-term disabil-
                                                              motion to dismiss on statue-of-limitations grounds. The            ity claims.
                                                              policy required any suit to be brought within three years,                               Michael Schiavone of Lipsitz,
                                                              defendant rescinded the policy in 1998, but plaintiff did                             Green, Fahringer, Roll, Salisbury
                                                              not sue until 2003. The Court also dismissed plaintiff’s                              & Cambria, LLP, has been elected
                                                              claim for “fraudulent claim denial,” stating that “New                                to the Board of Directors of the
                                                              York law does not recognize an independent tort claim                                 Fredonia College Foundation. The
                                                              for bad-faith denial of insurance coverage.”                                          Fredonia College Foundation is a not-
                                                                 In Doe v. Cigna Life Ins. Co. (00-CV-1018S), the                                   for-profit corporation focusing on
                                                                                                                                 Schivone           gifts and endowments to advance the
                                                              Court upheld the Magistrate’s decision granting
                                                              the defendant disability insurer’s motion for summary                                 needs of the State University of New
                                                              judgment in this ERISA-governed case. Applying the                 York at Fredonia. Mr. Schiavone was first associated
                                                              “arbitrary and capricious” standard of review, the Court           with the school as a student, earning his BA from SUNY
                                                              found that plaintiff did not file a timely notice of claim,        Fredonia before going on to receive his JD from
                                                              rejecting plaintiff’s argument that a letter from his              Syracuse University. As a senior partner at Lipsitz,
                                                              employer providing “preliminary notice” of a claim by              Green et al., Mr. Schiavone concentrates his practice in
                                                              an unnamed employee was proper notice.                             business law, estate planning and commercial real
                                                                                                                                 estate.
                                                              REMOVAL                                                              Daniel W. Gerber of Jaeckle Fleischmann & Mugel,
                                                                                                                                 LLP has received the New York State Bar Association
                                                                 In Owczarek v. The Austin Co. (03-CV-0750E(F),
                                                                                                                                 Chairperson of the Year award. Mr. Gerber was hon-
                                                              02/11/04), the Court granted plaintiff’s motion to remand
                                                                                                                                 ored for his service as chair of the Insurance Coverage
                                                              a removed diversity case on the ground that the removing
                                                                                                                                 Committee. A partner in the firm’s litigation practice
                                                              defendant had failed to provide the court with each defen-
                                                                                                                                 group, Mr. Gerber concentrates his practice on com-
                                                              dant’s written consent to removal. The Court held that a
                                                                                                                                 mercial litigation and complex insurance coverage, as
                                                              mere representation by the removing defendant that all
                                                                                                                                 well as defense and representation of policyholders and
                                                              defendants have consented to removal is insufficient.
                                                                                                                                 insurers in a variety of coverage matters.
                                                                In Piacente v. State University of New York at Buffalo
                                                                                                                                                   The Niagara Frontier Corporate
                                                              (03-CV-0672 E(Sc), 02/14/04), the Court denied
                                                                                                                                                Counsel Association, Inc., an associa-
                                                              plaintiff’s motion to remand, rejecting his contention that
                                                                                                                                                tion of in-house attorneys in Western
                                                              the case had to be removed within 30 days of service of
                                                                                                                                                New York, recently elected Carmen
                                                              the first-served defendant (the “First Served Defendant
                                                                                                                                                L. Snell as President for 2004. Ms.
                                                              Rule”). The Court held that the modern trend in the
                                                                                                                                                Snell is senior legal counsel for
                                                              case law, and the view more consistent with the language
                                                                                                                                                HealthNow New York, Inc., d/b/a
                                                              of 28 USC §1446(b), looks to the date of service on the
                                                                                                                                 Snell          BlueCross BlueShield of Western New
                                                              removing defendant (the “Removing Defendant Rule”).
                                                                                                                                                York. Other officers elected were Vice
                                                              Under the Removing Defendant Rule, a later-served
                                                                                                                                 President, Mark Stuhlmiller; Secretary, Russell
                                                              defendant may remove the action within 30 days of
                                                                                                                                 Matuszak; and Treasurer, James Patterson.
                                                              the date that defendant was served, provided that
                                                                                                                                 Continuing members of the Board of Directors are
                                                              the removing defendant also secures the consent of all
                                                                                                                                 Louise Carey, John Fahnestock, Jr., Randy Fahs,
                                                              other defendants.                                       [ B]
                                                                                                                                 Peggy Gryko, Karen Matthews, Sarah Mugel and
                                                                                                                                 Ernie Norman. Newly elected Board members are
                                                                                                                                 William Lundquist, Michael Risman and
                                                                                                                                 Elizabeth Tommaney.                              [ B]
                                                                                                                                                                         PAGE 9
                                April 2004 | www.eriebar.org




Annual Bowling
Tournament to Assist                                                   Set ’Em Up and Knock ’Em Down!
Lawyers for Learning
                                                                                                         at the Fifth Annual
  The price of admission to this year’s Bowling
Tournament includes a new or gently used book or board              Bar Association of Erie County Bowling Tournament!
game to help fill a Resource Closet used by the Lawyers
                                                               Where: AMF Thruway Lanes, 1550 Walden Avenue, Cheektowaga
for Learning Program. This program, which has been in
place at Buffalo’s inner-city School 18 since 1999, has        When: Thursday, May 6, 2004 / 6:00 registration and warm-up / 6:30 p.m. Tournament bowling
approximately 100 volunteers (both lawyers and non-            Why:   Benefit the Lawyers for Learning program
lawyers) who serve as tutors to the school’s elementary-                          Two games of bowling (Third game optional)!
aged students. The Resource Closet is an area in the                              Shoes provided!
school that organizers hope to fill with educational
resources that volunteer tutors can use to assist them in                         Men’s, Women’s and Mixed teams (five-person teams)
their work with students.                                                         Prizes! Raffles! Contests!
  The wildly popular Bowling Tournament – which is a                              Trophies!
benefit for Lawyers for Learning – draws about 300                                Admission includes pizza, wings, pop and draft beer (6:30 - 8:30)!
lawyers each year to the Thruway Lanes. The                                       Team and Individual prizes!
Tournament continues to draw teams from the Appellate                             Prizes for Team Outfits, Team Names and other dubious distinctions!
Division in Rochester, as well as from Wyoming and other
outlying counties in the district. So why deprive yourself     Cost:    $125 per team of five, plus a gift of a new or mildly used book or
of any excitement?! Plan now to attend this year’s                      educational board game for the Lawyers for Learning Volunteer Resource Closet.
Tournament by filling out the registration form at right.      Spectators are welcome: Only $15.00 includes food and bar privileges! First reserved, first served!
                                                               Reserve early with your payment by WEDNESDAY, APRIL 21, 2004!
Lawyers Serve as Mentors                                       Questions? Direct them to Tracey Bannister at 845-2108 / Kate Roach at 845-9355 /
to Inner-City Students                                         or Shari Jo Reich at 883-2889.
   The Lawyers for Learning program is intended to help
students at School 18 improve their academic perfor-            BECOME A SPONSOR! Call Jim Eagan at 852-5875
mance while building self-esteem and increasing self-con-       Team Sponsor (includes 1 team): $500.00
fidence. The students are in grades one through eight and
                                                                Tournament Sponsor: $250.00; Lane Sponsor: $100.00
tutors have the opportunity to select a preferred age
group. Each tutor is assigned one or two children for the       Reservations                                           FULL PAYMENT OF AN ENTIRE TEAM
academic year. The volunteer then meets with the stu-                                                                  NECESSARY TO ENSURE YOUR TEAM’S SPOT!
dent(s) one hour per week to help with basic academic           Bar Bowling Thursday: May 6, 2004
skills (i.e., reading, writing, math), as well as homework      Team Name_______________________________               Make checks payable to: LFL, Inc.
assignments.                                                                                           _
                                                                Team e-mail contact ____________________ __            Send payment to:
  Attorneys Jim and Susan Eagan are among the pro-              Circle one:             Men’s Women’s Mixed            Bar Association of Erie County
gram’s original founders. They choose to volunteer their        Bowler (name)_____________________________
time with the Lawyers for Learning program because,                                                                    Attention: Sherry Palermo
according to Jim, “It’s                                         Bowler (name)_____________________________             438 Main St., Sixth Floor
an opportunity to give                                          Bowler (name)_____________________________             Buffalo, New York 14202-2992
back to the community        “ A hundred years                  Bowler (name)_____________________________             Deadline: April 21, 2004
on     a     one-on-one                                         Bowler (name)_____________________________
                             from now, it will
basis…you can imme-
diately see the results of   not matter what my                 Spectators @ $15.00                 ____________       Please indicate if there is another team you would like
your work.”                                                     Amount enclosed                      $__________       to bowl:__________________________________
                             bank account was,
   Many of the children        the sort of house I
who benefit from the
mentoring aspect of the        lived in or the kind
program are lacking in         of car I drove.
many of the things that
most of us take for            But the world may
granted, from clothing
and books to education-
                               be different because
al resources and support       I was important in
in the home. Volunteers        the life of a child.”
need only commit one
hour a week to working
with a student during
the school year. To find out more about how you can make
a difference in the life of an inner-city child, call Jim
Eagan at 852-5875.                                    [ B]
PAGE 10
                                                                                                                         www.eriebar.org | April 2004




                                                                                                                                   Mentioning our 2003 Partner Law Firms and
                                                                                                                                Diamond       Supporters     is  a    good     segue
                                                                                                                                to talking about VLP’s 2004 Law Firm Fundraising
   in the public service                                                                                                        Campaign. By the time you are reading this, hopefully
                                                                                                                                your law firm will have received a letter from our
                                                                                                                                Board of Directors asking your law firm to make a
                                                                                   By Robert M. Elardo, Managing                financial pledge to support the work of VLP and our
                                                                                   Attorney, Volunteer Lawyers Project          hundreds of volunteers.
                                                                                                                                  Each year, our volunteers and staff help thousands of
                                                                                                                                low-income people with important legal problems.
Pro Bono Awards Presented at VLP Reception                                                                                      These are real life problems like families avoiding being
  On February 11th, we held our 11th Annual Volunteer                                                                           put out of their homes through a mortgage foreclosure,
Recognition Reception to thank the hundreds of volun-                                                                           tax foreclosure or eviction; victims of domestic violence
teers who participate with VLP. The Honorable Eugene F.                                                                         getting the family law help they need; disabled people
Pigott, Jr., Presiding Justice of the 4th Department; the                                                                       getting medically necessary equipment to help them
Honorable Sharon S. Townsend, Administrative Judge for                                                                          lead more normal lives; grandparents who are stepping
the 8th Judicial District; and Michael J. Flaherty,                                                                             in to care for children who are in danger of ending up
President of the BAEC each spoke about the value of VLP                                                                         in foster care; families affected by HIV/AIDS planning
to the community and then helped thank the Pro Bono                                                                             for the long term care of their children; and immi-
Award winners who were honored.                                                                                                 grants who are facing deportation, even though they
                                                                                                                                may have lived most of their lives in the United States
  Judge Pigott was surprised to learn that he was one                                                                           and gotten into only minor problems.
of the Pro Bono Award winners. Although he down-
played his role, his support for the efforts of VLP and     Showing Support for VLP                                                In addition to helping all of these clients, VLP also
our volunteers has been unwavering over the years.                                                                              helps our volunteer attorneys by providing trainings
                                                            Pictured above at the Volunteer Recognition Reception
This is the fourth year in a row that he has taken time     sponsored by the Volunteer Lawyers Project are, left to
                                                                                                                                with CLE credit and by providing CLE credit for pro
out of his busy schedule as Presiding Justice to be at      right, VLP Managing Attorney Robert M. Elardo, Presiding            bono work. We also like to thank our financial support-
our Volunteer Recognition Reception to help thank the       Justice Hon. Eugene F. Pigott, and Administrative Judge             ers. Lists of firms and individuals that contribute to our
                                                            Sharon S. Townsend.                                                 Law Firm Fundraising Campaign are published sever-
award winners for their volunteer efforts. Last sum-
mer/fall, he helped plan and also spoke at our very suc-      The entire event was paid for through the generous                al times through out the year in mailings that go out to
cessful ethics CLE that was held in conjunction with        donations of numerous local organizations and busi-                 the entire bar.
our 20th Anniversary Party. The involvement by Judge        nesses. Our Golden Sponsors were the Bar Association of
Pigott, Judge Townsend and numerous other judges            Erie County, Forge Consulting,
definitely makes a positive difference in how attorneys     Landmark Land Surveying Co.,
think about VLP when they are considering spending          Monroe       Title     Insurance
some of their valuable time to get involved.                Corporation,       Ticor    Title
                                                            Insurance Company, Batavia
Congratulations to each                                     Legal Printing, and the Defense
of the following award winners!                             Trial Lawyers Association of
                                                            WNY. Our Silver Sponsors were
  Ruth Ritchell Award (In-House Volunteer Attorney):
                                                            the Minority Bar Association of
  Chester Dann
                                                            WNY, the UB Law Alumni
  In-House Volunteer: Michael E. Hughes                     Association, Network Title,
  Sandy Kulick Award (Mentor Award):                        Capital Abstract Company, The
  Francis X. Carroll                                        Daily Record, the Buffalo Law
                                                            Journal, the WNY Trial Lawyers
  Bankruptcy Award: John D. Wieser                          Association and Dedecker-Saxe
  Divorce Awards:                                           and Associates.
  Brian R. Welsh and Gregory J. Stewart
  VLP V.I.P Awards: Kathleen M. Mehltretter,
           .                                                Law Firm
  Matthew B. Herdzik, Jr. and Lawrence S. Lane              Fundraisers Recognized
                                                                                                                                  VLP recognized the Diamond Supporters who were in
  Solo Practitioner: Raymond M. Pfeiffer                      At the Reception, VLP also thanked some of our most                 attendance at the reception. Pictured with Bar Board
                                                            generous financial supporters of 2003. Certificates of                member Katherine Bestine, far right, are: left to right,
  Small Law Firm Award: Hartman & Ridall, PC                                                                                      Garry Graber, Nelson Perel of Webster Szanyi, LLP, Jeffrey
                                                            Appreciation were presented to the seven Diamond
  Large Law Firm Award: Damon & Morey                                                                                             Freedman and Bradlee Townsend of Harris Beach LLP.
                                                            Supporters (at least $1,000 and at least $100 per attor-
  Litigation Award: Jeremiah J. McCarthy                    ney). They were: Harris Beach LLP; Jeffrey
                                                            Freedman Attorneys at Law; Gross, Shuman,
  Immigration Award: F. Alejandro Gutierrez
                                                            Brizdle & Gilfillan, PC; Paul William Beltz, PC;
  Family Court: Kevin M. Reedy                              Nixon Peabody LLP; Webster Szanyi, LLP; and
  Attorney of the Morning (Landlord-Tenant):                Garry M. Graber.
  Noralynn A. Dillon                                          VLP again acknowledged the four Partner Law
  Haven House Project (Domestic Violence Victims):          Firms from 2003 (at least $5,000) who were previous-
  Wallace Wiens                                             ly recognized at the Retiring Judges Reception. They
  Meritorious Services Award: Mark A. Leiter                were: Jaeckle, Fleischmann & Mugel, LLP;
                                                            Phillips Lytle LLP; Cellino & Barnes; and
  Judicial Award: Hon. Eugene F. Pigott, Jr.
                                                            Hodgson Russ LLP.



                                                                                                                                Administrative Judge Townsend and Presiding Justice
                                                                                                                                Pigott are pictured with Gregory J. Stewart and Brian R.
                                                                                                                                Welsh, far right, the recipients of the Divorce Award.


                                                                                                                                  Please seriously consider making a financial contri-
                                                                                                                                bution to VLP’s 2004 Law Firm Fundraising
                                                                                                                                Campaign. I promise you that the funds will be well
                                                                                                                                spent on furthering our mission of bringing quality pro
                                                                                                                                bono civil legal services to low-income people and
                                                                                                                                small not-for-profit groups. For more information,
                                                                                                                                please call me at 847-0662 ext. 12 or e-mail me at
                                                                                                                                relardo@wnylc.com.                                 [ B]
                                                                                                                        PAGE 11
                                April 2004 | www.eriebar.org




Congratulations to 2004’s Newly Admitted Attorneys!
  The Bar Association of Erie County extends a warm           Stephanie Lynne Guerriero     Amol Kumar Pachnanda
welcome to the following new members of the Bar who           John J. Hannibal              Carrie Patricia Parks
were admitted in a recent ceremony held in the                Christian John Henrich        Nadine E. Patterson
University of Buffalo’s Slee Concert Hall. The new
admittees heard from Presiding Justice Eugene F.              Brian Robert Hogan            Jill Marie Plavetzki
Pigott and Bar President Michael J. Flaherty, who             Bernadette Marie Hoppe        Martin Alex Polowy
served as master of ceremonies.                               Susan M. Howard               Marybeth Priore
  Also participating were Associate Justices Samuel L.        Anastasia Ifandis             John Francis Quinn, III
Green, Elizabeth W. Pine, Henry J. Scudder and                Arienne Jill Irving           Richard Thomas Rankin
Jerome C. Gorski. Michael A. Battle, United States
Attorney for the Western District of New York, deliv-         Douglas Anthony Janese, Jr.   Andrea Marie Rigdon
ered the keynote address and leaders of local legal           Deborah Kim Jessey            Alan J. Roscetti
organizations also addressed the group.                       Peter T. Juliano              Peter J. Savage, III
                                                              Gretchen Marie Kaplan         Joseph E. Schneider
Congratulations to all!
                                                              Ronald J. Kilburn             Lori Marie Shawver
David Michael Abbatoy          Alison Jean Cleary             Robert G. Knaier              Michelle Corinne Smeadala
Cheryl Ann Aloi                Patrick Michael Corbett        Dawn M. Kornaker              Michael A. Smeader
Jonathon Lucas Altman          Andrew J. Cornell              Thomas Martin Krol            Jamie M. Smith
Emily Lynn Anderson            John Michael Coyle             Jane Ellen Kwiatkowski        Tammy Lynn Smith
Jessica L. Anderson            Gina Marie DePrima             Gavin M. Lankford             Christina Sorrento
Christen D. Archer             Esther Fay Dittler             Marie E. Lemmo                Kristin Anne St. Mary
Fawn Amber Arnold              Steven Richard Dolson          James Michael Lennon          Edward William Stano
Julie Ann Atti                 Mariely Lindsay Downey         Joseph Alexander Leta         Mark Andrew Starosielec
Jessica Marie Baker            Kimberlee M. Dunlop            Kathryn Elizabeth Lewien      Katie Denise Strangis
Robert Christopher Baron       Tonia Marie Ettinger           Julian S. Lim                 Megan Bette Szeliga
Ronald Joseph Battaglia, Jr.   Patrick B. Farrell             Jason Allen MacBride          Paul Forrest Tomkins
Keith Ian Bernstein            Yousra Yousuf Fazili           Anne Letizia Magats           Jaclyn Suzanne Wanemaker
Brian Biggie                   Anthony Pasquale Forgione      Athena E. McCrory             Gregory Michael Weigand
Michael Vincent Booth          Melissa Ann Foti               Andrew Michael McElwee        Steven William Wells
Amy Catherine Brann            Jessica E. Fried               Ryan James Mills              Scott Bryan Wheat
Jorien L. Brock                Nicole Carol Gazzo             William Patrick Moore         Eileen M. Wheeler
Thomas Clark Burnham           Bradley R. Girdler             Margaret A. Murphy            Scott Joseph Whitbeck
Howard Dunning Cadmus          Laura L. Gisser                Carly Marie Nasca             Keri Deshane White
Frank C. Callocchia            Christopher Stephen Glascott   Amanda Beth Newton            Wallace Waltraut Wiens
Grace Marie Carducci           Wendy Marie Gonzalez           Dia Helen Nicolatos           Brian Richard Wutz
Angela Renee Carlson           Jonathan Gerald Gorman         Maura Kathleen O’Donnell      Brian Daniel Zuccaro
Michelle Lynn Cianciosa        Thomas Joseph Grillo, Jr.      April J. Orlowski
PAGE 12
                                                                                                                        www.eriebar.org | April 2004




Working with Non-Filers: Strategies to Avoid Prosecution                                                                       Citations           continued from page 4

By Deborah J. Muhlbauer
                                                                                                                               (Prendergast v. Cosco and Village of Whitesboro,
                           Where to Begin                      1998 and 1999 but did not file because he was going             __AD2d__, 4th Dept., 2/11/04, #232)
                           with the Non-Filer                  through a bad divorce and he knew he overpaid any                  SECOND GUESS MAY NOT BE A SUCCESS
                                                               tax due through his withholdings. Then the taxpayer               The Fourth Department has affirmed Justice Joseph
                               Non-filers generally come
                                                               starts his own business in 2000 and has done well with          Makowski’s denial of a summary judgment motion by
                            in two different categories:
                                                               that business to the present. The taxpayer has not filed        the defendant town in a case involving enforcement of
                            worried, distraught and
                                                               for the last three years (2000, 2001, 2002) because he          a conservation easement granted by one Town Board
                            ready to come forward; or
                                                               has been so busy with the new business and he believes          and rescinded by a new Town Board. (WNY Land
                            arrogant, stubborn and need-
                                                               he is okay because he knows he overpaid his tax                 Conservancy, Inc. v. Town of Amherst, __AD2d__,
                            ing to be convinced. For the
                                                               through withholding in 1998 and 1999. Unfortunately             2/11/04, #1227)
                            worried, distraught individ-
                                                               for the taxpayer, the 1998 return was due on 4-15-99.
                            ual, very little convincing is
Muhlbauer                                                      As such, the taxpayer had until 4-15-02 to file the                         “SERIOUS” SENSITIVITIES
                            necessary to have the client
                                                               return and claim the refund. The 1999 return was due              A chiropractor’s affidavit and report were held to be
come forward to the IRS. However, for the arrogant
                                                               on 4-15-00. As such, the taxpayer had until 4-15-03 to          sufficient to avoid dismissal on threshold grounds of
and/or stubborn individual, a little more work is nec-
                                                               file the return and claim the refund. The end result is         injury claims allegedly resulting from an automobile
essary. If your client is the latter, here are a few reasons
                                                               that the client will forfeit the refunds for 1998 and           accident. (Hoffmann v. Stechenfinger, __AD2d__,
to present to your client that may persuade him to
                                                               1999 but will still owe the full amount, plus interest          2/11/04, #47) (See also Cummings v. Riedy,
come forward.
                                                               and penalties, for tax years 2000, 2001 and 2002.               __AD2d__, 2/11/04, #104)
1. The IRS will eventually find the client anyway.
                                                               What Can the IRS Do?                                                            SEC. 240 ROUNDUPS
   Generally, when a taxpayer has failed to file returns
                                                                                                                                 A Labor Law sec. 240 claim arising out of plaintiff’s
for a number of years, it is only a matter of time before         The IRS has many ways to obtain information about            decedent being hit by a falling coil of rope was dismissed
the IRS catches up to him. There are several ways in           a taxpayer. If a taxpayer does not voluntarily come for-        by our Fourth Department in Shaheen v. Hueber-Breuer
which this can happen, but most notably the reporting          ward, when the IRS eventually locates him, it will pro-         Const. Co, Inc., (__AD2d__, 2/11/04, #9)
requirements of all kinds of financial transactions            ceed against the taxpayer either civilly or criminally.
allows the Service to track and locate taxpayers. Some                                                                           Plaintiff’s leg was allegedly injured when sheetrock
of the forms and filings that may lead the IRS to your            Once the Service determines that a taxpayer may              panels toppled against the manlift on which plaintiff
client are W-2 information; 1099 information: report-          have a filing obligation, if the IRS intends to initially       was standing. The Fourth Department dismissed his
ing of cash transaction of $10,000 or greater; and             proceed with a civil case, the Service will generally           sec. 240 claim. (Millard v. Hueber-Breuer Const. Co.,
informants. Ex-spouses and ex-employees are also a             contact the taxpayer and request the return. If the tax-        Inc., __AD2d__, 2/11/04, #110)
great source of information to the IRS.                        payer does not produce the return or explain why no
                                                               return is due, the IRS will proceed to prepare a substi-          Sec. 240 liability was upheld where the plaintiff fell
2. Living underground has many problems and limitations.       tute return for the taxpayer based on the information it        through an elevated electric sign he was inspecting
                                                               has or will obtain from third parties. The IRS can use          preparatory to the repair of the sign. (Bagshaw v.
  If your client has not filed returns in several years, he
                                                               its summons power to obtain a wealth of information             Network Service Management, Inc. et al., __AD2d__,
may have entered the world of the “underground”
                                                               about a taxpayer, including but not limited to bank             4th Dept., 2/11/04, #136) (However, compare with
economy. However, there are many problems that exist
                                                               statements, credit card and investment statements.              Barczykowski v. Benderson Dev. Co., Inc., __AD2d__,
for the cash-only lifestyle. For example, if your client
                                                                                                                               4th Dept., 2/11/04, #145)
needs credit to make a major purchase, such as a house           Once the return is prepared by the Service, it will
or a car, he will be unable to get it because he has no        then ask the taxpayer to sign the return. If the taxpay-          The fact that Defendant was a mere “lessee” of pre-
reported income to prove his ability to repay. He may          er signs the substitute return, then the return is treat-       mium will not necessarily preclude liability under the
be held back in his career and be unable to take a bet-        ed as a return for all purposes, including the statute of       Labor Law. (Riordan v. BOCES of Rochester,
ter job for better wages because he will surface. Finally,     limitations. If the taxpayer fails to sign a substitute         __AD2d__, 4th Dept., 2/11/04, #213)
his ability to claim many benefits such as Social              return, but agrees to an examination report that incor-           Sec. 240 liability was found where plaintiff fell
Security, Unemployment or Workers’ Compensation                porates the substitute for return, the Form 870                 through a hole he had uncovered in a roof while
are seriously diminished because he has no wages on            Agreement is treated as if the taxpayer signed the              removing roofing material. (Justyk v. Treibacher
which these benefits can be based.                             return.                                                         Schleifmittel Corp. et al., __AD2d__, 4th Dept.,
3. If the IRS owes the client money, the client must claim       However, if the taxpayer refuses to sign the substi-          2/11/04, #236)
it in a limited period of time.                                tute return, and if the taxpayer refuses to sign a Form           Sec. 240 liability was denied where plaintiff fell
   The client may think that if money is owed, it is off-      870 Agreement which incorporates the substitute                 in the course of removing and repairing a single
set by a prior year’s withholding. This may be true, but       return, the 6020(b) return is treated as prima facie,           window screen. (CHIZH v. Hillside Campus Meadows
what the client often does not realize is that the offset      good and sufficient for all legal purposes. Nevertheless,       Associates, LLC, __AD2d__, 4th Dept., 2/11/04, #1532)
is not automatic. The client must file the return to           prior to assessment of a tax shown on a substitute
                                                               return, the IRS must issue a Notice of Deficiency (or 90          In Greenman v. Page (__AD2d__, 4th Dept.,
claim the refund of money in any given year. Generally,                                                                        2/11/04, #1638), the majority holds to a liberal
a taxpayer must file a claim for refund within the later       Day Letter) because the taxpayer has not agreed to the
                                                               tax shown on the return. The normal procedures for a            interpretation of the exemption for one and two family
of three years of the due date of the return or two years                                                                      dwellings and reinstated the sec. 240 claim.      [ B]
from the date the tax is paid. Withholdings on wages           Notice of Deficiency must be followed and the taxpay-
are considered paid on April 15th of the year following        er will have 90 days to petition the United States Tax
the year in which wages are earned. As such, the client        Court, if he disagrees with the amount of tax in the
will have no more than three years from the due date           Notice of Deficiency.
of a return to claim a refund of the overpayment made            If a taxpayer refuses to become active in the process
to the government through the client’s withholdings.           at any point in time, the tax will eventually be assessed
  To illustrate the above, provide your client with this       and a liability created. Technically, the taxpayer’s only
example: Taxpayer has not filed returns for the last five      recourse is to pay the tax and make a claim for refund.
years, 1998-2002. Taxpayer was a W2 wage earner in                                                    continued on page 16
                                                                                                                                                                     PAGE 13
                               April 2004 | www.eriebar.org




                                                                                                                       “There simply aren’t enough superlatives to describe
Legal Secretary Gives New Meaning to Longevity                                                                       Thelma,” he says, noting that he has remained in
                                                                                                                     contact with her over the years. “She is an absolute
                                                           landed a position as a legal secretary in the Claims
                                                                                                                     delight.”
                                                           Department of the Travelers Insurance Company in
                                                           1927, where she remained for the next 24 years. Her          Thelma spent the next five years with the firm until
                                                           then-husband, James Ingram Campbell, worked for           it disbanded in 1979. She went home and (you guessed
                                                           the New York Central Railroad and was transferred to      it!) found herself anxious to get back to work. Two
                                                           Rochester. Thelma regretted the couple’s move, as it      days later, she joined Flaherty and Shea, where she has
                                                           came just one year shy of what would have been her        remained ever since.
                                                           25th anniversary with Travelers, a milestone that           “Thelma has added a great deal to the office over the
                                                           would have been celebrated with the gift of a diamond     years,” Mike Flaherty says, noting that the firm’s
                                                           ring from the company.                                    “senior secretary” continues to dress up for every holi-
                                                             Her husband was subsequently transferred to Utica       day, from shamrocks on St. Patrick’s Day to red, white
                                                           and it was his preference for his wife not to work.       and blue on the Fourth of July.
Mike Flaherty and Thelma Campbell
                                                           Ambitious, accustomed to being busy, and very much          Ms. Campbell now keeps a part-time schedule at
                                                           ahead of her time, Thelma was “bored silly” and ulti-     Flaherty and Shea, where she continues to work on
  Whenever anyone mentions the “R” word to Thelma          mately decided to move herself and her cherished baby     wills, pleadings, and correspondence. Until recent
Colette DeChend Campbell, her response is succinct:        grand piano back to Buffalo, leaving James Ingram         hearing difficulties prevented her from continuing,
“Retire to what?!”                                         Campbell behind in the process. A gifted pianist from a   Thelma was “the most fantastic stenographer,” Mike
  Ms. Campbell, who has now worked as a legal secre-       musical family, Thelma somehow managed to get the         Flaherty says, noting that the two of them evolved a
tary for the Buffalo law firm of Flaherty and Shea for     piano into a third-floor walk-up on Elmwood Avenue        wonderful system of giving and taking dictation over
25 of what most would consider their post-retirement       and herself into a temporary job at the Erie County       the years.
years, clearly practices what she preaches. When           Clerk’s office in the Rath Building.
                                                                                                                       Not only did she love doing this work but “it was
Thelma joined the firm in 1979, she brought with her          When the temporary work ended, she landed a new        always letter perfect,” according to Mike Flaherty, who
an astounding 58 years of experience as a legal secre-     position with the New York Central Railroad, working      also maintains that “Thelma would have made an
tary and stenographer.                                     for Wilson Broadbent, the chief claims agent in charge    excellent court reporter.”
  Warren Harding was in the White House in 1921, the       of the personal injury department. She remained in
                                                           that position until 1961, when a massive layoff elimi-       While she is far too modest to allow her age to be
year that Thelma DeChend graduated from the secre-                                                                   published here, Thelma’s longevity is nothing short of
tarial program at Hurst’s Private School in downtown       nated many positions, including hers. Her boss’s wife
                                                           just happened to be the telephone operator at Phillips    record-breaking. She bought a brand new home one
Buffalo. She landed her first job that same year, with                                                               weekend back when she was in her late 80s. She con-
the law firm of Harding and Harding, a father and son      Lytle at the time and Thelma was referred back to the
                                                           new incarnation of a firm where she had worked near-      tinues to play the piano and drive. An avid racehorse
team in general practice.                                                                                            fan, Thelma still enjoys traveling across the border to
                                                           ly 40 years earlier.
   Her remarkable career includes a stint at Kenefick,                                                               place bets from her favorite seat in the grandstand at
Cook, Mitchell and Bass in the 1920s (the firm was a       Official Retirement Lasts Only Days                       Fort Erie.
forerunner of Phillips Lytle, which she subsequently re-                                                               She also has total recall of many of the people
joined in the 1960s), along with a job modeling fur          Thelma officially “retired” from Phillips Lytle in
                                                           1974 with a big party at the former Plaza Suite restau-   and places that have made Erie County’s legal
coats at the former Clawson and Wilson store on                                                                      community noteworthy over the years. Ask her a
Washington Street. She worked as a secretary at the        rant high atop the M & T building overlooking down-
                                                           town Buffalo. After being home for a total of one week,   question about a legal luminary from yesteryear and
store but thoroughly enjoyed the extra modeling work                                                                 she will no doubt have a story to share, along with the
she was given, joking with her bosses that one day, she    Thelma again found herself bored. Her boredom coin-
                                                           cided with the formation of a new law firm by Steve       correct spelling of the person’s name. A fascinating
just might walk straight out the front door wearing one                                                              woman who continues to impart a great deal of color
of the elegant mink or ermine coats she modeled.           Lamantia, Mike Gelacak and Jeff Swartzbaugh.
                                                                                                                     and spirit into her everyday interactions, Thelma
  Thelma’s career was temporarily sidetracked by a           Now retired himself (albeit at a younger-than-aver-     Campbell’s tenacity and joie de vivre remain an
near-fatal bout with typhoid fever, which left her         age age), Steve Lamantia fondly recalls that Thelma       inspiration to us all.                             [ B]
unable to work for several months. But the indefatiga-     was his first secretary when he began practicing law at
ble young woman soon made an amazing recovery and          Phillips Lytle.
PAGE 14
                                                                                                                    www.eriebar.org | April 2004




                                                          Professional Ethics                                              New Law Guardian
                                                          Committee Opinion                                                Process and $50,000
                                                             The Professional Ethics Committee meets monthly
                                                          to consider inquiries from members concerning issues
                                                                                                                           Cap Clarified
                                                          addressed by the Lawyer’s Code of Professional
                                                                                                                              In response to questions which have been raised
                                                          Responsibility. The Committee’s Opinions will be pub-
                                                                                                                           about the new law guardian process that became effec-
                                                          lished in the Bulletin on a regular basis. The
                                                                                                                           tive on January 1st of this year, the Office of Court
                                                          following Opinion (#0307, 1/15/04) deals with funds
                                                                                                                           Administration has provided the following clarification:
                                                          belonging to a missing client.
                                                                                                                             The $50,000 Rule (Section 36.2 (d)(2) prohibits a
                                                          Topic:       Funds belonging to a missing client.
                                                                                                                           compensated appointment in a calendar year if in the
                                                          Digest:      Preserving Identity of Funds and Property           prior calendar year, the appointee received awards
     Contributions to the Erie County Bar Foundation                   of Others; Fiduciary Responsibilities;              (orders) that totaled more than $50,000. In general,
     provide an excellent vehicle for recognizing and                  Missing Clients                                     prior law guardian practice did not include a final
     honoring members of our profession. Memorial         Code:        DR 9-102 F. [§1200.46]                              order awarding compensation. It was not until the new
                                                                                                                           process took effect on January 1, 2004, that there was
     gifts to the Foundation become a lasting tribute     Question:    What is a lawyer to do with a small sum of          provision for a final order awarding compensation.
     to the entire legal profession, as funds are used                 missing client funds in cases where there           Because there were few, if any, compensation awards
     exclusively to assist attorneys and promote                       was no action?                                      (orders) to law guardians for the year 2003, it became
     understanding of our legal system.                   Opinion:     DR 9-102F prescribes:                               impossible to consistently apply the $50,000 Rule to
                                                                                                                           law guardians for 2003.
     The Foundation gratefully acknowledges                 Whenever any sum of money is payable to a client
     the following contributions:                           and the lawyer is unable to locate the client, the                By making January 1, 2004, the effective date of the
                                                            lawyer shall apply to the court in which the action            new law guardian appointment process, it has been
                                                            was brought if in the unified court system, or, if no          resolved that the $50,000 rule will not be applied for
     In Recognition of Jeremiah J. Moriarty, III,           action was commenced in the unified court sys-                 law guardians in 2004, but will be applied for the first
     Recipient of the Olean YMCA Award:                     tem, to the Supreme Court in the county in which               time in 2005.* In applying the rule in 2005, compen-
        Warren M. Emerson                                   the lawyer maintains an office for the practice of             sation shall be included if awarded by order issued
                                                            law, for an order directing payment to the lawyer              after January 1, 2004, for appointments made on or
     In Celebration of the 50th Wedding                     of any fees and disbursements that are owed by                 after June 1, 2003. If an appointment is made on or
     Anniversary of Patrick & Teresa Hurley:                the client and the balance, if any, to the Lawyers’            after January 1, 2004, any order awarding compensa-
        Bob & Maryann Freedman                              Fund for Client Protection for the safeguarding                tion in 2004 will obviously be for services rendered in
                                                            and disbursement of Successor Signatories.                     2004. If an appointment was made between June 1,
     In Honor of Joseph C. Vispi:
                                                                                                                           2003 and December 31, 2003, and continued into
        Mark R. Walling                                     The solution is that the LAWYERS’ FUND FOR
                                                                                                                           2004, an award of compensation in 2004 will include
                                                          CLIENT PROTECTION will accept sums of up to
     In Memory of Thomas A. Fortunato:                                                                                     the approval of services for both 2003 and 2004.**
                                                          ONE THOUSAND ($1,000) DOLLARS from a lawyer
        Bar Association of Erie County                    with a missing client, without an order. Otherwise, the            Further information on the new law guardian forms
        Lawrence H. Wagner                                rule is instructional.                                           and procedures can be found on the Web site for
        Philip H. Magner, Jr.                                                                                              Guardian and Fiduciary Services located at
                                                          Conclusion: The lawyer should forward his or her trust
                                                                                                                           www.nycourts.gov/ip/gfs.
     In Memory of John J. Madden:                                     check to the Lawyers’ Fund for Client
        Philip Celniker                                               Protection, 119 Washington Street,                     * This memorandum applies to privately paid law
                                                                      Albany, New York 12207.               [ B]           guardians and law guardian compensation only.
     In Memory of Marie Quinn
     (Mother of David C. Quinn and John P. Quinn, Jr.):                                                                      ** Any law guardian appointment made prior to June
        James and Mary Shea
                                                                                                                           1, 2003, which continues into 2004, is not subject to the
                                                                                                                           new law guardian process and is likewise not subject to the
        Stephen E. Cavanaugh
                                                                                                                           $50,000 Rule.                                          [ B]
     In Memory of Beulah Archilla
     (Mother of Daniel R. Archilla):
        John E. Ballow
        Scott Printup

     In Memory of Carmen DePaolo:
        George M. Zimmermann

     In Memory of Cecelia J. Rudnicki
     (Mother of Paul Rudnicki):
        James N. Carlo

     In Memory of George R. Hebard:
        W. Barry Mallon

     In Memory of our Orchard Park Friend
     and Colleague Ed Brown:
        Edward A. Pace
        John M. Curran
        Philip M. Marshall

     In Memory of Edmund S. Brown, Jr.
     (Brother of T. Alan Brown and
     Brother-in-law of Daniel Roach):
        Allan M. Lewis
        Anthony D. Mancinelli
        Bar Association of Erie County
        Daniel L. Schoenborn
        James and Mary Shea
        Jeffrey M. Freedman
        Joel L. Daniels
        John & Mary Alyce Kirschner
        Kate Roach & Kevin Hogan
        Lawrence H. Wagner
        Louis H. Siegel
        Mr. and Mrs. Harold P. Bulan
        Mr. & Mrs. Philip H. Magner, Jr.
        Peter J. Brevorka
        Philip Celniker
        Stephen E. Cavanaugh
                                                                                                                                                   PAGE 15
                               April 2004 | www.eriebar.org




Law Line Educates
Public on Legal Issues
  Since 1997, The Law Line has engaged the minds of
thoughtful Western New Yorkers who tune in to
WNED-AM (970) at 10:00 on Saturday mornings.
Host Mike Desmond talks to lawyers and judges from
                                                                     Pencil yourself in.
our legal community on wide-ranging topics related to
the law. The program provides a valuable public ser-
vice that reaches about 4,000 listeners each week.
  We appreciate the time that the following members
of our Association have taken to educate the public
about legal matter by volunteering their time to appear
on The Law Line. Members are listed in order of
appearance.
Andrew P. Fleming
What to Do if You Lose Your Job

Linda W. Chodos & Paul D. Pearson
Alternative Dispute Resolution and
the New Field of Collaborative Law

Sophie Feal & Rolando Velasquez
Recent Changes in Immigration Law,
Including Border Issues

Karen Spagenberg
What Can Your Government Do if You’re
Overseas and Something Goes Wrong?

Joseph H. Shaw, Jr.
Representing the Professional Athlete

Daniel J. Henry, Jr.
Miranda Rights

Russell D. Hall                                               Where do you fit into this schedule? The New York State Bar Association’s
What to Do if You Are Injured at Work
                                                              Lawyer Assistance Program understands the competition, constant stress,
Patricia H. Potts & Steven R. Sugarman                        and high expectations you face as a member of the legal community. Dealing
Mediation: A Common Sense Alternative                         with these demands and other issues can be overwhelming, which can lead
to Litigation for Divorce and Business                        to substance abuse and depression. Finding a balance between your career
Rose M. Pedone                                                and your personal life is not a luxury, but a necessity. NYSBA’s Lawyer Assistance
Permanency Planning for                                       Program is committed to helping you achieve that balance. We offer free and
Families Living with HIV-AIDS                                 confidential support. Confidentiality is protected under Section 499 of the
                                                              Judiciary Law.
Sallie G. Randolph
Downloading Music Off the Internet
                                                                    NEW YORK STATE                       BAR ASSOCIATION OF ERIE COUNTY
Hon. John F. O’Donnell                                                                                   Lawyers Helping Lawyers Committee
                                                                    BAR ASSOCIATION
The New Integrated Domestic Violence Court
                                                                    Lawyer Assistance Program            (716) 852-8687
Hon. Barbara Howe                                                   1.800.255.0569 lap@nysba.org
Article 81 Guardianships

John G. Brenon
Wills and Trusts

  The Law Line 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
Katherine Bifaro at 852-8687 or by email at
kbifaro@eriebar.org.                           [ B]
PAGE 16
                                                                                                                        www.eriebar.org | April 2004




                                                                Criminal Sanctions and Penalties                               Reconstruct the Income
Non-Filers...                 continued from page 12
                                                                   A tax evasion charge under IRC §7201 is the most
                                                                                                                                 There are many sources of information that can be
                                                                                                                               used to reconstruct a taxpayer’s income in past years.
                                                                frequently charged tax crime. Tax evasion is a felony
In reality, other options may exist that are beyond the                                                                        Obviously, if the taxpayer has maintained accurate
                                                                defined as the willful attempt to evade or defeat any
scope of this article. However, the other options are                                                                          books and records, that information and documentation
                                                                tax imposed by Title 26. The elements are: the exis-
often costly and there can be no guarantee of success in                                                                       can be used to reconstruct the income. However, if the
                                                                tence of a tax deficiency; an affirmative act constitut-
raising issues so late in the process. Additionally, after                                                                     taxpayer has not maintained adequate records (which is
                                                                ing an evasion or attempted evasion; and willfulness.
assessment, the IRS can begin active collection against                                                                        often the case), several sources of information can be
                                                                Willfulness is the voluntary and intentional violation of
the taxpayer and these options may not be successful in                                                                        used to reconstruct the taxpayer’s income, including but
                                                                a known legal duty. The same standard of willfulness
delaying collection.                                                                                                           not limited to: payer information obtained from the IRS;
                                                                applies to all criminal offenses under the Code.
                                                                                                                               bank statements; information obtained from prior
Civil Penalties                                                   Proof of willfulness is often circumstantial. “Badges”       employers; information obtained from credit card com-
                                                                of willfulness include, but are not limited to: failure to     panies, brokerage houses, etc.
   The two most frequently assessed penalties related to        report a substantial amount of income; pattern of
late filing are the failure to file and failure to pay penal-                                                                  Prepare the Returns
                                                                underreporting; dealing in cash that does not reconcile
ties under IRC §6651. Failure to file penalty under IRC                                                                          If the taxpayer’s returns are simple, the client may
                                                                to income reported on the return; keeping false books;
§6651(a)(1) provides that in the case of a failure to file                                                                     wish to prepare the outstanding returns himself to save
                                                                concealment of assets or income; structuring of activities
any return by its due date, in addition to the tax, a                                                                          money. If the returns are more complex or if the taxpay-
                                                                that avoid the usual transactional records; destruction of
penalty of 5% per month to a maximum of 25% can                                                                                er does not want to prepare the returns, the attorney
                                                                records; and or any act likely to conceal or mislead.
also be assessed. Failure to pay penalty under IRC                                                                             should assist the client in retaining the services of an
§6651(a)(2) provides that in the case of a failure to pay          A good faith misunderstanding of the law, even if           accountant or return preparer.
the amount shown as tax on any return by its due date,          objectively unreasonable, is always a defense to the ele-
                                                                                                                                  During the return preparation process, many clients
in addition to the tax, a penalty of half of 1% per             ment of willfulness because it negates the required spe-
                                                                                                                               get hung up on deductions. It is important that the
month to a maximum of 25% can also be assessed.                 cific intent. However, the Supreme Court in Cheek v.
                                                                                                                               attorney not allow the deduction issue to derail the com-
                                                                US, 111 S. Ct. 604 (1991) clarified that although the
  In addition to the failure to file and failure to pay, the                                                                   pliance train. Often the deductions are not relevant or
                                                                defendant’s good faith belief must be evaluated on a
taxpayer could be assessed for fraudulent failure to file                                                                      should be secondary to the central focus of keeping the
                                                                subjective, rather than objective, basis of reasonable-
under IRC §6651(f). Fraudulent failure to file penalty                                                                         case on a civil rather than criminal basis. As to the first
                                                                ness, a defendant’s claim that he or she in good faith
under IRC §6651(f) provides that in any case where a                                                                           matter, if the client cannot afford to pay even an esti-
                                                                believed that the tax laws did not apply to him or her
failure to file any return is fraudulent, in addition to the                                                                   mate of the tax due, focus on preparing the return and
                                                                because said laws are unconstitutional is not an appro-
tax, a penalty of 15% per month to a maximum of 75%                                                                            accurately reporting the income. The client who intends
                                                                priate defense. Such a conclusion reveals full knowl-
can also be assessed.                                                                                                          to file an offer-in-compromise or bankruptcy can be less
                                                                edge of the existence of the law and a conclusion (how-
                                                                                                                               worried about the deductions. As to the second matter, if
   The IRS has the burden of proving fraud by clear             ever wrong it may be) that the laws do not apply to
                                                                                                                               the client has real criminal exposure, due to numerous
and convincing evidence. However, fraudulent intent             him or her.
                                                                                                                               years of non-filing or affirmative acts of evasion, focus
may be established by circumstantial evidence and                  If convicted, the defendant may be fined, impris-           on accurately reporting income. Returns can later be
reasonable inferences drawn from the record. These              oned, or both. Currently the fine is no more than              amended to claim deductions.
“badges of fraud” include: (1) Understating income,             $250,000 for individuals or $500,000 for corporations
(2) maintaining inadequate records, (3) failing to file                                                                        File the Returns
                                                                and imprisonment cannot exceed five years. A taxpay-
tax returns, (4) giving implausible or inconsistent                                                                               The IRS has a section that deals with non-filers. The
                                                                er may also have to pay the costs of prosecution and
explanations of behavior, (5) concealing assets, (6) fail-                                                                     practitioner should attempt to develop a relationship
                                                                other special assessments. The statute of limitations is
ing to cooperate with tax authorities, (7) engaging in                                                                         with an individual who works with non-filers in his or
                                                                six years under IRC §6531. However, IRC §6531
illegal activities, (8) attempting to conceal illegal activ-                                                                   her territory. All contact and filing should then go
                                                                includes a tolling provision where the offender is out-
ities, (9) dealing in cash, and (10) failing to make esti-                                                                     through this person. If returns are filed in person, copies
                                                                side of the US or a fugitive from justice.
mated tax payments. IRC §6651(f) is not to be con-                                                                             of the returns should accompany the originals. The
fused with the Civil Fraud Penalty under IRC §6663.               A lesser criminal charge is willful failure to file a        practitioner should request that the returns are stamped
IRC §6651(f) applies in the case of fraudulent failure to       return under IRC §7203. To obtain a conviction under           in his or her presence and should request that copies be
file a return. IRC §6663 applies in the case of a fraud-        IRC §7203, the government must establish willfulness           stamped as proof of filing. If returns are mailed to the
ulent filed return.                                             and the omission of at least one of the following duties:      IRS, they can be addressed: Attention: Non-Filer
                                                                payment of any tax or estimated tax as required by the         Section and should always be mailed Certified Mail,
                                                                Code; preparation and filing of a return as required           Return Receipt Requested. A letter reiterating the volun-
                                                                under the Code; maintenance of records required to be          tary nature of the filing should accompany the returns
                                                                kept under the Code; or failure to supply of any infor-        whether filed in person or by mail. If no payment is
                                                                mation required to be supplied under the Code.                 being made with the filing, intent regarding payment
                                                                Willfulness requires the government to establish               can also be addressed.
                                                                beyond a reasonable doubt that the defendant deliber-
                                                                ately and intentionally failed to file a return (or per-       Conclusion
                                                                form any of the other above detailed legal duties) with
                                                                knowledge that he or she was required to do so by law.            Congratulations, the client is back in compliance (and
                                                                                                                               not in jail)! After all returns have been filed and the taxes
                                                                   A charge under IRC §7203 is often a lesser included         assessed, the taxpayer may be in collection. There are
                                                                offense of a charge under IRC §7201. Additionally, a           various approaches and strategies that can be used to
                                                                case that begins as an IRC §7203 can be upgraded to            assist the client in resolving outstanding tax liabilities
                                                                an evasion case under IRC §7201 with the commission            such as an offer-in-compromise, installment payment
                                                                of one affirmative act. IRC §7203 is often used to pros-       agreement or bankruptcy. A complete discussion of these
                                                                ecute tax protesters who fail to file return based on          strategies is outside of the scope of this article. However,
                                                                constitutional grounds.                                        since one very important strategy for dealing with a col-
                                                                  Willful failure to file is a misdemeanor punishable by       lection case for a non-filer is a Chapter 13 bankruptcy
                                                                imprisonment of not more than one year, a fine or both.        (where non-filing may exempt the taxes from priority
                                                                Currently the maximum fine is $100,000 for individuals         status while still allowing for discharge), it is very impor-
                                                                and $200,000 for corporations. The defendant may also          tant that the practitioner discuss collection strategies
                                                                be made to pay the costs of his or her prosecution. The        with the client before filing the outstanding returns. This
                                                                statute of limitations is six years under IRC §6531.           is necessary because filing the returns will affect the
                                                                                                                               immediate use of this option. As such, a practitioner who
                                                                Bringing the Client Back into the System                       is advising a client in this area is strongly urged to devel-
                                                                                                                               op a plan for resolving the outstanding liabilities even
                                                                Disclosure of the Non-Filing                                   before the returns are filed. By developing the collection
                                                                   The first step to bring the client back into the system     strategy before filing the returns, the practitioner pro-
                                                                is to disclose the non-filing to the IRS. To do this, with     vides the client with the maximum amount of options for
                                                                the client’s permission, contact the IRS and disclose the      resolving the tax liabilities.                            [B]
                                                                non-filer. Be ready to give some background regarding
                                                                the reason for the non-filing, such as marital problems,
                                                                divorce, drinking, drugs, death of spouse or family
                                                                member, etc. During this initial disclosure, you can also
                                                                request all income data on file with the IRS for all years
                                                                in issue. Finally, set a date by which all returns will be
                                                                filed or a schedule for filing returns in phases,
                                                                if numerous years are involved. Make sure you
                                                                memorialize the disclosure with a follow-up letter that
                                                                reiterates that the contact was voluntary, the reason for
                                                                the non-filing, and the date(s) by which all returns
                                                                will be filed.
                                                                                                                                                                       PAGE 17
                                 April 2004 | www.eriebar.org




Commissioner of Jurors
Relocates Offices
  The Erie County Commissioner of Jurors, Jury
Assembly Room and Civil Jury Selection Division have
moved as a result of the Erie County Courts renovation
project. The offices are now located on the ground floor
of the Erie County Courts Building located at 25
Delaware Avenue in downtown Buffalo.
  All attorneys conducting business with the
Commissioner of Jurors should report to this location
or call 716-845-2555. The following schedule is
published as a reminder to members of the Bar at the
request of Commissioner of Jurors Mehrl F. King:
  9:30 am                   Judicial Hearing Officer
                            and Attorneys to report
                            to Jury Selection
  9:30 – 10:00 am           Discussion of
                            civil jury selection
  9:45 am                   Jurors report to Jury              Western New York Trial Lawyers Elect Officers
                            Assembly Room
  10:00 am                  Voir dire to commence                The Western New York Trial Lawyers Association            The Trial Lawyers Association was formed in 1960 to
                                                               recently elected its 2004 officers and directors.        provide a forum for attorneys actively engaged in liti-
  12:30 pm                  Lunch break                        Pictured above, left to right, are: Treasurer Jeremiah   gation to facilitate the prompt disposition of actions
  2:00 pm                   Resume voir dire                   J. McCarthy; Secretary Laurie Styka Bloom;               and proceedings. The group also sponsors an arbitra-
                                                               President Patrick J. Maloney; and Directors Paula        tion program. For further information on the
  4:30 pm                   Recess
                                                               E. Newcomb, Mary Q. Wydysh, Keith N. Bond,               Association, write to WNYTLA at P.O. Box 14, Niagara
                                                               Jennifer Persico, Hilary C. Banker and Michael J.        Square Station, Buffalo, NY 14201.                [ B]
                                                               Roach. Not pictured are Vice President Thomas W.
                                                               Bender and Deputy Treasurer Mitchell J. Banas, Jr.
Bankruptcy Filings
Increase in 2003
   Bankruptcy filings in the federal courts remained high
for the 2003 calendar year, according to data from the
Administrative Office of the U.S. Courts. Total bankrupt-
cies filed in the twelve-month period ending December 31,
2003 numbered 1,660,245, up 5.25 percent from the
1,577,651 bankruptcies filed in the 12-month period end-
ing December 31, 2002.
  Of the 1,660,245 cases filed in 2003, 1,176,905 were
Chapter 7 filings. Chapter 7 is designed to let individuals
keep certain exempt property and discharge most debt.
There were 473,137 Chapter 13 filings, in which creditors
may be repaid in installments, in full or in part, over a
three to five-year period.
  Bankruptcy filings in the greater Buffalo area reached
the highest total for any 12-month period in history for the
year ending December 31, 2003, according to Buffalo
attorney Jeffrey Freedman, whose firm concentrates in
bankruptcy, social security disability and personal injury
cases. Filings increased 17.7 percent from 8,111 in 2002 to
9,546 in 2003.
   On February 23, 2004, Federal Reserve board chairman
Alan Greenspan delivered an upbeat assessment about the
state of U.S. household finances. In a speech to a credit
union trade association, Greenspan said consumers could
handle their higher debt levels. However, many financial
experts say that consumers are stretched too thin and
unable to successfully plan for their financial futures.
Credit cards have become a trap for many middle-class,
hard-working families in serious financial trouble. [ B ]
PAGE 18
                                                                                                                     www.eriebar.org | April 2004




                                                   erie institute of law
                                                         continuing legal education for your professional advantage


     Date/Time/Place                               Topic                                                                   CLE Credit                  Price

     Thursday,April 1, 2004                        Annual Spring Employee Benefits Law                                     4.4 actual credits:         $179
     12:00 p.m. - 4:00 p.m.                        and Practice Update                                                     varies from state
     Adelbert Moot CLE Center                      (Satellite Telecast)                                                    to state

     Thursday,April 15, 2004                       Gofigure                                                                1.5 Ethics                  $25 members
     11:00 a.m. - 12:30 p.m.                       (Encore Video)                                                                                      & non-members
     Adelbert Moot CLE Center

     Tuesday,April 20, 2003                        Everything You Wanted to Know about Legal                               3.5 Ethics                  $70 members
     11:00 a.m. - 3:30 p.m.                        Malpractice and Attorney Grievances,                                                                $100 non-members
     Adelbert Moot CLE Center                      But Hopefully Will Never Need to Use
                                                   (Encore Video)

     Wednesday,April 21, 2004                      Health Plans, HIPAA, and COBRA Update                                   4.4 actual credits:         $179
     12:00 p.m. - 4:00 p.m.                        (Satellite Telecast)                                                    varies from state
     Adelbert Moot CLE Center                                                                                              to state

     Friday,April 23, 2004                         First Annual Western New York                                           5.5 credits:                $160 members
     9:00 a.m. - 3:30 p.m.                         Bankruptcy Conference                                                   1.5 Ethics                  $190 non-members
     Batavia Party House                           (Live Seminar)                                                          4.0 Skills
     Route 5, Stafford , NY

     Friday,April 23, 2004                         Day Two – Survival Strategies                                           6.0 Skills                  $175 newly-admitted
     8:30 a.m. - 4:30 p.m.                         (Live Seminar)                                                                                      Experienced attorneys:
     Hyatt Regency, Buffalo                                                                                                                            $200 members
                                                                                                                                                       $225 non-members
                                                                                                                                                       (or $125 a day)

     Saturday,April 24, 2004                       Criminal Practice in Justice Courts:                                    TBA                         $70 members
     9:00 a.m. - 1:00 p.m.                         Beyond Tips to Fundamental Principles                                                               $100 non-members
     Hyatt Regency, Buffalo                        (Live Seminar)

     Tuesday,April 27, 2004                        Legacy of Life: Lawyers Role in Organ                                   1.0 Prac. Mgmt./            Free to Bar members;
     1:00 p.m. - 2:00 p.m.                         Donation Education                                                      Prof. Prac.                 underwritten by
     438 Main Street, 12th Floor                   (Noonday Lecture)                                                                                   Upstate NY
                                                                                                                                                       Transplant Services




     ERIE INSTITUTE OF LAW REGISTRATION FORM

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


     1. ________________________________________                 Name _______________________________________________________________________________________________


     2. ________________________________________                 Firm ________________________________________________________________________________________________


     3. ________________________________________                 Address _____________________________________________________________________________________________


                                                                 ___________________________________________________________________________________________________
                                                                 City                                                            State           Zip

      Cancellation Policy: If you are unable to                  Phone ________________________ Fax ________________________ Email __________________________________
      attend a seminar for which you have already
      registered, call Sheilah Coleman at 852-8687               Enclosed is my check in the amount of $ _______________

      ext. 22. For a full refund, notice of your
                                                                 ❐ Visa     ❐ MC Card Number _________________________________________________________________________
      cancellation must be received before the
      date of the program. Registrants who are
      pre-registered and fail to attend will receive             Cardholder Signature _______________________________________________ Exp. Date _________________________

      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, (716) 852-7641 Fax
                                                                                                                                                          PAGE 19
                              April 2004 | www.eriebar.org




                                 Listen, Learn & Earn!
         Utilize the Erie Institute of Law tape library and start earning your CLE credits when it’s convenient for you.

                                             Experienced attorneys are required to obtain 24 credit hours,
               of which four need to be in ethics, every two years. If your biennial registration is fast approaching
                        and you find you need additional credits, the Erie Institute of Law tape library can help.




Attend an Erie Institute of Law Seminar at home:
Videotapes now available for CLE credit.
Bring continuing legal education home with the               We currently have 13 selections available including
convenience of videotapes. Take advantage of our             “Surrogate’s Court Guardian Ad Litem” and our
videotape library when scheduling conflicts keep             most recent program,“A New Year’s Resolution for
you from attending an Erie Institute of Law seminar.         Getting Paid and Collecting Fees.” For a convenient
Our CLE videotapes are recordings of successful              way to receive your CLE credits, purchase an Erie
and well attended Erie Institute of Law seminars.            Institute of Law CLE videotape today.

                  For a complete list of videotapes, please call Susan Hart at 852-8687, ext. 15.




New Audiotapes Available:                                                                                              We invite all members of the Bar
Ethics and Grievances                                        A New Year’s Resolution for Getting                       Association of Erie County to join the
PRODUCT CODE 2061                                            Paid and Collecting Fees                                  electronic CLE mailing list to receive
                                                             PRODUCT CODE 2062                                         your monthly program notices via e-mail.
4.5 CLE Credits: Ethics
                                                             4.5 CLE Credits: 1.0 Ethics, 2.5 Skills and 1.0
Presented on March 6, 2004                                                                                             Just send a message to cle@eriebar.org
                                                             Practice Management
Audio - $70.00 Members,                                                                                                and let us know that you would like to
$100.00 Non-Members                                                                                                    receive your notices electronically.
                                                             Presented on March 27, 2004
Video - $85.00 Members,                                      Audio - $70.00 Members,
$115.00 Non-Members                                          $100.00 Non-Members
                                                                                                                       Adobe Reader is required to open
                                                             Video - $85.00 Members,
This seminar explains everything you ever wanted             $115 Non-Members                                          program notices. To download the latest
to know about the interplay between ethics issues                                                                      version of Adobe Reader, please follow
and the grievance process.The program traces the             This seminar concentrates on collecting fees for
path of an ethics inquiry from its inception through
                                                                                                                       the simple instructions at:
                                                             work performed.This is an easy concept but not            www.adobe.com/products/acrobat/
its ultimate resolution before the Appellate Division        an easy task and one that is often neglected.When
on a petition for discipline issued by the Attorney          the problem arises, it is necessary to be prepared        readstep2.html
Grievance Committee.                                         to mitigate the losses, to arbitrate and to litigate.
The program includes:                                        This seminar is organized in a chronological fashion
   • Ethical aspects of conflicts that may arise             addressing the issue of moving to withdraw from
      during legal representation                            representation and/or securing a retaining or charg-
   • Pointers on how to identify potential                   ing lien against the file. It is also necessary to dis-
      conflicts and how to avoid them                        cuss the ethical concerns regarding representation
   • Procedures to follow when the lawyer must               of the client, the obligations under the Retainer
      withdraw from representation
   • How to respond to the second opinion
                                                             Agreement and/or Letter of Engagement and the                    Don’t throw out
                                                             importance of having such documents.
      and client discharge based upon the second                                                                            your old Bulletins!
      opinion.                                               Fee Arbitration has been a growing trend in all areas
                                                             of practice but there is a knack to preparing for
                                                                                                                              Recycle them.
                                                             arbitration as soon as the client is retained.These
                                                             time-saving techniques will assist attorneys prepar-
                                                             ing for fee arbitrations.
    To place an order,
    please send check payable to:                            However, being awarded a fee does not protect the
                                                             fees from being discharged in Bankruptcy. Learn
                                                             essential methods to prevent that from happening.
    The Erie Institute of Law
                                                             The seminar concludes with a discussion about the
    438 Main Street, Sixth Floor                             process of promptly commencing a collection
    Buffalo, New York 14202                                  action and obtaining a Money Judgment. Learn the
                                                             tools for effective collection of a Money Judgment
    Be sure to include your name and                         to accelerate fee collection.
    address for mailing purposes; add
    $5 for shipping and handling for
    each tape purchased.Tapes are sent
    via UPS, no P.O. boxes please.

    For a complete list of tapes available
    or to order tapes by phone, contact
    Susan Hart at 852-8687 ext. 15.
                                                                                                                                                                PRSRT STD
                                                                                                                                                                U.S. Postage
                                                                                                                                                                    Paid
                                                                                                                                                                Buffalo, NY
                                                                                                                                                               Permit No. 416




           Reserve
             your                                                                                                        NOTICE
         advertising
          space for                                                                                                      Directory of Attorneys & the Courts
           the MAY
              2004                                                                                                       Beginning with the 2004-05 Edition of the
          Bulletin                                                                                                       Directory of Attorneys & the Courts, the use of
            TODAY!                                                                                                       “Hon.” in the general listing of attorneys will be
                                                                                                                         used solely for judges who currently sit in a
          The next deadline                                                                                              court of record, i.e., Federal Court, Supreme
            for ALL Bulletin                                                                                             Court, Erie County Court, Erie County Family
                                                                                                                         Court, Erie County Surrogate and Buffalo City
     contributors and advertisers                                                                                        Court, pursuant to a policy adopted by the
       is Friday, April 2, 2004.                                                                                         Board of Directors.

            Call Susan Kohlbacher
             at Bar Headquarters
            for more information.




                                                                ALL MEETINGS HELD IN THE BAR CENTER,
   April 2004 calendar                                          438 Main Street, Sixth Floor, unless otherwise noted.
                                                                The Adelbert Moot CLE Center is also located at 438 Main Street, Sixth Floor.


THURSDAY 1                                   WEDNESDAY 7                                THURSDAY 15                                  WEDNESDAY 21
Law Practice Management Committee            Intellectual Property, Computer &          P&P in Justice Courts Committee              Workers’ Compensation Committee
12:15 p.m. - Brennan Room, Bar Center          Entertainment Law Committee              12:15 p.m. - Hon. Frank Caruso, Chair        12:15 p.m. - D. Jeffrey Buckley, Chair
Thomas E. Liptak, Chair                      12:15 p.m. - Rosalie A. Melisz &
                                               Stephanie A. Cole, Co-Chairs             FRIDAY 16                                    THURSDAY 22
Negligence Committee
12:15 p.m. - 438 Main Street, 12th Floor                                                Young Lawyers Committee                      Municipal & School Law Committee
Thomas P. Cunningham, Chair                  THURSDAY 8                                 12:15 p.m. - Deanne M. Tripi, Chair          12:15 p.m. - Arbitration Room, Bar Center
                                             Criminal Law Committee                                                                  Jeffrey W. Stone, Chair
FRIDAY 2                                     12:15 p.m. - Robert N. Convissar, Chair    MONDAY 19                                    P&P in Surrogate’s Court Committee
Commercial & Bankruptcy                                                                 Banking Law Committee                        12:15 p.m. - 438 Main Street, 12th Floor
  Law Committee                              FRIDAY 9                                   12:15 p.m. - Location TBA                    Gayle L. Eagan, Chair
12:15 p.m. - Adelbert Moot CLE Center        Committee for the Disabled                 George F. Bellows, Chair
Joseph W. Allen, Chair                       12:15 p.m. - Adelbert Moot CLE Center                                                   MONDAY 26
                                             Jeffrey M. Freedman, Chair                 Committee on Eminent Domain &
                                                                                          Tax Certiorari                             Alternative Dispute Resolution Committee
MONDAY 5                                     P&P in Family Court Committee              12:15 p.m. - Brennan Room, Bar Center        12:15 p.m. - Linda W. Chodos
Federal Practice Committee                   12:15 p.m. - Erie County                   Bruce S. Zeftel, Chair                       & Patricia H. Potts, Co-Chairs
12:15 p.m. - Adelbert Moot CLE Center          Family Court, Part 3
David R. Hayes, Chair                        Deborah A. Haendiges, Chair                Taxation Committee                           Admission to the Bar Committee
                                                                                        12:15 p.m. - Jonathan D. Schechter, Chair    12:15 p.m. - Brennan Room, Bar Center
Professional Ethics Committee                                                                                                        Daniel G. Tronolone, Chair
12:15 p.m. - David G. Jay, Chair             TUESDAY 13
                                                                                        TUESDAY 20
                                             Labor Law Committee                                                                     TUESDAY 27
                                             12:15 p.m. - Andrew P. Fleming, Chair      Board of Directors
TUESDAY 6                                                                               8:00 a.m. - Michael J. Flaherty, President   Elder Law Committee
Board of Directors                           Real Property Law Committee                                                             12:15 p.m. - Adelbert Moot CLE Center
8:00 a.m. - Michael J. Flaherty, President   12:15 p.m. - 438 Main Street, 12th Floor   Environmental Law Committee                  Bruce D. Reinoso, Chair
                                             William P. Johnson, Chair                  12:15 p.m. - Charles D. Grieco, Chair
Matrimonial & Family Law Committee
12:15 p.m. - Adelbert Moot CLE Center                                                   Corporation Law Committee                    THURSDAY 29
Christopher S. Mattingly, Chair              WEDNESDAY 14                               12:15 p.m. - Adelbert Moot CLE Center
                                                                                                                                     Human Rights Committee
                                                                                        Mary Catherine Malley, Chair
                                             Health Care Law Committee                                                               12:15 p.m. - Marilyn A. Hochfield, Chair
                                             12:15 p.m. - Lawrence M. Ross, Chair
                                             Unlawful Practice Committee
                                             12:15 p.m. - Brennan Room, Bar Center
                                             Nancy M. Langer, Chair




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